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Cite as: [2000] IESC 22

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Orange Telecommunications Ltd. v. Director of Telecommunications Regulation [2000] IESC 22 (18th May, 2000)

THE SUPREME COURT


KEANE C.J.
MURPHY J.
BARRON J.
MURRAY J.
GEOGHEGAN J.
224 & 278/1999 & 14/2000


BETWEEN:

ORANGE COMMUNICATIONS

Plaintiff

and

THE DIRECTOR OF TELECOMMUNICATIONS
REGULATION AND METEOR MOBILE COMMUNICATIONS LIMITED

Defendant



[Judgments by Keane CJ., Murphy, Barron and Geoghegan JJ.]


JUDGMENT delivered the 18th day of May 2000 by Keane C.J.


CONTENTS


1. Introduction


2. The evidence in the High Court


3. The judgment in the High Court


4. Submissions of the Parties


5. The applicable law


6. Conclusion
Introduction

The huge expansion in the mobile telephone industry, which has been a feature of life in Ireland, as in other countries, in recent years, is the background to this case. The policy of the European Union, in this as in other sectors of the telecommunications industry, is to develop in each State a market open to competition with, as it is hoped, resultant benefits for the consumers. The monopoly enjoyed by organs of the State, such as in this country the Minister for Posts and Telegraphs, is being progressively dismantled and replaced by a free market system.

While that is the policy of the European Union, the directives which carry it into effect also recognise that the liberalisation of the telecommunications infrastructure requires licensing regimes which are, in the language of one of the directives, “open, non-discriminatory and transparent” . The policy also accordingly requires that, in the area of mobile telephone services, as in television and radio, the allocation of the scarce and valuable spectrum and wavelength resources to individual operators should be controlled at national level by a licensing system of that nature.

To that end, the office of the first named defendant (hereafter “the Director” ) was established. In 1997, she announced the holding of a competition for the award of a licence to operate a third mobile telephone service in Ireland. There were already two such services, the first operated by Eircell, who had succeeded to the monopoly previously enjoyed by Telecom Éireann and the Minister for Posts and Telegraphs and the second by Esat, who had been granted a licence by the director’s predecessor, the Minister for Transport, Energy and Communications.

The Director decided that the successful applicant would be selected by way of an open tender procedure, using what is known as the “the best application” method. This can be contrasted with an auction procedure, under which the licence is simply awarded to the highest bidder. In the “best application” method, a number of criteria are adopted in order to determine to whom the licence should be awarded. Accordingly, a tender document based on the “best application” method was prepared by the Director and bids for the licence invited from interested parties. To assist her in the preparation of the tender document and the procedure of evaluating the bids, the Director retained a firm of consultants based in Denmark, called Anderson Management International (hereafter “AMI”). While a number of parties originally expressed interest in bidding for the licence, ultimately only two bids were received, from the plaintiff (hereafter “Orange”) and the second named defendant (hereafter “Meteor”). Their bids were then subjected to an evaluation process, as a result of which Meteor were ranked first and Orange second. Orange were informed by the Director that Meteor had been ranked first as a result of the evaluation procedure and that, subject to her being satisfied as to the outcome of discussions she intended to have with them, she proposed to award the licence to them. In accordance with the procedure laid down by the relevant statutory regulations, Orange then made written representations to the Director in the hope of persuading her to come to a different decision. The Director adhered to her original decision and announced the award of the licence to Meteor.

Under the relevant statutory provisions, Orange were entitled to appeal to the High Court from that decision. There being no rules of court in existence prescribing the procedure to be adopted in such appeals, the present proceedings were instituted by way of plenary summons in the High Court appealing from the decision of the Director. The action came on for hearing before Macken J. who, in a preliminary reserved judgment delivered on the 18th March, 1999, made rulings as to the scope of the appeal. The entire appeal was at hearing before her for 51 days.

In her preliminary judgment, the trial judge ruled that the nature of the appeal before her was what she described as a “review type appeal” under which the reasonableness of the director’s decision was to be ascertained by reference only to the materials which she had before her, and none other, so as to enable the court to decide whether her decision should be confirmed.

At this stage, it is convenient to refer in more detail to the uncontested evidence as to the manner in which the tender procedure was conducted. A steering group was established by the Director in mid-1997 to set in train and oversee that procedure. Following the publication of advertisements in the usual way, a number of parties who responded were furnished with the tender documents and there then followed a “questions and answers” procedure, the Director furnishing replies to questions raised by the bidders. A large number of questions, 89 in all, were received and, in order to enable the Director to answer them all, the original closing date and time for receiving bids was deferred to 2.00 p.m. on the 6th April 1998. On that date, the bids already referred to were received from Orange and Meteor.
The next stage in the procedure took the form of a quantitative evaluation carried out in Denmark by AMI, which, in the fashionable business jargon of the day, is described as a “number crunching” exercise. At the same time, all of the documents furnished by the bidders were furnished to a number of working groups established by the steering group, each working group being given a different section to read and consider. These working groups consisted of nominees of AMI and members of the Director of staff.

The tender document had stated that the bids would be subjected to a comparative evaluation on the basis of specified criteria, which were set out in groups. Group A, which at 38% was given the largest weighting, dealt with:-


Group D (which was given a weighting of 10%) was

“the spectrum access charge bid by the applicant.”

The bid was capped at £10 m. and both Orange and Meteor pitched their bids at this maximum.

It is to be noted that, within each of these groups, the criteria were stated to be set out

“in descending order of priority”.

The next stage in the process was the attachment by the steering group of weightings to be attached to each of the individual criteria within the groups which were described as the “dimensions”. For this purpose, the steering group and working parties were furnished with a document called “The Reader’s Guide” to assist them in the evaluation process.
1
The working groups, twelve in all, met over three days in May 1998. At this stage, the two bid documents - which were both lengthy and detailed - were read by the working groups and, at their meetings, they decided the awards or scores, to be given to each of the individual segments of the bids of Orange and Meteor. For this purpose, 67 “indicators” were identified and scores awarded to each indicator. The scores were then “weighted”, i.e. increased by a specified percentage, so as to reflect the importance ascribed to the individual indicator. At the same time, what were described as “cross cutting exercises” were undertaken, principally by AMI.

There emerged from these procedures a document called the evaluation report which went through a number of drafts. These were initially prepared by the AMI team or persons retained by them and were the subject of written and oral discussions between the Director’s staff and the AMI team. There was also an “oral presentation” , at which members of the steering group met separately with representatives of Orange and Meteor. It was said on behalf of the Director that the purpose of these discussions was to clarify aspects of both bids which appeared to her unclear and in need of elaboration.
On the 11th June, 1998 the steering group approved the final draft of the evaluation report.

The report as so approved was furnished to the Director on the 17th June 1998 with a covering memorandum from a senior member of her staff, John McQuaid. She returned a copy of the memo on the 18th June 1998 with a note of her decision signed by her, endorsed on the report as follows:-

“I agree with the recommendation of the steering group. Please prepare papers accordingly.”

On the 19th June 1998, the Director wrote as follows to Orange:-

“I refer to your application for the above licence competition received on 6th April and answers provided to written questions posed by my office in accordance with section 1, paragraph 136 of the tender document.”

“A comparative evaluation of both applications has now been completed in accordance with the evaluation criteria outlined and weighted in the tender document. I have accepted the report on the evaluation of the applications and am now in a position to inform you of the ranking as follows:
(1) Meteor
(2) Orange.
In accordance with section 1, paragraph 1.6 [of] the tender document I intend to initiate discussions with the higher ranked applicant with a view to awarding the licence.
I would be happy to arrange a half-hour briefing for you next week on the outcome of the competition. Please contact my office to arrange a mutually convenient time.

For your information I enclose a copy of the Press Release announcing the result.”

On the 25th June, the Director issued both to Meteor and Orange what have been called “summary reports” . In the case of each bidder, these reports set out matters arising from their respective bids which the Director considered should be brought to their attention. It should be emphasised that the matters in question in the Orange summary report were matters solely arising out of the Orange bid: similarly, the matters set out in the Meteor summary report were matters solely arising out of their bid.

On the 22nd September, 1998 the Director wrote as follows to Orange:-

“I refer to [Orange’s] application for the above licence. I hereby notify [Orange] that I propose to refuse to grant a licence to [Orange].

“The reasons for the proposal to refuse to grant the licence are that in the detailed comparative evaluation during the competition process, [Orange] was not ranked first and the discussions entered into with the higher ranked applicant are satisfactory.

‘[Orange] may within 21 days of the receipt by it of this notification make representations to me in relation to the proposal concerned.”

This letter was replied to on the 23rd September by solicitors acting on behalf of Orange. They said that they were instructed to put the Director on notice that Orange considered the reasons given by the Director to be

“invalid, inadequate and generally not of the type contemplated by section 11(2B)(f) of the Postal and Telecommunications Services Act, 1983.

The letter went on to request the Director to furnish Orange with the following:-

(a) the terms and conditions of any draft licence agreed with Meteor or proposed to be granted to it;
(b) the Meteor summary report;
(c) details of the marks awarded to Orange and Meteor in the second phase of the evaluation process.

In her reply of the 28th September, the Director rejected the suggestion that the reasons for her proposal to refuse to grant a licence to Orange were invalid, inadequate or otherwise open to challenge. She also indicated that she was not prepared to furnish the information requested on the grounds inter alia that it would involve the disclosure of commercially sensitive information relating to the business of Meteor and would compromise the confidential nature of the tendering process.

In their reply of 1st October, the solicitor for Orange indicated their disagreement with the position adopted by the Director and said that it made it extremely difficult for them (Orange) to make meaningful representations and diluted significantly the substance of their statutory right to make the representations. They said, however, that, despite what they regarded as the continued refusal to provide proper and adequate reasons, their client would make representations to the Director within the specified period.

Written representations were then sent to the Director on the 12th October. These representations will be referred to in more detail at a later stage. The director’s response concluded as follows:-

“87. It will be seen from the foregoing analysis that I am of opinion that Orange’s representations ... primarily consists of the restatement of material which was either fully considered during the evaluation of the tender response or, alternatively, consists of new material which I am precluded by the very terms of the competitive process from now taking into account. Having carefully examined the terms of the Orange’s representations, I am not persuaded that it has advanced reasons as to why I should not now communicate my intention to refuse to grant it the third mobile telephony licence (DCS 1800 GSM) in Ireland.
88. I am hereby notifying you, pursuant to s. 111(2B)(h) of the 1983 Act (as inserted by Article 4 of the 1996 Regulations) (as amended) of my decision to refuse to grant you a licence for a third mobile telephony licence (DCS 1800 GSM) in Ireland.
89. The reasons for the decision to refuse to grant the licence are that in the detailed comparative evaluation during the competition process, Orange was not ranked first and the discussions subsequently entered into with the higher ranked applicant were satisfactory. In addition, none of the representations made by Orange pursuant to s. 111(2B)(g) of the 1983 Act contain any argument of substance which I can properly take into account which caused me to reconsider the proposal (already communicated to you by letter on the 22nd September 1998) to refuse to grant you a licence.
90. Finally, take notice, that, within 28 days of the receipt by you of this notification, you may appeal to the High Court against this decision in accordance with s. 111(2B)(i) of the 1983 Act (as inserted by Article 4 of the 1996 regulations) (as amended). Please note that as your application for the grant of a licence was made on the 6th April 1998 before the coming into operation on the 8th April 1998 of the new version of s. 111 of the 1983 Act (as inserted by Article 5 of the European Communities (Telecommunications Licences) Regulations 1998 (S.I. 96 of 1998) (“1998 Regulations”), your statutory right of appeal is governed by s. 111(2B)(i) of the 1983 Act (as inserted by Article 4 of the 1996 Regulations) (as amended): see s. 111(10)(j) of the 1983 Act (as inserted by Article 5 of the 1998 Regulations).”

These proceedings were thereupon commenced. The plaintiff claimed:-

“an order by way of appeal against the said decision pursuant to s. 111(2B) of the Postal and Telecommunications Services Act, 1983, as amended, annulling the said decision and directing [the Director] to grant the said licence to [Orange].”

After certain averments which are not contentious, the statement of claim went on to aver that:-

“7. [Orange] and [Meteor] submitted applications for the licence which, if the applications had been properly and objectively considered would have resulted in the award of the licence to [Orange].

8. However, following a comparative evaluation of the applications of [Orange] and [Meteor], [the Director] purported to rank [Meteor] first and [Orange] second.

9. The manner in which [the defendant] conducted the comparative evaluation phase of the licence procedure was mistaken and misleading and, further, the said decision of [the Director] as represented by the said ranking was erroneous and perverse. [Orange] is and will be unable to furnish full particulars of all the errors made in the course of the said evaluation until full disclosure of the materials used by [the Director] has been made by way of discovery, but, by way of example, [the Director] awarded [Orange] a reduced score on solvency ratio despite the fact that [Orange’s] application conformed to [the director’s] stated requirement in respect of the same. Furthermore, some of the requirements of , and criteria used by, [the Director] in the tender document aforesaid were unreasonable, inappropriate and/or ultra vires .”

The statement of claim went on to aver that:-

“21. In reaching the said decision, [the Director] wrongfully and unlawfully considered herself precluded from considering the representations put forward by [Orange] save in so far as the said representations did not contain new material to that submitted by [Orange] in the course of the comparative evaluation process referred to herein at paragraph 7, and [the Director], in breach of her statutory obligations thereby failed to give any or any proper consideration to the representations of [Orange].

22. [Orange] claims that [the Director] has wrongly been biased and prejudiced against [Orange], which bias and prejudice is evidenced by a constant pattern of grossly unfair media coverage of [Orange’s] application, made possible by the wrongful revelation of [the director’s] attitude and proposed actions to third parties and their publication in the media before they were communicated to [Orange], which has led to serious public misconceptions and has been calculated to embarrass [Orange] in making its application, its representations and in pursuing its statutory right of appeal.”

The defences delivered on behalf of the Director and Meteor contained denials of the averments which I have cited from the statement of claim and in addition pleaded that Orange was not entitled to appeal the decision of the Director on the merits to the High Court.


An order for discovery having been made in the ordinary way, a considerable amount of documentary material was discovered which had been generated during the course of the tender procedure, and which had not hitherto been available, either to Orange or to Meteor or to both of them, because of the constraints by which the Director, rightly or wrongly, considered herself bound in the pre-litigation period. It is, accordingly, of some importance to bear in mind that, at this stage at least, Orange, and for that matter Meteor, were in possession of all the available documentary evidence as to the manner in which the entire tender procedure had been conducted. (It is not in dispute that a certain amount of documentary material had been shredded during the course of the tender procedure.)

As already noted, in a preliminary judgment, the trial judge ruled that the reasonableness of the director’s decision was to be ascertained by reference only to the materials which she had before her. At the outset of the substantive hearing, counsel on behalf of Orange submitted that, notwithstanding that ruling, his client was entitled to adduce oral evidence as to the findings of fact made by the Director and in addition evidence of an expert nature as to the inferences which the Director drew from the facts as found by her. The trial judge ruled on that submission as follows:-

“It seems to me in the foregoing circumstances I must direct that ... the appeal will be based only on the materials before the decision maker and none other. I will not permit any oral evidence to be adduced on the primary facts or the assumed facts as found by the Director. I will not permit the plaintiffs or, indeed, the other parties to adduce expert evidence as to the inferences drawn by the Director on those findings of primary fact or assumed facts, but reserve to the court the right to seek the assistance of expert evidence from any of the parties during the course of the hearing should matters arise on which the court takes the view that it would be appropriate to hear such expert evidence, but will rely initially on the skill and expertise of learned counsel.”

As to the allegation of bias made in the statement of claim, it was conceded on behalf of the Director and Meteor that Orange were entitled to adduce oral evidence in support of that aspect of their claim.

The trial judge also decided that, in the absence of any rules of court applicable to the appeal, the appropriate way to proceed was for the Director to swear an affidavit exhibiting the materials which were before her when she made the impugned decisions. Such an affidavit was sworn by the Director on the 26th day of April 1999.

Following this ruling, counsel for Orange opened the appeal in considerable detail to the trial judge. He referred to a number of matters which, in his submission, were evidence of unreasonableness on the part of the persons conducting the tender procedure and on the part of the Director in accepting their recommendations. These can be summarised as follows:

(1) The tariffs structure proposed by Meteor. ( “Tariffs”, when used in this judgment, connotes what might be described as the pricing policies which the two bidders proposed to adopt if awarded the licence and, accordingly, related primarily to the charges to users of the service, whether for calls actually made (or attempted to be made) or related matters such as “roaming”, i.e. transferring a call from one mobile phone company to another, where the first company is out of range.)
(2) Their failure to give any, or at least any adequate, weight to the withdrawal, shortly before the closing tender date, of one of the companies in the Meteor consortium, AT & T.
(3) The credit given to Meteor for what they described as their “strategic alliance” with An Post and what was said on behalf of Orange to be the illusory nature of that alliance.
(4) Their failure to have any regard to what was described as a “huge hole” in Meteor’s marketing strategy, i.e. the fact that the Meteor bid did not deal with the issue of “subsidising handsets ”. By that is meant the provision of handsets at a significantly reduced price, representing a cost to the bidder which, it was said, was essential for a new entrant in the market seeking to compete with what was described as an established duopoly.

Counsel went on to refer to the documentary material made available to his clients through the discovery process and said that it was clear from those documents that a considered decision had been taken to avoid giving what he described as “comparative reasons” for the refusal to award Orange the licence, i.e. reasons which would have indicated in detail the respects in which the Meteor bid was stronger and the Orange bid weaker and vice versa . The Director had, accordingly, he submitted, been in breach of her statutory duty to give reasons for her two decisions.

Counsel went on to say that, in the case of the first of the four matters grounding the claim of unreasonableness to which I have already referred, a significant issue arose, i.e. the question of what was described as “binding commitments on tariffs” . That issue, which will be considered in much greater detail at a later point in this judgment since it bulked large both in the High Court and on the hearing of the appeal, can be briefly summarised as follows.

The tender documents indicated that at least some significance - how much was a matter of considerable debate on the hearing of the appeal - would be attached to the degree to which each bidder was prepared to give binding commitments as to tariffs. By this was meant, in effect, a commitment that the charges indicated in the bid document for mobile telephone calls would not be increased over a specified period. In opening the case in the High Court, counsel for Orange submitted that the response in the respective bids had been read by those conducting the evaluation process as indicating a refusal by Orange to make any binding commitments, in contrast with a willingness by Meteor, to some extent at least, to give such commitments. That conclusion of the evaluators was, he said, not merely irrational, but indicative of “prejudice and bias” .

Again, in relation to one of the issues mentioned above, i.e. handset subsidies, counsel submitted that they were unfairly dealt with in the evaluation process, because they envisaged requiring subscribers to enter into a twelve month contract. That, he said, was a necessary consequence of the handset subsidy, since there would have to be some provision made by Orange for a situation where a subscriber, having got the handset at a price far below its actual cost, then became a subscriber to one of Orange’s competitors. He submitted that this was unfairly and unreasonably taken into account to their detriment during the evaluation process, whereas in fact it was part of a perfectly rational marketing strategy which was superior to the strategy proposed by Meteor.

Counsel also laid some stress on the manner in which what was described as “financial and management” aspects of the two bids were dealt with in the course of the comparative process. In relation to a particular sub-heading, called “guarantees from backers” , he said that the finding in the evaluation report that Orange were stronger under this heading had not been adequately reflected in the marks awarded.

Counsel further submitted that Orange should not have been penalised, as he indicated they in fact were, because they had no experience in the Irish market, on three grounds. First, he said, it was clear that Meteor had only very limited experience in the Irish market. Secondly, Meteor had already been awarded marks in respect of at least some of that experience under another heading. Thirdly, as a matter of European Union law, it was not open to the Director to award reduced marks to an applicant from the United Kingdom for a licence on the basis that it had no experience in the Irish market.

Counsel then pointed out that in addition to the “number crunching” phase and “qualitative phase” of the evaluation procedure, which have already been referred to in this judgment, there was a third phase in which the results of the earlier two phases were cross-checked against a further process, described in the evaluation report as comprising

“supplementary analyses, checks and credibility, risks and sensitivities, selected track recording and verification ...”

Counsel for Orange in the course of his opening referred in some detail to this procedure. He drew attention to the fact that one of the evaluation reports said that, as matters stood, one of the members of the Meteor consortium did not have the immediate financial capability to participate in so major a project, but the possibility that the persons concerned might be able to raise the money in the future could not be excluded. Counsel said that there was what he described as a “dramatic failure” on the part of the person concerned with this particular part of the procedure to take any of the normal steps which, he suggested, would be taken by a prudent person in such circumstances in order to determine how real that possibility was. He described the conduct of the persons acting on behalf of the Director in relation to this particular matter as “reckless”.

Counsel went on to refer to a section of the evaluation report dealing with this verification procedure in which attention was drawn to what were described as minor discrepancies in the Orange bid. The first was a statement that they had applied for a combined GSM/DCS licence in Belgium, although, according to the information furnished to the evaluators, the licence in Belgium only applied to DCS 1800. (The significance of the distinction between GSM and DCS licences is explained at a later point: at this stage, it is sufficient to note that counsel for Orange described the statement as “false”).

The second alleged discrepancy related to a statement said to have been made by a Mr. Hans Snook, the chairman of Orange, that he was unaware of the application of Meteor, although, according to information which the evaluators said they had, Orange had tried to create a consortium with the same group of companies as were concerned in the Meteor application. Counsel said that Mr. Snook had never said anything of the sort.

When counsel for Orange returned to the topic of what he submitted was the culpable failure of the persons acting on behalf of the Director to investigate further the financial strength of the Meteor consortium, he said:-

“The objectives he [Mr. Anderson] was seeking were to excuse the manifest weaknesses in the Meteor application.”

At that point, counsel on behalf of the Director intervened to ask whether counsel for Orange was alleging “actual bias on the part of Mr. Anderson” . Counsel for Orange responded as follows:-

“I have alleged in my pleadings that there was bias and prejudice, and I make the point to you now, it appears that Mr. Anderson was responsible, that the Danes were responsible for this prejudice and bias. It appears that Mr. Anderson was the major man from AMI and he was the person who persuaded the Steering Group that they should not ask any searching questions about AT & T. The inference I am asking you to draw is that he and his colleagues ... and all of them are equally responsible for this, let us be clear about it, the others did not stand up against him in this decision which was manifestly wrong. I am not saying that the Irish people went along with this strategy, none of whom by coincidence, even if they didn’t agree with him it turns out that none of them asked AT & T any hard questions in relation to this issue or asked Meteor any hard questions in relation to this issue, whereas it does appear that Mr. Anderson was the leading light in making the decision, all of them were equally responsible for it my Lord ...”
“... I say all of them are responsible but it would appear that Mr. Anderson and his colleagues at AMI were the driving force in this particular aspect of the prejudice my Lord ...”
“I say that is very serious because when it came to the credibility, sensitivity and risk evaluation, their evaluation was again, I say my Lord, manifestly prejudiced. It dredged up two untruths about Orange and said that on that account, Orange’s application lacked integrity. In those circumstances, I in no way minimise the importance of the Anderson Management International approach to my clients in this matter.”

Counsel then went on to deal in considerable detail with one of the four topics referred to earlier, i.e. the “strategic alliance” of Meteor with An Post. Having emphasised that there were no formal contractual relationships in being between Meteor and An Post which would, as he urged, justify the use of the phrase a “strategic alliance” , he went on to refer to an expression used in the evaluation report which was to be the subject of much debate both in the High Court and in this court, i.e.:-

“moreover Meteor has given its application the Irish touch , notably through the expected strategic alliance with An Post ...” . [Emphasis added]

Counsel went on to submit that the evaluation of the marketing strategy of Orange and Meteor respectively had been conducted in an unreasonable way and in a way which evidenced “prejudice and bias” against Orange. In particular, he cited this passage from the evaluation report:-

“Although Orange has a detailed description of its communication strategy consideration of the possible reception of the Orange name in the Irish market is lacking.”

Having suggested that this appeared to have emanated from Denmark, he added:-

“It is clear evidence of a highly subjective and prejudiced observation with no backing of a factual kind to justify it. And it is the obverse of the Irish touch ...”

Counsel returned in his opening to the issue of handset subsidies to which I have already referred. At this point, he was dealing with the way in which Orange’s proposal, deriving from the handset subsidies, to have a binding period of twelve months, was dealt with in the supplementary analyses which formed part of the third phase of the evaluation process. The report at this point was addressing the possibility that the Orange proposal might be in conflict with EU Regulations on competition and might also not be in accordance with standard operating procedures outside Ireland. The conclusion arrived at in the evaluation report was that

“- Orange’s proposed bundled tariff packages combined with an initial binding period of twelve months apparently do not conflict with any EU regulation

- Orange’s proposed bundled tariff packages combined with an initial binding period of twelve months apparently follow the practice as used by the two existing Irish GSM operators
- Looking at experience from other mobile markets with a high penetration handset subsidies may be adequate if a third operator has to penetrate the market, but in relation to ordinary residential users, an initial binding period of twelve months can hardly be considered as standard operating practice outside Ireland.”

The terms “bundled” or “unbundled” should be defined at this point. In the case of an unbundled subscription, the subscriber pays for access to the network only (usually on a monthly basis) and then is charged for each second or minute, as the case may be, of use of the phone in a month. This is analogous to the conventional billing methods used for non-mobile phones. A “bundled package” is a subscription package: the subscriber pays for both access to the network and the use of a certain number of minutes on the network each month. The subscriber then pays the appropriate rate per second or per minute after the number of bundled minutes paid for has been used up.

The evaluation report concluded that the Orange proposition seemed to have no conflict with the present Irish practice except for the fact that the customer could not buy an ordinary unbundled package. Meteor, in contrast, offered one unbundled package, two bundled packages and a prepaid package. The report concluded that, compared to Meteor’s proposition, Orange offered less flexibility. The report also concluded that complaints under the competition or consumer regulations as to Orange’s combination of a bundled package, substantial handset subsidies and a twelve month’s binding period, might be justified. It concluded, however, that

“a final answer to the legitimacy of Orange’s proposition outlined
very briefly in their application will require information at a high
level of detail.”

Counsel commented that what he described as this “misguided legal analysis together with misguided purist competition theory in a highly competitive market” was remarkable.

The system by which awards or scores were given to the individual segments of the bids of Orange and Meteor has already been referred to. The marks allotted to that part of Group A dealing with tariffs were given a weighting of 20%. The specific indicator within that group described as “commitments and price development” was given a weighting of 45%. As a result, 9% of the marks of the whole competition were attributable to that particular indicator, “commitments and price development” . It is important to note in this connection that the weightings of 45% in relation to “commitments and price development” was not determined by the Steering Group until after the two bids had been received and opened. Counsel submitted that the court should draw the inference that

“the weighting was established by a group of people who already knew its consequences for the Orange application.”

This, counsel for Orange urged, had not been signalled in any way by the tender documents and was manifestly unfair and unreasonable.

Returning to a topic which, as already noted, he had dealt with earlier in his opening, counsel criticised the importance attached in the marking system to the relative experience of Meteor and Orange in the Irish market. Counsel continued:-

“I would say, my Lord, that that goes not simply to irrationality, but also to prejudice. Because, whenever that group sat down and worked out whatever they meant by experience in the Irish market, it could only have been done in circumstances that they would have already the Meteor and Orange bid and that they knew that this new criterion was one which Orange was unlikely to meet in so far as it offered no experience of the Republic of Ireland market.”

Counsel also drew attention to a paragraph at p. 10 of the evaluation report which he said was clearly erroneous and which was as follows:-

“[Orange] seems to view the network (in) the Republic of Ireland as an essential part of its present DCS 1800 networks in Great Britain and Northern Ireland and has proposed no ownership based consortium with Irish or other partners. Furthermore, no intentions to float the shares of the company on the Irish stock exchange have been expressed in the application nor are there any commitments to otherwise expand the ownership.”

Counsel said that this statement was completely at variance with what the evaluators had been told at the oral presentation and added:-

“That is wholly unsustainable as a claim and shows again a biased and prejudiced attitude.”

He also made the following comment on that aspect of the evaluation report:

“That is not just simply statements of observation of fact, that is observation of fact with an edge to them, that somehow we were effectively colonists in Ireland importing a service which was an extension of a UK service and that we proposed to ignore Ireland economically and simply to establish a third mobile telephony service, as though the Treaty of 1921 or 1922 had never been signed.”

Counsel then went on to refer to the shredding of documents which had taken place during the evaluation procedure and said:-

“Yesterday, my Lord, I conceded that there could not be a presumption of unreasonableness, but I now state as my submission to the court that there can be no presumption of reasonableness in relation to a process which is deliberately made opaque and not amenable to query. The court has ruled that I am not entitled to call evidence and, presumably, that I am not entitled to call for cross-examination people who made the decisions in question and I am bound by that ruling. Accepting it as I do, my Lord, I submit to this court now that in so far as the reasoning process has been deliberately shredded or made inaccessible by making it an oral matter, in which every step was taken with the unwished for exception of the three flip charts now produced, every step was taken to prevent anybody from having access to the reasoning process thereafter, save in so far as it is reflected in the evaluation report.”

(The reference to the “flip charts” is to two further affidavits of discovery, which had been filed and opened to the court by counsel for the Director, who intervened for that purpose at this point in the opening submissions by counsel on behalf of Orange.)

Counsel for Orange also reiterated that the manner in which the marks were weighted after the bids had been opened and examined was calculated to give rise to what he described as “a prejudiced result” .

Counsel then went on to say that he was not in a position, nor could he reasonably be expected to be in a position, to provide the court with evidence of biased or prejudiced motive. He submitted that he was entitled to adduce evidence which tended to demonstrate that what was done had no explanation or justification other than bias or prejudice, however motivated and, secondly, that what was done was not conformable with ordinary practice as internationally understood for the conduct of competitions of this kind.

Having referred to the fact that she was very conscious of the limits which she had placed on the entitlement to adduce evidence and on the agreement of the parties that it would be appropriate to adduce oral evidence in relation to bias and prejudice, the learned trial judge asked counsel for Orange whether there were other areas in respect of which he were going to bring evidence. Counsel replied that, if the onus was on him to exclude other reasonable explanations for circumstances in question other than bias or prejudice, he was entitled to adduce oral evidence tending to negative the existence of any such explanations.

That concluded the opening submission of counsel for Orange. I have taken the course of summarising it in some detail, because of the unusual circumstances which arose in the present case. First, the relevant statute gave little guidance as to the scope of the appeal before the High Court and, as already noted, at an earlier stage, this had necessitated detailed submissions to the trial judge and a reserved judgment by her. Secondly, again as already noted, there were no rules of court in existence prescribing the procedure to be followed on the hearing of the appeal. While my summary of the lengthy opening of the appeal by counsel for Orange has been necessarily abridged and, in particular, omits much material in relation to issues which were not pursued on the appeal in this court, I think it helps to identify the issues which were of importance both in the High Court and in this court and the manner in which the proceedings evolved, if that is an appropriate phrase, in the High Court.

Three witnesses were then called to give evidence on behalf of Orange. Two were independent experts with knowledge of the regulation of the telecommunications industry in the United Kingdom. Their evidence is dealt with in more detail in the later section of this judgment. The other witness was Mr. Jonathan Rose, the public relations manager for Orange in Northern Ireland, who gave relatively brief evidence concerning certain coverage in the media of the tender procedure. No other officers or employees of Orange gave evidence.

Four members of the director’s staff, including Mr. McQuaid and Mr. Anderson, then gave evidence on behalf of the Director. Two independent experts, also with knowledge of the regulation of the telecommunications industry, gave evidence on behalf of Meteor. No officers or employees of Meteor gave evidence. Again, this evidence will be dealt with in greater detail at a later stage in the judgment.

Having heard closing submissions from counsel, the trial judge delivered a lengthy and detailed reserved judgment on the 4th October 1999. She found in respect of a number of grounds that the award of the licence by the Director to Meteor was vitiated by bias and/or unreasonableness. She rejected, however, a number of grounds relied on in this context and, in addition, said that

“it is not my view that there was deliberate bias of a subjective nature on the part of the evaluators who gave evidence in the course of the hearing.”

She also found that the reasons given by the Director for refusing to award the licence to Orange were not adequate in law, having regard to the provisions of the 1983 Act. Her judgment concluded:-

“I therefore make findings in favour of Orange on the claims made by it against the refusal of the Director to grant it a licence, and I remit the matter back to the Director for her further consideration.”

From that judgment and order, the Director and Meteor have now appealed to this court, save in so far as the judgment of the trial judge contains findings in their favour. Orange have cross appealed against the preliminary ruling by the trial judge as to the nature of the evidence she would allow to be adduced and the finding by her that there was no deliberate bias of a subjective nature on the part of the evaluators who gave evidence in the course of the hearing.

2. The Evidence in the High Court

(a) Documentary Evidence

(i) Tariffs
Reference has already been made to some aspects of the tender document which were relevant to this issue. It should also be noted that clause 1.6.2. provided as follows:-

“The Director intends to incorporate proposals made in the successful application into the terms and conditions of the service licence to be granted.
“Any discussions for this purpose with the successful applicant prior to granting the service licence will be held in Dublin. Such discussions will take place solely on the initiative of the Director.
1 “The sole purpose of conducting such discussions will be to ensure that the indications given by the applicant in its application and which form the basis for selection are in conformity with the terms and conditions stipulated in the service licence. Thus it will not be possible for the applicant to modify the indications given in the application.”

Under the heading “tariffs” , at clause 3.4, the document said:-

“The applicant shall provide details of the proposed tariff system based on the services mentioned in para. 3.2 above. This shall include the rationale for arranging the tariff system in the manner proposed, including ...”.

There follows six sub-paragraphs, (a) to (f) and a concluding paragraph, already quoted as follows:-

“(g) At this stage, applicants should indicate any binding commitments on tariffs, including any reductions predicated on more favourable interconnection charges or other commercial conditions and downward trends over the licence period.”

Section 2, Part 7 of the tender document sets out certain tables which each applicant had to complete. Table 7.8 was described as “maximum tariffs” and was subdivided into a number of headings: the applicant was then to insert the relevant figures over a projected period of 15 years.

There was annexed to the tender document a draft licence described as a “indicative draft” . Article 7, under the heading “charges to customers” stated that

“the provisions of Part 5 of the Schedule shall have effect in relation to
calls originating and terminating in the State.”

Part 5 of the Schedule under the heading “charges to customers” contained a sub-heading:-

“Further details to be inserted following examination of commitments made by successful applicant.”

In the question and answer and procedure already referred to, at question 12, the following question and answer appear:-

“Q: Do the maximum tariffs indicated in table 7.8 form a binding commitment over the period of the licence?
A: Yes, but the maximum tariffs can be adjusted according to the actual inflation rate in relation to the general assumption of a 3% inflation per year.”

In the course of the Orange bid, at paragraph 3.4, it was stated

“the tariffs described above do represent a significant discount to the tariffs currently offered by competitors, but also to their expected tariff at time of launch (Orange anticipates that the current operators will reduce tariffs in the months leading up to the launch of the third entrant). If our expectations were proven false, we would adjust our proposed tariff policy in light of our competitors’ actions, with the objective of avoiding a price war but maintaining a differentiated offer ...”.

Then, under the heading “COMMITMENTS ON TARIFFS REDUCTIONS” , the following appears:-

“At this stage, it is not appropriate or practical to give any binding commitments on tariffs (including maximum tariffs). However, the applicant considers that the tariffs will evolve over time in response to market initiatives and competitive positioning ...
“Given our experience, particularly from a competitive point of view and as a stimulant for competition, the applicant wishes to retain its ability to respond dynamically to changes in the market and may revise its tariff plans accordingly.”

In response to a question addressed to them by the secretary to the steering group, Orange stated

“the tariffs quoted in the bid are based in part on our assumptions of the incumbents’ response to our entry, specifically that they will reduce their tariffs ahead of that date. Should these forecast reductions fail to materialise, it may be prudent that our differentiated offer, which will be designed to meet the needs of our customers, can be set a level above that quoted in the bid, while at the same time presenting customers with a highly attractive price proposition and placing Orange in an effective competitive position.”

The Meteor bid, included four different types of monthly subscription plans, called “bronze”, “silver”, “gold” and “platinum” respectively. At p. 3.25, it was stated that
“The bronze plan provides a low cost of entry tariff plan for current subscribers and non-subscribers with infrequent usage demands ... the bronze plan was designed with low monthly rates of only IR£9. This package does not include any bundled minutes, and its per minute charge has been set at a higher rate to offset the low access charge ...”

At p. 3.29, under the heading “BINDING COMMITMENTS ON TARIFFS” , the following statement appeared:-

“Based upon Meteor’s objectives to raise Ireland mobile penetration rates through affordable, innovative service, the company has designed a service offering described previously in Exhibit 3-12. Upon winning the licence, Meteor is committed to offering a minimum of these services at prices not to exceed those listed in Exhibit 3-12 for the first year following commercial launch ...
“While Meteor is prepared to make this commitment, the company also recognised that competitive pressures may necessitate even further price reductions in the first and later years ...”

The transcript of the oral hearing records one of the AMI representatives putting the following to an Orange representative, Hans Snook:-

“Now you are giving a lot of intentions and you are also stating that it is a dynamic market, so that shouldn’t be your answer to my question, because it is already stated there, but still I would like to pose the question to you, if you can elaborate in excess of what you have already written on your reasoning for giving so many intentions and I would say comparatively less on the committing side.
“HS: I want to speak just generally, quickly to that and let someone else take the specifics ...
“I think it is very, very difficult, particularly when you are so far ahead of launch and not knowing what exactly is going to change in the market place, to come up with, very specific tariff propositions ... so from that perspective, I suppose that is why we have lots of intentions but maybe we are short on some specific elements. All we can say that we will commit to is that we will be competitive. It will be the best value for customers in the market, but exactly what that means, on the day that we launch, I think it is very difficult to say ...”

Another member of the Orange team added:-

“... it is simply too early to make a commitment that these tariffs would be the tariffs that we launch with, but it is our firm intention that if the market moves in the way that we have said we anticipated moving within the bid, that we will launch with tariffs which offer something very similar to this, as a competitive offering, to our customers.”

In the written representations furnished on behalf of Orange to the Director following her notification of her proposal not to award Orange the licence, the following appears at para. 1.1.1 under the heading “Tariffs”:-

“The summary report on individual applications (the summary report) issued by the Director dated 6th July 1988 stated that our application did not provide any binding commitments on tariffs and tariff development. This had an impact on the scoring of the tariffs dimension of our application.
“Orange would now like to confirm that the maximum tariffs which were included in table 7.8 of its application are to be interpreted as binding maximum tariffs which are offered to all customers and which will not be exceeded over the period of the licence other than to be adjusted in accordance with the actual inflation rate.”

In response to a written question from the evaluators in the same terms as that addressed to Orange, as to whether Meteor were offering binding commitments on tariffs, the response was as follows:-

“To this extent, Meteor confirms that the tariff decreases listed in items
23 -25 are to be considered part of our binding offer. However, as indicated in Volume 8, section 8.2 Meteor is prudently requesting that the ODTR include terms and conditions in the licence for DCS 1800 and GSM mobile telephony service which would allow the third mobile operator to petition for adjustments in the maximum tariffs. Meteor believes that some level of flexibility is in the interests of all parties involved and is anxious to work with ODTR to define such terms and conditions.”

In the final evaluation report, the following conclusions were reached:-

“The conclusion is that there are no binding commitments on tariffs from Orange whereas Meteor has set out a proposed falling price development with commitments.
“Therefore Meteor is awarded a “B” and Orange is awarded an “E”.
(b) Bonus to Distribution Channels

Under the dimension, “marketing strategy” which had a weighting of 10%, there was an indicator of “bonuses to distribution channels” which was weighted at 8% of the total 10%. The evaluation report awarded Orange a B in respect of this indicator and Meteor a C. This represented a difference between the scores of 0.008 (in percentage terms in relation to the entire competition, 0.16%).


In table 7.11 of the tables already referred to, operating costs were to be filled in under a number of headings, including “Bonus to distribution channels” , “marketing costs” and “personnel and social security costs”.

At para. 5.2 of the final evaluation report, the following appears, under the heading “Bonus to Distribution Channels” :-

“In its business plan, Orange has budgeted for a significantly higher bonus to distribution channels than Meteor although Meteor plans for more subscribers than Orange, see figure 7. However, supplementary investigations , in particular on the itemisation of the sales staff, tend to close some of the gap between the two applicants.”

There is then set out a graph illustrating the gap referred to and the Report, under this heading, concludes

“on the basis of the considerably higher bonus budget Orange is awarded a “B” and Meteor a “C”.

(It should be noted that, in response to a query from the secretary to the steering group, Meteor had stated that

“all employee costs have been included in line 48, personnel and social security costs”.)


(c) Ireland part of the Orange UK network

Reference has already been made to the passage from the evaluation report cited by counsel for Orange during the course of his opening submissions. The report also stated (under the heading the basic philosophy behind each application )

“Orange seems to opt for a differentiator type of strategy in which Ireland is regarded (sic) to be part of Orange’s DCS 1800 network in the UK and Northern Ireland. This is supported by the fact that the Orange brand from the UK is going to be used and that appealing one network tariffs are suggested and thereby no surcharges for calls to Northern Ireland and to the UK will be charged. This is an attractive proposal in relation to inward and outward roaming.”


(d) Experience of Irish market


Part 5 of the tender document under the heading “Managerial Aspects” set out matters relating to competence and experience with which the applicants were expected to deal. There was no mention of experience in the Irish market as such. However, in the executive summary contained in Part 1, the following appears:-

“The description shall include the following items:

(a) The experience of the applicant and any connected entities in the field of telecommunications within and outside Ireland and their participation in other mobile communications projects.”

(e) The Belgian licence and the statement by Hans Snook

In the final evaluation report, under the heading “Track recording” it was stated that the aim of this process had been

“to browse for information which may shed light on the consortium members or on the information given, as (sic) to contradict the written information in the application or the information given at the oral presentation.”

In relation to Orange, the following comments were made:-

“no information seriously compromising the information in the application has been found. But we have found examples of minor discrepancies between facts and the statements by Orange:

(i) The Belgian licence application

The Orange application contained the following statement:-
“The company is also part of consortium groups which made applications for DCS/GSM licences in Belgium and Switzerland.”

The official record of the licence in question to Orange in Belgium was as follows:-
“Licence awarded in pursuance of the royal decree of 24th October 1997 concerning the setting up an operation of DCS 1800 mobile phone networks.
“The royal decree of 24th October 1997 concerning the setting up of an operation of DCS 1800 mobile phone networks published in the official Belgian Law Gazette of 5th December 1997.”

Some explanation of the technical aspects of this issue should be given at this point. The DCS 1800 spectrum was clearly available to Orange under this licence and would also be available under the Irish licence in issue in the present proceedings. (According to the information memorandum supplied to tenderers by the Director,
DCS 1800 technology was less effective in providing coverage in rural areas compared to GSM.) As noted the Belgian licence in its terms did not give any access to the GSM spectrum. The evidence was, however, that they had access to what was called the GSM extension band (E-GSM): the evidence was also to the effect that this band, unlike the primary GSM (P-GSM) spectrum, was not usable at the time of the hearing in the High Court, but could be potentially usable in the future.

(b) The statement by Hans Snook

Hans Snook was recorded in the oral presentation as saying:-
“Hutchinson is a very very large conglomerate based in Hong Kong with lots of cash reserves. They decided, however, to make a financial investment in Western Wireless PCS. Western Wireless PCS is a specific entity created to roll out digital networks in part of the United States where they have been licensed. Hutchinson, you should note, also has 5% in Western Wireless, the parent company, and it is Western Wireless the parent company that is making this bid with Meteor or through Meteor in Ireland. Hutchinson has no representation on the main board of that company. In fact, we don’t even know what that company intends to do. We were quite surprised when we saw Western Wireless making a bid for this market. So if Western Wireless should win this licence, there is absolutely no benefit to Hutchinson at all, because its interest is purely in the US side of the business. I also happen to be a board Director on Western Wireless PCS. The reason I was asked to advise them and guide on building digital networks in the United States and the markets in which they operate, so I am very very surprised to see them making a bid here. It was something that we are not aware of so I just want to say again to make it clear that there is no two way advantage to Hutchinson no matter who wins. It is important for Hutchinson that Orange wins this bid.”

(f) The summary report in the case of Orange

As already noted, in addition to notifying Orange and Meteor of the result of the competition, the Director issued to each of the applicants what was called a “Summary Report” . That furnished to Orange stated that the application submitted by them was generally of a high standard and was considered “credible”.

However, under the heading “Tariffs, marketing strategy and services” , the report stated that Orange’s application was “not particularly strong on tariffs” . One of the matters mentioned was that it did not, in view of the Director, provide any binding commitments on tariffs and tariff development. The report concluded that

“there are a number of areas where the score achieved could have been improved by the provision of additional information or by an alternative approach. Some examples include:

(g) Written representations on behalf of Orange

In their written representation delivered pursuant to s. 11 (2b)(g) of the 1983 Act, it was stated on behalf of Orange that

“By the Director’s own standards ... Orange is considered eligible for a licence. Nevertheless, the Director’s appraisal of Orange’s licence had caused the Director to identify certain areas for enhancement in Orange’s application and it is the purpose of the representations which follow to address these with a view to convincing the Director to grant Orange a licence.”

There followed detailed representations in relation to the following areas:-

(1) Tariffs, marketing strategy and services,
(2) Acquisition of sites and permissions and environmental issues,
(3) Financial aspects and experience/expertise,
(4) Performance guarantees.

It has already been pointed out that, in this document, Orange confirmed that the maximum tariffs were to be interpreted as binding maximum tariffs.

Some passages in this document were undoubtedly intended to do no more than clarify aspects of their bid which Orange felt might have been misunderstood by the Director. Others introduce new material, such as an enhancement to its billing system ( “the Orange value promise” ) and the standard form of contract with their customers in Great Britain and Northern Ireland, which had not been previously available to the Director.


(b) Oral Evidence

Mr. Robert Young, the first independent expert witness, to give evidence on behalf of Orange, was a Director of the competition and regulation unit within the management and consultancy practice in London of Price Waterhouse Coopers. During the prime ministership of Lady Thatcher, he was a member of her policy unit which dealt with competition issues arising out of proposed privatisations. Subsequently, he was appointed to the Monopolies and Mergers Commission and participated in 17 enquiries conducted by the Commission. In 1993 he joined Coopers and Lybrand, concentrating on cases involving competition policy, 13 of which were concerned with the telecommunications industry. He had also been involved with other statutory regulators and advised the local authority in St. Petersburg in Russia on the regulation of the local telecom operator. He had also given advice in relation to the operations of a telecommunications company in Sweden.

Mr. Young said that he had read the principal documents in these proceedings. He said that, in his view, the fixing or adjustment of the weightings of the indicators after the bids were opened was “astonishing” and not best practice. He also said the issue of handset subsidies was an important issue in mobile telephony and that its absence from the indicators decided on after the bids had been opened was “of significance” . He also said that a statement that the evaluation had been conducted in accordance with the methodology and procedures laid down in writing and approved prior to the closing date for submissions of applications was not correct.

Mr. Young further said that he was not aware of any case in which the weightings of indicators had been either moved or determined after the bids had been read. This was based, he said, on the information that he and his colleagues had been able to gather in seven countries, i.e. Israel, Peru, Denmark, Norway, Sweden, Belgium and The Netherlands.

Mr. Young said that, in his experience of competitions and applications to regulators, he had never come across a situation similar to that which had arisen in the present case where a consortium member had withdrawn on the day of the application. He thought that, in the present case, the withdrawal of such a prominent “player” in telecommunications as AT & T was “particularly significant” . He said that he would have expected the evaluators, in those circumstances, to explore why AT & T withdrew. While that might be regarded as the receipt of new information which was not permissible under the rules of the competition, he said that, if that were a concern, it would have been preferable for the Director to consider suspending the process and inviting the parties to reconsider the bids.

As to the statement in the evaluation report that the applicant seemed to view the network in the Republic of Ireland as an essential part of its networks in the United Kingdom, Mr. Young said that he had found no material in any of the documents which supported that view.

As to the “strategic alliance” An Post, Mr. Young said that there was no concluded agreement between Meteor and An Post and, had he been advising Meteor, he would have urged them to have a concluded agreement with An Post conditional only on the award of the licence. Nor were the merits of the An Post distribution plan thoroughly or objectively assessed.

Mr. Young said that he thought the reference to the “Irish touch” was irrelevant and, in any event, “condescending”. As to the question of handsets subsidies, he thought that a competent evaluator would have recognised their significance and made sure that both applicants - and not simply Orange - were given the opportunity to explain what the plans were in relation to handset subsidies.

Mr. Young said that the method adopted in the evaluation procedure of comparing the tariffs proposed by Meteor and Orange, would not have given the evaluators an appropriate comparison between like and like. He said that this should have been evident to the evaluators and, if it was, and they failed to draw it to the attention of the Director, that would been indicative of bias. Similarly, if they drew it to the attention of the Director, that would be indicative of bias on the part of the Director.

Mr. Young also expressed the view that the failure to explore the strength of the strategic alliance with An Post was also indicative of bias. He contrasted this with the treatment of the handset subsidy issue, which would be easy to quantify, but was ignored. He also said that he could not understand why Meteor were awarded a higher mark for their understanding of “local issues” since they were not defined and it was not clear why it resulted in a significantly higher mark for Meteor under that heading. Nor did he understand why, in relation to financial guarantees, where Orange offered none and were awarded the lowest mark available, Meteor were awarded the highest mark.

Mr. Young said that, on reading the documents, he was unable to detect any occasion on which Orange was given a mistaken benefit in terms of the marking and that that had driven him to the conclusion that there was bias or prejudice “somewhere in the evaluation” .

Cross-examined on behalf of the Director, Mr. Young agreed that his only University degree was in languages, that he had no engineering or accountancy qualifications and no technological expertise in mobile telephony. He also agreed that he had never worked in a telecom regulator’s office or on behalf of any telephone regulator. He agreed that, unlike AMI, he had never designed, marked or evaluated a mobile phone competition such as was under consideration in this case.

Mr. Young did not agree with the suggestion put to him in cross examination that, in this type of competition, as opposed to the auction competition, it was inherent in the nature of the competition that the weightings given to the different dimensions would not be disclosed in advance to the bidders, since it would lead to bids being deliberately tailored, whereas the real object of the competition was to discover the actual strengths of the bidders under different headings. Nor did he agree that the wording of the tender document would have indicated the importance that would be attached to commitments to binding tariffs.

Mr. Young also said in cross examination that, while he thought the document which he had read indicated bias or prejudice at work in the evaluation process, he was not in a position to say who amongst the twelve or more persons who were engaged in the evaluation process on behalf of the Director was guilty of bias or prejudice or what the reason for such bias or prejudice was.

Cross-examined by counsel on behalf of Meteor, Mr. Young agreed that, while he had said in his direct evidence that the weighting of indicators after the bids had been opened and read was not in accordance with “best international practice” , he was unable to identify any tender documentation relating to the seven countries he had referred to which gave more information on this matter than the information provided to applicants in the Irish tender document.

Mr. William Wigglesworth, the second independent expert witness to give evidence on behalf of Orange, was an independent advisor on telecommunications regulation. He had his own consultancy company and worked with other groups advising governments, regulatory bodies and other organisations on telecommunications regulation. He had become such an advisor on his retirement from the office of telecommunications in the United Kingdom. He had been deputy director general of the office of telecommunications in England (known as Oftel), the regulatory body in the United Kingdom. He had been involved in the assessment of all the competition, that Oftel was involved in, but said that he was not an expert in conducting such competitions: his forte was “setting the regulatory scene” .

Mr. Wigglesworth said that he had read the principal documents in the proceedings as well as some of the transcripts of evidence.

Mr. Wigglesworth said that the adjustment of the weightings of the indicators after the bids were opened was “less than wholly desirable” . He said that, in accordance with the advice from the European Commission to national regulatory authorities, all criteria should be fully revealed to the parties. He said that in particular the weighting subsequently attached to tariffs was “surprising and unusual” and could not have been predicted. He said that, in accordance with “best practice” that should have been brought to the knowledge of the applicants in the tender documents. He said that it reflected an assumption that it was sensible to enter into binding commitments for some years ahead in a market with fast developing technology where the future development of the market was uncertain. It also indicated a strong preference towards a low price approach to the market which might not be a sensible market entry strategy for a third operator. He said that Orange, in declining to give any binding commitment on tariffs, had adopted a “very sensible approach” to a rapidly evolving market situation.

Mr. Wigglesworth said that he was “amazed” that notes or documents generated at the working groups were shredded. The fact that the Director was a party to the shredding, he said, was “very surprising and ... reprehensible” . Mr. Wigglesworth also said that he was “very surprised” that the Director had not seen fit to investigate why AT & T had withdrawn from the Meteor consortium and that the investigation on behalf of the Director was confined to ascertaining who would take up their 10% share. He said that this appeared to him greatly to damage the credibility of the Meteor consortium and that if he had been the regulator he would have wanted to review the situation to see whether the application was still valid.

That concluded the direct evidence of Mr. Wigglesworth. Before cross examination began, counsel on behalf of Meteor objected to the admissibility of the evidence on the grounds that, even if were accepted by the court, it could not amount to evidence of bias and, accordingly, was excluded having regard to the earlier ruling of the trial judge. The trial judge ruled that the evidence was admissible on the ground that it might, in addition to the evidence of Mr. Young, constitute evidence of bias, including what had been referred to as “institutional bias” .

Cross-examined on behalf of the Director, Mr. Wigglesworth agreed that the evidence had demonstrated that in the case of a number of recent tenders for mobile phone competitions in different European countries, the amount of information as to group weightings furnished in the tender documents had not been any greater than in the Irish tender and in some cases was less. However, he also said that obviously these countries were “not perfect” in their approach. Asked to explain what the reason for any bias or prejudice on the part of the Director or the evaluators or both in favour of Meteor and against Orange might have been, Mr. Wigglesworth said there were two possibilities. The first was that Orange were not “not Irish enough” . The second was that the real intention of the Director was to ensure that the new licensee would not be too successful in the market, but would simply stimulate the incumbent licensees into improving their performance. This could explain why Orange was, as he thought, effectively cut out of the competition. Pressed as to why, if that were her intention, the new licensee was to be given what her counsel described as a “head start” in the market by having exclusive access to the DCS 1800 band until the year 2000, he replied that there were disadvantages as well as advantages resulting from this.

Questioned about the topic of binding commitments to tariffs, Mr. Wigglesworth said that the weighting attached to this indicate reflected what he called a “hidden agenda” of the Director: i.e. an obsession with the need for “low price competition” which had not been adequately signalled in the tender documents and that this was evidence of bias.

Cross-examined by counsel on behalf of Meteor, Mr. Wigglesworth agreed that his central criticism of the entire process was the fact that some of the weightings and indicators had not been specified in advance to the applicants and that this was also central to his view that the process had been vitiated by bias. He said that if it had been made clear to the applicants that the object of the competition was, as he saw it, to open the market to a low cost entrant, the possibility of bias would have been, if not eliminated, at least greatly reduced.

The first witness to give evidence on behalf of the Director was Mr. John McQuaid, who was the head of the technology division in the office of the Director. He was an engineer who had worked for over two years at the engineering department of the British Broadcasting Corporation in London on television operations and maintenance. He then joined the engineering branch of the Department of Posts and Telegraphs and, on its establishment, transferred to Telecom Éireann. In 1994, he joined the Department of Transport, Energy and Communications, as it was then known, as the head of the technology division. In that capacity, he was responsible for the management of the radio frequency spectrum but was also involved in the start of the liberalisation of telecommunications. He was on the steering group of the committee for the award of the second mobile licence. He was then involved in the preparatory work for the establishment of the office of the Director and moved to the Director’s staff in the middle of 1997.

Mr. McQuaid said that he had been asked by the Director to act as chairman of the steering group which was responsible for the overall conduct of the competition with assistance from consultants. The consultants were selected under the European procurement procedure: an advertisement was first placed in the EU journal, a number of bids received and adjudicated on and ultimately Anderson Management International of Copenhagen were selected as consultants. He said that the office did not have all the expertise that was required to run a competition of this kind and that, in any event, the steering group wished to have the assistance of consultants of some standing who had carried out competitions of this type before. Nor did his office have the sufficient human resources to undertake this work themselves. It was decided to have a comparative evaluation or “beauty contest” rather than an auction, as the objective was to stimulate competition in the mobile phone market so that “better service, choice and value for money” would be offered to the consumer.

Mr. McQuaid said that the tender document was designed by the steering group in consultation with AMI.

Mr. McQuaid then gave a summary of the initial stages of the tender procedure culminating in the reception of the bids from Orange and Meteor. He said that he had no personal connection whatever with either of those companies. Nor had he any idea at that stage of what the outcome of the competition was going to be or any views as to what it should be.

Mr. McQuaid then gave evidence in detail as to the manner in which the steering group proceeded with the evaluation of the bids. He said there were twelve evaluations sessions in all, one corresponding to each of the twelve dimensions. Each of the sessions was chaired by a representative of AMI and contained representatives from both AMI and the Director. At these meetings, flip charts or white boards were used: the indicators for the particular dimension in question were discussed and the indicators decided and written up on the flip chart. Each of the indicators in turn was then considered and evaluated until such time as the working group reached a consensus on what the score of the indicators should be. It was scored either A, B, C, D or E which corresponded numerically to 5, 4, 3, 2 and 1. The sessions lasted typically from two to three hours. Mr. McQuaid said that he attended nearly all the sessions himself, so as to ensure that they were being conducted in a broadly similar way. He said that the key decisions at the evaluation sessions were

(a) the identification of the indicators,
(b) the score for each applicant against each of the indicators;
(c) the weighting to be attached to each of the indicators, such that the weightings would total 100% of the dimension associated with the indicators.

One example of his subsequent adjustment in scores given by Mr. McQuaid was in relation to “guarantees from backers” , one of the indicators in respect of the dimension described as “solidity”. He said that at the original working group meeting on 7th May, Orange was awarded a D and Meteor an E for this indicator, but that following a telephone conversation between Michael Thrane of AMI and himself sometime between 19th and 27th May, it was agreed that these scores were too low as each applicant had demonstrated some support from financial backers. Accordingly, each of them was increased by one grade, Orange being awarded a C and Meteor a D.

Mr. McQuaid also said that, also arising out of the “solidity” dimension, the indicator “financial strength of the consortium” was re-marked. Originally Meteor had been scored with a “D” and Orange with a “C”. However, he said there were two concerns when the steering group came to review the scores. First, it was thought that they had not taken sufficient account of the weaker members of that consortium and had unduly concentrated on the 60% majority partners, Western Wireless. Secondly, they had looked at the financial profiles in the context of the service industry generally and had not had sufficient regard to the somewhat different financial profile in the telecommunications industry. He said that the working group considered that the second consideration should have led to Orange being awarded a “B” rather than a “C” and that, taking account of the first consideration, Meteor should be awarded a “D” to take account of the weaker members of the consortium.

Mr. McQuaid said that following this process of revision of the text of the evaluation report a meeting of the steering group was held on the 11th June to consider the final draft of the evaluation report. At that meeting, the steering group collectively agreed with the scoring in the evaluation report. He said that the Director was kept briefed from time to time on the progress of the competition and that he provided a number of memos to her on its status. Following the finalisation of the evaluation report, he said that he produced the memorandum for the Director recommending that Meteor be ranked first and Orange ranked second, to which reference has already been made.

As to the oral presentations, Mr. McQuaid said that each of these lasted for a period of three hours, the first hour being available to the applicants to make a presentation of their bid and the second hour being taken up with questions to the applicants which had been drawn up beforehand and available to the applicants. The remaining part of the time was used for further questions from the evaluation team. He said that identical procedures were adopted at both oral presentations and that it was stressed on behalf of the Director that only materials supplied in the bid documents would be taken into account: the purpose of the oral presentation was to facilitate the evaluation team in gaining a thorough understanding of the application and also to clarify key issues.

Mr. McQuaid said that, so far as disclosing the weightings of the dimensions and indicators to the applicants in the tender documents was concerned, the view was taken that it was sufficient to publish the five group weightings. He said that the view both of the director’s staff and AMI were that if any more of the weightings were disclosed in advance, there was a danger of the bids by the applicants being tailored so as to gain the highest score and that the bid documents would, in the result, be significantly less informative from the point of view of the evaluators.

Mr. McQuaid said that, after the tender document was issued and before the bids were received, AMI produced the “Reader’s Guide” in which were set out indicators or proposed indicators against each of the dimensions. These were not “set in stone” , he said and ultimately they decided on 69 indicators which corresponded “very closely” to what was in the Reader’s Guide.

Mr. McQuaid said that the reason for not fixing the indicators before the bids were received was that this would have unduly fettered the discretion of the evaluation team. Had the indicators been fixed in advance, the evaluators might have found that, in the case of a particularly imaginative proposal, there was no relevant indicator. He said that the technology in this industry was moving very fast and that it was, accordingly, important to have some degree of flexibility in this area.

Mr. McQuaid said that it appeared to the evaluators that, having regard to the terms of the tender documents and the contents of the bids, Meteor had given binding commitments on tariffs, but Orange had not. In these circumstances, the evaluators decided that, while it was not included in the Reader’s Guide, the process of evaluation would be significantly clearer if a separate indicator in respect of commitment to tariffs and development were included, rather than endeavouring to “factor in” the binding commitments aspect in the other indicators. He said that the commitment element was very important in relation to tariffs and hence it had a very high weighting.

Mr. McQuaid said that he understood the expression the “Irish touch” , which had originated with AMI, and similar expressions in the evaluation report, to refer to the fact that Meteor appeared to have paid more attention to how they would establish their network on the ground in Ireland and distribute their products and that, in that context, the proposal of a strategic alliance with An Post was relevant. He said that the Meteor bid indicated that they had made initial contacts on the ground with a number of major owners of sites and familiarised themselves with the planning regimes. He said that the Orange proposals were not specific in these areas. He said there was no question of there having been any bias on the part of the Director of staff in favour of a company with a higher degree of Irish ownership or more “Irish” than Orange.

As to the representations received from Orange under the statutory procedure subsequent to their being notified of the proposal to refuse to grant the licence, Mr. McQuaid said that all the representations made by Orange were carefully considered and a written individual response given in the case of each representation. He said that he himself had in no way pre-empted the decision that would have to be arrived at when the representations were actually made.

Mr. McQuaid said that there was no bias on the part of the Director or on the part of himself or any members of the evaluation team or on the part of their consultants. He had approached the competition in an objective way and with a considerable degree of precision. He was not aware of any reason or motive for being otherwise than objective. He also said that he did not accept the charge that he or other members of the Director of staff had deliberately disposed of personal notes in order to avoid the discovery process and that in fact the Director’s staff had gone to a great deal of trouble and effort to record the process of the competition.

Cross-examined on behalf of Orange, Mr. McQuaid agreed that there was nothing to suggest that a “low cost” competition was being run: the object was to introduce a third competitor in the mobile phone market in Ireland which would result in downward pressure on prices and increased choice in service and quality for consumers.

Mr. McQuaid was cross-examined at great length as to the weighting of 45% given to the indicator “commitments and price development” within the “tariffs” dimension. It was repeatedly put to him that the importance of this indicator had not been adequately signalled in the tender documents and that, in any event, Orange had given such commitments or, at the least, were in no different position from Meteor in relation to the giving of commitments. He disagreed repeatedly with both suggestions. As to the fact that this indicator had been added only after the bids were received, he said that it was a necessary part of the evaluation procedure that the indicators and the weighting attached to them were not finally decided until after the bids had been received and examined by the working parties.

Questioned as to the withdrawal by AT & T from the Meteor consortium, he said that, having regard to the 10% participation by them in the consortium, he did not regard their withdrawal as a matter of great significance or one that required the evaluators to embark on a wide-ranging investigation as to why they had withdrawn.

During the discovery process, a number of documents had been discovered by the Director which indicated changes in the drafting of the evaluation report before it was presented in its final form to the Director. These changes included:-

(a) The removal from the draft report of national flags intended to indicate the country of origin of the participants in the respective bidders, with Union Jacks indicating the British element in Orange and the United States and Irish flags indicating corresponding national interests in Meteor;
(b) Changes in the language used in the document such as the deletion of the description “unprecedented” of certain aspects of the Orange bid and its replacement by the adjective “atypical”;
(c) A change in a passage which indicated that, if Orange were to succeed, a question would have to be addressed as to whether they were eligible as a licensee to a passage indicating that the eligibility of both applicants should be addressed again before the licence was awarded.

It was suggested to Mr. McQuaid that, as the original drafts had emanated from AMI, they reflected a bias or prejudice on the part of AMI against Orange which the Director’s staff were at pains to mask by the use of more anodyne language. Mr. McQuaid rejected these suggestions, saying that

(a) in the case of the flags, the view taken in the steering group was that it was an inappropriate and unnecessary form of presentation;
(b) the alteration of the adjective “unprecedented” used by AMI to “atypical” which appeared in the final draft reflected a better understanding of the linguistic nuances on the part of the Director’s staff than on the part of AMI, which, he said, was understandable, however excellent the English spoken by the Danish experts was;
(c) the alteration in the passage as to the eligibility of Orange was rejected because the steering group were unhappy with it and not by any desire to conceal supposed bias on the part of the evaluators.

Cross-examined as to the approach of the evaluators to the issue of handset subsidies, Mr. McQuaid agreed that it seemed to have been assumed by the evaluators that Meteor were offering them. He also agreed that Orange had suffered in the marking process because, unlike Meteor they envisaged protecting themselves against the complete loss of the value of the subsidy by insisting on their customers entering into twelve months contracts. He agreed that the Meteor offer did not contain any reference to a handset subsidy as such, but it was clear that, like any other entrant into the market, they envisaged offering some form of subsidy in relation to the cost of the handsets. As to the suggestion put to him on behalf of Orange, that the supplementary analysis carried out in the evaluation report as to whether the Orange proposal for a twelve month contract was legal was an attempt to do “more damage to the Orange application, Mr. McQuaid rejected this, saying that the evaluators were merely concerned with establishing whether Orange could, as a matter of law, require subscribers to enter into the twelve month contract.

Pressed as to why the evaluation report treated the proposed strategic alliance with An Post as giving the Meteor application “the Irish touch” , Mr. McQuaid said that this expression had been used by the AMI group and, in his view, reflected the general attitude in the steering group that Meteor had done more local preparation on the ground, including their discussions with An Post, than Orange.

The next witness on behalf of the Director was Mr. Michael Anderson of AMI. He said that he had obtained a Ph.D. based on a thesis on regulations within the telecommunications field and that his first work experience had been with the Danish regulator in 1983. He was there for four years and then spent two years at the Department of Finance in charge of information technology. He then left the public service to move into a consultancy business, where he was in charge of the telecommunications aspects of the consultancy, both at the national level in Denmark and also at the international level. He left that firm after two years and established the firm called Anderson Management International. He said that that firm was a management consultancy firm specialising in matters related to assessing business cases, regulatory matters and particular assignments related to infrastructures. He said they had a special department with engineers and others who had profound technical knowledge in the field of telecommunications in general but that the firm had a particular expertise in mobile technology. The firm had advised a number of private clients, but had also undertaken assignments for the Danish, Norwegian, Dutch and Irish regulators (including, in the case of Ireland, not merely the Director, but her statutory predecessor). They had also had a number of assignments for the European Commission and the World Bank and other bodies. His firm had particular experience of mobile cellular tenders, having been consultants in Denmark, The Netherlands, Norway, Iceland and Ireland. Other members of his firm had been engaged in similar work in Eastern European countries and countries in the developing world. He had written articles on how to run mobile tenders and, specifically, had written articles on the best methods of comparing tariffs. He said that they had expertise in respect of the design and running of mobile tenders.

Mr. Anderson said that, in his experience, while it was important in the tender document to have as much information as possible for the benefit of the bidders, it would not be possible to foresee each and every indicator that would be relevant. Thus, in the present case, it would not have been possible to envisage beforehand that one applicant would provide binding commitments on tariffs and another applicant would not. There were two ways of reflecting this difference: one was by weighting each of the individual indicators relating to tariffs and the other was by introducing the new indicator as to commitments and attaching the weighting to that indicator. Both procedures were objective, in his view, but the latter was more objective. He said that he had never seen any tender document, including the Swedish tender produced by the experts on behalf of Orange, in which the weightings to be attached to different indicators were shown in the tender documents.

As to the shredding of documentary material generated during the evaluation procedure, Mr. Anderson said that, once AMI’s role in the procedure had come to an end, the documents retained on their file in Copenhagen were shredded in accordance with what he described as their “strict security procedures”, adhered to in the interests of applicants or potential applicants. When he was asked whether this had been deliberately done in order to ensure that documents would not be made available to the High Court in the course of the discovery process, counsel for Orange intervened to say that no such suggestion was being made on behalf of Orange. (It will be recalled that counsel had laid considerable emphasis on this aspect of the process in his opening submission.)

As to the withdrawal of AT & T, Mr. Anderson said that it would not have been right for the evaluators to probe this matter any further with Meteor: that might have given Meteor a chance to improve their application, which was impermissible in a beauty contest.

As to the strategic alliance with An Post, Mr. Anderson said that this would have the advantage over a chain of, for example, electrical shops, because they would not be part of the national infrastructure. At the same time, enormous weight could not be attached to the proposed alliance, since An Post was not formally part of the Meteor consortium.

Mr. Anderson said that he did not accept the proposition that he personally, or AMI as a company, were biased. He said that the use of the flags in two of the drafts of the evaluation report was the idea of a consultant with AMI who liked that form of presentation, but that it did not appeal to the steering group. As to the use of the word “unprecedented”, to him that simply meant “without precedent” . He did not think that it carried any particular overtones, but Mr. McQuaid told him that it might.

Mr. Anderson also said that there was no bias on his part in respect of any of the scores that were awarded either to Meteor or to Orange. He said that there was no reason why he should be hostile or not favourably disposed to Orange and that the Orange application had been given the marks it deserved. He said that his firm had had previous contact with Orange in relation to the Dutch tender for the DCS 1800/EGSM spectrum. Orange were awarded the licence as the result of that competition.

Mr. Anderson said that he was the author of the phrase “the Irish touch” in the evaluation report. He said that this had nothing to do with any question of nationality, but rather was referring to the level of preparatory work done by the bidder in question.

Mr. Anderson said that the entire evaluation procedure had been conducted strictly according to the evaluation criteria and that there had been no element of bias or prejudice of any sort in the conduct of the exercise.

Cross-examined on behalf of Orange as to how the indicator “financial strength of consortia members” was approached during the evaluation process, Mr. Anderson rejected the suggestion that it was wrong to exclude from their evaluation RF Communications and the Walter group because of their relative financial weakness. He said that it was precisely because of their financial weakness that they were not regarded as contributing to the financial strength of the consortium: that strength was effectively represented by those holding the majority interest in the consortium. Pressed as to whether, even if Western Wireless had been a one hundred per cent owner of the consortium, it should have been treated as weaker than Orange, Mr. Anderson said that, even viewed in that light, Western Wireless could be regarded as weaker in some areas, but stronger in others. He agreed that the final report said that

“Although having negative equity Orange has positive and increasing cash flows and a highly capitalised market value and the award of a B was considered .

He also agreed that in respect of Meteor, it was said:-

“WWCA is solvent but has negative and decreasing cash flows and a capitalised market value materially lower than Orange’s and the award of a C was considered.”

He also agreed that this part of the report concluded that

“However, WWCA represents only 60% of the ownership of Meteor Communications Plc. described earlier and the financial strength of the Walter Group and in particular RF Communications is less than that of WWCA. Accordingly Meteor is awarded a D and Orange is awarded a B.”

It was put to Mr. Anderson that the original B/C differential was increased to a B/D differential because the earlier marking had not taken into account the weakness of the two minority shareholders. Mr. Anderson disagreed and said that in fact the mark was the same for Meteor in both instances, i.e. a D: it was the score for Orange that was in essence reconsidered, Orange being given a slightly higher mark in the final report. There followed these exchanges:

“Q. I am going to suggest that is indeed what was done, Mr. Anderson, but only for one reason: that it was recognised that to make a one grade differential between the two applicants would have been manifestly unsustainable and therefore instead of marking Meteor down to E it was decided that it would look better to put Orange up to B and thereby create the two mark differential which was thought to be necessary?
MR. HOGAN [for the Director]: Just before the witness answers that question, could I enquire respectfully to the court whether the allegation now being made is that this mark was somehow deliberately manipulated to give the appearance of impartiality when, in fact, it was not?
MR. McDOWELL [for Orange]: Yes.
MR. GALLAGHER [for Meteor]: That was not put to Mr. McQuaid in cross examination.
MR. HOGAN: It was certainly a new allegation, as I recollect.
MR. McDOWELL: I am putting to the witness that instead of moving it to C and E you made the decision to make it B and D and that the purpose of that was to make it look better at Meteor’s point of view (sic).
MS. JUSTICE MACKEN: Just in relation to the objections Mr. Gallagher I do not think that he has to put the point both to Mr. McQuaid and Mr. Anderson.
MR. GALLAGHER: Mr. McQuaid was a party to the decision my Lord.
MR. McDOWELL: Bring back Mr. McQuaid and I’ll put it to him.
MR. GALLAGHER: I think something as serious as bias, if Mr. McQuaid was a part of the decision, to say that they got together and deliberately altered to give the appearance, I do think that that should have (been) put my Lord.”

Following further lengthy exchanges, counsel on behalf of Orange said:-

“It was certainly part of the Orange case and it is an essential part of the Orange case that the changes made to this report, and it was Mr. Young who said so on many occasions, were done with a view to disguising the bias of the people who did it. They were not unconscious mistakes and I am sorry if it offends Mr. Hogan’s sensitivity to realise now that I am alleging that some of these changes were made with a view to disguising the prejudice which underlaid them ...”

The trial judge then ruled as follows:-

“I am going to allow this cross examination, even if it is just de bene esse and I will come to no view in relation to it and you may make any submissions you wish to make and you may ask any questions in re-examination that you wish, Mr. Hogan. In so far as I want to find out whether or not there is any merit in what Mr. McDowell is saying, this witness is permitted to be cross-examined.”

Pressed as to whether the evaluators had taken all reasonable steps necessary to establish whether RF Communication, who were ultimately a 30% participant, were financially capable of taking part, Mr. Anderson agreed that more could have been done in that area. He did not agree, however, that the reason this was not done was that it would “weaken the outcome of this competition further and make it less justifiable” . He said that there had been no attempt to hide the fact that there was a weak spot in the Meteor funding.

Mr. Anderson was cross-examined at length as to why there was no indicator in respect of “handset subsidies” , although the Orange bid had specifically referred to such subsidies. He said that, unlike tariffs which were the subject of regulation by the Director, any subsidy in the provision of handsets was regarded as part of a bidder’s marketing strategy. The evaluators had proceeded on the assumption that, in the case of every potential entrant to the market, there would be some element of subsidy in the supply of handsets and this would be covered by the indicator “bonuses to distribution channels” . He also rejected the suggestion that that part of the final report was designed to establish that the Orange proposals on handset subsidies together with a twelve-month contract and a “claw back” provision were not in conformity with EU or Irish law or were anti-competitive.

Mr. Anderson also disagreed with the suggestion that the reference in the final report to Orange viewing the network in the Republic of Ireland as an essential part of its DCS 1800 networks in Great Britain and in Northern Ireland and had proposed no ownership based consortium with Irish or other partners was “a wholly unwarranted and prejudiced statement” about Orange.

The next witness on behalf of the Director was Ms. Regina Finn, who was the vice chairman of the steering group. She was the head of market operations with the Director and had been with the office since it was set up in 1997. While she did not claim any particular expertise in running competitions of this nature, she did have a substantial involvement in the particular competition. She said that, while hand-written notes taken during the various meetings had been torn up, shredded or otherwise disposed of, this had not been done to frustrate any discovery process.

Ms. Finn said that she totally rejected and indeed took exception to the allegations of bias made against the Director and her staff during the course of the case. She said that neither she, the office of the Director or the AMI were biased and that the procedure was carried out in a fair, objective and non-discriminatory manner at all times.

She said that the flags which had been inserted in the first draft of the evaluation report were removed on her suggestion, not because they were suggestive of bias, but because she thought they were neither particularly accurate nor helpful.

Ms. Finn said that it was absolutely untrue to suggest that, in the case of the indicator financial strength of consortium backers , the marks were deliberately manipulated in order to give a false impression and, in particular, in order to hide the fact that Meteor should have been given an “E” under that heading. She did not think that an “E” would have been appropriate for the Meteor group, given the strength of Western Wireless.

Ms. Finn said that handset subsidies had been evaluated under the dimension “marketing strategy” and Orange had scored well because of their clear strategy.

As to the question of commitments on tariffs, Ms. Finn said that she was surprised to have been faced with a situation where Orange had not offered binding commitments. While binding commitments on tariffs were not mandatory, they were certainly expected and, if somebody did not offer them, there were going to lose substantial marks. However, it would have been possible for a bidder to have won the competition even without giving binding commitments. She also said that the course adopted of “ring fencing” each of the indicators on tariffs and having a separate indicator in respect of binding commitments to tariffs was fairer. The alternative approach would have involved marking down Orange on some of the indicators and would have resulted in less favourable marking for Orange.

Ms. Finn said that the overall objective of the competition was to ensure that the customer got the best deal in terms of lower tariffs, better choice of services and better choice of operators. The tariffs issue was a very important factor in that context.

On the question of handset subsidies, Ms. Regan said that she was part of the working group that dealt with this aspect, the chairman being Michael Thrane of AMI. This group chose the indicators and, in relation to handset subsidies, there was a discussion as to whether having the two indicators, “bonus to distribution channels” and “handset subsidies” was appropriate. The working group concluded that handset subsidies was a “subset” of the bonus to distribution channels. Handset subsidies was considered to be a narrow indicator, since there were other methods of ensuring that the price of handsets to the customer was low and competitive, e.g. buying handsets in bulk and selling them on at cost or special promotional activities. There could be either direct subsidies of handsets or there could be bonuses to retail outlets who would in turn subsidise the handsets.

Ms. Finn said that table 7.11 in section 2 of the tender document - one of the “mandatory tables” which had to be completed by the bidder - under the heading “Operating Costs” included headings such as marketing costs, bonus to distribution channels and staff costs and a number of costs all of which would be relevant to a strategy of ensuring that the customer got cheap handsets. A graph had been produced by AMI comparing the relevant figures in the Meteor and Orange bid and, while the total costs of both bidders were fairly similar, on some of the lines the relationships were, as she put it, “wildly different” . One example was the fact that staff costs in both tables were radically different, the relationship being about 15:1 as between Meteor and Orange. The group was concerned that the tables might be somewhat ambiguous because there might have been different assumptions made by both parties as to what to include in each line. She said that one member of the group, Karen O’Gorman, noticed that particular discrepancy and that the group agreed that it would be appropriate to get clarification on this. One explanation might be that Meteor had included all its personnel costs in the personnel line, whereas Orange had included relevant personnel costs under other headings. Thus its marketing personnel would be in its marketing costs and its administrative personnel would be in its administrative costs. Because the Meteor personnel were not included in the marketing costs, there was in the result a substantial gap in the favour of Orange. Questions were asked of both Meteor and Orange with a view to eliciting whether this was the reason for what might otherwise have seemed a surprisingly large gap in the two marketing budgets and it emerged that this was indeed the explanation. She said that this was reflected in the evaluation report which stated that:-

“however, supplementary investigations in particular on the itemisation of sales staff tend to close some of the gap between the two applicants.”

Ms. Finn said that, despite this narrowing of the gap, the marks were not changed: while the supplementary investigation had confirmed the view of the working group, they were of the view that Orange were still ahead so far as the “bonus to distribution channels” indicator was concerned.

As to the question of twelve-month binding contracts, Ms. Finn said that she had some doubts as to whether there might be legislation which raised problems in this area and that the AMI members of the group said that there had been some recent developments in Denmark in that area. As a group, they decided that it would be prudent to have this further investigated, which it was. She said that there was no question of endeavouring to find something negative to say about handset subsidies: they were evaluated positively throughout the bid because they were one of the various means by which it could be ensured that the customer got handsets at competitive prices.

Ms. Finn said that, while AMI had the primary responsibility for drafting the reports, the style in which they were written was not really consistent with the way in which the Director and her staff would write reports. In particular, they were structured and written by people whose first language was not English.

Commenting on Mr. Wigglesworth’s evidence that he had detected a certain coldness towards Orange from a reading of the transcript of the oral presentation,
Ms. Finn said that she was at the oral hearing and was not conscious of any difference in treatment of the parties.

Ms. Finn said that the evaluators were fully conscious of the fact that there was no commercial agreement between An Post and Meteor and they evaluated the contribution of An Post under the relevant indicator bearing in mind that this was the case.

Ms. Finn said that she had regular contact with the Director on all aspects of her work, including this competition, and would have reported regularly to her on all developments.

Cross-examined by counsel for Meteor, Ms. Finn agreed that capping the licence charge at £10 m. was of considerable significance: if the bidder had to pay a significantly higher charge to the Exchequer, it would inhibit their ability to charge lower tariffs. She also agreed that the fact that there was only one licence being awarded made it even more important to ensure that there was proper competition with regard to tariffs.

At the outset of the cross-examination on behalf of Orange, Ms. Finn, like
Mr. McQuaid, was questioned at length about the issue of binding commitments on tariffs: like him, she disagreed with the suggestion repeatedly put to her that the importance of this indicator had not been sufficiently indicated in the tender documents and that, even if it had, Orange had either given such commitments or, at the least, were, having regard to the wording of the tender documents and their bid, in no different position from Meteor in relation to the giving of commitments.

Questioned about handset subsidies, Ms. Finn said that she considered that it was implicit in the Meteor application that they would make use of such subsidies. She said that they were not asked about any claw back provisions in relation to subsidies because, unlike Orange, who had specified that the contract would be for twelve months with a claw back provision, there was no reference to any claw back provisions in the Meteor bid. Their real concern as evaluators was to determine, from the information furnished by the two bidders, what degree of choice and flexibility was being offered to the customer in terms of its relationship with the operator. She said that Meteor had offered more packages and more choice of terms of subscription and that was very important. She rejected the suggestion that the failure to seek information from Meteor on this matter was because they were biased against Orange.

Ms. Finn disagreed with the suggestion that the reference to Orange regarding its Irish network as an extension of its UK network was intended to convey to the Director that Orange had a “supercilious approach” to the Irish market. She said that the final report had not included a reference to the statement at the oral presentation that Orange were prepared to have a flotation on the Irish Stock Exchange because it was not thought right to go outside the terms of the tender document. Pressed as to why the report dealt with material as to the minority holding in the Meteor consortium, she said that this was because that was done by way of clarification and it was not, as it was put to her, “a clear example of quite malicious bias” . She agreed that one of the members of the Director’s staff drew attention in an earlier draft to the fact that the possibility of a stock exchange flotation had been mentioned at the oral presentation. She agreed that the original text read:

“Furthermore, no intentions to float the shares of the company on the stock exchange have been expressed.”

She also agreed that the reaction to the comment in question was to add the words “in the application” . She denied that this was in effect a lie because it suppressed the fact that it had been mentioned at the oral presentation. She also denied the suggestion that it was put in intentionally in order to mislead the Director.

Two expert witnesses having given evidence on behalf of Meteor at this stage, which is summarised later, the last witness called on behalf of the Director was
Ms. Karen O’Gorman. She is a Bachelor of Arts in Economics and a Fellow of the Institute of Chartered Accountants in Ireland and, at the time of the competition was on secondment from AIB Corporate Finance to the Director for six months. Her expertise was primarily in the area of financial accounting and corporate finance. Her primary responsibility, as a member of the steering group, was to focus on the financial and commercial aspects of the competition. She was not involved in the entire competition, having been ill from mid-November until mid-January and having left for maternity leave on the 22nd May 1998. She said that, during her period of secondment to the steering group, she at no time saw any evidence of bias and thought that the members of the steering group conducted themselves in “a very professional and very impartial manner”. She said that the objective of the competition, in her view, was to evaluate the two bids received in an impartial manner, taking a number of indicators on both a quantitative and a qualitative assessment in order to arrive at a decision as to who would be the most appropriate candidate to be awarded the licence and this, in her opinion, had been achieved. She had made a number of “purely back of the envelope type notes” for herself during the course of the process and had shredded them shortly afterwards.

Ms. O’Gorman was asked about a comment she made on the first draft of the final report (dated 2nd June). It was said that, for practical reasons, RF Communications and the Walter Group could be disregarded in the evaluation of the financial strength of the Meteor consortium, as they were not contributing to its strength. She had commented that

“I feel we are exposed here.”

1 She went on to say in the written comment that the paragraph needed to state that until the position of AT & T was clarified, it was not necessary to include an assessment of either RF Communications or the Walter Group. When it was clarified that they would now be taking a 30% stake, it was deemed necessary to perform a supplementary analysis on RF in relation to its financial strength. She had also said that it would be necessary to state whether this would affect the overall mark award to Meteor for financial strength.

Ms. O’Gorman rejected a suggestion made by Mr. Young in the course of his evidence which, on one view, indicated that Ms. O’Gorman’s comment - “I feel we are exposed here” - indicated bias on her part against Orange. She said that, on reading the first draft, it was very evident to her that there was an incompleteness in the analysis that had been done that required additional attention and additional work and that that was her sole purpose in making that comment. She said that, to her knowledge, the comments that she had made were acted on by the steering group and an additional assessment done in relation to both RF Communications and the Walter Group.

Asked about the alleged manipulation of the marks under the indicator “financial strength of consortium members” so as to ensure that Meteor did not get an “E”, Ms. O’Gorman said that she did not believe that the mark was deliberately manipulated. She said it would have been “completely unfair” to give the Meteor consortium an “E”.

It had been pointed out, in relation to this part of Ms. O’Gorman’s direct evidence, that she had not been involved in the final allocation of the marks since she was on maternity leave. However, she was permitted to give evidence as an expert as to her view of the marks and she said that they were, in her view, fair.

Ms. O’Gorman also confirmed the evidence that had been given at an earlier stage by Ms. Finn as to the possibility that, in relation to marketing strategy, the applicants had classified their personnel costs differently. Ms. O’Gorman also said that her understanding was that it would be quite reasonable to expect binding commitments as to tariffs. She also confirmed the evidence that had been earlier given as to how that matter was dealt with in the relevant working group, when it appeared to be the case that Orange were not giving binding commitments as to tariffs.

Ms. O’Gorman also said that she attended the oral presentation and that she thought the participants had been treated in exactly the same impartial manner.

Ms. O’Gorman was cross-examined at length on behalf of Orange as to methodology employed by her at the various meetings of the evaluators in relation to the taking of notes etc. Questioned as to the decision not to investigate the financial strength of minority participants in the consortium, she said that that was not done at the meeting of the working group but was done at a later stage. She reiterated that, although she was not involved in the final allocation of the marks in respect of the indicator “financial strength of consortia members” , the Meteor consortium did not merit being marked at E and that D was a fair mark. It was put to her that a statement in the evaluation report that “the award of a C was considered” in respect of that indicator was misleading: she pointed out, however, that, while it had not been considered at a meeting of the working group, she was not in a position to say what had happened between the other members of the working group and the steering group subsequently. Cross-examined in detail as to her view that the revision in the marking would have reflected assessing the strength of the participants in the context of the telecommunications industry rather than industry generally, she rejected the suggestion that, at an earlier stage, the assessment had been carried out with that factor in mind.

Cross-examined as to the handset subsidies issue, Ms. O’Gorman said that her suggestion that the considerable disproportion between the staff costs of Meteor and Orange should be investigated further by way of questions put to the two bidders was in order to ascertain whether the indicators in respect of marketing strategy were being compared on a “like with like basis ” . She agreed that she had not carried out the analysis of the personnel figures herself: that had been done, she thought, either by AMI or other members of the Director of staff. Cross-examined about the details of the comparison between the marketing budgets, she again said that the issue of handset subsidies had not been specifically addressed: it was addressed as part of the overall marketing strategy. They were not entitled to pose additional questions to Meteor concerning handset subsidies, since that would have gone further than merely clarifying aspects of their tender document. She agreed that it was somewhat inaccurate to state, as the evaluation report had done, that it was an itemisation of the sales staff which tended to close the gap between the bidders in relation to the indicator “bonus to distribution channels” .

The first expert witness called on behalf of Meteor was Professor Yale Braunstein. He is the professor of information management and systems at the University of California at Berkeley. He had also been an Assistant Professor of Economics at New York University and had held the same post at Brandice University. He was also a senior vice president of Calba International, a telecommunications consulting firm in Massachusetts. He had been the lead consultant with the Israeli Ministry of Communications with regard to their second cellular licence evaluation in 1994, where he personally drafted the bulk of the evaluation report and led a team of outside people on every issue except engineering for the Israeli Ministry. He had also been a consultant to the Swedish postal telecommunications service with regard to the Swedish PCS tender and evaluation in 1995 and had also been a lead consultant on the international tenders for liberalising the international telecommunications market in Israel. He had also acted as a consultant in other areas, such as tariff designs, marketing plans, and business plans to bidders for cellular PCS licences in the US, Canada, Brazil, Poland, Malaysia, Vietnam, China, Hong Kong and to the Philippines. He had also been a consultant to the Federal Communications Commission, the national independent regulator in the United States.

Professor Braunstein said that he had familiarised himself with the tender documents etc. in this case and the transcripts of evidence of the oral presentation.

Professor Braunstein said that there were many ways of approaching the preparation of a tender document. This one, in his view, was clearly consistent with international practice and had a lot more details on weightings than, for example, the Swedish document. It had opted for a straightforward two part test, that was now common internationally. It seemed to him “quite a good job” .

As to the question of disclosing weightings in the tender document, Professor Braunstein said that in the case of the Swedish tender, they had not assigned the weights ahead of time, even at the group level. In Israel, they had assigned weights ahead of time for the groups. The tender in this case was somewhere in between and had features of both.

Asked about the procedure under which the indicators and the weightings for each of the individual indicators were not settled on or decided until after they were read and marks allocated, Professor Braunstein said that that was “quite standard” . He said that the object in adopting that procedure was to provide as much information to the applicants as possible, while on the other hand encouraging creative bids which would be responsive to the tender and bring about commercial insights into the way the market might develop. He cited an example from Israel where 45% of the points were allocated in advance to two categories, one on coverage and one on the extent to which the network would be digital. All six of the bidders bid exactly the minimum necessary to get the full points and, as a result, 45% of the points were “essentially meaningless” .

Professor Braunstein said that he thought the evaluation report was quite good: it linked back to the tender document in ways that he could follow and was a reasonable job, “the quality of the English notwithstanding” . It did a perfectly reasonable job of covering the key areas although, in a few special cases, he might have chosen to do things differently.

Professor Braunstein said that, in his experience, the asking of questions and the holding of oral presentations were the most difficult part of the evaluation process. One would like to elicit information on points that were unclear from the document, while at the same time avoiding giving the bidders an opportunity to present new information, challenge information presented by others or in some way respond to press reports or whatever. He said that this distinction was a difficult one to maintain in practice. He was reluctant to pursue issues in terms of questions or at the oral presentation unless they were of major import or had led to some misunderstanding.

Professor Braunstein said that, in terms of the level of detail and analysis provided by the evaluation report in this case, it was at least as good and probably better than either of the other ones in which he worked as a consultant.

Asked about the approach to the issue of An Post, Professor Braunstein said that, in his view, the evaluators had used exactly the right standards in awarding points for a creative approach, while at the same time recognising that there was not a binding contract.

On the issue of tariffs, Professor Braunstein said that it was clear from the tender document that they were going to be important. Apart from the manner in which the tariffs were dealt with in the tender documents, where, as here, the licence fee was capped, the applicants would normally put in a lot of effort in providing low tariffs and benefits to consumers. The fact that only one licence was being offered and that it was the last of its kind in Ireland was also of importance: it was clearly hoped that a third operator would provide more price competition and services to additional groups of users.

On the question of binding commitments to tariffs, he said that he thought that the evaluators had done a very good job. Since Meteor had proposed that all their tariffs would be binding in the first year and the “bronze” tariff would be available throughout the period, whereas Orange had entered into no commitment for a zero bundled minutes tariff at all, he would himself have been looking for some way of scoring more highly the tariff plan in which there was a commitment. What the evaluator had done in this case, i.e. singling out as an indicator “binding commitments and price development” was one of the acceptable ways of assessing the respective merits of the bids. Professor Braunstein said that the approach adopted in the evaluation process to weighting the individual indicators in relation to tariffs was justified and reasonable.

As to the manner in which the financial strength of the Meteor consortium was assessed, he thought that the officer of the Director had done a reasonable job in getting additional information where it was thought it was needed. It was clear from the way the consortium was set up that there was a single entity that had both operating experience and a controlling interest in the consortium. In his view, it was reasonable to focus most of the analysis on the financial capability and operating experience of that entity.

Cross-examined on behalf of Orange, Professor Braunstein said that it was quite clear to him from reading the tender documents that a bidder giving a binding commitment to tariffs would obtain higher marks as a result. He said that, in his view, the approach adopted by Mr. Wigglesworth, i.e. that the regulator should go back to the applicant and ask him to clarify the position would be “exactly the wrong approach” .

Questioned on the issue of the importance of handset subsidies in penetrating the Irish market, Professor Braunstein said he thought they were likely to be in the future an important component in entering and developing the Irish market. Asked whether the evaluators should have compared the two bids in the light of the fact that Orange had made proposals on handset subsidies and Meteor had not, he said that that was an area where he felt strongly that there should be an evaluation of what the bids actually proposed. The relevant criterion was to look at the marketing expenses relative to the size of the system and the size of the market. He agreed that contractual relations between the service provider and the customer were relevant but had not been taken into account in this evaluation, because the evaluators did not know what the contractual arrangements with Meteor were.

Professor Braunstein said that the withdrawal by AT & T did not go to the credibility of the application at all: it went to the credibility of AT & T. He had had experience in Israel of a bid going in with references to an operator who subsequently transpired not to be participating. He said that in his view it would not be a matter of concern to a regulator that AT & T had left the process and that Western Wireless were not proposing to take up their 10% holding. As long as there were satisfactory plans fully to finance the enterprise, those matters were not an issue.

Following the cross examination on behalf of Orange, the trial judge referred Professor Braunstein to the paragraph in the tender document which stated:

“at this stage applicants should indicate any binding commitments on tariffs, including any reduction predicated on more favourable interconnection.”

She asked whether there was any reason why an applicant would not be put on notice that binding commitments within the overall tariff allowance would attract a higher evaluation. The witness replied that he had understood that clause as signalling to the applicants that they would receive higher consideration of some sort for proposing binding commitments at that point. The transcript continues:-

“535 Q. MS. JUSTICE MACKEN: And in relation to that do you say that the binding commitments are sufficiently notified in this as having the significance which we have heard they have?
A. Before I read the testimony I had no problem with drawing that conclusion. Now that I have read all the testimony, I am not convinced that my commonsense understanding is the correct legal understanding.
536. Q. MS. JUSTICE MACKEN: You do not have to be worried about that, I am just looking for assistance from you.”

The second expert witness called on behalf of Meteor was Dr. Lee L. Selwyn. His specific area of expertise was in relation to pricing and telecommunications. He held a Master’s Degree and a doctorate degree from the Massachusetts Institute of Technology and had carried out postdoctoral work at Harvard University in public utility economics under a programme sponsored by AT & T to conduct research on the economic effects of telephone rates structures upon the computer time sharing industry. He had been actively involved in matters relating to wireless telephony since early 1982 shortly after the federal communications commission established its application procedure for the first round of 800 megahertz cellular licences in the United States. He had been involved in approximately 25 to 30 applications in the top ninety markets, both as a consultant to applicants as well as a principal in ten applications. The applications involved different forms of competition, including some that were very similar to the one under consideration in this case. He had testified as an expert on weight design, service costs analysis, forms of regulation and other telecommunications policy issues in telecommunications regulatory proceedings before 40 state commissions in the United States and also before the federal communications commission and the Canadian radio television and telecommunications commission. He had acted as a consultant to numerous state utility commissions, the office of telecommunications policy, the United Kingdom office of telecommunications and the equivalent department in Mexico. He had published numerous papers and articles in professional and trade journals on the subject of telecommunications service regulation, cost methodology, rate, design and pricing policy.

Dr. Selwyn said that he had concentrated on the tariff evaluation aspects of the competition under consideration. Asked about the “bronze tariff” , he said that this was, in effect, a pure access and pure usage type of rate structure and that it would not be true to describe it as a “stunt” tariff. It was, in his view, a viable and, he believed, attractively priced offering for the low use type of customer.

On the issue of handset subsidies, Dr. Selwyn said that the subsidisation of handsets had been a practice in the wireless industry since “almost the very beginning” . At that stage, handsets might carry retail prices of well over £1,000 and operators found that, without subsidising them in some manner, they would simply not be able to get customers at all. He said he was not really surprised by the absence of any specific reference in the tender to handset subsidies, since it would be “almost suicide” for an operator to enter the market without in some manner subsidising the purchase of handsets.

Dr. Selwyn said that the subsidisation could be effected either directly or through bonus to distribution channels or through trade in allowances or various other devices. The entrants were going to have to respond to prevailing market conditions and he did not read the Meteor application as in any way precluding the handsets subsidy. It might, however, have been inferred from the Meteor application that it was not intended to require contracts nor did he see any specific connection between the contracts issue and the subsidies issue. Meteor might well have concluded that the likelihood of a significant enough percentage of customers retaining the service was sufficiently high and that they would be able to offer whatever handset pricing scheme they were going to pursue without requiring specific subsidies. It would be unthinkable, however, in his view for anyone to enter the market without intending to be competitive with respect to handsets. He could not see that the Director’s approach in the present case to the handset subsidy issue exhibited bias.

Dr. Selwyn said that he thought the manner in which the rival tariffs were evaluated in the present case was reasonable and that there was no evidence of any bias.

Dr. Selwyn said that, even if one accepted the view that the Director, as a matter of law, could impose a binding commitment in the licence, the two applications were expressing very different views with respect to their pricing philosophy and their attitude towards competition. Orange was effectively signalling to the incumbents that they need not worry: if they (the incumbents) did not lower their prices, Orange were not going to lower theirs either. He regarded this as almost a signal of a willingness to participate in a cartel like pricing arrangement. Meteor, on the other hand, in his view, were signalling an intent to set prices at a level that was well below those being charged by the incumbents.

On the issue as to whether the significant weighting attached by the evaluators to binding commitments on tariffs was evidence of bias, Dr. Selwyn said that the tender document in several important respects made it very clear that tariffs were not only an important element of the decision process, but perhaps the single most important element. He said that, while the bid itself was weighted at only 10% the fact that it was capped at £10 m. was of great significance, since the exchequer would be at a considerable loss. He said that the Director was in effect letting the applicants know that this constraint on the money being received by the exchequer should be reflected in the tariff policies of the bidders. He did not regard the allocation of the 45% weighting to the indicator as to binding commitment on tariffs and price developments as an indication of any bias.

Cross-examined on behalf of Orange, Dr. Selwyn said that he thought the importance of the binding commitments to tariffs was made as close to explicit as it could be in the tender documents. He agreed, however, that he could not explain the absence of a specific indicator as to “binding commitments on tariffs” in the Reader’s Guide.

When it was suggested to him that Meteor had reserved to themselves the right to request the Director, in the event of their being awarded the licence, to include a term in the licence which would allow them to change their tariffs, Dr. Selwyn disagreed and said that he read it as indicating that they wanted there to be a term in the licence that would, subsequent to the grant of the licence, give them the right to petition for a change.

Questioned as to whether his view was that the Director must have assumed that there was a handset subsidy hidden in the Meteor plan, Dr. Selwyn said that he thought that it was simply stated in a form that did not use that terminology. Since their plan expressly spoke of bonuses to distribution channels, it clearly envisaged a means of providing handset subsidies but allowed the distribution channels some discretion in how to offer them, rather than having it come from the service provider, which was quite common in the United States. He thought that handset subsidies could be available in a number of different forms, i.e. bulk buying, not marking up the price at the retail channel level and providing trading allowances for existing handsets that would have no reuse value and would be effectively discarded. Asked about the position of Meteor relevant to people who bought a subsidised handset and threw it away within the first week, Dr. Selwyn said that that was part of the cost of doing business: it was no different from a customer walking into an Orange retail outlet, spending half an hour or forty-five minutes of the sales person’s time and then walking out without buying anything. It was not necessary, in his view, for the Director to have asked where, in the Meteor marketing budget, was there any provision for handset subsidies.




(3) The Judgment in the High Court

At the outset of her judgment, the trial judge, having explained the background to the proceedings and the legislative framework, identified three issues as arising on the appeal, i.e.
(a) the allegation that the director’s decision was biased or was reached as a consequence of a biased approach operating in the course of the tendering and/or the evaluation process;
(b) the allegation that the director’s decision to refuse to grant a licence was unreasonable;
(c) the allegation that the Director had failed to give reasons
(i) for her decision to propose to refuse to grant a licence to Orange, and
(ii) for her decision to refuse to grant the licence to Orange.

She went on to say that, with few exceptions, the facts and matters which were tendered by Orange in support of the claim based on unreasonableness were also, the same facts and matters which supported the allegation of bias. She had, of course, ruled at an earlier stage that she was not prepared to admit evidence on the issue of reasonableness. The evidence on that issue was to consist solely of the materials which were before the Director when she arrived at her decision. The trial judge said that, in these circumstances, she had sought to ignore oral evidence which tended to go only to the issue of reasonableness but recognised that it was difficult to ignore such evidence and that there were occasions when it had not been possible to maintain “the clear and desired distinction between them” .

The trial judge then went on to consider in considerable detail the materials relied on by Orange in support of the bias claim and the materials that were admissible in support of the reasonableness claim. However, in order to place those findings in their proper context, I think one has to turn first to the legal principles in relation to the three issues which the trial judge considered applicable in the case and which are set out in the later part of her judgment.

On the issue of bias, the trial judge referred to a number of well known authorities in this jurisdiction and in the United Kingdom which emphasise the principle that the adjudication of disputes by a tribunal, which is not only impartial but seen to be impartial, is an essential feature of the administration of justice and that the principle in question also applies to tribunals and bodies acting in a quasi-judicial capacity. However, she rejected the submission advanced on behalf of the Director that the authorities relied on by Orange involved a personal connection between the decision maker and one of the parties before him. She said that bias could take a variety of forms and was not necessarily confined to cases of that nature. She drew a distinction, however, between a legitimate preference, which in at least some instances in this case had been exercised in favour of Meteor, and what she described as “true bias” .

The trial judge also referred to a distinction drawn in the authorities between objective or presumed bias, on the one hand, where the decision may be set aside, not because there is anything to suggest that the tribunal was actually biased against the aggrieved party, but because of a reasonable apprehension that it might have been and, on the other hand, subjective or actual bias. She said that in the latter case

“There is a very heavy burden imposed on Orange to establish that the decision maker in this case, or the evaluators, deliberately acted as to prejudice Orange.”

On the issue of reasonableness, the trial judge said that she was satisfied that, in order to succeed, Orange had to establish a significantly erroneous inference which was critical to the grant of the licence and which went to the root of that decision. In this context, she said that she was confining herself to a consideration of the documentary evidence available and the submissions made to her.

Dealing with the third issue, i.e. the alleged failure to give reasons for the refusal to grant Orange the licence, the trial judge referred to the relevant legislative provisions. These required the Director to notify the applicant for a licence of a proposal by her to refuse the application and to include in the notification the statement of the reasons for that refusal and the rights of the applicant. The Director was also required to take into account any representations the applicant might make within a specified period and, if the Director decided to refuse to grant the licence, there was again a requirement that the applicant be so notified, that the notification includes a statement of the reasons for the decision and, where appropriate, of the rights of the applicant which, of course, include an appeal to the High Court.

The trial judge indicated that, in her view, the authorities which indicated circumstances in which an administrative body could not be required to give reasons were not relevant to the present case, since the Director was clearly obliged by the terms of the relevant legislation to give reasons. She concluded that, where, as here, there was a clear obligation to state reasons, the reasons given must be “clear and unequivocal” and enable the party to whom they are given to defend its rights and the court to exercise “its appropriate supervisory role” . She also said that each case must be considered on its own peculiar facts to establish whether or not those reasons do or do not meet the criteria.

I now return to the findings of fact by the trial judge in the earlier part of her judgment. I confine myself, however, to those findings which are in favour of Orange and which were, in turn, the subject of the appeal to this court. Orange relied on a number of other matters as evidence of bias against them, but these were rejected by the trial judge and are not the subject of any appeal to this court.

The trial judge upheld the complaints made by Orange in respect of the manner in which the following issues were dealt with in the course of the tendering process and in awarding the licence:

(1) tariffs;
(2) bonus to distribution channels/handset subsidies;
(3) subscriber contracts;
(4) financial management and solidity, including in particular the financial strength of consortia members;
(5) experience and expertise;
(6) the strategic alliance with An Post;
(7) the “Irish touch ” issue;
(8) the statement in the evaluation report as to the essentially UK nature of the Orange network;
(9) the allegedly false statement as to the Belgian licence;
(10) the allegedly false statement as to what was said by Hans Snook;
(11) the changes to the draft reports allegedly made with a view to concealing the bias of the evaluators.

The findings by the trial judge in favour of Orange in respect of the first five issues set out above were also the basis of her finding that the decision of the Director should be set aside on the ground of unreasonableness, in addition to the ground of bias.

In relation to the last of these findings, i.e. the changes in the drafts, the trial judge expressed her conclusion as follows:-

“I am afraid I come to the view that the most likely reason why these two sub-indicators were actually changed was because they appeared in the draft reports to be too negative against Meteor. I am afraid I also come to the view that the changes were made in a manner which did not accord with the tender process as set out by the tender document.
“I also come to the view that a reasonable person in viewing these decisions would view them as being biased in favour of Meteor, and in consequence, against Orange.
“I do not accept the submission made on behalf of Meteor that these changes amount to fraud. They really fall into no different category than the actual award given, but not changed, in respect of the other indicators. The changes made were not, in my view, made in accordance with the rules of the competition or with the manner in which the awards were to be given, and the changes appear to me to have been made without any supporting basis.”

The trial judge then went on to set out, in the manner I have already described, the legal principles as to bias which she considered applicable to these findings. She then summed up her conclusions, on this aspect of the case, as follows:-

“I have, in respect of several of the allegations made by Orange, found that no element of bias operated, whether subjective or objective. However, I have come to the view that, in relation to several other elements, Orange have established to my satisfaction a reasonable apprehension of bias. I am particularly concerned to dismiss as not being of vital relevance to the decision making process some of the elements on which a reasonable apprehension of bias is established. For example, although the introductory section concerning the Irish network being an ‘essential part of the United Kingdom and Northern Ireland’ does not form part of the actual section of the evaluation report in respect of which an award of marks was given, I consider this to be an influential part of the report. On the other hand, I do not consider that it is a critical part of the report, and absent any other complaint would have little hesitation in rejecting an allegation of objective bias. Having regard to the findings which I have made on the above elements, it seems to me that, as to binding commitments, subscriber contracts and low tariffs, each of these standing alone, would support a claim of a reasonable perception of bias. When the several other elements on which I have made findings are combined, however, it seems to me that a reasonable person would justifiably consider and apprehend that there has been and was significant bias on the part of the evaluators to such an extent that the decision of the Director could not justifiably stand.
“It is not my view that there was deliberate bias of a subjective nature on the part of the evaluators who gave evidence in the course of the hearing.”

Having then set out, in the manner which I have already described, the principles of law which she considered applicable to the claim based on unreasonableness, the trial judge said that she considered that the only two matters which merited consideration under the heading of unreasonableness were “ experience and expertise” and “guarantees from backers” . She found that the claim of unreasonableness had been established in respect of the first, but not of the second. She then summed up her conclusions as follows:-

“However, that leaves outstanding the very few items above together with the several items in respect of which I have found that there was bias. Some of the bias issues were not, strictly speaking, issues on which an award was given, for example, the question of an Orange ‘one network’ concept, and the suggestion that Orange had misled the evaluators in relation to the Belgian licence and its knowledge of the Meteor bid. But several other headings were those in respect of which awards were in fact given. These include
(a) binding commitments on tariffs,
(b) low tariffs,
(c) terms of subscriptions,
(d) the issues surrounding bonus to distribution channels,
(e) guarantees from backers,
(f) strength of consortium members, and others.
These individual awards, say Orange, must fall as being also unreasonable because they were reached by means of bias, and cannot therefore be considered to be reasonable ...
“It seems to me that where, on a variety of issues, many of which were acknowledged to be critical to the Director’s decision, the combination of these were critical to the decision, it would not be correct to ignore the overall combined effect of all the unreasonable or biased decisions, and to suggest that each one must be viewed in total isolation.
I find that on the combined basis, as well as on the basis of bias alone, that the decision of the Director cannot be sustained. On the facts which have established bias, as set forth above, I find that those facts also support a claim to unreasonableness.”

The trial judge then went on to consider the third issue, i.e. the alleged failure to give reasons. Having set out the legal principles which she considered applicable and having referred, in particular, to the obligation on the Director to observe confidentiality to at least some extent, she expressed her conclusions as follows:-

“What follows from this, in law, is an obligation on the Director to give full and proper reasons, bearing in mind also the agreements she reached concerning confidentiality for example. It is not, in my view, a valid legal basis for refusing to give any further details, save for the ranking and the summary report, for the Director to say that information on any greater detail might in some way hamper the Director in any future tendering process which she might envisage into the future. Nor is it a valid legal basis for refusing to give any further information save for the rankings and the summary report, for the Director to say that such information was of a confidential nature. It is certain that trade or business secrets of parties ought to be protected, and both parties agree to this. It may therefore mean that, as to the evaluation report, and its availability, certain information would have to be protected and protected even from the party requesting the information. This is a matter which arises in many cases and many circumstances and it does not follow that each and every part of the evaluation report contained information which was of this sensitive nature. In the alternative, such information could be made available, subject to appropriate undertakings, not directly to the opposing bidder but to its independent advisors, an approach often adopted by the High Court in matters of commercial sensitivity.
“However, to refuse point blank to furnish anything other than the rankings and the earlier summary report, which I find did not constitute reasons adequate for Orange to defends its right, either at stage 1 or stage 2, is not legally sustainable having regard to the scheme provided for by the 1983 Act.”

As already noted, the trial judge, having made these findings, remitted the matter to the Director for “further consideration” .

From that judgment and order, the Director and Meteor have now appealed to this court. Notice of cross appeal was served on behalf of Orange in which they seek to have set aside

(a) that part of the judgment that refused to permit Orange to tender sworn evidence (including oral evidence) on the issue of reasonableness,
(b) that part of the judgment in which the trial judge, having made express findings of fact in relation to changes in the draft evaluation reports, rejected the contention of Orange that the evaluation process was affected by subjective bias.

(4) Submissions on behalf of the Parties

On behalf of the Director, it was submitted that the approach of the trial judge was misconceived in law. Having correctly rejected the contention of Orange that they were entitled to a complete rehearing on the merits by way of an appeal, she held that evidence was admissible on the issue of bias alone and that the issue of reasonableness was to be determined by reference to the materials before the Director. She then, however, proceeded to admit evidence which went entirely to the merits and substance of selected aspects of the decision. She adopted an entirely novel approach to the issue of bias which was erroneous and inadequately reasoned. It was further submitted that, in any event, the facts in respect of which objective bias was found could not properly support such an inference.

It was further submitted that the approach of the trial judge to the issue of unreasonableness was even more insupportable. Having held that this was an issue on which no evidence, other than the materials which were before the Director, could be admitted, the trial judge found that each of the instances of bias found to exist earlier in the judgment could also, and without more, be examples of unreasonableness. The difficulties in this approach were compounded by the fact that the trial judge considered that she was obliged to exclude from her consideration any evidence given on behalf of the Director or Meteor which might have supported the reasonableness of the decision.

As to the question of bias, it was submitted that the approach adopted by the trial judge was inadequate and erroneous as a matter of law in the following respects:

1 (a) It was directed towards the merits and substance of the decision rather than the position of the decision maker herself;
(b) It concentrated on selected areas of the decision where Orange had alleged bias;
(c) It invoked a concept of immaterial bias, i.e. bias which exists and is discernible but which does not justify overturning the decision;
(d) It resulted in the remission of the decision to the decision maker who has been found to be objectively biased.

It was further submitted that

(i) even if the merits of the decision could be considered for the purposes of determining bias, the trial judge was not entitled to decide the case on a partial and selective basis;
(ii) in the areas where objective bias was found, there were serious factual errors in the decision of the High Court which undermined the conclusion reached as to error on the part of the decision maker, let alone bias.

It was further submitted that, until the decision of the High Court in this case, the question of bias always involved an inquiry as to something other than the merits and substance of the decision. If the High Court judgment were allowed to stand, it would be possible to set aside a decision because of a perceived error, labelled as bias, which would necessarily fall short of unreasonableness.

It was submitted that there was no case in any jurisdiction which justified the finding of bias in the present case. It was submitted that decisions such as those in
R. v. Sussex Justices Ex Parte McCarthy (1924) 1 KB 256, R. .v. Gough (1993) 2 All ER 724, 740 and Radio Limerick One Limited .v. IRTC (1997) 2 I.R. 315, which had explained the legal concept of bias, lent no support to the remarkable extension of the concept in the present case. It was urged that it was difficult to understand how a conclusive determination of objective bias could be compatible with an order remitting the decision for reconsideration to the same decision maker.

It was further submitted that the trial judge was in error in holding that there could be findings of bias which could be dismissed as not being of “vital relevance” . It was said that, once bias had been found, it vitiated the decision because it related to the confidence which could be reposed in the decision maker: there is no such thing as an acceptable level of bias. It was urged that what was being considered was not “true bias” but rather a small number of perceived errors which, the court concluded, cumulatively undermined the decision.

The trial judge, it was submitted, simply moved from a finding in this case, that the evaluators’ report was wrong in some limited respects, to a conclusion that its authors, contributors and the Director were biased. No attempt was made by the trial judge to weigh the powerful contervailing factors which would lead to a contrary conclusion, i.e.

(i) the absence of any of the traditional indicia of bias, i.e. pre-judgment, prejudice, friendship, prior statements;
(ii) the fact that no person was identified as being biased either subjectively or objectively;
(iii) the inherent improbability that all the director’s staff and the AMI staff would share the same bias or alternatively that the unbiased members of the staff would be overborne by one or more biased persons;
(iv) the absence of any plausible motive for bias, either individual or collective;
(v) the presence of a positive reason not to be biased, i.e. the necessity for both the regulators and consultants to maintain their reputation for integrity and impartiality;
(vi) the finding that, in a significant number of respects, the claim by Orange in respect of bias was not sustained;
(vii) the fact that AMI was involved in the granting of a licence in the Netherlands to Orange in March 1998;
(viii) the fact that, in a number of respects, where an area for the exercise of judgment existed, the judgment was made by the evaluators in favour of Orange.

The submissions on behalf of the Director then went on to deal in detail with the factual errors which were alleged by Orange to support the finding of bias on the part of the Director.

As to the question of unreasonableness, it was submitted on behalf of the Director that there were four relevant aspects of the judgment:-

(i) the ruling of the trial judge as to evidence;
(ii) The rejection of all the complaints of unreasonableness which were not also relied on by Orange in support of their claim as to bias, with one exception, i.e. “experience and expertise” ;
(iii) The upholding of that challenge on the ground of unreasonableness; and
(iv) A finding that the facts which had established bias also supported their claim as to unreasonableness.

It was submitted that the approach of the trial judge to the question of evidence was inconsistent. Although much of the evidence at the trial took the form of expert evidence, including evidence adduced on behalf of Orange, the trial judge made little reference to such evidence in the course of her judgment and said that it was the role of the court to decide if the tender document was clear, was appropriately drafted or was unfair in any way to the bidders. It was submitted that the tender document was a specialist document directed to a special audience and that, accordingly, the trial judge should have had regard to the evidence of those witnesses with actual experience of such tenders. She had, moreover, failed to attach any significance to the absence of any witness from Orange itself who was prepared to say that Orange had in any way misunderstood the tender document or had been misled during the process of the bid.

It was submitted that the evidence alleged to support the case on bias was wrongly admitted in support of the case on unreasonableness and was relied on by the trial judge as supporting her finding on unreasonableness.

As to the alleged failure of the Director to give reasons, it was submitted on behalf of the Director that the trial judge was wrong in declining to treat the summary report as indicating the reasons for the decision of the Director, citing the decision of this court in O’Keeffe .v. An Bord Pleanála (1993) 1 I.R. 39. Moreover, she appeared to have taken the view that Orange were entitled to be told of the reasons why Meteor were ranked first and they were ranked second, which presupposed that either party was entitled to know the comparative reasons for the decision. That would be entirely inconsistent with the Director’s duties of confidentiality.

It was submitted that it was evident from the tender document that a comparative evaluation and ranking would be a key determinant in the award of the licence. Not merely would confidentiality be inherent in such a process: it was expressly provided for in the tender document. It was submitted that the decision of the Court of First Instance of the European Union in Adia Interim S.A. .v. European Commission , (1996) 3 CMLR 849 made it clear that, in a procedure of this nature, the reasons given do not have to be extensive and there is, in particular, no duty to give comparative reasons.

It was submitted that, had the Director furnished Orange with the evaluation report at the stage when she had given notice of her intention to refuse to award them a licence and had the representations then made by Orange been based on the merits of the competitive evaluation, this would have been tantamount to a re-run of the evaluation stage of the competition. Had she acceded to the case on behalf of Orange that their marks ought to have been raised sufficiently and those of Meteor lowered so that Orange would be adjudged to have won the competition, that would have amounted to reversing the result of the competition without any previous notice to Meteor and Meteor would then have been entitled to make representations following on a notice of intention to refuse which in return the Director in theory might have to accept. There would be no end to a procedure of that nature which would be of even greater complexity if, as might easily have happened, three or more applicants had been admitted to the second stage of the competition. It was submitted that it was never the intention of the Oireachtas to set in place such unworkable procedures.

Counsel on behalf of Meteor adopted the submissions made on behalf of the Director but, in addition, put forward independent submissions in support of their notice of appeal. However, it is unnecessary to set them out in any detail, as, broadly speaking, they adopt the same approach as those of the Director.

On behalf of Orange, it was submitted that their case on bias was not concerned with the individual merits of the decisions, or with inviting the court to re-evaluate the merits of individual decisions. It was rather the particular procedure adopted by the evaluators, their behaviour during the evaluation and the way, it was said, in which they on occasions departed from the prescribed procedure which gave rise to what was described as the “inevitable finding of objective bias” . It was the inherently unfair features of the procedure which were adopted (such as assigning weights to the newly specified indicators after the evaluators had familiarised themselves with the bids and knew how the assignment of such weights would influence the outcome) that produced the danger that there might be bias.

It was further submitted on behalf of Orange that none of the cases supported the proposition that findings of bias could only be made, where there was some connection between the decision maker and one of the parties or there was some element of pre-judgment. It was submitted that the principle underlying apparent bias was that there must be something in the factual circumstances surrounding the process which led to the final decision, from which the reasonable observer could conclude that the decision maker might well have unfairly regarded with favour or disfavour the case of one of the parties.

It was further submitted that none of the “countervailing factors” relied on by the Director, such as the absence of any motive for bias, precluded a finding of bias.

It was submitted that, in the case of tariffs, the allocation of the weightings to the individual indicators after the bids had been opened and assessed was manifestly unfair and led to a perception of bias. It was particularly so, given the introduction of an entirely new criterion into the process, namely, the “commitments on tariffs and price developments” in respect of which 45% of the marks attributable to tariffs were now being allocated. It was particularly serious, given that tariffs were the single most important individual element in the competition.

As to the factual errors adverse to Orange which were correctly, as it were said, found to have been made during the tendering procedure, it was submitted that the crucial factor was that all the errors made were errors adverse to Orange and no factual errors were made which were adverse to Meteor. This created the apprehension of the possibility of bias.

It was further submitted that, in the case of handsets subsidies, the failure of the evaluators to ask any questions of Meteor as to the terms and conditions they envisaged governing Meteor’s subscriber contracts and, in particular, whether there would be any handset subsidies was another procedure which indicated bias in favour of Meteor. The evaluators then, it was urged, proceeded to demonstrate their bias against Orange by deciding to carry out a supplementary analysis on the legality of its subscription contracts, although no such analysis had been carried out on Meteor’s relations with their customers.

There was then further evidence of bias, it was submitted, in the attempt to depreciate the fact that the Orange marketing budget was double that of Meteor’s by the unwarranted suggestion that staff costs “tend to close the gap” between Meteor and Orange on this issue.

It was further submitted that the alterations in the draft reports supported the findings of fact by the trial judge that these were indicative of bias. It was also clear, it was submitted, that the language used by the trial judge indicated her deep concern that the evaluators had altered the marks in relation to the financial strength of the consortium members in order to conceal their bias against Orange. These findings, it was said, were based on the trial judge’s assessment, not merely of the relevant documentation, but also of the oral evidence of the authors of the report and should not be disturbed.

It was further urged that the authorities demonstrated that the danger of bias could be said to exist once there was a possibility - as distinct from the probability - of bias. In particular, it was said, bias could be inferred from the manner in which adjudication was reached, the decision of the High Court in Dineen .v. Delap (1994) 2 I.R. 228 being cited in support of this proposition. This could be so even where, as here, it was argued that the procedures adopted were so detailed and elaborate that no reasonable observer would have regarded the procedure as biased.

As to the question of unreasonableness, it was submitted on behalf of Orange, that the submissions on behalf of the Director had sought to elide the distinction between the standard of unreasonableness which the trial judge had correctly adopted for the purpose of determining the appeal and the more deferential judicial review principle which she had rejected. The Director had not appealed on the ground that the trial judge had adopted the incorrect principle and this court should proceed on the basis that she was correct in the approach she followed.

There followed detailed submissions on behalf of Orange as to the issues detailed above in respect of which the trial judge found the Director to have acted unreasonably. It was urged that she had been correct in each of these findings and that her judgment should be upheld.

As to the third issue, Orange submitted that what they claimed was the breach by the Director of her statutory obligation to give reasons at the two stages where she was obliged so to do deprived Orange of the opportunity of making representations and obliged them to have recourse to the High Court appeal where there were specific requirements as to onus, review and evidence. Orange, it was said, were never in a position to make the appropriate representations on the merits in the appropriate forum, i.e. before the Director.

As to the duty to give reasons itself, it was submitted that, even if it were the case that the publishing of comparative reasons would involve the Director in a breach of the obligation of the confidentiality, that was the result of her decision to hold a competition process, which she did not have to do: she could not put herself in the position of not meeting her statutory obligations to give reasons because she had decided to adopt a particular procedure. It was submitted that the summary report, having regard to its timing and contents and the absence from it of the actual reasons for the Director’s decisions (which were only contained in the final AMI report) could not constitute a statement of reasons sufficient to satisfy the statutory obligation on the Director. It was also submitted that there was, in any event, no reason to suppose that the information particularly emphasised as being confidential, i.e. the commitment by Meteor on tariffs, was of such a nature that its disclosure would be damaging to them and hence there was no established need for confidentiality. As for the decision of the European Court of First Instance in Adia, that was of no assistance in the present case, where the issues which were the subject matter of the decision were far more complex.

In support of the first ground of the cross appeal, it was submitted on behalf of Orange, that, given that evidence was generally treated as admissible in judicial review proceedings, it followed inevitably that evidence, where relevant, should be admissible in the statutory appeal where a less deferential approach to reasonableness was adopted. The decision of the High Court in Courtney .v. The Minister of the Marine (1989) ILRM 605 was relied on in this context. The fact that the Director had opted for the approach of refusing to deal with the comparative merits of the two bidders when giving her reasons made it all the more important that the disappointed applicant should be entitled to adduce evidence on the hearing of the appeal in the High Court. The High Court judge was wrong, it was said, in holding that additional evidence could only be adduced in circumstances where it would be impossible for the court to carry out its statutory appellate function based on materials which were before the decision maker, because one party to the appeal did not in fact provide the appellate court with all the materials in question. Indeed, it was said, that it was clear from the authorities that further evidence could be adduced on a statutory appeal of this nature in relation to matters which were not before the deciding authority at all. The trial judge was in error in this case in supposing that, because a de novo rehearing was precluded, no evidence could be adduced, even though it might be of assistance in assessing the reasonableness issue. Nor was she entitled to reserve to herself the right, as she did, to seek the assistance of expert evidence from any of the parties during the course of the hearing should matters arise on which she took the view that it would be appropriate to hear such expert evidence. There was no authority for such a novel procedure.

As to the second ground of the cross appeal, i.e. that the trial judge should have found that the evaluation process was affected by subjective bias, it was submitted, that the trial judge having found that the Director’s staff had made changes to the draft reports so as to modify the harshness of the language used towards Orange and to remove those parts which appeared too negative against Meteor, and that these were made without any supporting basis, no finding other than subjective bias on the part of the Director’s staff could have been made. It was submitted that, in declining to draw this obvious inference, whether out of a misguided sense of judicial politeness or otherwise, the trial judge was in error.
1
(5) The Applicable Law

(a) The Scope of the Appeal to the High Court

The relevant legislation is considered in detail in the judgment of Barron J. As he points out, Article 9(6) of the European Commission Directive of the 10th April 1997 (No. 97/13/EC) requires that there be an appeal from the decision of the national regulatory authority, in this case, the Director, to an institution independent of that authority. In this jurisdiction, it takes the form of the appeal to the High Court pursuant to Section 111(2)(b)(i) of the Postal and Telecommunications Services Act, 1983 as amended by Regulation 4 of the European Communities (Mobile and Personal Communications) Regulations, 1996 (S. I. No. 123 of 1996). This provides that where the Director has notified an applicant for a licence in writing of her decision to refuse to grant a licence, the applicant may, within 28 days òf the receipt of the notification appeal to the High Court against the decision concerned. The High Court may either confirm the decision or direct the Director to refrain from granting the licence concerned. The Director must comply with the direction so given and must not implement the decision unless and until it is appropriate to do so having regard to the outcome of the appeal.

In considering the scope of the appeal afforded to Orange under these provisions, one should, I think, look first to the terms of the Directive. It is to be borne in mind, however, that the Directive falls to be implemented throughout the European Union in jurisdictions having markedly different legal systems. The framers of the Directive presumably envisaged that the appeal mandated by the Directive could take different forms, depending on the legal systems operative in the various Member States. Provided that the right of appeal exists to a court or tribunal properly described as independent, the procedures governing the appeal may not necessarily be the same in a common law jurisdiction such as ours and a civil law jurisdiction with a fully developed system of administrative courts.

If I am correct in assuming that the requirements of the Directive can be met by an appeal procedure which is harmoniously adapted to the legal structures of the Member State concerned, I see no reason why, subject to one important qualification, the requirements of the directive would not be met by a form of judicial review. The qualification is, of course, that leave must first be obtained to apply for judicial review. The Oireachtas, in complying with the directive has, as it was bound to do, given the unsuccessful applicant, in this case Orange, an unqualified right of appeal to the High Court.

In the common law world, judicial review of administrative decisions, such as that of the Director in the present case, has travelled far from the narrow, jurisdictional constraints which were associated with the prerogative writs and State Side orders. It affords a machinery for striking down such decisions, not merely where they are vitiated by a misconception in law of the tribunal as to its legal powers, but also on grounds relevant to these proceedings, e.g. bias, manifest unreasonableness or failure to give reasons as required by the relevant statute or by other legal principles.

In this case, however, the parties were agreed that it was not necessary for Orange to establish that the decision to refuse to grant the licence to Orange was so manifestly unreasonable as to be contrary to common sense and that, to that extent at least, the principles laid down in cases such as The State (Keegan) .v. Stardust Compensation Tribunal (1986) IR 642 and O’Keeffe .v. An Bord Pleanála were not necessarily applicable.

Accordingly, while I would approach the case on that basis, it is also clear that the High Court in hearing the appeal must bear in mind that the Oireachtas has entrusted to the Director a decision of a nature which requires the deployment of knowledge and expertise available to her, her staff and consultants retained by her, but not available to the court. As it was put by the Canadian Supreme Court in Southan .v. Director of Investigation and Research (1997) 1 SCR 748:-

“... (an) appeal from a decision of an expert tribunal is not exactly like an appeal from a decision of a trial court. Presumably if parliament entrusts a certain matter to a tribunal and not (initially at least) to the courts, it is because the tribunal enjoys some advantage the judges do not. For that reason alone, review of the decision of a tribunal should often be of a standard more deferential than correctness ...
“I conclude that the ... standard should be whether the decision of the tribunal is unreasonable. This is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal’s decision is patently unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it ...”

To the same effect is the decision of Kearns J. in M. and J. Gleeson & Co. .v. Competition Authority , (1991) 1 ILRM 401 where he was considering the nature of an appeal under s. 9 of the Competition Act, 1991 and said:-

“It seems to me clear that the concept of curial deference of necessity takes the court to this further position, namely that the greater the level of expertise and specialised knowledge which a particular tribunal has, the greater the reluctance there should be on the part of the court to substitute its own view for that of the authority. That again is the weighting which was indicated by the Canadian Court in the Southan case.
“That means in practical terms that the applicants in order to succeed must establish a significant erroneous inference which was critical to the grant of the licence and which went to the root of that decision rather than an erroneous inference relating to some detail, even if that detail is relevant.”

In short, the appeal provided for under this legislation was not intended to take the form of a re-examination from the beginning of the merits of the decision appealed from culminating, it may be, in the substitution by the High Court of its adjudication for that of the Director. It is accepted that, at the other end of the spectrum, the High Court is not solely confined to the issues which might arise if the decision of the Director was being challenged by way of judicial review. In the case of this legislation at least, an applicant will succeed in having the decision appealed from set aside where it establishes to the High Court as a matter of probability that, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors. In arriving at a conclusion on that issue, the High Court will necessarily have regard to the degree of expertise and specialised knowledge available to the Director.

(6) Bias

The leading authorities in this and other common law jurisdictions on bias are comprehensively considered in the judgments of Murphy J., Barron J. and
Geoghegan J. I entirely agree with the conclusions they have reached.

The celebrated dictum of Lord Hewart LCJ in R. .v. Sussex Justices, Ex parte McCarthy (1924) 1 KB 256, that justice should not only be done,

“but should manifestly and undoubtedly be seen to be done”

has been repeated so often, both on and off the bench, that it might almost seem superfluous to recall it in the present discussion. But it is necessary to do so, because as has unfortunately emerged from the legal arguments in this case and the judgment in the High Court, serious confusion can follow unless the true nature of the distinction he was drawing is understood. In that case, and the many cases in this and other jurisdictions which have followed it, the courts have not been concerned in the slightest degree with the merits of the decision under consideration. Nor, in the case of what Denham J., speaking for this court in Dublin Wellwoman Centre Limited .v. Ireland (1995) 1 ILRM 408 described as “objective bias” is the court concerned in the slightest degree with the manner in which the judge or tribunal concerned reached the actual decision.

In such cases, the courts proceed on the assumption that, where there is a reasonable apprehension of bias, the decision must be set aside, although there is not the slightest indication that the decision maker was in fact actuated by any bias. That view of the law is also made clear by the recent decision of this court in Radio One Limerick .v. Independent Radio and Television (1997) IR 291. As was pointed out in that case, the bias may take a variety of forms.

The decision maker may have a financial or proprietary interest in the outcome of the litigation. He or she may be related by family, social or business ties to one of the parties. He or she may have on some other occasion so prejudged the matters in dispute as to be incapable of reaching a detached decision or, at all events, a decision which reasonable people would regard as free from even the suspicion of bias.”

While the test for determining whether a decision must be set aside on the ground of objective bias has been stated in different ways from time to time by the courts in the United Kingdom, there is, in the light of the two authorities to which I have referred, no room for doubt as to the applicable test in this country: it is that the decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased, i.e. where it is found that, although there was no actual bias, there is an appearance of bias. The English decisions have proceeded on the basis that cases in which the tribunal has a pecuniary or proprietary interest in the subject matter of the proceeding fall into a special and unique category, in that in such cases bias is presumed without the need for any further inquiry as to whether in such circumstances it would be reasonable to apprehend bias: it is immediately and automatically assumed that such an apprehension would be reasonable (See Dimes .v. Proprietors of Grand Junction Canal (1852) 3 HL Cas. 758 and R. .v. Gough (1993) AC 646.). The House of Lords in Regina .v. Bowe Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 2) (1999) 2 WLR said that, in some circumstances at least, even a non-pecuniary interest in the outcome of the proceedings may be sufficient to warrant the assumption that the decision maker is automatically and immediately disqualified. In that limited category of cases, the law proceeds on the basis that, not merely must justice be always seen to be done, but that, in particular, no man or woman may be a judge in his or her cause.

All other cases - such as, for example, the “pre-judgment” category under consideration in Dublin Wellwoman Centre - call for the application of the test as to whether there is a reasonable apprehension of bias.

The distinction between objective and actual or subjective bias was again made plain by the Court of Appeal in England recently in Locabail (UK) Limited .v. Bayfield Properties Limited and Another and other applications (2000) 1 All ER 65 where the court (Lord Bingham C.J., Lord Woolf M.R., Sir Richard Scott (VC)) said that:-

“In the determination of their rights and liabilities, civil or criminal, everyone is entitled to a fair hearing by an impartial tribunal. That right, guaranteed by the European Convention on Human Rights is properly described as fundamental. The reason is obvious. All legal arbiters are bound to apply the law as they understand it to the facts of individual cases as they find them. They must do so without fear or favour, affection or ill will, that is, without partiality or prejudice. Justice is portrayed as blind not because she ignores the facts and circumstances of individual cases but because she shuts her eyes to all considerations extraneous to the particular case.
“Any judge (for convenience, we shall in this judgment use the terms ‘judge’ to embrace every judicial decision maker, whether judge, lay justice or juror) who allows any judicial decision to be influenced by partiality or prejudice deprives the litigant of the important right to which we have referred and violates one of the most fundamental principles underlining the administration of justice. Where in any particular case the existence of such partiality or prejudice is actually shown, the litigant has an irresistible grounds for objecting to the trial of the case by that judge (if the objection is made before the hearing) or for applying to set aside any judgment given. Such objections and applications based on what, in the case law, is called ‘actual bias’ are very rare, partly (as we trust) because the existence of actual bias is very rare, but partly for other reasons. The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists.
“There is, however, one situation in which, on proof of the requisite facts, the existence of bias is effectively presumed and in such cases it gives rise to what has been called automatic disqualification. That is where the judge is shown to have an interest in the outcome of the case which he has to decide or has decided.”

In the case of a non-judicial decision maker, such as the Director in the present case, the difficulty referred to in that passage as to questioning a judge about extraneous influences affecting his mind does not necessarily arise. But the difficulty of proving actual bias remains and we are, of course, concerned with a case in which the trial judge found that there was no actual bias. The authorities, however, lend no support whatever to the proposition which found favour with the trial judge in the present case, i.e. that the court is entitled to infer from the establishment of a number of errors in the impugned decision, or the process leading to the decision, that the decision itself was vitiated by the existence of bias which can be equated to objective bias.

It is not surprising that no authority has been cited in support of such a proposition because it is entirely contrary to principle. In the case of a decision by a court, a litigant who succeeds in identifying errors in a judgment is entitled to feel aggrieved, unless they are of little consequence to the result. The law affords him an ample remedy in almost every case by way of appeal to a superior court . In the case of decisions of the High Court, that remedy is to some extent qualified by the reluctance of this court to interfere with findings of fact where they are based on credible evidence, but no one has ever suggested that either at this level, or at any other appellate level, the courts are in the position that the normal appellate machinery is not capable of remedying injustice brought about by clear errors of fact or law on the part of the court concerned and that, in order to achieve justice in such cases, it is necessary to have recourse to so strained and artificial a concept of bias.

The same considerations apply, mutatis mutandis , to other tribunals and decision makers which do not form part of the court system, such as the Director, but whose functions can be regarded as quasi-judicial in nature. Generally speaking, appeals from the decisions of such bodies, even where they exist, are rarely in the nature of a rehearing, whether it be the rehearing on oral evidence in the Circuit Court or the High Court or the rehearing on the basis of a transcript of the evidence in this court. Normally, if an appeal exists, it is limited to a question of law, but there exists, of course,
the entire armoury of judicial review proceedings to ensure that the dictates of the Constitution and of natural justice are observed. In addition, in this case, there exists a special form of appeal which, as has been accepted by the parties, enables the High Court to review the impugned decision on a more generous criterion of reasonableness from the applicant’s point of view than would be available in judicial review proceedings. It is accepted that, if the refusal to award the licence to Orange in this case is to be treated as unreasonable, because of the alleged errors, having regard to the legal principles to which I have already referred, then it must be set aside. To say that, in such a case, one must then make the further assumption that it is, in any event, to be presumed to have been fatally vitiated by some form of objective bias is a non sequitur of truly startling dimensions.

Counsel on behalf of Orange, indeed, themselves acknowledged in this court that the approach of the trial judge on bias was wrong, since, in their cross appeal, they urged that the inevitable consequence of her findings as to bias should have been a conclusion that actual or subjective bias had been established. That approach at least has logic on its side: it is indeed not easy to understand how, once it had been found that the decision fell within none of the established categories which would justify a finding of objective bias, the decision of the Director could have been set aside on any ground other than actual bias or, of course, the other grounds relied on, i.e. unreasonableness and a failure to give reasons.

Counsel on behalf of Orange sought to escape from this dilemma by taking refuge in what it would be an understatement to describe as a slender line of authority. Claiming that neither in this court nor in the High Court were they inviting the court to infer from a series of errors in the decision itself that there had been objective bias, they submitted, as we have seen, that the flaws in the decision making process which they said had been identified constituted a form of objective bias. The authority principally relied on was Dineen .v. Delap , (1994) 2 IR 228, in which a decision of a District Judge was quashed in judicial review proceedings on the ground that the manner in which the District Judge was conducting the case would have given rise to a reasonable apprehension that justice was not being done and that the judge was not dealing with the case in an impartial manner.

That decision is no authority whatever for the proposition that some discrete form of bias exists in law, which is neither objective bias falling within one of the categories enumerated in the authorities nor actual or subjective bias. The decision of the District Judge was set aside because he had failed to conduct the case in accordance with natural justice or fair procedures, as has happened in other cases, both of decisions of inferior courts and non-judicial tribunals, in accordance with an established corpus of constitutional and public law which has nothing whatever to do with the forms of bias, objective or actual, under consideration in this case.

As Barron J. demonstrates in his judgment, the other decisions relied on, when examined can be seen to be examples of pre-judgment: I agree with his analysis of them and with his disapproval of the dictum by Mahon J. in Anderton .v. Auckland City Council (1978) 1 NZLR 657, in so far as it suggests any other view. A judge may conduct a case in such a manner as to violate the requirements of natural justice or fair procedures: if he does so, his decision will be set aside on that ground, whether the failure was due to fatigue in the hearing of a case at the end of a long and crowded list, an innate and sometimes regrettably irreversible tendency to rudeness or bad manners, or hostility, overt or covert, to one of the parties based on race, religion or gender or simply because the judge did not like the appearance of the litigant in question. No doubt, the last two examples will readily attract the description of “bias”. But in any such instance the decision is set aside, not on the ground of objective or even actual bias, but because, under our Constitution and law, natural justice and fair procedures must at all times be observed in the administration of justice and in proceedings before quasi-judicial tribunals and the Superior Courts will not tolerate breaches of these canons, whatever the motive and whether indeed any particular motive on the part of the adjudicating tribunal which has fallen into error has been established.

(c) The duty to give reasons

This issue is again fully dealt with by Barron J. in his judgment. I agree entirely with his conclusion that Orange was given sufficient reasons for the decision of the Director to place it second in the competition. I would merely add that, apart from any other consideration, it appears to me that the decision of the European Court of First Instance in Adia Interim SA .v. EC Commission cannot be distinguished on the grounds put forward in the argument. While it was not suggested that the High Court or this court were bound by the decision, as they would be if any question of European Union law was under consideration, it is a persuasive precedent of the first importance, given the fact that the relevant legislation is intended to implement Ireland’s obligations under directives of the Commission. I also agree with the view of Barron J. that the relevant regulations are in some respect unclear and that consideration might be given by the Oireachtas or the relevant Minister to addressing the difficulty he mentions.

(d) The evidence admitted in the High Court

This issue is also fully dealt with in the judgment of Barron J. I agree entirely with his statement of the law and the conclusions he has reached. As he points out, a great deal of inadmissible evidence was heard in the High Court. In particular, as the summary of the evidence contained in this judgment makes plain, witnesses were permitted to give evidence at length as to matters which were solely within the jurisdiction of the trial judge to resolve e.g. as to the proper legal interpretation of documents (going far beyond such legitimate aids to the court as the explanation of technical terms) and whether inferences as to bias should be drawn by the court from particular aspects of the tender procedure. Towards the end of the hearing of the appeal in this court, counsel for Orange, at the request of the court, indicated specific matters in respect of which they urge the High Court should have heard additional evidence. I am satisfied that, in the light of the law as stated by Barron J. in his judgment, none of them were admissible in evidence in the High Court.

(6) Conclusions

Reasonableness
Before dealing with the specific aspects of the procedures which, it was urged on behalf of Orange, indicated unreasonableness on the part of the Director to an extent which justified the High Court in setting her decision aside, I would like to make some general observations.

I have already emphasised the importance in a case such as this of the High Court recognising that the Oireachtas has entrusted the impugned decision to a body with a particular level of expertise and specialised knowledge or which, at the least, has the capacity, which the court has not, to draw on such specialised knowledge, as the Director did in this case by retaining the services of AMI. I have no doubt that wholly insufficient weight was given to that aspect of the case both in the judgment under appeal and in the submissions addressed to this court on behalf of Orange.

Secondly, it must not be forgotten, although it frequently was in the course of argument, that there was in fact no obligation whatever in law on the Director to adopt the particular procedure she did. There was nothing to stop her adopting a procedure which, at the end of the day, would have left the unsuccessful applicant in a far greater state of uncertainty than was Orange as to why it had failed to secure the licence. It may be that any particular procedure might, depending on its nature, be challenged on the ground that it failed to meet the criteria laid down by the Commission that the procedure should be open, non-discriminatory and transparent. Not merely did the use of the comparative bidding procedure meet those requirements: it did so in a manner which, as the evidence made plain in the High Court met even higher standards of openness, lack of discrimination and transparency.

The onus of demonstrating that the procedures adopted fell short of those criteria - in so far as that was a matter which the court was entitled to take into account - rested firmly on Orange. Although conflicting views were expressed by Dr. Young and Mr. Wigglesworth on behalf of Orange and by Professor Braunstein and Dr. Selwyn on behalf of Meteor as to the extent to which they did, there is, with one qualification, no statement, at any part of the judgment by the trial judge, that she was accepting the evidence of the Orange experts in preference to the evidence of the Meteor experts, although she undoubtedly herself arrived at the conclusion that the procedures were, in some respects, unfair. It would indeed be surprising if she had preferred the evidence of the two Orange experts, since, unlike the Meteor experts, they had never at any stage been responsible for the design and conduct of a competition such as this: both the witnesses called on behalf of Meteor had vast experience of the design of such procedures. There was, in the result, substantial evidence, nowhere dealt with in the judgment under appeal, by two eminent and highly qualified experts in this field that the procedures adopted in this case were in accordance with the best international practice.

There is another crucial feature of the tender procedure which must not be overlooked, although it repeatedly was in this case. If the tender documents are criticised as “unfair”, as they repeatedly were, in, for example, not disclosing in advance the weightings and indicators adopted at a later stage (after the bids had been opened in the case of the indicators), the question would seem immediately to arise: “unfair to whom?” If it was unfair to Orange, it was equally unfair to Meteor and to anyone else who was interested in bidding for this particular licence once the tender documents had been published and made available to the world at large. I do not know by what linguistic contortion such a procedure can be described as “unfair”. It was simply the procedure adopted and one with which Orange apparently found no difficulty until they discovered that the Director was proposing to act on the basis of the final evaluation report and place them second in the competition. Even in the representations made on their behalf at that stage, there is not the slightest indication that they considered those aspects of the tender document, which were subsequently so heavily criticised on their behalf in the High Court and this court, in the slightest degree objectionable. On the contrary, they simply at that stage attempted to mend their hand by, for example, offering to give binding commitments on tariffs, without any indication whatever that they were being in some sense penalised by being required to give such a commitment without being adequately forewarned of their importance by the tender documents. Orange, moreover, were not novices: they are a large commercial organisation with experience on an international scale in this field. It is beyond credibility that they agreed to take part, for whatever reason, in a competition for a licence which was not only unfair in terms of the procedure subsequently adopted but which unfairness, it was claimed for the first time in the High Court, was patent on the face of the tender documents themselves.

I next turn to the specific issues in respect of which the allegations of unreasonableness and bias were advanced in the High Court and again in this court. Since the nature of the issues between the parties as to the various matters relied on on behalf of Orange will have become apparent from the summary of the opening submission on behalf of Orange in the High Court, of the evidence in the High Court and of the submissions to this Court, I shall endeavour to avoid lengthening an already lengthy judgment by any detailed reference to them.

(a) Binding Commitments on Tariffs

The case of Orange under this heading went further, of course, than the inadmissible complaint already referred to, i.e. that the tender documents themselves were in some sense “unfair”. Their essential admissible complaint was as to the creation of the new indicator as to binding commitments on tariffs and the weighting attached to that new criterion, in circumstances where no notice, as it was said, of its vital significance was ever signalled to Orange in advance of the bid or at the time the new criterion was introduced. This, it was said, was in circumstances where the evaluators who created the criterion and defined the weighting were fully aware of what they saw to be an offer by Meteor of binding commitments and the absence of such an offer from Orange.

The complaint of Orange under this heading, although not so patently inadmissible as their complaint in relation to the actual nature of the tender documents, is nonetheless, in my view, unsustainable. Marketing, at 38%, was the largest single group of the five groups set out in the tender document and tariffs was the first dimension in that group. It was made perfectly clear in the tender document that they were listed in order of descending significance and that, accordingly, tariffs were the single most important dimension in the largest group in the tender document.

As to the suggestion that the tender document did not indicate with sufficient clarity that importance would be attached to binding commitments, I find the position to be as follows. The tender document expressly stated that

“at this stage applicants should indicate any binding commitments on tariffs, including any reduction predicated on more favourable interconnection charges or other commercial conditions and downward trends over the licence period.”

This is one of the instances in which it was ultimately a matter for the court to consider what that expression meant. While I have to say that, with great respect, I do not altogether follow the reasoning in the judgment of the trial judge on this particular matter, her conclusion seems to have been that this particular sentence did not indicate the importance of binding commitments as to tariffs with sufficient clarity. In this connection, as I have already pointed out, she appeared to have attached some significance to the comment of Professor Braunstein already quoted. Since the construction of the document was a matter for the court and not for Professor Braunstein, I find it difficult to understand why so much weight was attached to what was plainly no more than an indication from an expert in another discipline of the weary incredulity with which detached observers sometimes regard the legal process at work. Be that as it may , this court, while it cannot interfere with any finding as to credibility by a trial judge, is entitled to draw its own inferences from the evidence as it is recorded in the transcript. Given that Professor Braunstein had, in the course of his direct evidence and in response to cross examination, stated most emphatically that the tender document did in fact indicate the importance attached to binding commitments as to tariffs, the remark to which the trial judge attached so much significance was quite incapable, in my view, of justifying an inference that he was in some sense retreating entirely from the position he had adopted so robustly throughout his evidence.

It is not in dispute that Meteor did offer binding commitments. The proposition that, because they also invited the Director to include in the licence a machinery for enabling them to petition the Director to alter the tariffs in the light of changing circumstances, they were not in fact offering binding commitments to tariffs is unstateable. Since the Director could always refuse to incorporate such a condition and, even if she did, could flatly reject any such petition by Meteor, it did not in the slightest degree alter the fact that Meteor were offering binding commitments to tariffs and could not expect any licence offered by the Director to take any other form. Undoubtedly, the tender document made it clear that the Director reserved the right to incorporate proposals made in the successful application into the licence as binding terms and could do so, even where, as in the case of Orange, they had declined to give any binding commitment as to a particular matter, i.e. tariffs. Thus, if, as a result of the evaluation process as a whole, Orange had been placed ahead of Meteor in the competition, there is not the slightest doubt that the Director would have been in a position to impose whatever terms she thought appropriate as to the maintenance of tariffs at a particular level in the actual licence. But that is entirely consistent with the Director also attaching considerable importance to what she might well have seen as the economic philosophy underlying the Orange application and which, in her view, might well have justified the isolating of the binding commitments on tariffs and price developments indicator and the specific weighting attached to it.

As to the proposition that the identification of the indicator and the weighting of it at a stage when the bids had been read and evaluated was “unfair” to Orange, this must be seen in the light of the indications clearly given in the tender documents as to the importance of commitments to tariffs. In this connection, I confess to finding it extremely difficult to follow the argument advanced that in some sense the evaluators, in adopting what the trial judge described as a “low tariffs” policy, were departing from the policy objective of the tender process which, in her view, was “lower” tariffs as contrasted, it would seem, with “low tariffs” . One hardly needs to be an expert in economics to know that where, as here, the bid for access to the spectrum was capped at £10 m. and each of the applicants had bid to the maximum, the dominating consideration in this competition, unlike auctions with no cap on the access fee, would be, as the Director put it in the information memorandum of 2nd December 1997 available to all the applicants

“to increase competition and choice so that the Irish consumer benefits from lower tariffs and the availability of high quality service.”

Most remarkably of all, this case succeeded, although nobody from Orange was apparently prepared to give evidence that they had wholly misunderstood the significance attached to binding commitments on tariffs when, presumably with the expert assistance available to a prospective bidder engaged in so important a process, they read the tender documents. Any doubts they might have had on the topic - and it is difficult to understand what they might have been - must have been entirely resolved when, during the course of the oral presentation, the absence of any binding commitments as to tariffs was expressly drawn to the attention of their representatives, who made it abundantly clear in their response that they considered that they had perfectly sound reasons, as no doubt they had, for declining to give any such commitments.

If it were a matter for the High Court or this court to decide, my own view would be that there is much to be said for the approach taken in the preparation of the tender documents, i.e. that the weightings to be attached to the dimensions and the indicators during the evaluation process should not be disclosed in the tender documents themselves, since the object of the entire evaluation procedure is to ascertain which of the bids on offer, if accepted, is more likely to achieve the policy objectives set out by the Director. Orange, presumably, would have had no complaint if all the weightings attached to the dimensions and all the indicators and the weightings to be attached to them had been disclosed in the tender document. It would seem common-sense that, in such circumstances, both bidders would ensure that they scored highly in the heavily weighted dimensions by tailoring their bids accordingly. The result might well have been a significantly less illuminating competition. However, it was for the Director and those advising her to decide where she should strike the balance as to the degree of disclosure as to weightings, indicators, etc. in the tender documents and the experts most qualified to express a view had no doubts that she had achieved such a balance.

I am satisfied that the finding in the High Court that the approach adopted by the Director to the tariffs area was unreasonable was wrong and cannot be upheld.

(b) Terms of Subscription and Bonus to Distribution Channels

The case made on behalf of Orange in the High Court and again in this court was that the failure of the Meteor bid to provide any subsidy for handsets fatally undermined the entire viability of Meteor’s bid and that the failure of the Director, as it was put,
“to understand and/or properly evaluate these matters was unreasonable.”

The evidence of Dr. Selwyn, who possessed an expertise unrivalled by any of the other witnesses who gave evidence, was blunt and unequivocal. He was not in the least surprised by the absence of any provision for the specific form of handset subsidies utilised by Orange in the Meteor bid. He said that the regulator in a case such as this would be perfectly entitled to assume that an entrant to the market would provide some form of subsidy for handsets, although not necessarily in the form adopted by Orange. To do otherwise, he said, would be “suicidal”. The High Court judgment nowhere rejects this evidence or raises any question as to the credibility of Dr. Selwyn as a witness. It follows inevitably that Orange wholly failed to discharge the onus of proof which lay on them of establishing that the approach of the Director, her staff and AMI was unreasonable. It seems to me that all those concerned in the evaluation process, far from being unfair to Orange, were at pains not to seek any further information from Meteor which might have had the result of enabling them to improve their bid subsequent to its being lodged. The suggestion that the cross checking exercise subsequently carried out to determine whether the Orange approach to subscription contracts and the “claw back” of handset subsidies was of doubtful legality or anti-competitive is equally implausible. Once any doubts had arisen on this issue, it would have been surprising if it had not been reassessed and the result of the reassessment did not in any way adversely affect Orange’s markings under the relevant indicators.

As to the failure of the evaluators to include a specific indicator on handset subsidies, it was entirely a matter for them whether they treated it as part of the indicator “bonuses to distribution channels” and there was no obligation whatever on them in terms of the tender document or the procedures envisaged by that document to include a specific indicator as to “handset subsidies” .

A good deal of time was occupied both in the High Court and in this court with an elaborate analysis of the aspects of the two bids comprised under the dimension “marketing strategy” . The initial analysis, it will be recalled, had indicated a discrepancy between the two budgets of so erratic a nature as, in the view of the evaluators and Ms. O’Gorman in particular, to warrant further analysis. The relatively innocuous conclusion that the results of that analysis “tended to close the gap” in this particular area between the two bids was said to be not merely inaccurate in some respects but so inaccurate as to justify a finding of unreasonableness.

There are, no doubt, different views possible as to the methodology adopted by the evaluators in this area, although again neither Professor Braunstein nor Dr. Selwyn, the only witnesses apart from the Director of Staff and the AMI team with any directly relevant experience, thought the approach they adopted unreasonable. It was argued on behalf of Orange that, since the costs added to the equation by the evaluators which resulted in the narrowing of the gap would have been incurred by Meteor in any event, they were not appropriate for inclusion under the heading “Bonus to distribution channels” . It is sufficient to say that a finding that treats the approach urged by counsel on behalf of Orange as preferable to the approach actually adopted by the evaluators may be entirely legitimate. But as the trial judge herself recognised, the Director is not only entitled, but obliged, to make preferences in the course of a procedure of this nature. Given the deference which is due by the courts to tribunals deploying specialised knowledge and expertise in this area, I am satisfied that no ground was established in the High Court or in this court for treating the Director’s decision in this area as unreasonable.


(c) Financial Solidity

The debate in this area dwelt particularly on the indicator “financial strength of consortia members” . It was suggested that the failure to investigate the strength of the new participants in the Meteor consortium, once AT & T had withdrawn, was a “gaping hole” in the evaluation process which fatally undermined its credibility and supported a finding of unreasonableness. It was also said that the marks in this area had been re-marked and that this had been done without any evidence to support the re-marking.

It is unnecessary to traverse again the evidence on this issue which is summarised at an earlier part of this judgment. It is sufficient to say that all those concerned in the re-marking process said that it was rendered necessary by the fact that the steering group had not taken sufficient account of the weaker members of the consortium and had unduly concentrated on the 60% majority partners, Western Wireless. Secondly, they had not had sufficient regard to the somewhat different financial profile in the telecommunications industry.

The evaluators may have been right or wrong in the conclusions they arrived at in this area. Again, however, that is patently not the test to be applied when one is determining whether the award is to be set aside on the grounds of unreasonableness. It is not in dispute that the alterations in the markings resulting from the reassessment, justified or not, by the steering group made not the slightest difference to the competition. There was no change whatever in the overall marks as a result. To treat the re-marking, in these circumstances, as a matter of such central importance as to justify, whether alone or in conjunction with other factors, the setting aside of the award of the licence, is wholly unwarranted.

Similarly, the extent of the investigation carried out into the strength of the minority participants after the AT & T withdrawal was entirely a matter for the experts concerned. Their view that the crucial matter was the financial strength of the majority participant in the consortium - Wireless World - was entirely borne out by Dr. Selwyn, whose evidence again appears to have been wholly overlooked in the High Court judgment and is not referred to in any of the submissions on behalf of Orange.

(e) Experience/Expertise

The complaint in this area extended principally to the inclusion of a specific indicator under the heading “Experience in the Irish Market” , in respect of which Orange were awarded the lowest score, “E” and Meteor were awarded the second lowest score, “D”. The difference in percentage terms to the overall result was no more than 0.32%. The basis of the complaint was, as I understood it, not that experience in the Irish market would be irrelevant - that would indeed be a surprising proposition - but rather that the tender documents gave no indication that such experience would be taken into account. Again, one hardly has to be an expert to understand that, under a general heading such as experience/expertise, knowledge of the relevant market to which one is seeking entry might weigh to some degree in the evaluation process. Again, I am satisfied that the proposition that the evaluator’s approach to this singularly peripheral issue was so flawed as to justify, either of itself or in conjunction with the other alleged defects in procedure, the setting aside of the decision to award the licence to Meteor, is wholly unsustainable.

(f) Strategic Alliance with An Post

The complaint under this heading appears to have been advanced more in the context of bias than of unreasonableness as such, the suggestion as to bias being coupled with other instances in which it was said that Orange were unfairly treated as being a United Kingdom company, with Meteor by contrast being given preferential treatment because of some Irish aspects to their bid. However, a somewhat faint argument was addressed to the effect that, even in terms of unreasonableness, this also constituted a ground, in conjunction with the other grounds already discussed, for setting aside the award. It was said, which was undoubtedly the case, that there was no binding contractual arrangement with An Post and that, accordingly, the proposals for what was described as a “strategic alliance” should have been disregarded by the Director.

The weight to be attached by the Director to the proposed alliance with An Post was entirely a matter for her. To say that she was not entitled to take it into account at all is clearly wrong. It would have been wholly unfair to Meteor had she simply ignored their proposals in this area and, had she adopted a similar approach to the Orange bid, assuming they had a similar proposal as part of the bid, Orange would have been rightly indignant. I am satisfied that, neither alone nor in conjunction with the other alleged defects in the evaluation process, was this capable of sustaining a finding of unreasonableness.

I am satisfied that none of the grounds relied on by Orange as justifying a finding of unreasonableness was made out.

Bias

I have already made it clear that, in my view, the approach adopted on behalf of Orange in the High Court and again in this court on the question of bias was entirely misconceived. Since there was not a scintilla of evidence that the Director, or any member of her staff or any of the consultants retained by her had any interest whatever of a pecuniary or other nature in the outcome of the tender procedure, there was no basis in law or on the evidence for the finding of objective bias made by the trial judge.

The submission on behalf of Orange that aspects of the procedures adopted by the evaluators - as distinct from their specific findings and markings - would support a finding of either objective or actual bias is, for the reasons I have already given, equally unsustainable. However, since the allegations as made and upheld in the High Court clearly constitute reflections of the utmost gravity on the integrity of the licensing process for which the Director must ultimately take responsibility it would be unjust, in my view, not to arrive at a conclusion on the various matters raised in this context.

(a) Ireland treated as an “essential part” of the Orange market in the U.K.

The suggestion that this reference in the evaluation report, coupled with certain other statements in that report, reflected a bias, particularly on the part of the Danish members of the AMI team, against an application emanating from the United Kingdom - a bias which, it was said, was so insidious as to contaminate the Irish members of the evaluation team and the Director herself - strains credulity to breaking point, to use no stronger expression. Orange were perfectly entitled to regard that as an inapposite description of their marketing strategy in relation to these islands, but given that the report was also at pains to describe their general approach in this area as “appealing” - and again one does not have to be an expert in these matters to see the advantages of a United Kingdom based company treating their operations in both islands as an integrated whole - to move from that to a conclusion that a whole group of professional people concerned in a licensing process of the first importance which had to be conducted with rigorous objectivity were in fact by such a reference indicating a crude and xenophobic prejudice against a particular bidder was a reflection on the integrity of the Director, her staff and AMI which was wholly unjustified.

“The Irish Touch”

Again, the use of this expression in the report was unblushingly advanced as evidence of the same crude and xenophobic hostility to the Orange bid, because of its source. It seems to me that the fact that a particular bidder was better acquainted with the circumstances of the Irish market and had sought to tailor the bid somewhat more closely to Irish conditions than the other bidder was a factor which the Director was perfectly entitled to take into account.

(c) Belgian Licence/Hans Snook

In the light of the information available to them, the evaluators were correct in stating that the licence obtained by Orange applied only to DCS 1800. The fact that they subsequently were granted access to the E-GSM band was irrelevant, since it was not usable at the time of the hearing in the High Court.

The finding by the trial judge that the evaluation report was inaccurate, in saying that Mr. Snook had stated that he was unaware of the application of Meteor, since he had stated only that he was unaware of an application by Western Wireless, is based on the distinction drawn between the status of a parent company and its subsidiaries. No doubt Mr. Snook, in the passage quoted, referred to the bid by Western Wireless and not the Meteor bid. However, there is not the slightest reason to suppose that he was doing other than referring to the bid by Meteor and it is not disputed that Orange had tried to create a consortium with the group of companies which subsequently backed Meteor.

It hardly needs to be emphasised that, in any event, these were described as “minor discrepancies” in the Orange application and there is no reason to suppose that it made any difference to the ultimate outcome of the tender procedure.

(d) Alterations to drafts and re-marking of indicators

Again, the criticisms advanced of changes during the drafting process can be dealt with shortly. The fact that the Irish evaluators were concerned that a description of a particular aspect of the Orange bid as “unprecedented” was somewhat too severe and should be modified to “atypical” reflected, if anything, a desire on the part of the Irish evaluators to ensure that the document that went before the Director was fair to Orange in this context. This court was, however, invited to treat it as a deliberate attempt to mask a degree of bias and prejudice on the part of the Danish members of the group and to ensure that the Director was not aware of that lurking hostility to the Orange bid. Such an alteration in phrasing, clearly dictated by linguistic nuances, provided a preposterously slender basis for so serious an allegation which I am satisfied was wholly unwarranted.

Even more disquieting was the allegation that the marks in relation to the indicator “financial strength of consortia members ” had been deliberately manipulated in order to ensure that Meteor were not given the E mark which, it was asserted (wrongly, as it happens) would have eliminated them from the competition or, at all events, would have had a most damaging effect on their prospects and that this was done, with that objective in mind, in collusion between Mr. McQuaid and
Mr. Anderson.

The trial judge found that this allegation had been substantiated, but said that she was not treating her finding as one of fraud on the part of anyone concerned in the evaluation process. It is true that fraud in law is an extremely elastic concept which can range all the way from a technical doctrine in the courts of equity which would treat an innocent, albeit mistaken, use of a particular power as “a fraud on the power” to criminal behaviour. If Mr. McQuaid and Mr. Anderson were indeed guilty of such conduct, then, while it would obviously be far worse than the purely technical fraud in equity to which I have referred, it would also fall short of actual criminal behaviour on their part. But that it involved a most significant degree of moral turpitude, an essential component of fraud in both its civil and criminal forms, there cannot be the slightest doubt. In a purely commercial context, such behaviour would be deplorable: in a tendering procedure of the highest importance involving the allocation of an immensely valuable and scarce national resource entrusted by the Oireachtas to a person appointed as an independent statutory officer and expected to be free of any animus, bias or pre-judgment, the allegation was of profound seriousness and one which, if upheld, would be significantly damaging, not merely to the tendering procedure in this case, but to every other procedure conducted by the Director in the exercise of her statutory duties.

Counsel on behalf of Orange in this court made heroic efforts to minimise the significance of this aspect of their case by pointing out that it had, after all, not emerged until relatively late in the case in the High Court and that, indeed, much of the opening submissions to the High Court was concerned solely with the question of unreasonableness. That is undoubtedly the case. It should be observed, indeed, that in the statement of claim delivered on behalf of Orange, it was pleaded that the “bias” took the form of a plea that there had been “a constant pattern of grossly unfair media coverage” of the application of Orange. That allegation does not appear to have been pursued in the High Court and had certainly been abandoned when the appeal came on for hearing. The claim as to bias in the opening submission was entirely different in nature and it was not until the case had been at hearing for some time that the most serious allegation of all, i.e. that the marks had been deliberately manipulated in order to ensure that Meteor were awarded the licence, was made.

But it was also the case that the allegation was made deliberately and in express terms, objected to with understandable force by counsel on behalf of both the Director and Meteor and persisted in in the High Court and in this court. Even more seriously, Mr. McQuaid, the public official who, it was alleged, was part of this sinister conspiracy designed to ensure that the outcome of the process was decided in favour of Meteor rather than Orange, was allowed to leave the witness box without this grave charge being put to him and his being given an opportunity to respond.

I have no doubt that the charge was wholly unwarranted and unsupported in any way by the evidence before the trial judge. If it were relevant to any finding of law which this court is required to make, I would not have the slightest hesitation in setting aside the finding of the High Court in this area as being wholly unsupported by any evidence whatever.

I am satisfied that no part of the claim resting on bias was made out in the High Court and that the Director and Meteor are entitled to succeed on this aspect of the appeal also.


The length of the trial and the appeal

The case has occupied a wholly inordinate degree of court time, both in the High Court and in this Court. It took 51 days in the High Court and 17 days in this Court. This was due in part at least to the absence of appropriate case management structures in the High Court at the time of the hearing. The Working Group on a Courts Commission in their Sixth Report, having reviewed their previous work on administrative case management, concluded that it should now be regarded as being within the remit of the Courts Service. This case demonstrates that the problem can be indeed acute. If and when the issues had been identified in pleadings and discovery limited to those issues duly made, a preliminary conference between the judge, counsel and solicitors should have ensured that the issues were clearly understood and that the judge was provided well in advance of the hearing with the relevant documents - and only the relevant documents - so as to avoid the immensely time consuming process of documents being read in court during the opening and indeed throughout the giving of the evidence. No doubt it is easier to see with the benefit of hindsight the problems which arose and how they might have been resolved but it may well be that the substantial parties to commercial litigation having access to the best legal advice may be best placed to adopt newer procedures and illustrate their benefits for others.

Order proposed

I would allow the appeal in this case and substitute for the order of the High Court an order dismissing the appeal of Orange. I would also disallow the cross appeal.


THE SUPREME COURT

224 & 278 /1999
& 14/2000


KEANE CJ
MURPHY J
BARRON J
MURRAY J
GEOGHEGAN J



BETWEEN:

ORANGE COMMUNICATIONS LTD
PLAINTIFF

AND

THE DIRECTOR OF TELECOMMUNICATION REGULATIONS AND
METEOR MOBILE COMMUNICATIONS LTD
DEFENDANTS



JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 18TH DAY OF MAY, 2000
________________________________________________________________________




1. I agree with the judgment handed down by the Chief Justice. In deference to the comprehensive arguments addressed to this Court I would wish to add certain observations. In so doing I would adopt the detailed history of the matter so clearly set out in the judgment of the Chief Justice and I would take advantage of the abbreviations, descriptions and references which he has made in his judgment.


2. To condemn as biased the decision of a judge or other decision maker involves two conclusions. First, that the adjudicator is affected by some factor external to the subject matter of his decision and, secondly, that in relation to the particular decision the external factor operated so as to tilt the judgment in favour of the successful party. The distinction is crucial. The existence of the extraneous factor must be proved as a fact on the balance of probabilities: The operative effect of an impermissible factor (where it does exist) is presumed.


3. In most of the reported cases involving an allegation of bias against a judge (and under that heading I would include all decision making bodies) the existence of some extraneous factor relating to the circumstances of the judge is admitted or acknowledged. For example, in the leading case in this jurisdiction, Dublin Well Woman Centre Ltd .v. Ireland [1995] ILRM 408 it was immediately recognised that Ms Justice Carroll had acted as Chairperson of the Commission on the Status of Women so that the argument in the case, and the decision on it, turned on to whether that fact might affect the impartiality of the Judge or, more correctly, give rise to a perception of bias. Similarly in the leading English case of ex parte Pincohet Ugarte [1999] 2 WLR 272 the fact that Lord Hoffman had links with Amnesty International was not in dispute. The issue was whether that association might be perceived as affecting his judgment.


4. However, the proposition that justice should be blind and that the judge should be wholly untouched by extraneous considerations is not merely unattainable: it is undesirable. In Laird .v. Tatum 409 US 824 (34 L Ed 2d 50) Justice Rehnquist (as he then was) considered a motion to disqualify himself, under the appropriate US legislation, on the grounds of bias. The distinguished Judge conceded that prior to his appointment, and in his capacity as an expert witness, he had appeared on behalf of the Justice Department before Senate hearings and expressed views material to the issues in the case pending before him. Having explained that most Justices come to the Bench no earlier than their middle years and that it was therefore probable that they would have expressed views in different forums on constitutional issues he went on to say (at page 59):-


“Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”

5. Rehnquist J referred to with approval extracts from the often quoted judgment of Justice Franck in In re JP Linahan 138 F2d 650: A particularly attractive passage from that judgment is in the following terms:-


“Democracy must, indeed, fail unless our Courts try cases fairly, and there can be no fair trial before a judge lacking in impartiality and disinterestedness. If, however, ‘bias’ and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions; and the process of education, formal and informal, creates attitudes in all men which affect them in judging situations, attitudes which precede reasoning in particular instances and which, therefore, by definition are pre-judices.”

6. The views expressed by Lord Bingham of Cornhill CJ in Locabail Ltd .v. Bayfield Properties [2000] 1 All ER 65 provide a more specific analysis of factors which might be thought to affect the decision of a judge but could not be classified as impermissible. Lord Bingham (at page 77 of the report) excluded the factors following:-


“We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment, background or history, nor that of anymember of the judge’s family; or previous political associations; or members of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him or membership of the same Inn, circuit, local law society or chambers ....”


7. Having then identified a number of circumstances which would give rise to a suspicion or


belief of bias the Lord Chief Justice went on to exclude the following:-


“The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection was raised, the weaker (all things being equal) the objection will be.”

8. It is unnecessary to express any view whether all the circumstances listed by Lord Bingham as being unexceptional would be similarly treated in this jurisdiction or whether, indeed, a comparable list here would be even longer. It is sufficient for the purposes of this appeal to emphasise that not all extraneous factors are fatal to the reality or appearance of impartiality in the exercise of the judicial function. Accordingly, a party asserting bias must prove, by appropriate evidence and to the required standard, not only the existence of a particular relationship, circumstance or factor but also that it falls outside the permitted limits.


9. In the present case the original plea of bias was addressed to the Director personally. It had been expressed in the Statement of Claim at paragraph 22 in the following terms:-


“The plaintiff claims that the first defendant has wrongly been biased and prejudiced against the plaintiff, which bias and prejudice is evidenced by a consistent pattern of grossly unfair media coverage of the plaintiff’s application, made possible by the wrongful revelation of the first defendant’s attitude and proposed actions to third parties and their publication in the media before they were communicated to the plaintiff, which has led to serious public misconceptions and has been calculated to embarrass the plaintiff in making its application, its representations and in pursuing its statutory right of appeal.

10. Those allegations were extended in particulars delivered by Orange but the forceful statement of the allegation was made by Counsel on their behalf in the course of the hearing when he said:-

“I have alleged in my pleadings that there was bias and prejudice, and I make the point to you now, it appears that Mr Anderson was responsible, that the Danes were responsible for this prejudice and bias. It appears that Mr Anderson was the major man from AMI and he was the person who persuaded the steering group that they should not ask any searching questions about AT & T. The inference I am asking you to draw is that he and his colleagues ..... and all of them are equally responsible for this, let us be clear about it, the others did not stand up against him in this decision which was manifestly wrong. I am not saying that the Irish people went along with this strategy, none of whom by coincidence, even if they didn’t agree with him it turns out that none of them asked AT &T any hard questions in relation to this issue or asked Meteor any hard questions in relation to this issue, where as it does appear that Mr Anderson was the leading light in making the decision, all of them were equally responsible for it my lord.”


11. That allegation was amplified in the course of a question addressed to Mr McQuaid (day 33, page 131, question 473) in the following terms:-

“I am suggesting to you, Mr McQuaid, that what went on here was that Mr Anderson and the people who took the anti-Orange position, the people who said that their attitude to this competition was unprecedented, the people who constantly referred to the British dimension of the Orange matter and also referred to the Irish aspect of Meteor’s competition, that those people took a prejudiced and biased anti-Orange (sic) throughout this competition and what you did was to produce a report which was tidied up, so as not to reflect the real attitude of the people whom made the real decisions, weeks and weeks before the final report was furnished.”

12. That was the case of bias on which the Plaintiff relied. Orange sought to substantiate this case by an analysis of the decisions made or conclusions reached within the competitive system established by the Director.


13. An isolated erroneous decision - even one made in the context of criticism of counsel for the unsuccessful party - is not evidence of bias. There is a clear distinction to be made between the combination of error and an unsatisfactory trial (as occurred, for example, in Gill .v. Connellan [1987] IR 541 and McNally .v. Martin [1995] 1 ILRM 350) and a biased judge delivering a biased judgment.


14. Of course a judge may in a particular case reveal an existing bias which should disqualify him from hearing certain cases. Berger .v. United States 255 US 22 provides an unhappy example of such a prejudice. The trial judge commented in the course of the hearing that “One must have a very judicial mind, indeed, not to be prejudiced against the German Americans in this country .... I know a safe-blower .... and as between him and this defendant, I prefer the safe blower”.



15. Furthermore no authority was cited in support of the proposition that bias could be inferred from a series of adverse findings in a particular case. Indeed some American authorities - which are of course based on a different jurisprudence - would suggest that such a procedure lacks validity. In National Labour Relations Board .v. Pittsburgh SS Co 337 US 656 a hearing officer found the witnesses for the company untrustworthy and those for the union involved reliable. The NLRB adopted the finding of the examiner and the Court of Appeal upheld the conclusion that this fact alone showed undue bias. The Court of Appeal said (167 F2d 126, 128-129):-


“It is enough to say that the unvarying repudiation of the witness for the petitioner because of falsity, evasion or faint recollection, along with the consistent exaltation of every union witness as truthful, forthright and accurate destroys completely any confidence that might otherwise be placed in the findings of the trial examiner and stamps them as arbitrary.”

16. That decision was reversed by the Supreme Court (337 US at 659) which expressed its judgment in terms, with which I would agree, as follows:-


“- total rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact.”

17. Efforts have been made - again in the United States - to prove bias by reviewing judgments given by a particular judge over a period of time. In Grant .v. Shalala 989 F2D 1332 the refusal of a claim for disability benefit was appealed to Administrative Law Judge Russell Rowell who upheld the refusal. That decision in turn was appealed to the Court of Appeal and, at that stage, the claimant purported to extend her appeal to a class action on behalf of other persons similarly situated and contended that Judge Rowell was “inclined in every disability case to deny benefits: he uses his discretion to determine credibility to effect this bias against claimants” .


18. The District Court held that it could not conduct a trial in relation to that allegation of bias. However the social welfare agency itself conducted a detailed examination of more than two hundred of the cases heard by the administrative judge in question and concluded that the charge of bias was generally unfounded. That case illustrates the difficulty in establishing an unacceptable predisposition in a judge to a particular viewpoint as distinct from the fact, which would be self evident, that he had decided a particular issue on several occasions in favour of a particular party.


19. In the proceedings, both before the High Court and this Court, there was difficulty in segregating arguments based on bias on the one hand and unreasonableness on the other. Both arguments were necessarily intertwined. Even greater confusion was caused by the use of terminology which has been devised to explore the ramifications of bias where the existence of an extraneous factor had been proved or admitted. The concluding lines of that part of the judgment of the learned trial Judge dealing with bias (pages 173 and 174 of the transcript) demonstrate the error into which the learned trial Judge were led by the use of such terminology in this case. In that crucial passage the learned Judge said:-


“Having regard to the findings which I have made on the above elements, it seems to me that, as to binding commitments, subscriber contracts and low tariffs, each of these standing alone, would support a claim of a reasonable perception of bias. When the several other elements on which I have made findings are combined, however, it seems to me that a reasonable person would justifiably consider and apprehend that there had been and was significant bias on the part of the evaluators to such an extent that the decision of the Director could not justifiably stand. It is not my view that there was deliberate bias of a subjective nature on the part of the evaluators who gave evidence in the course of the hearing.”

20. In my view the fallacy of these conclusion results from the fact that the learned Judge used her findings, and the inferences which a reasonable person might draw therefrom, for two different purposes. First, to establish the existence of a unacceptable extraneous factor with the potential for influencing the decision of the evaluators and, secondly, the suspicion, belief or perception that such extraneous factors did, or might have, become operative in the instant case. The standard of proof of the existence of bias on the one hand, and its operation on the other, are very different. It is possible to suspect the unconscious operation of an extraneous factor but that does not prove its existence. Orange sought to prove the existence of an extraneous factor and its operation by the same evidence. In my view the evidence was wholly inadequate to prove the fact of bias - I hesitate to use the words objective fact of bias - and without that the reasonable observer could not prove its conscious or unconscious operation. To do so would be equivalent to a finding that the speech of Lord Hoffman in the Pinochet Case (above) was biased without any evidence or knowledge of his association with Amnesty International.


21. Evidence of the existence of a malign influence bearing on the judgment of the evaluators, or some of them, so as to sway themselves (and their colleagues) consciously or unconsciously, in favour of Meteor or against Orange is slight indeed. The evidence to the contrary is, in my view, overwhelming. AMI were selected themselves by a competitive process. They clearly have a very high reputation in the specialised field in which they practice. No case was advanced to explain a distaste by the Danish evaluators for British companies or preference for American ones. The actual evidence given by the four evaluators who gave evidence, including Mr Anderson, was a comprehensive denial that any conclusions reached or decisions made were based on a preference by any of the adjudicators for one competitor as against another. It is incomprehensible to me how a perverse influence could operate, as has been suggested, so as to affect the judgment of the highly qualified and apparently independent Irish evaluators. Above all, a comprehensive analysis of the exercise in which the evaluators were engaged does not support the view that any anti-Orange force was at work. The reality is that of the sixty-seven indicators in respect of which marks were allocated Orange challenged fifty. Of those twenty-seven were pursued before Ms Justice Macken but only six were upheld.


22. There is too an inherent conflict in the evidence adduced in support of the contention of bias. In allocating marks and weighting to the crucial indicator of “commitments and price development” the evaluators in fact drew maximum attention to what they were doing and the higher - probably decisively higher - marks that they were awarding to Meteor over Orange when an alternative and equally acceptable course would have concealed that fact. On the other hand it is suggested that additional marks were allocated to Orange and that reports were “sanitised” with the conscious intention of concealing the existence of bias which had been identified by other evaluators. Whilst the evaluators like any other judges, umpires or examiners may have fallen into error - and I am by no means convinced that they did - I am quite satisfied that the evidence does not establish that any of the evaluators were biased less still that such bias operated effectively or at all. If bias neither existed nor operated then any perception of it is necessarily misconceived. The express allegation of corruption against Mr McQuaid - and that is what it was - and the implied allegation of naiveté against the other Irish evaluators are wholly unwarranted.


23. Whilst I disagree reluctantly with the conclusions reached by the learned trial Judge having regard to immensity of the task which was imposed upon her and the diligence with which she performed it, I find myself forced to do so.


24. I would dismiss the appeal for the foregoing reasons and more particularly those set out in the judgment of the learned Chief Justice.


Keane C.J.
Murphy J.
Barron J.
Murray J.
Geoghegan J.
224/99
THE SUPREME COURT


ORANGE COMMUNICATIONS LIMITED


Plaintiff


v.


THE DIRECTOR OF TELECOMMUNICATIONS
REGULATION AND METEOR MOBILE
COMMUNICATIONS LIMITED


Defendants






JUDGMENT delivered on the 18th day of May 2000 by

BARRON J.



The Chief Justice has set out in the first part of his judgment the background to these proceedings and the submissions made on behalf of Orange in the High Court in relation to the matters in issue on this appeal. There is no need for me to repeat such matters.
The appeal raises three main issues:
(1) Did the Director fail in her statutory duty to give reasons to Orange for her decision;
(2) Was her decision tainted by bias; and
(3) Was it unreasonable.
Before dealing with these issues, it is necessary to indicate the actual procedure referred to as “ the best application method” whereby the licence was to be granted.
It was conducted by a steering group of officials from the Director’s office. These in turn appointed AMI as consultants and members of this body then joined the steering group. This group then established the basis upon which applications for the licence would be considered.
An information memorandum was published together with a tender document. The information memorandum was intended “ to provide all interested parties with summary information on the licensing process including the overall objective, a description of the process itself and the proposed licence framework.”
It stated:

“The overall objective of this competition is to increase competition and choice so that the Irish consumer benefits from lower tariffs and the availability of high quality services. The introduction of competition to this market has already resulted in a significant increase in the penetration rate for mobile telephony with lower rental charges and call tariffs. It is anticipated that the arrival of a third operator will accelerate the development of the market.”

The memorandum also gave details of the licensing process as follows:
“The competition will be administered by the Director who has established a steering group, which is responsible for the management of the selection process and the evaluation of applications. Andersen Management International of Copenhagen have been appointed to assist in the competition.

The successful applicant will be selected by way of open tender using the ‘best application method’. According to the best application methodology, the application which is awarded the highest marks in the comparative evaluation process will be ranked first. The evaluation will be in accordance with the evaluation criterion explicitly outlined and weighted in the tender document.”

The tender document was in itself a lengthy document in four parts. In its introduction it stated: “The procedure for the selection of the licensee is described in this document”. Under the heading “Questions” it provided: “All purchasers of the tender document may submit written questions concerning the invitation to tender”.
Applications were to be subjected to a two-stage evaluation process. Only those applicants fulfilling the minimum requirements would be further evaluated. In practice there were only the two applicants, Orange and Meteor and both satisfied the minimum requirements. Such applicants were to be given the opportunity to make an oral presentation.
The tender document then indicated that each valid application would be evaluated according to certain criteria referred to as comparative evaluation criterior. These were as follows:
“Group A (Weighting 38 per cent)
The proposed tariffs.
The proposed marketing strategy.
The proposed services to the end users, including scope, timing of introduction, quality and customer care.

Group B (Weighting 27 per cent)
The technical quality of the plan network.
The approach to acquisition of sites and permissions and to environmental issues.
The approach to achieving demographic coverage and the speed of roll out.

Group C (Weighting 20 per cent)
The financial aspects of the business plan in particular in relation to solidity and sensitivities.
The applicants experience and expertise.

Group D (Weighting 10 per cent)
The spectrum access charge bid by the applicant.

Group E (Weighting 5 per cent)
Performance guarantees.

Within each of the above groups, the criteria are set out in descending order of priority.”

In relation to the terms of any licence the tender document provided:

“The Director intends to incorporate proposals made in the successful application into the terms and conditions of the service licence to be granted.
Any discussions for this purpose with a successful applicant prior to granting the service licence will be held in Dublin. Such discussions will take place solely on the initiative of the Director.

The sole purpose of conducting such discussions will be to ensure that the indications given by the applicant in its application and which have formed the basis for selection are in conformity with the terms and conditions stipulated in the service licence. Thus it will not be possible for the applicant to modify the indications given in the application.”

In the portion of the tender document dealing with the description to be given by the applicant of its proposed tariff system the tender document having set out matters to be described from (a) to (f) then provided (g).
“At this stage, applicants should indicate any binding commitments on tariffs, including any reductions predicated on more favourable interconnection charges or other commercial conditions and downward trends over the licence period.”

The tender document also provided tables for setting out numerical details of the application. Included was a table setting out maximum tariffs which would be charged over the period of the licence.
As can be seen the applications were to be evaluated under five groupings. The subheadings of those groupings have been referred to as indicators. There were originally ten under the five groupings but ultimately there was subdivision of two of them so that in the final analysis there were twelve indicators. Each indicator in turn was given a particular weighting within its own group in descending order. For example, Group A had a total weighting of 38 per cent. Of its three indicators, tariffs received a weighting of 20 per cent, marketing strategy a weighting of 10 per cent and services a weighting of 8 per cent. The ultimate weight to be given to each indicator depended in turn on weightings to be given to subheadings which were known as “ Dimensions”. Each dimension had a separate weighting, the total of the weightings of each dimension equating to the weighting given to the indicator from which they were subdivided.
When the applications came to be evaluated on the basis of a qualitative analysis, each dimension was awarded a mark between A and E, A equalling 5 and E equalling 1. The full evaluated table is set out in the annex to this judgment.
In accordance with the provisions of the tender document that questions might be put to the Director by intending applicants, a number of questions were put to the Director. The answers to each question were circulated to each of the proposed applicants including both Orange and Meteor. These questions and answers are important since they indicate uncertainties on the part of intending bidders and the answers should have resolved those uncertainties. They deal with a number of aspects which assumed considerable importance in the submissions to both the High Court and to this Court.
The questions and answers which I regard as material are as follows:
“5. What scoring system or scale is applied to the weightings in order to determine an applicant’s overall score?

A. All details of the evaluation method to be used other than those outlined in section 1, paragraph 1.5.2 are strictly confidential.

9. Does item b require a performance bond to fulfil the objectives of the paragraph? The particular paragraph was as follows:

The performance guarantees offered shall be described in relation to: b penalty amounts offered in case the performance targets are not achieved.

A: No. However, attention is drawn to section 1, paragraph 1.6.2 of the tender document which states that the Director intends to incorporate proposals made in the successful application into the terms and conditions of the licence to be granted. Such conditions will be binding on the licensee.

The effect of section 1 paragraph 1.6.2 of the tender document was also referred to in Question 26a .
Q. Does the Director reserve the right to incorporate any proposals made in submission documents into the terms of the licence, or does she confine this prerogative to proposals to which bidders have indicated that they are willing to be bound?
A. The Director reserves the right to incorporate any proposals made in the successful application into the terms and conditions of the licence to be granted.

Questions 11 and 12 dealt with maximum tariffs.

11. For the purposes of this application, please describe the basis for determining ‘maximum tariffs’ (line 22-25). Is line 26 mutually exclusive from lines 22-25?

The lines referred to were contained in tables in section II Part 7 under the heading ‘Structure and Contents of the Application’. The figures which were to be inserted were to be inserted under the following headings. 22. Initial Charge; 23. Annual Subscription; 24. Normal Call Charges per Minute; 25. Off-Peak Call Charges per minute ; 26. Tariff Basket.

A. The basis for determining the ‘maximum tariffs’ is up to the applicant. ‘Maximum tariffs’ are to be interpreted as binding maximum tariffs which are offered to all customers and which cannot be exceeded. Line 26 is mutually exclusive from lines 22-25.

12. Do the maximum tariffs indicated in Table 7.8 form a binding commitment over the period of the licence?

A. Yes, but the maximum tariffs can be adjusted according to the actual inflation rate in relation to the general assumption of a 3 per cent inflation per year.

Q. 58 dealt with section 1 paragraph 1.6.2. regarding the incorporation of terms and conditions in service licence to be granted.

There is a statement that it will not be possible for the applicant to modify the indications given in the application. Is there any scope for renegotiation should circumstances necessitate it?

A. No.”

The next stage in the competition was the delivery of the bids, which in the event were made only by Orange and Meteor. These were then evaluated by working groups of between five and seven members roughly divided equally between the two groups in the steering group. Each indicator was considered by a different working group, though members of these groups were involved in relation to several indicators. In the course of this stage, questions were put to each of the bidders upon matters which the working groups required to be clarified. Each bidder also made an oral presentation. The final evaluation then took place; the bidders were placed in order and the result published.
Orange was then informed that the Director did not propose to grant a licence to it. This was followed by a summary report which contained in very specific form the views of the Director as to the strengths and weaknesses of Orange’s application. Orange sought from the Director the reasons why she was not prepared to grant it a licence. The reason given was that Orange was placed second in the competition. Orange then made representations to the Director. These were answered by the Director in effect by stating that the representations were really a repeat of the application. Orange have now appealed against this refusal. Both the holding of the competition and the subsequent matters are set out in a statutory background.
THE STATUTORY BACKGROUND
There have been a number of European Directives seeking to free competition in mobile telephones. The first of these was Commission Directive No. 90/388/EEC issued on the 28th June, 1990. This was amended in 1996 by Commission Directive No. 96/2/EEC issued on the 16th January, 1996. So far as is material to the present case this Directive provided that licences should be awarded according to open, non-discriminatory, and transparent procedures. On foot of these Directives the European Communities (Mobile and Personal Communications) Regulations, 1996 (S.I. No. 123 of 1996 (the 1996 Regulations) was passed.
By Regulation 4 section 111 of the Postal and Telecommunications Services Act, 1983 (the Act) was amended by the insertion of subsection (2B).
This subsection provided inter alia as follows:
“S. 111 (2B)(d) A licence and the granting or the refusal to grant a licence shall be in conformity with the requirements of Commission Directive No. 90/388/EEC of 28th June, 1990, as amended by Commission Directive 96/2/EC of 16th January, 1996.

(e) Without prejudice to subsection (3) but subject to paragraph (d), a licence shall be subject to such terms and conditions as the Minister may determine and specify in the licence ...
(f) Whenever the Minister proposes to refuse to grant a licence ...
(i) The Minister shall notify the applicant for the licence (‘the applicant’) ... of the proposal and shall include in the notification a statement of the reasons for the proposal and of the rights of the applicant ... under paragraph (g), and

(ii) before deciding to refuse such grant ... the Minister shall take into account any representations made by the applicant ... within the period specified in paragraph (g) in relation to the proposal aforesaid.

(g) A person may, within twenty-one days of the receipt by him or her of a notification under paragraph (f), make representation to the Minster relation to the proposals concerned.

(h) The Minister shall notify the applicant ... in writing of a decision by the Minister to refuse to grant ... a licence ... and shall include in the notification a statement of the reasons for the decision and, where appropriate, of the rights of the applicant ... under paragraph (i).

(i) A person may, within twenty-eight days of the receipt by him or her of a notification under (h), appeal to the High Court against the decision concerned ... and the High Court may confirm the decision or direct the Minister,... to refrain from granting ... the licence concerned, and the Minister shall comply with a direction under this subparagraph and shall not implement the decision unless and until it is appropriate to do so having regard to the outcome of the appeal.

(n)(i) The Minister may grant a licence to the person who was selected by the Minister, pursuant to the competition held by that Minister for that purpose in 1995, to provide and operate in the State a public and - European cellular digital hand-based mobile communications system (GSM).

(ii) Paragraphs (f) (g) (h) and (i) shall, in so far as they relate to a refusal to grant a licence, not apply to such a refusal in relation to applications for the grant of a licence under this section made before the commencement of this subsection whether pursuant to the competition aforesaid or otherwise.”

The powers given to the Minister are now exercisable by the Director by virtue of the provisions of the Telecommunications (Miscellaneous Provisions) Act, 1996.
The procedure contained in the provisions of s. 111(2B)(f) - (i) of the Act is that invoked by Orange in these proceedings. Since there have been later Directives and later Regulations, it is necessary to refer to them before considering the extent and scope of the rights of Orange under these provisions.
The 1990 Directive was further amended by Commission Directive No. 96/19/EEC made on the 13th March, 1996. So far as these amendments are material, an amended Article 2(3) provided:
Member States which make the supply of telecommunications services or the establishment or provision of telecommunications networks subject to a licensing, general authorisation or declaration procedure aimed at compliance with the essential requirements shall ensure that the relevant conditions are objective, non-discriminatory, proportionate and transparent, that reasons are given for any refusal, and that there is a procedure for appealing against any refusal.”

And amended Article 2(4) provided:

“Member States shall communicate to the Commission the criteria upon which licences, general authorisations and declaration procedures are based together with the conditions attached thereto.

Member States shall continue to inform the Commission of any plans to introduce new licensing, general authorisation and declaration procedures or to change existing procedures.”

A further Commission Directive was made on the 10th April, 1997 No. 97/13/EC. Several of its provisions are relevant to the facts of the present proceedings. Article 8 provided that conditions could be attached to licences to include obligations corresponding to offers made in the course of a comparative bidding process. Article 9(2) provided that licences should be granted through open, non-discriminatory and transparent procedures; that reasonable time limits should be set; that the decision should be communicated to the applicant as soon as possible but not more than six weeks after receiving the application; and that in the case of a comparative bidding procedure in particular Member States might further extend the time limit by up to four months.
Article 9(6) provided that Members States should lay down an appropriate procedure for appealing against such refusals, ... to an institution independent of the national regulatory authority. Article 10(3) provided that licences should be granted upon the basis of selection criteria which had to be objective, non-discriminatory, detailed, transparent and proportionate; and that any such selection must give due weight to the need to facilitate the development of competition and to maximise the benefits for users.
Article 20 dealt with confidentiality and provided that national regulatory authorities should not disclose information covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components, but without prejudice to the right of such authorities to undertake disclosure where it was essential for the purposes of fulfilling their duties, in which case such a disclosure should be proportionate and should have regard to the legitimate interests of undertakings in the protection of their business secrets. By Article 45 the Directive was to be implemented as soon as possible but in any event not later than the 31st December, 1997.
The European Communities (Telecommunications Licences) Regulations, 1998 (the 1998 Regulations) were passed to give effect to all four Directives on the 8th April, 1998. As in the case of the 1996 Regulations words or expressions used in the Regulations and also used in the Directives were to be given, unless the contrary intention appeared, the same meaning in the Regulations as it had in the Directives.
The 1998 Regulations further amended s. 111 of the Act. It enacted a new subsection 2 of which the following are material.
“S. 111(2)(e)(i)(II) In granting a licence the Director shall not attach conditions other than those corresponding to offers made by the applicant for a licence in the course of a comparative bidding procedure.

(e)(V) Subject to paragraph (VI) the Director shall inform an applicant for a licence of his or her decision not more than six weeks after receipt of the application, including all the information required by the Director.

(VI) The Director may extend the time limit referred to in subparagraph (V) by up to four months in the case of comparative bidding procedures for the award of licences.”

This statutory instrument also provided for an appeal procedure on the refusal to grant a licence. It is contained in amended s. 111(10).
While the Regulations provide that this appeal procedure applies only to applications made subsequently to its passing on the 8th April, 1998, and therefore does not apply to the present proceedings since the relevant applications were made on the 6th April, 1998, it is to be noted that there are two significant differences in the procedure.
1 Under s. 111(10)(e) the Director before making a decision to refuse to grant a licence must take into account any representations made by ...
(ii) any interested party. This clearly includes other applicants in a comparative bidding process. This is confirmed in my view by the powers given to the Court on appeal. These include a direction to the Director to refrain from refusing to grant the licence. This is in contrast to the power contained in s. 111(2B)(i) of the Act as contained in the 1996 Regulations which provides for a direction to the Minister - now to be read as the Director - to refrain from granting the licence. Under the 1996 Regulations, the Court can only direct that no licence should be granted whereas under the 1998 Regulations it can direct that it should be granted presumably to the successful party on the appeal. In other words, under the 1996 Regulations the Court has no power to direct the grant of the licence to Orange whereas it would have had that power had the application been governed by the 1998 Regulations.
The 1997 Directive was not implemented in time but this failure is not in my view of any significance. Insofar as it sought to provide provisions which were not already in force within the State it would have direct effect as against the State in relation to such provisions. However in relation to the appeal procedure, neither the later 1996 Directive nor the 1997 Directive required any more than was already in place. Accordingly, the 1996 Regulations are the appropriate appeal procedures. However, the provisions in relation to conditions to be attached to the licence and in relation to time limits would be enforceable particularly as they were at the relevant times in force pursuant to the 1998 Regulations. This is the legislative background against which Orange’s claim falls to be decided. Its claim in the High Court fell under three headings: (a) failure of the Director to give proper reasons for refusal to grant the licence to Orange; (b) that her decision was tainted with bias; and (c) that it was unreasonable.
In the course of the hearing in the High Court, Macken J. ruled on the evidence which was admissible. She held that evidence could be admitted on the issue of bias, but that on the issue of reasonableness the parties were restricted to the evidence before the Director when she made her decision.
In the event therefore the Court had before it the bids made by each bidder and the manner in which those bids had been evaluated. The learned trial judge found that the Director had not complied with her duty to give reasons as imposed by the 1996 Regulations. She also found that there was objective, but not subjective, bias and that her decision was unreasonable.
Both the Director and Meteor have appealed against this decision. In addition, Orange has cross-appealed against the finding that there was no subjective bias and against the ruling that limited the evidence on the issue of reasonableness.
In the first instance, Orange submits that the Director was in breach of her duty to give reasons to Orange under the provisions of
s. 111(2B)(f)(i) and s. 111(2B)(b) respectively.

THE DUTY TO GIVE REASONS


Quite clearly the right to be given reasons for a decision springs from the guarantee of fair procedures and the obligation upon those vested with statutory powers to exercise them fairly. In the present instance, while such obligation is expressly stated in the regulations, there is nothing to suggest that this gives Orange any greater right to receive reasons than it would otherwise have had.
If the applicable statutory rules indicate a specific purpose for which reasons should be given, then that purpose must be fulfilled - see Anheuser Busch v. The Controller of Patents Design and Trademarks . However, in general, the rule is as indicated in a passage from the judgment of Finlay C.J. in O’Keeffe v. An Bord Pleanála 1993 1 IR 39 he said at p. 76:
“What must be looked at is what an intelligent person who had taken part in the appeal or had been appraised of the broad issues which had arisen in it would understand from this document, these conditions and these reasons.”

This right is not unlimited. In MacCormack v. An Garda Síochána Complaints Board 1997 2 IR 489 Costello P. said at p. 50:
“But a person aggrieved by a decision has no right to obtain reasons for it merely for the purpose of seeing whether or not a decision maker had erred and I do not think that the judgment in that case is to be so construed.”

Later in his judgment on the same page he said:

“Reasons are not therefore required to enable the Court to exercise its jurisdiction. In reality they are being sought in this case to enable the applicant to see whether or not the Board made an error in the carrying out of its functions and there is no duty imposed on administrative decision makers by the Constitution to comply with a request made for this purpose. I must hold therefore that the applicant has not established that there was any unfairness on the part of the Board in failing to provide reasons for the opinion it reached either at the time it was communicated to the applicant or in response to the subsequent request. Indeed it seems to me that there are cogent arguments for suggesting that, just as the prosecuting authorities in the State, (The Director of Public Prosecutions and the Attorney General) have always declined to give reasons for a decision not to prosecute because of the possibility of unfairness in certain cases should it do so, so the Board should not be required to give reasons for the opinion it reaches after an investigation of a complaint under the Act of 1986 because of the possibility of his unfairness in certain circumstances may result.”

On the facts of the case, the learned judge was satisfied that in any event adequate reasons had been given.
This case was followed by Flood v. Garda Síochána Compensation Board a decision of this Court delivered on the 19th July, 1999.
In that case, the Board in an affidavit sworn by its Chief Executive had given as its reason to take no further action that the inquiry showed that there was a conflict of fact. This was held to be sufficient. At p. 22 I said:
“There remains the issue as to whether or not the Board should have given any further reasons for its decision to the complainant. The reason which it gave is sufficient.”

This general approach was also adopted in Europe by the European Court of First Instance in Adia Interim SA. v. E.C. Commission 1996 3 CMLR 849. That was a case in which a tenderer for a public contract was informed that its tender had been rejected. In such circumstances it was entitled to be given a reasoned decision for such refusal.
There had been a comparative bidding process in the course of which marks were awarded in relation to various factors to each of the tenderers. The tenders which were accepted were those from the three tenderers who received the most marks. The applicant was not one of these and alleged that the reason was that there was a basic error in its tender which was obvious to the selection committee.
When reasons for the rejection of its tender was sought by the applicant these were supplied to it by a letter dated 21st December, 1994 in which it was stated inter alia :
“On the basis of that assessment, the selection committee adopted the tenders which had obtained the most points as being the most economically advantageous ones....

Accordingly, the outcome of the invitation to tender and the non-acceptance of the tender by your company resulted solely from the strict application of competitive criteria. However, this outcome does not detract from the satisfaction which the Commission has had in working with your company under the previous framework agreement.”

The question which arose was whether this satisfied the obligation of the Commission to provide reasons. At paragraphs 35 and 36 of the judgment the Court said:
“35. In this regard, it is clear from that letter that the Commission did provide sufficiently detailed reasons for its rejection of the tender in question, because it confirmed that it satisfied all the formal requirements of the procedure but were considered to be less economically advantageous than the tenders (of the three tenderers who were accepted) at the stage when the three award criteria were applied.

36. The sufficiency of that reasoning is borne out by the fact that - as the applicant confirmed at the hearing - when it was informed that its tender had been rejected in December, 1994, it was able immediately to identify the precise reasons for its rejection, to wit the presence of a systematic error in the calculation of the price.”

The case for Orange is that the duty to furnish reasons cannot be fulfilled without a searching inquiry into the information available to the decision maker and how that information was treated. An argument along similar lines was rejected in Cronin v. Competition Authority
1998 1 IR 265.
In that case, the applicant sought judicial review of a decision of the Competition Authority to grant a category licence under s. 4 of the Competition Act, 1991 upon the grounds that the procedure leading to the decision to grant the licence was unfair. Its main contention was that it was not privy to all the information before the Competition Authority.
In refusing to accept this submission Barrington J. said at p. 274:

“It appears to me that there is a fallacy underlying the appellant’s submission. This is not a case of litigation inter partes with the Competition Authority acting in the role of some kind of arbitrator. The Competition Authority is an administrative body which formulates its competition policy in the light of the requirements of the common good, the provisions of the statute and prevailing market conditions. To carry out this role properly it must have access to information and undertakings must be free to inform it of their business secrets, while at the same time being reassured that their confidence will be respected by the Competition Authority. In the present case the Competition Authority was considering not only the draft agreements notified by the notice party but was also taking into account fifty seven different types of agreement from eleven different oil supply companies.
Under these circumstances the Competition Authority, before making its final decision in what was essentially a policy matter, gave the appellant and other interested parties an opportunity to make submissions concerning its proposed decision. It did this presumably because it thought that their interest might be affected by its proposed decision or because they might have something to offer as to what would be the correct decision in the circumstances. In the event the Competition Authority very slightly modified its decision, whether as a result of submissions made by the appellant or otherwise.

In these circumstances, I respectfully agree with the decision of the learned trial judge that the procedures adopted by the Competition Authority were imminently fair and reasonable and that the Competition Authority committed no breach of duty.”

In Flood v. The Garda Síochána Complaints Board the submissions relating to the duty to give reasons were similar to some of those in the present case. In that case the appellant sought the right to know what was contained in the materials before the Board before it reached its opinion including the report of the investigating officer and the comments and recommendations of the Chief Executive so that representations could have been made to the Board on his behalf before it reached its decision.
These submissions had been made to contest a ruling by the Board that it was of the opinion following the investigation of the complaint that neither an offence nor a breach of discipline on the part of any member had been disclosed.
These submissions were rejected. In the course of my judgment in that case I said at p. 19:
“The right to know the case you have to meet and the right to have time to prepare an answer and an opportunity to present that answer applies to a person who stands accused or to a person in respect of whom a tribunal has to act judicially or quasi judicially. That is not the case here. The Board is forming an opinion as to whether an investigation should proceed to a further stage.
The Board has the statutory power to form an opinion. As with all statutory powers, it cannot be unfettered, it must be exercised in accordance with fair procedures. This means that the opinion must be reached bona fide, be factually sustainable and not be unreasonable. See the judgment of O’Higgins C.J. in The State (Lynch) v. Cooney 1982 IR 337 at p. 361.”

It had been submitted on behalf of the Board that its position was analogous to that of the Director of Public Prosecutions. Dealing with that issue, I said at p. 20:

It is submitted on behalf of the Board that its opinion should not be open to review in the same way as a decision by the Director of Public Prosecutions not to prosecute is not open to review save in the case of mala fides or an inappropriate practice. The situation is not entirely identical nor is the public interest the same. There are sound public interest reasons for the restricted basis of review of such decision by the Director of Public Prosecutions. In the case of the Board, the public interest is to ensure that complaints against members of An Garda Síochána would be investigated and ruled upon fairly and impartially. To that end, the Act set up appropriate procedures. There is nothing in the evidence to suggest that these procedures have not been followed. Judicial review is not a rehearing. Its function is to see that the procedures by which any opinion or decision was reached were fair and where prescribed that they were followed. Insofar as the principles in The State (Lynch) v. Cooney are applicable, there is no suggestion that the Board did not act bona fide. It has averred that there was a conflict of fact. A decision that no further action should be taken is sustainable in such circumstances and not unreasonable. It is submitted that the failure to charge the applicant on the evening of his arrest nor to pursue the charge in court showed that the decision to take no further action was unreasonable. I cannot agree...

It is not a case where the principles of natural justice apply. Equally, so far as the principles in The State (Lynch) v. Cooney apply, they have been fulfilled.”

The impugned decisions in all these cases in this jurisdiction were challenged in judicial review proceedings. Nor save the Adia case do any of the cases deal with comparative bidding processes. The present case deals both with a stage prior to the appeal to the courts and with that appeal. In approaching the construction to be placed upon the 1996 Regulations, there is some parallel with the Garda Síochána cases. Both the Board in those cases and the Director in the present case are to be independent in their functions.
The case for Orange is that in a comparative bidding process it cannot establish its rights without regard to the other bids and without seeing the Meteor bid and the evaluation report. The rights of a disappointed bidder are given expressly by the provisions of s. 111(2B) paragraphs (f) - (i). From the manner in which these provisions are drafted, it might have been supposed that they applied only to cases of individual applications. However, since paragraph (n) refers to a previous competition process, it must be presumed that if it had been intended to involve other bidders at the stage of giving reasons or indeed at any later stage, the Regulations would have so provided. That the draftsman was aware that there might be other competitions and therefore more than one applicant for the same licence is apparent from the power given to the Court to direct the Minister - now the Director - to refrain from granting the licence in the event of a successful appeal. If only one applicant was involved, it would have been expected that the power of the Court would have included the power in that event to direct the grant of the licence to the successful applicant. Nevertheless, there is nothing in the former paragraphs to indicate that in giving reasons, the applicant seeking them should be given any reason other than that warranted by its own application.
Orange put its case both on the Directives and also on the basis of the specific wording of the Regulations. There is nothing in the Directives which gives any wider rights than those given by the regulations. The right to be given reasons even when not specifically set out in the relevant legislation springs from the requirement of the guarantee of fair procedures that powers must be so exercised. Clearly, a power cannot be seen to have been so exercised until the reasons for its exercise have been given. Nor can it be so seen where such failure prevents the applicant from exercising a right of appeal. But there is nothing unfair in refusing to allow the applicant the sight of the internal procedures of the decision maker. This is the case with the Director of Public Prosecutions and also with An Bord Pleanála.
Even though this was a comparative bidding process, there is nothing in the regulations which involves the other bidder nor obliges the Director to disclose such bid or the manner in which it was treated. If the details of any such bid were to be furnished to any other bidder the Regulations would have been expected to give such right.
In the event, the procedure laid down in the relevant subparagraphs is a procedure involving only Orange and the Director. Once reasons had been given, Orange had the right to make representations which had to be considered. Representations would presumably relate to why the reasons given were flawed. Only if the Director was still intending to refuse to grant the licence to Orange did the rights of appeal arise.
Orange has, of course, contended that after the bidders had been placed in order there should have been some sort of adversarial hearing before the Director. Whatever the regulations might have provided, it could not have been this. The competition was analogous to an examination. If the bidders had been allowed to make further bids or compete in an adversarial hearing, this would have rendered the comparative bidding of little significance. At most, it would have given the bidders a chance to test the waters before the next stage. There can be no sense in laying down a particular procedure and then because one of the bidders purports to be dissatisfied to hold what is in effect a new and distinct competition run on completely different lines. In this context, it is also significant that Orange did not seek any such hearing at the presentation stage.
The regulations are totally silent on the rights of any other bidders once any other bidder makes representations pursuant to the provisions of subparagraph (g). Since the Director must exercise her powers in accordance with fair procedures, this would seem to require some input from the successful bidder if she was considering altering her decision. Since that possibility does not arise in the present case, it is not necessary to pursue it. The 1988 Regulations seek to involve the other bidder or bidders in the event of future comparative bidding processes but in my view this may cause more problems than those which it may solve. The role of other bidders in a comparative bidding process when the decision of the Director is challenged is something to which the Oireachtas or the Minister might have regard in order to give greater clarity to the rights of the respective parties in such circumstances.
The reason given to Orange by the Director for her reason to refuse to grant the licence to Orange was that Orange was placed second. In addition, Orange, as indeed Meteor also, was aware from the summary report of the view which the Director through her evaluators had taken of its application. At this stage, Orange cannot have been in any doubt but that the application by Meteor received more marks than its application and that this must have been because of the matters indicated in that report. Since it would be immaterial to see these documents once Orange knew why it had lost, its only reason for wishing to see them had to be for the purpose of showing that an error was made by the Director and that it should have won. Once Orange knew why it was placed second, the obligation for it to be given reasons was satisfied: see the passage from the judgment of Finlay C.J. in O’Keeffe v. An Bord Pleanála. Nor had it any right to any further information for the purpose of seeing whether a mistake had been made: see the passages from the judgment of Costello P. in MacCormack v. The Garda Síochána Complaints Board. That was the position in Adia and is also the position here. Orange made various calculated decisions as to what it would or would not offer in its bid. When it received the summary report, it knew perfectly well that its decisions were a mistake and were the cause of its losing the licence.
This is made quite clear in the representations made by Orange following the receipt of the Director’s reasons. In the course of such representations, Orange sought to mend its hand both in relation to commitments on tariffs and on performance guarantees.
In these circumstances, I am satisfied that Orange was given sufficient reasons for the decision of the Director to place it second in the competition.

THE RIGHT OF APPEAL TO THE HIGH COURT


The 1996 Regulations give a right of appeal to the High Court against the decision concerned which is the decision not to grant the licence to Orange. Before making that decision the Director was required to take into account the representations made on behalf of Orange. In my view, the Court has no obligation to go beyond these representations. If they show that the Director has misunderstood any part of the application, or has been unfair, or has made a mistake of law, these are all matters which the Court can determine. But it seems that the Court, no more than the Director, can examine the merits of the application on a comparative basis for the purpose of deciding that the Director was wrong. This, as I have already indicated, is supported by the absence of any power in the Court to direct the award of the licence to any particular applicant. The grounds of appeal might have rested also on a failure to follow the requirements of the Directives. In the present instance, I see no such grounds: (1) The appeal required by the 1997 Directive is to be to an institution independent of the national regulatory authority: Article 9(6). That has been met by giving the right of appeal to the High Court. (2) The basis of the selection criteria is to be objective, non-discriminatory, detailed, transparent and proportionate: Article 10(3). This is set out in the tender document the design of which received the approval of the Commission. (3) The procedures under which the licences are to be granted are to be open, non-discriminatory and transparent: Article 9(2). This is also set out in the tender document. It is set out also in the questions and answers raised before the bids and in the presentations of each bidder and the questions and answers prior to such presentations.
If Orange was not entitled to comparative information when it received reasons from the Director for her refusal to grant it the licence, then it cannot be entitled to such information because it refuses to accept such reasons. The basis for making representations had to rest on some underlying flaw in the reasons given. Similarly, if the answers to the representations were unacceptable to Orange, then its appeal had to rest upon the same basis as the representations were made together with such further grounds of a similar nature as might have arisen from the manner in which its representations were answered.
Such an appeal would have been very different from the actual appeal where it was agreed that the comparative information, i.e. all the information before the Director, should be before the Court. The issues were those of bias and unreasonableness, but in relation to the latter it was agreed that the test of reasonableness against which the decision of the Director should be measured should be that of Kearns J. in M. and J. Gleeson , a test taken from the Monopolies Code. On this aspect of the appeal, the only issue between the parties was whether the evidence should have been admitted on the issue of reasonableness. The learned trial judge ruled against its admissibility and that ruling is subject to a cross-appeal. Evidence was, however, admitted on the issue of bias.
This is because it was submitted that bias could be established from the nature of the process itself. Accordingly, the comparative evidence became relevant and had to be considered. The situation in relation to the plea of unreasonableness was treated differently.

BIAS


Although bias and unreasonableness were treated largely on the basis that either neither or both were present in the decision, they are fundamentally different. Bias always exists before the hearing or other process; unreasonableness is something to be ascertained by comparison of the process and the decision.
The definition of bias in the shorter Oxford English Dictionary includes: “ an inclination; leaning; bent; predisposition towards; predilection; prejudice”. In law it is any relationship, interest or attitude which actually did influence or might be perceived to have influenced a decision or judgment already given or which might be perceived would influence a decision or judgment yet to be given. The general nature of the relationship, interest or attitude is not capable of precise definition. The relationship may be family, social or business. The interest may be financial or proprietary. The attitude may be one of good will or ill will.
Insofar as bias may be found to exist or to have existed, it will always predate the actual decision or contemplated decision. Bias does not come into existence in the course of a hearing. It may become apparent in the course of a hearing and in that way alert a party to the possibility of bias and so enable such party to establish facts which show that the attitude adopted by the decision maker in the course of the hearing was one which might have been expected having regard to those facts. The essence of bias then is the perception - the strength of that perception not being relevant for the purpose of this definition - once all the facts are known that the particular decision maker could never give or have given a decision in relation to the particular issue uninfluenced by the particular relationship, interest or attitude. Obviously, if it is perceived that it may influence a decision yet to be given, it must exist at that stage.
The submission on behalf of Orange takes issue with this view of the law and maintains that where a decision is inexplicable, you may look to the process leading to the decision and say that there are the indications of bias which led to the decision. The reality of this submission, it seems to me, is that if there can be a perception that a decision is not what it would have been but for some unknown cause, it can be explained upon the basis of bias.
A belief or perception that a decision might have been different is at the heart of bias because if the decision would always have been the same, it cannot have been influenced by bias or any other cause.
Bias can be of two types: conscious - which in the cases has also been referred to as actual or subjective; and perceived - also referred to as objective or unconscious. The reason why the decision is not allowed to stand in the case of conscious bias is the perception that the decision was influenced by some existing relationship, interest or attitude (which I shall refer to as a factor) and would have been different, if it had been absent.
In the case of perceived bias, it is not allowed to stand because of the perception that the decision given or to be given, in the absence of the particular factor, might have been different. Nevertheless, there must be some substance in the factor before it can be allowed to affect the process. In the result therefore there are two basic matters to be considered. First, has it been shown on the facts that a factor existed. Secondly, what weight must be given to such factor before it can be taken into account.
I would like to refer first to the often quoted case of R. v. Sussex Justice, ex parte McCarthy 1924 1 KB 256.
That was a case in which the clerk to justices went into the room with the justices when they were considering their judgment. The judgment was set aside on this account. In the course of his judgment Lord Hewart CJ said at p. 234:
“There is no doubt, as has been said in a long line of cases, that it is not merely of some importance, but of fundamental importance, that justice should both be done and be manifestly seen to be done. The question is not whether in this case this gentleman, went with the justices, made any observation or offered any criticism which he could not properly make or offer; the question is whether he was so related to the case by reason of the civil action as to be unfit to act for the justices in the criminal proceedings. The answer to that question depends not on what actually was done, but on what might appear to be done. The rule is that nothing is to be done which creates even a suspicion that there has been an improper interference with the courts of justice.”

In that case the factor involved was that it was a prosecution arising out of a road traffic accident in relation to which the clerk of the Court was a member of a firm of solicitors acting for one of the parties to the accident in a civil action, and so it could have been perceived that he might have had an interest to procure a particular result.
In Regina v. Gough 1993 AC 646 the House of Lords considered the circumstances in which a factor would be sufficient to impugn a decision. Lord Goff of Chieveley said at p. 668:
“In my opinion, if, in the circumstances of the case (as ascertained by the Court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand. I am by no means persuaded that, in its original form, the real likelihood test required that any more rigorous criterion should be applied. Furthermore the test as so stated gives sufficient effect, in cases of apparent bias, to the principles that justice must manifestly be seen to be done, and it is unnecessary, in my opinion, to have recourse to a test based on mere suspicion, or even reasonable suspicion, for that purpose.”

In the same case Lord Woolf said at p. 672:

“It must be remembered that except in a rare case where actual bias is alleged, the Court is not concerned to investigate whether or not bias has been established. Whether it is a judge, a member of the jury, justices or their clerk, who is alleged to be biased, the courts do not regard it as being desirable or useful to inquire into the individual’s state of mind. It is not desirable because of the confidential nature of the judicial decision making process. It is not useful because the courts have long recognised that bias operates in such an insidious manner that the person alleged to be biased may be quite unconscious of its effect.
It is because the Court in the majority of cases does not inquire whether actual bias exists that the maxim that justice must not only be done but seen to be done applies. When considering whether there is a real danger of injustice, the Court gives effect to the maximum, but does so by examining all the materials available when giving its conclusion on that material. If the Court having done so is satisfied there is no danger of the alleged bias having created injustice, then the application to quash the decision should be dismissed.”

The test which this case formulates is that once there exists a relationship, interest or attitude for which bias might be established, it will be treated as established if a real risk, meaning a real possibility, exists that such factor influenced or would influence the decision even though it did not nor would do.
These propositions are not contested by counsel on behalf of Orange. What they submit is that the decision of the Director was so inexplicable that it was sufficient to show that a reasonable bystander unacquainted with the background of the matter would have had a reasonable suspicion of bias whether or not there was any evidence of any such relationship, interest or attitude.
Counsel relies upon passages in the judgment in Anderton v.

Auckland City Council 1978 1 NZLR 657. At p. 686 Mahon J. said:

“Looking then at what I have called ‘presumptive bias’, in my opinion the test of real likelihood and reasonable suspicion are distinct, and the invalidation of proceedings on one ground, or the other, or both, will depend upon the evidence. Discovery of documents and the production of the record of the tribunal may disclose such an association between one party and the tribunal that a real likelihood of bias is established, no matter how fairly the proceedings may seem to have been conducted. In such a case it will be the opinion of the Court, and not the objectively assumed response of an observer of those proceedings, which will be the decisive factor. But if there is no evidence of such a connection between one party and the tribunal as to justify real likelihood of bias, the manner of conducting the proceedings may in itself create a reasonable suspicion of bias, founded upon nothing but the outward aspect of the determination under review.”

Again at p. 688 he said :

“A party may prove ‘reasonable suspicion’ of bias by relying solely upon the manner in which the proceedings were conducted. That is, he may have no evidence at all of relevant facts or circumstances not referred to or disclosed in the proceedings. The law is now clear, certainly in Australia and in Canada and I think also in New Zealand, that the presence of a ‘reasonable suspicion’ of bias found by a court to be attributable to an observer unacquainted with the hidden facts, will be sufficient to disqualify the tribunal or to invalidate his decision. Such was the basis of each decision, as I have said already, in re Watson, ex p. Armstrong (1976) 50 ALJR 778 and in Police v. Pereira 1977 1 NZLR 547.”

In the Anderton case and in the two cases to which the judge referred there is the factor of prejudgment. In re Watson ex p. Armstrong a judge at the interlocutory stage of proceedings had indicated that having regard to the bitter conflict of testimony apparent upon the affidavits he would not be prepared in the substantive proceedings to accept the uncorroborated testimony of either party. The judge was prohibited from hearing the substantive proceedings on the ground that there could properly be attributed to a party a reasonable suspicion that the judge had predetermined all questions of credibility in relation to any uncorroborated testimony of that party. In my view, that was a decision based upon predetermination, to wit, that the judge would have approached the case upon the basis that he would not be able to accept the evidence of either party.
The other case referred to in the judgment, Police v. Periera was a case where the appellant had been convicted of a serious charge. The presiding magistrate had given no reasons for his decision and had accompanied his findings with a contemporaneous declaration that the past criminal record of the appellant which he said was known to him exhibited proclivities which exactly matched the allegation then being made against him by the prosecution. As Mahon J. said at p. 689:
“Once again there had to be attributed to the appellant the reasonable suspicion, even though in fact unfounded, that the magistrate had prejudged the case.”

That case as the learned trial judge himself said is clearly a case of prejudgment.
Anderton itself was also a case of prejudgment though rather an unusual one. The relevant ground of prejudgment is set out in a passage from the judgment of Mahon J. where he said at p. 698:
“On my view of the evidence, the Council had become so closely associated with the company in attempts to secure planning permission for the company’s project that by 1975 it had completely surrendered its powers of independent judgment as a judicial tribunal. I think it not open to doubt that the Council and its dedicated committee, convened this hearing with a closed mind, impervious to whatever evidence the objectors might submit, and determined to uphold the validity of this commercial development which it had laboured so long to create. It must follow that, in my opinion, a decision in favour of the scheme change, and therefore in favour of the company is invalid.”

In Anderton and the two cases referred to in the judgment, the prejudgment is not something which arose in the course of the process; it predated it, so that it was truly bias and not unfairness in the process. In Anderton, the Council came to the decision-making process with the firm view as to what its decision would be. In Pereira, the magistrate came to the case with a fixed view of the defendant. Likewise, in re Watson , the judge had he been allowed to continue with the case would have come to it with a fixed view of the parties. In so far as Mahon J. was of the opinion that the manner in which proceedings are conducted might in itself create a reasonable suspicion of bias, I must respectfully disagree. Without evidence of the connection to which he refers there cannot be evidence from which bias can be perceived. In Anderton and the other two cases there was clear evidence of the connection. There may be many reasons for the manner in which proceedings may be conducted. To suggest that the cause must be bias is speculative. There is a duty upon decision-makers to carry out the process leading to the decision in a particular way. Not to do so may make the process unfair or otherwise invalidate it, but that is not bias. The submission on behalf of Orange was that the evaluators had prejudged the competition against them, but no evidence was adduced to support it.
Orange also relies upon the Canadian decision of re Gooliah and Minister of Citizenship and Immigration 63 DLR (2d) 224 again a case of prejudgment. That was a case in which it was being sought to overturn a deportation order. Freeman J.A. dealing with the manner in which the officer dealing with the case conducted himself said:
“Perhaps in this case he convinced himself that Gooliah had become disentitled to remain in Canada and ought therefore to be deported. That attitude may have controlled his approach to the inquiry and caused him, in a spirit of excessive zeal, to deal with the issue in such a way as to ensure the attainment of the objective he was seeking. Unfortunately, however, the result was something less than justice for Mr. Gooliah. It exposed him to an inquiry which fell below the standard of objective impartiality and adherence to natural justice which the law demands and to which he was entitled.”

None of the cases to which counsel has referred are cases where the Court had started by looking at the decision and then worked back and found something in the process which was sufficient to disallow the decision to stand. The relevant factor was always shown to predate the decision-making process.
The principles of bias have recently been discussed by the English Court of Appeal in Locabail (U.K.) Limited v. Bayfield Properties Limited and Others 2000, 1 All E.R. 65. That case dealt with four separate sets of facts arising from four individual cases. However, a number of the passages in the judgment of the Court are relevant to the principles involved.
At p. 3 of the judgment it was said:

“All legal arbiters are bound to apply the law as they understand it to the facts of individual cases as they find them. They must do so without fear or favour, affection or ill-will, that is, without partiality or prejudice. Justice is portrayed as blind not because she ignores the facts and circumstances of individual cases but because she shuts her eyes to all considerations extraneous to the particular case.”

“The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists.”

Two principles arise from the judgment: first, if a judge has an interest in the result he is automatically disqualified. Secondly, the greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.
The facts of the various cases in which the Court dealt were as follows. In one, the judge was a solicitor and partner in a firm with 145 partners. His firm was acting against the defendant in the action in a different matter. The judge became aware of this on the seventh day. He indicated that he had discovered this but that he knew no more than appeared in the newspapers. No one had any objection to the case continuing which it did for a further nine days. It was not until judgment had been given against the defendant that any question of bias was raised. It was held that the judgment should stand.
In another case there was a complaint of sexual harassment and race discrimination by an employee of the Inland Revenue. It was subsequently discovered that the Chairman of the Appeal Board had worked for the Inland Revenue thirty years before. The case was dismissed against the applicant. It was held there was no ground for upsetting the decision upon the basis of bias.
In a third case the judge was a shareholder in a private property investment company. The case before him dealt with a disputed bet in an off-course betting shop. It was subsequently ascertained that a family company in which the judge had a holding had as a tenant another branch of the same group of betting shops. It was held that this was not sufficient to constitute bias.
The fourth case dealt with personal injuries litigation. The judge had previously written various articles strongly condemning the manner in which insurance companies conducted the defence of personal injury litigation. It was held that this was a sufficient ground for his decision in a particular personal injuries action to be set aside.
In each of these cases a factor was alleged. In three of them it was held that there was no real possibility of a perception that the factor would have influenced the decision. In the fourth case it was held that there was a real possibility that that factor might be seen to have influenced the decision.
This judgment also referred to Ex parte Pinochet a case where the Court found an automatic disqualification. The basis of the decision is set out in the judgment of Lord Browne-Wilkinson at p. 284 and cited in the judgment in Locabail as follows:
“It is important not to overstate what has been decided. It was suggested in argument that a decision setting aside the Order of 25 November, 1998 would lead to a position where judges would be unable to sit on cases involving charities in whose work they are involved. It is suggested that, because of such involvement, a judge would be disqualified. That is not correct. The facts in this present case are exceptional. The critical elements are (1) that A1 was a party to the appeal; (2) that A1 was joined in order to argue for a particular result; (3) the judge was a director of a charity closely allied to A1 and sharing, in this respect, A1’s objects. Only in cases where a judge is taking an active role as trustee or director of a charity which is closely allied to and acting with the party to the litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties. However, there may well be other exceptional cases in which the judge would be well advised to disclose a possible interest.”

In the same case Lord Hutton said at p. 293:

“... There could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a share holding (which might be small) in a public company involved in the litigation.”

Clearly, the principles of bias are too wide to be set out in one definition. However, it seems to me that the essence of bias is the existence of some factor as already explained that constitutes a set of circumstances from which a reasonable observer might conclude that there was a real possibility that such factor would cause the decision maker to seek a particular decision or which might inhibit him or her from making his or her decision impartially and independently without regard to such factor. As I have already indicated, this factor must predate the decision complained of or the contemplated hearing.
In the Locabail case while the Court sought to deal with the many situations where bias might be alleged, it refrained from any form of definition. Nevertheless it is important for the views expressed as to what would or would not normally give rise to a real risk of bias. The passage is as follows:
“It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an obligation could be soundly based upon the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based upon the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extracurricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consolation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same inn, circuit, local law society or chambers ... By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if when any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind; or if, for any reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, early in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, would be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal.”

Although counsel for Orange did indicate a possible reason for bias as anti-British feeling leading to a decision to place Meteor first in any event, no evidence was adduced or pointed to from which any such contention could have been more than a vague and insubstantial speculation. The issue must therefore be determined on the basis that no factor existed from which bias could be seen or perceived. Since I do not accept that bias can exist in the absence of a factor arising only from the manner in which proceedings are conducted, I am satisfied that the learned trial judge was in error in finding that bias existed.
The learned trial judge found bias to have existed in a number of respects. Having regard to these findings and my view that they cannot be upheld, it is appropriate that I should deal to some extent with the facts which gave rise to such findings.
One Network. When dealing with the key characteristics of the applications, the evaluation report referring to Orange stated: “ The applicant seems to view the network in the Republic of Ireland as an essential part of its present DCS 1800 Networks in Great Britain and in Northern Ireland.” This statement was alleged to indicate an anti-British bias in that Orange did not regard the Irish network in that light. Such an allegation overlooked a number of matters. The evaluators did not regard the network in that light. At p. 1 of the report it stated: “ The network in Ireland will be similar to Orange’s operations in the U.K. and in Northern Ireland with appealing one network like tariffs.”
Orange had proposed similar tariffs whether the calls were made solely within the State; or began in the State and ended in the United Kingdom or Northern Ireland or the other way round. Because of this three indicators not in the readers guide were introduced under which Orange received higher marks than Meteor.
I see nothing wrong with the impugned statement. At worse, it took a wrong view of how Orange in fact viewed its proposed Irish network. It could not be said to have been unreasonable let alone biased to include such a statement in the evaluation report.
Share Flotation. In the course of its application, Orange stated that it had no plans to float its shares on the Irish Stock Exchange. In the course of its oral presentation, it was indicated that it might do so in the future.
When the evaluation report was first drafted there was no mention of this latter indication. Mr. McQuaid put a note on the side of an earlier draft to indicate this omission. The final draft remedied the omission to a limited extent. It then read that no plans to float had been indicated in the application.
Clearly, the full known position should have been set out in the evaluation report. Undoubtedly, there were matters indicated in the course of the presentations which found their way into that report. Perhaps the reasoning was that the report would be indicating something not in the application, but that was a perhaps too rigid application of the rules of the competition as the evaluators saw them. I would not regard it as indicating bias.
The Belgian Licence. The Hans Snook statement. In the course of the supplementary analysis appended to the evaluation report it said:
“No information seriously comprising the information in the application has been found. But we have found examples of minor discrepancies between facts and the statements by Orange:

Orange has stated that they have applied for a combined GSM/DCS licence in Belgium. According to our information, the licence in Belgium only applies to DCS 1800.

Hans Snook mentioned during the presentation that he was unaware of the application of Meteor, but according to sources, Orange has even tried to create a consortium together with the same group of companies behind Meteor.

Apart from this, the general impression of Orange is a company providing a state of the art services from a highly refined network .”

The statement in relation to the Belgian licence was partially correct. The licence as originally advertised in Belgium was as indicated in the supplementary analysis. However, the licence subsequently obtained was the wider licence indicated by Orange. As regards the statement by Hans Snook, his evidence at the presentation by Orange indicated that “ we” by which he must have been taken to mean Orange were unaware of something in which they had been involved.
These were both matters which in my view assumed an unnecessary importance. The evaluators were correct in relation to the Hans Snook evidence. In relation to the Belgian licence, perhaps they ought to have been more careful.
Bonus Distribution Channels. Orange received a B under this indicator; Meteor a C. This related to marketing expenditure which Orange says showed that the markings should have been more favourable for them than the actual marking indicates. Having awarded these marks, the evaluators then did a further exercise to see whether they had been correct. In the course of their report on this further exercise, they said that taking out personnel costs “tended to close the gap ” between the expenditure of the two bidders. It is said that there was no basis for this and was done to justify the mark given to Meteor.
Counsel for Orange produced figures to show that taking out personnel costs in fact widened the gap. Counsel for the Director produced figures to show the contrary. Whichever is correct it indicates that it is a matter of opinion.
I cannot accept the views of the learned trial judge that the evaluators made an error which had the result of doing down Orange nor that the statement that the “ gap was closed” - the learned trial judge had previously referred to the actual statement “ tended to close the gap” - would be readily perceived as being a bias against Orange.
Tariffs. It is submitted on behalf of Orange that it would not have been understood that this indicator would be worth 9 per cent of the total marks and virtually determine the competition against them.
I am unable to understand this submission. Paragraph 4.3.(g) of the tender document is quite clear. In addition Orange’s bid made it clear that they were giving no commitments even in relation to the maximum figures set out in Table 7.
On p. 3-42 of its bid Orange said:

“The tariffs described above do represent a significant discount to the tariffs currently offered by competitors, but also to their expected tariff at time of launch (Orange anticipates that the current operators will reduce tariffs in the months leading up to the launch of the third entrant). If our expectations were proved false, we would readjust our proposed tariff policy in light of our competitors actions, with the objective of avoiding a price war but maintaining a differentiated offer.”

On p. 3-48 the bid said:
“At this stage, it is not appropriate or practical to give any binding commitment on tariffs ( including maximum tariffs). However, the applicant considers that the tariffs will evolve over time in response to market initiatives in competitive positioning. In the light of our understanding of the Irish market, competitive evolution and our experience and forecasts in more penetrated markets, we would anticipate a decrease in tariffs in real terms of probably around 40 per cent over the next ten years.... Given our experience, particularly from a competitive point of view and as a stimulant for competition, the applicant wishes to retain its ability to respond dynamically to changes in the market and may revise its tariff plans accordingly.”

In this regard, the submission that the figures indicated in Table 7.8 were proposals which could have been converted into commitments is totally unsustainable. The Director made it clear in the tender and in the answers to questions by potential bidders that proposals might be incorporated as conditions in the licence. Orange was aware of this and specifically sought to avoid the consequences. Having refused to make a proposal which could be incorporated as a condition it was hardly open to it to submit that its denial of a commitment to maximum tariffs could nevertheless be treated as a proposal.
Orange should not have been surprised at the weight given to the particular indicator. The objective of the competition was clear. Its as set out in the information memorandum and also in Article 10(3) of the 1997 Directive. Clearly, the Director wanted to bring down prices. The last thing the Director would have wanted was a third licensee who was prepared to put profit before lowering tariffs.
1 A further submission is that the evaluator should have warned Orange on the consequences of failing to give commitments on tariffs. This must be wrong. It would be marking Orange’s card and clearly unfair to Meteor.
The learned trial judge expressed a number of views on this aspect of the case with which I cannot agree. In my view the tender document was perfectly clear; and a reasonable person could not have been surprised at the weight given to this indicator. It may be that there should always have been an indicator for binding commitments on tariffs. That however was a matter for the evaluators.
Lower Tariffs. The learned trial judge dealt with this issue as part of the issues relating to binding commitments. She was correct that the Director was not looking for a low price operator. But counsel for the Director made it clear to the Court that the Director was looking for lower tariffs as did the information memorandum when dealing with the objectives of the competition. In any event, I do not accept that this should have been an issue.
The Irish Touch. Reference in the evaluation report to the Irish touch was regarded as evidence of bias in favour of the consortium with an Irish member. But as is clear from the evaluation report what appealed to the evaluators was their view that Meteor had made efforts to become familiar with local conditions. The same or a similar statement may have appeared in the evaluation report in two places, but the evaluations were dealing with different indicators requiring different assessments.
Guarantees from Backers. Financial strength of consortia members. The strongest attack was reserved for these two financial indicators. It is said that the evaluators rather than give Meteor an E on both deliberately increased the marks given to both. In my view, the explanation given was clear. In each case, there had been some compliance with the requirement of the indicator. An E was reserved for cases where no effort had been made to meet the particular requirement. That being so either E would have been inappropriate.
Changes to drafts of the evaluation report. Allegations were made that the earlier drafts of the evaluation report were deliberately toned down to conceal bias against Orange. The purpose of amending drafts is to ensure accuracy and that the correct shade of meaning is conveyed. I can find nothing in the allegations which suggest any other inference in the instant case.
Subscribers contracts. Having marked the indicator “subscribers contracts ”, the evaluators then carried out a supplementary analysis to determine whether twelve month contracts were legal and concluded that they were. Such contracts were the norm in this jurisdiction but in the home jurisdiction of the consultants - Denmark - contracts were limited to six months. This analysis was said to be proof of bias. I have no doubt but that the Danish norm was the sole reason for the further analysis.
Handset subsidies. It was said that the proposed indicator should have been retained. Although Meteor did not indicate that they would have any, the evaluators assumed that they would.
What perhaps required an explanation was what was said to be different treatment of commitments to tariffs and handset subsidies. In regard to the former, the anticipated indicator was price development. When Orange gave no commitment, the indicator was expanded to be for commitments and price development. On the other hand, an anticipated indicator was handset subsidies, but when Meteor did not deal with these, the indicator was deleted. This apparent difference of treatment was followed up in the questions asked of each party.
The reason for the difference sprung from the fact that handset subsidies were not included in the tender document whereas the giving of commitments was.
Again, Orange laid considerable emphasis on the fact that the dimensions and the weightings to be given to them were not determined finally until after the bids had been opened. But this was something which the answers to questions raised before the bids were made indicated was confidential. The answer to Question 5 was:
“All details of the evaluation method to be used other than those outlined in section 1, paragraph 1.5.2 are strictly confidential.”
To a large extent many of the allegations of bias and unreasonableness spring from a refusal to accept the rules of the competition. These were clear. They evidently contain matter which Orange now contends was basically unfair. But, if so, such matter was unfair to all and Orange was not obliged to bid.
The allegation of bias was founded on a question of prejudgment, it being suggested that the evaluators had decided in advance to advise the Director to award the licence to Meteor. The specific matters which I have dealt were those where the learned trial judge accepted that a perception of bias would have existed. Orange also relied on the absence of some records as showing conscious bias. I do not accept this. The records produced showed what might be expected of the internal workings of such a competition.
Counsel for Orange did at one stage suggest that he was complaining of unfairness. However, unfairness is different from bias though it has the same effect. It is something which can occur in the course of the process concerned. But it can never be said to predate the process since if it does it is bias. Dineen v. Delap 1994 2 IR 228 which was strongly relied upon by Orange is not a case of bias, but a case of unfairness. In that case, the judge would not let the advocate for the defendant put his case properly before the Court. That was unfair. Had it subsequently been established that he was merely acting upon a preconceived notion then it would have been biased, but no such evidence was available or sought in the case.
In the circumstances, in my view, the case for Orange based upon bias must fail.

UNREASONABLENESS


The test agreed between the parties has its origins in the decision of the Canadian Supreme Court in Southam v. Director of Investigation and Research 1997 1 SCR 748. In that case the issue before the Court was whether a merger or proposed merger of two groups of newspapers, one being daily and the other being community papers, prevented or lessened or was likely to prevent or lessen competition substantially. A fundamental issue for decision by the competition tribunal was whether daily newspapers and community newspapers were a different market for advertising purposes.
The jurisdiction of the tribunal was to determine primary facts and then to make a decision of law based upon those facts. On the appeal from the Tribunal it was suggested that the Tribunal had erred in its findings of fact. Dealing with this issue the Court said at paragraph 49:
“Because an appellate court is likely to encounter difficulties in understanding the economic and commercial ramifications of the Tribunal's decisions and consequently to be less able to secure the fulfilment of the purpose of the Competition Act than is the Tribunal, the natural inference is that the purpose of the Act is better served by appellate deference to the Tribunal’s decisions.”

Dealing with the test to be applied the Court said at paragraphs
55 and 56:

“But on the other hand, appeal from a decision of an expert tribunal is not exactly like appeal from a decision of a trial court. Presumably if Parliament entrusts a certain matter to a tribunal and not (initially at least) to the courts, it is because the Tribunal enjoys some advantage the judges do not. For that reason alone, review of the decision of a tribunal should often be of a standard more deferential than correctness....

I conclude that the ... standard should be whether the decision of the Tribunal is unreasonable. This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal’s decision is patently unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.”

That was a case too where the Court recognised that in arriving at its decision the Tribunal would have to consider several factors. It then considered what weight should be given to the various factors, and decided that this was a matter for the Tribunal. At paragraph 43 of the judgment it said:
“A test would be stilted and impossible of application if it purported to assign fixed weights to certain factors as, for example, by saying that evidence of inter industry competition should weigh ten times as heavily in the Tribunal’s deliberations as does evidence of physical similarities between the products in question. These sort of things are not readily quantifiable. They should not be considered as matters of law but should be left initially at least to determination by the Tribunal. The most that can be said, as a matter of law, is that the Tribunal should consider each factor; that the according of weight to the factors should be left to the Tribunal.”

This decision was followed by Kearns J. in M. and J. Gleeson and
Co. v. Competition Authority 1999 1 ILRM 401. What was an issue inter alia was the nature of an appeal under s. 9 of the Competition Act, 1991.
At p. 410 he said:
“It seems to me clear that the concept of curial deference of necessity takes the Court to this further position, namely that the greater the level of expertise and specialised knowledge which a particular tribunal has, the greater the reluctance there should be on the part of the Court to substitute its own view for that of the authority. That again is the weighting which is indicated by the Canadian Court in the Southam case.

That means in practical terms that the applicants in order to succeed must establish a significant erroneous inference which was critical to the grant of the licence and which went to the root of that decision rather than an erroneous inference which relates to some detail, even if that detail is relevant. In relation to any particular inference, therefore, the applicants must show that had the competition authority drawn some other inference the licence could not properly have been granted.”

A general statement of law as to how the Court should deal with administrative decisions was made by Hamilton C.J. in Henry Denny and Sons (Ireland) Limited v. The Minister for Social Welfare 1998 1 IR 34. He said at p. 37:
“... It would be desirable to take this opportunity of expressing the view that the Court should be slow to interfere with the decisions of expert administrative tribunals. Where conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that tribunals which have been given statutory tasks to perform and exercise their functions, as is now usually the case, with a high degree of expertise and provide coherent and balance judgments on the evidence and argument heard by them it should not be necessary for the courts to review their decisions by way of appeal or judicial review.”

I have already expressed my views on the matters with which the Court should be concerned and such views are supported by these cases in the passages from the judgment in those cases to which I have referred.
The latter passage from the judgment of Hamilton C.J. is a very strong statement in favour of deference. As the judgment in the Canadian case put it, where matters are entrusted to a tribunal, “ it is because the Tribunal enjoys some advantage the judges do not.”
In my view, the test for competition cases cannot be a guide for other codes. The composition and powers of the Canadian authority were not identical to those of our competition tribunal and for that reason it is not necessary to approve or disapprove the test taken from in re Southam. Even if I did, doing so does not automatically determine what matters are within the competence of the Court. Kearns J. recognises that the greater the level of expertise and specialised knowledge the particular tribunal has the greater the reluctance there should be on the part of the Court to substitute its own view for that of the tribunal. The Canadian Court recognised that the weight to be given to certain factors should be a matter for the tribunal.
The procedure for the grant of a licence is set out in the Directives and amplified in the Regulations as is the right of appeal. There is nothing in the Directives to suggest that the appellate tribunal should impose its own view of the correctness of the views of the national authority. The whole tenor of the Directives suggests that what is required is for the appellate tribunal to be satisfied that the procedures outlined in the Directives have been followed. As already indicated earlier in this judgment, there is nothing in the regulations which imposes any different regime.
In my view, the actual approach of the evaluators to the bids, answers and presentation by both Orange and Meteor should be a matter for them. Specialised knowledge and a high level of expertise was required, something that not only does the Court not have, but if it could obtain such knowledge, it would still not be able to say that the evaluators were wrong, only that it might have marked the bids differently. Not only were the Director’s officials fully able to decide the matter, but the Director appointed independent consultants to manage and supervise the competition, something which also happened in other jurisdictions.
What the Court has to consider to ensure that the Director has acted reasonably is to consider the tender document, the answers to questions posed by intending bidders, the questions raised by the Director after the bids had been received, the reasons given by the Director to Orange for having placed it second in the competition, the representations raised by Orange and the replies of the Director thereto.
The function of the Director in the present instance was to set up a competition in accordance with certain rules as indicated in the tender document. Then in addition to her own expert staff, she is entitled to appoint outside experts not only to establish the rules but to supervise the competition and to advise her on her decision as to the winner. Whether the courts wish or not, they are not in a position to substitute their views for those of the Director. The purpose of the best application method is to select a winner in accordance with the rules of the competition. Provided that these have been fairly and openly complied with the courts are in no position to hear an appeal on any other basis. They are entitled to accept that the decision was based on the respective rankings of the applicants. It is a matter of construing the powers given to the Court in the light of the functions and nature of the particular statutory body. Each statutory regime is different.
The function of the evaluators unusually for administrative decisions is not to make findings of primary fact. The facts are essentially furnished by the bidders. The evaluators do not find facts; their sole function in relation to facts is to decide whether they are credible. In regard to the facts they accept, they have to evaluate them in the light of indicated criteria. This is a task to be left to a skilled and independent body established to carry out such a task. The large number of headings under which the bids were evaluated tended to lessen the subjectivity of the evaluation. Nevertheless, it remained essentially subjective.
Orange has cross-appealed upon the ground that evidence should have been admitted on the issue of reasonableness of the Director’s decision. Counsel has submitted that all cases need evidence, if it is only an affidavit to set the scene for the hearing. I agree with him. In the instant case, the basis for the ruling by the learned trial judge was that as she had to decide whether the Director’s decision should stand, her decision should not take into account any materials not before the Director. That is the position in an ordinary appeal, unless special provision is otherwise made. It is on the evidence before the lower court. Further evidence is only allowed in special circumstances. But when what is in issue is not only what was before the Director, but her treatment through her officials and consultants, of Orange’s bid and representations, that is a new issue in respect of which evidence may be admitted.
The reason for the admission of expert evidence is to put a court which has to decide whether certain conduct on the part of experts is appropriate or not, into a position where it can understand the parameters of such conduct. If that is in issue, then a court could have no way of determining such an issue in the absence of relevant evidence. In this regard, there is a distinction between fresh evidence and evidence. When a matter has to be determined on matters in being on a particular date subsequent matters are not admissible in evidence. That is fresh evidence. There are rules for the admissibility of such evidence to this Court. The appeal from a tribunal to the courts is different. There may be an issue which could not have been before the tribunal; in the present context, that the decision was unreasonable. Such an issue can arise on appeals to this Court from the High Court, but is decided as a question of law. If on appeal from a tribunal, the High Court has to decide such an issue as a mixed question of law and fact, then evidence should be admissible on such issue, if it was not before the tribunal, as in the ordinary case it would not have been.
In the instant case, Orange’s real submission is that the order in which the two bidders were placed was unreasonable. It was a submission entirely on the merits as was quite clear from a consideration of the representations made to the Director seeking to induce her to reverse her decision not to grant the licence to it. But the order of the placings is something which is not an issue. The competition was conducted by expert and experienced, independent and impartial evaluators carrying out a specific statutory function. The right of Orange to query that decision may only relate to the manner in which the decision was reached not to the decision itself.
The evidence on this issue before the Court was wider than it should have been. But the fact that more evidence was before the Court than there should have been does not justify a finding that even more inadmissible evidence should have been admitted.
This is emphasised by the substantial difference between the cases pleaded and as submitted at the hearing and on appeal. The latter arose from a trawling through the documents which were discovered. As a result Orange in the main lost sight of the rules of the competition, the breach, if any, of which should have been the sole basis of complaint.
Taking all the circumstances of this case into account and the exhaustive consideration of factual matters, I have no doubt that no injustice had been done to Orange by the ruling disallowing such evidence. This is not a case where I am saying, it would have made no difference, that is an impermissible view. The reality is that the thrust of Orange’s submissions is based upon the allegation that parts of the evaluation are inexplicable. The matters which resulted in findings of bias were found to support the findings of unreasonableness and vice versa. However, evidence was admitted on the issue of bias and in so far as issues of unreasonableness, such as the proper construction of the tender were concerned, this evidence dealt with them. The issues which it is submitted were not dealt with, engineering matters and some of the matters which the learned trial judge ruled against Orange, related to the merits and should not have been the concern of the Court in any case.
Further reference to the matters which the learned trial judge found to show both bias and unreasonableness is not necessary. Orange must accept that the evaluation was carried out by experienced groups acting totally impartially. That being so, the basis of its objections fail on that ground alone. It may well be that other evaluators may have dealt with some of those issues differently. Evidence called on behalf of Orange suggested that. On the other hand, the evidence called on behalf of the Director and of Meteor supported a contrary view, but none of it was rejected by the learned trial judge. The reality on this issue is that explanations were given for all the matters complained of none of which indicated that the evaluators had been acting outside their remit.
In the circumstances there was no basis upon which the decision of the Director should have been set aside or stayed. I would allow the appeal and disallow the cross-appeal.

THE SUPREME COURT

Keane, C.J. 1998 No. 12160p
Murphy J. 224 & 278/99
Barron J. 14/00
Murray J.
Geoghegan J.

Between:

ORANGE COMMUNICATIONS LIMITED

Plaintiff

v.

THE DIRECTOR OF TELECOMMUNICATIONS REGULATION and METEOR MOBILE COMMUNICATIONS LIMITED
Defendants

JUDGMENT of Mr. Justice Geoghegan delivered the 18th day of May, 2000.

25. Currently there are two licensed mobile telephone operators in this jurisdiction namely Eircom and Esat. With a view to increasing competition in the telecommunications area the first-named Defendant, the Director of Telecommunications Regulation ( “The Director” ) decided to license a suitable third operator. Having regard to spectrum and other problems it was decided that for the time being at least there should only be one additional operator. Initially quite a number of consortia showed interest in possibly applying for the licence and requested sight of the relevant documentation etc. Ultimately, when the matter was put out to tender there were only two applicants, the Plaintiff and the second-named Defendant. As the tender documents made clear the Director had decided to award the licence on foot of a competition. The type of competition envisaged is generally known as a “beauty contest” . This is in contrast to the auction type competition. What it means is that the competition is not necessarily won by the highest financial bidder but numerous criteria are taken into account, marked and weighted so as to discover the most overall suitable applicant. It was made clear in the tender documents that the Director was not bound to award the licence to the winner of the competition and indeed it was envisaged that there would be discussions between the Director and the winner before any final decision was made as to the award of the licence. The parties tendering were given advance notice of the general group headings (described as “groups”) on foot of which the applications would be considered and the individual group weighting. There were five groups in all described as marketing (38% weighting) technical (27% weighting) financial and management (20% weighting) charges (10% weighting) and guarantees (5% weighting). The tenderers were also informed of the dimensions to be considered within each group and these were given in descending order of importance. Thus in the marketing group the dimensions were tariffs, marketing strategy and services. In the technical group, the dimensions were network quality, acquisitions of sites etc. and environmental issues, and coverage. In the financial and management group the dimensions were solidity and sensitivity and experience/expertise. There were no separate dimensions for the charges group and the guarantees group. Weightings were given to these dimensions and in some instances for this purpose the dimensions were divided into sub-dimensions. The weightings given to the dimensions and sub-dimensions were not notified to the tenderers. After the tenders were opened and read different aspects of each dimension or sub-dimension were isolated and described as indicators. These were each given a marking on a scale from A - E and after the marking was done each indicator was given a weighting. After the marks were added up and the appropriate weightings applied the second-named Defendant emerged as the winner of the competition.


26. A firm of expert consultants from Denmark called Andersen had been engaged by the Director to process the competition alongside members of her own staff. Different working groups were formed to evaluate the rival tenderers in respect of particular topics. The composition of these various working groups differed but they consisted of members of the Director staff and of Andersens. The reports and preliminary evaluations of these working bodies were considered by an overall body and further cross checking exercises were carried out. Ultimately a final evaluation report was prepared for the Director. This is a brief summary of the factual background, a much more detailed account is to be found in the judgment of the Chief Justice.


27. Under the relevant legislation, if the Director is of a mind to refuse a licence to a particular applicant, she must notify such applicant of her proposal so to do and give reasons. The losing applicant has then an opportunity under the Act to put forward reasons why the Director should not make a decision to refuse the licence to that applicant. It is the contention of the Defendants that that procedure was carried out in this case but the Plaintiff maintains that no or no adequate reasons were given. Be that as it may submissions were made to the Director by the Plaintiff and the Director made a final decision refusing to grant the licence to the applicant. Under the Act reasons must be given with the refusal. The purported reasons given were that the Plaintiff was not the winner of the competition and that successful discussions had ensued with the winner. The Act gives a right of appeal to the High Court to a party refused a licence. Ireland as a member state of the EU was obliged to grant such a right of appeal pursuant to an EU directive. Neither the directive nor the domestic legislation specifies the type of appeal envisaged and this is a most important aspect of the case as will clearly emerge later on in this judgment.


28. The Plaintiff duly appealed and the appeal was heard over 51 days by Macken J. in the High Court. She delivered Judgment on the 4th October, 1999 annulling the decision to grant the licence to the second-named Defendant and remitting the matter back to the Director for further consideration. The Defendants have appealed to this Court from that decision. The Plaintiff has cross-appealed on two matters to which I will return.


29. The Plaintiff’s appeal to the High Court was essentially on three grounds.

(1) That there was bias on the part of the evaluators against the Plaintiff.
(2) That the decisions of the evaluators were in a number of different respects wholly unreasonable.
(3) That no reasons or no adequate reasons were given with the proposal to refuse the licence and also with the decision to refuse it.

30. I will treat each of these separately and in turn as far as possible though there is overlap between the allegations of bias and the allegations of unreasonableness. The case on bias is a most unusual one. What was suggested was that the evaluators made so many erroneous decisions all one way, that is to say, against the Plaintiff, that there must have been bias on their part and that therefore in a vicarious sense there was bias on the part of the Director. It was accepted by all parties that on the issue of bias fresh oral evidence could be given but the learned High Court Judge ruled that on the issue of reasonableness (an expression which will be explained later in the Judgment) no fresh oral evidence was admissible save and except such evidence as the Judge herself might require presumably at the suggestion of a party, it being an adversarial system of justice. One of the two grounds of the cross-appeal is that this exclusionary rule laid down by the Judge was wrong. But what further complicated matters was that the Judge herself conceded that there was considerable overlap between the issue of bias and the issue of reasonableness and that it might not be possible for her totally to exclude from her mind in dealing with the issue of reasonableness the oral evidence she might have heard in relation to bias.


31. No authority was cited in the High Court or in this court expressly supporting the proposition that bias whether it be so called actual bias or apparent bias could be established by proving cumulative error all one way. This appears to be acknowledged by the learned High Court judge in that at page 168 of her judgment she observes that “the law relating to bias is reasonably well developed in this jurisdiction, although no case law has been opened which is directly applicable to the Orange claim made here”. There follows the famous quote from Lord Hewart’s judgment in R.v. Sussex Justices ex parte McCarthy [1924] IKB 256 at 259:-

“It is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done”.

32. Due possibly to a word processing error the impression is given at first sight from the judgment of the High Court that Lord Hewart went on to observe that:-

“Whether the bias alleged is subjective or objective, it may take a variety of forms. The decision maker may have a financial or proprietary interest in the outcome of the litigation. He or she may be related by family, social or business ties to one of the parties. He or she may have on some other occasion so prejudged the matters in dispute as to be incapable of reaching a detached decision or, at all events, a decision which reasonable people would regard as free from even the suspicion of bias”.

33. In actual fact that quotation is from the judgment of Denham J. in Dublin Well Woman Centre Limited v. Ireland [1995] I ILRM 408 and is again mistakenly attributed to the Ex Parte McCarthy case at page 170 of the High Court judgment. The learned trial judge seems to have arrived at her conclusion that evidence of cumulative error one way can be proof of bias from nothing more than the simple observation that bias “may take a variety of forms” . It is quite clear however when one reads the full quotation from the judgment of Denham J. that she was merely pointing out that there are different

examples of situations that have been held to amount to bias in law and as is clear from the above quotation, Denham J. gave some examples. It is still the case that there is no authority or precedent or even relevant obiter dicta to indicate that bias can be established from the nature of the actual decisions made. The learned High Court judge took the view that in the absence of precedent this might be a reasonable development of the law. But I do not think that that view was justified in that it fundamentally alters the true meaning of bias. It seems clear from the case law in Ireland and England that an allegation of bias must be made on foot of circumstances outside the actual decisions made in the case itself. I would accept that in a situation where there was an arguable case of bias based on traditional proofs the added factor of cumulative wrong decisions all one way might be tantamount to corroboration of alleged bias and be a relevant factor in that restricted sense in the proving of bias. But of itself and by itself it can never be evidence of bias.

34. What the authorities seem to have established is that there are in effect three different situations where bias may arise.

(1) The rare case of proved actual bias. For such bias to be established it would be necessary actually to prove that the judge or the tribunal or the adjudicator or whoever the person might be, was deliberately setting out to mark or hold against a particular party irrespective of the evidence.
(2) A situation of apparent bias where the adjudicator has a proprietary or some other definite personal interest in the outcome of the proceeding competition or other matter on which he is adjudicating. In that case there is a presumption of bias without further proof.
(3) Even in cases where there is no evidence of actual bias and no evidence of the adjudicator having any proprietary or other interest in the outcome of the matter, there will still be held to be apparent bias if a reasonable person might have apprehended that there might be bias because of some particular proven circumstance external to the matters to be decided in the case such as for instance a family relationship in circumstances where objection may be taken (O’Reilly v. Cassidy [1995] I ILRM 306) or the Judge having been involved in a different capacity in matters which were contentious in the case (Dublin Well Woman Centre Limited v. Ireland as cited above) or where there was evidence of prejudgment by a person adjudicating (O’Neill v. Beaumont Hospital Board [1990] ILRM 419). The law of bias has been usefully reviewed by the English Court of Appeal in the case of Locabail Limited v. Bayfield Properties [2000] 1 All ER 65. The issue of bias was decided in five appeals heard together by a Court consisting of Lord Bingham of Cornhill CJ, Lord Woolf MR and Sir Richard Scott V-C. In the judgment of the Court delivered by Lord Bingham after dealing with the situation of proven actual bias and the cases where the presumption of bias arises by reason of a proprietary or other interest, the judgment goes on to observe at p.73
“In practice, the most effective guarantee of the fundamental right recognised at the outset of this judgment is afforded not (for reasons already given) by the rules which provide for disqualification on grounds of actual bias nor by those which provide for automatic disqualification, because automatic disqualification on grounds of personal interest is extremely rare and judges routinely take care to disqualify themselves, in advance of any hearing, in any case where a personal interest could be thought to arise. The most effective protection of the right is in practice afforded by a rule which provides for the disqualification of a judge and the setting aside of a decision, if on examination of all the relevant circumstances the court concludes there was a real danger (or possibility) of bias”.

35. It is not necessary in this case to consider whether there are any nuances of difference between the Irish case law and English case law and especially it is not necessary to consider the problems which have bedevilled the English cases as to whether one should speak of danger of bias, suspicion of bias or possibility of bias. Lord Bingham goes on to give examples of what would not be considered bias and examples of what could be so considered. The Lord Chief Justice points out that it would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias, that everything will depend on the facts which may include the nature of the issue to be decided. He goes on to say however that the Court could not conceive all circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the Judge. He goes on to say at p.77:-

“Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment background or history, nor on that of any member of the judge’s family; or previous political association; or membership of social or sporting or charitable bodies; or Masonic association; or previous judicial decisions; or extracurricular utterances (whether in text books, lectures, speeches, articles, interviews, reports or responses to consultating papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in the cases before him; or membership of the same inn, circuit, local law society or chambers”.

36. On the other hand the court considered that:-

“A real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge was closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were in issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasions; or if on any question at issue in the proceedings before him the judge had expressed views particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue within an objective judicial mind; or if for any other reason there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predelictions and bring an objective judgment to bear on the issues before him”.

37. I have deliberately listed in full the instances given by Lord Bingham of situations where normally bias would not be held to exist on the one hand and situations where bias would be held to exist on the other hand. I have done this with a view to demonstrating the type of situations which are envisaged. In every single instance Lord Bingham is talking about some outside fact which could conceivably be seen influencing the judge. There is not the slightest suggestion that bias could ever be established as a consequence simply of the decisions of the judge.


38. I fully appreciate that the applications before the Court of Appeal all arose out of Courts or Tribunals having to act judicially but as far as the meaning of legal bias is concerned I do not think that there is any material difference between Courts and administrative bodies except of course as has been pointed out in a number of authorities, an administrative body may have some prior knowledge of the matters upon which it is adjudicating which a Court will not. But in neither instance can bias be proved simply from the nature of the decisions.


39. If I am right in the view which I have taken on the meaning of bias in law (which as Denham J. pointed out in the Dublin Well Woman Centre case may not necessarily correspond with the ordinary dictionary meaning) it is strictly speaking not necessary for me to comment on the separate instances of decision making on the part of the evaluators in respect of which the learned High Court judge found bias. But I think that in fairness to the Director who has clearly brought this appeal with a view among other things of overturning the inferences drawn against her and her staff and agents I should express my view on each of the matters concerned especially as I have come to the conclusion that even if the learned High Court judge had been justified in her view that cumulative decisions one way could amount to legal bias, she was in fact wrong in the inferences which she drew. In other words, even on that extended meaning of legal bias which I do not accept, such bias cannot be established. I now intend to deal in turn with each of the instances of bias found by the trial Judge. I find it useful in this connection to adopt the headings contained in the list of allegations on bias handed into the court by counsel for the Director. I will also follow the order in that list which is the order followed by the trial judge.


“Essential Part”/ One network.
In the introduction to the evaluation report the following passage appears at p.10.
“The applicant seems to view the network in the Republic of Ireland as an essential part of its present DCS1800 networks in Great Britain and Northern Ireland, ...”.

40. It was argued on behalf of the Plaintiff in the High Court that this passage meant that the Plaintiff was not really proposing a new independent network for the state and that any network established would be simply part of the UK network. The learned High Court judge accepted this argument and included that passage in the report as evidence of bias. I find myself unable to agree with the learned High Court judge that the passage in question is open to the construction she has put on it and still less can I agree that any inference of bias can be drawn from its formulation. I read the passage as neutral and value free but if anything the implied reference to a link with the networks in Great Britain and Northern Ireland seem to me to be a plus factor in favour of the Plaintiff. As is pointed out in the written submissions on behalf of the Director the passage itself refers to “network in the Republic of Ireland” . The Evaluation Report frequently refers to the “network” proposed by Orange. I find myself in agreement also with the other arguments put forward by the Director. One important point is that the UK network was at DCS1800 network only. The licence to be granted in Ireland pursuant to the competition was a combined GSM 900/DCS 1800 network. In my view therefore the learned High Court judge was incorrect in the construction she put on the passage and was also incorrect in drawing any inference of bias from it.


Belgian Licence/Hans Snook.

41. This is another minor matter to which the learned High Court Judge appears to have attached quite an amount of significance. It has been argued and I think correctly on behalf of Orange that there was no inaccuracy in its tender document as of the time it was written and that the relevant statement in the tender related to the nature of the application made in Belgium and not the actual licence granted. Other arguments have been put forward also but I do not intend to review these in detail. Insofar as the evaluators in the report refer to any alleged inaccuracy in the Orange application it has been described in the report itself as a “minor discrepancy” . I cannot conceivably see how that could be evidence of bias. For the reasons explained clearly in Orange’s written submissions there is no evidence of any intention to deceive on the part of Orange. At p.71 of the Appendix to the Evaluation Report the evaluators after referring to the so called “minor discrepancies” go on to observe:-

“Apart from this, the general impression of Orange is a company providing the state of the art services from a highly refined network”.

42. This is hardly evidence of bias.


Close the gap/ bonus to distribution.

43. I will adopt the learned High Court judge’s own summary of what the problem was here. She sets it out as follows:-

(a) Bidders had to set out their respective marketing plans;
(b) It is accepted that marketing expenditure was a very important requirement of any successful bidder coming on to the Irish market especially where there were already two established mobile telephone server companies on the market;
(c) The actual figures which the parties proposed to spend, in one form or another, in marketing were to be set out, and were set out in the mandatory tables provided in the appendices to the tender document;
(d) Both Orange and Meteor did, in fact, complete the tables as requested;
(e) When the evaluators came to consider the marketing budget of the respective parties, they did not draw a distinction between the figures allocated for ‘Bonus to Distribution Channels’ on the one hand and ‘Marketing Costs’ and ‘Personnel and Social Security Costs’ in the mandatory tables which both parties completed;
(f) Rather, the evaluators recognised that there appeared to be a discrepancy between the figures furnished by one party for the last of these categories and the figures for the other party, because one was quite substantially lower than the other;
(g) Clarification was sought in respect of these, and it became clear that one of the parties had included the personnel costs attached to marketing in the ‘Marketing Costs’ figures, while leaving the personnel costs as covering what might be called ‘pure’ personnel costs;
(h) When clarification was furnished in relation to these apparent discrepancies, the evaluators reported in the following terms, under the heading ‘Bonus to Distribution Channels’:-
‘Given the importance of distribution channels in the success of a
new entrant, bonus, i.e., performance related rewards to
distribution channels is considered an important indicator of
how successful the operators’ distribution channels might be.
In its business plan, Orange has budgeted for a significantly
higher bonus to distribution channels than Meteor although
Meteor plans for more subscribers than Orange, see figure 7.
However, supplementary investigations, in particular on the
itemisation of the sale staff, tend to close some of the gap between
the two applicants’.”

44. The Judge goes on to observe that Orange was awarded a “B” and Meteor “C”. The Plaintiff complained that there should have been a much bigger differential in its favour because under the entry “Bonus to Distribution Channels” the Plaintiff’s figure was much higher than Meteor’s. It emerged from the evidence however that the position was not as simple as that. The evaluators appear to have been puzzled at the substantial discrepancies in figures between the two applicants and as a consequence of questions sent to Meteor, discovered that Meteor had included all personnel costs under line 48 of Table 7.11 of the mandatory tables, the heading for that line being “Personnel and Social Security Costs”. Marketing Costs which were also employee costs were therefore included in that line. Orange by contrast had included staff costs in its marketing budget. In addition therefore to the figures given by Meteor for “Marketing costs” and “Bonus to Distribution Channels” respectively the evaluators added in an estimated figure for Meteor’s staff costs in marketing. Once that was done the gap tended to close. An issue did arise as to how to factor in handset subsidies. These were not mentioned as such in the Meteor tender document but it was taken for granted that handset subsidies would be a feature of the business. The evaluators made the assumption which they regarded as a reasonable assumption that handset subsidies were reflected in the indicators “Bonus to Distribution Channels” and “Advertising and Branding”. It may well be that experts could agree or disagree with the approach adopted by the evaluators but there was absolutely nothing to indicate bias. Furthermore Orange was given credit for having a higher figure under pure bonus to distributions. To put the matter into perspective it is relevant also to mention that the bonus to distribution channels indicator carried 0.8% of the overall marks of the competition.


Tariffs

45. In terms of the effect on the overall marking the complaints of Orange in relation to tariffs are by far the most serious. They are summarised by the trial judge in her judgment at p.62 as follows-

(a) “The allegation that the tender document did not reflect or reflect adequately the fact that the Evaluators were looking for the lowest tariffs, as opposed to tariffs which were competitive; [Policy]
(b) The allegation that the tender document did not reflect or reflect adequately the fact that the Evaluators were looking for binding commitments as an essential feature of the tendering process; [Notification of the Policy objective]
(c) The allegation that in the evaluation process itself, the Evaluators adopted an unjustifiably adverse view against the Orange bid and an unjustifiably favourable view of the Meteor bid; [Comparison of the Tariff Plans]
(d) The allegation that in the evaluation process itself, the Evaluators failed to take into account its own tender rules concerning the conversion of proposals put forward in Table 7.8 into binding terms and conditions of any licence which might issue; [Clause 1.6.2.] ”.

46. At this point in the judgment it is perhaps important to recall that only the overall group weightings were known to the applicants before tendering. The applicants at the pre-tender stage however were aware of the dimensions in descending order of importance under each group. The group weighting for marketing was 38% and the dimensions in descending order of importance for the marketing group were tariffs, marketing strategy and services. It is also important to recall that the 38% was by far the highest weighting within the groups. Each applicant before tendering would have been aware that tariffs was the most important dimension within that grouping. Section 3.4 (g) of the tender document made it clear that the tenderers were expected to make binding commitments on tariffs and price development. The sub-paragraph read as follows:-

“At this stage, applicants should indicate any binding commitments on tariffs, including any reduction predicated on more favourable interconnection charges or other commercial conditions on downward trends over the licensed period”.

47. I agree with the observations contained in the Director’s written submissions that the trial judge unjustifiably down graded the importance of this sub-paragraph apparently taking the view that it was some kind of last minute addition which did not fit in with the syntax of the document. Even if that were so, I do not think it would be justifiable to lessen its significance on this account. The fact is that in the final tender documents the proposed tenderers had due notice that binding commitments on tariffs were expected. The evaluators took the view on the basis both of the respective tenders and the replies to questions put to Orange that Meteor had given binding commitments and Orange did not. Indeed Orange expressly said the following:-

“At this stage, it is not appropriate or practical to give any binding commitments on tariffs (including maximum tariffs)”.

48. From other statements of Orange it was also clear that no binding commitments were being given. To the charge that Orange did not give any binding commitments on tariffs Orange principally relies on two quite distinct answers. In the first place Orange points out that there was a mandatory table 7.8 which was intended to contain their expectations of the development in their maximum tariffs, and they argue that any refusal to give binding commitments would not have applied to that table. But even Mr. Collins, Counsel for Orange, admits that there could be ambiguity on the documents. In my view the evaluators cannot be criticised for taking the view that there were no binding commitments on tariffs whatsoever from Orange and since that was a perfectly reasonable view to take I cannot see how it could be construed as bias even if the extending meaning of bias contended for was correct in law. But Orange makes a second point in response to the allegation of no binding commitments. The tender documents gave the Director the right to convert proposals made in the tender documentation into conditions attached to any licence which was given. It has been consistently argued by Orange that because of this right given to the Director it is immaterial from an evaluation point of view whether binding commitments were given expressly or not. Any proposals could be converted into conditions and the end result would be the same. That view was put forward throughout the trial in cross-examination of the Director’s witnesses and the witnesses from Andersens. These witnesses made it clear that they did not view the position in that way. As far as they were concerned the evaluation was one stage in the process and the question of what conditions were to be attached to the licence was a different process to be carried out at a later stage. Furthermore, it is clear from their evidence that they would have doubts as to whether tariff proposals by Orange could be converted into conditions in circumstances where Orange had expressly stated that no binding commitments were being given. It is probably true that this point was not seriously considered at the relevant time in that the Director’s staff and Andersens who were engaged in the evaluation process quite clearly took the simple and straight forward view that whereas the tender documents had envisaged commitments on tariffs, no such commitments were given by Orange and Orange had to be penalised in marks on that account. I see nothing wrong in that view or certainly nothing irrational or biased in it. It was a perfectly tenable view to adopt both in law and in fact. I am satisfied therefore that the evaluators were entitled to mark Orange unfavourably in respect of binding commitments on tariffs.


49. However as is clear from what I have already stated, this is not the only complaint of Orange in relation to tariffs. Orange makes a distinction between low and lower tariffs and claims that it had no notice that the evaluators were looking for what it calls “the lowest tariffs” as opposed to merely competitive tariffs. The simple answer to this objection is that there is no real evidence to support the view that anything other than competitive tariffs was being looked at. The information memorandum which was published at the launch of the competition made it clear that the overall objective of the tender competition was “to increase competition and choice so that the Irish consumer benefits from lower tariffs and the availability of high quality services...”. Of course the mere statement of policy in the pre-tender documents does not necessarily mean that the evaluators did not look for a low cost operator. However Mr. McQuaid of the Director’s staff involved in the evaluation in evidence stated that there was no policy decision to go for a low cost operator and I do not think that there was anything in the evaluation of the tariffs which would justify the view that there was some departure from the stated policy of looking for competitive tariffs, still less of course was there any evidence of bias.


50. The next allegation under this heading has caused me some concern. The methodology adopted by the evaluators in the competition was that the marking on the A - E system was carried out in respect of each of the indicators before the weighting was attached to such indicator. Furthermore the tenderers were given no information as to what the indicators were. It turned out that one of the indicators was “commitments and price development” . In the marking in respect of that indicator Meteor was awarded a B and Orange was awarded an E. It was then decided that that indicator would be given the substantial weighting of 45%. Given that the group weighting for marketing was 38% and that the tariff dimension weighting within that group was 20%, the 45% was tantamount to 9 marks out of 100. It is not seriously in dispute that the evaluators would or at least ought to have realised that in applying a weighting of 45% they were in effect determining the outcome of the competition. On that weighting Orange was going to be the loser. It is important to reiterate that the trial Judge did not suggest actual deliberate bias in this connection. If I am correct in the view of the law on bias which I have already given this means that the question of bias under this heading does not arise though of course unreasonableness might be a different matter. But if the view of the trial Judge on bias was correct it would be necessary seriously to consider whether such bias could be found in the way that the indicator was dealt with. At one stage I had some doubts about this but I have come to the conclusion that it was part and parcel of the evaluation system that the indicators and weightings for them would be determined in the light of seeing the tenders. Essentially the exercise was looking at the tenders and comparing them. If marks were going to be given on foot of that comparison then these sub-headings had to be isolated, but that could only be done in the light of the tenders furnished. If there was one significant aspect on which one applicant was clearly ahead of the other, it was reasonable to apply a substantial weighting and it was particularly reasonable to do so if there was going to be a separate heading of “commitments and price development” as distinct from simply spreading this aspect among the other indicators. In all the circumstances, therefore I do not think the evaluators can be criticised. The learned Judge even on her own view of the law of bias was incorrect in finding bias.


Subscriber Contracts

51. The background to the finding of bias under this heading was as follows. Orange in its tender made it clear that its packages would be bundled packages only, that is to say contractual arrangements under which there would be a certain number of free calls. Furthermore the packages would involve twelve month binding contracts with a break clause subject to a penalty with a view to recouping Orange for the handset subsidy. By contrast Meteor was totally silent as to contractual arrangements and did not indicate that there would be any penalty for termination of contract. Furthermore Meteor proposed in addition to bundled packages an unbundled package. In the course of the evaluation, the evaluators did not question Meteor as to what, if any, would have been its contractual arrangements and as to whether there would have been a penalty for early termination. While Mr. McQuaid conceded in evidence that with hindsight this might have been a mistake, it was argued on behalf of the Director that it was important that probing of the tender should be kept to a minimum so as to prevent applicants “mending their hands” as it were. The evaluators were not overly impressed by either tender in relation to “Subscriber Contracts” but Meteor was awarded a C and Orange a D. The learned trial Judge is highly critical of the evaluators in not probing Meteor further and in its making assumptions that the Meteor bid was free of twelve month contracts and free of penalties. I think that it was open to her and indeed she was fully entitled to be critical of these aspects of the evaluation. But insofar as errors were made they could not be tantamount to or evidence whether cumulative or otherwise, of bias for the reasons already indicated. Insofar as the trial Judge was critical of particular language used, the suggestion being that this displayed some bias against Orange, I cannot agree. Furthermore it was certainly open to the evaluators to give credit to Meteor for having an unbundled package. The indicator “Terms of Subscription” accounted for a very small part of the overall marketing in the competition. Insofar as these issues arise again under the heading of reasonableness I will return to them in due course.


The Irish Touch

52. The allegation under this heading is that the report by its language seem to favour what it saw as an Irish/American bid in the form of Meteor as distinct from what it saw as an English bid in the form of Orange. As this was an international competition pursuant to a European Union Directive, nationalistic preference would be wholly illegal. The phrase “The Irish Touch” is a most unfortunate one because it is undoubtedly open to ambiguity. As the trial judge has pointed out the phrase is found in the section of the report dealing with the philosophy behind the application of Meteor and is made in the context of an alliance with An Post. Under the heading “The Basic philosophy behind each application” the following words appeared.

“Moreover, Meteor has given its application the‘Irish Touch’, notably through the expected strategic alliance with An Post. This alliance is proposed to be the vehicle for a number of products to the mass market as well as one of the keys to the opening up of new types of distribution channels”.

53. The evidence on behalf of the Director however was to the effect that the use of the phrase “The Irish Touch” referred only to the type of local knowledge which the applicant might have and not the nationality of the applicant as such. The trial Judge took the view that the evidence of the witnesses on behalf of the Director were in conflict with the actual wording in the report. But I think that the wording in the report, while it might be open to different interpretations, was certainly open to the interpretation put on it by the Director’s witnesses. The proposed arrangements with a well known semi-State body with branches all over the country such as An Post, was arguably a plus factor for Meteor and this had nothing to do with any nationalistic concern. The trial judge coupled this reference with the “one network” reference to which I have referred earlier on in this judgment and expressed the view that this bolstered the case of bias on a nationalistic basis in favour of Meteor. But with the greatest respect to the trial Judge I cannot see that this is justified. I would reject any finding of bias on this account.


Alterations to drafts.

54. The learned trial judge made it clear in her judgment that she was making no finding of actual bias on the part of the evaluators against Orange. As would be normal following on reconsideration, drafts of reports were altered before a final version of the evaluation report was prepared. The judge has imputed sinister motives for this which with respect to her if true would seem to be tantamount to actual bias. But the nature and context of the alterations complained of could not in my view constitute or raise inferences of bias whether actual or apparent. I do not intend to go into all the factual background in detail but the first of the main allegations in relation to alterations in the draft reports, is in respect of the indicator “guarantees from backers” which at any rate attracted a very small percentage of the total marks. Originally the evaluators had awarded a D to Orange and an E to Meteor. Ultimately this was altered to an award of C to Orange and a D to Meteor. The sinister allegation which is made is that Meteor could not be allowed to be shown to have an E in such an important financial indicator as “guarantees for backers” and would probably not be awarded the licence on this account. Accordingly both competitors were lifted up as it were. There is no evidence whatsoever to suggest that if Meteor had got an E under this indicator it would not have been granted a licence. But at any rate there is no evidence of any such motive nor could any inference be drawn of some kind of bias whether actual or apparent in this direction.


55. The second main allegation relates to the alterations in the draft reports in relation to “financial strength of consortia members” . The relevant text in the original draft report read as follows:-

“Although having negative equity, Orange has positive and increasing cash flows and a high capitalised market value, and is being awarded with a C.
Western Wireless is insolvent but has negative and decreasing cash flows and the capitalised market value is materially lower than Orange’s. Therefore Meteor is awarded with a D.”

56. The final text is in the following terms.

“Taking into consideration the above sub-indicators in the evaluation of the financial strength of Orange plc. and WWCA in the context of the Telecommunications Industry, the following scores were reached. Although having negative equity, Orange’s positive and increasing cash flows and a high capitalised market value, and the award of a B was considered. WWCA is solvent but has negative and decreasing cash flows and the capitalised market value is materially lower than Orange’s and the award of a C was considered. However WWCA represents only 60% of the ownership of Meteor Mobile Communications Ltd., as described earlier, and the financial strength of the Walter Group and in particular RAF Communications is less that of WWCA. Accordingly, Meteor is awarded a D and Orange is awarded a B.”

57. What is particularly strange about this allegation is that the final text had the effect of increasing Orange’s score while leaving Meteor’s the same. It is very difficult to understand why the learned High Court judge rejected evidence given on behalf of the Director as to why the changes were made. Again she seems to have taken the view that the object of the exercise was to prevent having to give Meteor an E in relation to an important financial indicator. But as is pointed out in the oral and written submissions, an E was effectively awarded for nothing at all and there was ample evidence to justify a D.


58. The next alteration which indicated bias in the judge’s view was the alteration of the word “unprecedented” to the word “atypical”. But the explanation seems to be quite simple. The word “unprecedented” in its literal meaning means without precedent. That was felt to be possibly too strong and the more appropriate word “atypical” was used. It is well nigh impossible to read anything sinister into it and it is very difficult to understand how it could in any way constitute evidence of bias. The whole argument got bogged down on a largely irrelevant issue as to the confidence in the English language of the Danish evaluators.


Reasonableness.

59. I now turn to deal with the issues of reasonableness but it is important first to consider the legal framework in which these issues were alleged to have arisen. The EU Directives require that there be a right of appeal from a refusal to grant a licence to an independent body. That body need not necessarily be a court but under Irish legislation the appeal lies to the High Court. It was at all material times conceded by counsel for the Director that the function of the High Court on such an appeal was somewhat wider than the function of the High Court on a judicial review. For reasons which will emerge I find it unnecessary and inappropriate that I should express any views on the correctness or otherwise of that concession. Counsel for the Director however at all stages argued that the statutory appeal was not intended to cover findings of fact which it was open to the fact finder to make.


60. In the event, Macken, J decided to adopt a standard which has been applied by Kearns, J in M & J Gleeson & Co. v. Competition Authority [1999] 1 ILRM 401 . That was statutory appeal from a decision of the Competition Authority and in the following two paragraphs from the head note accurately summarise the views of Kearns, J which are relevant to this case.


“(2) In reviewing the decision of an expert tribunal, a court should exhibit curial deference and the greater the level of expertise and specialised knowledge which a particular tribunal has, the greater the reluctance there should be on the part of a court to substitute its own view for that of the tribunal. Canada (Director of Investigation and Research) v. Southan Inc [1997] 1 SCR 748 approved.

(3) In reviewing the decision of the authority, the appropriate standard was that of reasonableness which was a standard between that of correctness and patent unreasonableness. Canada (Director of Investigation and Research) v. Southan Inc [1997] 1 SCR 748 applied. It was not sufficient that the court would have reached a different decision to that of the authority. It had to be satisfied that the authority’s decision lacked a reasonable basis. In practical terms, this meant that in order for the applicants to succeed, they had to establish a significant erroneous inference which was critical to the grant of the license and which went to the root of that decision.”.

61. It is clear from a reading of the judgment of the Canadian Supreme Court in the Southan Inc case delivered by Iacobucci, J that the Court took the view that what it called the “patently unreasonable” test was appropriate only where the court was confined to considering jurisdictional issues. This was the kind of test that was held to be appropriate by this court in judicial reviews of tribunals in the State (Keegan) v. Stardust Compensation Tribunal [1986] IR 642 and O’Keeffe v. An Bord Pleanála [1993] IR 39 . But in those cases the deciding body was or was alleged to have been in jurisdictional error by acting wholly unreasonably and therefore in effect ultra vires. The Canadian Supreme Court, as I understand it, took the view that a jurisdictional test of that kind could not be appropriate where there is a statutory appeal. Whether that view is right or wrong would not seem to be relevant for the purposes of this case. But the important point is that the Canadian court, having taken that view, had to then consider the opposite end of the spectrum, that is to say whether all questions of correctness were open on the appeal. The court took the view, as this court has taken on many occasions, that there must be curial respect for expert tribunals because such tribunals are set up by statute precisely because of their expertise and it would not make sense that a court of amateurs should have a right to reverse courts of experts in matters pertaining to their expertise. I have no problem about agreeing with that aspect of the Canadian decision but as to what the limits of a particular statutory appeal may be will probably depend on the nature of the subject matter and the context in which the appeal is brought. In this case the appeal against the refusal of the licence was brought in the context of a competition which Orange had lost. I intend to confine myself in this judgment to expressing views as to what are the limits of the appeal in a case where there is such a competition. Unfortunately the entire legislative scheme has been drafted in a way that is more appropriate to the situation where there is a single application for a licence. The situation where there is a competition is not easily fitted in to the appellate scheme. It was clearly contemplated that there may be competitive tenders it is incumbent on this court to interpret the legislation in a way that will cover such a competition. For this purpose it is necessary to postulate a situation where for instance there might be five or six applicants for a license who all participated in a competition organised by the Director. Is it to be suggested that a disgruntled competitor who is informed by the Director that she intends to refuse it a licence can, by means of discovery or otherwise, bring all the competitive tenders to the light of day and all discussions relating to them, notwithstanding the unwieldiness and length of such a process and the invasion on what must have been understood by all tendering parties to be an

obligatory confidentiality relating to each individual tender. Indeed I think it is legitimate to look at what actually happened in this case in helping the court to consider what must have been the legislative intention in relation to appeals where there has been a competition.

62. The statutory scheme requires the Director, if she is proposing to refuse a licence, to so inform the applicant and to give reasons. She must then consider any representations made. If she decides to refuse the licence she must so notify the applicant and must again give reasons. It is at that stage that the right of appeal arises. If the applicant was a single applicant no real problem arises because if the reasons were wrong (applying whatever test is appropriate) then there is no problem about mounting an appeal. If however there is a competition and the applicant is not the winner of the competition, then the most that the applicant can expect in the way of reasons from the Director is an indication of the aspects of the tender on which the applicant was marked less than a relevant competitor. It cannot ever have been intended that he should be entitled to see the marking awarded to the rival applicants. Still less is he entitled to see (except in the rarest of circumstances where there might be a strict judicial review application) all the documentation in connection with the competition. In this case all that documentation was produced by consent but if there had not been such consent forthcoming, it would be my view that Orange would not have been entitled to see it. The evaluators in carrying out their process were not strictly speaking deciding on who should get the licence. That ultimately was a matter for the Director. Rather, they were assisting the Director by awarding marks in the competition and reporting to the Director on who the winner was. Once the Director accepted in this case the reports before her that Meteor was the winner of the competition, then quite rightly her first and most important reason for refusing the licence to Orange was that Orange was not the winner. No doubt there could be rare situations where a High Court on appeal could go into aspects of the competition itself as for instance where an appellant produced an Affidavit by somebody involved in the evaluation alleging malpractice on the part of his colleagues. But in general where there is a statutory right of appeal for a licensing system and where in a given instance there were competitive tenders, the tenderers must be taken as having accepted in advance the rulings of the evaluators in awarding marks and the principle of confidentiality in relation to the rival tenders.


63. These principles would be subject obviously to the rules of the tender documents but in my view these two principles are either expressed or implied in the tendering arrangements in this case. The right of appeal cannot except, as I suggested, in the rarest of circumstances, involve an investigation of the actual marking in the competition. An appeal however may embrace many other matters. The representations made by the appellant to the Director after she gave reasons why she was proposing to refuse a licence, may not have been properly considered as evidenced by any reply thereto. The agreed procedures leading up to the actual evaluation may not have been complied with. The procedures after the evaluation may not have been complied with. There may be evidence of bias in the correct legal sense on the part of the Director or the evaluators. But what the appellate court cannot do is reconsider the actual marking.


64. By the expression “marking” I am including all the steps leading up to the sending forward to the Director of the final evaluation report.


65. It follows that in my view the learned High Court judge should not have embarked on those issues of so called “reasonableness” in respect of which she found in favour of Orange. Some of these overlapped with issues on bias. As I have already indicated findings all one way whether right or wrong could not be evidence of bias but in the earlier part of this judgment I went on to consider whether even if I was wrong about that, the learned High Court judge was correct in finding bias. I took the view that in each case she was incorrect. Insofar as there was overlap in relation to any of these issues with the allegation of unreasonableness as of course there was in the case of

bonus to distribution channels, tariffs and subscriber contracts, I also take the view that even adopting the trial judge’s approach there was no unreasonableness in the M & J Gleeson sense for the same reasons as I took the view that there would have been no bias.

66. With regard to financial management and solidity, the trial judge decided that the marking under the sub-indicator “experience of the applicant in the Irish market” was unreasonable on the grounds that it was unjustified to treat the heading “other relevant experience” as equivalent to “experience of the applicant in the Irish market” . It was further unreasonable to award Meteor a D and Orange an E. The reference to “other relevant experience” is a reference to the contents of the tender document. Under the requirements of the tender document an applicant had to describe its “competence and experience” . The document goes on to refer to the field of establishment of telecommunications in general and mobile communication in particular, experience arising from the ownership of networks in OECD countries, ownership interests in other mobile telephone networks and experience working as part of a consortium is relevant. Finally there is the catch all phrase “other relevant experience”. As already explained the tenderers would have had no advance notice of an indicator “experience of the applicant on the Irish market”. But what seems to have happened is that the tender documents indicated that Meteor had some limited experience of the Irish market via RF Communications whereas Orange had none at all. The evaluators thought it appropriate in those circumstances to include the Irish experience as an indicator. As a matter of ordinary common sense they were clearly entitled to do this unless there was some aspect of European Community law which prevented them. That is of course what is suggested (inter alia). But I do not think that it has been established in any way to the satisfaction of this court that an indicator of experience in the Irish market contravenes European Community law. It is obviously of some advantage to have had some Irish experience but it does not matter whether the company that has had the Irish experience is Irish, English, French or German or any other nationality. It is a purely factual matter and in attributing value to such information, there is no discrimination in my view contrary to European Community law. At any rate the evaluators could not be regarded as having been unreasonable in taking the view which they did in this regard.


Failure to give adequate reasons.

67. As already explained the Director was under a statutory obligation to give reasons at two separate stages of the procedures. The Director was obliged in the first instance to notify an applicant of her proposal to refuse to grant a licence and under Section 111 (2B) (f) of the Postal and Telecommunications Services Act, 1983 (as amended) was required to give “a statement of the reasons for the proposal”. Subsequently when the Director was refusing the licence she was again obliged by statute to give reasons. The first obligation to give reasons arises under the domestic statute only but the second is required by European Community law in the form of a directive in addition to the Act itself. However the entire statutory framework has been created with a view to implementation of the EU directives and it follows from that in my view that any decision of the European Courts pertaining to the nature of the reasons which have to be given, while not binding is highly relevant in interpreting either of the statutory requirements to give reasons in the 1983 Act. A great deal of Irish Case law has been referred to but I think that it is hardly necessary to go beyond the decision of the Court of First Instance of the Court of Justice of the European Communities in Adia Interim SA v. European Commission [1996] ECR II - 321 . The learned High Court judge took the view that that case was not really relevant as it was dealing with a simpler situation and that it was wholly distinguishable from this case. I cannot agree. It would seem to me to be highly relevant. In that case an employment agency had responded to an open invitation to tender for the supply of agency staff issued by the Commission. The Commission had selected three agencies from the field of tenderers but rejected the appellant’s tender. Under the particular procedure that applied in that particular situation the obligation to give reasons only arose when requested. The request was made and a letter in the following terms was sent by the Commission.

“Thank you for your letter of 9 December, 1994 asking for information as to the reasons for which your company’s tender was rejected.

The procedure applied by the tender selection committee was as follows:-
(1) The committee analysed each tender in the same non-discriminatory way. This means in particular the fact that a particular company had already had a contract with the Commission did not place it at a de facto advantage over the other tenderers.

(2) As stated in the specifications, only three tenders were to be accepted, and not six as had previously been the case.

(3) 22 tenders were received by the deadline, of which the committee dealing with the opening of tenders found that two were not in order.

(4) Two of the 20 remaining tenders did not satisfy the conditions for participating in the tender set out in points 6 of the specification.

(5) Six of the 18 tenders satisfying the conditions for participating in the tender did not fulfil all the selection criteria set out in point 7 of the specifications.

(6) The 12 tenders selected, which included that of your company, were then assessed on the basis of the three award criteria set out in point 8 of the specification, namely

- coverage of the different job and language profiles;

- organisation, customer service, flexibility;

- price.

(7) On the basis of that assessment the selection committee adopted the tenders which had obtained the most points as being the most economically advantageous one. These were the tenders of the companies Ecco, Gregg, and Manpower.


Accordingly, the outcome of the invitation to tender and the non-acceptance of the tender by your company resulted solely from a strict application of competitive criteria. However, this outcome does not detract from the satisfaction which the Commission has had in working with your company under the previous framework agreement”.

68. The court considered that this letter constituted sufficiently detailed reasons for the rejection of the tender “because it confirmed that it satisfied all the formal requirements of the procedure that was considered to be less economically advantageous than the tenders of Ecco, Gregg and Manpower at the stage when the three award criteria were applied”. It is true that the court goes on to observe that “the sufficiency of that reasoning is borne out by the fact that - as the applicant confirmed at the hearing - when it was informed that its tender had been rejected in December 1994, it was able immediately to identify the precise reason for its rejection, with the presence of a systematic error in the calculation of the price”. The learned trial judge has attached significance, and in my view undue significance to that addendum. It does not affect the important point to be taken from the reasoning in the judgment, that is to say that comparative reasons in a situation of comparative tenders are not required to be given. Furthermore the particular letter relied on by the court had been somewhat irregular in terms of the lateness in which it was delivered. Clearly the court took the same view as the Supreme Court has taken in O’Keeffe v. An Bord Pleanála cited above that provided that an applicant is made reasonably aware of the reasons the precise manner or form in which that is done is not important. In this case the correspondence from the Director combined with the written summary, albeit non-comparative, of the 6th July, 1998 gave quite sufficient reasons.


69. I should of course make clear that following on the receipt by Orange of the Director’s notification of her proposal to refuse to grant the licence to Orange and giving the reasons (which was on the 22nd September, 1998) Orange on the following day wrote to the Director claiming that the alleged reasons for her proposal to refuse were invalid, inadequate and not of the type contemplated by the Act. On the 28th September, 1998 the Director wrote to Orange rejecting those allegations. On the 12th October, 1998 Orange made lengthy written representations on a without prejudice basis. On the 30th October, 1998 the Director responded to the representations and notified Orange of her decision to refuse a license. The stated reasons being

“that in the detailed comparative evaluation during the competition process Orange was not ranked first and the discussions subsequently entered into with the higher ranked applicant was satisfactory. In addition none of the representations made by Orange contain any argument of substance which I can properly take into account which caused me to reconsider the proposal (already communicated to you by letter on the 22nd September, 1998) to refuse to grant you a license”.

70. Having regard to the Adia case in particular I take the view that both sets of reasons were sufficient. But I take that view also independently of the Adia case on the basis of what the Oireachtas must be taken to have intended having regard to the nature of a comparative process and statutory time limits etc. A 51 day hearing in the High Court and a 17 day hearing in the Supreme Court could not possibly have been in the contemplation of the Oireachtas and yet there was nothing unique about this case. In fact one could imagine much more complicated cases where there would be several tenderers and where an investigation of the evaluators’ assessments and markings in the High Court might be just as long and longer. As I already indicated earlier on in this judgment it is my view that the simple statement that the appellant was not the winner of the competition was the most substantive reason one could expect to get. In addition Orange had received the Summary Report. As I have already explained that does not constitute deprivation of the right of appeal. In my view the reasons given at both stages were adequate in all the circumstances.


71. I now turn to the two matters arising in the cross-appeal. The first of these is the claim that the learned High Court judge should have found actual bias in one instance rather than apparent bias. As for the reasons which I have indicated I take the view there was no justification for a finding of bias of any kind, I would be of the view that this submission must fail.


72. The second issue arising on the cross-appeal is whether the ruling of the learned High Court judge, excluding evidence on the reasonableness issue, was correct or not. It is undoubtedly true that as a general proposition if reasonableness is to be an issue in an appeal, whether in the O’Keeffe v. An Bord Pleanála sense or in the M & J Gleeson sense, an appellant alleging unreasonableness cannot be preventing from adducing relevant evidence on the issue of whether the Director was unreasonable having regard to the material put forward. If for instance the applicant for a licence was a single applicant and there was no comparative tendering, and a technical reason was given by the Director for refusing the license which was patently absurd to anyone with the relevant technical knowledge, relevant expert evidence pointing this out would be admissible. But in fairness to the learned High Court judge the ruling relating to admissibility of evidence on bias and non-admissibility of evidence on reasonableness was a kind of mode of trial which she thought was reasonable and practicable having regard to the issues before the court, and I think that broadly speaking it was acquiesced in. At any rate any issues of alleged unreasonableness which arise in the case are issues relating to the evaluators’ decisions, and it is difficult to see how there could be any fresh evidence adduced which could show that any of those decisions were unreasonable in either of the senses contended for. In those circumstances a new trial on reasonableness would be utterly pointless.


73. I would therefore allow the appeal and dismiss the cross-appeal.



© 2000 Irish Supreme Court


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