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Judgment
Title:
Dome Telecom -v- Eircom
Neutral Citation:
[2007] IESC 59
Supreme Court Record Number:
374 & 375/06
High Court Record Number:
2001 12996 P & 2002 3560 P
Date of Delivery:
12/05/2007
Court:
Supreme Court
Composition of Court:
Geoghegan J., Fennelly J., Kearns J.
Judgment by:
Geoghegan J.
Status:
Approved
Result:
Allow And Set Aside
Judgments by
Link to Judgment
Fennelly J.
Kearns J.
Geoghegan J.



THE SUPREME COURT
374/2006 & 375/2006

Geoghegan J.
Fennelly J.
Kearns J.

BETWEEN/


DOME TELECOM LIMITED
PLAINTIFF/RESPONDENT
AND

EIRCOM LIMITED

DEFENDANT/APPELLANT

JUDGMENT of Mr. Justice Geoghegan delivered the 5th day of December 2007

These are two appeals from discovery orders in which essentially the same issues arise. Both parties are telecommunications companies the nature of whose business is (to use the wording in the respondent’s written submissions) “the generation and recording of millions of pieces of telecommunications data on a continuous basis.” Both cases are concerned with alleged anti-competitive practices affecting the sale of call cards. The respondent which is plaintiff in both actions sought extensive discovery from the appellant much of which has been agreed or furnished but a dispute arose over one particular category, the nature of which I will be explaining.

In a dispute over discovery, it is important that the court should not enter into the merits of the case though there must be a clear understanding as to the nature of the issues. I have come to the conclusion that the best way of describing the respondent’s case for obtaining the disputed category of discovery (which was acceded to by the High Court (McKechnie J.)) is to quote from the succinct summary contained in the respondent’s written submissions to this court. The relevant passage reads as follows:

      “The respondent’s business is, inter alia, the sale of call cards, through which it offers its customers telecommunications services such as cheap telephone calls to international destinations. Customers access these services by dialling one of the numbers printed on its call cards. 1800 (freephone) numbers are used to allow customers to access the services without incurring an initial access charge. The respondent obtains its telecommunication services from a national telecommunications operator which is licensed by the Office of Director of Telecommunications Regulations (ODTR), referred to herein as a ‘licensed operator’. In turn the licensed operator obtains its services from the appellant. The principal basis of the respondent’s claim is that the appellant imposed certain charges on licensed operators for the use of 1800 (freephone) numbers where the numbers were dialled by customers from mobile telephones (referred to herein as the ‘mobile access charge’) and from public payphones (referred to herein as the ‘payphone access charge’). The appellant did not impose said charges on telecommunications operators located outside Ireland, referred to herein as ‘international operators’, who obtained the same telecommunication services from the appellant. The respondent alleges that this constituted discriminatory pricing which benefited international operators (and in turn, the appellant’s competitors who obtained services from such international operators) and discriminated against licensed operators (and in turn, the appellant who obtained its services from a licensed operator). It has been accepted by the appellant that for certain periods of time it failed to apply the charges to all operators (referred to by the appellant in affidavits filed in the court as the ‘arbitrage period’) but it pleads an objective justification with respect to those periods. The respondent disputes that the discrimination was limited to the so called ‘arbitrage period’ admitted by the appellant.”
A much fuller factual account of the business workings is given in the judgment of Kearns J. which I gratefully adopt. The mobile access charge is generally abbreviated to MAC and the payphone access charge to PAC. The appeal number 374/2006 relates to MAC and the appeal number 375/2006 relates to PAC. The disputed discovery order made the 30th August, 2006 in the case to which appeal 374 relates reads as follows:
      “That the defendant do within six months from the date hereof make discovery on oath of the following documents which are or have been in its possession, power or procurement.

      The volume of minutes trafficked per month from the 1st day of July 2000 to the 7th day of April 2005 in respect of each 1800 number by reference to access method by the defendant to international carriers and/or other entities (to be limited for the time being to those identified and set forth in the Schedule hereto) where the volume of minutes trafficked to that international carrier and/or other entity in any given month exceeded 5,000 minutes – the documents within the power of the defendant to be created from the defendant’s raw data and data bases and using the defendant’s own database.”

A similar order was made by the High Court in the action to which appeal 375 relates i.e. the action relating to PAC, the only difference being the dates, the specified period in appeal No. 375 is 31st August 1999 to the 23rd December 2003.

The discovery applications in these two cases have had a long and troubled history which I do not find it necessary to recount in detail. With a view to putting the latest dispute into some kind of context, I will explain this much. As already mentioned, there were a number of different categories of “documents” sought and it is category 9 which is now in controversy. At one of a number of hearings before the learned High Court judge, it was suggested by the appellant that he postpone making any order in relation to category 9 because in the view of the appellant the information allegedly needed by the respondent from that category would in practice be furnished with the discovery in respect of category 8. Category 8 read as follows:

      “All invoices raised and issued by the defendant to licensed operators and/or international carriers and/or other entities relating to the operation of 1800 freephone numbers from the 1st July 2000 to the date hereof.”
More accurately, I should state that that particular wording related to appeal 374. The corresponding category 8 in respect of the case to which appeal 375 relates contained a different date i.e. 31st August 1999.

In respect of both category 8 and category 9 and in each of the two cases, reasons for the requests were set out in the relevant requesting letter. In respect of the case the subject of appeal 374 the reasons for requiring category 8 were stated as follows:

      “The defendant has claimed that it applies the MNO originating charge/MTC in a non-discriminatory manner and/or that differences in treatment are objectively justified, contrary to the allegation of discrimination made by the plaintiff. Discovery of invoices raised by the defendant in respect of the provision of 1800 numbers can reasonably be expected to demonstrate the veracity of its denial in this regard. In addition to demonstrating whether the charges are in fact imposed at all, the invoices may demonstrate the credit periods afforded to operators in relation to payment of the charges. To the extent that certain operators are afforded a longer credit period in which to discharge the MNO origination charge/MTC invoices discovered by the defendant may confirm this particular form of discrimination.”
In respect of the case to which appeal 375 relates the wording is identical except that “PAC” is substituted for “MNO origination charge/MTC”.

The reasons given for requiring category 9 in the case to which appeal 374 relates read as follows:

      “The plaintiff alleges that it has suffered loss as a result of the discriminatory imposition of the MNO origination charge/MTC by the defendant. Access to full details regarding the quantity of 1800 numbers issued by the defendant, the number of minutes trafficked per number (by reference to access method) and the names of the parties to whom the numbers were allocated would enable the plaintiff to assess the manner in which the MNO origination charge/MTC was imposed. In addition, in terms of assessing the quantum of its alleged loss, such information would demonstrate how in a market highly sensitive to increases in price, the discriminatory imposition of the MNO origination charge/MTC caused the plaintiff to lose customers to operators who were/are not charged the MNO origination charge/MTC by the defendant. In short, it will enable the plaintiff to show a link between its market share and the obligation to pay the MNO origination charge/MTC to the defendant. The plaintiff believes that expert analysis of these figures will establish a direct and conclusive co-relation between the discriminatory behaviour of the defendant and the loss suffered by the plaintiff.”
Again, the reasons given for the equivalent request in the action to which appeal 375 relates are in identical terms except for the substitution of “PAC” for “MNO origination charge/MTC”.

I think it fair to say that the respondent was not initially opposed to the postponement if, as promised, the relevant information which the respondent sought to obtain from category 9 was in fact furnished with the discovery under category 8. The preparation and delivery of the discovery under category 8, however, took quite some time and it was furnished in instalments. At a certain stage, the respondent on an assessment of the partial discovery made came to the conclusion that the information it sought under category 9 and which it considered necessary for its proofs was not in fact going to be furnished. Acrimonious correspondence ensued, the upshot of which was that the appellant objected in principle to complying with the request for the discovery of category 9. The respondent, therefore, decided to re-enter the matter before the court. A further dispute then broke out, in as much as the appellant interpreted the earlier decision and order of the learned High Court judge as a postponement of all consideration of request No. 9 whereas the respondent contended that only the decision had been postponed. Although the learned judge agreed with the respondent he, nevertheless, permitted the matter to be argued afresh, which it was. As already mentioned, the learned judge subsequently made the requested order. Some days before the final order was made, the respondent made the significant concession that it was prepared to limit its request in respect of category 9 to 11 of the 56 telecommunications companies referred to. These eleven were subsequently specified. I will, in due course, deal with the grounds of appeal and, therefore, the specific objections in principle on the part of the appellant to making the discovery ordered. But I think it useful to continue first with background material. It is the contention of the respondent that merely to receive the invoices referred to in category 8 is not sufficient or at the very least may prove itself not to be sufficient to establish its case against the appellant. In order to demonstrate the alleged discrimination it is not sufficient to prove total volumes of minutes trafficked to particular operators as opposed to individual 1800 numbers. As pointed out in (inter alia) the affidavit of Alice Whittaker sworn the 22nd May 2006, “total volumes of minutes trafficked to particular operators (as opposed to individual 1800 numbers) do not provide the plaintiff with the means of relating such increases and decreases to specific call cards that benefited or suffered as a result of the discriminatory imposition of the MAC and the PAC.” This is because there may be a particular or special reason for an increase which would have no relevance to the alleged discrimination. Such relevance, in the contention of the respondent, can only be established by reference to the individual numbers. Furthermore, these actions are all about sales of call cards rather than phone call minutes. In this connection it is worth quoting paragraph 16 of the same affidavit:

      “Consumers access Dome’s Telecommunication services by calling the access number on the Dome card then entering their PIN number (to verify the level of credit), then entering the telephone number they wish to call, i.e. the Dialled Number. In this regard I beg to refer to a sample Dome Global Caller Card above which marked with ‘AW5’ I have signed my name prior to swearing hereof. This sample call card has three different access numbers (as described more fully at paragraph 9) depending on the access method used by the customer. Based on its own call card sales, the plaintiff knows that only a small proportion of customers use the 1800 freephone number from mobile and payphone in order to access the stored telephone credit. The loss of 1800 minutes to each of the operators that receive preferential treatment represents only a small proportion of the plaintiff’s loss on the sale of its call cards.”
In other words, as I understand it, the case being made by the appellant is that even though an 1800 freephone number will not normally be accessed from mobile phones or payphones, if in fact the charges for such calls are more expensive than those of competitors, this is a disincentive to purchasing the card.

In paragraph 19 of the same affidavit an alternative approach was suggested on behalf of the respondent namely, that the appellant would accept as a matter of evidence that “every increase in freephone traffic to non-Irish carriers” in the relevant period “relates to call card business”. At a certain stage, the learned trial judge, to save time, requested letters from each side written to him setting out their respective arguments. In the appellant’s letter, the appellant submitted to the judge that even if the discovery under category 9 might be considered “necessary” it would still be “wholly disproportionate”. But the letter went on to state that if the judge rejected that submission the appellant “would be inclined” to adopt the alternative suggestion offered by the respondent as set out above. However, it is the respondent’s case that the appellant attached conditions to the acceptance which were wholly unacceptable. What the appellant in this connection said in the letter was the following:

      “Accordingly, the defendant would be prepared to accept, as a matter of evidence, ‘for the purposes of the mobile proceedings’, that, during the period running from the 1st January 2001 until 30th October 2001, inclusive, all of the increases in freephone traffic, (the increase being measured compared with the average monthly volume of minutes recorded in the quarter prior to the 1st January 2001) from mobile handsets in Ireland to 1800 numbers terminating outside the State, which increases are fully recorded in the documentation already provided to the plaintiff in respect of ‘category 8’, may be attributable to use by call card customers of their cards.”
The appellant then adopted a rather different position in relation to the payphone proceedings i.e. the action to which appeal 375 relates. What the appellant said in the letter in that respect was as follows:
      “As regards the payphone proceedings the matter is more problematic. The defendant does not deny, as the plaintiff in effect in footnote 2 to its letter observes, that the figures for payphone-originating international freephone traffic are included within the figures for fixed-line originating international freephone traffic in the document created by the defendant setting out details of the outgoing international freephone traffic which it trafficked in the period August 1999 to April 2005. This document, to which the defendant refers in the said footnote, was produced by the defendant to assist the plaintiff in analysing the said international freephone traffic. Contrary to the allegations made by the plaintiff in its letter of the 8th inst. the defendant is satisfied that the information contained in this document is both complete and accurate.

      For the reasons set out in paragraph 10 of the affidavit of John Hall sworn on the 22nd March 2002 on behalf of the defendant, the latter was unable to distinguish payphone originating international freephone traffic from fixed-line original international freephone traffic prior to 2002. Consequently, for the purposes of the payphone proceedings, the defendant would be prepared to accept, as a matter of evidence that for the period running from the 1st September 2001 (which the plaintiff admits, in the affidavit sworn by Dara O’Mahony on its behalf on the 8th April 2002, that it began applying the PAC to its call cards) until the 7th June 2002 (when it became possible to identify payphone originating international freephone calls) that up to 50 per cent of the increase in the monthly volume of fixed-line originating international freephone traffic above that recorded in the previous quarter, to wit June to August 2001, may be attributable to use by call card customers of their cards.”

As Ms. Whittaker makes clear in her same affidavit, it was the view of the respondent that “by limiting and re-defining the concession the defendant renders it of no assistance to the plaintiff in advancing its cause”.

This is a suitable juncture in which to make the observation that, subject to one qualification to which I will refer, at no stage in the affidavits or in the letter to the judge or in the submissions, written or oral, does the appellant make any worthwhile concession to the effect that a trial judge would be entitled to draw inferences of discrimination from the category 8 discovery. In fairness, of course, the appellant has made one significant concession in respect of particular periods to which I will refer in more detail later in the judgment and that is the qualification to which I have referred. It is a concession that in respect of different particular periods relating respectively to MAC and PAC, distortion in card sales can be attributed to non-imposition of the transit charges though the appellant will claim that there was objective justification for it. The contention of the appellant is that as of the terminal date in respect of each period, the charge was imposed. However, it is the contention of the respondent that the decision did not correspond in date with the implementation of the decision and that for the purposes of the respondent’s claim the alleged unlawful discrimination must be taken to have continued long after the terminal date. Detailed reasons as to why the conditions attached by the appellant to the acceptance of the respondent’s alternative offer were unacceptable are set out in the paragraphs 20 and 21 of the same affidavit.

At this stage I turn to the grounds of appeal of which there are three.

      1. That the power of the High Court to order discovery of documents does not extend to directing a party to create documents for the purposes of the action.

      2. That the power of the High Court to order discovery of documents does not extend to directing a party to create documents that do not exist at the time that the order for discovery is made.

      3. That the creation of the documents directed by the High Court imposes a disproportionate burden on the appellant where an order to comply with that order it would be required


        (a) to extract in excess of 20 billion call data records from the tapes on which they are currently stored;

        (b) to record the said records onto a parallel data base;

        (c) to collate and analyse the records on the parallel data base in order to correlate them with the 1800 freephone numbers the subject matter of the order for discovery;

        (d) to create therefrom a document containing a report of the total monthly volume of freephone minutes traffic per month from the 1st July 2000 to the 7th April 2005 in respect of each 1800 number by reference to access method by the appellant to international carriers – limited for the time being to those identified and set forth in the Schedule where the volume of minutes trafficked to that international carrier in any given month exceeded 5,000 minutes.

For my own part, I have no difficulty with the first two grounds of appeal. I am satisfied that they are ill-founded.

It would seem to me that I can usefully treat of the first two grounds of appeal together. My starting point would be that I would reject any idea that the right to discovery of documents should be exclusively based on an interpretation (literal or otherwise) of the relevant rule of court. According to Halsbury’s Laws of England, 4th ed. Vol. 13 para. 1 footnote 3, the discovery of documents “was originally an equitable device employed in the Court of Chancery for obtaining the disclosure and inspection of relevant documents as well as the disclosure and admissions of relevant facts.” It had a more limited history in the common law courts but from and after the Judicature Act, the chancery practice applied in all courts though of course ever since the Judicature Act, there has been a rule of court regulating discovery. In modern times, courts are not necessarily hidebound by interpretation of a particular rule of court. More general concepts of ensuring fair procedures and efficient case management are frequently overriding considerations. The Rules of Court are important and adherence to them is important but if an obvious problem of fair procedures or efficient case management arises in proceedings, the court, if there is no rule in existence precisely covering the situation, has an inherent power to fashion its own procedure and even if there was a rule applicable, the court is not necessarily hidebound by it. It is common knowledge that a vast amount of stored information in the business world which formerly would have been in a documentary form in the traditional sense is now computerised. As a matter of fairness and common sense the courts must adapt themselves to this situation and fashion appropriate analogous orders of discovery. In order to achieve a reasonable parity with traditional documentary discovery it may well be necessary to direct a party “to create documents” within the meaning of the notice of appeal. It may indeed also be necessary to direct a party “to create documents” within the meaning of the notice of appeal even if such “documents” “do not exist at the time the order is made”. I am deliberately using quotation marks because I do not intend to adjudicate on the quasi-metaphysical argument of Mr. Paul Anthony McDermott, counsel for the respondent, that the “documents” do in fact “exist”. At any rate that matter can probably be argued both ways but I would be firmly of opinion that an order of discovery can be made which involves the creation of documents which do not exist, made in the kind of context in which it is sought in this case. Otherwise, potential litigants could operate their business computers in such a way that they would be able to evade any worthwhile discovery. In expressing the above views, I accept that superficially I am perhaps going a step further than the English authorities have done in so far as their rule of court can apparently be interpreted to cover computer discovery. I have no hesitation, however, in making that extension.

Subject to the qualification which I have just mentioned, I accept the broad thrust of the English, Australian, American and other authorities in common law jurisdictions relied on by the respondent. But I do not intend to review them in detail as it seems to me it is sufficient to express approval of the judgment of Vinelott J. in Derby v. Weldon (No. 9) [1991] 1 W.L.R. 652. In that case, it was held by the English High Court that the data base of a computer, in so far as it contained information capable of being retrieved and converted into readable form, and whether stored in the computer itself or recorded in backup files was a “document” within the meaning of the relevant English rule of court and that there was, therefore, power to order discovery of what was in that database with the proviso that the discretion to order production for inspection and copying would not be exercised so as to give an unrestrictive access to another party’s computer and such inspection would be ordered only to the extent that the parties seeking it could satisfy the court that it was necessary for disposing fairly of the cause or matter or for saving costs, in the light of any evidence as to what information could be made available, how far inspection or copying of the database was necessary or whether the provision of printouts would suffice and what safeguards were required to avoid damage to the database and minimise interference with its everyday use. Essentially, Vinelott J. was applying by analogy a judgment of Walton J. in Grant v. South Western and County Properties Limited [1975] Ch. 185 where the question arose of whether a tape-recording of a telephone conversation was a document. Two judges in that case took opposite views but Walton J. considered it an absurdity that if two parties to litigation recorded a conversation, one on a tape recorder and one in shorthand the one would and the other would not be discoverable and he said the following:

      “The mere interposition of necessity of an instrument for deciphering the information cannot make any difference in principle. A litigant who keeps all his documents in microdot form could not avoid discovery because in order to read the information extremely powerful microscopes or other sophisticated instruments would be required. Nor again, if he kept them by means of microfilm which could not be read without the aid of a projector.”
Vinelott J. agreed with Walton J. and applied the same principle to computers. It is important to observe that the judgment in Derby and Co. Limited v. Weldon has already been cited with approval by this court in the judgment of Denham J. in Keane v. An Bord Pleanála [1997] 1 I.R. 184.

In the respondent’s written submissions there is included the following apposite paragraph.

      “The appellant’s submissions accept that a database is a document. However they seem to be suggesting that it is only what is at the forefront of the database on the date on which discovery is ordered that is discoverable. Thus if you delete one version of a letter and type up a fresh one, the earlier version is not discoverable because to download it from the hard drive of the computer would be to create a new document. This does not reflect the reality of how computers operate. Once a particular calculation has been done on a computer then the only issue is one of retrieval and this is not the same as creating a new document. It is submitted that a confusion between these two concepts lies at the heart of the appellant’s submissions.”
As I have already indicated, I do not intend to rest my judgment on whether new documents are “created” or not as it may lead to unnecessary confusion. Indeed the paragraph which I have just cited from the respondent’s submissions needs considerable qualification. If, for instance, in the pre-computer days “one version of a letter” was replaced by a fresh version, the earlier version would probably have been torn up and destroyed. Strictly speaking, it would have been necessary under an order for discovery to have included the torn up letter in the affidavit of discovery as a document which had been in the possession of the discovering parties but there would obviously have been no obligation to produce it. It would seem to me that the court’s discretion in ordering discovery of matters buried in a computer should be directed towards confining the information obtained as far as possible to what should reasonably have been available under traditional documentary storage. It is clear also from the authorities that the discretion must take into account the other factors mentioned in Derby.

I would not, therefore, allow the appeal on either of the first two grounds. I now turn to consider the third ground which is altogether more difficult. The key question that arises under this ground of appeal is whether in all the circumstances the discovery sought is oppressive to an extent that it is unreasonable to order it. Terminology is important in this context and for the purposes of this judgment at least, I intend to distinguish between the concept of discovery being “necessary” and discovery being “proportionate”. In some of the case law and at times in the oral and written submissions, the issue of whether the discovery is disproportionate or not is treated under the heading “necessary”. I suspect that is because the Rules of Court in this and other common law jurisdictions provide that discovery must be relevant and necessary. They do not expressly provide that it must be, say proportionate or reasonable or that it must not be oppressive. However, I think that the distinction is helpful. Although what is meant by “necessary” in Irish law, and particularly as explained by Fennelly J. in Ryanair v. Aer Rianta [2003] 4 IR 264, a clear case, in my view, has been made out on behalf of the respondent that the discovery sought is “necessary” in that sense. But discovery may be “necessary” and yet so disproportionate as to render it unreasonable for a court to benefit the party seeking such discovery by making the order. For example, one could conceive of cases where the expense of what might otherwise be “necessary” discovery would put the party out of business. That might not necessarily prevent the order being made but a court would have to weigh up that factor quite heavily in considering whether it should make the order. The distinction which I am making seems to me to be particularly important in the light of what was clearly held in the Ryanair case. At p. 272 of the report, Fennelly J., in his judgment, said the following.

      “On the question of necessity, counsel referred to the judgment of Kelly J. in the High Court in Cooper Flynn v. Radio Telefís Éireann [2000] 3 I.R. 344. None of the authorities, in particular none of the Irish authorities, support the defendant’s argument that the right to discovery is contingent on the exhaustion of other procedures. An applicant is entitled to discovery even if the facts in question could be established by other means.”
I think that it is a reasonable corollary from this passage that if a party had a legitimate concern as to whether a particular category of discovery more limited than what he was seeking might not be sufficient or even might not give him sufficient comfort in attempting to prove his case, the fuller discovery being sought would be regarded as “necessary”. It has often been pointed out also that in most cases if documents are relevant they are also necessary. This does not always apply however.

It would seem to me that a legitimate concern as to a gap in its proofs, if it had to rely only on category 8 in the discovery has been demonstrated on behalf of the respondent. The only question, therefore, that has to be considered is whether in all the circumstances the discovery of category 9 would be disproportionate and by that I more or less mean oppressive and unreasonable.

In considering this issue, the first question which I must ask myself is, in what circumstances should this court set aside the discovery order of the High Court on this particular ground and in the general context in which the order was made. I have added those last few words because, in my view, it is appropriate to take into account that the learned High Court judge was not just dealing with an isolated discovery motion but was also conducting overall management of the case. This was a case assigned to the competition court. Case management in that court and in the commercial court is particularly important and is directed towards the efficient and speedy completion of the litigation. It has been stated more than once in judgments of this court that this court should be slow to set aside any management ruling made in that context.

Quite apart from the special reluctance which this court would have in interfering with an order made in the course of case management by the intended trial court, there are other universal principles which must also be considered. This court can only concern itself with whether the learned trial judge applied the correct principles of law in making the discovery order now in controversy. On an issue such as whether a particular discovery order is disproportionate or not, there may well be two perfectly legitimate points of view.

I do not think, therefore, that the question which I have to consider is whether I agree with the order made or not but rather whether the learned trial judge applied the correct principles in arriving at his decision and whether on the basis of those principles it was open to him to make that decision. If I had been the High Court judge hearing this application for discovery, I would have had great difficulty deciding whether I should make the order or not particularly in the light of the sound argument put forward on behalf of the respondent that there was a gap or at least a potential gap in its necessary proofs if the full discovery sought was not made. I am, therefore, unable to find that there was an error in legal principle in the view adopted by McKechnie J. and I am quite satisfied from the transcript that he understood and considered the arguments on both sides. Just to take one simple example, if one reads the transcript of the hearing on the 16th May, 2006 (which was one of a number of hearings) at p. 11 there is the following bit of dialogue between McKechnie J. and Mr. Travers, counsel for the appellant.

      “Mr. Justice McKechnie: How is the plaintiff going to differentiate between the 1800 numbers, which that may have had on a direct bearing on the allegation of discriminatory pricing and the use of 1800 numbers, which will not. Let me repeat that: How is the plaintiff going to differentiate, how is he going to make use of the documentation in a meaningful way to support the allegation, whether it is right or wrong, of discriminatory pricing on behalf of Eircom when, in fact, the 1800 numbers can be used for more than one purpose?

      Mr. Travers: Well, what we are accepting, if you like, by way of an alternative to our main submission that really this discovery is not necessary, is that we would accept in principle all of whatever increases that were attributable to, if you like, this arbitrage opportunity. Therefore the plaintiff has to come into court and demonstrate that the potential cake lost to it is so large, and come into court to prove how much of that cake it might reasonably have expected to have obtained.”

There was further extensive discussion and Mr. McDermott explained in detail to the judge why the concession already referred to was not attractive to the respondent and was not really in the last analysis a concession. At that hearing on the 16th May, 2006, the learned High Court judge was at pains to point out that he had clearly understood that the appellant’s case on the previous occasion had been that there was no need to make an order in relation to category 9 because the information would be included under category 8. He, effectively, cross-examined Mr. Travers about this, citing parts of an earlier transcript which Mr. Travers was forced to disown. All Mr. Travers could say was that it was never the understanding of the appellant that it would provide all of the information regarding the total volume of traffic, at which point he was interrupted by McKechnie J. who pointed out that category No. 9 was meaningless in that event. At that point, Mr. Travers referred to the letter written to the judge at his request on behalf of the appellant a few days earlier in which it was stated that there would be “26 billion call data records”. Like the trial judge, I do not find myself impressed by these kind of figures as they are meaningless unless properly interpreted to the court. From the general tone of the affidavits and correspondence, I do not get the impression that the appellant from the beginning regarded the discovery under category 9 as being so extreme that it would be impossible to comply with it. The major emphasis on alleged disproportionality seemed to emerge at the later stages. The appellant’s argument that the discovery sought was wholly disproportionate would have been more impressive if, from the beginning, there was clear evidence as to why that was so giving very precise details of the time involved, the number of personnel involved, the confidentiality aspect etc., all of which could have been dealt with in reply by the respondent’s own experts. It was stated in the written and oral submissions of the appellant in this court that complying with an order for discovery under category 9 would require the purchase of additional computer hardware costing in the region of €150,000. The respondent, in its written submissions, claims that that figure was never adduced in evidence and has been “plucked out of the air”. The respondent legitimately complains that “evidence” of that kind ought not to be put forward by way of submission. It must be adduced in the ordinary way with an opportunity to have it tested in court and responded to, if necessary, by counterevidence. My overall impression is that essentially, the appellant was trying unsuccessfully to frighten the court by the mention of what superficially at least would be large figures but figures unsupported by solid evidence. I see nothing perverse in the non-acceptance of this argument by the learned High Court judge.

Finally, there is another aspect of the case which dissuades me from advocating any interference with the order of the learned High court judge. Whilst it is perfectly obvious that on any view, considerable time and expense will be involved in furnishing the category 9 discovery, there must be offset against that the potential saving in time and cost which may well materialise when the discovery is completed. It would seem to me that at that stage it is likely that each party will be in a strong position to form a view as to who in reality is going to win this case or if there is to be a win to what extent. At best, the case may more easily settle. But short of settlement there would be every probability, in my view, of considerable narrowing of issues either by agreement or as a consequence of case management.

For this reason also, I would not favour some kind of partial hearing of the case based perhaps on the concession and/or one type of phone call. I think that would add to the litigation and to the appeals and possibly, render it even more uncertain as to the ultimate outcome of the action. At any rate, it does not seem to me that any compromise position was really argued for. Having considered all the options and for the reasons which I have clearly indicated, I would dismiss the appeal.











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