The High Court has refused the Commission for Communications Regulation’s application to require Smart Mobile Limited to pursue parts of its 3G licence dispute through judicial review. The ruling addressed the procedure for the case, not whether Smart Mobile was entitled to the licence or whether the regulator acted unlawfully.
Smart Mobile began plenary proceedings on 14 February 2006. It seeks a declaration that a contract for the award and grant of a third-generation mobile telecommunications licence had been concluded. In the alternative, it claims the regulator acted unreasonably over additional performance guarantee requirements and the deadline for meeting them. The company also seeks injunctive relief.
The dispute followed a tender process in which Smart Mobile was selected as the successful applicant, subject to conditions. These included providing a €100 million performance bond and a €7.6 million guarantee for spectrum access fees. The regulator extended the deadlines to 30 January 2006. It later informed Smart Mobile that the licence would not be awarded because, in its view, the required guarantees had not been provided by the deadline. Those underlying matters remain disputed; they were not decided in this application.
The regulator argued that the claims challenging its decisions were, in substance, an attempt to obtain certiorari and should be brought by judicial review. It said bringing them by plenary summons amounted to an abuse of process. Smart Mobile disputed that argument. The judgment records that the company accepted its challenge to the regulator’s conduct involved public law issues.
Mr Justice P. Kelly found no statutory requirement applicable to this regulator that challenges to its decisions be brought only by judicial review, and no Irish decision establishing that using plenary proceedings in these circumstances was an abuse of process. He also considered the case’s combined claims: the alleged concluded contract was a private law issue that could proceed by plenary action, while public law principles and limits on relevant discovery could govern the regulator-related issues within the same proceedings.
The judge noted that the regulator conceded Smart Mobile would meet the threshold for leave to seek judicial review. Requiring a new judicial review case would, he said, add cost and delay without a sufficient procedural benefit. An interim injunction granted by agreement on the day proceedings began was to continue until trial. The court refused the regulator’s application to redirect the case; it did not determine the merits of the licence dispute.