THE Supreme Court has dismissed an appeal by the ESB against a High Court decision in a dispute with a group of electrical contractors.
The contractors, who conduct business in the south west, are not members of the Register of Electrical Contractors of Ireland (RECI).
In 1992, the ESB announced changes in its conditions of supply of electricity. It stated that from September 1992, it would supply power to installations on production of a completion certificate signed by an electrical contractor on RECI's register, or an inspector employed by RECI in the case of installations completed by non registered contractors.
Mr Justice Barrington, giving the Supreme Court judgment yesterday, said the plaintiffs - the independent contractors in the south west - were not opposed to a system of self regulation.
They claimed the "RECI regime", a situation brought about by the combined operation of the ESB's condition of supply, its agreement with RECI, a RECI memorandum and RECI's rules relating to its register, imposed unfair trading conditions on them and amounted to an abuse contrary to the Competition Act.
In November 1992, the plaintiffs were granted an injunction restraining the implementation of the new regime. Thereafter, amendments were made to RECI's memorandum, articles of association and registration rules. These amendments appeared to have had the effect of removing the plaintiffs' substantial complaints.
The case, therefore, said Mr Justice Barrington, became concerned with the situation as it existed between the introduction of the ESB's new conditions on September 1st, 1992, and the granting of the injunction on November 2nd.
During that two month period, the High Court held, the plaintiffs were victims of unintentional abuse of a dominant market by the ESB, contrary to the Competition Act. The High Court also held that the plaintiffs should recover damages in respect of their losses during the period.
In the appeal, the ESB's complaint was not that the trial judge was wrong in his finding of fact that the plaintiffs had been subjected to unfair trading conditions, but his decision could not stand because he failed to identify correctly the market in which the ESB was alleged to be dominant. It also alleged it was not a proper case in which to award damages.
On May 5th, 1994, the High Court found that the ESB did not abuse its dominant position in the market by introducing its new conditions. But the trial judge decided to hear an application the following week as to whether the plaintiffs were entitled to maintain a damages claim for a limited time after September 1992 when unintentional abuse occurred.