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Cite as: [2000] IEHC 128

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Spin Communications Ltd. t/a Storm FM v. Independent Radio and Television Commissions [2000] IEHC 128 (8th June, 2000)

THE HIGH COURT
JUDICIAL REVIEW
Record No. 1999 No. 468 JR

BETWEEN

SPIN COMMUNICATIONS LIMITED TRADING AS
STORM FM
APPLICANT
AND
THE INDEPENDENT RADIO AND TELEVISION COMMISSION
RESPONDENT
AND
MAYPRIL LIMITED TRADING AS SPIN FM
NOTICE PARTY

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 8th day of June, 2000.

1. The applicant hereinafter referred to as “Storm FM” applies to this Court for an Order of Certiorari quashing the decision of the Respondent announced on the 11th October, 1999 whereby it deemed the Notice Party hereinafter referred to as “Spin FM” to be the successful applicant for a radio licence for Dublin in the 15 to 34 youth orientated service market. By Order of the 20th December 1999 made by Mr. Justice Quirke, Storm FM was given leave to bring the within proceedings seeking various reliefs including an Order of Certiorari previously referred to on several grounds set forth in the Grounding Statement filed in Court on the 20th December 1999. In essence, the application before me is for the Order of Certiorari based upon one essential ground referred to at paragraph F in the Grounding Statement, namely, that “the decision of the Respondent was made in breach of the Applicant’s right to fair procedures and was inherently flawed by the bias of the Commission against the applicant”.


BACKGROUND

2. In April 1999 the Respondent sought applications in respect of three commercial radio licences, one of which was to be youth orientated. Storm FM applied for the youth orientated licence, as did seven other applicants including the Notice Party to these proceedings, Spin FM. The invitation to submit applications for the licence was made by the Respondent in accordance with Section 5 of the Radio and Television Act, 1998. The selection of the party to be licensed was to be on foot of a selection process run by the Respondent. Storm FM and Spin FM were short listed for the award of the licence along with Pulse FM and Red FM and were accordingly invited to make an oral presentation to the Respondent. The oral presentations were held on the 27th and 28th September, 1999 and were in the format of a twenty minute presentation followed by twenty minutes of questioning by the Respondent. Following the oral presentation questions were posed to the short listed applicants in written form and were answered by them in writing. On the 11th October, 1999 the Respondent declared that Spin FM was the highest ranked applicant and that it is intended to grant the licence to Spin FM.

3. Following the announcement of the selection of Spin FM as the successful applicant and the announcement of the decision to award the licence in question to Spin FM a letter was written on behalf of Pulse FM, Storm FM and Red FM to the Respondent seeking reasons and explanations in support of its decision in favour of Spin FM. A reply from Solicitors acting for the Respondent indicated the procedures that had been followed by the Respondent. It indicated that at a board meeting of the Respondent members discussed the applicants in a collegiate manner and voted for their choice from a short list of applicants. On this basis the board of the Respondent decided to award the licence for the 15 to 34 youth orientated service to Spin FM. By letter of the 29th October, 1999, Solicitors for Storm FM wrote to the Solicitors for the Respondent seeking reasons for the selection of Spin FM and by reply dated the 3rd November, 1999 the Solicitors for the Respondent stated that the Respondent was not obliged to give reasons for its decision and that it was not possible to give specific reasons as to why one applicant would be selected over another. The letter in question concluded by stating:-


“It is apparent from the detailed considerations given by members at each stage of the process that they each undertook the task as carefully as possible and formed their opinions using the criteria laid down.”

4. Storm FM advances its case on two grounds, namely, lack of fair procedures and objective or apparent bias and has not sought to proceed on the other grounds upon which leave was granted by this Court.

5. On the 28th November, 1999 the Sunday Tribune Newspaper published a front page article recording that Dr. Colum Kenny, a member of the Respondent who voted in respect of the award of the licence in question to Spin FM, had secretly attended with the National Drugs Unit of the Gardaí at Dublin Castle to check up on John Reynolds, a member of the Storm FM consortium. Thereafter by letter dated the 29th November, 1999, Solicitors for John Reynolds wrote to Dr. Colum Kenny raising various questions in respect of which they sought answers from Dr. Kenny arising from the publication in the Sunday Tribune. This letter was replied to on the 3rd December, 1999 by Messrs. Matheson Ormsby Prentice, Solicitors acting on behalf of Dr. Kenny. In this letter it was asserted that Dr. Kenny had conducted himself with the utmost propriety and impartiality in his capacity as a member of the Respondent and in his personal capacity. This letter also indicated that Dr. Kenny had instructed his Solicitors to institute defamation proceedings against the Sunday Tribune Newspaper arising out of the article published on the 28th November, 1999. In the letter of the 29th November, 1999 to Dr. Kenny, Mr. Reynold’s Solicitors raised the following queries:-


1. Whether Dr. Kenny had visited the Garda National Drugs Unit at Dublin Castle and there met two senior officers to discuss Mr. Reynolds.
2. If the answer to 1 was in the affirmative, in what capacity did he make the visit?
3. Was the visit in the pursuit by him of his queries made at the behest of the chairman and members of the Respondent?
4. Did he communicate with the chairman and with other colleagues concerning the visit to the National Drugs Unit?
5. What was the purpose of his visit?
6. What if anything did he say to senior garda officers involved about Mr. Reynolds?
7. Did he hold himself out as representing the Respondent?
8. Why was Mr. Reynolds not informed by him of his action in going to the officers in the Drugs Squad?
9. If he had bona fide concerns about Mr. Reynolds and his colleagues why were these concerns not addressed with Mr. Reynolds so as to enable him to vindicate his position?
10. Did he have any documentation in his possession, power or procurement generated either before or after his visit to the Drugs Squad?

6. Mr. Reynolds in his affidavit states that these queries remained unanswered and that he was gravely concerned that pre-judgment at least in Dr. Kenny’s mind arose in relation to the issue of drugs. He states that his concern that the entire licensing process may have been affected by this bias comes from his understanding that there was a discussion of the bids presumably in an attempt to influence the voting of other members of the Commission and that he does not know what was said about the Storm consortium and him in relation to their attitude to what may be called “the drugs issue”.

7. Mr. Reynolds states that he is disturbed that the issues identified in the newspaper article were not raised with him at the oral presentation. He states that if his attitude to drugs was a matter of concern, these should have been raised with him and the reason he is most concerned about this issue is that Dr. Kenny identifies an anti-drugs message from the Ministry of Sound, one of the members of the Spin consortium, as a matter which plainly was taken into account by the Commission. Mr. Reynolds says that it appears that the supposed attitude of members of the consortia to “the drugs issue” was a consideration of the Commission. He states that he does not know, in the absence of reasons being given for this action of Spin, what weight was attributed to the issue. He expresses his concern that he was prejudged on the issue and that this resulted in the applicant not being ranked first.

8. On behalf of the Respondent an affidavit has been sworn by its chief executive, Mr. Michael O’Keeffe. At paragraph 34 of his affidavit Mr. O’Keeffe indicates that in view of the pending/contemplated defamation proceedings to be brought by Dr. Kenny against the Sunday Tribune Newspaper, the information sought in the letter of the 29th November, 1999 is privileged. Mr. O’Keeffe proceeds to indicate that Dr. Kenny has informed him that he, like other members of the Commission, did not decide upon the determination of his personal vote on the radio applications until the final meeting of the Commission on the 11th October, 1999. It is stated that Dr. Kenny did so solely on the basis of the written applications, the oral presentations and/or oral or written questions and answers of all the applicants. Based upon this Mr. O’Keeffe asserts that no question of bias or pre-judgment arises.

9. Mr. O’Keeffe rejects the contention that the entire licensing process could have been infected by any alleged bias whether on the part of Dr. Kenny or on the part of any other member of the Commission. Mr. O’Keeffe at paragraph 36 of his affidavit indicates that Dr. Kenny informed him that as a parent, a university lecturer and a member of the Commission, he was and remains very concerned about the question of drugs in Dublin, further that he was aware that all four short listed applicants for the youth licence had referred to drugs, drugs services or narcotics in their original application and in any case he was concerned about the association between certain dance music and the drugs culture and about the association between drugs and the Dublin club scene. Mr. O’Keeffe was informed by Dr. Kenny that in order to get a feel for the reality of the drugs culture before making his decision on the present application process, he visited members of An Garda Síochána for a general discussion about drugs and about drugs in night-clubs. Dr. Kenny made a single reference to John Reynolds in the context of the POD nightclub in circumstances where the Harcourt Street premises which housed the POD had been identified by Storm FM as the consortium’s address and its principal place of business. This premises had been referred to in a Court report in the Irish Times related to the prosecution of persons for drug offences. Mr. O’Keeffe continues by stating that the members of An Garda Síochána with whom Dr. Kenny was in discussion fully endorsed the manner in which Mr. Reynolds carried on his business at the POD. He says that none of the members of the Commission or the executive of the Commission was aware of Dr. Kenny’s intended visit to the Garda Síochána. He says that after Dr. Kenny’s visit to the Garda Síochána he did not raise the matter at any meeting of the Commission or with the executive of the Commission.

10. Mr. O’Keeffe says that the drugs issue was in fact raised with the applicant on the day of the public hearings. Mr. O’Keeffe says that one of the questions adopted by the board of the Commission to be put to applicants at the public hearings was one relating to drugs or substance abuse. Mr. O’Keeffe says that the applicant raised no objection to the question on substance abuse and responded by making a number of a statements relating to both the programming and character of Storm FM in the context of drugs. Mr. O’Keeffe indicates that save in this respect the issue of drugs did not form part of any deliberation of the Commission.

11. Colum Kenny has sworn an affidavit in these proceedings in which he indicates that an article written by him on the 17th October, 1999 specifically states that it reflects the personal views of Dr. Kenny on matters in the public domain and that the views expressed therein are in no way necessarily representative of the Commission’s view. Dr. Kenny states that at a meeting of the Commission on the 6th September, 1999 the seven applicants for the Dublin youth orientated radio licence were short listed to four. He says that on the 7th September, 1999 Mr. Michael O’Keeffe, chief executive of the Commission, wrote to the individual members of the Commission to confirm that a meeting would be held on Wednesday, the 22nd September, 1999 in order to agree questions to be put to applicants at the then forthcoming public hearings which were scheduled to take place on the 27th September, 1999. He says that Mr. O’Keeffe invited each member of the Commission individually to forward within one week any particular questions which he or she wished to include in respect of any or all of the applicants. Dr. Kenny indicates that in deciding what questions to propose in response to the chief executive’s invitation he further read and considered the applications of the four short listed applicants for the youth orientated service. He says that all four short listed applicants referred to a greater or lesser extent to the issue of drugs or drugs services in the context of the Dublin youth service. He says that as a parent, university lecturer, journalist and member of the Commission he was and remains very concerned about the issue of drugs in Dublin.

12. Dr. Kenny states that he wished to discuss the issue of drugs and the drugs scene in Dublin with the Garda Síochána before proposing any specific questions about drugs to put to applicants at the then forthcoming public hearings. He believed that an appropriate source of reliable and impartial information about the drugs scene in Dublin and in general was the Garda Síochána National Drugs Unit which has a public information role as well as an enforcement function. Accordingly, he arranged a private meeting with members of the Nationals Drugs Unit and the meeting in question took place on the morning of the 13th September, 1999. Dr. Kenny indicates that he did not discuss his intended visit to An Garda Síochána with any member of the Commission or with the executive of the Commission and accordingly such persons were not aware of his intended visit to An Garda Síochána. Dr. Kenny says that the purpose of the meeting was to discuss generally the drugs scene in Dublin. He says that the greater part of his discussion with the National Drugs Unit was intended to relate and did relate to matters of a general nature concerning the drugs scene in Dublin. In the course of his meeting with the Gardaí he mentioned a recently published Court case about the POD during which the District Judge had reportedly described it as “a den or place of drugs rather than a place of dance”. He refers to the newspaper report and to the fact that it indicates that the District Judge in question urged the Superintendent for the Dublin Metropolitan Area to take into account the evidence of drug dealing when the club's annual licence came up for renewal. Dr. Kenny says that in this context he adverted to the connections between Storm FM and the POD which include the fact that Storm FM’s principal place of business is the Harcourt Street premises which houses the POD and that the chairman of Storm FM owns the POD. Dr. Kenny indicates that at the meeting he was informed by members of the Garda Síochána National Drugs Unit that a number of clubs including the POD had put in place systems of control in relation to drugs which the Gardaí fully endorsed but which they would continue to monitor. He says that he was informed by Detective Chief Superintendent Ted Murphy, the head of the National Drugs Unit, that he believed it was not the intention of the Gardaí to oppose the renewal of the POD’s licence. The detective chief superintendent told him that he wished to double-check with other officers that this information was up to date and suggested that he follow up the meeting with a telephone conversation to confirm that the position was as indicated to him at the meeting. He states that it was suggested that he telephone Superintendent Barry O’Brien later that week to check the position. He says that he did telephone Superintendent Barry O’Brien on or about the 17th September and was informed that the position remained as indicated to him at the meeting.

13. Dr. Kenny states that he did not raise the matter of his visit to An Garda Síochána at any meeting of the Commission or with the executive of the Commission. He says that he formulated and sent to the chief executive twelve proposed questions on a variety of topics for the applicants including one only on the issue of substance abuse which was of a general nature. He says that the purpose of his question was to elicit responses which would allow the Commission at some future date to monitor the specific commitment over programming content in relation to drugs, regardless of whom eventually was to be awarded the contract.

14. Dr. Kenny states that as the oral hearings approached he had a twofold concern as to how the issue of drugs was to be approached in the context of the application of Storm FM. On the one hand the Commission was obliged by Section 6(2)(a) of the Radio and Television Act, 1988 to have regard to the character of the applicant and, where the applicant is a body corporate, to the character, inter alia, of its directors. He points out that John Reynolds was a director of the applicant. He was the owner of the POD nightclub which had been the subject of the comments of the District Judge previously referred to. On the other hand, there was no evidence of which he was aware that Mr. Reynolds or any other director of that company was personally implicated in any way in anything untoward relating to drugs. He states that he was concerned to clarify the true relevance of these matters in the context of the application for a licence from Storm FM. With that in mind he arranged to speak informally to Conor Maguire, S.C., the chairman of the Commission. He arranged to meet the chairman immediately prior to the meeting of the 22nd September, 1999. Prior to the meeting he prepared a draft letter to the chairman setting out his concerns as described, which he believed the chairman saw for the first time immediately prior to the meeting. A copy of this letter was exhibited in Dr. Kenny’s affidavit and is annexed to this judgment.

15. Dr. Kenny states that he did not refer to his visit to the Gardaí at his meeting with the chairman but that he outlined his concerns as described in the letter and as described in his affidavit. The chairman advised him that in the absence of any evidence implicating Mr. Reynolds or any other director of the applicant company, it would be unfair and inappropriate to raise or challenge the character of the applicant company or to draw any adverse inference relating to the character of the applicant or its directors on the basis of “the drugs issue”. He states that having discussed the matter with the chairman he agreed with his assessment.

16. Dr. Kenny states that at the oral hearing held in the Killiney Castle Hotel on the 27th September, 1999, the applicant company, in its presentation, made no reference to the drugs issue. He says no member of the Commission either raised or challenged the applicant on the drugs issue. He says that the only question which might be said to relate to the drugs issue was a question asked by the chairman as to the reason for the choice of the title “Did you inhale?” for a political programme proposed by the applicant company. Mr. Reynolds answered by indicating that the proposed title was referable to a remark once made by President Clinton. Dr. Kenny furthermore indicates that on the day of this oral hearing the applicant was also handed the Commission’s written questions including a question on substance abuse which he had prepared. He states that a written response from the applicant was received on or about the 4th October, 1999 and this is also annexed to this judgment.

17. Dr. Kenny states that there were certain aspects of the written response from the applicant which appeared to him not to tally exactly with the information he had received from the Gardaí. The first was a reference to Detective Inspector Brian Sutton being the head of the National Drugs Unit and the second was a reference to the POD having received a clean bill of health. Dr. Kenny states that his information was to the effect that Detective Chief Superintendent Ted Murphy was the head of the National Drugs Unit and that the Gardaí continued to monitor the POD in the same way that the Gardaí monitor all other night-clubs. Accordingly, he telephoned Detective Chief Superintendent Ted Murphy on the 6th October, 1999. It was confirmed to Dr. Kenny that Chief Superintendent Ted Murphy was the head of the National Drugs Unit and not Detective Inspector Brian Sutton. It was also confirmed to him that no nightclub received a clean bill of health as such from the National Drugs Unit. It was further indicated that the systems of control in relation to drugs which were in place in the POD and which were endorsed by the Gardaí were the result of ongoing communication between Mr. Reynolds and the Gardaí which had been initiated by the Gardaí. On receipt of this information and in advance of the final meeting of the Commission to be held on the 11th October, 1999, Dr. Kenny prepared a document with a view to clarifying in his own mind whether the information altered in any way the view which he had reached on the 22nd September, 1999. A copy of this document is annexed to this judgment. Having considered the matter and the document which he had prepared, Dr. Kenny concluded that the position had not changed and that, particularly having regard to the fact that there was no evidence linking Mr. Reynolds or any other director of the applicant company with anything untoward in relation to drugs, it remained the case that it would be unfair and inappropriate to raise or challenge the character of the applicant in any way or to draw any adverse inference in relation to the character of the applicant company or its directors based upon what was described as “the drugs issue”. Dr. Kenny points out that at the meeting of the 11th October, 1999 he did not raise and no other member of the Commission raised any comment in relation to the written response from the applicant company on the question of substance abuse nor indeed any question at all in relation to the approach of the applicant company or Mr. Reynolds to what may be described as “the drugs issue”. Dr. Kenny indicates that following his meeting with the chairman on the 22nd September, 1999 the only communication that he had with other members of the Commission which might be said in any way to be referable to the drugs issue related to a programming proposal. It appears that on the 27th September, 1999 he expressed some reservation to the members of the Commission to whom he was then talking concerning the choice of the title “Did you inhale?” for the political programme proposed by the applicant company. Dr. Kenny points out that the question of drugs took up a relatively small proportion of the total consideration devoted to the Applicant’s bid. He states with regard to the discharge of his obligation to consider the character of the directors of the applicant company, having considered the matter he was satisfied without feeling a necessity to raise the issue with the applicant, that there should be no challenge to the character of the applicant company or its directors and that there should be no adverse inference drawn in relation to the character of the applicant company or its directors based upon what is described as "the drugs issue”. Dr. Kenny says that he did not decide upon the determination of his personal vote on the radio applications until the final meeting of the Commission on the 11th October, 1999 and that he did so solely on the basis of the original written applications, the oral presentations, the oral/written questions and answers of the applicants and the consideration of same conducted by the Commission as a whole. He says that the “drugs issue” so far as it relates to the applicant formed no part of the basis on which he cast his vote.


THE APPLICANT’S CASE

18. Counsel for the Applicant have prepared written submissions for the Court and furthermore made oral submissions to this Court. Based upon the facts it is submitted that the differences in the affidavits of Mr. O’Keeffe and that of Dr. Kenny give rise to an allegation of objective bias. It is further submitted that the letter of the 22nd September, 1999 addressed to the chairman shows an animus of Dr. Kenny directed to Mr. Reynolds. It was further submitted that the Court is entitled to have regard to the manner in which information has been extracted from Dr. Kenny. In this regard it was submitted that Dr. Kenny’s affidavit was filed very late in the day long after the affidavit from Mr. O’Keeffe. The applicant relies upon the fact that Dr. Kenny did not disclose to the chairman or the members of the Commission his visit to An Garda Síochána and his subsequent contacts with the Gardaí. It is further submitted on behalf of the applicant that documents were concealed from Mr. O’Keeffe when he swore his affidavit or if disclosed to Mr. O’Keeffe but not referred to in his affidavit that it would call Mr. O’Keeffe’s actions into question. However, it is submitted on behalf of the applicant that it accepts that Mr. O’Keeffe has acted at all times bona fide and in good faith. It is submitted the actions of Dr. Kenny show that he had an unsatisfactory view of Mr. Reynolds. Query is raised as to why no contact was made with Inspector Sutton in light of what was stated in the information supplied by the applicant company. It is further submitted that the licence for the POD nightclub would have been renewed at this time. A further query is raised as to why Dr. Kenny did not exhibit his telephone attendance relating to his telephone call on the 6th October, 1999 to the Garda Síochána. The applicant queries whether Dr. Kenny had at any time altered his mind from the position outlined on the 22nd September and submits that the letter of that date is brimful of criticism of Mr. Reynolds and that Dr. Kenny had rightly or wrongly formed an unfavourable view of Mr. Reynolds. It is further submitted that this unfavourable view was at no time addressed to Mr. Reynolds himself. It is further submitted that the facts reveal objective bias and a positive animus towards Mr. Reynolds. It is further submitted that once one branch of the Commission is poisoned, all branches of the Commission are affected by the same poison. Accordingly, it is submitted that the decision of the Commission is tainted and poisoned and should be set aside by this Court. On behalf of the applicant it was further submitted that the protestations on the part of Dr. Kenny fly in the face of the facts insofar as it is asserted that it would be unfair and inappropriate to raise or challenge the character of the applicants in any way or to draw any adverse inference in relation to the character of the applicant company or its directors based upon what is described as "the drugs issue”. With regard to Dr. Kenny’s considering the title of the programme “Did you inhale?”, it is submitted that standing alone this criticism does not amount to very much but taken together it copper fastens the manifest attitude and animus of Dr. Kenny towards Mr. Reynolds. Insofar as Dr. Kenny did not disclose his meeting with members of the National Drugs Unit, the question is asked whether he is proud of the non-disclosure or why did he keep other members of the Commission in the dark. It was further submitted that the assertion at the end of paragraph 39 of Mr. O’Keeffe’s affidavit which states “save as set out above, the issue of drugs did not form part of any deliberation of the Commission” contrasted with the terms of Dr. Kenny’s own affidavit. It was submitted that the “covert and surreptitious activities of Dr. Kenny” generated a legitimate concern on the part of Mr. Reynolds and the applicant and that the applicant was dealing with one member having an animus and demonstrating objective bias towards the applicant headed by Mr. Reynolds, the owner of the POD nightclub. It was submitted that Dr. Kenny had concealed his agenda in his conversation on the 22nd September, 1999. It was further submitted that the document prepared by Dr. Kenny between the 6th and 11th October demonstrated Dr. Kenny’s hostility towards Mr. Reynolds insofar as Dr. Kenny was querying the bona fides of the chairman of the applicant consortium. It was submitted that this briefing document in effect amounted to a finding of fact against Mr. Reynolds.

19. Counsel for the applicant has referred this Court to the unreported decision of Murphy J on 12th May, 1989 in the case of Dublin & County Broadcasting Limited, applicant -v- Independent Radio and Television Commission, Radio 2000, Capital Radio Productions, Respondents. At page 13 of his judgment Murphy J indicates that the question of bias must be determined on the basis of what a right-minded person would think of the real likelihood of prejudice and not on the basis of a suspicion which might dwell in the mind of a person who is ill-informed and who did not seek to direct his mind properly to the facts. Murphy J stated at page 13 of his judgment, inter alia, as follows:-


“It seems to me the crucial part of the test would be the approach of a right-minded person to the facts and the circumstances of the case, and the view which he would form as to the likelihood of bias, not to the fact of the bias being operative in fact, and I entirely accept it would be irrelevant and immaterial if, in a case such as the present, it was established as a matter of fact the bias was non-operative, or that the particular person accused of the bias was outvoted or whatever. If it is shown that there are on the facts circumstances which would lead a right-minded person to conclude that there was a real likelihood of bias, that this would be sufficient to invalidate the proceedings of the Tribunal.”

20. Counsel further referred to a portion of a judgment of Murphy J where he referred to the decision of the Court of Appeal in the case of Hannon -v- Bradford City Counsel , [1970] 2 All E.R. 690 and in particular the judgment of Sachs LJ at page 693 and 694 of the report where reference was made to a portion of the judgment of Lord Denning MR in Metropolitan Properties Co. (F.G.C.) Limited -v- Lannon , [1969] 1 QB 577; [1968] 3 All ER 304 at pages 599 and 310 respectively where the Master of the Rolls stated:-


“The Court looks at the impression which would be given to other people. Even if he [the chairman of the tribunal in that case] was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.... The Court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘the Judge was biased’.”

21. Counsel further referred this Court to the decision of the Supreme Court in the case of Radio Limerick One Limited -v- Independent Radio and Television Commission , [1997] 2 I.R. 291 at 316 where Keane J delivering a judgment with which the other members of the Court approved, stated as follows:-


“There is a further consideration applicable to bodies of this nature which is relevant to the present case. Because of the factors to which I have already referred a body such as the Commission may not, in given circumstances, present the appearance of strict impartiality required of a Court administering justice. That, however, does not relieve the Commission of the obligation to take every step reasonably open to it to ensure that its conclusions are reached in a manner, not merely free from bias, but also of the apprehension of bias in the minds of reasonable people.”

and to the further passage in the judgment of Keane J at page 319 of the report where he stated as follows:-

“There remains the question of bias. The allegation of subjective bias having been withdrawn, the High Court was solely concerned with whether the proved or admitted facts should give rise to an inference of objective bias, i.e., that the decision had been taken by the Commission in circumstances where the applicant or any reasonable person might reasonably have feared that it would not be free from bias against the applicant.”

22. With regard to the Applicant’s case of want of fair procedures, insofar as it was not acquainted with the thinking of Dr. Kenny prior to the decision being made and given an opportunity to address his concerns, reliance has been placed upon the judgment of Blayney J in the case of TV3 -v- Independent Radio and Television Commission , [1994] 2 I.R. 439 and in particular the portion of the judgment appearing at page 454 where he stated:-


“In making its decision the Commission was exercising an administrative function created by statute and was obliged to act in accordance with the principles of constitutional justice.”

and to the principles outlined by Walsh J in the East Donegal Co-operative Livestock Mart Limited -v- The Attorney General , [1970] I.R. 317 at page 341 of the report quoted with approval by Blayney J in his judgment.

THE RESPONDENT’S CASE

23. Mr. Cush, Senior Counsel for the Respondent, submitted that there were three extraneous matters which should be disregarded by the Court, namely:-


1. The circumstances of the swearing of the affidavit of Dr. Kenny.
2. The alleged concealment of documents.
3. The inconsistencies alleged between the affidavits of Dr. Kenny and Mr. Michael O’Keeffe.

24. Counsel referred to the history of the matter between the 17th January, 2000 and 13th March, 2000 where security for costs was ordered by this Honourable Court. He submitted that it was on that occasion, on 13th March, 2000, that the affidavit of Dr. Kenny was filed in circumstances where security was to be furnished to the Court and where certain matters addressed by Dr. Kenny were necessary to ensure that the Court directed security. Counsel pointed out that, when the affidavit of Dr. Kenny had been delivered, the case, with the exception of the issue of bias and want of fair procedures, was abandoned by the applicant. With regard to the question of the alleged concealment of documents it was pointed out by Counsel that voluntary discovery was agreed between the parties in the terms sought in a letter of the 21st January, 2000 and this was furnished by letter of the 8th February, 2000. With regard to the alleged inconsistencies between the affidavits it was submitted by Counsel that there was no inconsistency and even if he was wrong in this respect that little attention should be paid to the matter because this is not a case in which actual bias is alleged but objective or perceived bias is relied upon by the applicant. While Counsel denied the alleged inconsistencies, he said that there was some possible lack of completeness in the affidavit of Mr. Michael O’Keeffe insofar as he did not deal with the subsequent contact between the Gardaí and Dr. Kenny. It was submitted by Counsel that at an earlier stage in the proceedings the issue of bias was but a minor matter in the case. Counsel submitted that Dr. Kenny had dealt with the allegations of bias comprehensively from start to finish in his affidavit.

25. With regard to the issue of objective bias, Counsel submitted that this Court should take all the facts into account and that these should be put in the proper context. The facts relied upon by Counsel were as follows:-


1. The obligation on the part of the Respondent to have regard to the character of the applicant and where the applicant is a body corporate its directors.
2. That Storm FM was one of four short listed applicants. Each of the four applicants made reference to the drugs issue to a greater or lesser extent in their submissions to the Commission. The applicant first raised the issue of drugs and not the Respondent.
3. The fact that the applicant raised the issue of drugs led Dr. Kenny to request the formulation of a question for the oral hearing and this prompted him to go to the Gardaí to inform himself generally.
4. During his visit to the Gardaí on the 13th September, 1999 he raised the matter of two newspaper reports of Court cases involving the POD nightclub. This is seen in his letter to the chairman of the Respondent Commission of the 22nd September, 1999.
5. In his discussions with the Gardaí Dr. Kenny did raise the second of these cases and this is said so clearly in his affidavit.
6. On raising this case with the Gardaí on the occasion, Dr. Kenny was told that the system in place in the POD nightclub met the approval of the Gardaí. It was indicated to him that no objection to the licence renewal of the POD was contemplated but that it might be best to double-check that situation. It was further submitted that the uncontroverted evidence of Dr. Kenny in this regard was borne out by the hand-written documentation discovered in these proceedings.
7. Dr. Kenny did telephone the Gardaí later in the week and confirmed the position in relation to the renewal of the licence of the POD nightclub.
8. Dr. Kenny proceeded to formulate the question for the then forthcoming meeting of the Commission. Amongst the questions formulated was one relating to the character of the applicant. It was submitted that these questions was not indicative of any keenness to avoid fair procedures on the part of the Respondent Commission. Furthermore, it was submitted that the character of the applicant was a common question to all the four applicants at the time.
9. As the oral hearing approached Dr. Kenny sought to clarify points raised and arranged to speak with the chairman of the Commission.
10. Dr. Kenny prepared his letter of the 29th September with this in mind. It was submitted that the final paragraph of his letter of the 22nd September demonstrates the fact that Dr. Kenny was at the same time seeking clarification as to whether the reputation of Mr. Reynolds’ nightclub or his failure to take a stronger public stance on drugs was relevant to any judgment of his character by the Respondent Commission. It was submitted by Counsel that one had to examine the entire of the thought process of Dr. Kenny. If one failed to do this and they were to suggest pre-judgment on the part of Dr. Kenny it was submitted that this would amount to a “monstrous charade” a term borrowed from the judgment of O’Flaherty J in the case of McAuley -v- Keating , [1998] 4 I.R. 138 at the top of page 145.
11. That Dr. Kenny entered into discussion with the chairman. Counsel submitted that his letter of the 22nd September should not be considered in the absence of the surrounding evidence of Dr. Kenny.
12. It was further submitted that there had been no challenge on Dr. Kenny’s sworn averment in relation to this meeting with the chairman. In this regard it must be accepted that Dr. Kenny agreed to accept Mr. Maguire’s advice at the time. (See paragraph 14 of the affidavit of Dr. Kenny).
13. The written question as submitted by the Commission was the question as prepared by Dr. Kenny himself.
14. With regard to the response of Storm FM to the questions raised by the Commission, queries were raised in the mind of Dr. Kenny and these are addressed by him in paragraph 19 of his affidavit and are matters of which he sought clarification from the Garda Síochána consequent upon the response of Storm FM.
15. Dr. Kenny telephoned the garda to verify the matters and a note to this effect has been discovered in these proceedings by the Respondent.
16. With regard to the clarification document prepared by Dr. Kenny some time between the 6th and the 11th October, 1999 the circumstances in relation to its preparation are addressed by Dr. Kenny at paragraph 20 of his affidavit and he has indicated that he had not changed his mind in light of the document’s preparation. It was further submitted by Counsel that the purpose for the preparation of this document had not been challenged in cross-examination of Dr. Kenny.
17. It was submitted by Counsel that the document referred to as the “clarification document” had to be considered in its entirety and on in its facts. It was submitted that this document testifies to the fact that Dr. Kenny indicated that he did not propose to consider the publicity relating to the night-clubs, adverse as it was, as evidence in relation to the character of the applicant or its directors. It was submitted that in light of this fact that no want of natural justice arose in the instant case.
18. With regard to the meeting of the 11th October, 1999 the evidence was that the drugs issue had not been raised at that meeting, that is to say the position of the POD nightclub was not raised at this meeting.
19. Nobody was told by Dr. Kenny of his visit to the Gardaí etc., this was an accepted fact in these proceedings.
20. The only evidence of any discussion centering on the issue of drugs generally related to Dr. Kenny raising the title to the programme “Did you inhale?”.
21. With regard to the issue of fair procedures it was submitted by Counsel that this Court should have regard to the law as indicated in the judgment in the case of McAuley -v- Keating and that this Court should have regard to the emphatic denials of any pre-judgment on the part of Dr. Kenny as set forth in his affidavit.

26. With regard to the legal principles applicable to a case such as the instant case, it was submitted by Mr. Cush that first of all different standards are expected of a judicial body to an administrative body and that with regard to the correct test the law differs in this jurisdiction to that in England and what were relevant were the cases dealing with pre-judgment issues. Counsel referred the Court to the decision of the Supreme Court in the case of O’Neill -v- Beaumont Hospital Board , [1990] I.L.R.M. 419 at 438 where the Court stated that the proper standard to be applied was whether a person in the position of the applicant who was a reasonable man should apprehend that his chance of a fair and independent hearing of the question does not exist by reason of the pre-judgment of the issues which are involved in that by the members of the Board. At page 439 of the report Finlay CJ stated as follows as to what the appropriate test in a case such as this is:-


“[T]hat a person in the position of the plaintiff who is a reasonable man and not either over-sensitive or careless of his own position, would have good grounds for a fear that he would not get in respect of the issues involved, from a body which includes the chairman, an independent hearing.”

27. Finlay CJ stated further at page 439:-


“The test is an objective test as to whether a person in the position of the plaintiff who is a reasonable man might reasonably fear that the pre-judgment expressed by the chairman would prevent a completely fair and independent hearing of the issues which arise.”

28. This test was applied again in the case of Dublin Well Woman Centre Limited -v- Ireland , [1995] 1 I.L.R.M. 408 and more recently in the case of Bane -v- Garda Representative Association , [1997] 2 IR 449.

29. Having regard to the applicable law, Mr. Cush addressed the facts of this case to the submissions made by the applicant. Mr. Cush queried whether a reasonable man will apprehend bias in circumstances where the one issue raised, namely, that of drugs, was but one issue in a myriad of issues arising in the consideration of the Respondent. It was submitted by Counsel that far from the letter of the 22nd September being "redolent of an animus" to quote the words of Counsel for the Applicant, this letter in fact did not show any concluded view, but rather a questioning mind. The question raised was whether the information referred to was relevant at all to the consideration of the Commission. It was submitted that this letter was an indication of the thought process of Dr. Kenny and that the thought process was the very opposite to a pre-judgment in the particular case. Counsel submitted that for this letter to create the impression that Dr. Kenny had prejudged the Applicant’s submission would, to put it in the words referred to by O’Flaherty J in the case of McAuley -v- Keating , [1998] 4 I.R. 138 at 145, amount to a “monstrous charade”. Mr. Cush submitted that this letter indicated that Dr. Kenny was seeking advice and that this was wholly inconsistent with the pre-judgment on his part. He submitted that the idea of pre-judgment was inconsistent with the ongoing enquiry demonstrated in this letter. Counsel submitted further that none of the facts in this case show any bias on the part of Dr. Kenny or any member of the Respondent. With regard to the so-called “clarification document”, that is the document created by Dr. Kenny between the 6th and 11th October, 1999, Counsel submitted that this document must be examined in its entirety.

30. With regard to the allegation of breach of the principles of natural justice, Counsel for the Respondent, while accepting that the Respondent must follow fair procedures, submitted that on the evidence the Applicant’s case must fail on this ground also and in particular with regard to the fact that the evidence shows that no matter was taken into account without Storm FM being given an opportunity to deal with it.

31. On behalf of the Notice Party Mr. Mohan, S.C., submitted that if Dr. Kenny was prejudging the matters as contended for by the applicant that he would not have gone back to the Gardaí in a manner disclosed to enquire into the matters raised by him. It was submitted by Counsel that this clearly demonstrated that Dr. Kenny was still enquiring into the position of the applicant and into the process. It was further submitted by Counsel that the clarification document created prior to the meeting of the 11th October demonstrated Dr. Kenny’s thought process and the fact that he considered that there was no compelling reason for him to be swayed in any manner other than that as advised by the chairman at the meeting on the 22nd September, 1999. Counsel referred to the relevant considerations arising under the Radio and Television Act, 1988 and in particular Section 6(1) of the Act dealing with the character of the applicant and of its directors in the context of the applicant being a corporate body. Counsel submitted that no single conclusion of bias could be drawn from the facts taking all of the matters as a whole.

32. In reply to the submissions of the Respondent and the Notice Party, Mr. Paul Gardiner, of Counsel, indicated that the parties were in agreement as to the applicable law and the appropriate test to be applied, namely, with that outlined by Finlay CJ in the case of O’Neill -v- Beaumont Hospital . Counsel submitted that if there was any ambiguity the Court should take the more favourable view to the applicant. It was further submitted by Counsel that insofar as the test to be applied is an objective test that this Court cannot look at the purpose of the creation of the documents in question but must examine the documents themselves on their face. Counsel submitted that insofar as this Court must have regard to all the circumstances of the case that these circumstances must include the circumstances regarding the swearing of the affidavit of Dr. Kenny. It was submitted that the first essential fact was that before any consideration was reached by the Commission that Dr. Kenny had formed a view about the POD nightclub.


CONCLUSION

33. Dr. Kenny was cross-examined briefly in the context of these proceedings and, suffice it to say, he clearly indicated that he bore no personal animosity towards Mr. Reynolds and was in no way personally biased towards him or towards the consortium of Storm FM in regard to the application to the Respondent. This the Court clearly accepts and in fact it was not seriously put in question. What is at issue is the allegation of objective bias and breach of natural justice raised by the applicant. The question that must be asked is whether a person in the position of Storm FM or its chairman, Mr. Reynolds, being a reasonable man might reasonably fear that there was pre-judgment expressed by Dr. Kenny which would prevent a fair and independent hearing of the application for the radio licence made by Storm FM. I am satisfied on the evidence before this Court that Dr. Kenny was engaged at all relevant times prior to the meeting of the 11th October in clarifying what he considered to be relevant matters in the context of the applications before the Commission rather than rely upon newspaper reports and other rumours which came to his attention. Dr. Kenny sought to clarify certain matters with members of the Garda Síochána. These matters were not simply related to Mr. Reynolds and his nightclub but related generally to the issue of drugs in the Dublin area. Insofar as he raised with the Gardaí matters arising from earlier press reports involving the POD nightclub, he did so in an enquiring fashion and had he not done so in light of the information which was then in the public domain certainly a situation may well have arisen whereby a danger of pre-judgment could have occurred. I am satisfied that he engaged in a legitimate enquiry with the Garda Síochána, that the matters are clearly documented by him in the letter of the 22nd September, 1999 to the Chairman and in the further "clarification document". I am satisfied that these documents indicate first of all that Dr. Kenny was raising with the chairman issues as to what was relevant in the context of the deliberations of the Respondent Commission and had not prejudged the issue and furthermore insofar as he raised further queries with the Garda Síochána and prepared the further clarification document that this again did not demonstrate any pre-judgment of the issue on his part. It is important to bear in mind the words of Murphy J in the Dublin & County Broadcasting Limited case where on page 13 he stressed that the question of bias must be determined on the basis of what a right-minded person would think of the likelihood of prejudice and not on the basis of the suspicion which might dwell in the mind of a person who is ill-informed and did not seek to direct his mind properly to the facts. I believe that a person relying simply on the newspaper report published in the Sunday Tribune would not have in his possession all the relevant facts in this matter and would constitute a person who, if they sought to make any judgment on those facts alone, would be ill-informed in relation to the relevant facts. As stated by Murphy J., the crucial part of the test must be the approach of a right-minded person to the facts and circumstances of the case. I am satisfied that the circumstances of the case must be ascertained from all the facts. These facts have now been put before this Court and on the basis of these facts I am satisfied that no right-minded person would conclude that there was any real likelihood of bias on the part of the Respondent in its consideration of the application for the licence made by the applicant, Storm FM. Accordingly, I will refuse the applicant the relief of Certiorari which was sought in these proceedings.


[See hard copy of this judgment for photocopied attachment].


© 2000 Irish High Court


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