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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> NWR FM t/a North West Radio v. Broadcasting Commission of Ireland & Anor [2004] IEHC 109 (23 June 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/109.html Cite as: [2004] IEHC 109

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THE HIGH COURT JUDICIAL REVIEW

HC 248/04

Record No: 2003 No. 528 JR

Between:

NWR FM Limited trading as North West Radio

Applicant

And
Broadcasting Commission of Ireland

Respondent

And
By Order of the Court: North West Broadcasting Limited, trading as Ocean FM Radio

Judgment of Mr Justice Michael Peart delivered the 23^rd day of June 2004:

The applicant (also referred to herein as "NWR") is currently the holder of a radio franchise licence for the area of Sligo/South Donegal/North Leitrim, granted to it by the Independent Radio and Television Commission ("IRTC"), and which commenced firstly on the 10^th September 1990 and ran for a period of seven years from that date. At the expiration of that period in September 1997 the licence was automatically renewed for a further period of seven years, which will expire on 1^st October 2004. There is no entitlement to a further licence on the expiration of the present one, since an express term of the franchise contract provides at page 8 thereof as follows:

"The Contractor hereby acknowledges that nothing herein, explicit or implicit, confers on it any right of renewal of this contract."

On 17^th October 2001, the BCI, being the successors to the IRTC placed a newspaper advertisement in which it sought expressions of interest from parties interested in securing contracts for a sound broadcasting service for Local Commercial Radio Services in respect of:

(i) Existing local radio franchise areas;

(ii) Additional local radio services;

(iii) Modified franchise areas;

(iv) Opt-Out/Sustained commercial radio services; and

(v) Digital Audio Broadcasting (DAB) Services.

In relation to (i) above, the advertisement specified certain franchise areas, including Sligo/Donegal South/Leitrim North. Any such expressions were to be submitted by 30^th November 2001. The applicant and one other bidder submitted expressions of interest for this area. The eventual winner of the franchise licence for this area, namely the Notice Party, did not submit an expression of interest in answer to this advertised invitation to do so.

At the time of the advertisement, BCI had not made any final decision as to exact make-up of the franchise areas which would be licensed. But on 24^th January 2002 BCI issued its licensing plan for local radio stations, and this plan showed that BCI was keeping intact the existing franchise area of Sligo/Leitrim(north)/Donegal(south). There had apparently been some possibility that Donegal south might have been excluded from the area, and amalgamated with the Donegal north franchise area to create a single Donegal franchise area. The applicant had argued against such a change, as naturally it would have an adverse impact on the size of the listenership for the existing area if Donegal north was removed. The size of the listenership is critical to commercial success and survival.

On 19^th November 2002, BCI again advertised and this time it sought applications for the franchise area of Sligo/Donegal south/Leitrim north. On the same date BCI published a Guide to Submissions. The applicant herein makes some criticisms of the contents of this Guide, or perhaps it would be more accurate to say that the applicant points to the absence of certain matters from this document, which, if present, would have led the applicant to have presented its application somewhat differently. However I shall return to these matters in due course.

Written submissions by way of application for the franchise licence were to be submitted by 24^th January 2003. Three such submissions were lodged, including by the applicant and Notice Party in these proceedings.

It appears that on 4^th March 2003 the applicant was informed by letter from BCI that its application had been shortlisted and that there would be an oral hearing in relation to the three applications which would take place on the 21^st March 2003. These oral presentations eventually took place on 21^st March 2003. According to the grounding affidavit of Paul Claffey sworn on the 17^th July 2003, each presentation was to last for twenty minutes. Mr Claffey states that at this presentation, which took the form of a question and answer session, many of the questions put to the NWR personnel concerned the question of shared programming. This refers to the fact that NWR shares some of its programmes with another radio station, namely Mid-West Radio, which, while being a separate corporate entity with a separate Board of Directors, has some shareholders who are also shareholders in NWR.

Mr Claffey has stated that it came as a surprise to NWR at this oral presentation that BCI seemed to have concerns about the idea of programming being shared with another radio station, especially since there had been no mention in the Guide to Submissions that this issue might be of concern. It is a fact that the eventual winners of the franchise, the Notice Party herein, did not have plans in their submission which involved shared programming. NWR considers that it was unfairly disadvantaged by having no prior indication that shared programming would be an important consideration in the minds of BCI when it came to make its decision, and that if they had had prior notice of this concern, they would have been able to properly address it in the Submission and at the oral presentation. However, I shall return to that matter in due course.

On the 29^th April 2003, a meeting of BCI was held at which the franchise was awarded to the Notice Party, and not the applicant. That decision was made on the casting vote of the Chairman. The meeting had been scheduled to take place on the 28^th April 2003, but there was a quorum problem on that date, and it was held instead on the 29^th April 2003, on which occasion six out of the ten members of the BCI Board were present.

The news that NWR had been unsuccessful in their submission was communicated to the applicants, in the first instance, by a telephone call from Mr Michael O'Keeffe, the Chief Executive of BCI, to Mr Claffey on the 29^th April 2003. He stated, inter alia, that reasons for the decision would be communicated in a "number of weeks". This period of time was needed apparently so that they could be properly drafted. Mr Claffey became concerned about what he saw as continued delay in obtaining reasons, but they arrived eventually in the form of a "Feedback Report" which was furnished by letter dated 26^th May 2003. Again, the applicant submits that this Feedback Report is not an adequate furnishing of reasons, and that it is bland and uninformative, and the applicant maintains that the way in which this Feedback report has been worded is designed to limit the capacity of any aggrieved party such as the applicant from challenging same by way of Judicial Review.

The salient part of the Feedback Report is contained in the following paragraphs therein:

"At its meeting on 29^th April 2003, the Commission decided to award the licence to North West Broadcasting limited (t/a Ocean FM Radio). This report is intended to convey reasons to NWR FM as to why its submission was not awarded the licence by the Commission.

In general terms, the application was considered to have strengths. The Commission acknowledged the listenership success of the station over many years. While the station's track record was considered generally to have been a good one, breaches of the statutory advertising regulations were viewed negatively by the members. Some members also expressed concern about the station's failure to provide satisfactory disabled access to its main studio facilities, in accordance with its contractual obligations, although it was noted that NWR FM had committed in its application to do so in the future.

The Members of the Commission who supported the proposals of the successful applicant group considered the proposals to have two principal strengths over those of NWR FM. Firstly, the group proposed a fully dedicated service for the franchise area. They expressed a preference for such a service, and considered that, given the maturity and success of the local radio sector, the franchise area was now capable of sustaining a full service that did not require the level of shared programming and other resources proposed by NWR FM.

Secondly, they considered that the programming vision of the successful applicant group reflected to a greater extent the changing social and economic climate in Ireland and, more specifically in the franchise area. They took the view that NWR FM would be likely to enjoy continued success with its programme service, given its track record to date. However, they were also of the view that the successful applicant group had presented a strong case in respect of the demographic changes in the franchise, particularly in respect of the need to provide a greater level of service to younger listeners. As such, the successful service would be more likely to better serve the needs of a greater range of listeners over the period of the licence.

In respect of the management of the proposed service, those members who supported the successful applicant group were of the view that a fully dedicated management team (not shared with another station) would be likely to better serve the radio service.

The Commission considered other aspects of the application to be satisfactory."

The applicant has a number of criticisms of this Report and I shall revert to these later in the course of my judgment.

The applicant has been supplied with a copy of the Minute of the meeting of the 29^th April 2003, but not of the contemporaneous handwritten note by the Secretary, Ms. Craig, of what took place at the meeting, since that note has been destroyed by her following the reduction of her notes into the form of the Minute. Much criticism is made by the applicant in relation to this destruction of the contemporaneous note, and Ms. Craig has sworn an affidavit in which she has averred that the purpose of this note is to prepare the Minute and ultimately the Feedback Report, which she did, and that it was only after the Minute had been approved by the Board that, in accordance with her "usual practice" the handwritten note of the views expressed at the meeting was shredded.

Following the making of the Order herein on the 28^th July 2003 by which leave was granted to seek reliefs by way of Judicial Review, an application was made to include additional grounds of relief relating to the destruction of this handwritten contemporaneous note, and that application is before this Court. I am satisfied that this ground ought to be permitted to be included in the grounds for seeking relief.

By Order dated 28^th July 2003, Mr Justice O'Neill granted leave to the applicant to apply by way of judicial review for an Order of Certiorari in respect of the decision to award the franchise to the Notice Party herein, as well as a large number of declarations as set forth in the said order. The Grounds upon which leave was granted are set forth in the Statement of Grounds herein dated 17^th July 2003, and which can be summarised as follows:

1. The decision was arbitrary and irrational and flew in the face of the facts and submissions before the BCI.

2. If regulatory breaches (i.e relating to advertising and disabled access) were reasons for the decision, reliance upon them for the purpose of depriving the applicant of its existence is disproportionate.

3. That the decision is in breach of s. 5(6) of the Radio and Television Act, 1988 ("the 1988 Act") as amended since the BCI never indicated an intention to place greater emphasis on one or more of the criteria (i.e shared programming and shared management) set forth in s. 6(2) of that Act, and it is obliged so to do if it was so intending.

4. BCI in reaching its decision failed to take into account the various criteria set forth in s.6(2) of the 1988 Act, which obliges it to take into account matters such as

the character of the applicant body and its directors;

the adequacy of the expertise, experience, financial resources of each applicant. Emphasis in this regard is put on the fact that the winner of the franchise is a body with no previous experience, whereas the applicant has been the incumbent for about 12 years;

The extent to which the application accords with good economic principles;

The extent to which the applicant caters for a wide range of tastes including minority interests;

The extent to which the applicant serves and is supported by the local community.

5. BCI failed to give any or any due weight to the criteria set forth in s. 6(4) of the1988 Act which provides:

"In considering the suitability of an applicant for the award of a sound broadcasting contract, the Commission shall have regard to the overall quality of the performance of the applicant with respect to the provision by him of a sound broadcasting service under any sound broadcasting contract held by him at, or before, the date of making of the application."

6. BCI breached its own Guide for Submissions:

(i) by failing to discuss all the applications, as stated in the Guide, "under each of the relevant criteria in a collegiate manner at the relevant board meeting of the Commission." In this regard the applicant herein states that it is apparent from the Minute in respect of the meeting held on 29^th April 2003 that this was not the format adopted.

(ii) by failing to provide and make available to the unsuccessful applicants a summary of the key determining factors under each of the criteria, as specified in the Guide to Submissions.

7. By failing to adopt and follow the parameters of its own Guide, and interpreting the Guide to Submissions in a manner which failed to provide for objective, transparent, non-discriminatory criteria, BCI adopted measures likely to seriously compromise the result prescribed in Directive 2002/21/EC on a Common Regulatory Framework for Electronic Communications Networks and Services ("the Framework Directive").

8. BCI has breached fair procedures in the following respects:

a. Breaching its own procedures;

b. Failed to give reasons;

c. Failed to give sufficient warning to the applicant that it had changed its policy on shared programming and management;

9. BCI is in breach of the Framework Directive requirements of transparency, non-discrimination, and proportionality set forth in Article 4(1) thereof, and of the requirements in Article 4 thereof regarding an appeal procedure, and in relation to the latter the applicant also points to the fact that there is no appeal available on the merits of the application, even though, as the applicant submits, the BCI is not an expert body as such, and that there is a breach of the requirement under the Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated into national law by the European Convention on Human Rights Act, 2003 ("the Convention") and the First Protocol, that there be an effective remedy to the applicant.

10. BCI has breached the applicant's property rights under the Convention, since its decision has reduced the value of the applicant from €4 million on 28^th April 2003 to €129,000 on 29^th April 2003.

11. That BCI is in breach of s. 7(3) of the Schedule to the 1988 Act by failing to introduce rules for its procedures, in breach of the obligation to do so. Particular reliance is placed on the fact that BCI has failed to bring in rules to fix the quorum for meetings.

12. BCI failed to have regard to the provisions of the Equal Status Act, 2000 when reaching its decision, in as much as in its written submission the Notice Party had characterised, factually wrongly in the submission of the applicant, the applicant's listenership as old, conservative and poorly educated, and that in breach of that Act, by awarding the franchise licence to that Notice Party, the BCI appears to share the view that appealing to a younger listenership is inherently more valuable than appealing to an older age group.

An additional ground emerged following the making of Discovery by the Respondents which relates to the destruction of the contemporaneous note of the meeting of the 29^th April 2003, and it can be summarised as:

13. The legal consequences following upon the shredding of the handwritten notes taken at the meeting on the 29^th April 2003, since where a party is seeking to judicially review a decision, the adequacy of records is of vital importance.

The Destruction of the Handwritten Notes:

It is convenient to deal with the submissions made under this Ground at the start. As far as the facts relating to this head of submission are concerned, the position is that in a Note to Commission Members dated 10^th April 2003, the Head of Broadcasting at BCI, Ciaran Kissane, gave Commission members, ahead of the meeting at which the decision was to be made as to the award of the licence, what he describes as a "brief outline of the agreed procedures for the final decision-making phase of the licensing process." One of these procedures is relevant to this head of submission. The others have relevance elsewhere in the submissions and I shall deal with them at that stage. That which is relevant now is at paragraph 5 of the Note and is as follows:

"5. In order to satisfy the BCI's statutory obligations under Section 18 of the Freedom of Information Act, 1997 and Section 60 of the 2001 Broadcasting Act, the Secretary will take a detailed account of the views of the Board Members in respect of each application. This will form the basis of feedback to unsuccessful applicants. In the event that there is not unanimity amongst the Board Members in their views of the applications, the feedback given will be based on the views of the majority of the Members."

S. 60 of the Broadcasting Act, 2001 amends s. 6 of the Radio and Television Act, 1988 in two respects by inserting ss.(4) and ss. (5) to s. 6. It is ss.(5) which is relevant to this submission. It provides:

"(5) Where the Commission decides to refuse to award a sound broadcasting contract to an applicant therefor, the Commission shall notify the applicant of the reasons for the decision."

Section 18 (1) of the Freedom of Information Act, 1997 provides:

"18. – (1) The head of a public body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by a person who is affected by an act of the body and has a material interest in a matter affected by the act or to which it relates, not later than 4 weeks after the receipt of the application, cause a statement, in writing or in such other form as may be determined, to be given to the person –

(a) of the reasons for the act, and

(b) of any findings on any material issues of fact

S. 18(6) of that Act defines an "act" as including "a decision".

Counsel for the applicant, James O'Reilly S.C. has also referred to s. 6 (1) of that Act which provides:

"6.—(1) Subject to the provisions of this Act, every person has a right to and shall, on request therefor, be offered access to any record held by a public body and the right so conferred is referred to in this Act as the right of access."

It is submitted that the applicant is entitled to avail of this right of access in relation to the handwritten notes taken at the meeting at which the decision was taken, and that this document would have had to contain the details of the expression of the views of members of the Board at that meeting. It is submitted that this is particularly important in view of the requirements laid down in s. 6(2) of the 1988 Act as to the different criteria which the Commission must have regard to when considering every application for a sound broadcasting licence. It is urged by the applicant that the Minute of that meeting which was prepared from the handwritten notes does not show that the Commission in fact had regard to the matters which s 6(2) states it shall have regard to when it considers every application, and neither is the consideration of these matters evident from the Feedback Report. In this regard also, the applicant refers to the fact, as is averred to in the said grounding affidavit of Paul Claffey, that after Mr Claffey received the telephone call from Mr Michael O'Keeffe informing him that NWR had not been awarded the licence, some considerable time passed before reasons for this decision were furnished, and that contact was made with BCI on a number of occasions by the applicant to enquire when those reasons would be furnished. It is submitted therefore that BCI would have been well aware that the reasons for the decision would be closely scrutinised by the applicant, and that therefore having taken four weeks to prepare the minute and the Feedback report, the destruction of the handwritten notes, which was the only contemporaneous note of what occurred at the meeting, has effectively hindered the applicant in its attempt to have the decision judicially reviewed, as the notes would or would not have corroborated the edited version of the meeting as appearing in the Minute and the Feedback report.

Counsel has made the point that the applicant is challenging the manner in which the Board of BCI reached its decision in supposed compliance with its statutory obligations, and as set forth in its Guide to Submissions dated November 2002 and Notes to Commission Members of April 2003, and that the manner in which it in fact carried out its duties and obligations in relation to consideration of the many matters it must have regard to, cannot now be corroborated in any way by reference to the contemporaneous notes which have been destroyed.

Counsel has also referred to the fact that in its own Standing Orders for the Regulation of Meetings of the Commission, November 1998, it is provided at 3(b) that:

"3. (b) Minutes shall provide a summary record of the discussions which take place, as well as providing a record of decisions reached."

Mr O'Reilly states that this "summary record of the discussions" could not be what is required to evidence that BCI complied with its own procedures as set forth in its own Guide to Submissions, namely that "members will discuss the applications under each of the relevant criteria in a collegiate manner at the relevant board meeting of the Commission."

Mr O'Reilly relied on a number of legal authorities to support his submission that the legal maxim 'omnia presumuntur contra spoliatorem' (translated in Mozley and Whitley's Law Dictionary as "all things are presumed against a wrongdoer") and hereinafter referred to as "the maxim", should be applied against BCI in this case.

Before looking at these authorities, it would be helpful to set out in some detail, but not verbatim, what is actually contained in the Minutes and the Feedback report. Where I am quoting directly from the Minutes, such passages are in quotation marks and italicised:

The Minutes:

(i) No further interests declared;

(ii) The Chief Executive, having been requested to do so, reviewed the track-record of the incumbent licence holder, the applicant herein, and did so in relation to:

The shareholders, directors and certain staff members, and noted that the CEO and Financial Controller operated in a dual capacity with Mid-West Radio;

Staffing levels and salary scales, the former being noted as satisfactory, and the latter being described as average for the sector;

Programming, noting that the station enjoyed a very successful listenership from the outset and has demonstrated a consistently good performance in JNLR surveys, and that in programming terms it had been generally compliant, although there had been some on-going difficulties in respect of breaches of the statutory provisions in respect of advertising minuteage and the statutory code on advertising and sponsorship.

The station had delivered on all its programming policy obligations, and had provided a good range of programmes, with a strong commitment to drama and writing in the franchise area, and had obtained a number of awards;

The station had not by that date provided full disabled access to the station, but that it had given a commitment to do so.

From a transmission point of view, coverage was generally good, although there were a number of gaps in South-West Donegal due to terrain problems.

(iii) Before discussing the merits of each application, the Chief Executive, at the request of the Chairman, clarified certain matters in relation to statements which had been made by the Notice Party herein regarding the integrity of the JNLR research.

(iv) Some correspondence was noted;

(v) "In accordance with agreed procedures, each member was, in turn, invited to express his/her views in respect of the three applications received for the licence."

The application by Ocean FM Limited was considered, in general terms, to be weaker than the other two applications received.

"Both NWBL and NWR were considered to have significant strengths. NWR's track-record and success in respect of programming was acknowledged. Its strong financial base and commercial success was also acknowledged. Members considered that the programming was likely to continue to be successful into the future. However, a number of members queried whether the proposals in respect of Bay FM had been thoroughly researched and thought through. Some members questioned whether the station format might tire over the ten years of the proposed licence, given the changing economic and social conditions in the country. One of the members was of the view that the station might have availed of the opportunity presented in the application process, to build on the station's success, while at the same time responding to such local changes. A number of members also questioned why NWR had not taken on the challenge of providing a greater level of dedicated programming, sourced and presented from the franchise area.

In respect of NWBL, some members acknowledged that the applicant group did not have the same level of broadcasting experience as the other applicants for the licence. However, those members considered that they had sufficient experience, as well as a strong financial base and were focused on what they wish to achieve. They were also impressed with the freshness of the approach of NWBL to the operation of the service. In the view of a number of the members, the programming was targeting a broader audience than that of the current franchisee, with content that would reflect, to a greater extent, the needs of the listeners in the franchise area over the next ten years. Some of the members questioned whether their revenue targets were overly ambitious and the likely impact that a failure to reach such targets would have on the group's ability to run the service proposed.

Following the preliminary discussion, it emerged that there was no support for OFL. Members debated whether the licence should be awarded to NWBL or NWR. In general terms, NWR FM's application was considered to have strengths. The listenership success of the station over many years was acknowledged. However, while the station's track record was generally considered to have been a good one, members viewed negatively breaches of the statutory provisions in respect of advertising and sponsorship. Some members also expressed concern about the station's failure to provide disabled access to its studio facilities, in accordance with its contractual obligations, although it was noted that NWR FM had committed in its application to do so in the future.

Three of the members present considered that the proposals of NWBL had two principal strengths over those of NWR. Firstly, the group proposed a fully dedicated service for the franchise area. Those who expressed a preference for such a service considered that the programming vision of this group reflected to a greater extent the economic and social changes which had taken place in recent years in Ireland and, in particular, the shifting needs of the listeners in the franchise area. These members took the view that NWR FM was likely to continue to be successful with its programme service, given its track record to date. However they were also of the view that NWBL had presented a strong case in respect of the demographic changes in the franchise area over the next ten years. As such, it would be more likely to be in a position to serve the needs of the listeners it was licensed to serve over the licence period. Those whose supported the NWBL application also felt that a fully dedicated management team (i.e. not shared with another station) would be likely to better serve the radio service.

Those who supported the NWR application pointed out that the station had enjoyed one of the most successful listenership records in the local radio sector. The station had significant broadcasting experience, linked to its performance, and had shown no complacency in its approach to programming or to the application process. It had catered well for specific audiences in its service area with its opt-out service for South Donegal. The proposed opt-out service for Sligo acknowledged the different needs of listeners in the rural and urban parts of the franchise area. It also had a strong commercial and financial base.

Following discussion, it was agreed to vote on the decision. Three members supported the application of NWBL and three members supported the application of NWR FM. In accordance with the provisions of Section 7 of the Schedule to the Radio and Television Act, 1988, and the Commission's own Standing Orders, the Chairperson cast a deciding vote in order to award the licence.

The Chairperson acknowledged the arguments of those who had supported the NWR application. However, in his view, the interests of listeners in the franchise area over the next ten years would best be served by the proposals of the NWBL applicant group. While the decision to appoint a new group would always have some risks attached to it, in his view it was a considered risk. The group in question, in his view, had a vision for the needs of a greater number of listeners in the area over the next ten years. In conclusion, the Chairperson cast the deciding vote in favour of NWBL."

I have set out the above extensive passage from the Minutes which was prepared from the handwritten notes which have been destroyed, since the applicant submits that it cannot be corroborated by reference back to the handwritten notes as to what discussion actually took place, and therefore it cannot be stated that the BCI had regard to the matters it is obliged to have regard to under s. 6(2) of the 1988 Act. I shall return to that point after I have dealt with the contents of the Feedback report.

The Feedback Report:

As referred to earlier, the Commission is required under s. 6(5) of the 1988 Act, as inserted by s. 60 of the 2001 Act to notify an unsuccessful applicant for a sound broadcasting contract of "the reasons for the decision".

After three preliminary paragraphs the Feedback report continues as follows:

"At its meeting on 29^th April 2003, the Commission decided to award the licence to North West Broadcasting Limited (t/a Ocean Radio). This report is intended to convey reasons to NWR FM as to why its submission was not awarded the licence by the Commission.

In general terms, the application was considered to have strengths. The Commission acknowledged the listenership success of the station over many years. While the station's track record was considered generally to have been a good one, breaches of the statutory advertising regulations were viewed negatively by the members. Some members also expressed concern about the station's failure to provide satisfactory disabled access to its main studio facilities, in accordance with its contractual obligations, although it was noted that NWR FM had committed in its application to do so in the future.

The Members of the Commission who supported the proposals of the successful applicant group considered the proposals to have two principal strengths over those of NWR FM. Firstly, the group proposed a fully dedicated service for the franchise area. They expressed a preference for such a service and considered that, given the maturity and success of the local radio sector, the franchise area was now capable of sustaining a full service that did not require the level of shared programming and other resources proposed by NWR FM.

Secondly, they considered that the programming vision of the successful applicant group reflected to a greater extent the changing social and economic climate in Ireland and, more specifically, in the franchise area. They took the view that NWR FM would be likely to enjoy continued success with its programme service, given its track record to date. However, they were also of the view that the successful applicant group had presented a strong case in respect of the demographic changes in the franchise, particularly in respect of the need to provide a greater level of service to younger listeners. As such, the successful service would be more likely to better serve the needs of a greater range of listeners over the period of the licence.

In respect of the management of the service, those members who supported the successful applicant group were of the view that a fully dedicated management team (not shared with another station) would be likely to better serve the radio service."

The Commission considered other aspects of the application to be satisfactory."

As with the submission in relation to the accuracy of the Minutes, Mr O'Reilly submits that it is not possible to understand from this report exactly what the reasons are for the decision not to award the licence to the applicant, and that the applicant is entitled to know the reasons for the decision, and its challenge to the decision in these proceedings is prejudiced by the absence of the handwritten notes taken at the meeting, and he therefore relies upon the maxim which effectively means that where a wrongdoer has destroyed a document the contents thereof must be presumed to be against him, and that therefore the decision cannot stand.

Legal submission under this heading:

Mr O'Reilly has referred the Court to a number of decisions which have dealt with the application of the maxim. The most recent of these is a judgment of the Supreme Court delivered by the Chief Justice (Murphy J. and Hardiman J. concurring) in O'Mahony v. Tyndale [2002] 4 IR 101. The Chief Justice at page 105 et seq. discusses the origin of the maxim and refers in particular to two earlier cases in which the maxim was under consideration, namely Williamson v. Rover Cycle Company [1901] 2 I.R. 615, and The Ophelia [1916] 2 AC 206.

In the first case it appears that the plaintiff had purchased a bicycle from the defendant company, and that thereafter the steering-post had fractured. The plaintiff had the bicycle examined by his expert and thereafter sent the bicycle to the defendant company "for inspection". However the defendant company replaced the broken parts and threw away the damaged parts. At first instance the plaintiff succeeded, even though the evidence was that the fracture was a clean one, rather than one resulting from a flaw or defect in materials or workmanship. On a motion before the Queen's Bench Division for a new trial, it was held, inter alia, by the majority of the Court that in circumstances where the plaintiff's expert had seen the broken pieces disposed of by the defendant, the defendants were not 'spoliatores' against whom all things had to be presumed. The majority of the Court was of the view that the fact alone of the loss of the broken pieces was insufficient to shift the onus onto the defendant, where the loss in question was inadvertent or bona fide, and where there was other evidence given in the case which favoured the defendant's case. Palles C.B alone, dissenting, was of the view that the defendants were indeed 'spoliatores' even where the destruction of the pieces was inadvertent because the loss was, as against the plaintiff, wrongful, and because the pieces might reasonably with the other evidence of the nature of the fracture have been sufficient to support the plaintiff's case. The majority view was upheld in the Court of Appeal. In this regard the Chief Justice states at page 106:

"Although the majority in the Queen's Bench Division and all the judges in the Court of Appeal agreed with the Lord Chief Baron that the maxim could be applicable even where the destruction of evidence was bona fide, he was alone in his view that the destruction of the evidence was sufficient of itself to shift the burden of proof in the case to the defendants. Fitzgibbon L.J. in the course of his judgment said at p. 618:-

'I do not differ from the Chief Baron, either as to his statement of the law, or to its applicability, as stated, to the present case. But making every reasonable presumption against the defendants, and even assuming them to be spoliators – though I am not prepared to say that they were - I cannot find any affirmative evidence against them sufficient to maintain the verdict for the plaintiff. Agreeing with all the other judges - including the Chief Baron - that the evidence, apart from the spoliation of the broken pieces of the machine, was insufficient, I cannot add anything to that evidence merely because the fragments were not forthcoming at the trial, having regard to what was proved about them.'

The second authority, The Ophelia (supra), referred to by the Chief Justice, and relied upon by Mr O'Reilly in the present case, concerned a claim as a prize by a British squadron of a German hospital ship during the First World War. As stated by the Chief Justice, the issue in the case was whether the sending by a hospital ship of a wireless message in secret code of itself subjected the vessel to capture and condemnation. There was evidence that the captain of the vessel had thrown overboard some documents, many of which contained innocent messages. During the course of delivering the judgment of the Privy Council, Sir Arthur Channel states, in reference to the maxim, at p. 229:

" The substance of it, however, remains and is as forcible now as ever, and it is applicable, not merely in prize cases, but to almost all kinds of disputes. If anyone by a deliberate act destroys a document which, according to what its contents might have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case."

The Chief Justice, having considered these authorities, concludes at p. 107:

"The maxim is intended to ensure that no party to litigation, be they plaintiff or defendant, is subjected to a disadvantage in the presentation of his or her case because his or her opponent has acted wrongly by destroying or suppressing evidence. Its application will, accordingly, as the two authorities cited demonstrate, depend entirely on the circumstances of the particular case in which it is invoked. Not surprisingly, there is no authority for the proposition that it could be invoked so as to produce a clear injustice, i.e. an obligation on a court of trial to disregard the weight of the evidence which it has heard because some of the documents, although of no significance in the outcome of the case, have been, for no sinister reason, mislaid or destroyed or because some documents never existed in the first place."

Mr O'Reilly has submitted that the destruction of the handwritten notes in the present case deprives the applicant of evidence which is relevant to its challenge to the decision of BCI, and which, if it substantiated the claims made, would entitle the applicant to the relief sought. He has submitted that BCI has itself acknowledged, in paragraph 5 of its Notes to Commission Members already referred to, the obligation to keep these handwritten notes for the purposes of its obligations under s. 18 of the Freedom of Information Act, 1997, and s. 60 of the Broadcasting Act, 2001, and that its failure to do so now constitutes BCI as a 'spoliator' or wrongdoer for the purpose of the maxim, and that therefore it must be presumed that the contents of the notes would, if produced, support the applicant's case that the discussion of the merits of each application at the meeting of the Board was not conducted in the collegiate manner required, and that it did not deal with each application by reference to each of the different criteria referred to in s. 6(2) of the 1988 Act, which I have set out earlier.

Michael Cush S.C on behalf of BCI submits firstly that s. 18 of the Freedom of Information Act, 1997 imposes no obligation upon BCI to keep the handwritten notes in question. He refers to the fact that under that section, the obligation is that, upon an application being made to that body by a person affected by an act of the body, the body in question shall, within 4 weeks of the application, cause a statement in writing to be given to that person as to the reasons for the act, and of any findings on any material issues of fact made for the purposes of the act. In this regard, he submits that the combination of the Minutes and the Feedback Report is sufficient to discharge the onus on the BCI in this regard, and that it cannot therefore be categorised as a 'spoliator' or wrongdoer for the purpose of the maxim, in the sense that it has done nothing wrong.

He submits similarly in regard to what the Notes to Commission Members refers to as its obligation under s. 60 of the 2001 Act. This section inserted, inter alia, a new subsection (5) to s. 6 of the 1988 Act requiring reasons for refusal to be given to an unsuccessful applicant. Again Mr Cush submits that this does not imply any obligation to keep the handwritten notes from which the Minutes were drafted and subsequently approved prior to the destruction as a matter of general practice, and that again the BCI cannot be regarded as a wrongdoer for the purpose of the maxim. He further submits that in fact the Minute is a very detailed minute, and points to the fact that the evidence is that the notes were not disposed of until such time as the Minutes had been approved by the Board. Mr Cush has urged also that before any criticism can be laid at the door of the BCI in relation to the destruction of the notes, the Court should look at all the evidence in the case, and not just consider the destruction of the notes in isolation. In this regard he has referred to the judgment of Keane C.J. in O'Mahony v. Tyndale (supra) and in particular to his statement quoted above wherein the learned Chief Justice states that the application of the maxim will depend upon the circumstances of any particular case. In the present case, he submits that in fact the Minute shows that a very detailed discussion took place and that it took place in a collegiate manner. He submits that it is perfectly clear from the Minute, which forms the basis for the Feedback Report, what were the reasons for the decision of the Board of BCI in relation to the refusal to award the licence to the applicants, and that they are not in any way disadvantaged by the unavailability of the contemporaneous note made at the meeting by the Secretary. He submits that it is not sufficient for the applicant simply to allege, as he does, that if the notes were available, they may have shown that the discussion was not carried out in a collegiate manner and soforth.

In response to these submissions, Mr O'Reilly has submitted, inter alia, that unlike the plaintiff in Williamson v. Rover Cycle Co (supra) who had an opportunity to see the broken steering shaft of the bicycle before the parts were destroyed, the applicant in this case has never seen the handwritten notes, and is being asked to assume that the Minutes, subsequently prepared from the notes, accurately and fully reflect what took place at the Board meeting. He repeats that the BCI is a wrongdoer, since it must have realised the importance of the notes and that the applicant would be scrutinising very closely the reasons for the refusal of the licence, and that it is clear that they must have regarded them as relevant since they included the notes as an item in the affidavit of discovery which was sworn.

I am satisfied firstly that there is no statutory provision, whether under the Freedom of Information Act, 1997 or the 1988 Act, even as amended by s. 60 of the 2001 Act which obliges the BCI either directly or implicitly, to ensure that a handwritten note is taken of meetings at which decisions are made. The statutory provisions to which the applicant has referred oblige the BCI to provide reasons for its decision to refuse an application. Its own internal Notes to Commission Members merely state that these notes will be made so that BCI can comply with its obligations under the Freedom of Information Act, 1997 and the 1988 Act, those obligations being to give reasons for refusal to an unsuccessful applicant. Mr O'Reilly has submitted that the mere fact that the BCI shredded the notes is sufficient to constitute it as a 'spoliator' or wrongdoer, regardless of its motive for doing do. He may well be correct in that submission if it is taken in isolation from any obligation to maintain the document in the first place. However, I find it difficult to accept that a person or body who is under no legal obligation to do something (i.e in this case to keep the notes) should be categorised as a 'wrongdoer' simply because he has not done that thing. In the present case, there is the evidence of what took place at the meeting in the form of the Minutes. These were approved by the Board at its next meeting. There is also sworn evidence as to what took place at the meeting. Certainly if there was not any other evidence as to what took place at the meeting, then the fact that the only such evidence in the form of the notes was destroyed could or might then result in the application of the maxim, regardless of the motive in so destroying the notes; but in the present case, to apply the maxim would have the effect of ignoring the Minutes and that other sworn evidence, and would result in the very mischief identified by the Chief Justice in his judgment in O'Mahony v. Tyndale (supra) when he stated at p. 107:

"…there is no authority for the proposition that it would be invoked so as to produce a clear injustice, i.e. an obligation on the court of trial to disregard the weight of the evidence which it has heard because some of the documents, although of no significance in the outcome of the case, have been, for no sinister reason, mislaid or destroyed or because some documents never existed in the first place."

To apply the maxim in the face of the Minutes and the other evidence would be to impute to the Members of the Board of BCI and its Executive staff such a degree of negligence, and/or impropriety, and perhaps even conspiracy, in relation to the preparation and approval of the Minutes, as well as to its conduct of this litigation, as to be fanciful. Indeed, the applicant has not even suggested that there is any such feature in this case. The height of the suggestion is that if the notes were available, it might have assisted the applicant in its contention that the Board meeting at which the decision to refuse its application was taken, was not conducted in a manner required both by the statutory framework and BCI's own internal regulations and guidelines. I accept completely that the notes were shredded in accordance with the normal practice of the secretary after the Minutes were approved. I accept that this was done in a completely bona fide manner, even though with the benefit of some hindsight it might in my view be wiser to maintain the existence of the notes, if for no other reason, in order to allay the sort of suggestions which a disappointed applicant may, even understandably, make.

There is a second leg to the applicant's submissions relation to the absence of these notes. That submission is that the BCI has failed to keep an adequate record of how the decision was arrived at, so that it has failed to adhere to the principles emerging from the judgment of Finlay C.J. in P & F Sharpe Limited v. Dublin City and County Manager [1989] I.R. 701. Mr O'Reilly has submitted that the Board of the BCI is in the same position as are elected members of a local authority when they are exercising a reserved function, and has referred the Court to a passage at pp. 720-721 of this judgment where the learned Chief Justice states:

"The necessity for the elected members in the case of any direction under section 4 concerning the granting or refusing of a planning permission to act in a judicial manner would inter alia involve an obligation to ensure that an adequate note was taken, not necessarily verbatim but of sufficient detail to permit a court upon review to be able to ascertain the material on which the decision had been reached."

The applicant has submitted that the Minute fails to disclose the sufficient detail referred to in this passage. In my view this passage must be read in the context of an earlier passage in which the learned then Chief Justice had been critical of the Minutes which had been taken at a meeting at which a resolution had been passed by the Council. At p. 718, he stated:

"It appears to me that both in the High Court and in this Court there is a very great difficulty in reaching a conclusion as to what the material was which was before the elected members at the time of their two discussions concerning this resolution. The minutes of the second meeting which contain references to the proceedings of the first meeting, are, in effect, decision minutes and do not purport to be an exhaustive minute either of the nature of the discussion that went on or, possibly, even of other documents or oral representations other than the official reports of the manager and other officials which are quoted in them."

In my view the same criticism cannot be made of the Minutes in the present case, which are not simply a "decision minutes". I have set out the content of a large part of the Minutes and they set out in some considerable detail, though not verbatim, what was said and discussed at the meeting of the Board. In my view this record of the meeting does not fall foul of what is described by Finlay C.J. in the passage quoted from pp. 720-721 above namely that an adequate record be kept "of sufficient detail to permit a court upon review to be able to ascertain the material on which the decision had been reached."

In my view it is perfectly possible to glean from these Minutes what the reasons were for the failure of the applicant's bid for the licence. That being so, the only purpose which sight of the original handwritten notes of the meeting could serve would be to show that the Minutes did not reflect what was said at the meeting of the Board, and as I have already said, that suggestion would, if made, be farfetched and speculative.

While being critical of the manner in which the BCI has sought to comply with its obligations to give its reasons for refusing the applicant's bid for the licence, the applicant has identified a number of such reasons and makes complaint in relation thereto. In his affidavit sworn on the 17^th July 2003, Paul Claffey has stated at paragraph 53:

"The Feedback Report seems to suggest three reasons why the applicant was unsuccessful:

(1) The successful group proposed a fully dedicated service for the franchise area and the franchise area did not now require the level of shared programming proposed by the applicant.

(2) The successful group had presented a strong case in respect of the demographic changes in the franchise, particularly in respect of the need to provide a greater level of service to younger listeners.

(3) In respect of management, a fully dedicated management team would be likely to better serve the radio service."

I believe that it is clear from the Feedback Report that these are the reasons. There is also mention of a couple of negative aspects of the applicant's track record in relation to certain historical breaches of advertising regulations, and a difficulty about disabled access, but there is nothing to suggest that these comprised specific reasons for refusal. In fact Mr O'Keeffe in his replying affidavit filed herein describes these latter two reasons, as well as (3) above as "subsidiary reasons, while those which I have mentioned at (1) and (2) above are described as "key reasons". Mr O'Keeffe has also characterized the problem of breaches of advertising guidelines in stronger and starker terms that has the applicant in its affidavit. But it is not necessary to elaborate on that particular matter for the purpose of this judgment.

Mr O'Reilly has submitted that in so far as the BCI relied on these breaches of the advertising guidelines and the failure to provide disabled access, it has breached the principle of proportionality, in the sense that to refuse to grant a licence to the applicant on these grounds is disproportionate to the breaches in question. While I might be of the view that if these latter two matters (i.e advertising and disabled access difficulties) were the sole reasons for the refusal of the applicant's application, it may well be that the decision would be capable of challenge on grounds of a breach of the principle of proportionality, but I cannot in the present instance conclude that in reaching its decision the BCI has breached any principle of proportionality by at the least having regard to these two negative aspects, while at the same time relying on at least two other more key reasons. It is inevitable that there may be several factors weighing cumulatively in favour of against a particular application, and provided that those reasons are communicated in a way which enables a disappointed applicant to understand the reasons for refusal, there is nothing wrong in my view with having regard to some factors which are more minor than "key reasons".

But the question of whether the test of proportionality is one which is open to the applicant at all in the present case is in any event one which is certainly questionable. It is not necessary for me to explore that interesting question in this judgment even though Counsel on both sides have made submissions in that regard, because I am of the view that even if the Court looks at this question from the point of view of proportionality, the answer is that it has not disproportionate. But I am not to be taken as deciding that the test can be invoked in a challenge to a decision such as the one presently under consideration., especially in view of the remarks of the Chief Justice in Radio Limerick One Limited v. Independent Radio and Television Commission [1997] 2 I.R. 291.

The applicant also submits that by failing to give proper reasons in its Feedback Report, the BCI has not acted with constitutional fairness. Mr O'Reilly referred to a number of authorities to the effect that an administrative tribunal is obliged to act in accordance with the principles of constitutional justice. He has submitted that the Feedback Report does not give a sufficient account of reasons for the decision, and that one of the reasons for this is that it is clear from the Minute of the Meeting at which the decision was made that those present at the meeting did not discuss the applications by reference to "the relevant criteria", that is, the criteria set forth in s. 6(2) of the 1988 Act. He points to the fact that in its own Guide to Submissions the BCI had indicated that this was the basis upon which the discussion would take place, and that it would take place in a "collegiate manner". Mr Claffey in his affidavit has stated that it is clear from the Minute that this did not happen. Mr O'Keeffe has said in response that prior to the meeting the executive of BCI prepared a Summary of each application under each of the relevant criteria for the members of the Board, and that an "aide memoire" was also sent to each Board member prior to the meeting in order to assist them in assessing the applications under the said criteria. He goes on to state that after the oral hearings had taken place, he sent a notice to the Commission members reminding them of the agreed procedures for the final decision-making phase of the licensing process, and that in all respects the procedures set out in the BCI's own Guide to Submissions were followed.

I have looked closely at the criteria in s.6(2) and I have considered the contents of the Minute, and it seems clear to me that criteria (a) was dealt with when the Chief Executive outlined the track record of the applicant; (b) which relates to the adequacy of expertise, experience and financial resources was dealt with, as these matters are referred to in the Chief Executive's review of the track record of the applicant, as well as in the body of the Minute which records that the financial strength of the applicant was "acknowledged", and the experience of the applicant was referred to when the Minute records that some members felt that the Notice Party "did not have the same level of broadcasting experience as the other applicants for the licence"; (c) dealing with quality, range and type of programming was clearly discussed according to the Minute; (d) and (e) dealing with Irish language matters and opportunities for Irish talent are not referred to specifically in the Minute, but the Feedback Report states at the end thereof that the Commission regarded other aspects of the application to be satisfactory; (f) dealing with the desirability of having a diversity of services in the area is clearly dealt with per the Minutes; (g) and (h) are not relevant to the present licence application process; and (i) dealing with the extent to which the service proposed serves recognisably local communities and is supported by Community interests and serves communities of interests, is dealt with per the Minute.

I cannot accept Mr Claffey's averment at paragraph 19 of his affidavit that the procedure described in the Guide to Submissions whereby members of the Commission "will discuss the applications under each of the relevant criteria in collegiate manner at the relevant board meeting of the Commission" was, as he states "totally ignored by the Respondent".

I understand the phrase "in collegiate manner" to mean to discuss matters as a group or as a college, or to adopt "a round table approach".as O'Caoimh J. so described it in Carlow Kilkenny Radio Limited v. The Broadcasting Commission of Ireland. There is no evidence other than that a quorate Board met as a group, and that a group discussion took place. I am satisfied that the applications were discussed under the required criteria, and that the complaint of the applicant under the heading of constitutional fairness must fail both as to the reasons given and as to the manner in which the applications were discussed at the Board meeting.

Breach of s.6(4) of the 1988 Act as amended:

From the minute and the Feedback Report it appears that the majority of the Board present at the meeting took the view that it would be more desirable to have in place an operator which had plans to have a radio station for the area which provided its programming from that area alone, and in respect of which there was not a sharing of staff and programming with any other station. This resulted in the Board favouring the bid submission of the Notice Party over that of the applicant.

From the affidavits filed it appears that when the applicant took over the franchise licence originally, its predecessor which had run a fully dedicated service for the area had failed commercially. The applicant states that the reason for its success in the franchise area over the years in which it operated the service was because of its policy of shared programming and some shared staffing with another station. It points to the great success it has achieved over the years, even to the point of receiving an award as the best radio station nationally in 2003. The listenership has increased during the period in which it has operated, and it now finds that as a result of its plans to continue with this previously successful policy, it has failed in its bid. As a consequence, it submits, the Notice Party if it succeeds commercially in the future on the basis of a fully dedicated service, will do so only because of the extent to which the applicant has succeeded over the past ten years in building up the listenership. In this regard, it submits that there is manifest unfairness and that BCI has acted ultra vires and in breach of s. 6(4) of the 1988 Act (as inserted by s. 60 of the Broadcasting Act, 2001, which provides:

"(4) In considering the suitability of an applicant for the award of a sound broadcasting contract, the Commission shall have regard to the overall quality of the performance of the applicant with respect to the provision by him of a sound broadcasting service under any sound broadcasting contract held by him at, or before, the date of the making of the application."

Mr O'Reilly has submitted that of the two applications finally under consideration at the Board meeting, this subsection applied only to the applicant since the Notice Party was not the incumbent in this franchise area, or even in any other area. In fact the applicant has stated its view that the Notice Party company was set up solely for the purpose of dislodging the applicant from its position as licence holder for the area in question. The applicant has referred to the commencement of the bidding process to which I have already made reference, namely the initial advertisement by the Commission for expressions of interest in respect of the licence for the area. It will be recalled that the Notice Party did not submit any expression of interest at that stage, but the applicant did so. Mr O'Reilly has pointed out, as is averred to in the grounding affidavit of Mr Claffey, that in its expression of interest, the applicant emphasised its shared programming and shared administration costs policy as the key to the success of its operation since its commencement. It submitted in its expression of interest that these elements were essential for its continuing viability. However, at the stage of submissions and oral presentation, while the applicant continued to maintain this position, the Notice Party and eventual winner of the franchise licence put forward its proposals on the basis of a completely stand-alone station, not dependent for success on a sharing of programming and personnel with any other station. Mr O'Reilly has submitted that by so favouring the application of the Notice Party over the application of the applicant, the BCI has failed to have regard to the overall quality of the incumbent operator, the applicant herein.

However, if one looks at the Minute of the Board meeting of the 29^th April 2003, it is immediately evident that the Chairman at the commencement of the meeting was requested to review the track record of the applicant, and that he did so. Apart from that review of the applicant's track record, the Minute states at page 4 "NWR's track record and success in respect of programming was acknowledged. Its strong financial base and commercial success was also acknowledged. Members considered that the programming was likely to continue to be successful into the future." From this I am of the view that the requirement contained in the section was complied with. The requirement is to "have regard to" the matters stated. That cannot mean that if the incumbent has been successful in these respects it must be awarded the licence over any other pretender. Mr O'Keeffe in his replying affidavit states at paragraph 28 that the insertion by s.60 of the 2001 Act of ss. (4) into s. 6 of the 1988 Act was not, in his view, for the purpose of protecting the position of an incumbent station operator, and if this were so, it would lead to stagnation. Mr Cush argued on behalf of BCI that the section was there so that if the incumbent had not been a success in some respect that the BCI was empowered by this section to have regard to that, and that it was not relevant solely in relation to a successful operator. I agree. Mr O'Keeffe in his affidavit states that the requirement to have regard to the track record of the incumbent can have either a positive, a negative or a neutral effect on an application. In my view it is quite clear in that these matters were had regard to in a proper way. The Chairman specifically reviewed the track record, and the members of the Board are minuted as having considered that track record.

Breach of s. 5(6) of the 1988 Act:

The applicant also submits that BCI has acted in breach of s. 5(6) of the 1988 Act which provides:

"Having regard to the findings of the Commission under subsection (1) the Commission may, in considering applications for the award of a sound broadcasting contract, place greater emphasis on one or more of the criteria specified in section 6(2) of this Act and whenever it is the Commission's intention to so do, it shall specify such intention to each person who has indicated his intention of being an applicant for a contract."

The applicant makes the point that at no time was it ever informed by BCI that it intended to place greater weight, when considering the applications, on the desirability of having a fully dedicated service for the franchise area than on a regime of shared programming and shared management, and that in the absence of any such indication being given in accordance with the requirements of the subsection, equal weight ought to be have been given to each of the criteria set forth in s. 6(2) of the 1988 Act. In other words, if the BCI had formed an intention to place greater emphasis on the need for a fully dedicated service for the area it was obliged to notify "such intention to each person who has indicated his intention of being an applicant for the contract." In fact this would have meant, since the Notice Party had not in fact indicated any expression of interest following the placing of the first advertisement in the national newspapers, the Notice Party would not have been notified of this intention on the part of BCI to place greater emphasis on a fully dedicated service. But that aside, it would, in the applicant's submission, at least have marked the applicant's cards, so to speak, that a submission based on its existing programming policy and management structure would receive less favourable consideration than one based on a fully dedicated programming service and management team.

The applicant submits that it clear that BCI had a pre-formed view that it favoured a fully dedicated service for the area on this occasion, since the preponderance of questions asked of the applicants at the oral presentation which took place on the 21^st March 2003 concerned shared programming, and that the concern over this aspect and the intention to place greater emphasis on this aspect than others set forth in s. 6(2) of the Act was not notified in advance to the applicant. It says therefore that it was taken by surprise and that an unfairness has been perpetrated, as well an actual breach on the part of BCI of its statutory obligation.

The affidavit of Paul Claffey grounding this application deals with this aspect of the case at paragraph 27 et seq. He says therein that at the oral presentation each applicant was given 20 minutes to make its presentation, and that the persons involved in the applicant's radio station attended at the presentation as it felt that BCI would want to see the people involved. Presumably this view was held if for no other reason than that one of the criteria set forth in s. 6(2) of the 1988 Act, which the BCI must consider in relation to a body corporate applicant is "the character of the body and its directors, manager, secretary, or other similar officer and its members, and the persons entitled to the beneficial ownership of its shares."

Mr Claffey goes on to state that the winners of the bid, the Notice Party did not attend personally, but sent along representatives from a company called Drury Communications to make its case on its behalf. However, Mr O'Keeffe in his replying affidavit disagrees with this at paragraph 57 of his replying affidavit and states that in fact the Notice Party was represented by eight people, six of whom were shareholders, one was a consultant in human resources named in the application, and one was a proposed member of staff, and he names all these persons.

He says the following as part of paragraph 27 in relation to the questioning which took place about shared programming:

"Most of the questions put to the applicant were about the question of shared-content. This came as a surprise to the applicant as it was not an issue that the respondent had ever shown any concern about before. It was as though the respondent had deliberately set a trap for the applicant by suddenly springing this issue upon it for the first time in the oral hearings. It appeared that the respondents, for reasons unknown, had decided to move the goalposts in a manner that favoured North West Broadcasting Limited [the Notice Party]."

Following that meeting, the Director of Broadcasting in the BCI wrote a letter to Mr Claffey dated 28^th March 2003 in which she stated, inter alia:

"Further to your presentation to the Commission at public hearings on Monday 24^th March, I am now enclosing a number of further questions, to which the Commission has requested your responses in writing. Please respond by Friday, 5^th April next.

Please note the following:

1.Your responses should be presented in a simple, typed format. Bound submissions are not necessary.

2. Please submit eighteen copies of your responses.

3. As these will form part of the detail of your application, they will be made available publicly to the BCI. Obviously, any confidential material received, (for example, in respect of appointments to managerial positions), will of course be maintained on a confidential basis by the BCI.

If you have any queries on the above, or if you require any clarification on any of the questions enclosed, please feel free to contact me."

The additional questions were asked under six distinct headings: Ownership and Control; Staffing; Programming; Market Analysis; Financial; Studios and Transmission. Mr Claffey avers that by letter dated 4^th April 2003 the applicant enclosed its replies to these questions, and while he exhibits the said letter which is merely a covering letter with which the replies were sent, he has not exhibited the replies themselves, presumably simply through oversight. However, in a replying affidavit on behalf of the BCI Mr Michael O'Keeffe has exhibited the replies to the questions.

Under "Ownership and Control", a question was asked about the dual role of the applicant's station manager, who is also the sales manager, and who reports to the CEO who has joint responsibility for the applicant station as well as another station, Mid-West Radio. Another question is:

"How would you respond to the contention that having only one dedicated management person in Sligo is restricting the potential development of the NWR service?"

In its reply to this question the applicant stated:

"In relation to this question we are quite satisfied that the current arrangement works extremely well and is not restricting the development of the station in any way. The board is fully supportive of this arrangement and regularly reviews the effectiveness of it. As indicated at the hearing part of the management team is dual based and when performing their duties on behalf of North West Radio, they do so from a North West perspective. Each manager has defined reporting lines within North West Radio. Furthermore communication lines are always open as we operate a 'conference' call management meeting every week at which all managers contribute."

Under "Staffing" a question is raised about why the applicant out-sources its human resource management. The applicant replied that having an experienced HR consultant gave them a needed back-up service and also provided staff with an independent HR service should they need one, and it stated that this role was regularly reviewed and should the need arise for a full-time HR role, this would be done.

Under "Programming" reference is made to the fact that over the last number of years the current schedule has remained largely unchanged, and a question is asked about what research mechanisms are used to evaluate the schedule on an on-going basis, and what plans there were to change and develop the schedule. The applicant responded at some length to these questions, stating, inter alia, that :

"as demonstrated at the oral hearing our program content has changed significantly over the years…" and "…whilst the same team of presenters is in place for the past five years many of the styles and approaches have altered considerably within the programmes themselves" and "…We are also prepared to experiment with new initiatives………we do not take anything for granted and rigorous research mechanisms are in place to ensure that we continue to offer the types of programmes that listeners in the North West want to hear."

In relation to any plans for change or development of the schedule over the period of the licence, the applicant responded that it was "acutely aware of the changes that are taking place in terms of age profiles, demographics and population trends over the next decade of development here in the North West, and, as such changes start developing it is our intention to make any necessary adjustments to our programme schedule in order to accommodate such changes."

In this answer the applicant states that it has in fact on a phased basis introduced a shift in its music policy with a stronger emphasis on "pop/contemporary Irish/middle-of-the-road that has embraced a younger age profile yet not alienating our established listenership base."

Specifically reference is made to the question of shared programming between the applicant and Mid-West Radio and the question is asked:

"Do you consider that there is a case for any further programming to be separate on the North West and Mid West Radio services?"

The applicant responded at some length (one page of A4 approx.) to the effect that shared programming was the basis of its success; that the programmes shared will be confined to general current affairs, light entertainment and specialised programmes of mutual interest that will equally enhance both areas. It goes on to highlight the distinct nature of the two sharing stations, and that the policy regarding shared programming into the future would continue to be reviewed by the Board, "and as was outlined at the hearing changes will be made whenever it is deemed necessary in light of listener feedback and development of our opt-out services. Presently, the facts clearly show that our morning current-affiars and light entertainment programmes [9.00-13.00] which are shared with Mid West radio are amongst the Top 3 programmes in the entire country. We do not regard it as practical or responsible to alter such an arrangement solely on a matter of principle….."

Under this heading also there is a reference to the applicant's market analysis identifying the changing demographic profile of the service area as a challenge going forward, and the question is asked:

"What practical changes will be made to the weekday 7am to 7pm schedule to meet these challenges?"

The applicant responded by saying that it was already in the process of introducing strategies and policies for the predicted demographic profiles outlined in its submission, and was conscious of the increased younger population structure in Sligo Town. Among some things which it planned to do in this regard it stated that its "Breakfast show will be aimed at a younger audience with a strong focus on current affairs and light entertainment aimed at the over 18 market from 09.00 to 13.00 hours." Other anticipated changes in other programmes were also outlined.

In his grounding affidavit to which I have already referred, Mr Claffey has stated that this matter of the shared programming and some shared management is "something which the Respondent has pulled out of thin air as a justification for unseating the incumbent radio station."

He has stated that the fact that some programming was shared with Mid-West radio was something made clear to the Respondents 14 years ago when it first obtained the licence for this area, and that when Mid-West Radio itself re-applied for a renewal of its franchise in 2002 no issue was raised by the Respondent in relation to shared programming. He goes on to say that at no stage during its existence was the applicant ever given any indication that the BCI was looking for a station that did not have any shared programming or management. In fact, Mr Claffey points to the fact that under the terms of its existing Contract there is specific recognition for the concept of shared programming in Clause 7.11 which allows the applicant to enter into such agreements with another station.

Mr Claffey has also referred in his affidavit to the fact that in relation to two other franchise areas, the BCI's Press Release stated:

"In the case of Roscommon/Longford/Leitrim (South), Cavan & Monaghan, the Commission will advertise for a single contractor to operate one service in each franchise area."

Mr Claffey submits that in that case, the BCI was specifically warning bidders that it wanted a stand-alone station for the areas in question, and that it ought to have done the same in the present case if it wanted a stand-alone station for the area. He also points to some of the BCI's own documentation which suggested that a commercial radio station with an adult population base of less than 75000 would struggle to survive, and that the adult population of the area in question was 77000 according to the same document. He says at paragraph 59 that on this basis "an element of programme sharing is not only desirable it is essential. It was programme sharing and management sharing which enabled the applicant to make the franchise viable in circumstances where the previous incumbent had had to hand back its licence on the basis that it was not a viable area."

There are further averments to the effect that far from any criticism being levelled at the applicant over the years in relation to shared programming, there was general acknowledgement in a number of the BCI's annual reviews that the station's programming was successful and popular in the area.

The Chief Executive of the BCI, Mr Michael O'Keeffe refers to these matters in his replying affidavit sworn on 8^th October 2003. In relation to the submission that the BCI ought to have indicated in advance its preference for a stand-alone or fully dedicated service for the area, or have indicated that it intended to place particular weight on one of more of the criteria set out in s. 6(2) of the 1988 Act, he says that the Guide to Submissions which was sent to all applicants made it clear that the proposed programming service would be of relevance to the licensing process. That Guide to Submissions sets out in great detail the basis upon which applications will be assessed, and attention was drawn to the various statutory provisions relevant to its consideration. Mr O'Keeffe says that at the time of issue of the Guide to submissions the BCI was not in a position to anticipate the proposal which might be made by the applicant or any other applicant, in relation to shared programming, and that for this reason the Guide did not indicate that the question of shared programming would be viewed either negatively or positively. He makes the point that the applicant may well have put in an application which was not based on shared programming, and that the BCI was not in a position to prejudge in any way the application in respect of the issue of shared programming or any other issue. He also states that the very fact that the BCI did not specify in advance that the applications ought to be for either a "stand-alone" or a "shared" service illustrates the open-mindedness in respect of either of these options. As far as BCI was concerned it was up to each applicant to make its case in whatever way it felt was most appropriate.

Mr O'Keeffe states that it is a fact that the applicant made its case on the basis that shared programming was a pre-requisite to commercial viability, but that the other applicants took the opposite view, and that, after full consideration of the views advanced, the BCI favoured the latter view given what he describes as "the maturity and success of the local radio sector in the franchise area". At paragraph 6 of his replying affidavit, Mr O'Keeffe states in this regard:

"In this respect, the Commission was considering applications for the licence going forward. Merely because it selected an applicant who would provide a stand alone service does not imply that it had a particular problem or difficulty with the incumbent's provision of a shared service or that the applicant's proposal (to include its shared programming approach) was bad or poor in any way, but merely that one of the other applicant's proposals was better and that the Commission was more convinced by the winner's application."

At paragraph 7 he rejects the applicant's suggestion that the issue of shared programming was pulled out of the air as a justification for unseating the applicant, and that the BCI judges each application on the basis of relevant material before it and in the light of the statutory criteria. He also makes the point that in the present instance the applicant was not merely making an application for a renewal of a Sound Broadcasting Contract, but was required to apply for a new such Contract, and that therefore all issues had to be looked at afresh by the BCI.

Mr O'Keeffe has stated at paragraph 24 of his replying affidavit that the reason why the BCI did not inform bidders that any particular weight was going to be given to the issue of programme sharing was that no particular weight was given to this issue. He says that the BCI did not give any greater weight to one or more of the criteria specified and therefore no intention to do so was notified.

I am satisfied that there is no evidence that the BCI had any pre-formed view that it was going to attach greater weight to any one or more of the criteria set forth in s. 6(2) of the 1988 Act, such that it was obliged to comply with the provisions of s.5(6) of that Act. It is inevitable that when making a decision to favour one application over another, the BCI will have to be more impressed by one or more aspects of the winning bid. Otherwise it would not be possible to arrive at such a decision. That is different from a situation where ahead of the competition the BCI has taken a decision that it will be placing a particular weight or emphasis on one or more of the said criteria. It is only in that situation that the obligation to notify a party who has expressed interest comes into play. I accept the averment of Mr O'Keeffe in this regard. It is also consistent with the Minutes of the meeting and is consistent with the approach appearing from the additional questions which BCI asked of the applicant. There is no reason to suppose, still less to conclude, that BCI was of the pre-formed view that it was going to award the franchise for the area only to a station operator which was "stand-alone", rather than to one which shared programming or staffing or other resources with another station.

Irrationality – Shared programmes etc :

The applicant has also submitted that the issue which I have just dealt with in the context of obligations arising under s. 5(6) of the 1988 Act, must also looked at from the point of view of irrationality/unreasonableness. The applicant, as already stated, contends that the BCI has at no stage indicated that it was now seeking to have in place a station which did not share programming with another station. BCI on the other hand maintains that it had no pre-formed view about this ahead of receiving submissions. I have already set forth Mr O'Keeffe's responses in this regard. I can see no reason to conclude that the decision can be criticised on these grounds. The question of shared programming or a fully dedicated service is certainly something which could be considered by the BCI as part of its consideration of submissions under s. 6(2)(c) of the 1988 Act. The Guide to Submissions clearly flagged that consideration would be given to programming, even though no preference was displayed in relation to a fully dedicated service as opposed to a stand-alone station. It is a fact that after the submission was made, and oral presentation took place, some supplementary questions were furnished and were answered. The aspect of shared programming and resources was explored further in these questions. It cannot be said that this reason was simply pulled out of the air, so to speak. This reason is not irrational or unreasonable.

Irrationality - Demographic changes:

In response to Mr Claffey's complaint that there was no material before the BCI upon which it could rationally have concluded that there was a need to provide a greater level of service to younger listeners in the area, Mr O'Keeffe states that there was such material before the BCI, and in this regard refers to the fact that the application of the Notice Party, section 6 thereof, there was reference to this, and in addition the bid put in by the other unsuccessful applicant, Ocean FM Limited expressed the view that the present applicant's station was targeted at an older rural audience. However, he also refers to the applicant's own Submission and to its responses to the written questions furnished by BCI to the applicant by letter dated 4^th April 2003, to which I have already referred. In this regard he states that the applicant itself drew attention to expected changes in age profiles, demographics and population trends over the next decade of development in the franchise area.

If one looks at the Responses to Written Questions, there are certainly references to the emergence of a younger listening population. For example, in dealing with a question under "programming" and relating to what research the applicant undertakes to evaluate its schedule, the applicant stated:

"…Over the past number of years the music policy of the station has evolved to incorporate a younger age profile and we would contend that whilst the same team of presenters is in place for the past five years many of the styles and approaches have altered considerably within the programmes themselves."

In answer to a further question under "programming" the applicant responded fully, including with a first paragraph from which I have already quoted above, as follows:

"As outlined in our submission, we are acutely aware of the changes that are taking place in terms of age profiles, demographics and population trends over the next decade of development here in the North West, and, as such changes start developing it is our intention to make any necessary adjustments to our programme schedule in order to accommodate such changes."

The second paragraph of this answer refers to the introduction, on a phased basis, of what is described as "a shift in our music policy with a stronger emphasis on pop/contemporary Irish/middle of the road that has embraced a younger age profile yet not alienating our established listenership."

In answer to the question, to which I have already made reference, as to what changes will be made to the 7am-7pm schedule to meet the demographic changes identified in the applicant's market analysis, the applicant responded as I have already stated already, but also stated that:

"The North West is somewhat unique in that whilst many areas report an ageing population trend, Sligo Town is on the brink of experiencing a massive young population structure."

In a response to a question about the proposed opt-out service for Sligo Town, the applicant made further reference to the need to cater for "the musical tastes of the expanding youth audience" in Sligo Town.

For these reasons and others, Mr O'Keeffe submits that there was relevant material before it from which it could reasonably conclude that there was a need during the next ten years to provide a greater level of service to younger listeners.

Discrimination:

Mr O'Keeffe also rejects Mr Claffey's suggestion that the BCI has been guilty of discrimination against older people in the manner in which it arrived at its conclusion that the application of the Notice Party was likely to better serve the growing younger population of the area, and he says that the BCI's view as appearing in the Feedback Report was simply that successful bid from the Notice Party would appeal to a greater range of listeners over the period of the licence. Without dealing with the applicant's submissions in any detail under this heading, I am satisfied that the BCI has not infringed its obligations under the Equal Status Act. 2000, as is contended on behalf of the applicant.

Transparency:

The applicant has submitted that the failure to give adequate and clear reasons for its decision, and the failure to adhere to its own guidelines as set out in its Guide to Submissions has resulted, apart from the consequences already dealt with, in a lack of transparency in the decision-making process. Some authority has been opened to the Court in support of the proposition that a public authority in the exercise of its functions must act with transparency as well as objectivity and equality. Mr Cush has submitted that the process of decision-making by the BCI in this case was absolutely transparent from the start. I have already found, for the reasons stated, that there has been no failure to act fairly, and therefore it follows that BCI has acted with equality and objectivity, and so the question of there being a lack of transparency as a consequence thereof does not arise in this case. In my view the manner in which applications were to be submitted was clearly explained; the manner in which each application was considered and assessed was correct and fair; and the explanation of reasons for the decision not to grant the licence to the applicant was adequate to enable the applicant to understand those reasons for the purpose of being able to challenge them by way of judicial review. There has been no evidence given to support any lack of transparency.

The applicant has also submitted that the BCI has failed to respect the policy or objectives sought to be achieved by Directive 2002/21 EC, which came into force on 24^th April 2002 and which Member States were obliged to implement not later than 24^th July 2003. The respondent has submitted that since the Directive had not been implemented in this jurisdiction on 29^th April 2003, being the date of the BCI decision, it cannot be argued that the BCI has acted in breach of it. However, Mr O'Reilly has argued that Member States, or emanations thereof, are obliged, during a transposition period, to refrain from taking any measures which would defeat the policy provided for in the Directive. In this regard he has referred to the judgment of the European Court of Justice in Case C-129/96 Inter-Environnement Wallonie ASBL v. Region Wallone [1997] ECR 1 - 7411. Mr O'Reilly submits that this Directive is applicable to BCI as a national regulatory authority. This Directive requires Member States to ensure that the allocation and assignment of radio frequencies are based on "objective, transparent, non-discriminatory and proportionate criteria" (Article 9). He also refers to Article 4 thereof which requires that a right of appeal exists from decisions of the national regulatory body, and that such right of appeal does not exist in the present instance. However, Mr Cush on behalf of BCI has submitted that this Directive does not apply in the present case at all, and that the national regulatory authority to which this Directive refers is in fact the Commission for Communications Regulations established by section 6(1) of the Communications Regulation Act, 2002 (otherwise known as "COMREG"). Mr O'Reilly, however, refers to some documents exhibited in a supplemental affidavit of Mr Claffey such as the Licence granted to what was then the IRTC, to grant to sound broadcasting contractors the right and duty to establish, maintain and operate transmitters, as well as the current "Conditions relating to the establishment and operation of a VHF-FM Station in the Independent Radio Service". These conditions relate to the construction of transmitters, transmission characteristics, testing and safety of transmitters, site engineering, station maintenance and soforth.

Having examined the Directive itself, I am satisfied that it has no relevance to the process of granting sound broadcasting licences such as the one under consideration in these proceedings. That process is concerned with the type of applicant, the nature of the content of proposed programming, the financial viability and appropriateness of the proposed operation and the general suitability of the applicant for the licence. The Directive in its Preamble in fact states in paragraph (5) as follows:

"(5) …It is necessary to separate the regulation of transmission from the regulation content. This framework does not therefore cover the content of services delivered over electronic communications networks using electronic communications services, such as broadcasting content, financial services and certain information society services, and is therefore without prejudice to measures taken at Community and national level in respect of such services…"

Other paragraphs make it clear in my opinion that the Directive relates to the regulation and assignment of radio frequencies, rather than the awarding of sound broadcasting contracts. The applicant's arguments based on this Directive are therefore not relevant to this application.

Breach of applicant's property rights.

The applicant says under this heading that on the day before the decision of the BCI the applicant company was worth in the order of €4 million, but that on the following day, having failed in its bid for a new licence, it was worth approximately €129,000. The applicant submits that in reaching its decision to award the new licence to the Notice Party the BCI has breached the applicant's property rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms as incorporated into national law by the European Convention on Human Rights Act, 2003.

Even though the applicant accepts that under the terms of its existing contract it is clearly provided on page 8 thereof that "the Contractor hereby acknowledges that nothing herein, explicit or implicit, confers on it any right of renewal of this contract", it submits that the Courts have on occasion regarded mere licences as property rights or rights to earn a livelihood, and that as such the applicant was entitled to a fair hearing, and may have a legitimate expectation that the licence would be renewed. The applicant in its written submissions, has referred to Hogan and Morgan, Administrative Law in Ireland, page 327 where the learned authors state:

"…such is the necessary investment by a licence holder in some or all of the following: premises, staff, experience, qualifications etc., that one would expect that some expectation or property right would be discerned."

Mr Cush on behalf of the BCI has stated first of all that this decision was made prior to the passing into law of the European Convention on Human Rights Act, 2003, and that therefore reliance cannot be placed by the applicant on European Convention rights, but without prejudice to that point, there has in any event been no breach of any property right, since under terms of the applicant's contract it was specifically provided that no right to a renewal of the contract existed. In other words, the applicant was at all times aware that no matter what level of financial or other investment it put into its operation during the currency of its licence, it had no automatic right to a renewal of the licence, and that it would have to reapply for a new licence at the appropriate time. Accordingly there could be no question of any legitimate expectation arising.

I agree with the respondent's submissions in this regard. The applicant was granted a licence for a fixed period. It was well aware of the fact that this was the case, and made its commercial decisions from time to time in the knowledge that at the end of the licence period there was no guarantee that it would be granted a new licence. What it is entitled to at the time of making its application for a new licence is a process of decision-making which is both fair and in accordance with the statutory framework, with a right of seeking relief by way of judicial review in the event of there being a breach of fair procedures or a breach of the statutory provisions. The applicant cannot claim a breach of a property right when under the terms of the contract itself, the applicant has acknowledged that it has no such right (to a new contract). I can see that in some circumstances, perhaps where a contract was open-ended, or where there was no clear acknowledgement by a licence holder that there would be no automatic right of renewal, there might be arguments to be made such as suggested by Hogan and Morgan in the passage quoted above, but the present case is not such a case. It is unnecessary for me to decide whether in any event the European Convention on Human Rights can be availed of by the applicant given the date of the BCI's decision.

The applicant has also submitted that its rights to a fair hearing and to an effective remedy under Articles 6 and 13 respectively of the European Convention on Human Rights and Fundamental Freedoms have been breached. Again, without deciding that the applicant can call the Convention to its aid, I am satisfied in any event that the process was fair, and that given the very wide discretion vested in the BCI in relation to its decision-making, the right to challenge the decision by way of judicial review is an effective remedy available to the applicant, and that the fact that there is no specific right to an appeal on the merits under the legislation, is not an infringement of rights under Article 6 of the Convention.

Breaches of the Schedule to the 1988 Act:

The applicant has submitted that the BCI is in breach of its obligations under s.7(3) of the Schedule to the 1988 Act failing to introduce rules for its procedures in breach of its mandatory obligation to do so. That section provides:

"Subject to the provisions of this Act, the Commission shall regulate its procedure by rules made under this paragraph."

It is contended also that the BCI is in breach of s.7(7) of that Schedule by failing to introduce rules for a quorum of a meeting of the Commission in breach of its mandatory obligation to do so. That section provides:

"The quorum of a meeting of the Commission shall be fixed by rules made under subparagraph (3) of this paragraph, but-

(a) it shall not be less than five, and

(b) until it is so fixed, it shall be five."

In relation to this last point, the meeting of the Commission on the 29^th April 2003 was quorate, since the number of members present at that meeting conforms with paragraph (b) above, so no point can arise. But in any event Mr O'Keeffe in his replying affidavit refers to an exhibit "MOK9" which is a copy of "Standing Orders For Regulation of Meetings of the Commission" dated November 1998, in which a quorum of 5 members is specified, and there are other provisions therein concerning procedures at meetings. The applicant has not expanded in any way on what further steps ought to have been taken by the Commission in order to comply with the obligations set forth in s. 7(3) of this Schedule, and I am not satisfied that there is any case made out in this regard.

Finally, I should refer to the fact that in both oral and written submissions, the applicant submitted that in the circumstances of this case it was not appropriate that this Court should confine its review of the decision making process to the Wednesbury principles of unreasonableness. It has been submitted that BCI is not an expert body such as, for example, An Bord Pleanala, where the members are experts in the area of planning. The applicant points to the lack of a requirement of specific expertise in the composition of the Board of BCI, and has referred to the criteria for membership contained in Article 1(5) of the Schedule to the 1988 Act. Mr O'Reilly submitted that in an appeal to An Bord Pleanala there was an appeal both on the law and on the facts whereas in the present case there was no right of appeal on the facts, but only by way of judicial review, and that therefore the Court's review ought not to be confined to the Wednesbury principles. He referred to a number of English authorities in this regard - for example Anisminic Limited v. Foreign Compensation [1969] 2 AC 147, a decision which Mr O'Reilly submits has been followed in this jurisdiction. He submitted that each of the grounds upon which the applicant relied was a ground capable of being considered by this Court. Mr Cush on the other hand has submitted that the Courts powers in relation to judicial review of administrative decisions have been clearly set forth in decisions such as O'Keeffe v. An Bord Pleanala [1993] 1 I.R. 39, and Z v. The Minister for Justice, Equality and Law Reform and others, Supreme Court, 1^st March 2002. Mr Cush has submitted that the evidence adduced by the applicant falls very short of showing that the decision of the BCI flies in the face of plain reason and common-sense, or that the BCI had before it no relevant material which supported its decision.

I have chosen to leave aside any determination in relation to these submissions, and have adopted a pragmatic approach by proceeding upon the wider basis contended for by Mr O'Reilly. In the event that I was to find in favour of the applicant by taking such a wider view of the Court's powers of review, I would first have been obliged to consider these submissions, and decide whether the Court was entitled to so find in the circumstances of the case. That has not been necessary in this case in view of the decisions I have reached in any event.

I therefore refuse the reliefs sought by the applicant.