Eircom joined as defendant in Smart suit against regulator

One of the disappointed bidders for the final 3G mobile phone licence, Eircom Ltd, has been joined as a defendant in High Court proceedings initiated by the successful bidder, Smart Telecom, against the communications regulator ComReg.

Mr Justice Peter Kelly yesterday ordered that Eircom be joined as a defendant in the proceedings in so far as it involves issues of public law.

This limits it to issues such as the award of the licence.

In its proceedings, Smart is seeking a declaration that there was a contract for the awarding of the 3G licence to Smart.

It also wants a declaration to the effect that ComReg was obliged to give the company reasonable time to comply with conditions set down for the awarding of the licence.

Eircom said that wanted to reserve the right to challenge Smart's claim that it has a contract with ComReg. However, Justice Kelly did not grant this, as this is an issue of private law.

In earlier hearings, Smart secured an interim injunction restraining ComReg from awarding the 3G licence to any other company.

Also yesterday, Smart applied to the court for discovery of documents from the Regulator regarding Smart Telecom's score in the licence competition and the scores of the other bidders.

It also wants documents relating to a performance guarantee.

Mr Justice Kelly only allowed discovery on one category, relating to ComReg's deliberations on the guarantee over a key two week period.

At a previous hearing, the court was told Smart 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 was 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.