The High Court has rejected an attempt by ComReg, the communications regulator, to strike out proceedings against it by Smart Telecom over its withdrawal of an offer for the final 3G mobile phone licence.
Having refused to dismiss the action as an abuse of process, Mr Justice Peter Kelly adjourned the case for mention in three weeks, when a hearing date will be fixed. Smart said afterwards that it was looking forward to an early trial date.
The company is seeking a declaration that there was a contract for the award to it of the 3G licence. The company also wants a declaration to the effect that ComReg was obliged to give it reasonable time to comply with conditions set down for the awarding of the licence.
In earlier hearings, Smart secured an interim injunction restraining ComReg from awarding the 3G licence to any other company.
ComReg applied yesterday to Mr Justice Kelly for an order directing that the claim by Smart to the effect that the regulator's decision was unreasonable constituted an abuse of process and the proceedings should be struck out.
Mr Paul Sreenan SC, for ComReg, said Smart Telecom was effectively seeking to quash the regulator's decision.
Because the focus of attack was that decision, the action should have been brought via judicial review proceedings. In bringing plenary proceedings instead, Smart was blurring the real purpose of the action.
Counsel also argued that allowing discovery of documents could delay the hearing.
Mr Michael Cush SC, for Smart, said his client had won the 3G competition and nobody was more anxious to have the legal proceedings dealt with than Smart.
The judge said there was no statutory obligation requiring that the validity of the decision of ComReg be tested only by judicial review. Unlike other regulators, ComReg was not so favoured by the legislature, he said. There was, he ruled, no abuse of process in the institution of the proceedings in their present form. There was nothing to be gained by requiring that a judicial review be brought. That would only cause further costs and delay, he said.
Earlier yesterday, Mr Justice Kelly refused an application by Smart for discovery of three categories of documents which, Smart argued, were required by it for the legal proceedings. The documents related to unsuccessful tenders in relation to the 3G licence.
At a previous hearing, the court was told Smart had had to lodge a €100 million performance related bond with the regulator by close of business on January 30th last as a condition of the 3G licence.
Draft performance guarantees from three leading and large commercial banks who are underwriting the guarantees were forwarded to the regulator, it was stated.
Smart claimed ComReg had then imposed significant extra requirements in relation to the terms of the bonds over the weekend of January 30th.
As a result, Smart claimed it had no opportunity to meet those concerns, particularly as one of its preferred banks is a Chinese bank which was closed from the Friday for Chinese new year.
If given a reasonable opportunity, Smart could meet ComReg's concerns or provide appropriate alternative arrangements agreeable to the regulator, the company said.
