The High Court has declined, for now, to order disclosure of confidential commercial documents sought by Telefónica O2 Ireland Limited in its challenge to a call-handling charge set by the Commission for Communications Regulation (ComReg). The court adjourned the disclosure application until after a first hearing on the standard of review and a fair procedures issue.
O2 is seeking to quash ComReg’s determination of the price that telephone providers pay BT Communications Ireland Limited for handling emergency calls made by customers of other providers. BT operates Ireland’s Emergency Call Answering Service under a contract with the Minister for Communications, Energy and Natural Resources. The judgment says O2 does not challenge the overall arrangement or the principle that providers should contribute to the reasonable cost of the free emergency call service; its challenge concerns the amount fixed by ComReg.
For its application, O2 sought an unredacted version of a report prepared for ComReg by Howarth Bastow Charleton, along with the contract between BT and the Minister. It also sought discovery of those documents and related drafts, working papers and inputs. The report, dated 17 December 2010, had been disclosed in redacted form. ComReg, supported by the Minister and BT, opposed wider disclosure on confidentiality grounds.
O2 argued that EU law could require a more searching standard of review than the traditional judicial review test of irrationality. It accepted that the requested materials would not be relevant if the court applied that traditional test, but said they could matter if a higher standard applied. ComReg disputed that position. The judge said the procedural hearing was not the occasion to decide the standard of review and could not rule out that some of the material might be relevant under a more expansive approach.
The judge concluded that disclosing potentially significant confidential information immediately would be disproportionate while its relevance remained uncertain. The court therefore directed a modular hearing: the standard of review and fair procedures questions are to be addressed first, with remaining issues left for a second module if needed. No disclosure was ordered at this stage. O2 may renew its application after the first module, when the judge handling the substantive case can assess relevance and balance it against the confidentiality interests. The court also said it would hear counsel on directions and proposed written submissions on the legal issues.