Supreme Court dismisses appeal against discovery order seeking telecom call data records in anti-competitive dispute.

THE SUPREME COURT

374/2006 & 375/2006

Geoghegan J.

Fennelly J.

Kearns J.

BETWEEN/

DOME TELECOM LIMITED

PLAINTIFF/RESPONDENT

AND

EIRCOM LIMITED

DEFENDANT/APPELLANT

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

These are two appeals from discovery orders in which essentially the same issues arise. Both parties are telecommunications

companies the nature of whose business is (to use the wording in the respondent’s written submissions) “the generation and recording

of millions of pieces of telecommunications data on a continuous basis.” Both cases are concerned with alleged anti-competitive

practices affecting the sale of call cards. The respondent which is plaintiff in both actions sought extensive discovery from the

appellant much of which has been agreed or furnished but a dispute arose over one particular category, the nature of which I will be

explaining.

In a dispute over discovery, it is important that the court should not enter into the merits of the case though there must be a clear

understanding as to the nature of the issues. I have come to the conclusion that the best way of describing the respondent’s case

for obtaining the disputed category of discovery (which was acceded to by the High Court (McKechnie J.)) is to quote from the

succinct summary contained in the respondent’s written submissions to this court. The relevant passage reads as follows:

“The respondent’s business is, inter alia, the sale of call cards, through which it offers its customers telecommunications

services such as cheap telephone calls to international destinations. Customers access these services by dialling one of

the numbers printed on its call cards. 1800 (freephone) numbers are used to allow customers to access the services

without incurring an initial access charge. The respondent obtains its telecommunication services from a national

telecommunications operator which is licensed by the Office of Director of Telecommunications Regulations (ODTR),

referred to herein as a ‘licensed operator’. In turn the licensed operator obtains its services from the appellant. The

principal basis of the respondent’s claim is that the appellant imposed certain charges on licensed operators for the use of

1800 (freephone) numbers where the numbers were dialled by customers from mobile telephones (referred to herein as the

‘mobile access charge’) and from public payphones (referred to herein as the ‘payphone access charge’). The appellant did

not impose said charges on telecommunications operators located outside Ireland, referred to herein as ‘international

operators’, who obtained the same telecommunication services from the appellant. The respondent alleges that this

constituted discriminatory pricing which benefited international operators (and in turn, the appellant’s competitors who

obtained services from such international operators) and discriminated against licensed operators (and in turn, the

appellant who obtained its services from a licensed operator). It has been accepted by the appellant that for certain

periods of time it failed to apply the charges to all operators (referred to by the appellant in affidavits filed in the court as

the ‘arbitrage period’) but it pleads an objective justification with respect to those periods. The respondent disputes that

the discrimination was limited to the so called ‘arbitrage period’ admitted by the appellant.”

A much fuller factual account of the business workings is given in the judgment of Kearns J. which I gratefully adopt. The mobile

access charge is generally abbreviated to MAC and the payphone access charge to PAC. The appeal number 374/2006 relates to MAC

and the appeal number 375/2006 relates to PAC. The disputed discovery order made the 30th August, 2006 in the case to which

appeal 374 relates reads as follows:

“That the defendant do within six months from the date hereof make discovery on oath of the following documents which

are or have been in its possession, power or procurement.

The volume of minutes trafficked per month from the 1st day of July 2000 to the 7th day of April 2005 in respect of each

1800 number by reference to access method by the defendant to international carriers and/or other entities (to be limited

for the time being to those identified and set forth in the Schedule hereto) where the volume of minutes trafficked to that

international carrier and/or other entity in any given month exceeded 5,000 minutes – the documents within the power of

the defendant to be created from the defendant’s raw data and data bases and using the defendant’s own database.”

A similar order was made by the High Court in the action to which appeal 375 relates i.e. the action relating to PAC, the only

difference being the dates, the specified period in appeal No. 375 is 31st August 1999 to the 23rd December 2003.

The discovery applications in these two cases have had a long and troubled history which I do not find it necessary to recount in

detail. With a view to putting the latest dispute into some kind of context, I will explain this much. As already mentioned, there were

a number of different categories of “documents” sought and it is category 9 which is now in controversy. At one of a number of

hearings before the learned High Court judge, it was suggested by the appellant that he postpone making any order in relation to

category 9 because in the view of the appellant the information allegedly needed by the respondent from that category would in

practice be furnished with the discovery in respect of category 8. Category 8 read as follows:

“All invoices raised and issued by the defendant to licensed operators and/or international carriers and/or other entities

relating to the operation of 1800 freephone numbers from the 1st July 2000 to the date hereof.”

More accurately, I should state that that particular wording related to appeal 374. The corresponding category 8 in respect of the

case to which appeal 375 relates contained a different date i.e. 31st August 1999.

In respect of both category 8 and category 9 and in each of the two cases, reasons for the requests were set out in the relevant

requesting letter. In respect of the case the subject of appeal 374 the reasons for requiring category 8 were stated as follows:

“The defendant has claimed that it applies the MNO originating charge/MTC in a non-discriminatory manner and/or that

differences in treatment are objectively justified, contrary to the allegation of discrimination made by the plaintiff.

Discovery of invoices raised by the defendant in respect of the provision of 1800 numbers can reasonably be expected to

demonstrate the veracity of its denial in this regard. In addition to demonstrating whether the charges are in fact imposed

at all, the invoices may demonstrate the credit periods afforded to operators in relation to payment of the charges. To

the extent that certain operators are afforded a longer credit period in which to discharge the MNO origination

charge/MTC invoices discovered by the defendant may confirm this particular form of discrimination.”

In respect of the case to which appeal 375 relates the wording is identical except that “PAC” is substituted for “MNO origination

charge/MTC”.

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

“The plaintiff alleges that it has suffered loss as a result of the discriminatory imposition of the MNO origination

charge/MTC by the defendant. Access to full details regarding the quantity of 1800 numbers issued by the defendant, the

number of minutes trafficked per number (by reference to access method) and the names of the parties to whom the

numbers were allocated would enable the plaintiff to assess the manner in which the MNO origination charge/MTC was

imposed. In addition, in terms of assessing the quantum of its alleged loss, such information would demonstrate how in a

market highly sensitive to increases in price, the discriminatory imposition of the MNO origination charge/MTC caused the

plaintiff to lose customers to operators who were/are not charged the MNO origination charge/MTC by the defendant. In

short, it will enable the plaintiff to show a link between its market share and the obligation to pay the MNO origination

charge/MTC to the defendant. The plaintiff believes that expert analysis of these figures will establish a direct and

conclusive co-relation between the discriminatory behaviour of the defendant and the loss suffered by the plaintiff.”

Again, the reasons given for the equivalent request in the action to which appeal 375 relates are in identical terms except for the

substitution of “PAC” for “MNO origination charge/MTC”.

I think it fair to say that the respondent was not initially opposed to the postponement if, as promised, the relevant information which

the respondent sought to obtain from category 9 was in fact furnished with the discovery under category 8. The preparation and

delivery of the discovery under category 8, however, took quite some time and it was furnished in instalments. At a certain stage, the

respondent on an assessment of the partial discovery made came to the conclusion that the information it sought under category 9

and which it considered necessary for its proofs was not in fact going to be furnished. Acrimonious correspondence ensued, the

upshot of which was that the appellant objected in principle to complying with the request for the discovery of category 9. The

respondent, therefore, decided to re-enter the matter before the court. A further dispute then broke out, in as much as the appellant

interpreted the earlier decision and order of the learned High Court judge as a postponement of all consideration of request No. 9

whereas the respondent contended that only the decision had been postponed. Although the learned judge agreed with the

respondent he, nevertheless, permitted the matter to be argued afresh, which it was. As already mentioned, the learned judge

subsequently made the requested order. Some days before the final order was made, the respondent made the significant concession

that it was prepared to limit its request in respect of category 9 to 11 of the 56 telecommunications companies referred to. These

eleven were subsequently specified. I will, in due course, deal with the grounds of appeal and, therefore, the specific objections in

principle on the part of the appellant to making the discovery ordered. But I think it useful to continue first with background material.

It is the contention of the respondent that merely to receive the invoices referred to in category 8 is not sufficient or at the very

least may prove itself not to be sufficient to establish its case against the appellant. In order to demonstrate the alleged

discrimination it is not sufficient to prove total volumes of minutes trafficked to particular operators as opposed to individual 1800

numbers. As pointed out in (inter alia) the affidavit of Alice Whittaker sworn the 22nd May 2006, “total volumes of minutes trafficked

to particular operators (as opposed to individual 1800 numbers) do not provide the plaintiff with the means of relating such increases

and decreases to specific call cards that benefited or suffered as a result of the discriminatory imposition of the MAC and the PAC.”

This is because there may be a particular or special reason for an increase which would have no relevance to the alleged

discrimination. Such relevance, in the contention of the respondent, can only be established by reference to the individual numbers.

Furthermore, these actions are all about sales of call cards rather than phone call minutes. In this connection it is worth quoting

paragraph 16 of the same affidavit:

“Consumers access Dome’s Telecommunication services by calling the access number on the Dome card then entering

their PIN number (to verify the level of credit), then entering the telephone number they wish to call, i.e. the Dialled

Number. In this regard I beg to refer to a sample Dome Global Caller Card above which marked with ‘AW5’ I have signed

my name prior to swearing hereof. This sample call card has three different access numbers (as described more fully at

paragraph 9) depending on the access method used by the customer. Based on its own call card sales, the plaintiff knows

that only a small proportion of customers use the 1800 freephone number from mobile and payphone in order to access

the stored telephone credit. The loss of 1800 minutes to each of the operators that receive preferential treatment

represents only a small proportion of the plaintiff’s loss on the sale of its call cards.”

In other words, as I understand it, the case being made by the appellant is that even though an 1800 freephone number will not

normally be accessed from mobile phones or payphones, if in fact the charges for such calls are more expensive than those of

competitors, this is a disincentive to purchasing the card.

In paragraph 19 of the same affidavit an alternative approach was suggested on behalf of the respondent namely, that the appellant

would accept as a matter of evidence that “every increase in freephone traffic to non-Irish carriers” in the relevant period “relates to

call card business”. At a certain stage, the learned trial judge, to save time, requested letters from each side written to him setting

out their respective arguments. In the appellant’s letter, the appellant submitted to the judge that even if the discovery under

category 9 might be considered “necessary” it would still be “wholly disproportionate”. But the letter went on to state that if the

judge rejected that submission the appellant “would be inclined” to adopt the alternative suggestion offered by the respondent as set

out above. However, it is the respondent’s case that the appellant attached conditions to the acceptance which were wholly

unacceptable. What the appellant in this connection said in the letter was the following:

“Accordingly, the defendant would be prepared to accept, as a matter of evidence, ‘for the purposes of the mobile

proceedings’, that, during the period running from the 1st January 2001 until 30th October 2001, inclusive, all of the

increases in freephone traffic, (the increase being measured compared with the average monthly volume of minutes

recorded in the quarter prior to the 1st January 2001) from mobile handsets in Ireland to 1800 numbers terminating

outside the State, which increases are fully recorded in the documentation already provided to the plaintiff in respect of

‘category 8’, may be attributable to use by call card customers of their cards.”

The appellant then adopted a rather different position in relation to the payphone proceedings i.e. the action to which appeal 375

relates. What the appellant said in the letter in that respect was as follows:

“As regards the payphone proceedings the matter is more problematic. The defendant does not deny, as the plaintiff in

effect in footnote 2 to its letter observes, that the figures for payphone-originating international freephone traffic are

included within the figures for fixed-line originating international freephone traffic in the document created by the

defendant setting out details of the outgoing international freephone traffic which it trafficked in the period August 1999

to April 2005. This document, to which the defendant refers in the said footnote, was produced by the defendant to

assist the plaintiff in analysing the said international freephone traffic. Contrary to the allegations made by the plaintiff in

its letter of the 8th inst. the defendant is satisfied that the information contained in this document is both complete and

accurate.

For the reasons set out in paragraph 10 of the affidavit of John Hall sworn on the 22nd March 2002 on behalf of the

defendant, the latter was unable to distinguish payphone originating international freephone traffic from fixed-line original

international freephone traffic prior to 2002. Consequently, for the purposes of the payphone proceedings, the defendant

would be prepared to accept, as a matter of evidence that for the period running from the 1st September 2001 (which

the plaintiff admits, in the affidavit sworn by Dara O’Mahony on its behalf on the 8th April 2002, that it began applying the

PAC to its call cards) until the 7th June 2002 (when it became possible to identify payphone originating international

freephone calls) that up to 50 per cent of the increase in the monthly volume of fixed-line originating international

freephone traffic above that recorded in the previous quarter, to wit June to August 2001, may be attributable to use by

call card customers of their cards.”

As Ms. Whittaker makes clear in her same affidavit, it was the view of the respondent that “by limiting and re-defining the concession

the defendant renders it of no assistance to the plaintiff in advancing its cause”.

This is a suitable juncture in which to make the observation that, subject to one qualification to which I will refer, at no stage in the

affidavits or in the letter to the judge or in the submissions, written or oral, does the appellant make any worthwhile concession to

the effect that a trial judge would be entitled to draw inferences of discrimination from the category 8 discovery. In fairness, of

course, the appellant has made one significant concession in respect of particular periods to which I will refer in more detail later in

the judgment and that is the qualification to which I have referred. It is a concession that in respect of different particular periods

relating respectively to MAC and PAC, distortion in card sales can be attributed to non-imposition of the transit charges though the

appellant will claim that there was objective justification for it. The contention of the appellant is that as of the terminal date in

respect of each period, the charge was imposed. However, it is the contention of the respondent that the decision did not correspond

in date with the implementation of the decision and that for the purposes of the respondent’s claim the alleged unlawful discrimination

must be taken to have continued long after the terminal date. Detailed reasons as to why the conditions attached by the appellant to

the acceptance of the respondent’s alternative offer were unacceptable are set out in the paragraphs 20 and 21 of the same

affidavit.

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

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

documents for the purposes of the action.

2. That the power of the High Court to order discovery of documents does not extend to directing a party to create

documents that do not exist at the time that the order for discovery is made.

3. That the creation of the documents directed by the High Court imposes a disproportionate burden on the appellant

where an order to comply with that order it would be required

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

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

(c) to collate and analyse the records on the parallel data base in order to correlate them with the 1800 freephone

numbers the subject matter of the order for discovery;

(d) to create therefrom a document containing a report of the total monthly volume of freephone minutes traffic per

month from the 1st July 2000 to the 7th April 2005 in respect of each 1800 number by reference to access method

by the appellant to international carriers – limited for the time being to those identified and set forth in the

Schedule where the volume of minutes trafficked to that international carrier in any given month exceeded 5,000

minutes.

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

It would seem to me that I can usefully treat of the first two grounds of appeal together. My starting point would be that I would

reject any idea that the right to discovery of documents should be exclusively based on an interpretation (literal or otherwise) of the

relevant rule of court. According to Halsbury’s Laws of England, 4th ed. Vol. 13 para. 1 footnote 3, the discovery of documents “was

originally an equitable device employed in the Court of Chancery for obtaining the disclosure and inspection of relevant documents as

well as the disclosure and admissions of relevant facts.” It had a more limited history in the common law courts but from and after the

Judicature Act, the chancery practice applied in all courts though of course ever since the Judicature Act, there has been a rule of

court regulating discovery. In modern times, courts are not necessarily hidebound by interpretation of a particular rule of court. More

general concepts of ensuring fair procedures and efficient case management are frequently overriding considerations. The Rules of

Court are important and adherence to them is important but if an obvious problem of fair procedures or efficient case management

arises in proceedings, the court, if there is no rule in existence precisely covering the situation, has an inherent power to fashion its

own procedure and even if there was a rule applicable, the court is not necessarily hidebound by it. It is common knowledge that a

vast amount of stored information in the business world which formerly would have been in a documentary form in the traditional

sense is now computerised. As a matter of fairness and common sense the courts must adapt themselves to this situation and fashion

appropriate analogous orders of discovery. In order to achieve a reasonable parity with traditional documentary discovery it may well

be necessary to direct a party “to create documents” within the meaning of the notice of appeal. It may indeed also be necessary to

direct a party “to create documents” within the meaning of the notice of appeal even if such “documents” “do not exist at the time

the order is made”. I am deliberately using quotation marks because I do not intend to adjudicate on the quasi-metaphysical argument

of Mr. Paul Anthony McDermott, counsel for the respondent, that the “documents” do in fact “exist”. At any rate that matter can

probably be argued both ways but I would be firmly of opinion that an order of discovery can be made which involves the creation of

documents which do not exist, made in the kind of context in which it is sought in this case. Otherwise, potential litigants could

operate their business computers in such a way that they would be able to evade any worthwhile discovery. In expressing the above

views, I accept that superficially I am perhaps going a step further than the English authorities have done in so far as their rule of

court can apparently be interpreted to cover computer discovery. I have no hesitation, however, in making that extension.

Subject to the qualification which I have just mentioned, I accept the broad thrust of the English, Australian, American and other

authorities in common law jurisdictions relied on by the respondent. But I do not intend to review them in detail as it seems to me it is

sufficient to express approval of the judgment of Vinelott J. in Derby v. Weldon (No. 9) [1991] 1 W.L.R. 652. In that case, it was held

by the English High Court that the data base of a computer, in so far as it contained information capable of being retrieved and

converted into readable form, and whether stored in the computer itself or recorded in backup files was a “document” within the

meaning of the relevant English rule of court and that there was, therefore, power to order discovery of what was in that database

with the proviso that the discretion to order production for inspection and copying would not be exercised so as to give an

unrestrictive access to another party’s computer and such inspection would be ordered only to the extent that the parties seeking it

could satisfy the court that it was necessary for disposing fairly of the cause or matter or for saving costs, in the light of any

evidence as to what information could be made available, how far inspection or copying of the database was necessary or whether

the provision of printouts would suffice and what safeguards were required to avoid damage to the database and minimise

interference with its everyday use. Essentially, Vinelott J. was applying by analogy a judgment of Walton J. in Grant v. South Western

and County Properties Limited [1975] Ch. 185 where the question arose of whether a tape-recording of a telephone conversation was

a document. Two judges in that case took opposite views but Walton J. considered it an absurdity that if two parties to litigation

recorded a conversation, one on a tape recorder and one in shorthand the one would and the other would not be discoverable and he

said the following:

“The mere interposition of necessity of an instrument for deciphering the information cannot make any difference in

principle. A litigant who keeps all his documents in microdot form could not avoid discovery because in order to read the

information extremely powerful microscopes or other sophisticated instruments would be required. Nor again, if he kept

them by means of microfilm which could not be read without the aid of a projector.”

Vinelott J. agreed with Walton J. and applied the same principle to computers. It is important to observe that the judgment in Derby

and Co. Limited v. Weldon has already been cited with approval by this court in the judgment of Denham J. in Keane v. An Bord

Pleanála [1997] 1 I.R. 184.

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

“The appellant’s submissions accept that a database is a document. However they seem to be suggesting that it is only

what is at the forefront of the database on the date on which discovery is ordered that is discoverable. Thus if you

delete one version of a letter and type up a fresh one, the earlier version is not discoverable because to download it from

the hard drive of the computer would be to create a new document. This does not reflect the reality of how computers

operate. Once a particular calculation has been done on a computer then the only issue is one of retrieval and this is not

the same as creating a new document. It is submitted that a confusion between these two concepts lies at the heart of

the appellant’s submissions.”

As I have already indicated, I do not intend to rest my judgment on whether new documents are “created” or not as it may lead to

unnecessary confusion. Indeed the paragraph which I have just cited from the respondent’s submissions needs considerable

qualification. If, for instance, in the pre-computer days “one version of a letter” was replaced by a fresh version, the earlier version

would probably have been torn up and destroyed. Strictly speaking, it would have been necessary under an order for discovery to

have included the torn up letter in the affidavit of discovery as a document which had been in the possession of the discovering

parties but there would obviously have been no obligation to produce it. It would seem to me that the court’s discretion in ordering

discovery of matters buried in a computer should be directed towards confining the information obtained as far as possible to what

should reasonably have been available under traditional documentary storage. It is clear also from the authorities that the discretion

must take into account the other factors mentioned in Derby.

I would not, therefore, allow the appeal on either of the first two grounds. I now turn to consider the third ground which is altogether

more difficult. The key question that arises under this ground of appeal is whether in all the circumstances the discovery sought is

oppressive to an extent that it is unreasonable to order it. Terminology is important in this context and for the purposes of this

judgment at least, I intend to distinguish between the concept of discovery being “necessary” and discovery being “proportionate”. In

some of the case law and at times in the oral and written submissions, the issue of whether the discovery is disproportionate or not is

treated under the heading “necessary”. I suspect that is because the Rules of Court in this and other common law jurisdictions

provide that discovery must be relevant and necessary. They do not expressly provide that it must be, say proportionate or

reasonable or that it must not be oppressive. However, I think that the distinction is helpful. Although what is meant by “necessary”

in Irish law, and particularly as explained by Fennelly J. in Ryanair v. Aer Rianta [2003] 4 IR 264, a clear case, in my view, has been

made out on behalf of the respondent that the discovery sought is “necessary” in that sense. But discovery may be “necessary” and

yet so disproportionate as to render it unreasonable for a court to benefit the party seeking such discovery by making the order. For

example, one could conceive of cases where the expense of what might otherwise be “necessary” discovery would put the party out

of business. That might not necessarily prevent the order being made but a court would have to weigh up that factor quite heavily in

considering whether it should make the order. The distinction which I am making seems to me to be particularly important in the light

of what was clearly held in the Ryanair case. At p. 272 of the report, Fennelly J., in his judgment, said the following.

“On the question of necessity, counsel referred to the judgment of Kelly J. in the High Court in Cooper Flynn v. Radio

Telefís Éireann [2000] 3 I.R. 344. None of the authorities, in particular none of the Irish authorities, support the

defendant’s argument that the right to discovery is contingent on the exhaustion of other procedures. An applicant is

entitled to discovery even if the facts in question could be established by other means.”

I think that it is a reasonable corollary from this passage that if a party had a legitimate concern as to whether a particular category

of discovery more limited than what he was seeking might not be sufficient or even might not give him sufficient comfort in attempting

to prove his case, the fuller discovery being sought would be regarded as “necessary”. It has often been pointed out also that in

most cases if documents are relevant they are also necessary. This does not always apply however.

It would seem to me that a legitimate concern as to a gap in its proofs, if it had to rely only on category 8 in the discovery has been

demonstrated on behalf of the respondent. The only question, therefore, that has to be considered is whether in all the

circumstances the discovery of category 9 would be disproportionate and by that I more or less mean oppressive and unreasonable.

In considering this issue, the first question which I must ask myself is, in what circumstances should this court set aside the

discovery order of the High Court on this particular ground and in the general context in which the order was made. I have added

those last few words because, in my view, it is appropriate to take into account that the learned High Court judge was not just

dealing with an isolated discovery motion but was also conducting overall management of the case. This was a case assigned to the

competition court. Case management in that court and in the commercial court is particularly important and is directed towards the

efficient and speedy completion of the litigation. It has been stated more than once in judgments of this court that this court should

be slow to set aside any management ruling made in that context.

Quite apart from the special reluctance which this court would have in interfering with an order made in the course of case

management by the intended trial court, there are other universal principles which must also be considered. This court can only

concern itself with whether the learned trial judge applied the correct principles of law in making the discovery order now in

controversy. On an issue such as whether a particular discovery order is disproportionate or not, there may well be two perfectly

legitimate points of view.

I do not think, therefore, that the question which I have to consider is whether I agree with the order made or not but rather

whether the learned trial judge applied the correct principles in arriving at his decision and whether on the basis of those principles it

was open to him to make that decision. If I had been the High Court judge hearing this application for discovery, I would have had

great difficulty deciding whether I should make the order or not particularly in the light of the sound argument put forward on behalf

of the respondent that there was a gap or at least a potential gap in its necessary proofs if the full discovery sought was not made. I

am, therefore, unable to find that there was an error in legal principle in the view adopted by McKechnie J. and I am quite satisfied

from the transcript that he understood and considered the arguments on both sides. Just to take one simple example, if one reads the

transcript of the hearing on the 16th May, 2006 (which was one of a number of hearings) at p. 11 there is the following bit of

dialogue between McKechnie J. and Mr. Travers, counsel for the appellant.

“Mr. Justice McKechnie: How is the plaintiff going to differentiate between the 1800 numbers, which that may have had

on a direct bearing on the allegation of discriminatory pricing and the use of 1800 numbers, which will not. Let me repeat

that: How is the plaintiff going to differentiate, how is he going to make use of the documentation in a meaningful way to

support the allegation, whether it is right or wrong, of discriminatory pricing on behalf of Eircom when, in fact, the 1800

numbers can be used for more than one purpose?

Mr. Travers: Well, what we are accepting, if you like, by way of an alternative to our main submission that really this

discovery is not necessary, is that we would accept in principle all of whatever increases that were attributable to, if you

like, this arbitrage opportunity. Therefore the plaintiff has to come into court and demonstrate that the potential cake

lost to it is so large, and come into court to prove how much of that cake it might reasonably have expected to have

obtained.”

There was further extensive discussion and Mr. McDermott explained in detail to the judge why the concession already referred to

was not attractive to the respondent and was not really in the last analysis a concession. At that hearing on the 16th May, 2006, the

learned High Court judge was at pains to point out that he had clearly understood that the appellant’s case on the previous occasion

had been that there was no need to make an order in relation to category 9 because the information would be included under

category 8. He, effectively, cross-examined Mr. Travers about this, citing parts of an earlier transcript which Mr. Travers was forced

to disown. All Mr. Travers could say was that it was never the understanding of the appellant that it would provide all of the

information regarding the total volume of traffic, at which point he was interrupted by McKechnie J. who pointed out that category

No. 9 was meaningless in that event. At that point, Mr. Travers referred to the letter written to the judge at his request on behalf of

the appellant a few days earlier in which it was stated that there would be “26 billion call data records”. Like the trial judge, I do not

find myself impressed by these kind of figures as they are meaningless unless properly interpreted to the court. From the general tone

of the affidavits and correspondence, I do not get the impression that the appellant from the beginning regarded the discovery under

category 9 as being so extreme that it would be impossible to comply with it. The major emphasis on alleged disproportionality seemed

to emerge at the later stages. The appellant’s argument that the discovery sought was wholly disproportionate would have been more

impressive if, from the beginning, there was clear evidence as to why that was so giving very precise details of the time involved, the

number of personnel involved, the confidentiality aspect etc., all of which could have been dealt with in reply by the respondent’s

own experts. It was stated in the written and oral submissions of the appellant in this court that complying with an order for

discovery under category 9 would require the purchase of additional computer hardware costing in the region of €150,000. The

respondent, in its written submissions, claims that that figure was never adduced in evidence and has been “plucked out of the air”.

The respondent legitimately complains that “evidence” of that kind ought not to be put forward by way of submission. It must be

adduced in the ordinary way with an opportunity to have it tested in court and responded to, if necessary, by counterevidence. My

overall impression is that essentially, the appellant was trying unsuccessfully to frighten the court by the mention of what superficially

at least would be large figures but figures unsupported by solid evidence. I see nothing perverse in the non-acceptance of this

argument by the learned High Court judge.

Finally, there is another aspect of the case which dissuades me from advocating any interference with the order of the learned High

court judge. Whilst it is perfectly obvious that on any view, considerable time and expense will be involved in furnishing the category

9 discovery, there must be offset against that the potential saving in time and cost which may well materialise when the discovery is

completed. It would seem to me that at that stage it is likely that each party will be in a strong position to form a view as to who in

reality is going to win this case or if there is to be a win to what extent. At best, the case may more easily settle. But short of

settlement there would be every probability, in my view, of considerable narrowing of issues either by agreement or as a consequence

of case management.

For this reason also, I would not favour some kind of partial hearing of the case based perhaps on the concession and/or one type of

phone call. I think that would add to the litigation and to the appeals and possibly, render it even more uncertain as to the ultimate

outcome of the action. At any rate, it does not seem to me that any compromise position was really argued for. Having considered all

the options and for the reasons which I have clearly indicated, I would dismiss the appeal.