Spin Communications Limited (trading as Storm FM) (applicant) v The Independent Radio and Television Commission (respondent), Maypril Limited (trading as Spin FM) (notice party).
Judicial Review - Natural justice - Bias - Whether member of the respondent had pre-judged the issues - Whether a right-minded person would conclude that there was a real likelihood of bias - Whether respondent in breach of fair procedures in failing to make known its inquiries to the applicant.
The High Court (before Mr Justice O Caoimh); judgdment delivered 8 June 2000.
The question of bias must be determined on the basis of what a right-minded person would think of the likelihood of prejudice and not on the basis of the suspicion which might dwell in the mind of a person who is ill-informed and did not seek to direct his mind properly to the facts.
Mr Justice O Caoimh so held in ruling that a person who had relied on newspaper reports in relation to the business of a director of the applicant would have been ill-informed. The further inquiries made by a member of the respondent showed an inquiring mind as to the character of a director of the applicant and did not show pre-judgment of the issue.
John Gordon SC and Paul Gardiner BL for the applicant; Michael Cush SC and Emily Egan BL for the respondent; Hugh Mohan SC and Tom Mallon BL for the notice party.
Mr Justice O Caoimh said that this was an application for an order of certiorari quashing the decision of the respondent of 11 October 1999, whereby it deemed the notice party to be the successful applicant for a radio licence for Dublin in the 15 to 34 youth oriented service market. The two essential grounds on which the application was made were, firstly, that the decision of the respondent was made in breach of the applicant's right to fair procedures and, secondly, that it was inherently flawed by the bias of the respondent against the applicant.
Mr Justice O Caoimh said that after the selection of the notice party as the successful applicant for the licence, solicitors for the applicant had written to the respondent seeking reason for the selection of the notice party, and the respondent had replied that it was not obliged to give reasons for its decisions. In an article in the Sunday Tribune on 28 November 1999, it was stated that Dr Colum Kenny, a member of the respondent who had voted on the award of the licence to the notice party, had secretly attended with the National Drugs Unit of the Garda at Dublin Castle to check up on John Reynolds, a member of the applicant consortium.
Mr Reynolds said in his affidavit in these proceedings that he was disturbed that the issues identified in the newspaper article were not raised with him at the oral presentation. The reason he was most concerned about this issue was the Dr Kenny identified an anti-drugs message from the notice party consortium as a matter which plainly was taken into account by the respondent. Mr Reynolds said that he did not know, in the absence of reasons, what weight was attributed to the issues, and that he was concerned that he was prejudged on this issue.
Mr Justice O Caoimh said that in an affidavit sworn on behalf of the respondent by Mr Michael O'Keeffe, it was stated that Dr Kenny had informed the respondent that he did not decide upon the determination of his personal vote on the applications until the final meeting of the respondent on 11 October 1999. Dr Kenny did so solely on the basis of the written applications, the oral presentations and/or oral or written questions and answers of the applicants. Dr Kenny had stated that he was concerned about the question of drugs in Dublin and about the association between certain dance music and the drugs culture and about the association between drugs and the Dublin club scene. In order to get a feel for the reality of the drugs culture before making his decision on the present application process, he visited members of the Garda for a general discussion about drugs and about drugs in night-clubs. A single reference was made to John Reynolds by Dr Kenny and Dr Kenny stated that the Garda fully endorsed the manner in which Mr Reynolds carried on his business at the POD night club in Harcourt Street. None of the members of the respondent were aware of Dr Kenny's visit to the Garda.
It was further stated that the drugs issue was raised in a general way with the applicant on the day of the public hearings, and the applicant raised no objection to the question on substance abuse. Save in this respect, the drugs issue did not form part of any deliberation of the respondent.
In the affidavit sworn by Dr Kenny, he stated that he was concerned about the issue of drugs, and that he wished to visit the Garda before proposing any specific questions in the public hearings about drugs. He believed that an appropriate source of reliable and impartial information about the drugs scene in Dublin was the Garda Siochana National Drugs Unit which has a public information role as well as an enforcement function. Accordingly, he arranged a private meeting with members of the unit. The greater part of his discussion with the unit related to matters of a general nature concerning the drugs scene in Dublin. He also mentioned a District Court case in which the District Judge had expressed concern about drug dealing in the POD nightclub and suggested that this should be taken into account when its licence came up for renewal. Dr Kenny was informed that the POD had put in place systems of control in relation to drugs which the Garda fully endorsed, though they continued to monitor the situation, and there would be no objection to the renewal of the licence.
Dr Kenny said that he did not discuss his discussion with other members of the respondent, and only one of the written questions formulated by him related to drugs: it was of a general nature and its purpose was to elicit responses which would allow the respondent at some future date to monitor the specific commitment over programming content in relation to drugs, regardless of whom eventually was to be awarded the licence. Dr Kenny had further stated that he had spoken informally to the chairman of the respondent on 22 September and set out in a letter to the chairman of the same date, in order to clarify the true relevant of the matters about which he had spoken to the Garda. The chairman had advised him that in the absence of any evidence implicating Mr Reynolds or any other director of the applicant, it would be unfair to raise or challenge the character of the applicant or to draw any adverse inference relating to the character of the applicant or its directors on the basis of the drugs issue. Dr Kenny stated that, having discussed the matter with the chairman, he agreed with his assessment.
Dr Kenny further stated that in the applicant's written response to the only question on the drugs issue, it appeared to him that the response did not tally exactly with the information he had received from the Garda. Accordingly, he made further inquiries of members of the National Drugs Unit. However, on receiving further information from the unit and having considered the matter, Dr Kenny concluded that the position had not changed, and that it remained the case that it would be unfair and inappropriate to raise or challenge the character of the applicant in any way or to draw any adverse inference in relation to the character of the applicant company or its directors. On receipt of this information, and in advance of the final meeting of the respondent to be held on 11 October 1999, he prepared a document with a view to clarifying in his own mind whether the information altered in any way the view which he had reached on 22 September 1999.
Dr Kenny further stated that he was then satisfied that there could be no challenge to the character of the applicant company or its directors based on the drugs issue, and that he made his final decision at the final meeting of the respondent, and that the drugs issue formed no basis on which he cast his vote.
Mr Justice O Caoimh said that the applicant had claimed that the differences in the affidavits of Mr O'Keeffe and that of Dr Kenny gave rise to an allegation of objective bias. The court was entitled to have regard to the manner in which information had been extracted from Dr Kenny. Reliance was placed on the fact that Dr Kenny's affidavit was filed very late in the day long after the affidavit from Mr O'Keeffe, and on the fact that Dr Kenny did not disclose to the chairman or other members of the respondent his contacts with the Garda. The applicant claimed that the letter of 22 September 1999, was brimful of criticism of Mr Reynolds and the Dr Kenny had formed an unfavourable view of Mr Reynolds. The facts revealed objective bias and an animus towards Mr Reynolds. It was further submitted that as a consequence the decision of the respondent was tainted and poisoned and should be set aside by the court.
Mr Justice O Caoimh said that the applicant had referred to Dublin and County Broadcasting Limited v IRTC, Radio 2000 and Capital Radio Productions (High Court, Mr Justsice Murphy, 12 May 1989, unreported) where Mr Justice Murphy held that if it was shown that there were on the facts circumstances which would lead a right-minded person to conclude that there was a real likelihood of bias, that would be sufficient to invalidate a decision, even if it was established as a matter of fact that bias was non-operative, or that the particular person accused of bias was out-voted. The applicant also referred to Radio Limerick One Limited v IRTC [1997] 2 IR 291, at 316, where the Mr Justice Keane in the Supreme Court stated that there was an obligation on the respondent to take every step reasonably open to it to ensure that its conclusions are reached in a manner, not merely free from bias, but also of the apprehension of bias in the minds of reasonable people.
Mr Justice O Caoimh said that in relation to the argument on fair procedures, the applicant submitted that it was not acquainted with the thinking of Dr Kenny prior to the decision being made and was not given an opportunity to address his concerns. The respondent had submitted that there were three extraneous matters which should be disregarded by the court, viz., the circumstances of the swearing of the affidavit of Dr Kenny, the alleged concealment of documents, and the inconsistencies alleged between the affidavits of Dr Kenny and Mr O'Keeffe.
The affidavit of Mr O'Keeffe had been sworn in the context of an application for security for costs in March 2000, and was designed to address matters which were necessary to ensure that the court directed security. When the affidavit of Dr Kenny had been delivered, the applicant had abandoned its case on all grounds other than bias and fair procedures. As regards the alleged concealment, all documents had been furnished in voluntary discovery. With regard to alleged inconsistencies between the affidavits, it had been submitted that while there was some possible lack of completeness in Mr O'Keeffe's affidavit, insofar as he did not deal with the subsequent contact between Dr Kenny and the Garda, it was submitted that at that earlier stage in the proceedings, the issue of bias was but a minor matter in the case. Dr Kenny had dealt with the allegations of bias comprehensively in his affidavit.
The respondent had further submitted that all of the facts should be taken into account. In particular, the respondent relied on the obligation on the part of the respondent to have regard to the character of the applicant and where the applicant is a body corporate, its directors. The applicant was one of four short-listed applicants, and the character of the applicant was a common question to all of them. Further, the applicant had raised the issue of drugs itself. In relation to Dr Kenny's actions and discussions with the Garda, one had to examine the entire thought process of Dr Kenny, and the letter of 22 September, should not be considered in the absence of the surrounding evidence of Dr Kenny. Dr Kenny's evidence as to his meeting with the chairman was uncontroverted. The documents subsequently prepared by him testified to the fact that he did not propose to consider the publicity relating to the night-club, adverse as it was, as evidence in relation to the character of the applicant or its directors. In the light of this fact there was no want of natural justice in this case. Counsel of the respondent had submitted that this was a pre-judgment case. In O'Neill v Beaumont Hospital Board [1990] ILRM 419, at 439, the then Chief Justice, Mr Justice Finlay, had stated that the test was an objective test as to whether a person in the position of the plaintiff who is a reasonable man might reasonably fear that the pre-judgment expressed by the chairman would prevent a completely fair and independent hearing of the issues which arise. Counsel had submitted that a reasonable man would not apprehend bias in circumstances was one where the one issue raised, that of drugs, was but one in a myriad of issues for consideration by the respondent. The letter of 22 September did not show any animus or a concluded view, bur rather a questioning mind. The question was whether the information referred to was relevant at all to the consideration of the Commission. This letter showed that Dr Kenny's thought processes were the very opposite of pre-judgment in this case, and showed an ongoing inquiry.
Mr Justice O Caoimh said that, as regards the alleged breach of the principles of natural justice, the respondent had accepted that it must follow fair procedures, but submitted that the evidence showed that no matter was taken into account without Storm FM being given an opportunity to deal with it. Mr Justice O Caoimh said that under cross-examination, Dr Kenny had clearly indicated that he bore no personal animosity towards Mr Reynolds and was in no way personally biased towards him or towards the consortium of Storm FM. In fact, this was not seriously put in question. Mr Justice O Caoimh said that he was satisfied that Dr Kenny was engaged at all relevant times prior to the meeting of 11 October, in clarifying what he considered to be relevant matters in the context of the application before the respondent, rather than relying upon newspaper reports and other rumours which had come to his attention. Had he not raised matters arising from press reports with the Garda, there might have been a danger of pre-judgment. Mr Justice O Caoimh said that he was satisfied that the matters were clearly documented by Dr Kenny in his letter of 22 September to the chairman, and in his clarification document. These documents did not demonstrate any pre-judgment of the issue on his part.
Mr Justice O Caoimh said that it was important to bear in mind the words of Mr Justice Murphy in Dublin and County Broadcasting Limited where he had stressed that the question of bias must be determined on the basis of what a right-minded person would think of the likelihood of prejudice and not on the basis of the suspicion which might dwell in the mind of a person who is ill-informed and did not seek to direct his mind properly to the facts. Mr Justice O Caoimh said that a person relying simply on the newspaper report published in the Sunday Tribune would not have in his possession all of the relevant facts in this matter and would constitute a person who, if he sought to make any judgment on those facts alone, would be ill-informed in relation to the relevant facts. As stated by Mr Justice Murphy , the crucial part of the test must be the approach of a right-minded person to the facts and circumstances of the case. Mr Justice O Caoimh said that he was satisfied that on the facts and in the circumstances of this case, no right-minded person would conclude that there was any real likelihood of bias on the part of the respondent in its consideration of the application for the licence made by the applicant.
Accordingly, Mr Justice Finnegan refused the relief sought.
Solicitors: John O'Connor & Co (Dublin) for the applicant; Ivor Fitzpatrick & Co (Dublin) for the respondent; W. G. Bradley & Son (Dublin) for the notice party.
