High Court of Ireland Decisions

1. The plaintiffs are the holders of licences granted under the Broadcasting and Wireless Telegraphy Acts. The first plaintiff holds a licence for retransmission in cells 20 and 21, in the national grid, which covers parts of Tipperary and Kilkenny, using the MMDS system.

2. The second plaintiff holds a licence for a Wire Broadcast Relay Station, serving Clonmel. The plaintiffs claim they are exclusive licences. Both companies are owned by Mr. and Mrs. Cranwell solely, who are also the directors. Under the Wireless Telegraphy Act, 1926 (the 1926 Act) Section 3 contains a prohibition against having any apparatus for wireless telegraphy unless authorised by a licence, granted under the Act. Section 5 empowers the Minister to grant a licence for such period subject to such conditions and restrictions as shall be prescribed by regulations made under the Act. The 1926 Act was amended by the Broadcasting and Wireless Telegraphy Act, 1988 (the 1988 Act). Apparatus for wireless telegraphy was redefined by Section 2. Section 3 provided that a broadcast should not be made, unless in accordance with a licence issued by the Minister. It makes unauthorised broadcasting an offence. The penalties for summary convictions are a fine not exceeding a thousand pounds and imprisonment not exceeding three months. On indictment a fine of £20,000 and two years imprisonment are the maximum penalties.

3. The plaintiffs have expended £2.8m by way of outlay to provide the television service for the MMDS service and £1.7m for the cable service. They pay an annual rental to the Minister and royalties to the copyright holders. The plaintiffs are the only licence holders in their respective areas. They claim the licence gives them an exclusive right to provide T.V. relay services and that the exclusivity is necessary to earn a return on their large scale capital investments.

4. The first defendant is carrying on a business of retransmission of T.V. signals. The method used is cheaper to operate than the MMDS system, required by the Minister for the plaintiffs. The first defendant does not hold any licence. The second defendant is its managing director. The receiver/transmitter used is in the Comeragh Mountains and covers an area comprised in the plaintiffs' licences.

5. The plaintiffs claim that no planning permission was obtained for the erection of the receiver/transmitter. The plaintiffs' solicitor wrote to Waterford County Council on 10th September, 9th October and 19th December, 1996, without result. Mr. Cranwell, the managing director of the plaintiffs, avers that as a result of the defendants' receiver/transmitter, it is possible for members of the public in the area of South Tipperary to receive multi channel T.V. by erecting a UHF aerial at the cost of £20 and without any other financial outlay or rental. This interferes with the revenue generating monopoly of the plaintiffs. The plaintiffs claim the defendants are acting unlawfully and interfering with the trade and business of the plaintiffs companies and their constitutional rights to property. Their actions interfere with the deponent, Mr. Cranwell's, constitutional right to earn a living.

6. The plaintiffs claim the remedies provided by criminal law are inadequate. No proceedings were instituted against the defendants despite notifying the Minister for Communications. It was stated, on the Minister's behalf, by letter dated 30th January, 1997, that the Minister had decided to await the report of independent consultants, before considering what action to take with regard to the unlicensed operations of T.V. retransmission systems.

7. The plaintiffs claim damages are an inadequate remedy as they have lost potential subscribers rather than actual subscribers. This is impossible to estimate.

8. The defendants do not deny that the first defendant is broadcasting without a licence. By way of explanation the second defendant recounts the history of broadcasting in the South East. He says in 1992 a national deflector organisation was formed, the National Community T.V. Association, of which the first defendant is a member. Its purpose is to persuade the Minister to licence deflector systems.

9. The second defendant refers to the judgment of Mr. Justice Keane in November 1995 in Carragaline Community T.V. Broadcasting Company Limited and Another -v- The Minister for Transport Energy and Communications in which a decision of the Minister not to grant a licence was challenged. It was held that an exclusive licence granted to Cork Communication Limited did not preclude the Minister from considering the Carragaline application for a licence and that he had to do so fairly and impartially.

10. The second defendant refers to the delay by the Minister in dealing with the matter. The first defendant formally applied to the Minister for a licence in respect of Mid-Waterford, South Tipperary and South Kilkenny, on the 13th November, 1996. Mr. Kirwan, the second defendant, asks that the first named defendant be permitted to continue operations until the Minister determines the licence application. He says if the order is granted, the first defendant is unlikely to remain in existence. Community representatives will dwindle, subscriptions will dry up, it will be difficult to maintain equipment and impossible to start again. But there is no evidence of any charge made by the first defendant.

11. The plaintiffs claim they are entitled under the Local Government (Planning and Development) Act, 1976, Section 27 to an Injunction in that the transmitter is an unauthorised development. This is averred to at paragraph 16 of the plaintiffs Grounding Affidavit and is not contested. However, the defendants say that if this argument commends itself to the Court, they will give an undertaking to apply for planning permission and they ask for this relief to be adjourned.

12. The plaintiffs claim they are the only persons entitled to broadcast in the area of cells 20 and 21 and they have invested millions of pounds and the defendants are transmitting illegally.

13. The defendants claim the plaintiffs have no locus standi because they cannot bring a common law action in respect of a breach of duty imposed by statute, and where criminal proceedings are provided for, there is a strong implication no civil action for breach of duty will lie. The plaintiffs claim they do have locus standi because they have a private right, given by statute and therefore they are within the class of persons intended to be protected. The Statute was not just intended to protect the public as a whole. And they also claim that it is relevant to consider the adequacy of the criminal deterrent against the breach of statutory duty.

14. In relation to the constitution, the plaintiffs claim the right to earn a livelihood has been interfered with by the unlawful activity of the defendants. The defendants reply to that is that being corporate bodies they have no constitutional rights.

15. With regard to locus standi, I accept the plaintiffs' argument that the 1927 and the 1988 Acts confer rights on individual licence holders, as well as protecting the public. The adequacy of the criminal sanction imposed by law cannot just be judged by the length of the possible sentence or the amount of the possible fine, but also by the absence of prosecutions. There may well be reasons no prosecutions have been brought to enforce the law. That is the matter for the executive authority. But if some person's right under a statute is being eroded by unchecked illegal activity, they are entitled to come into Court and say the criminal sanction is not just inadequate but de facto absent (see Parson -v- Kavanagh 1990 ILRM 560 and O'Connor -v- Williams 1996 2 ILRM 382).

16. So, on the question of locus standi, I am satisfied the plaintiffs have established a prima facie case. On the question of interference with the constitutional right to earn a living there is an issue to be tried between the view expressed by me in PMPA -v- The Attorney General 1983 I.R. 339 and the contrary view expressed by Mr. Justice Keane in Iarnrod Eireann -v- Ireland 1995 2 ILRM 161.

17. Since there is a fair issue to be tried, I have to consider whether damages are an adequate remedy and where the balance of convenience lies.

18. Whether I consider damages as part of the balance of convenience or not it is clear they are not an adequate remedy. The defendants admit they are not in a position to pay damages. But quite apart from the defendants ability to pay, the plaintiffs point out that they would find it extremely difficult to quantify damages because the damages is loss of potential customers. So I accept damages are not an adequate remedy.

19. In considering the balance of convenience the plaintiffs have been in business since October 1989 for the MMDS system and since August 1985 for the Cabling in Clonmel. They have expended huge sums of money. They are liable to pay and do pay royalties to the copyright holder and an annual fee to the Minister.

20. As against that, the defendants erected a mast last June. No cost is given, but photographs give some idea of its size. They only applied for a licence last November. There is no attempt to quantify any monetary loss. And the statement that there is no annual fee is not contradicted. There is no attempt to say why the maintenance of the transmitter cannot be continued. Therefore, it seems to me, the balance of the convenience lies with the plaintiffs.

21. With regard to the Planning Acts, the plaintiffs are entitled to bring the application under Section 27 of the 1976 Act to restrain unauthorised use. And since I have decided to grant an Interlocutory Injunction, the plaintiffs are also entitled to an Injunction under Section 27 of the Planning Act. The discretion to be exercised under Section 27 is covered by the discretion exercised in granting the Interlocutory Injunction.