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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Smart Mobile Limited v Commission for Communication Regualtion & Anor [2006] IEHC 338 (31 October 2006) URL: http://www.bailii.org/ie/cases/IEHC/2006/H338.html Cite as: [2006] IEHC 338 |
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Judgment Title: Smart Mobile Limited v Commission for Communication Regualtion & Anor Composition of Court: Kelly J. Judgment by: Kelly J. Status of Judgment: Approved | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Neutral Citation Number: [2006] IEHC 338 THE HIGH COURT COMMERCIAL [2006 No. 702P] BETWEENSMART MOBILE LIMITED PLAINTIFF and COMMISSION FOR COMMUNICATIONS REGULATION FIRST DEFENDANT AND BY ORDER OF THE COURT EIRCOM LIMTED SECOND DEFENDANT JUDGMENT of Mr. Justice Kelly delivered on the 31st day of October, 2006 The Challenge In these proceedings the plaintiff (Smart) challenges a decision of the first defendant (ComReg). That decision was communicated by a letter from ComReg’s senior legal advisor to Smart’s solicitors dated 13th February, 2006. That letter made it clear that Smart would not be awarded a licence, which it had sought, to operate 3G mobile phones within the State. The reasons given for that decision were the failure on the part of Smart to meet the terms of the tender process in which it had engaged and, in particular, its failure to provide a performance bond in a form acceptable to ComReg within the extended time scale of that tender process. In order to made sense of all of this it is necessary to set out in some detail the background against which the decision which is challenged came to be made. Smart and Its Personnel Smart is a limited company which carries on business at the Citywest Business Campus in Dublin. Its chief executive officer is Mr. Oisin Fanning. He did not give evidence in the trial although he was a participant in many of the discussions in respect of which testimony was forthcoming. Mr. Ciaran Casey is the chief operations manager of Smart. He was one of the two in-house witnesses who gave evidence for Smart. The other was Mr. Iarla Flynn who holds the post of head of regulatory affairs at Smart Telecom Plc. with which Smart is associated. ComReg and Its Personnel ComReg was established pursuant to the Communications Regulation Act, 2002. It is the statutory body with responsibility for the regulation of the telecommunications industry within the State. It consists of three commissioners who are assisted by technical, legal and administrative staff. Only one of the commissioners, Mr. John Doherty, gave evidence. Two members of the staff of ComReg also gave evidence. One was Mr. Mark Hughes, who is a solicitor. He joined ComReg in May, 2005. His work involves giving legal advice to ComReg in respect of inter alia telecommunications regulation. Prior to joining ComReg he developed particular expertise in corporate finance, commercial and regulation law. The other in-house witness for ComReg was Mr. Jim Connolly. He is a radio spectrum engineer and was the senior manager responsible for spectrum management within ComReg. Eircom Limited The second defendant (Eircom) was joined as a defendant to these proceedings by an order made on 3rd April, 2006. It was joined to deal with any issues of public law affecting it which might fall for determination in the action. How this came about will be made clear later in this judgment. In the event, the only issues which fell for consideration were issues of public law since on the first day of trial Smart abandoned its private law claims. Eircom did not call any witnesses. Huawei and B.T. Although not parties to this litigation these two entities will feature throughout this judgment. Huawei (Huawei) is a Chinese company. It supplies telecommunication network equipment including 3G networks. It has supplied Smart with equipment in the past. B.T. Ireland (B.T.) is a company which is heavily involved in the telecommunications industry and the construction of 3G networks. Smart selected both of these companies as it partners in the venture the subject of this action. 3G Mobile Phones 3G refers to “third generation” mobile telephone technology. This technology permits the transfer of much more data than its predecessors which were known as first and second generation technology. First and second generation technology was capable of voice telephony and the transmission of small amounts of data such as short text messages. Because of improvements in technology, a 3G mobile telecommunications operator can provide many more services. A much broader range of content than heretofore is now possible. 3G technology allows an operator to provide facilities whereby mobile phones have direct access to the internet. These new services and content can include such things as the viewing of television programmes, video conferencing and the downloading of music from the internet. 3G Licensing The office of the Director of Telecommunications Regulation (ODTR) was the predecessor of ComReg. In 2001 ODTR launched a competition for the award of four licences to provide 3G mobile services in Ireland. It decided to divide these licences up into two categories. One was known as category A and the other, category B. It decided to offer one A licence and three B licences. The party to whom the A licence was awarded undertook more onerous obligations with regard to the construction of infrastructure and the achievement of demographic coverage than the holder of a B licence. However, the A licence involved the payment of a lower spectrum access fee. The B licences carried less onerous roll-out and coverage requirements but had significantly higher spectrum access fees. As a result of the 2001 competition the A licence was granted to Hutchison 3G Ireland, which was a new entrant to the Irish market. Two B licences were awarded. One went to Vodafone Ireland (Vodafone) and the other to O2 (O2). The one remaining B licence is the subject of these proceedings. At the conclusion of the 2001 competition ComReg decided not to award the remaining B 3G licence immediately. Rather it decided to wait and see how market conditions would develop. Eircom’s Approach In June 2005 Eircom wrote to ComReg and applied for the issue of the third B licence to provide 3G mobile telephony services in the State. ComReg responded swiftly. Just one week after this request from Eircom it issued a memorandum which had as its object the provision of information to all interested parties about the licensing process for the third 3G B mobile telecommunications licence which remained. The Memorandum ComReg’s memorandum invited applications for the remaining B licence. It stipulated that if there was more than one applicant the selection of the successful one would be carried out by way of an open tender using the comparative evaluation or “beauty contest” method. This term “beauty contest” is well known in the telecommunications world and describes in effect a competition between contenders for the licence. The duration of the licence was stipulated to be 20 years. The memorandum made it clear that if there was just a single applicant for it then, assuming all of the essential requirements were met, the licence would be issued within six weeks of the closing date for the applications. Should there be two or more applications then the comparative evaluation process would have to be carried out. Even in such case however, ComReg expected that the highest ranked applicant for the licence would be announced by 28th October, 2005. The memorandum set out a great deal of information for interested parties. Some elements are of particular interest. First, it stipulated that the overall objective of the competition was to generate the most competitive and robust mobile market structure possible so that Irish consumers could benefit from comparative tariffs and the availability of advanced services. Secondly, the minimum requirements with regard to coverage, speed of roll out, and national roaming were stipulated as follows. 33% demographic coverage would have to be achieved by the end of October, 2009. 53% demographic coverage would have to be achieved by the end of October, 2011. Furthermore, minimum requirements with regard to the financial solidity and the coherence of the applicant’s business plan would apply. Applicants would have to agree to pay a spectrum access fee. This was to comprise an upfront payment and deferred payments in certain years. The information memorandum went on –
It was made clear that, during the competition, applications would be subjected to a comparative evaluation on the basis of predetermined evaluation criteria. These were shown in diagrammatic form and were as follows. 30% of the weighting was attributable to coverage, speed of roll out and site sharing. 20% was referable to quality of service. 20% was attributable to the promotion of competition. The remaining 30% was attributable to performance guarantees. The information memorandum made it clear that the evaluation of the “beauty contest” would be in accordance with those weightings and dimensions. Applications would be considered in descending order of merit and the highest ranked applicant would be offered the licence. Finally, the memorandum made it clear that the closing date for receipt of the applications was 9th September, 2005, at 12.00 hours local time. The competition was formally launched on 22nd July, 2005. An analysis of the tenders was to be carried out between 12th September and 24th October, 2005 and the announcement of the result was originally scheduled for 28th October, 2005. In the event this latter date was altered to 16th November, 2005. The Tender Document On 22nd July, 2005, ComReg issued its tender document. It ran to some 79 pages and contained an enormous amount of information. Some parts of it have particular relevance to this litigation. The first chapter of the tender document set forth the background and provided an introduction. Chapter 2 gave a description of the licence and set out the minimum requirements of it. It made it clear that an applicant had to agree to meet the minimum coverage and roll out requirements which were the same as those which were set forth in the information memorandum, the relevant parts of which I have already reproduced. In order to qualify for the B licence an applicant had to commit to launch commercial services not later than 30th April, 2007. The third chapter contained information on the application procedure. Chapter 3.4 dealt with the fees payable by an applicant. Some of these were described as once off and others as recurring charges. The fees were as follows. The first fee was an administrative one in the sum of €300,000. Every applicant was obliged to provide a valid bank draft for that sum. An unsuccessful applicant would have that sum refunded. The successful applicant was liable to pay that sum as the cost of the competition. The second fee was an annual telecommunications levy. This was payable in order to meet the expenses incurred by ComReg in the discharge of its functions in relation to electronic communications. The third fee payable was the spectrum access fee. That was a total sum of €114.3 million. The idea of this fee was to promote an applicant’s efficient and effective use of the spectrum offered. It could be seen therefore as a further augmentation of a bidder’s credible commitment to the efficient and effective use of the licence to be granted. This total spectrum access fee covered an initial payment and deferred payments from year 4 to year 15 inclusive. The initial payment was €44.4 million and was due after the announcement of the ranking but prior to the award of the licence. The deferred payments were due in accordance with a schedule. The €44.4 million initial spectrum access fee had to be paid not later than 15 days after receipt of the notification of award of the licence. The payment was to be made unconditionally. A failure to make this payment in accordance with these terms would result in the applicant not being awarded any licence. Paragraph 3.4.3.2 provided for extension of time limits being granted by ComReg. If the €44.4 million was not paid within the stipulated time, ComReg might, at its discretion, grant an extension of the time in order to allow the applicant to correct the matter. In such event interest would be charged on the payment due. If, however, an applicant failed to meet the conditions within the extended time it would not be awarded the licence. An applicant was also obliged, not later than 15 days after notification of ComReg’s intention to award a licence to it, to make arrangements for a guarantee payable on demand to be provided at any time in favour of ComReg. That guarantee had to be issued by a bank or financial institution as stipulated which had to be registered in the European economic area and have a minimum long term debt A rating from Standard and Poors or A2 from Moody’s Investors Service Limited. This guarantee was to be for an amount equivalent to the sum of the instalments payable on the spectrum access licence fee that fell due during the first five years of the licence and had to be valid for five years from the date of the award of the licence. ComReg was to lay down the terms of the guarantee. Once the requirements for the payment of the €44.4 million and the making of the arrangements for the guarantee had been met, ComReg was obliged to issue a licence to the best ranked applicant in accordance with the rules set out in chapter 4 of this document. ComReg was entitled to revoke the licence in circumstances where the licensee failed to meet payment obligations for the remainder of the spectrum access fee or those relating to the guarantee of such payment. Chapter 3.11 provided as follows:-
Finally, ComReg reserved the right to alter any of the deadlines or conditions during the tender process. Chapter 4 of the tender set out in detail the evaluation process. Table 8 of chapter 4 set out the evaluation criteria for the licence. 20% of the points fell to be awarded to a new market entrant to the Irish mobile market. 30% were awarded in respect of coverage, speed of roll out and site sharing. 20% were attributable to quality of service. The remaining 30% of the points fell to be awarded in respect of performance guarantees. 65% of that 30% were to be awarded for the performance guarantees tied to coverage, speed of roll out and site sharing. The remaining 35% were to be awarded in respect of the performance guarantees tied to quality of service. Chapter 5 set out in detail the structure of the application which would have to be made by a successful applicant. Part 7 of such an application dealt with performance guarantees. Chapter 6 set out the calculatory assumptions and definitions. On the topic of performance guarantees it had this to say:-
Any financial guarantee offered must be secured by means of a cash deposit or by means of a performance bond provided by a reputable bank with a credit rating of at least A2 awarded by Moody’s, or A from Standard and Poor. The financial guarantees will become payable if a licensee fails to meet the performance target offered. Each incidence (sic) of non-performance shall be considered separately.”
7.1 Performance Guarantees Any performance guarantees offered should be described in relation to- (b) The method of measurement proposed for the identification and monitoring of the performance targets and any deviations thereto, and (c) Any financial guarantees offered in case the performance targets are not achieved.
If the applicant wishes to make binding commitments with regard to performance guarantees, these should be inserted in the draft licence, (appendix B4, part 8). Any binding commitments made by the applicant with regard to performance guarantees are voluntary.”
The licensee shall, before the licence commencement date, put in place a programme to measure and monitor compliance with the performance targets set out. The programme shall include the reporting procedures to ComReg and shall be in such form as agreed with ComReg or as may be specified by ComReg from time to time.” (My Emphasis) The final appendix which is of relevance is B5. That consisted of explanatory guidelines for the draft licence schedule. Only that part dealing with performance and financial guarantees is relevant. It said:-
2. The licensee shall, before the commencement date of the provision of 3G mobile telephony services, put in place a programme to measure and monitor compliance with the performance targets set out. The programme shall include the reporting procedures to ComReg and shall be in such form as agreed with ComReg or as may be specified by ComReg from time to time, 3. The licensee shall, within 31 days of each relevant performance target notify ComReg that the licensee has either,
(b) that the licensee has failed to meet the said performance target. Failure by the licensee to do so must be notifed to ComReg in writing and shall be deemed to indicate non-compliance with the relevant performance target. Applicants should note that any performance targets and financial guarantees supporting them constitute binding commitments, which may be evaluated in any comparative assessment procedure. ComReg may incorporate any or all of these binding commitments into the applicant’s licence. Applicants should further note that performance targets offered that are not backed by financial guarantee will not be taken into account in any comparative selection stage that may take place with respect to performance and financial guarantees.” (My emphasis) The Questions and Answers Document Each applicant, in addition to being provided with the tender document, was also furnished with a diskette which included questions and answers which arose during the initial 3G competition in 2001/2002. The diskette translated into a document of some 128 pages. Mercifully, only a small number of the questions and answers are relevant to this case. I will deal with each of them in turn. Question 12.4 at pg. 49 asked if an applicant was part of a larger group could the performance guarantee be in the group’s name if it adhered to the condition set out in s. 1. (6.2.7) of the tender. That section was to the effect that any financial guarantee offered must be secured by means of a cash deposit or a performance bond provided by the appropriate bank. The answer to the question made it clear that a financial guarantee i.e a cash deposit or performance bond, had to adhere to the conditions which were specified and went on:-
(My emphasis)
As a result, applicants should make appropriate arrangements in advance. Failure to adhere to guarantees, after the provision of a licence, could if the circumstances warrant, lead to various sanctions including the revocation of the licence.” (My emphasis) Qs. 16.4 on the same page asked for confirmation of the performance bond that would be acceptable to the Director. The answer to the question is as follows:-
All reservations must accompany the application and any later reservations shall not be accepted by the Director, except for force majeure as described in the answer to Qs. 2.7.” The Bids Three bids were received by ComReg by the deadline of 12 noon on 9th September, 2005. One was from Smart, the others were from Eircom and Meteor. On receipt of the bids an evaluation was carried out by ComReg in accordance with the criteria which I have already mentioned. Smart’s bid was described as ambitious but its commitments with regard to issues such as speed of network roll out were supported by Smart’s offer, on an entirely voluntary basis, of €100 million in financial guarantees. It was awarded all of the available marks, namely 20% of the overall marks, for the fact that it was a new entrant to the Irish mobile market. It was awarded 89% of the marks available for performance guarantees for the commitment which it made to provide – (a) financial guarantees of €100 million in respect of performance targets and (b) a €100 million performance bond in a form acceptable to ComReg as security for such financial guarantees. In a moment I will have to turn to the precise terms of the Smart bid document. Smart won the competition. It achieved the highest ranking of the three applicants. As a result, on the 16th November, 2005, a letter was sent by ComReg to which I will turn in a moment. Before doing so however, it is necessary to look in a little detail at a part of Smart’s bid. Smart’s Bid The Smart bid was an enormous document occupying an entire lever arch folder. Fortunately, this judgment need only concern itself with that part of it which dealt with performance guarantees. Such guarantees were dealt with at part 7 of the document. Part 7 began by pointing out that Smart had ambitious plans to roll out a leading-edge 3G network and provide a high quality service experience to its customers. It went on:-
This section contains details of the performance targets put forward by Smart in this application and the financial guarantees that are being offered to underpin the targets. Performance targets are offered in relation to network quality of service, customer quality of service, date of service launch, network coverage and roll-out and site sharing. Financial guarantees totalling EUR 100 million have been offered to underpin the targets.” (My emphasis) In its comments contained at para. 7.1, Smart, inter alia, said as follows:-
Smart recognises, however, that ComReg requires confirmation as to the credibility of the performance targets that it has set out (both in part 4 of this application and in the following sections) and that ComReg needs to ensure that the promises that Smart makes are grounded in reality. Smart knows that, in awarding it the licence, ComReg needs to have the utmost confidence that Smart’s plans to become a strong, disruptive force in the mobile market will be achieved in the manner described in this application. Smart also recognises that ComReg needs to be confident that Smart can undertake the significant task of rolling out a new national mobile network. In this licence application, Smart is therefore making a commitment to put in place a performance bond of EUR 100 million to underpin the performance targets set out in this application. The performance bond will be provided by a reputable bank with a credit rating of at least A2 awarded by Moody’s or A from Standard and Poor and will be put in place prior to the actual award of the licence to Smart. Once Smart has been informed that it is to be awarded the licence, Smart will consult with ComReg as to the form of the bond and it will ensure that this is acceptable to ComReg. The bond will underpin performance targets in the areas of: · Customer quality of service · Date of service launch, network coverage and speed of roll-out, and · Access to radio transmission sites and site sharing. In each of the above areas, Smart has provided for stringent financial penalties for non-performance in relation to the targets that Smart has set for itself. In addition, Smart is prepared to make binding commitments in relation to the performance guarantees and has included these commitments in the draft licence provided in part 11 of this application. These licence commitments reinforce Smarts commitment to successfully entering the mobile business in line with the plans detailed in this application. Smart also recognises that ComReg will require information in order to measure and monitor compliance with the performance targets offered. It is noted that ComReg proposes to insert a specific obligation in the 3G licence requiring the licensee to put in place, prior to the licence commencement date, a programme to measure and monitor compliance with the performance targets offered by the successful applicant. Smart also notes that this programme will need to include reporting procedures to ComReg and must be in such form as agreed with ComReg. Smart acknowledges and accepts ComReg’s requirements in this area; once Smart has been notified that ComReg intends to award the licence to Smart, Smart will work constructively with ComReg to put in place the required reporting measures in advance of the licence commencement date. For the purposes of this application, Smart has set out details of the ways in which it believes that the various performance targets may be monitored and Smart will be happy to confirm these with ComReg prior to licence award.” (My emphasis) The bid concluded with the following statement:-
In reality, Smart believe that commercial considerations will drive performance in all areas from network roll-out to service quality. However, Smart accepts that ComReg, as the licensing authority, needs to be convinced as to the credibility of the performance targets offered by applicants and it needs to have confidence that commitments made by applicants at this point would be carried out in practice over the coming months and years. Smart trusts that the way in which it has underpinned all of the targets that are offered with significant financial guarantees will satisfy ComReg that Smart’s plans are tangible and credible.” (My emphasis) The Letter of Offer Having won the “beauty competition” a letter of offer was written by the chairperson of ComReg to Mr. Fanning on 16th November, 2005. This letter stipulated the terms and conditions to which the award and grant of the licence were subject and also contained a summary report of the evaluation and the bid. The letter insofar as it is relevant said as follows:-
In accordance with the tender document, not later than 15 calendar days from today’s date, your company must forward to this office a cheque or bank draft for the sum of €44,400,000 as the first instalment of its spectrum access fee. Before the licence is issued, Smart Mobile Limited is also required to pay by cheque or bank draft its first annual spectrum fee of €1,111,023…I draw your attention to s. 3.4.3.5 of the tender document which provides – ‘The applicant shall, not later than 15 days after notification of ComRegs intention to award a 3G licence to that applicant, make arrangements for a guarantee payable on demand to by provided at any time in favour of the Commission for Communications Regulation’ – This section sets out in detail the nature of the guarantees to be provided. I also draw your attention to s. 6.2.8 of the tender document and pg. 7/2 of your company’s application. In its application, your company undertook to put in place prior to the actual award of the licence the performance bond described on pg. 7/2 of your company’s application. The performance bond must be provided to ComReg no later than 30 calendar days from the date of this letter. … In summary, if Smart Mobile Limited accepts this offer of the 3G B licence you are required to provide ComReg with the following:- (ii) The first annual spectrum fee of €1,111,023 for the 3G spectrum; (iii) A guarantee payable on demand to cover an amount (€7,600,000) equivalent to the sum of the instalments payable on the spectrum access licence fee that fall due during the first five years of the licence; (iv) A guarantee in the sum of €100 million payable on demand to cover the total commitment of your performance guarantees; (v) If you wish to take up the offer of the 900NHz spectrum, a cheque or bank draft for the sum of €12,350,000; (vi) The first annual spectrum fee of €457,110 for the 900NHz spectrum. For your consideration I also enclose a copy of the draft licence. Please advise in writing of your acceptance of this offer within five working days from the date of this letter. Failure to so respond will be construed as a rejection of this offer. Failure to comply with any of the requirements in this letter will result in withdrawal of this offer…” On 22nd November, 2005, Mr. Fanning wrote a letter of acceptance. It was simple and straightforward and said:-
On the same date that the letter of acceptance was furnished a meeting took place between ComReg and Smart. All three commissioners from ComReg, together with Mr. Connolly and Mr. Hughes, were present. Messrs. Fanning, Flynn, Casey and Mr. Garfield Connolly represented Smart. This was the first of a series of meetings which took place. Its principal object was to discuss issues arising from the letter of offer of 16th November, 2005. At that meeting the Smart representatives stated that they intended to provide the spectrum access fee (€44.4 million and €12.35 million) and guarantee for the 3G fees by 1st December, 2005. They indicated that their target to provide the €100 million performance bond was 16th December. The ComReg representatives advised Smart to keep ComReg closely informed of progress in securing the bond. The ComReg side requested feedback from Smart on the draft licence and indicated that correspondence in that regard should be addressed to Mr. Hughes. ComReg for its part confirmed that the 16th of December was the target date for the issue of the 3G licence. At the meeting of 22nd November, Mr. Connolly gave a letter to Mr. Fanning which was in the following terms:-
The actual guarantee to be provided by Smart does not have to mirror the template precisely but the template does cover the key elements which would be of interest to ComReg in accepting any such guarantee or bond. Please do not hesitate to contact me if you have any queries concerning this issue.” The First Extension of Time On 30th November, 2005, Smart wrote to Mr. Commissioner Doherty requesting an extension of the period by which it was to furnish ComReg with the €44.4 million initial spectrum access fee and the €7.7 million financial guarantee. An extension of time to 15th December, 2005, was sought. The reason given for this, it was said, was that that date was beyond the period by which a disappointed bidder could appeal the award of the licence to Smart. Smart agreed to pay interest on the late payment in accordance with the requirements of the tender document. In the body of the letter, Smart requested ComReg to grant the extension of time by exercising its discretion as provided for in s. 3.4.3.2(4) of the tender document. The letter also made it clear that by then Smart had engaged with two partners, one a significant shareholder and the other an overseas supplier to raise the funds for the initial licence payments. That process had, according to the letter, been completed. This request was responded to by a letter of 1st December, written by Mr. Commissioner Doherty on behalf of ComReg. The extension of time was granted until and including 15th December, 2005. ComReg’s letter drew attention to clause 3.4.3.2(7) of the tender document which provided that the applicant would not be awarded the licence where, on being granted an extension of the relevant time limit, the applicant still failed to meet the conditions set out in para. 3.4.3.1(1). The letter further stipulated that the extension granted did not affect, inter alia, Smart’s requirement to provide ComReg with a guarantee in the sum of €100 million payable on demand to cover the total commitment on its performance guarantees no later than 16th December, 2005. The Second Extension of Time On the eve of the deadline of 16th December, a letter was received from Smart. It described itself as a formal request for an extension of the performance bond deadline due to “a material change in the source of the bond”. It stated that Smart remained committed to the bond and the bond criteria but wished to meet to discuss the extension and the situation surrounding it. It suggested a meeting at 2.30 p.m. at the offices of ComReg on the following day, 16th December, 2005. Such a meeting was arranged and took place on 16th December. The Meeting of 16th December All three commissioners, together with Messrs. Connolly and Hughes represented ComReg at this meeting. Messrs. Casey, Flynn and Connolly represented Smart. It is not necessary to deal in detail with what was said at this meeting save to recount that Mr. Casey gave an explanation of the problems which Smart had and sought an extension of time for as long as possible. When asked specifically what time he required in order to resolve his difficulties he indicated that he would like a date as long as possible and ideally to the end of February, 2006. The 25th January, 2006, was mentioned as a possible potential date by ComReg. Smart made it clear that that would be very ambitious given all that had to be achieved. At the end of the meeting the Smart team were under the impression that ComReg would seriously consider the application for the extension and they were very hopeful that it would be until the end of February. ComReg considered the request for the extension and decided to grant it. On 16th December, 2005, it wrote to Mr. Fanning telling him of its decision. The extension of the deadline was until 5.00 p.m. on Monday 30th January, 2006. The letter insofar as it is relevant read as follows:-
(ii) The guarantee in the sum of €100 million payable on demand to cover the total commitment on your performance guarantees,
Smart Mobile must therefore provide the requisite guarantees as outlined above and in accordance with the terms and conditions described in the tender document ComReg 05/60 no later than 17.00 on Monday 30th January, 2006. ComReg believes the nature of Smart Mobile Limited’s obligation in respect of the requisite guarantees as outlined above is clear. In this regard, I attach a note in respect of this obligation and would like to propose a meeting between ComReg and Smart Mobile Limited to ensure that there is no confusion in this regard. Jim Connolly of ComReg will shortly contact Iarla Flynn of Smart Mobile Limited to arrange a meeting. ComReg has provided Smart Mobile Limited with a reasonable opportunity to comply with its obligation in respect of the requisite guarantees. Should you fail to provide guarantees acceptable to ComReg by the above date, no further extension of the deadlines will be possible and Smart Mobile Limited will not be awarded the licence. Finally, we welcome your proposal to keep us up to date on developments on a more regular basis.” The Four Meetings At the meeting of 20th December, 2005, a schedule of subsequent meetings was agreed. The purpose of those meetings was to enable Smart to report on progress towards delivering the outstanding elements of its obligations by 30th January, 2006. ComReg made it clear that, if necessary, additional meetings would be scheduled. At this meeting of 20th December, ComReg emphasised the importance of it being furnished with early sight of the draft guarantees that were going to be furnished. Furthermore, the requirement to provide a monitoring programme in advance of the licence being issued was also discussed and Smart agreed to liaise directly with a Mr. Tony Buckley to agree details of the programme. At the second meeting which took place on 6th January, 2006, ComReg began by making it clear that it was essential that Smart understand that there was no possibility of a further extension to the deadline of 30th January, 2006. It also made it clear that it would be prepared to discuss and advise on any elements of the performance bond if it would assist Smart in that regard. It also pointed out that the full amount of the financial guarantees would have to be in place by 30th January, 2006. At that meeting Smart indicated that it expected to have the bonds in place by 27th January, 2006. The next meeting took place on 13th January, 2006. Again it had the objective of discussing progress with Smart with a view to ensuring completion of the 3G licence award process by the fixed date. Smart was again reminded of that date. At that meeting Smart, inter alia, reported that it had signed heads of terms with Huawei, one of its suppliers, on 12th/13th January and that that entity would provide a bond in the sum of €50 million to cover the financial guarantees. Smart personnel also said that discussions were at an advanced stage with B.T. and they hoped to have heads of terms signed with it by 20th January, 2006. At this meeting ComReg urged Smart to provide drafts of the bonds for consideration as soon as possible, and at least during the week commencing 16th January, even if only one bond was available at that stage, in order to allow adequate time for ComReg and the banks to consider any changes. The fourth meeting took place on 20th January, 2006. It began by ComReg again reminding Smart of the ultimate deadline of 30th January. Information was furnished to ComReg as to the progress that had been made by Smart with both Huawei and B.T. At that time it indicated that the proposal was that Huawei would provide a bond in the sum of €50 million to cover the financial guarantees and B.T. would provide €48 million of the remaining part of the bond with the final €2 million being provided by Smart. It said that its intention was that the bond would be provided by the Royal Bank of Scotland and that it had circulated the template bond provided by ComReg to all parties involved in the process. At this meeting ComReg reiterated the requirement that Smart would provide drafts of the bonds for consideration as soon as possible in order to allow adequate time for it and the banks to consider any changes. It stated that the bonds must be in an acceptable state before 5.00 p.m. on 30th January, 2006. At that meeting Smart was also given a copy of a letter which the chairperson of ComReg had sent to Mr. Fanning earlier that day. That letter made it clear that ComReg proposed to issue the licence to Smart on Tuesday 31st January, 2006. That was, of course, subject to the provision by Smart of the performance bonds of €100 million and €7.6 million respectively no later than 5.00 p.m. on Monday 30th January, 2006. The letter also pointed out that ComReg expected Smart to be in a position to pay the wireless telegraphy fees of €1,568,133 on the day of issue of the licence. This had been indicated to Smart at the meeting on 6th January, 2006. The letter finally pointed out that for the avoidance of doubt, payment of those fees was a pre-requisite for the issue of the licence. At the meeting on 20th January, 2006, ComReg acknowledged that it had received information from a firm called Mason’s dealing with an outline of the compliance monitoring programme. That firm promised to provide more detail shortly. After this meeting Mr. Hughes of ComReg wrote to Mr. Flynn of Smart by email. He reiterated that in respect of the performance bonds, if Smart had any queries or wished to discuss them with him they should not hesitate to contact him. He also pointed out that as the deadline for the provision of the performance bonds was on a Monday, namely 30th October, 2006, he would make himself available for discussion over the course of the preceding weekend if required. On 26th January, 2006, Mr. Hughes received a call from Mr. Flynn of Smart. He was informed that the Royal Bank of Scotland slot for approval of any performance bond had been missed. Huawei was to speak to its bank the International Commerce Bank of China. That bank was, he was told, setting up a facility in Ireland or Europe and that latter bank would provide Huawei’s performance bond to ComReg. B.T. Ireland was to speak with the Royal Bank of Scotland. Mr. Flynn believed that that bank would be able to provide B.T. with the requisite performance bond within the time frame. Mr. Flynn also told him that it was likely that Smart would be providing ComReg with a performance bond for 2.25 million. That would probably be issued by Ulster Bank and might be combined with B.T.’s performance bond as Ulster Bank is a subsidiary of the Royal Bank of Scotland. Smart’s objective for that day and possibly the next was to settle both contracts and associated documents with Huawei and B.T. Mr. Flynn promised to update Mr. Hughes that evening but did not have, as of then, any definite time scale in respect of the production of the first draft performance bonds. Mr. Hughes made it clear that he needed to see the first draft performance bonds soon, and he repeated his offer to make himself available for discussion over the course of the weekend. By noon on the following day, Mr. Hughes had been informed that Smart was proposing to provide ComReg with three performance bonds. Two were to come from the Royal Bank of Scotland and one from Ulster Bank. The first was in respect of the obligations of Huawei. The second was in respect of B.T.’s obligations and the third was a bond to be provided by Smart from Ulster Bank. As of then Smart was in negotiations with B.T. Mr. Flynn indicated that he wanted to take Mr. Hughes through the proposed first draft performance bond from Huawei and he was proposing to do that on Friday 27th January, 2006. Such meeting took place at about 1.00 p.m. on that date. The Events of Friday Afternoon, 27th January, 2006 At about 1.00 p.m. Messrs. Casey and Flynn met with Mr. Mark Hughes. They produced for the first time three draft bonds which they gave to him. They are set forth at Appendices B, C and D to this judgment. They only have to be looked at to see how they differed materially from the template bond. The first of these came to be called the Huawei bond and was in respect of a €50 million obligation. The second was called the B.T. bond and covered a sum of €47.75 million. The third was a draft in respect of €2.25 million being Smart’s own obligations. I do not propose to rehearse in detail all that took place at that meeting but I will mention the major points which were of concern and what was agreed at the conclusion of the meeting. Insofar as the Huawei bond was concerned Mr. Hughes immediately identified a problem concerning clause 2. He was of the view that ComReg would have to demonstrate breach of contract by Huawei before they could call the bond. ComReg had no sight of any contract with Huawei and Mr. Casey made it clear that that would not be finalised until the end of February. He also made it clear that because of the Chinese New Year Huawei was not contactable in advance of the 5.00 p.m. deadline on 30th January, 2006. Mr. Hughes also identified a problem in relation to clause 16. That provided that the performance bond would cease to be a continuing security in the event that Smart’s licence was revoked. He indicated that he would have to discuss that internally with ComReg. Mr. Hughes was also told that the tables contained in the first appendix to the bond were for information purposes only. Insofar as the B.T. bond was concerned both Mr. Flynn and Mr. Casey made it clear that B.T’s principal concern was the possible future insolvency of Smart. B.T. wished to have a clause inserted in its bond which provided that in the event of Smart becoming insolvent then the performance bond would cease to be a continuing security (clause 6.3). Mr. Hughes identified the problem at clause 2 of this bond similar to that which he raised concerning clause 2 of Huawei performance bond. The meeting also dealt with the €7.6 million performance bond to be provided by Smart by 5.00 p.m. on Monday 30th January. Mr. Flynn stated that that would be a Bank of Ireland guarantee and he undertook to arrange for Smart’s lawyers to provide Mr. Hughes with the proposed wording in respect thereof. Mr. Hughes stated that, provided that he received an undertaking from a solicitor engaged by the relevant banks to forward to ComReg the original execution pages as soon as possible thereafter, ComReg would accept faxed execution pages of agreed bonds by the deadline of 5.00 p.m. on Monday 30th January. At the conclusion of the meeting Mr. Hughes agreed to revert with comments on the three draft performance bonds given to him. He undertook to do so by 2.00 p.m. on the following day. Six matters required to have action taken upon them at the conclusion of this meeting. In respect of clause 2 of the Huawei bond and clause 2.2(a) of the B.T. bond, Mr. Hughes agreed to speak with his senior legal advisor, Mr. Farr. In respect of the concerns raised by B.T. with regard to the future solvency of Smart, Mr. Hughes agreed to speak with Mr. Commissioner Doherty and determine what ComRegs policy might be in such circumstances. He also agreed to confirm ComReg’s position in respect of the furnishing of the faxed execution pages of the bonds. Mr. Flynn for his part agreed that Smart’s lawyers would provide Mr. Hughes with soft copies of the draft performance bonds and also to arrange for Smart’s lawyers to provide Mr. Hughes with a proposed wording in respect of the €7.6 million performance bond to be provided by Smart on Monday 30th January. Rather than revert at 2.00 p.m. the following day, in fact, telephone contact was made with Mr. Casey later on the evening of 27th. Mr. Hughes thought this more appropriate because of concerns that ComReg had. The telephone conversation took place between Mr. Casey and Mr. Commissioner Doherty and Mr. Hughes. Both Mr. Commissioner Doherty and Mr. Hughes expressed concern that the performance bonds proposed by Smart were not in accordance with the tender document. They made it clear that the tender document in their view envisaged a straightforward performance bond providing that in the event that Smart failed to perform its obligations under its licence the relevant bank would be liable under such a bond in respect of the relevant amounts. They were of the view that Smart was proposing conditional bonds. In order for ComReg to succeed in enforcing them, it would have to demonstrate either failure by Huawei or B.T. to perform obligations under their contracts as yet to be finalised or a failure by B.T. to perform obligations set out in a schedule to its bond. They also made their position clear in respect of what might occur in the event of Smart becoming insolvent. They were of the view that the purpose of the performance bond was to compensate for the resulting cost. They stated that the financial ability of the applicants for the licence had been an issue that was examined in the course of the award process. Licences could only be revoked in two circumstances, namely non-compliance with its terms or an emergency. They took the view that it would not be appropriate for the performance bond to cease to have effect in the event of non-compliance. Mr. Casey did not agree with these interpretations and expressed himself as being comfortable with the legal advice that he had received in support of his view. He went on to say that clause 2 of the draft of the Huawei performance bond was a mis-draft and he did not believe that the draft B.T. performance bond was conditional. Mr. Commissioner Doherty and Mr. Hughes offered to meet with Smart the following day to discuss their significant concerns as identified. Mr. Casey said that he would meet with his lawyer that evening and would revert to them. Mr. Doherty made it clear that ComReg had no objection in principle to Huawei and B.T. underwriting Smart’s performance bonds. Later that evening Mr. Casey spoke to Mr. Hughes by telephone. He said that he would respond to Mr. Hughes in respect of the earlier telephone conversation the following morning at 10.00 a.m. To complete this narrative I should record that in the afternoon of 27th , ComReg received an email from Smart’s solicitors attaching electronic copies of the draft bonds. In a letter of that date from the solicitors enclosing the bond which was headed “Subject to Contract/Contract Denied” the final sentence read:-
Saturday 28th January, 2006 At 10.00 a.m. Mr. Casey telephoned Mr. Hughes requesting ComReg to provide its comments in respect of the draft bonds in writing later that day. Mr. Hughes did so at 4.18 p.m. He did so by means of an email addressed to Mr. Casey which was copied to Messrs. Flynn and Smart’s solicitors. The email set out ComReg’s preliminary view. He undertook that by 6.00 p.m. that evening he would forward Comreg’s final view. If, in the course of his detailed review of the bonds he identified other potentially significant issues, he undertook to provide advance notice in respect thereof. I do not propose to set out in detail the contents of this lengthy email. It is sufficient if I summarise the concerns expressed by Mr. Hughes on behalf of ComReg. ComReg did not object to Huawei or B.T. underwriting the performance bonds to be provided by Smart but took the view that the draft bonds were not acceptable in accordance with part 7 of Appendix B2 of the tender document and part 7 of Smart’s application for the licence. The reasons given for this were as follows:-
3. Clause 2.2(a) of the B.T. and Smart bonds makes enforcement by ComReg of those bonds conditional upon failure by B.T. to perform a contract between B.T. and Smart which ComReg understands from Smart will not be finalised by close of business on Monday 30th January, 2006. For the same reasons set out at 2 above, this is unacceptable to ComReg.
(b) The words ‘more particular’ set out in the definition of ‘performance obligations’ contained in clause 1 of the B.T. and Smart bond. 4. Without prejudice to ComReg’s interpretation of clause 2.2(a) of the B.T. and Smart bond set out above, if clause 2.2(a) of the B.T. and Smart bonds only makes enforcement by ComReg of those bonds conditional upon failure by B.T. to perform obligations to Smart as set out in a schedule to the relevant bonds, this is unacceptable to ComReg because in the absence of a relationship between ComReg and B.T. in respect of performance by B.T. of obligations set out in schedules to the relevant bonds, it is not clear to ComReg how it would obtain the necessary information from B.T. to demonstrate non-performance by B.T. of its obligations set out in schedules to the relevant bonds. 5. Clause 6.3(e) of the B.T. bond provides that in the event that Smart entered into liquidation (save for certain specified purposes) receivership, examination or similar insolvency process and Smart fails to appropriately substitute the bank under the bond within a specified period of time, the B.T. bond shall no longer be a continuing security of the bank. In such insolvency circumstances, the very purpose of the performance bond is to compensate ComReg on behalf of the State. In such circumstances, there is a resulting economic social welfare cost. The financial ability of applicants to provide 3G mobile services in Ireland was a critical aspect of the fourth 3G licence award process. 6. Clause 16(d) of the Huawei bond and clause 6.3(d) of the B.T. and Smart bonds provide that in the event that ComReg revokes Smart’s licence, the bond shall no longer be a continuing security of the bank.
2. The purpose of the performance bond is to compensate ComReg on behalf of the State.
In respect of the possible revocation by ComReg of Smart’s licence in any other circumstances a clause to take account of such an event along the lines proposed in a performance bond would not automatically be included in a performance bond. Therefore, the inclusion of such a clause would not be acceptable to ComReg.” At 6.48 p.m. and 7.38 p.m. Mr. Hughes sent emails to Messrs. Casey, Flynn and Smart’s solicitors setting out ComReg’s position concerning the draft Huawei, B.T. and Smart bonds respectively. The emails were issued with electronic copies of the draft bonds attached which had ComReg’s comments marked upon them. During the course of 28th January, 2006, there were a number of telephone conversations between Mr. Casey and Mr. Hughes. Mr. Casey said he was proposing to have a Smart meeting early that afternoon and a further meeting with its lawyers at about 7.00 p.m. He proposed a deadline of 6.00 p.m. for obtaining the comments of ComReg on the draft. Mr. Hughes attempted to meet that deadline but was unable to do so within that precise timeframe. However, having sent his observations, the latest of which was at 7.38 p.m. on 28th, he made it clear that he was contactable until 10.00 p.m. on that night and from 9.00 a.m. on the following Sunday morning. Mr. Commissioner Doherty was also available if required. In fact, the meeting which was to take place between Smart and its lawyers on the Saturday evening did not occur. Mr. Commissioner Doherty also had communications with Smart personnel during the course of Saturday the 28th of January. The first was with Mr. Casey and followed his conversation with Mr. Hughes which took place at 10.00 a.m. Mr. Casey told Mr. Commissioner Doherty that he’d asked Mr. Hughes to provide a detailed list of ComReg’s issues and concerns in writing and that he wanted them by early afternoon because of the meeting with Smart’s lawyers that was to take place that evening. Mr. Casey said he was convinced that the issues could be resolved and that the Huawei bond clause 2 issue was a case of mis-drafting. However, he said he could not get this corrected before the 30th because the Chinese New Year made contacting China impossible. He suggested that with a side letter from Huawei Europe or Huawei Ireland he would be able to meet ComReg’s requirements. He also referred to clause 6.3 of the B.T. bond and said that was a condition that B.T. had required. Commissioner Doherty told Mr. Casey that both he and Mr. Hughes were available to meet to discuss these issues and any others that might arise. He also told Mr. Casey that he saw value in getting together at an early time. Commissioner Doherty went into ComReg’s office and remained there until about 4.00 p.m. He had a further conversation with Mr. Casey at that stage. He told him that if Smart wanted to meet to discuss any of the issues he would be available to do so. He also told Mr. Casey that he could telephone him at any time. He heard nothing further from Mr. Casey that day or night. He did however receive a text from Mr. Hughes to confirm that he (Mr. Hughes) was not aware of any meeting arranged that day. Sunday 29th January, 2006 At 10.52 a.m. Mr. Hughes emailed Messrs. Casey, Flynn and Smart’s solicitors. He said:-
As you will be aware, in respect of – (ii) the schedules to the draft B.T. and Smart bonds, ComReg has reserved the right to revert with comments in respect thereof. The reason why ComReg has done this is that it was not possible to review these provisions within the time frame proposed by and agreed with Smart. ComReg understands from its meeting with Smart on Friday 27th January, 2006, that these provisions, appendices and schedules should not cause any significant problem.” At 11.11 a.m. Mr. Hughes sent a text messagae to Mr. Casey asking him to call him whenever he (Mr. Casey) wished to discuss matters.
We are very concerned that ComReg now seems to be holding out the prospect of further comments at some (undefined) point. We can’t have this uncertainty so late in the process. We have conferences both with B.T. and Huawei later today and are meeting with our legal team at 6.00 p.m. this evening. To try and make progress we need to have ComReg’s full views as soon as possible.” At 17.48 Mr. Hughes gave the final comments in the course of an email. He referred to the emails of the preceding day as representing ComReg’s full views and went on as follows:-
In addition, it would appear from the draft B.T. bond that it is intended that B.T. and Huawei be jointly responsible for the network roll out and network quality. In respect of schedule 3 to the draft B.T. bond, this is a concern in respect of enforcement of the performance bond, namely proof of default by B.T. Obviously, in such circumstances such proof may be much more difficult.” Mr. Commissioner Doherty had a telephone conversation with Mr. Casey that evening. Mr. Casey again said that he did not believe that the problems could not be solved but that the Chinese New Year posed a challenge in making contact with Huawei. He also stated his belief that the issues with the B.T. bond were capable of resolution. Commissioner Doherty told Mr. Casey of his view that the bonds presented were conditional. Mr. Casey said that they were working hard to meet the requirements but that the time allowed was too short. At that he was reminded by Commissioner Doherty that Smart’s tender had indicated that it would be putting the bond arrangements in place quickly and that ComReg had originally allocated 30 days to do so. That had then been extended by an additional 45 days. He also reminded him that the tendering process clearly identified that the bonds had to be acceptable to ComReg and that the drafts were not. Mr. Casey spoke about bringing legal teams together. At that Mr. Doherty reminded him that he’d offered on numerous occasions to meet over the weekend but at no stage had Smart taken up ComReg’s offer. He also told him that the Commissioners would be meeting early the following morning to discuss the issue. Smart’s Position By Sunday it was apparent to Smart and its personnel that it was in considerable difficulty. By then, the evidence establishes, the draft performance bonds which had been furnished did not have the formal approval of any banks. They contained conditions to which ComReg objected. The bonds were not payable on demand. They contained a substantial number of errors. They provided for the bonds to cease to have effect in the event of Smart’s insolvency or revocation of the 3G licence. All of these provision were wholly unacceptable to ComReg. Smart furthermore knew that from after lunch on 28th January, 2006, it was not going to be possible to have the Huawei performance bonds executed before 5.00 p.m. on 30th January, 2006. In any event it would not have been possible to execute the performance bonds in the form in which they were furnished to ComReg. In the light of this knowledge Mr. Casey sent an email to his colleagues. In the course of his evidence he said that he was not proud of the way in which it was worded. I can quite understand why that should be so. However, he went on to point out that what was articulated in the first paragraph of the email is not what Smart went ahead and did. The email read as follows:-
Last night we received ComRegs marked up responses to the draft bonds. We have sent them to our partners. Based on discussions with them, we now believe there are significant (but not insurmountable) issues that would need to be resolved through the normal course of discussion, clarification and understanding. ComReg have accepted the principal (sic) that Smart will use its two suppliers to underwrite the bonds. It followed that ComReg accepts and understands that Smart will also have to discuss these issues in detail with both those parties. However, given the firm deadline that is in place, we do not believe that we have that time. An analysis of the issues identified – 2. An issue in clause 2 of the Huawei bond where it refers to the works contract. We fully understand ComReg’s position and are confident that this is a drafting issue and not a point of principal (sic). However, because of the Chinese New Year, it would take a week to get it redrafted. There may (be) an acceptable solution involving a supporting letter etc. but this also would take time to resolve. 3. Perhaps the most controversial issues are the ‘insolvency’ and the ‘licence revocation’. Both of these would need time to be further explored both with ComReg and B.T.
In the circumstances we must insist that ComReg accept our bonds in their current form and then grant the licence next week. It should also be noted that notwithstanding the afore mentioned, there are no other significant issues of principal (sic). Everything else is ready to go. On Monday before 5.00 p.m., Smart Telecom can deliver bonds to the value of €100 million, €7.6 million and the cheque for the annual spectrum fees. The fundamental problem is that ComReg has raised issues which cannot be resolved in time.” Monday 30th January, 2006 The commissioners of ComReg met on the morning of the 30th January. They were briefed by Commissioner Doherty and Mr. Hughes on what had taken place over the weekend. They also heard the legal advice of Mr. Hughes and Mr. Farr. They decided that the draft bonds were unacceptable for the reasons which had been outlined by Mr. Hughes to Smart personnel over the weekend. It is important to note that apart from the draft bonds that had been provided on the preceding Friday, no other drafts were forthcoming from Smart. The position of Smart became even more uncomfortable as a result of a conversation between Mr. Flynn and Mr. Hughes which took place at 9.30 a.m. on this day. Mr. Flynn informed Mr. Hughes that the draft performance bonds which had been provided in electronic form by Smart’s solicitors on Friday 27th January, 2006, were not the most up-to-date versions and differed from the hard copy versions provided to ComReg earlier on the same day. Needless to say this situation was regarded very reasonably by Mr. Hughes as being totally unsatisfactory. He had reviewed the draft performance bonds provided to him in soft copy and had provided comments in respect of them. Most of his weekend had been spent reviewing these documents. It had never been suggested that the bonds were not the most up-to-date version. He indicated that he now had no idea what changes existed between the two versions of the performance bonds. Mr. Hayes queried the course of action which Smart was now going to take. Mr. Flynn made it clear that Smart was now contending that it was ready to provide ComReg with the necessary performance bonds but that ComReg had identified significant concerns in respect of them. Smart did not believe that there was enough time before the 5.00 p.m. deadline that day to address these concerns. No application for an extension of time was made by Smart. At 12.00 noon on 30th January, a telephone conversation took place between Mr. Connolly and Mr. Hughes of ComReg and Mr. Casey of Smart. There, ComReg reiterated its position that the draft performance bonds were not acceptable and that the deadline of 5.00 p.m. on that day remained the final deadline in respect thereof. Indeed it could not be otherwise as there was no application made for an extension of time by Smart. ComReg personnel also requested a “compare write” document in order to assist it in comparing the performance bonds which had been sent in electronic form and the copies which had been given to Mr. Hughes on 27th January, on the preceding Friday. That request was not acceded to and no such document was provided. Despite its absence, Mr. Hughes carried out a physical comparison between the appendices in the hard and soft copy. There were no materially significant differences and the draft bonds in this form were equally unacceptable. At 12.45 p.m. a telephone conversation took place between Mr. Hughes and Mr. Casey. Mr. Casey stated that Smart did not propose to execute the bonds if it remained likely that they would continue to be unacceptable to ComReg by the deadline. This was because of the financial cost to Smart of executing the bonds. At 13.37 Mr. Casey sent Mr. Hughes a text message saying “Bonds are as handed to you last Friday”. There followed a phone conversation between these two men during which Mr. Casey reiterated the refusal to supply the compare-write document. He said his legal advisors had more significant issues to address. The 5.00 p.m. deadline came and went. No executed performance bonds were presented to ComReg in any form, still less in a form acceptable to ComReg, by the deadline. Events Post 5.00 p.m. Smart did indeed “go legal”. Shortly after 5.00 p.m. a letter was sent to ComReg by it’s solicitors. That letter set out steps which Smart had taken with a view to fulfilling its obligations. The letter stated inter alia:-
Having regard to the foregoing the imposition of the deadline of 5.00 p.m. this evening is unrealistic and unreasonable. In the event that ComReg refuses to enter discussions on this issue, the company with regret will be left with no alternative but to conclude that ComReg does not wish to be reasonable and to act reasonably in accordance with its statutory obligations in this matter. Accordingly if the matter cannot be resolved reasonably with ComReg the company must proceed to another forum.” The letter went on to threaten that High Court proceedings would be instituted seeking as their primary relief specific performance of the contract which had already allegedly been part performed by the company. Events from 31st January, 2006 Onwards On the morning of the 31st January, 2006, the commissioners of ComReg met. They were briefed by Messrs. Farr, Hughes and Connolly. No application for an extension of the deadline had been made to them and it had now expired. They did not extend the deadline. The commissioners did however decide to give Smart the opportunity of meeting them so that Smart could outline its position and provide information as to whether it could produce bonds acceptable to ComReg and if so when. Commissioner Doherty contacted Mr. Fanning and that meeting was arranged. That meeting took place on 2nd February, 2006. All three commissioners, together with other personnel from ComReg were present. Messrs. Fanning, Casey and Flynn represented Smart. At that meeting Smart was asked whether it could produce performance bonds in a form acceptable to ComReg and if so within what time period. That question was never answered. I accept Commissioner Doherty’s evidence in this regard. Instead Smart claimed that it was confident and had strong legal advice to the effect that the provisions in the performance bonds regarding insolvency and revocation ought to be acceptable. Whether the term “show stopper” was used or not (and I believe it was), it is clear from Mr. Casey’s evidence that Smart “held our position with regard to our justification for including insolvency and revocation of licence”. At the meeting Smart provided ComReg with a document in respect of the €7.6 million financial guarantee. No extension of time was sought by Smart during the course of this meeting. No indication was given as to whether it would provide bonds in an unconditional form acceptable to ComReg. Smart maintained its position concerning both insolvency and revocation. Subsequent to the meeting the commissioners met with their in-house advisors. The commissioners took the view that nothing said by the Smart personnel gave them any confidence that it would be able to come up with bonds acceptable to ComReg. The commissioners decided to obtain outside counsels’ advice on the draft bonds proffered. They then sought from Smart an unconditional extension of time in respect of the threat of proceedings. A week (until 10th February) was sought and granted. The terms upon which that weeks extension was granted were set out in a letter from Smart’s solicitors the relevant part of which reads as follows:-
The new extension of time ran out on 10th February, 2006. On the preceding day, after further discussions between the commissioners, Mr. Fanning was contacted and an extension of the deadline to the 13th February was sought. The necessity for this was in part due to Commissioner Doherty’s absence from the country on business during the intervening days. The extension was agreed to by Mr. Fanning but he expressed concern about the lack of engagement that had taken place. On 9th February, 2006, Mr. Flynn sent to Mr. Connolly an email setting out what he described as a “first cut” at a document which described how the performance management process might work. Such a document was attached to the email. It was on that date Smart agreed to forbear from issuing any proceedings until Monday 13th February, 2006. There was also an email sent from Mr. Connolly of Smart to Mr. Hughes of ComReg on 9th February, 2006. This was forwarded by Mr. Hughes to the commissioners. On the 9th February, the ComReg commissioners decided that Mr. Fanning should be contacted again on whether the issue of insolvency of Smart as dealt with in the bonds was a deal breaker or not. Mr. Fanning’s response was to confirm that that was so. He rehearsed the issues in relation to inclusion of the insolvency clause which had been dealt with at the meeting on 2nd February. He added that he believed that, while difficult, the issue was not insoluble or a deal breaker provided that ComReg was willing to work with Smart and allow them sufficient time to amend the bonds. Commissioner Doherty said he would communicate those comments to his fellow commissioners. Within half an hour he had a phone call from Mr. Casey who stated his belief that Smart could meet ComReg’s needs on the issue. Mr. Casey expressed unhappiness with the degree of dialogue that had taken place and suggested that ComReg and Smart should get together and move to process forward. On 10th February, 2006, Smart’s solicitors wrote to ComReg recording Smart’s disappointment with the level of interaction between ComReg and Smart in seeking to resolve the outstanding difficulties with regard to the performance guarantees. The letter also invited ComReg to have the issues surrounding the performance bonds determined by an independent expert whose decision would be final and binding. This was not a course which was acceptable to ComReg. The 13th February was the date upon which the extension granted to ComReg by Smart expired. The commissioners met that day to consider the position. They had been briefed by Mr. Commissioner Doherty on the conversations which he had had with Messrs. Fanning and Casey on the 9th February. They were also in receipt of counsel’s advice on the terms of the draft performance bonds which had been proffered. They considered that, together with the explanations which had been given, and the matters communicated by Smart personnel at the meeting on the 2nd February and subsequent thereto. The commissioners decided that the draft bonds which had been proposed were correctly regarded as unacceptable. No acceptable bond had been provided prior to the 30th January deadline. No extension of time had been sought for that deadline. As far as matters subsequent to the deadline were concerned they were not satisfied that Smart could or would provide bonds acceptable within a reasonable timeframe. I accept the evidence which was given to the court that in reaching their conclusion, the commissioners took into account the necessity that the tender process should be conducted in a transparent, non discriminatory and open fashion. They were also mindful of the necessity of maintaining the integrity of that process. They considered whether they ought to extend the deadline further to see if Smart could come up with bonds acceptable to them. However, they concluded that adequate time had been allowed to Smart to deliver its commitments in relation to these bonds. Therefore, as it had not provided performance bonds by the extended deadline of 5.00 p.m. on 30th January, 2006, it had failed to meet the terms of the tender process and would not be awarded the licence. The letter mentioned in the first paragraph of this judgment was accordingly sent to Smart. Events Subsequent to 13th February, 2006 Smart was as good as its word in instituting proceedings. On 14th February, 2006, proceedings were instituted and an application for an interim injunction was made to Laffoy J. That injunction was granted. The proceedings were taken only against ComReg. The reliefs sought were as follows:-
2. Alternatively, (a) A declaration that having selected the plaintiff as the successful tenderer for the 3G licence the defendant was and is obliged to give the plaintiff a reasonable period of time to comply with the terms and conditions (additional to those set out in the defendants tender document) which the defendant has sought to impose on the plaintiff as the successful tenderer for the 3G licence; (b) A declaration that the defendants deadline of 30th January, 2006, for the plaintiff to comply and satisfy the said additional requirements specified by the defendant for the performance guarantees to be provided by the plaintiff to the defendant is unreasonable; (c) A declaration that the said additional requirements specified by the defendant for the performance guarantees requested from the plaintiff are unreasonable; (d) A declaration that the defendant is not entitled to treat its negotiations with the plaintiff for the award and subsequent grant to the plaintiff of the said licence as being at end until such time as the plaintiff has been afforded a reasonable period within which to satisfy the defendants additional requirements in relation to the said performance guarantee or to proffer appropriate alternative proposals; 3. An order restraining the defendant, its servants or agents from:- (a) Awarding the licence, the subject matter of these proceedings to any other party; (b) Treating its negotiations with the plaintiff for the award of the said licence as being at an end, and/or (c) Entering into negotiations with any other party for the award of the said licence pending further order of this honourable court; 4. If necessary an order of specific performance of the contract concluded between the plaintiff and the defendant in respect of the 3G licence; 5. Such further and other declaratory and injunctive (including interim and interlocutory) injunctive relief as this honourable court may deem fit, 6. Damages for breach of contract, 7. Damages for unlawful interference with the plaintiffs economic relations, 8. Damages for negligence and breach of duty including breach of statutory duty, 9. Interest pursuant to the Courts Act, 1981, as amended, 10. Costs.” ComReg delivered its defence on 13th March, 2006. On the same day I heard an application brought by it which sought an order directing that those parts of Smart’s case which arose under public as distinct from private law should be brought by way of an application for judicial review. I delivered an ex tempore ruling on that date refusing that application. It was accepted that Smart’s case fell to be considered both by reference to private law and public law considerations. Eircom was given the opportunity to apply to be joined in the proceedings if it wished. It did so and was permitted to defend the public law issues which arose for consideration. In the meantime the injunction granted by Laffoy J. was continued and remains in place. The action, which was originally scheduled to last for four days but in fact lasted for four weeks, came to trial in July, 2006. Changes in Smart’s Case Right up to the opening of the trial, Smart continued to assert its entitlements to have the contract allegedly made between it and ComReg specifically performed. That was the primary relief sought. It was asserted in pleadings, at the hearing on the 13th March and in the pre-trial written submissions. It was abandoned during counsel’s opening of the case. It is difficult to see how at any stage it could have been successfully asserted that there was an enforceable, binding, contractual obligation capable of being specifically performed in existence between Smart and ComReg. The action proceeded only in respect of any public law entitlements which Smart might have. The abandonment of the specific performance claim was not the only shift in Smart’s stance during the trial. Much of the public law declaratory reliefs were also abandoned or not pursued. In effect the only part of the relief sought which is now pursued is that set out at para. 2(d) of the prayer of the Statement of Claim. That is a declaration that ComReg is not entitled to treat its negotiations with Smart for the award and subsequent grant to it of the licence as being at an end until such time as Smart has been afforded a reasonable period within which to satisfy ComRegs additional requirements in relation to the performance guarantee or to proffer appropriate alternative proposals. In the light of this limited relief which is now sought it is not necessary for me to consider all of the legal submissions and authorities which were contained in the original written submissions of the parties. It is a pity that the decision to abandon the specific performance claim was not notified prior to the opening day of the trial as much time and effort might have been avoided. That is not however the only troubling matter concerning the conduct of Smart in relation to this litigation. Affidavit evidence was put before the court in order to obtain the interim injunction. Mr. Casey, in the course of that affidavit, swore that Smart had furnished to ComReg in draft form three separate performance guarantees in the aggregate sum of €100,000,000. He said:-
I will consider this aspect of the matter later in this judgment. Smart’s Case in Law The entire of Smart’s case is now focused on the relief claimed at para.2(d) of the prayer to the statement of claim. That in effect amounts to an assertion by Smart that it has some entitlement at law to compel ComReg to continue to negotiate with it beyond the expiry of the extended deadline of 30th January, 2006. It is accepted that such legal rights as Smart may have in this regard do not derive from private law. If they exist, they have their roots in public law concepts. Smart’s case is that in behaving as it did, ComReg was unreasonable and disproportionate and was in breach of obligations which it owed to Smart. All of that will have to be considered having regard to my findings on the facts of the case which I will deal with in the next part of this judgment. But before commencing that voyage it is necessary to identify the legal landmarks which will guide the journey. First, ComReg is a statutory body which must keep faith with the obligations imposed upon it. Section 12 of the Communications Regulation Act, 2002, provides that in relation to the provision of electronic communications networks it ought to promote competition and contribute to the development of the internal market. In respect of those objectives it is obliged to take all reasonable measures which are aimed at achieving them. It is furthermore enjoined in carrying out its functions to seek to ensure that measures taken by it are proportionate having regard to the objectives set out in s. 12. ComReg is also governed by a series of regulations, namely The European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations, 2003; The European (Electronic Communications Networks and Services) (Framework) Regulations, 2003 and the Wireless, Telegraphy (Third Generation and GSM Mobile Telephony Licence) Regulations, 2002 and 2003. In deciding upon the grant of a licence ComReg is required, pursuant to Regulation 9(4) of the Authorisation Regulations to –
There are many other obligations imposed upon it pursuant to these regulations dealing with inter alia procedures, extensions of time, payment of fees and the competitive tender. It is not necessary to set them out here in any detail because there is now no complaint made concerning the procedure which was followed, the times fixed, or the conduct of the competition up to and including the 30th January, 2006. Smart relies on a relatively small number of decisions of the courts of this jurisdiction in asserting its legal entitlements. The first is the decision of the Supreme Court in TV3 v. Independent Radio and Television Commission [1994] 2 I.R. 439. There Egan J., speaking for the Supreme Court said as follows:-
Section 4(2)(b) of the Act of 1998, imposed an obligation on the Commission to enter into a contract with the person or persons who would have ‘the right and duty to provide a television programme service’. In accordance with the provisions of s. 6 of the Act, as extended by s. 18 of the Act of 1990, the Commission had determined that the consortium was the most suitable applicant to be awarded the contract. I am satisfied that the applicants received a benefit of some description from their selection or acceptance in pursuance of a statutory authorisation. However one might describe it, it was some kind of legal right which no other person or body could claim. It might not ultimately lead to completion of a final contract containing specific and suitable terms but, quite clearly, there was a right to negotiation with the Commission with such an end in view. The decision taken by the Commission on 29th October, 1999, was a unilateral decision to deprive the applicants of the right to continue all negotiations. The decision was an administrative one made by a commission which was created by statute and it was not seriously contended that it could be made without complying with the requirements of natural and constitutional justice.” Smart also relies on Radio Limerick 1 Limited v. Independent Radio and Television Commission [1997] 2 I.L.R.M. 1 where Keane J. said:-
Smart also relies upon Dunnes Stores Ireland v. Ryan [2002] 2 I.R. and in particular the dictum of Murray J. where he said:-
2. Reasons are given for a decision, 3. The decision to do so is rational and neither arbitrary or disproportionate.” They also rely upon the observations of Hardiman J. in Meenan v. Commission to Enquire into Child Abuse [2003] 3 IR 283 where he approved the agreement between the parties to the effect that statutory powers require to be exercised proportionately and quoted the well known dictum of Costello J. in Heaney v. Ireland where that judge stated that the means chosen to restrict the exercise of a right must –
It contends that that is not the position here. It says that it did not know that insolvency and revocation clauses in the bonds would be objectionable and was never in a position by virtue of this fact to provide a bond acceptable to ComReg. ComReg and Eircom accept that ComReg operates on foot of a statutory regime which is prescribed both by the Acts setting it up and the regulations made thereunder. They contend that much of the case law which is relied upon by Smart has little or no application having regard to the facts of this case. They contend that there was nothing irrational, unreasonable or disproportionate in the way in which ComReg behaved. In fact they argue that everything that it did was in compliance with any legal obligations imposed upon it and that, in some respects at least, it went beyond what might reasonably be required of it. They also point out that the court is here being called upon to review a decision of a public body on public law principles. Both the standard and the scope of review in such circumstances is clearly limited. They point out the oft repeated dictum of Lord Brightman in R. v. Chief Constable of North Wales Police, ex parte, Evans [1982] 1 WLR 1155 that:-
They also point out the high threshold that has to be surmounted by Smart in asking the court to interfere with the decision of ComReg. In O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, Finlay C.J. said:-
(b) It is satisfied that the case against the decision made by the authority was much stronger than the case for it.” On this line of argument they also called my attention to a decision of Clarke J. of 21st June, 2006, in Ashford Castle v. SIPTU where he said:-
I am satisfied that as a statutory body ComReg must conduct its business in accordance with its statutory mandate. It must not purport to exercise powers which it does not have. In the exercise of such powers as it does have, it must act fairly, proportionately and in a manner which conforms to its statutory purposes. I also accept that having been chosen as the winner of the competition Smart was to use the words of Egan J. in the TV3 Case the beneficiary “of some kind of legal right which no other person or body could claim”. ComReg’s behaviour towards Smart has to be examined with a view to ensuring that it has complied with its obligations in these regards. In asking this court to intervene Smart relies only on public law entitlements. That being so, the standards which must be achieved by a successful applicant in judicial review proceedings must be attained by Smart. The court must also be astute to ensure that it does not exceed its function by acting as an appeal court from the regulator’s decision and still less seek to sit in the regulator’s chair and so trespass into an area in which the court has neither competence nor expertise. I also accept that the observations of the Supreme Court in S.I.A.C. Construction Limited v. Mayo County Council are relevant to my consideration. Expert Evidence In accordance with the normal practice of the commercial court each side was notified of the witnesses intended to be called by the other. They were also furnished with a statement of the evidence which it was intended to adduce from such witnesses. Smart tendered a witness statement from a Mr. Andrew Brown. He is a chartered accountant and director of the Dublin office of K.P.M.G, an international firm of accountants and business advisors. He heads that firm’s forensic accounting department. In the course of his witness statement he advanced a number of propositions. They included contentions that the purpose of the financial guarantees underpinned by performance bonds was punitive in nature and not compensatory; that ComReg’s requirements were unclear; that the draft performance bonds met the requirements of the tender; that the bonds offered to ComReg were entirely consistent with the requirements set out by ComReg in its tender. He also proposed to give evidence that Smart was not given clear guidance at a sufficiently early stage of the post tender award process to enable it to ensure that the performance bonds met with ComReg’s requirements. Smart also furnished a witness statement from a Mr. Andrew Wright, an expert on the role of performance guarantees in the licensing process. He also, inter alia, expressed the view that the draft guarantees were adequate and in the absence of a detailed specification ought to have been accepted by ComReg. Neither of these witnesses were called to give evidence. That decision was made in the full knowledge of the fact that ComReg intended to call its own expert, Mr. Tom Murray. In addition Smart did not call any witness from Huawei, Huawei’s bankers, B.T., B.T’s bankers, or its own bankers, Ulster Bank, concerning the issue of the bonds. I am asked to infer from Smart’s failure to call any of these witnesses that they had no evidence which might help Smart’s case and indeed that Smart was not in a position to support the assertions, both made in the pleadings and the draft statements of evidence. In Fyffes v. D.C.C. and Others [2005] 1 I.E.H.C. 477, Laffoy J. had to consider such a proposition. In that case, Fyffes argued that the court should draw inferences from the failure of the defendants to call witnesses on key issues in the case. She considered that the principles outlined in the Wisniewiski v. Central Manchester Health Authority [1998] Lloyd’s Reports Med. 223 provide helpful guidelines for the court. The principles in question were set forth by Brooke L.J. as follows:-
2. If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call witnesses. 3. There must, however, have been some evidence, however weak, by the former on the matter in question before the court is entitled to draw the desired inference: in other words there must be a case to answer on that issue. 4. If the reason for the witnesses absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or modified.” Smart offered no explanation for the decision not to call Messrs. Brown or Wright. The expert called by ComReg was Mr. Tom Murray. He has 42 years experience in banking in Ireland and the United Kingdom. That includes more than 25 years experience in corporate banking. He is a retired managing director of corporate banking with Bank of Ireland. His evidence was uncontroverted. He was an impressive witness and I accept his testimony in its totality. I now set forth my findings and the conclusions which I have reached having regard to the evidence, both oral and documentary. Findings and Conclusions Introduction Smart’s bid for the 3G mobile phone licence was an ambitious one. Smart so described it. It was no mis-description. Smart was aware from the outset of how important it was to offer attractive voluntary performance targets as part of its bid. Those targets had little meaning unless they were backed by a financial guarantee which in turn had to be secured by either a cash deposit or a performance bond or bonds. Smart never opted to make a cash deposit in support of its bid. That would have required the lodgement of €100 million. Instead, such efforts as were made, involved the procuring of bonds. In its tender document ComReg made clear the importance of such performance bonds from the point of view of achieving marks in the competition. But the real importance of the bonds was to provide a recourse for ComReg in the event of Smart failing to perform its obligations. Bond Requirements In its tender document, and indeed in other documents to which I have already referred, ComReg made it clear that the bonds had to be in a form acceptable to it and be payable on demand. That is, in my view, clear from the documentary evidence which I have already reproduced in this judgment and is supported by the evidence of Mr. Murray. He regarded the tender document as being clear and unambiguous both as to the requirements of ComReg and its intent in seeking such bonds. I accept his evidence. Even without that evidence, however, it seems to me that a fair reading of the relevant documents makes ComReg’s requirements clear. Indeed I believe that their requirements were so understood by Smart. For example, Mr. Casey, on the third day of the hearing said:-
Question 221 –
Question 222 –
Question 223 – “Unconditionally?” Answer – “Conditional on performance failure.” Question 224 – “Unconditionally vis-a-vis the bank?” Answer – “Yes.” Question 225 –
I find that Smart’s commitment to ComReg was to provide it with unconditional performance bonds payable on demand in a form acceptable to ComReg. Time It was clear from the tender that ComReg intended to issue the licence within a short time after it decided on the successful tenderer. It was obvious to the contestants that they would be required to have their performance bond or bonds in place within a relatively short time. When Smart was offered the licence, ComReg stipulated a period of 30 days (to 16th December, 2005) for Smart to furnish the performance bonds in the amount of €100 million in a form acceptable to ComReg. I am satisfied that that period of 30 days was reasonable. I am fortified in that view by –
(b) The evidence of Mr. Murray that normal banking practice for the provision of such bonds would usually operate in a timeframe of 14 to 21 days. Whilst Smart hoped for a longer extension of time it accepted the one granted and made it clear that it would work to whatever deadline was fixed by ComReg. It never contended prior to this action that such an extension was unreasonable. At each of the weekly meetings which took place, up to and including 20th January, 2006, Smart was reminded of the deadline of 30th January. It was aware that failure to meet that deadline would result in the termination of the offer of the licence. That is abundantly clear from the evidence of Mr. Casey. The Template Bond On 22nd November, 2005, Smart was given the template bond. It was in the form of an unconditional demand bond. It did not provide for its termination in the event of a revocation of Smart’s licence or its insolvency. It is of course true that Smart was informed that the bond to be provided by it did not have to mirror the template precisely. However, it was told that the template covered the key elements which would be of interest to ComReg in accepting any such guarantee or bond. I am satisfied that it must have been apparent to Smart that any deviation of substance from the form of that template would amount to a major departure from what ComReg had stipulated would be acceptable to it. The template bond was in Smart’s possession from as far back as the 22nd November, 2005. Not merely did ComReg provide the template bond but at meeting after meeting it consistently asked Smart to provide draft performance bonds to it as soon as possible so that any problems with them could be identified and rectified in advance of 30th January, 2006, deadline. I am satisfied that ComReg did all that it could to assist Smart in meeting its obligations in this regard. Smart’s undertaking to provide the performance bonds was a big factor in it winning the “beauty competition”. One might have thought that Smart would make very sure that it would comply with its obligations concerning these bonds in a timeous fashion. Whilst I heard a good deal about the difficulties that were encountered by Smart, the plain fact which emerges from the evidence concerning its obligations regarding these bonds up to the 27th January, 2006, can be summarised as follows.
2. Notwithstanding Smart’s undertaking to consult with ComReg as to the form of the bonds as soon as the licence was announced, it failed to do so. No engagement was possible concerning this topic before 27th January because of Smart’s failure. Smart was solely responsible for this. 3. The drafts furnished on the 27th January were the first drafts. 4. ComReg held regular meetings prior to the 27th January, 2006, to discuss any issues concerning the licence but Smart made no enquiry as to whether provisions in the bonds regarding insolvency, revocation or conditions as to the performance of third party contractors would be acceptable to ComReg. 5. Smart did not honour its obligation to consult with ComReg as to the form of the bonds as soon as the licence was announced. The Draft Bonds The draft bonds which were presented to ComReg on the 27th January, 2006, differed substantially from the template which ComReg had provided. The bonds were conditional and did not in my view meet the requirements of the tender document. My views in this regard are supported by the evidence of Mr. Murray. Apart from the fact that they contained clear errors they were not, in my view, payable on demand and contained conditions to which ComReg was justly entitled to object. They also contained conditions which would render them useless in the event of Smart’s insolvency or the 3G licence being revoked. ComReg was correct to refuse to accept these limitations. In a word the draft bonds were not unconditional demand bonds, i.e. the equivalent of cash, and were not acceptable to ComReg. In making it clear that they were not acceptable ComReg was within its rights. Events Over the Weekend the 28th and 29th January, 2006 Commissioner Doherty and Mr. Hughes made themselves available throughout the weekend to meet with Smart personnel. Smart did not avail itself of such an opportunity. Smart did not enquire from either B.T. or Huawei as to whether they were prepared to drop the insolvency condition. No alternative draft of the performance bonds was furnished to ComReg. The evidence is also clear to the effect that the draft performance bonds when presented to ComReg did not have the formal approval of any bank. Monday 30th January, 2006 Smart did not furnish any executed performance bond, still less one acceptable to ComReg in advance of the deadline. The consequence of its failure to do so was well known to Smart and its personnel. It had been spelled out to them on many occasions. Smart was not in a position to furnish executed bonds in a form acceptable to ComReg by the deadline. In my view, Smart was entirely responsible for that state of affairs. No blame can be attributed to ComReg in that regard. Smart’s Tactics A deliberate decision was made by Smart not to request a further extension of time from ComReg. It is difficult to understand why that was so. Whilst ComReg made its position concerning the deadline very clear it had nonetheless already behaved reasonably in granting previous extensions of time. If matters were as far advanced as Smart sought to assert there was nothing to suggest that ComReg would behave unreasonably in relation to such a request. Instead a different tactic was adopted. It was the “go legal” one. That expression was used in the email sent by Mr. Casey to his colleagues on Sunday 28th January, 2006. Despite his evidence to the contrary I am satisfied that, in part at least, the strategy and tactics set forth in the first paragraph of that memorandum were in fact put into operation by Smart. Smart did indeed attempt to give the impression that it was in a position to execute the bonds and it made threat of legal proceedings in support of that. The evidence satisfies me that Smart was indeed attempting to “engineer” a situation where ComReg would, of its own motion, feel forced to offer an extension of the time period without any request in that regard from Smart. In order to produce such a result ComReg had to assert that the bonds that they had produced were fit for purpose and should be acceptable to ComReg. That is what they did and threatened legal proceedings if ComReg did not agree. Smart’s solicitors letter of 30th January, 2006, was incorrect when it asserted that the performance guarantees had been approved by the requisite banks. No formal approval of the performance bonds had been given by any bank. In short, Smart attempted to engineer an extension of time in circumstances where it knew that the bonds which it proffered were unacceptable to ComReg and in any event were not in a position to be executed because they had not even been approved by the relevant banks. Events Post 30th January, 2006 Faced with Smart’s failure to meet the deadline and the threat of litigation ComReg decided to consider if its approach in respect of the deadline and the unacceptable nature of the performance bonds was reasonable. It sought outside legal advice. ComReg also decided to give Smart an opportunity to explain its position and to make representations to it. That took the form of a meeting which was held on 2nd February, 2006. I am satisfied that at that meeting ComReg specifically asked Smart whether and when it could furnish performance bonds acceptable to ComReg. It never received a satisfactory answer. Indeed it is quite clear from the testimony of Mr. Casey that Smart “held our position with regard to our justification for including insolvency and revocation of licence”. Smart did not furnish any bonds, either in draft or executed form, to ComReg in the period following this meeting of 2nd February. Neither did it confirm to ComReg that it could, and would, provide bonds that were acceptable to ComReg. On 9th February, 2006, Smart indicated that it might be prepared to move on insolvency and revocation. That response however, has to be seen in the context of Mr. Fanning standing firm on those issues only to be followed by a phone call from Mr. Casey within half an hour stating his belief that Smart could meet ComReg’s needs on this issue. That suggestion however was made without consultation with either B.T. or Huawei. It also has to be seen in the light of the suggestion made on the following day that the matter be dealt with by binding arbitration. That suggestion was also made without any agreement being obtained from either B.T. or Huawei or their banks. ComReg’s Position Having regard to the principles applicable and to the case law to which I have already referred I am unable to identify any right or entitlement on the part of Smart that was breached by the way in which ComReg dealt with it. On the contrary it appears to me that ComReg at all times behaved in a perfectly reasonable way and gave ample opportunity for Smart to put its house in order. I cannot detect any breach of principles of non-discrimination, transparency or proportionality in the approach of ComReg. In my view it acted lawfully. Smart’s misfortunes are of its own doing. It cannot, in my opinion, point the finger at ComReg. It did not satisfy the conditions for the award of the licence within the times provided, or indeed at all. The provision of appropriate bonds was a matter of major importance. The failure by Smart to meet its obligations in their regard had to be viewed very seriously by ComReg. It did so in a reasonable and lawful fashion. Overall I get the impression that Smart is a company whose ambitions outstripped its abilities. It set about making up for that deficit by a policy of bluff, bluster and threat. It did not work. Not merely did it fail to produce executed bonds by the deadline but it also failed to put the monitoring and measuring programme in place. Indeed, even in respect of the guarantee which Smart was obliged to provide for its instalments of the spectrum access licence fee, I note that it was not until late in the evening of Friday 27th January, 2006, that Anglo Irish Bank was contacted by Smart in that regard. The facility letter was not signed until 31st January, 2006, although the evidence is that its terms were agreed and accepted by the bank on 30th January. This last minute attention to even this arrangement is indicative of the general unsatisfactory approach of Smart. In my view, ComReg did all that it could to assist Smart in attempting to meet its obligations. In particular Mr. Hughes and Commissioner Doherty went to great lengths to facilitate it. I have already rejected the suggestion that there was any ambiguity or lack of clarity in what was required of Smart having regard to all of the information provided to it by ComReg. I likewise reject the late-in-the-day suggestion made that because ComReg adopted a different approach to bonds in respect of Hutchinson and O2 that there was either ambiguity as to its requirements here or that it was obliged to adopt a similar approach in this case. In these circumstances I decline to grant any declaration to the effect that ComReg was not entitled to treat its negotiations with the plaintiff for the award of the licence as at an end or that Smart is entitled to any further period within which to satisfy ComReg’s requirements. Judicial Discretion The relief which is sought by Smart is declaratory. The grant of declaratory relief is a matter for the discretion of the court. I have already refused it. Lest however I am wrong in so doing, I propose to express my views as to whether, even if Smart had made out a case, the court ought as a matter of discretion to grant the declaratory relief sought. If I had found in favour of Smart on the substantive claim I would have been disinclined to grant the declaration sought. This is because of the behaviour of Smart, both in its dealings with ComReg and with this court. I do not find its methods of trying to solve its problems in the least bit attractive. Part of the tactics set out in the email of Mr. Casey, of 29th January 2006, were, in my view, carried into effect. The deliberate attempt to try and “engineer” a situation where ComReg would feel pressured to grant a further extension of time was not an honourable way to behave towards it. Assertions were made in support of this approach which were not correct. That in particular arose in the material which I have already identified from Smart’s solicitors of 30th January, 2006. Whatever about the approach adopted by Smart towards its regulator, it is an entirely different matter when it comes to dealing with the court. From the outset Smart asserted its entitlement to a decree of specific performance. It was never in a position to provide bonds fit for purpose and had not obtained, either from its banks or its partners, the necessary approval in respect of them. It could never have obtained a decree of specific performance and such should not have been claimed. I deprecate the obtaining of an ex parte interim injunction on the basis of sworn material which, in one important respect, was simply untrue. I have already identified that averment earlier in this judgment. I cannot see how such an averment could have come to be made by the deponent. There might be some explanation if the affidavit had to be sworn in great haste. Such was not the case. The application to Laffoy J. came at the end of a moratorium of in excess of ten days which gave ample time to ensure that all of the facts deposed to were correct. Whilst an apology was tendered for this during the trial that does not remedy the position. Apart from the specific performance claim other claims were maintained right up to the trial. Many of them were abandoned or not pursued amidst a number of shifts in position which occurred during the course of the hearing. I do not believe that Smart dealt with ComReg in an appropriate fashion. Neither did it do so with the court. In such circumstances, even if I had found that there had been some breach of Smart’s entitlements I would have required a lot of persuasion before I would have been prepared to grant declaratory relief. A Final Matter It is suggested that by refusing the relief sought, Eircom will be the beneficiary of the licence. It is not now a new entrant to the market. Thus an enhancement in competition in the 3G market will be frustrated. Such a result does not assist in achieving the purpose of the relevant legislation, it is said. This court cannot usurp the function of ComReg, nor should it. Having dismissed Smart’s claim it is now a matter for ComReg, and it alone, as to what should occur in relation to the competition. Result The action is dismissed. Approved: Kelly J. APPENDIX A TEMPLATE BOND DRAFT GUARANTEE TO: The Commission of Communications Regulation having its registered office at Block DEF, Abbey Court, Irish Life Centre, Lower Abbey Street, Dublin 1 (hereinafter called the “ComReg” which expression shall include its successors, and permitted assigns or transferees). WHEREAS
(B) In the 3G licence, the Company will commit to certain voluntary performance targets or guarantees, supported by financial guarantees (each a “Company Financial Guarantee”) and secured by a performance bond to be provided by a financial institution in favour of the ComReg. (C) This Guarantee is the performance bond referred to in paragraph (B) above. For the purposes of this Guarantee:
“Business Day” means any day on which commercial bands are generally open for business in Dublin; “Demand” means a demand in writing made in the form of Schedule 1 hereto which complies with the provisions of clause 3 hereof; “Indebtedness” means all amounts due but unpaid by the Company to the ComReg under any Company Financial Guarantee and which shall not exceed for any Company Financial Guarantee the amount set out in Column 3 of Schedule 2 hereto; “3G Licence” means the 3G Licence issued by ComReg to the Company under Section 111(2) of the Postal and Telecommunications Services Act 1983 (as amended) supplemented or varied from time to time; “Notification Period” means the period of time set out in section 1.3 of Part 7(1) and (2) of the Schedule of the Company’s 3G Licence, being 31 days. 2.1 The Governor and Company having its Head Office at (hereinafter called the “Bank”), at the request of the Company, and in consideration of the payment of a fee by the Company to the Bank, hereby irrevocably guarantees to the ComReg, upon demand made by the ComReg in accordance with the terms of this Guarantee, the payment by the Company of Indebtedness due at any time by the Company to the ComReg. 2.2 The Bank shall make payment to the ComReg in respect of the guarantee in clause 2.1 above only upon delivery by the ComReg of a valid Demand in accordance with the provisions of clause 3 hereof. Upon such delivery, the Bank shall pay to the ComReg the amount claimed therein within 5 Business Days of the date of such Demand. 2.3 The maximum liability of the Bank under this Guarantee in respect of any Demand shall be limited to an amount not exceeding the Maximum Amount in respect of such Demand. 2.4 The maximum aggregate liability of the Bank under this Guarantee shall not in any event exceed EUR xxxxxx. 2.5 The maximum aggregate liability of the Bank under this Guarantee shall from time to time reduce by an amount representing the amount of each Company Financial Guarantee in respect of which the ComReg has either (i) not made a valid Demand within 90 days after the expiration of the Notification Period, or (ii) made a valid demand hereunder which the bank has paid in full. 3. DEMANDS 3.1 To be valid, a Demand by the ComReg must be in the form as set out in Schedule 1 of this agreement and must be signed on behalf of the ComReg and delivered to the Bank by hand on the date of such Demand (which shall be a Business Day). 3.2 The maximum which may be claimed from the Bank in respect of an Company Financial Guarantee shall be the individual financial commitment in respect of that Company Financial Guarantee. 3.3 The Bank shall not be required to make any other enquiry or to verify the facts or matter stated therein before making payment on foot of a Demand delivered in accordance with this Guarantee. 3.4 ComReg shall be entitled to make an unlimited number of Demands hereunder subject always to the provisions of clause 2. 3.5 The ComReg shall send a copy of any Demand made to the Company at the following address:
3.6 Failure to send a copy of any Demand to the Company in accordance with this clause shall not invalidate such Demand. 3.7 For the avoidance of doubt it is not necessary for ComReg to make a demand on the Company for payment of individual financial commitments prior to the Demand being made on the Bank. 3.8 For the avoidance of doubt where a Demand is deemed to be invalid this shall not affect the Bank’s obligations under this Guarantee where ComReg makes another valid demand for the same Company Financial Guarantee within the time period set out in clause 2.5 of this Guarantee. 4. CONTINUING SECURITY Subject to clause 2 hereof, this Guarantee shall continue until the Termination Date (as defined in clause 6.3) notwithstanding any intermediate settlement of account. 5. PRESERVATION OF RIGHTS 5.1 Subject to clause 2 hereof, ComReg will be at liberty without thereby affecting its rights hereunder (or reducing or extinguishing the Bank’s liability) at any time in its absolute discretion and without the knowledge of the Bank: (a) to give time to the Company for the payment of any Indebtedness; (b) to neglect or forbear to enforce payment of any indebtedness due and (without prejudice to the foregoing) to grant any indulgence or forbearance to, or fail to assert of pursue or delay in asserting or pursuing any right of remedy against the Company; (c) to amend, waive, release or vary the terms of the 3G Licence or any Indebtedness; or (d) to compound with, accept compositions from or make any other arrangements with the Company. 6. MISCELLANEOUS 6.1 The benefit of this Guarantee may not be assigned and/or transferred by the ComReg without the prior written consent of the Bank. 6.2 Any notice (other than a Demand) to be given hereunder shall be expressed to be a notice given hereunder and shall be deemed duly given upon being left at the registered office or transmitted by facsimile to the correct facsimile number of the party to whom it is being sent or forty-eight hours after having been posted by pre-paid registered post to the party to which it is to be given at its address herein set out or such other address as such party shall have previously communicated by notice to the party giving such first mentioned notice. 6.3 This Guarantee shall be binding as a continuing security of the Bank until the earliest of:
(b) the date on which the Maximum Amount is reduced to zero )provided that for this purposed only, a Demand which has been validly made and remains unpaid shall not be taken into account in determining the Maximum Amount). (such date being the “Termination Date”). On the Termination Date, the Bank shall cease to have any liability or obligation hereunder but without prejudice to any Demands made in accordance with clauses 2 and 3 and not satisfied prior to the Termination Date. Dated the day of , 2005 Signed for and on behalf of The Governor and Company by: ___________________________ in the presence of: Witness: _________________________ Address: _________________________ _________________________ Signed for and on behalf of The Commission for Communications Regulation by: __________________________ in the presence of: Witness: _________________________ Address: _________________________ _________________________ ____________________________________________________________________ SCHEDULE 1 Company Performance Targets, Company Target Dates and Company Financial Guarantees APPENDIX B HUAWEI DRAFT BOND [On the headed notepaper of the Bank] To: The Commission of Communications Regulation having its registered office at Block DEF, Abbey Court, Irish Life Centre, Lower Abbey Street, Dublin 1 (hereinafter called the “ComReg” which expression shall include its successors, and permitted assigns or transferees. Dear Sirs, Contract Bond No. [ ] Whereas our client Huawei Technologies (Ireland) Co., Ltd (the “Supplier”) has entered or intends to enter into a contract with Smart Mobile Limited (the “Buyer”) dated 27th January 2006 and numbered Smart002 (the “Contract”) for the supply by the Supplier to the Buyer of products and services related to the Buyer’s 3G Network as further described in the Contract. For the purposes of this Bond, the expression “the Contract” shall include the contract and any Access to Information Contract (as defined in the Contract) entered into by the Supplier with the Buyer pursuant to the Contact. Whereas 1) It is contractual condition that the Supplier has agreed to provide a Performance Bond in respect of and limited to its €50million obligation which will be reduced through time as stipulated in the Contract, under the above mentioned contract number Smart002 to you. 2) Subject to other terms and conditions in this Bond, we, [Bank name], hereby irrevocably undertake and guarantee on behalf of itself, its successors and assigns to pay up to the relevant amounts in the manner set out in the table shown in the attached Appendix 1 [upon the Supplier’s failure or performance of the Contract.] 3) Subject to other terms and conditions in the Bond, we, [Bank name] irrevocably undertake to pay to you any amount not exceeding in aggregate and therefore limited to the corresponding amounts of the term period on which such claim, (or claims) is made as set on the table shown in the attached Appendix 1. 4) The liabilities under this performance bond are classified under 3 categories: Roll-out Coverage, Network Quality and Customer Service. The amount that you are entitled to claim upon the Supplier’s failure of performance, depending on which one of the aforementioned 3 categories your claim falls into, shall not be in excess of the liability limit under the corresponding category. The liability under each category is limited to the amount in the manner set out in the table shown at Appendix 1 hereto, in each term period, and is independent of other categories and shall not be exchangeable between them. 5) Any written notice that will give rise to a claim should state clearly the term period and area of responsibility to which the claim relates and therefore will be limited as provided for under to point 3 and point 4 above. 6) To be valid, a Demand by the ComReg must be signed on behalf of the ComReg and delivered to the Bank by hand on the date of such Demand (which shall be a Business Day) and must be free from bona fide dispute by the Buyer. 7) A demand submitted by facsimile transmission will not be accepted. 8) The Bank shall not be required to make any other enquiry or to verify the facts or matter stated therein before making payment on foot of a Demand delivered in accordance with this Guarantee. 9) ComReg shall be entitled to make an unlimited number of Demands hereunder subject always to the provisions of points 3 and 4 above. 10) ComReg shall send a copy of any Demand made to the Buyer and Supplier at the following addresses: (specify relevant addresses and for whose attention any copy Demand should be marked). 11) Failure to send a copy of any Demand to the relevant parties in accordance with this clause shall not invalidate such Demand. 12) For the avoidance of doubt it is not necessary for ComReg to make a demand on the relevant Parties for payment of individual financial commitments prior to the Demand being made on the Bank. 13) ComReg will be at liberty without thereby affecting its rights hereunder (or reducing or extinguishing the Bank’s liability) at any time in its absolute discretion and without the knowledge of the Bank: a) to give time to the relevant parties for the payment of any Indebtedness; b) to neglect or forbear to enforce payment of any Indebtedness due and (without prejudice to the foregoing) to grant any indulgence or forbearance to, or fail to assert of pursue or delay in asserting or pursuing any right or remedy against the relevant parties; c) to amend, waive, release or vary the terms of the 3G Licence or any Indebtedness;
14) The benefit of this Guarantee may not be assigned and/or transferred by ComReg. 15) This Bond shall be valid from the date hereof in the Bond Amount and shall continue to be so valid with respect to any such written notice until the date upon which any terms, conditions or provisions of the Contract remain to be observed or performed by the Supplier. This bond should expire no later than 31st January, 2012. This Bond shall not be valid with respect to any written notice given after such date. When the validity of this Bond has expired, it must be returned to us for cancellation, but we shall be released from any further obligation hereunder even if, in breach of this provision, that return has not taken place. Such release will be without prejudice to any liability under this Bond which arose prior to such date. 16) This Guarantee shall be binding as a continuing security of the Bank until the earliest of:
b) the date on which the Maximum Amount is reduced to zero (provided that for this purpose only, a Demand which has been validly made and remains unpaid shall not be taken into account in determining the Maximum Amount). c) The substitution of the guarantor whereby the bank shall have served 60 days notice in writing of the termination of this bond without prejudice to any antecedent demand or sums falling due by the Company to ComReg and the Company shall have substituted a Guarantor which meets the criteria set forth in paragraph 8(7) of SI 340 of 2003; and d) the revocation of the Licence by ComReg. 17) This Guarantee shall be governed by and construed in accordance with the laws of Ireland applicable to contracts made and wholly to be performed in Ireland.. This Bond is executed by us as our deed. Dated the day of , 2006 Signed for and on behalf of [ ] BANK PLC by: _____________________ in the presence of: Witness: ______________________ Address: ______________________ APPENDIX 1 Performance Bond for ComReg Note – The dates set out in the following tables assume the licence is issued on 30 January, 2006. In the event that the licence is issued on an alternative date, the dates in these tables will need to be adjusted accordingly. A. Roll-Out and CoverageDate Launch (tl) Coverage (tl)/33% Coverage (t2) 53% Coverage 80% Coverage (t3) (2011) 30 September 2006 €4,500,000 €1,250,000 €1,250,000 30 October 2006 €500,000 €500,000 €500,000 30 November 2006 €500,000 €500,000 €500,000 30 December 2006 €500,000 €500,000 €500,000 30 January 2007 €500,000 €500,000 €500,000 30 February 2007 €1,375,00 30 March 2007 €375,000 30 April 2007 €375,000 30 May 2007 €375,000 30 June 2007 €375,000 30 July 2007 €375,000 30 August 2007 €375,000 30 September 2007 €375,000 30 October 2007 €375,000 30 November 2007 €375,000 30 December 2007 €375,000 30 January 2008 €375,000 30 February 2008 €375,000 30 March 2008 €375,000 30 April 2008 €375,000 30 May 2008 €375,000 30 June 2008 €375,000 30 July 2008 €375,000 30 August 2008 €375,000 31 October 2011 €2,875,000 30 November 2011 €1,000,000 31 December 2011 €1,000,000 Total €6,500,000 €3,250,000 €3,250,000 €8,125,000 €4,875,000 B. Network Quality of Service
UDD limited mobility (outdoor) 609km 384 kbit/s geographical coverage 30 September 2006 €1,750,000 (at t1) UDD limited mobility (outdoor) 609km 384 kbit/s geographical coverage 30 September 2006 €1,750,000 (at t2) UDD limited mobility (outdoor) 19,386km 384 kbit/s geographical coverage 31 October 2011 €1,750,000 (at 31 October 2011) Max. speed – UDD full mobility 1,000kbit/s (downlink) (outdoor), rural 500kbit/s (uplink) 31 October 2011 €1,750,000 Max. speed – UDD low mobility 5,000kbit/s (downlink) (indoor), rural 2,000kbit/s (uplink) 31 October 2011 €1,750,000 C. Customer Service Performance target Date to be achieved Financial guarantee Adoption of customer charter 30 September 2006 €250,000 Achievement of at least 70% of the KPI’s listed in 30 September 2007 €3,000,000 condition 5.2 of part 4 of the licence Achievement of at least 75% of the KPI’s listed in 30 September 2008 €3,000,000 condition 5.2 of part 4 of the licence Achievement of at least 80% of the KPI’s listed in 30 September 2009 €3,000,000 condition 5.2 of part 4 of the licence Achievement of at least 85% of the KPI’s listed in 30 September 2010 €3,000,000 condition 5.2 of part 4 of the licence Achievement of at least 90% of the KPI’s listed in 30 September 2011 €3,000,000 condition 5.2 of part 4 of the licence For information purposes only
Note – The table above is for illustration purposes only and had assumed License award date of October 2005 which has subsequently been superseded by the dates as detailed in Appendix 1 For information purposes only
Note – The table above is for illustration purposes only and had assumed License award date of October 2005 which has subsequently been superseded by the dates as detailed in Appendix 1 Continued for information purposes only
APPENDIX C B.T. DRAFT BOND GUARANTEE TO: The Commission of Communications Regulation having its registered office at Block DEF, Abbey Court, Irish Life Centre, Lower Abbey Street, Dublin 1 (hereinafter called the “ComReg” which expression shall include its successors, and permitted assigns or transferees). WHEREAS (A) ComReg has, pursuant to an application by Smart Mobile Limited a company incorporated in Ireland and having its registered office at 3300 Lake Drive, Citywest Business Park, Dublin 24 (hereinafter called the “Company”), agreed to award the Company a Category “B” 3G Mobile Telephony Licence (the “3G Licence”) on the terms and the conditions set out in a Letter of Offer dated the day of 2005, from ComReg to the Company. (B) In the 3G Licence, the Company will commit to certain voluntary performance targets or guarantees, supported by financial guarantees (each a “Company Financial Guarantee”) and secured by a performance bond to be provided by a financial institution in favour of ComReg. (C) This Guarantee is a performance bond in respect of one of the Company Financial Guarantees referred to in paragraph (B) above. 1. DEFINITIONS For the purposes of the Guarantee: “Available Amount” on any day means €47.75M (forty seven million, seven hundred and fifty thousand euros) less an amount equal to the aggregate of (i) amounts paid by the Bank to the ComReg hereunder in respect of any previous Demand and (ii) amounts claimed by ComReg hereunder under any other Demand made and unpaid on such day; “Business Day” means any day on which commercial banks are generally open for business in Dublin; “Demand” means a demand made by ComReg in writing to the Company which complies with the provisions of clause 3 hereof; “Indebtedness” means all amounts due but unpaid by the Company to ComReg under any Company Financial Guarantee and which shall not exceed for any Company Financial Guarantee the amount set out in Column 3 of Schedule2 hereto; “3G Licence” means the 3G Licence issued by ComReg to the Company under Section 111(2) of the Postal and Telecommunications Services Act, 1983 (as amended) supplemented or varied from time to time; “Notification Period” means the period of time set out in section 1.3 of Part 7(1) and (2) of the Schedule of the Company’s 3G Licence, being 31 days; “Performance Obligations” means those performance obligations of BT Communications Ireland Limited (BTI) as more particular set out in Schedule 3 of this Agreement. 2. GUARANTEE 2.1 The Royal Bank of Scotland a company registered in Scotland and having its registered office [ ] (hereinafter called the “Bank”), at the request of the Company, and in consideration of the payment of a fee by the Company to the Bank, hereby irrevocably guarantees to ComReg, upon demand made by the ComReg in accordance with the strict terms and conditions of this Guarantee, the payment by the Company of Indebtedness due at any time by the Company to ComReg. 2.2 The Bank shall make payment to ComReg in respect of the guarantee in clause 2.1 above only upon delivery by ComReg of a valid Demand made by ComReg in accordance with the provisions of clause 3 hereof. Upon such delivery, the Bank shall pay to ComReg the amount claimed therein within 5 Business Days of the date of such Demand. 2.2A ComReg shall only be entitled to make a Demand under this Guarantee in circumstances 2.3 The maximum liability of the Bank under this Guarantee in respect of any Demand shall be limited to an amount not exceeding €47.75M (Forty seven million, seven hundred and fifty thousand euros) (the “Maximum Amount”) in respect of such Demand. 2.4 The maximum aggregate liability of the Bank under this Guarantee shall not in any event exceed the Maximum Amount referred to in Clause 2.3 above. 2.5 The maximum aggregate liability of the Bank under this Guarantee shall from time to time reduce by an amount representing the amount of each Company Financial Guarantee in respect of which the ComReg has either (i) not made a valid Demand within 90 days after the expiration of the Notification Period, or (ii) made a valid demand hereunder which the bank has paid in full. 3. DEMANDS 3.1 To be valid, a Demand by ComReg must be must be in writing and signed by an authorized signatory on behalf of ComReg and delivered to the Bank by hand on the date of such Demand (which shall be a Business Day) and must be free from bona fide dispute by the Company. 3.2 The maximum amount which may be claimed from the Bank under this Guarantee is limited to the Maximum Amount referred to above. 3.3 The Bank shall not be required to make any other enquiry or to verify the facts or matter stated therein before making payment on foot of a Demand delivered in accordance with the terms of this Guarantee. 3.4 ComReg shall be entitled to make an unlimited number of Demands hereunder subject always to the provisions of clause 2. 3.5 ComReg shall send a copy of any Demand made to the Company at the following address: For the Attention of: The Chief Financial Officer, 3300 Lake Drive, Citywest Business Park, Dublin 24. 3.6 Failure to send a copy of any Demand to the Company in accordance with this clause shall not invalidate such Demand. 3.7 For the avoidance of doubt it is not necessary for ComReg to make a demand on the Company for payment of individual financial commitments prior to the Demand being made on the Bank. 3.8 For the avoidance of doubt where a Demand is deemed to be invalid this shall not affect the Bank’s obligations under this Guarantee where ComReg makes another valid Demand for the same Company Financial Guarantee within the time period set out in clause 2.5 of this Guarantee. 4. CONTINUING SECURITY Subject to clause 2 hereof, this Guarantee shall continue until the Termination Date (as defined in clause 6.3) notwithstanding any intermediate settlement of account. 5. PRESERVATION OF RIGHTS 5.1 Subject to clause 2 hereof, ComReg will be at liberty without thereby affecting its rights hereunder (or reducing or extinguishing the Bank’s liability) at any time in its absolute discretion and without the knowledge of the Bank: (a) to give time to the Company for the payment of any Indebtedeness; (b) to neglect or forbear to enforce payment of any Indebtedness due and (without prejudice to the foregoing) to grant any indulgence or forbearance to, or fail to assert of pursue or delay in asserting or pursuing any right or remedy against the Company; (c) to amend, waive, release or vary the terms of the 3G Licence (to the benefit of the Company) or any Indebtedness; or (d) to compound with, accept compositions from or make any other arrangements with the Company. 6. MISCELLANEOUS 6.1 The benefit of this Guarantee may not be assigned and/or transferred by ComReg without the prior written consent of the Bank. 6.2 Any notice (other than a Demand) to be given hereunder shall be expressed to be a notice given hereunder and shall be deemed duly given upon being left at the registered office or transmitted by facsimile to the correct facsimile number of the party to whom it is being sent or forty-eight hours after having been posted by pre-paid registered post to the party to which it is to be given at its address herein set out or such other address as such party shall have previously communicated by notice to the party giving such first mentioned notice. 6.3 This Guarantee shall be binding as a continuing security of the Bank until the earliest of: (a) the date on which all the Company Financial Guarantees have been satisfied, performed and discharged in full by the Company or the Company has otherwise been released therefrom; and (b) the date on which the Maximum Amount is reduced to zero (provided that for this purpose only, a Demand which has been validly made and remains unpaid shall not be taken into account in determining the Maximum Amount). (c) if the Bank shall serve 60 days notice in writing of the termination of this Guarantee without prejudice to any antecedent demand or sums falling due by the Company to ComReg and the Company shall have substituted a Guarantor which meets the criteria set for the in paragraph 8(7) of SI 340 of 2003; and (d) where ComReg revokes the Company’s 3G Licence; (e) where the Company shall enter into Liquidation (whether compulsory or voluntary) save for the purpose of amalgamation or reconstruction or Receivership or Examinership or similar insolvency process and the Company shall have failed to substitute a Guarantor which meets the criteria set forth in paragraph 8(7) of SI 340 f 2003 within a period of 60 days of such event of insolvency; (such date being the “Termination Date”). On the Termination Date, the Bank shall cease to have any liability or obligation hereunder but without prejudice to any Demands made in accordance with clauses 2 and 3 and not satisfied prior to the Termination Date. 6.4 This Guarantee shall be governed by and construed in accordance with the laws of Ireland and the parties hereby submit to the non-exclusive jurisdiction of the Irish courts. Dated the day of , 2005 Signed for and on behalf of The Royal Bank of Scotland, by: --------_______________________ in the presence of: Witness: __________________ Address: __________________ __________________ Signed for and on behalf of The Commission for Communications Regulation by: ________________________ in the presence of: Witness: ___________________ Address: ___________________ ____________________ SCHEDULE 1 Company Performance Targets, Company Target Dates and Company Financial Guarantees Performance Bond for ComReg (BT Ireland) – Annex Note – The dates set out in the following tables assume the licence is issued on 30 January, 2006. In the event that the licence is issued on an alternative date, the dates in these tables will need to be adjusted accordingly. A. Roll-Out and Coverage Date Launch(t1) Coverage (t1) 33% Coverage (t2) 53% Coverage (t3) 80% Coverage (2011) 30 September 2006 €4,500,000 €1,250,000 €1,250,000 30 October 2006 €500,000 €500,000 €500,000 30 November 2006 €500,000 €500,000 €500,000 30 December 2006 €500,000 €500,000 €500,000 30 January 2007 €500,000 €500,000 €500,000 30 February 2007 €1,375,000 30 March 2007 €375,000 30 April 2007 €375,000 30 May 2007 €375,000 30 June 2007 €375,000 30 July 2007 €375,000 30 August 2007 €375,000 30 September 2007 €375,000 30 October 2007 €375,000 30 November 2007 €375,000 30 December 2007 €375,000 30 January 2008 €375,000 30 February 2008 €375,000 30 March 2008 €375,000 30 April 2008 €375,000 30 May 2008 €375,000 30 June 2008 €375,000 30 July 2008 €375,000 30 August 2008 €375,000 31 October 2011 €2,875,000 30 November 2011 €1,000,000 31 December 2011 €1,000,000 Total €6,500,000 €3,250,000 €3,250,000 €8,125,000 €4,875,000 B. Site Sharing Performance target Date to be achieved Financial guarantee Provision of access to 100% of radio 30 September 2006 €2,500,000 transmission sites under Smart Mobile’s control on a LRAIC cost-orientated basis at t1 Provision of access to 100% of radio 30 September 2006 €2,000,000 transmission sites under Smart Mobile’s control on a LRAIC cost-oriented basis at t1 Provision of access to 100% of radio 28 February 2007 €2,000,000 transmission sites under Smart Mobile’s control on a LRAIC cost-oriented basis at t1 Participation in a code of practice concerning 30 September 2006 €6,500,000 sharing of radio transmission sites at t1 C. Network Quality of Service Indicator Performance target Date to be achieved Financial guarantee UDD limited mobility (outdoor) 609km 384 kbit/s geographical coverage 30 September 2006 €1,750,000 (at t1) UDD limited mobility (outdoor) 609km 384 kbit/s geographical coverage 30 September 2006 €1,750,000 (at t1) UDD limited mobility (outdoor) 19,386km 384kbit/s geographical coverage 31 October 2011 €1,750,000 (at 31 October 2011) Max speed-UDD full mobility 1,000kbit/s (downlink) (outdoor), rural 500 kbit/s (uplink) 31 October 2011 €1,750,000 Max speed-UDD low mobility 5,000kbit/s (downlink) (indoor), rural 2,000kbit/s (uplink) 31 October 2011 €1,750,000 SCHEDULE 2 Form of Demand to be made by ComReg SCHEDULE 3 BT COMMUNICATIONS IRELAND LIMITED PERORMANCE OBLIGATIONS PERFORMANCE CATEGORY LIMITED OF INDEMNITY (A) Population (Demographic) Coverage Capped Liability €26 Million 33% population coverage by 30 September 2006; 53% population coverage by 28 February 2007; (B) Site Sharing Capped Liability of €13M 100% of sites under the Company’s control by 30 September 2006; to be available for access by other OLO’s at 33% coverage 100% of sites under the Company’s control by 30 September 2007; to be available for access by other OLO’s at 53% coverage (C) UDD Limited mobility (outdoor) 384kbit/s by 30 September 2006; geographical coverage over 609 square kms APPENDIX D SMART DRAFT BOND GUARANTEE TO: The Commission of Communications Regulation having its registered office at block DEF, Abbey Court, Irish Life Centre, Lower Abbey Street, Dublin 1 (hereinafter called the “ComReg” which expression shall include its successors, and permitted assigns or transferees). WHEREAS (A) ComReg has, pursuant to an application by Smart Mobile Limited a company incorporated in Ireland and having its registered office at 3300 Lake Drive, Citywest Business Park, Dublin 24 (hereinafter called the “Company”), agreed to award the Company a Category “B” 3G Mobile Telephony Licence (the “3G Licence”) on the terms and the conditions set out in a Letter of Offer dated the day of 2005 from ComReg to the Company. (B) In the 3G Licence, the Company will commit to certain voluntary performance targets or guarantees, supported by financial guarantees (each a “Company Financial Guarantee”) and secured by a performance bond to be provided by a financial institution in favour of ComReg. (C) This Guarantee is a performance bond in respect of one of the Company Financial Guarantees referred to in paragraph (B) above. 1. DEFINITIONS For the purposes of this Guarantee: “Available Amount” on any day means €2,250,000, (two million, two hundred and fifty thousand euros) less an amount equal to the aggregate of (i) amounts paid by the Bank to the ComReg hereunder in respect of any previous Demand and (ii) amounts claimed by ComReg hereunder under any other Demand made and unpaid on such day, “Business Day” means any day on which commercial banks are generally open for business in Dublin, “Demand” means a demand made by ComReg in writing to the Company which complies with the provisions of clause 3 hereof; “Indebtedness” means all amounts due but unpaid by the Company to ComReg under any Company Financial Guarantee and which shall no exceed for any Company Financial Guarantee the amount set out in Column 3 of Schedule 2 hereto; “3G Licence” means the 3G Licence issued by ComReg to the Company under Section 111(2) of the Postal and Telecommunications Services Act 1983 (as amended) supplemented or varied from time to time; “Notification Period” means the period of time set out in section 1.3 of Part 7(1) and (2) of the Schedule of the Company’s 3G Licence, being 31 days. “Performance Obligations” means those performance obligations of the Company as more particular set out in Schedule 1 of this Agreement. 2. GUARANTEE 2.1 [Ulster Bank Limited] a company registered in the Republic of Ireland and having its registered office George’s Quay, Dublin 2 (hereinafter called the “Bank”), at the request of the Company, and in consideration of the payment of a fee by the Company to the Bank, hereby irrevocably guarantees to ComReg, upon demand made by the ComReg in accordance with the strict terms and conditions of this Guarantee, the payment by the Company of indebtedness due at any time by the Company to ComReg. 2.2 The Bank shall make payment to ComReg in respect of the guarantee in clause 2.1 above only upon delivery by ComReg of a valid Demand made by ComReg in accordance with the provisions of clause 3 hereof. Upon such delivery, the Bank shall pay to ComReg the amount claimed therein within 5 Business Days of the date of such Demand. 2.2A ComReg shall only be entitled to make a Demand under this Guarantee in circumstances where BT Ireland is in default of its Performance Obligations to the Company as set out in Schedule 3 to this Guarantee, giving rise to a Demand on the part of ComReg. 2.3 The maximum liability of the Bank under this Guarantee in respect of any Demand shall be limited to an amount not exceeding €2,250,000, (two million, two hundred and fifty thousand euros) (the “Maximum Amount”) in respect of such Demand. 2.4 The maximum aggregate liability of the Bank under this Guarantee shall not in any event exceed the Maximum Amount referred to in Clause 2.3 above. 2.5 The maximum aggregate liability of the Bank under this Guarantee shall from time to time reduce by an amount representing the amount of each Company Financial Guarantee in respect of which the ComReg has either (i) not made a valid Demand within 90 days after the expiration of the Notification Period, or (ii) made a valid demand hereunder which the bank has paid in full. 3. DEMANDS 3.1 To be valid, a Demand by ComReg must be in writing and signed by an authorised signatory on behalf of ComReg and delivered to the Bank by hand on the date of such Demand (which shall be a Business Day) and must be free from bona fide dispute by the Company. 3.2 The maximum amount which may be claimed from the Bank under this Guarantee is limited to the Maximum Amount referred to above. 3.3 The Bank shall not be required to make any other enquiry or to verify the facts or matter stated therein before making payment on foot of a Demand delivered in accordance with the terms of this Guarantee. 3.4 ComReg shall be entitled to make an unlimited number of Demands hereunder subject always to the provisions of clause 2. 3.5 ComReg shall send a copy of any Demand made to the Company at the following address: For the Attention of: The Chief Financial Officer, 3300 Lake Drive, Citywest Business Park, Dublin 24. 3.6 Failure to send a copy of any Demand to the Company in accordance with this clause shall not invalidate such Demand. 3.7 For the avoidance of doubt it is not necessary for ComReg to make a demand on the Company for payment of individual financial commitments prior to the Demand being made on the Bank. 3.8 For the avoidance of doubt where a Demand is deemed to be invalid this shall not affect the Bank’s obligations under this Guarantee where ComReg makes another valid Demand for the same Company Financial Guarantee within the time period set out in clause 2.5 of this Guarantee. 4. CONTINUING SECURITY Subject to clause 2 hereof, this Guarantee shall continue until the Termination Date (as defined in clause 6.3) notwithstanding any intermediate settlement of account. 5. PRESERVATION OF RIGHTS 5.1 Subject to clause 2 hereof, ComReg will be at liberty without thereby affecting its rights hereunder (or reducing or extinguishing the Bank’s liability) at any time in its absolute discretion and without the knowledge of the Bank: (a) to give time to the Company for the payment of any Indebtedness; (b) to neglect or forbear to enforce payment of any Indebtedness due and (without prejudice to the forgoing) to grant any indulgence or forbearance to, or fail to asset of pursue or delay in asserting or pursuing any right or remedy against the Company; (c) to amend, waive, release or vary the terms of the 3G Licence (to the benefit of the Company) or any Indebtedness; or (d) to compound with, accept compositions from or make any other arrangements with the Company. 6. MISSCELLANEOUS 6.1 The benefit of this Guarantee may not be assigned and/or transferred by ComReg without the prior written consent of the Bank. 6.2 Any notice (other than a Demand) to be given hereunder shall be expressed to be a notice given hereunder and shall be deemed duly given upon being left at the registered office or transmitted by facsimile to the correct facsimile number of the party to whom it is being sent or forty-eight hours after having been posted by pre-paid registered post to the party to which it is to be given at its address herein set out or such other address as such party shall have previously communicated by notice to the party giving such first mentioned notice. 6.3 This Guarantee shall be binding as a continuing security of the Bank until the earliest of: (a) the date on which all the Company Financial Guarantees have been satisfied, performed and discharged in full by the Company or the Company has otherwise been released therefrom; and (b) the date on which the Maximum Amount is reduced to zero (provided that for this purpose only, a Demand which has been validly made and remains unpaid shall not be taken into account in determining the Maximum Amount). (c) if the Bank shall serve 60 days notice in writing of the termination of this Guarantee without prejudice to any antecedent demand or sums falling due by the Company to ComReg and the Company shall have substituted a Guarantor which meets the criteria set forth in paragraph 8(7) of SI 340 of 2003; and (d) where ComReg revokes the Company’s 3G Licence; (e) where the Company shall enter into liquidation (whether compulsory or voluntary) save for the purpose of amalgamation or reconstruction or receivership or examinership or similar insolvency process and the Company shall have failed to substitute a Guarantor which meets the criteria set forth in paragraph 8(7) of SI 340 of 2003 within a period of 60 days of such event of insolvency; (such date being the “Termination Date”). On the Termination Date, the Bank shall cease to have any liability or obligation hereunder but without prejudice to any Demands made in accordance with clauses 2 and 3 and not satisfied prior to the Termination Date. 6.4 This Guarantee shall be governed by and construed in accordance with the laws of Ireland and the parties hereby submit to the non-exclusive jurisdiction of the Irish courts. SCHEDULE 1 Company Performance Targets, Company Target Dates And Company Financial Guarantees Performance target Date to be achieved Financial guarantee Adoption of customer charter 30 September 2006 Achievement of at least 70% 30 September 2007 €0 of the KPI’s listed in condition 5.2 of part 4 of the licence Achievement of at least 75% 30 September 2008 €0 of the KPI’s listed in condition 5.2 of part 4 of the licence Achievement of at least 80% 30 September 2009 €0 of the KPI’s listed in condition 5.2 of part 4 of the licence Achievement of at least 85% 30 September 2010 €0 of the KPI’s listed in condition 5.2 of part 4 of the licence Achievement of at least 90% 30 September 2011 €2,250,000 of the KPI’s listed in condition 5.2 of part 4 of the licence SCHEDULE 2 Form of Demand to be made by ComReg
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