The High Court has ordered Vodafone Ireland Limited to pay Three Ireland (Hutchison) Limited’s reasonable costs of participating in a judicial review up to 12 June 2015, together with the costs of Three’s application for costs. The court did not decide the underlying dispute about ComReg’s spectrum management or make findings on the relief Vodafone had sought.
Vodafone had brought proceedings against the Commission for Communications Regulation (ComReg), seeking to challenge its response to concerns about the effect of Three’s acquisition of O2 Ireland on mobile spectrum in Ireland. Vodafone sought, among other relief, to quash ComReg’s 14 October 2014 decision not to conduct a public review and consultation, and to compel ComReg to review spectrum allocation.
Three joined as a notice party, arguing its commercial interests could be affected by a review and by the relief Vodafone sought. The merger had been approved by the European Commission subject to commitments. Three told the court it had paid €51.137 million upfront for spectrum in a multi-band auction, while the Three Group paid more than €750 million for O2.
Vodafone and ComReg settled their proceedings. An order striking them out with no order as to costs was made on 16 June 2015. ComReg’s information notice the following day described the agreement and outlined its position that it had assessed the merger from a spectrum management perspective and continued monitoring spectrum use. The High Court heard Three’s separate costs application on the basis that the settlement terms were those set out in that notice. Three said it had not taken part in or been privy to settlement negotiations.
Justice Costello found that it had been reasonable for Three to join and that its participation was neither unnecessary nor disproportionate. She noted Three had contributed evidence on matters including spectrum use and the merger commitments. She said the costs application did not allow her to hear the full underlying case, and did not determine whether Three’s arguments would have prevailed at trial.
The judge concluded that Vodafone and ComReg settled without reference to Three, leaving its costs unresolved. In the circumstances, she found that the balance of justice favoured awarding Three its reasonable participation costs and the costs of the application. The order concerns costs only; the judicial review itself was struck out without a determination of its substantive issues.