The High Court yesterday ruled that the decision to refuse a broadcasting licence to a deflector operator was a formula used by the former communications minister, Mr Alan Dukes, to afford him "protection against others".
Mr Justice Carney directed that the present Minister for Transport, Energy and Communications must consider, on its merits, an application from South Coast Community Television in Co Cork for a rebroadcasting licence. The application has been in the Department since 1996.
The judge quashed the former minister's refusal, in a decision on on April 15th last year, to license South Coast to rebroadcast British TV channels. Mr Dukes invited South Coast to reapply for a licence under a new scheme he proposed to introduce but which has not been introduced.
The company challenged the minister's decision before the High Court and argued that Mr Dukes had "ducked the issue" of making a decision, on its merits, on South Coast's application.
Mr John Gordon SC, for South Coast, claimed: "What we got was not so much a decision as a deferral."
In the High Court yesterday, Mr Justice Carney agreed with South Coast. He said the then minister's purported refusal of the licence application "was not a refusal on the merits as evidenced by the invitation to resubmit the application under the new scheme". It was rather "a formula intended to afford the minister protection against others".
He was satisfied the minister had deferred his decision on the merits or postponed his decision to the intended new national scheme. "This he was not entitled to do," Mr Justice Carney said. He found the former minister had acted in excess of his powers. This finding meant there was an undetermined application on the new Minister's desk awaiting consideration, the judge said.
The Minister, Ms O'Rourke, has already indicated she will not proceed with the licensing scheme proposed by Mr Dukes.
Mr Justice Carney was giving judgment on judicial review proceedings taken by South Coast Community Television Broadcasting against the Minister for Transport Energy and Communications, the Director of Telecommunications Regulation, Ireland, the Attorney General and Cork Communications Ltd.
Yesterday's decision was an interim judgment dealing primarily with the former minister's decision to refuse South Coast a licence. Afterwards, counsel for South Coast said all the parties needed time to consider the implications. The judge adjourned the hearing.
An order restraining Cork Communications and the State from taking steps to shut down South Coast pending resolution of the case remains in force.
The proceedings are a fall-out from a High Court decision in 1995 which directed the minister to consider South Coast's application.
The company has been seeking a licence since the 1980s. Based in Carrigaline, it provides multi-channel television to up to 30,000 customers for £30 a year and rebroadcasts them via the illegal deflector system. The licensed MMDS and cable operators charge over £100 annually.
Mr Justice Carney said South Coast had sought a rebroadcasting licence in 1986, which was refused in 1992. The refusal was successfully challenged in the High Court, which directed the minister to consider the application in accordance with law.
The judge detailed correspondence from 1995 to 1997 from the Department of Communications, former ministers Mr Michael Lowry and Mr Dukes, and the former Taoiseach, Mr John Bruton, on the application.
He said the High Court was told in December 1995 that Mr Lowry undertook to consider South Coast's application and would make a decision in about six months. He said the minister invited South Coast to apply for a licence in January 1996. The company was told this was to ensure, if possible, that it would get a licence. South Coast submitted its application in November 1996. It spent £30,000 on its submission. No clarification was sought by the Department. On April 15th, 1997, Mr Dukes told the company the licence was refused but invited it to resubmit its application under a new licensing scheme announced later that day.
The judge said South Coast submitted this was not a refusal on the merits of the application and was not a proper discharge of the minister's obligation following the judgment of the High Court.
The judge noted he had been canvassed as to the "dire consequences" which would flow from a judgment on either side of the argument. He said he was concerned with the decision-making process, not the former minister's decision.
"Neither am I concerned in the slightest with two issues which have lurked in the background of this case, namely, electoral considerations on the one hand and the liability of the State to be sued on the other."
The judge said his primary inquiry was whether the minister did make a "clear judgment" on whether South Coast should be licensed or whether he avoided doing so. He said the correspondence he had cited in his judgment established that Mr Dukes and Mr Bruton appreciated that the said "clear judgment" could not be lawfully influenced by considerations for damages being threatened by Cork Communications and others.