Data Protection Commissioner's enforcement notice dismissed for lack of statutory reasons despite settlement context.

THE SUPREME COURT

[Appeal No. 369/12]

Fennelly J.

O'Donnell J.

Clarke J.

Between:-

EMI Records (Ireland) Limited,

Sony Music Entertainment Ireland Limited,

Universal Music (Ireland) Limited and

Warner Music Ireland Limited

Applicants / Respondents

and

The Data Protection Commissioner

Respondent / Appellant

and

Eircom Limited

Notice Party

Judgment of Mr. Justice Clarke delivered the 3rd July, 2013.

1. Introduction

1.1 Much controversy has raged in recent years, at a philosophical, political and legal level, about the relative entitlements of internet

users and copyright owners. While that debate ranges far and wide and forms the backdrop to the issues which arise in these

proceedings, this judgment is only concerned with two specific questions. While it might be said that some of the issues which

potentially arise between these parties do raise broad questions as to the precise legal rights enjoyed by private internet users, on

the one hand, and copyright owners, on the other, the specific questions which this court currently has to answer are much narrower

indeed.

1.2 The applicants/respondents (“the record companies”) are all major players in the music industry and own copyright in a significant

number of valuable musical works. The notice party (“Eircom”) is involved in these proceedings as a result of its provision of internet

services. There has, in recent years, of course, being much controversy about alleged unlawful copying, not least on the internet, of

music (and indeed other works) in which copyright is held.

1.3 In circumstances to which I will shortly turn the record companies brought proceedings against Eircom arising out of what was

said to have been unauthorised and unlawful sharing of copyright material facilitated by internet services provided by Eircom. Those

proceedings were settled but it was asserted by the respondent/appellant (“the Commissioner”) that implementation of certain

aspects of that settlement might amount to a breach of data protection law. The parties to the settlement applied to court for a

ruling on the consistency of the settlement with data protection law and, in circumstances which it will be necessary to address, the

Commissioner ultimately declined to participate. The court ruled that implementation of the settlement would not be in breach of any

relevant law.

1.4 However the Commissioner appears to have remained of the view that the implementation of certain aspects of the settlement

would be unlawful and, following a complaint, issued an Enforcement Notice to Eircom under the provisions of the Data Protection Act,

1988, as amended. Eircom appealed against the Enforcement Notice, as permitted by the same statutory regime, and the record

companies sought to be joined in that appeal. However before any questions came to be determined in that appeal the record

companies commenced these judicial review proceedings seeking to have the Enforcement Notice quashed. The High Court (Charleton

J.) agreed with the record companies' case and quashed the Enforcement Notice. The Commissioner has appealed to this Court

against that finding. The issues which arise on the appeal generally are, at least on one view, wide ranging involving important

questions of both national and European Union law. However as a result of a case management process two issues have come to trial

as a first module of the appeal. The first is an issue raised by the Commissioner as to whether judicial review is appropriate in the light

of what is said to be the more applicable remedy of the statutory appeal to which reference has been made. The second issue

concerns the question of whether the trial judge was correct to quash the Enforcement Notice on the basis of absence of reasons.

1.5 This judgment is directed solely to those two questions. In order to better understand the issues which arise and how it comes to

pass that those two issues currently fall for decision it is appropriate to start by referring to the procedural history.

2. Procedural History

2.1 In 2008, the record companies sued Eircom in an attempt to restrict what was said to be unauthorised sharing of copyrighted

material over the internet allegedly being carried on by customers of Eircom. However, while the matter was at hearing in the High

Court, the parties asked for an adjournment during which they negotiated a settlement of the dispute. One product of those

negotiations was the Graduated Response Protocol (the “Protocol”). The Protocol was filed in Court on the 29th January, 2009.

Although some of its terms have subsequently been altered, the implementation of the terms of the Protocol is at the core of the

dispute in these proceedings.

2.2 As already noted, on becoming informed of the Protocol, the Commissioner raised a number of data protection concerns with

Eircom and discussions between those two parties continued between the 11th May, 2009, and the 17th December, 2009. On the

15th January, 2010, the Commissioner wrote a formal letter to Eircom setting out his concerns. The proceedings between the record

companies and Eircom were re-entered in the High Court, as a result of the intervention of the Commissioner, for the purposes of

having those concerns adjudicated upon. In advance of a hearing, however, the Commissioner sought assurances from the record

companies and Eircom to the effect that they would either pay his costs and/or would not seek costs against him. The record

companies and Eircom declined to give such assurances. Arising, it would appear, out of those concerns about costs the

Commissioner declined to appear at that hearing.

2.3 Nevertheless, the hearing regarding the data protection issues went ahead before Charleton J. in the High Court. After hearing

submissions from the record companies and Eircom, (who both urged that there was no data protection barrier to the implementation

of the Protocol) the court ruled on the 16th April, 2010, amongst other things, that there were adequate procedural safeguards in the

Protocol such that it was in accordance with Directive 2009/140/EC, ("the Directive") which governs the law in this area and,

therefore, that there was no legal impediment to its implementation. The operation of the Protocol commenced in August 2010.

2.4 On the 9th December, 2010, a customer of Eircom received an infringement notice under the terms of the Protocol stating that

she had uploaded material to the internet in breach of her contract with Eircom. This notice had been sent in error to a person

uninvolved in the alleged illegal uploading due an oversight arising out of the changing of the clocks in October 2010. This notification

was then referred to the Commissioner by a son of the recipient who said that he, rather than his mother, was the user of the

internet service in question. This prompted further correspondence between the Commissioner and Eircom, following which Eircom

acknowledged that a mistake had been made and that the notice should not have been sent to the relevant recipient.

2.5 When the complainant concerned was informed of this development, a further complaint was made in February 2011 to the effect

that Eircom was acting in breach of his right to privacy by monitoring his internet activity without his permission. He alleged that this

amounted to an ongoing breach of data protection law and requested that action be taken by the Commissioner against Eircom in

respect of this alleged violation.

2.6 The Commissioner continued his investigation following receipt of this further complaint and, on the 16th September, 2011, he

wrote to Eircom seeking further clarification on a number of issues. A response to this letter was sent by Eircom on the 7th October,

2011. This correspondence was shared with the record companies. On the 25th November, 2011, the Commissioner indicated via email

to Eircom his view that the Protocol breached a number of provisions of the Data Protection Acts 1988-2003 (“the Data Protection

Acts”) and the European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications)

Regulations 2011. The Commissioner drew attention to the judgment of the European Court of Justice in Case C-70/10 Scarlet

Extended v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), which had been delivered the previous day. The

initial view of the Commissioner was that this judgment would render any Enforcement Notice moot as it “has made clear that the

Protocol operated by Eircom is unlawful as a matter of European Law and that Eircom is therefore obligated to terminate its

operation.” The Commissioner indicated that an Enforcement Notice was contemplated and included a draft of the contraventions

which it was intended to cite in the Notice. The Commissioner asked Eircom for its views on this matter by close of business on the

28th November, 2011, allowing only one full working day to respond. In response, via email on the 28th November, 2011, Eircom

indicated that it was of the opinion that the judgment in Scarlet Extended had “little relevance to the factual and legal circumstances

governing Eircom’s Graduated Response” and asked whether the Commissioner could identify any specific aspect of the judgment

which supported a contention that the Protocol was unlawful. Eircom also indicated its surprise regarding the proposal to issue an

Enforcement Notice and stated its intent to appeal any such Notice.

2.7 The Enforcement Notice was issued by the Commissioner against Eircom on the 5th December, 2011, and required Eircom to

immediately cease its operation of the Protocol, destroy any customer data held by it pursuant to the scheme and take any other

steps necessary to ensure compliance with data protection law within sixty days.

2.8 It is appropriate, in my view, to note that the Commissioner's action in seeking to advance matters with very great speed over a

period of just ten days in late November and early December, 2011 must be contrasted with the relatively leisurely pace with which

these issues had been pursued up to that time. It seems appropriate to infer that the change of pace resulted from the

Commissioner's view of Scarlet Extended but it now appears to be accepted that the Commissioner's initial impression of the

implications of that case for the issues which arise in respect of the implementation of the Protocol was mistaken. Certainly there is

nothing in the evidence before the Court to suggest that the issue of an Enforcement Notice had suddenly become urgent for any

particular reason.

2.9 It is, of course, the case that all public authorities are legitimately concerned about incurring the costs of litigation. However,

litigation can be an inevitable aspect of the carrying out by many public authorities of their statutory functions. But it does have to

be said that one of the best ways of minimising the risk of unnecessary litigation (with its attendant costs) is by avoiding precipitated

action. Likewise, it does need to be noted that both the High Court and the Supreme Court have now been engaged in significant

hearings, doubtless at substantial cost, on purely procedural questions which could have been avoided had the Commissioner either

become involved in the hearing before Charleton J. which was set up to determine whether there was any legal barrier to the

implementation of the Protocol and/or had not initially opposed the application by the record companies to be joined to the statutory

appeal in the Circuit Court. In either of those eventualities it is likely that the substantive issues which undoubtedly remain for

decision could have been determined in proceedings involving the Commissioner without incurring the significant additional costs which

now have arisen in determining purely procedural questions.

2.10 In any event, as previously indicated, Eircom elected to exercise its right of appeal to the Circuit Court pursuant to s. 26 of the

Data Protection Acts on the 22nd December, 2011. That appeal sought to set aside the Notice and raised a number of grounds of

appeal.

2.11 On the 20th January, 2012, the record companies, by Notice of Motion, sought to be joined as a notice party to the appeal. For

reasons that will be analysed later the record companies only enjoyed at best a conditional right to appeal. The appeal and the

application of the record companies were listed before the Circuit Court on the 24th January 2012 and were adjourned on consent on

that date to allow for the filing of a replying affidavit. In that replying affidavit, the Commissioner reiterated that the Enforcement

Notice was directed solely at Eircom as his concerns related to the data protection issues between Eircom and its subscribers. Whilst

accepting the serious nature of the issues raised by the record companies, the Commissioner deposed to the fact that he was of the

opinion firstly, that such issues were not relevant to the appeal and secondly, the joinder of the record companies would add greatly

to the length and costs of the appeal due to the breadth of the issues likely to be raised. In those circumstances, the Commissioner

asked the Court, if it was persuaded that the record companies have “something to add to it over and above Eircom” and was minded

to grant the application, to do so on terms where the record companies would bear their own costs of participation.

2.12 On the 13th February, 2012, the record companies wrote to the Commissioner questioning the validity of the Enforcement Notice

and calling on the Commissioner to withdraw it. If the Notice was not withdrawn within seven days, the record companies threatened

to bring judicial review proceedings. In the interim, there had been a number of one week adjournments. Then, on the 15th February

2012, counsel for the Commissioner sought a hearing date for the application to join but counsel for the record companies objected to

this and sought a further adjournment to enable the record companies to issue judicial review proceedings. This adjournment was

granted. A letter in response to that of the 13th of February, 2012, was sent by the Commissioner on the 17th February, 2012. This

letter attempted, inter alia, to outline again the position of the Commissioner regarding the joinder of the record companies to the

statutory appeal. At paragraph 6 of that letter, it said, “[o]n 15 February our Counsel explained to the Circuit Court that whilst we

did not see that you were adding anything to the appeal we had no major difficulty if the Court was minded to join you provided

that, as an intervenor in the appeal you paid for your own costs.”

2.13 The record companies sought leave to bring judicial review proceedings (being these proceedings) on the 28th February, 2012.

Amongst the reliefs claimed in these proceedings is an order of certiorari in respect of the Enforcement Notice and a number of

declarations that the Enforcement Notice was made ultra vires by the Commissioner. Leave was granted on the same day by Kelly J.

who further ordered a stay on the Circuit Court proceedings until the determination of the proceedings.

2.14 The judicial review proceedings came on before Charleton J. in the High Court. Eircom indicated that it was not opposing the

relief sought and reserved its right to participate in the hearing. However, Eircom was asked by the High Court judge to address the

court in relation to the validity of the Enforcement Notice and did so. In his judgment delivered on the 27th June, 2012, EMI Records

(Ireland) Limited & Ors v The Data Protection Commissioner & Anor [2012] IEHC 264, Charleton J. analysed in detail the national and

European legislation and case-law on this topic. In particular, he focused on the potential conflict between the privacy rights of some

individuals and the intellectual property rights of others. He summarised his findings at para. 8.10, where he stated:

“To sum up, it is clear that the state of the law was regrettably misconstrued by the Data Protection Commissioner. In

that respect, he is not to be faulted as the law is complex. The law does not, however, set intellectual property rights

at nought because of the involvement of the internet. In due course, clarity may be brought to the law by a

comprehensive ruling where an appropriate case arises before the Court of Justice of the European Union. In the

meanwhile, the nature of the injunction sought; the limitation to and the duration of any monitoring; the breadth or

narrowness of the scope of any order; the nature of the equipment to be used; the potential for the interference of

that equipment with the proper use of the existing systems of the intermediary; the balance of the burden between the

parties as to equipment, personnel and cost; the intrusiveness of any remedy into legitimate privacy and the

entitlement to communicate; and any potential data protection impingements, together constitute the main factors in a

court determining where the proportionality of an injunctive remedy to the mischief of the improper use of intellectual

property online is to be struck or whether, on the other hand, an injunction application is to be refused, despite legal

compliance, on discretionary grounds.”

2.15 However, as will become apparent, for present purposes it is the findings as set out in sections 11 and 12 of his judgment,

dealing respectively with arguments relating to the provision of reasons in the Enforcement Notice and alleged abuse of process

through the bringing of judicial review proceedings, which are relevant to the issues currently before this court.

2.16 In that context it was alleged by the record companies that the Commissioner had failed to comply with s. 10(4)(a) of the Data

Protection Acts, which provides that: “An Enforcement Notice shall … specify any provision of this Act that, in the opinion of the

Commissioner, has been or is being contravened and the reasons for his having formed that opinion …”. Having found that the

Notice contained “no reasons whatsoever”, Charleton J. held that their omission “vitiated its validity”.

2.17 The Commissioner had contended that the bringing of judicial review proceedings by the record companies was an abuse of

process in the light of the availability of an alternative option in the form of the statutory appeal to the Circuit Court which option

was said to be a more appropriate remedy. However, this argument was rejected by the court, holding that although Eircom had an

automatic right of appeal, “no such appeal is automatically open to the record companies”. Later in section 12, Charleton J. stated

that:

“Both Eircom and the recording companies have an entitlement to an adjudication by the Data Protection Commissioner

in accordance with law. This has not occurred. Judicial review is therefore a proper remedy.”

Charleton J. then went on to assess whether judicial review was appropriate in the circumstances of the case, citing passages from

the judgment of Denham J. in Stefan v Minister for Justice [2001] 4 I.R. 203 and Barron J. in McGoldrick v An Bord Pleanála [1997] 1

I.R. 497. Charleton J. concluded at para. 12.4:

“This Court is convinced that in all the circumstances of the case that judicial review was properly and appropriately

invoked. The Court has a discretion. The Court exercises that discretion by stating that the choice of judicial review was

not misplaced, but was clearly required on the facts, and that legal guidance was properly sought in and from the High

Court.”

2.18 Therefore, the court quashed the Enforcement Notice for its failure to provide reasons. It is this judgment of Charleton J., which

is the subject matter of this appeal.

3. Supreme Court Proceedings to Date

3.1 The notice of appeal in this case was lodged on the 31st July, 2012. This appeal was one of those in which a process of micro-

management was engaged in by direction of the Chief Justice. The purpose of that procedure, which is at present best described as

experimental, is to ensure, as a result of a series of case management hearings before a single judge of this Court, that the appeal is

focused and that the materials which the court will need to consider in detail in order to resolve the appeal are presented in a way

most conducive to permitting a time-effective oral hearing and to facilitate a concentration by the court on those materials central to

the issues raised on the appeal. The record companies had lodged their full submissions on the 9th November, 2012, and the

responding submissions of the Commissioner were lodged on the 29th November, 2012.

3.2 On the 13th December, 2012, I directed that there be a modular trial of this appeal with the following two issues to be addressed

first:

(i) the correctness or otherwise of the argument raised by the Commissioner that the record companies were not

entitled to invoke judicial review in circumstances where Eircom had already brought a statutory appeal against the

Notice and where the record companies had sought to be joined in that appeal; and,

(ii) the correctness or otherwise of the argument by the record companies that Charleton J. was correct to hold

that the Enforcement Notice was invalid for failure to give adequate reasons.

I additionally ordered that the submissions of the parties already filed be cut down and amended to deal with these two issues only.

Finally, I extended time for the filing of the submissions by Eircom, which were lodged on the 20th January, 2013.

3.3 I will now turn to the reasons behind this sequencing of the hearing. Both of the issues outlined above have the potential to bring

the proceedings to an end and render it unnecessary for this Court, on this appeal, to consider the substantive issues underlying the

proceedings. First, in regard to issue (i), if the Commissioner is correct in saying that the proceedings should not be entertained

because an appeal is a more appropriate remedy, then that would bring the proceedings to an end in this Court and the Circuit Court

would be able to continue the presently adjourned s. 26 statutory appeal. Alternatively, if the record companies, who are supported

by Eircom on this point, are correct in seeking to stand over the High Court ruling to the effect that the Enforcement Notice should be

quashed because there was a failure to comply with the statutory duty to provide reasons, then none of the other issues which arise

on this appeal would fall to be determined.

3.4 None of the parties contest that at the heart of these proceedings lie significant and important questions relating to privacy and

intellectual property rights which will need to be determined in due course. In essence, those issues can be summarised into the

question of whether the Protocol, which is a product of a private contractual arrangement, can legitimately result in a subscriber to

an internet service provider having their broadband service terminated by that provider on foot of reports of alleged illegal uploading

received through a third party (in this case, the record companies). Obviously, the record companies are seeking to protect their

intellectual property rights by restraining the ability of internet subscribers from sharing the record companies’ material without any

form of permission or remuneration. However, the process through which they seek to achieve this necessitates monitoring in some

form of the subscriber’s internet usage. The monitoring process is not presently subject to any detailed regulation or independent

oversight or scrutiny. It is thus contended that monitoring of this nature constitutes an invasion of that subscriber’s right to privacy

and a violation of their rights under the Data Protection Acts and under EU law.

3.5 One can imagine that the methods through which monitoring occurs and breaches are identified, and the consequences of such

breaches, have the potential to differ significantly in the absence of some form of overarching regime of regulation. Therefore, the

extent to which rights are engaged, and are in conflict, will vary depending on the circumstances of each individual case. It is helpful,

therefore, to set out a brief account of how the Protocol operates in the present case.

3.6 The IP address of any particular subscriber is allocated typically on a daily basis by an internet service provider, so that a user will

have a different IP address from one day to the next. The record companies, through their agents, receive IP addresses of internet

users who have allegedly uploaded material to the internet where the intellectual property rights of such material belongs to the

record companies. The record companies or their agents cannot identify the alleged wrongdoer as they cannot link the IP address to

any individual subscriber. The record companies, therefore, communicate this information and the respective IP addresses to Eircom,

who do have the ability to link the allegedly offending IP addresses supplied with the appropriate subscribers. Eircom is then obliged

under the Protocol to determine whether a breach of intellectual property rights has occurred on the basis of the information provided

by the record companies. Eircom, itself, does not engage in any form of verification in respect of the information it receives. Once

Eircom has determined that a breach has occurred, it notifies the subscriber identified of that infringement. Under the terms of the

subscriber’s contract with Eircom, after three such infringements, the subscriber’s internet access will be suspended for a week. A

fourth infringement will then result in a withdrawal of service by Eircom. The identity of any relevant subscriber is at no point provided

to the record companies or any other person. There is also no restriction on a subscriber, who has had his service withdrawn, seeking

access to the internet via another internet service provider operating within the State. If the subscriber receives other services from

Eircom, these services are unaffected by the withdrawal of internet access.

3.7 While broad questions concerning the compatibility of such a regime with national and European Union law potentially arise it is

important, in the context of the issues currently before the court, to record that those questions may not properly arise in these

proceedings if the issues identified for this first module are determined in a particular way. If, for example, judicial review is found to

be inappropriate then the statutory appeal would be the vehicle in which any such questions ought to properly be determined.

Likewise if the determination of the trial judge that the Enforcement Notice should be quashed for lack of reasons is upheld then those

broader issues cannot be addressed unless and until there exists new proceedings involving a properly reasoned Enforcement Notice.

3.8 Against the background of that analysis I now turn to the first issue relating to the availability of the statutory appeal. I propose

first to consider the general principles applicable in that area.

4. The availability and appropriateness of an appeal

4.1 In the State (Abenglen Properties Ltd) v Dublin Corporation [1984] I.R. 381 this Court had to consider a case where an application

was made to a local planning authority for permission to erect a mixed office and residential development. The relevant permission

was granted subject to a number of conditions. The applicant was dissatisfied with the conditions imposed and sought by judicial

review to quash the conditional permission as having been granted ultra vires. However, it was also open to the applicant to pursue

an appeal to An Bord Pleanála under the relevant statutory regime. In considering which avenue was the more appropriate for the

applicant to take in the circumstances, O’ Higgins C.J. stated, at p. 393:

“The question immediately arises as to the effect of the existence of a right of appeal or an alternative remedy on the

exercise of the court's discretion. It is well established that the existence of such right or remedy ought not to prevent

the court from acting. It seems to me to be a question of justice. The court ought to take into account all the

circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative

remedy and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach

of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial.

Again, if an appeal can only deal with the merits and not with the question of the jurisdiction involved, the existence of

such ought not to be a ground for refusing relief. Other than these, there may be cases where the decision exhibits an

error of law and a perfectly simple appeal can rectify the complaint, or where administrative legislation provides

adequate appeal machinery which is particularly suitable for dealing with errors in the application of the code in question.

In such cases, while retaining always the power to quash, a court should be slow to do so unless satisfied that, for some

particular reason, the appeal or alternative remedy is not adequate.”

4.2 In that case, this Court was satisfied that the appeal provided under statute to An Bord Pleanála was adequate as An Bord

Pleanála had full jurisdiction to consider all aspects of the appeal and also taking into account that it was open to An Bord Pleanála to

state a case to the High Court. It is notable that the passage cited does leave open the possibility that there may be certain cases

where a court, for good reason, can proceed to make an order of certiorari even if an appeal or alternative remedy is available.

4.3 Therefore, it follows that where there is an adequate alternative remedy available and an applicant for judicial review fails to avail

of that alternative, the court is likely to exercise its discretion against the applicant.

4.4 However, it should also be noted that the mere presence of an appeal mechanism, in and of itself, does not operate as a bar to

relief in judicial review proceedings. Rather, as Denham J. pointed out at para. 26 in Stefan v Minister for Justice [2001] 4 I.R. 203:

“It is clear that whilst the presence of an alternative remedy, an appeal process, is a factor, the court retains

jurisdiction to exercise its discretion to achieve a just solution.”

4.5 Some examples are worth noting. In McGoldrick v An Bord Pleanála [1997] 1 I.R. 497, Barron J. was faced with the question of

whether a statutory appeal or judicial review was appropriate in circumstances where there was an allegation that a planning

authority had breached the obligation to obey fair procedures by determining the matter in question on a version of the facts which

had not been fully disclosed to the applicant. Barron J. identified the following as being the key considerations in any such

determination, at p. 509:

“The real question to be determined where an appeal lies is the relative merits of an appeal as against granting relief by

way of judicial review. It is not just a question whether an alternative remedy exists or whether the applicant has taken

steps to pursue such remedy. The true question is which is the more appropriate remedy considered in the context of

common sense, the ability to deal with the questions raised and principles of fairness; provided, of course, that the

applicant has not gone too far down one road to be estopped from changing his or her mind.”

Applying these criteria, Barron J. felt that, as the applicant had yet to receive a fair determination on issues of fact, an order of

certiorari was appropriate in the circumstances.

4.6 Amongst other reliefs sought by the applicant in O’Connor v The Private Residential Tenancies Board [2008] IEHC 205 was an

order of certiorari in respect of certain decisions of the Private Residential Tenancies Board and the prior decision of its adjudicator,

including a decision to allow the notice party an extension of time to make a complaint. It was also open to the applicant, under s.

123 of Residential Tenancies Act 2004, to appeal to the High Court from the Tribunal in respect of a point law. After citing the

passage from Abenglen quoted above, Hedigan J. ruled as follows:

“It is clear here that the applicant had the opportunity to appeal the Board’s decision to extend the time for the notice

party to bring his application to it. He did not avail of this when he became aware of it. As I have found, this was when

he received the copy letter of the notice party referring to the extension in June, 2005. In short, he had an adequate

alternative remedy but did not avail of it. As to this and his other complaints he not only was aware of the alternative

remedy provided by s. 123, he actually availed himself of it. When, upon the application of the notice party, the Master

of the High Court struck out his proceedings brought under s. 123, the applicant did not appeal. The fact that the

applicant may have decided that judicial review was the more convenient remedy cannot avail him here.

…

It is clear to me that the entirety of the case made herein by the applicant could have been made by way of an appeal under s. 123,

using a procedure specifically designed for that purpose by the legislature and, in this particular case, capable of dealing with each

and every one of his complaints. This being so, even were I to have extended the time, I would still have refused the reliefs sought

on the basis that there existed an alternative remedy of which the applicant did not avail himself.

4.7 A recent summary of the law in this area can be found in the judgment of Hogan J. in Koczan v Financial Services Ombudsman

[2010] IEHC 407. At paras. 19 and 20 of his judgment, the following is said:

“19. There are, doubtless, certain categories of cases where the legal argument raised falls properly to be

canvassed by means of judicial review rather than by way of a statutory appeal. As indicated in Square Capital, an

argument directed towards a total lack of subject matter jurisdiction is perhaps one such case. Judicial review

might also be appropriate where the complaint relates to the integrity or basic fairness of the decision-making

process, so that in justice the decision-maker ought to be afforded an adequate opportunity of defending his or

her position in judicial review proceedings which admit of the possibility of cross-examination and oral evidence.

There may well be other cases - such as, e.g., those touching on the constitutionality of legislation or the validity

of statutory instruments - where the legal issues cannot properly be raised by way of appeal (whether by virtue of

the special rule contained in Article 34.3.2 of the Constitution or otherwise) and which must be dealt instead with

by means of a declaratory action: cf. the discussion of this issue in the judgment of Kearns J. in SM v. Ireland

(No.1) [2007] IESC 11, [2007] 3 I.R. 283.

20. These cases must be, however, be regarded as the exception rather than the rule. It is well established that

the Oireachtas must be presumed to know the law and the Oireachtas is, of course, well aware of the existence

and parameters of the High Court’s judicial review jurisdiction. It follows, therefore, that the creation by legislation

of a right of statutory appeal from an administrative decision which is not confined to an appeal on a point of law

generally raises the inference - albeit a rebuttable inference - that the Oireachtas “must have intended that the

Court would have powers in addition to those already enjoyed at common law” in respect of its judicial review

jurisdiction: see Dunne v. Minister for Fisheries [1984] I.R. 230 at 237 per Costello J.. That in turn suggests that

the Oireachtas further intended that the statutory appeal would form the vehicle whereby the entirety of an

appellant’s arguments could be ventilated in such an appeal without any need to commence a further set of

proceedings, at least to the extent that it was procedurally possible to do so: see, e.g., the comments in this

regard of Laffoy J. in Teahan v. Minister for Communications (No.1) [2008] IEHC 194.”

4.8 Thus the overall approach is clear. The default position is that a party should pursue a statutory appeal rather than initiate

judicial review proceedings. The reason for this approach is, as pointed out by Hogan J. in Koczan, that it must be presumed that the

Oireachtas, in establishing a form of statutory appeal, intended that such an appeal was to be the means by which, ordinarily, those

dissatisfied with an initial decision might be entitled to have the initial decision questioned.

4.9 However, there will be cases, exceptional to the general rule, where the justice of the case will not be met by confining a person

to the statutory appeal and excluding judicial review. The set of such circumstances is not necessarily closed. However, the principal

areas of exception have been identified. In some cases an appeal will not permit the person aggrieved to adequately ventilate the

basis of their complaint against the initial decision. As pointed out by Hogan J. in Koczan, that may be so because of constitutional

difficulties or other circumstances where the body to whom the statutory appeal lies would not have jurisdiction to deal with all the

issues. Likewise, there may be cases where, in all the circumstances, the allegation of the aggrieved party is that they were deprived

of the reality of a proper consideration of the issues such that confining them to an appeal would be in truth depriving them of their

entitlement to two hearings.

4.10 However these and any other examples must be seen as exceptions to the general rule. In addition, the conduct of the party

seeking to question the initial decision is a factor although not, as Barron J. pointed out in McGoldrick, necessarily a decisive one.

4.11 That there is at least a form of statutory appeal available in this case, that an appeal was initiated by Eircom and that the

record companies sought, at least initially, to join in that appeal is, of course, the case. The default position, must, therefore, be that

such appeal is the appropriate vehicle by which to resolve any issues concerning the Enforcement Notice in this case. The real

question which arises is as to whether this is one of those exceptional cases where a party, such as the record companies, is entitled

to seek judicial review notwithstanding the conditional availability (and, indeed, partial invocation) of any right to appeal. I, therefore,

turn to that question.

5. Is this case an exception?

5.1 Before considering some of the established circumstances which have been held to amount to an exception to the general rule, it

is important to note one unusual feature of this case. The applicants for judicial review are, of course, the record companies and not

Eircom. As has already been pointed out the record companies only have a conditional right of appeal. That feature of the present

case is one which needs a proper analysis, for the overall test is, of course, whether, in all the circumstances, an appeal would

provide an adequate remedy. The fact that a party's entitlement to appeal is conditional must, therefore, represent a potentially

significant factor in the Court's analysis. However, before turning to that aspect of the case, I propose to consider some of the

relevant well established bases on which the Courts have, in appropriate cases, been prepared to hold that an appeal did not provide

an adequate remedy.

5.2 As already noted, one of the most common bases on which the courts have been persuaded to accept that judicial review may, in

the circumstances of an individual case, be the appropriate remedy, notwithstanding the availability of a statutory appeal, is where

aspects of the right of appeal are found to be inadequate to allow all of the issues which the aggrieved party legitimately wishes to

raise to be determined. The reason for this is obvious. The whole point of an appeal system is that an aggrieved party is entitled to

seek to have the appellate body concerned review the initial decision in accordance with the scope of the appeal provided for.

However, the scope of appeal can vary from case to case. In some circumstances the appeal amounts to a complete re-hearing so

that what transpired before the body making the initial decision is almost irrelevant save as to background. In some cases an appeal

will lie against the full decision save that the appeal will be conducted on the basis of the evidence or materials considered at first

instance and, frequently, therefore, by affording significant weight to the assessment of the facts by the first instance body.

5.3 More restrictively still, an appeal may only lie on a point of law so that much greater weight may be attached to the decision at

first instance. There can, of course, be variations on those themes. The type of appeal which may lie can, therefore, fall somewhere

along a broad spectrum. It follows that the issues which can be canvassed on appeal are likewise varied. In addition, the extent to

which an appellate body can involve itself in a consideration of the adequacy of the process by which the original decision was made

or other issues which typically arise in judicial review proceedings concerning the lawfulness of the original decision can vary

considerably.

5.4 It follows that a court, when considering whether an appeal is an adequate remedy, is required to analyse the complaints made by

a party seeking judicial review and determine whether, in the light of those complaints, the appellate body in question can consider

same and, if they be made out, provide an appropriate remedy. Even if the appellate body has a sufficiently broad jurisdiction, there

may be cases where, looking at the process as a whole, a party might nonetheless be said to have been deprived of their legal

entitlement by being required to pursue an appeal from a fundamentally defective first instance determination, thereby depriving the

party concerned of their statutory entitlement to both a hearing and an appeal.

5.5 It is against that background that the statutory appeal at issue in these proceedings needs to be assessed. The appeal is

provided for by s. 26 of the Data Protection Acts, which provides as follows:

"(1) An appeal may be made to and heard and determined by the Court against—

(a) a requirement specified in an Enforcement Notice or an information notice,

…. and such an appeal shall be brought within 21 days from the service on the person concerned of the relevant

notice or, as the case may be, the receipt by such person of the notification of the relevant refusal or decision.

…

(3) (a) Subject to paragraph (b) of this subsection, a decision of the Court under this section shall be final.

(b) An appeal may be brought to the High Court on a point of law against such a decision; and references in this

Act to the determination of an appeal shall be construed as including references to the determination of any such

appeal to the High Court and of any appeal from the decision of that Court…."

An appeal to the Circuit Court is governed by Order 60 of the Rules of the Circuit Court. Order 60 Rule 6 provides that:

“The court may, upon application to it by any party to an appeal, direct that such other person or persons be joined as

notice parties to the appeal as the court shall deem fit upon such terms as the court shall direct.”

5.6 Some features of that statutory regime require noting. First, it should be noted that “the Court”, for the purposes of the section,

is (by virtue of s. 1 of the 1988 Act) the Circuit Court. The appeal to the Circuit Court is simply described as "an appeal". However,

the appeal which may be brought to the High Court under s. 26(3) is described as an appeal "on a point of law" against the decision

of the Circuit Court. It might well be argued, therefore, that the appeal which is available in respect of an Enforcement Notice to the

Circuit Court is broader in nature than the appeal which can lie from the decision of the Circuit Court to the High Court. There is a

range of statutory regimes which make provision for an appeal "on a point of law". For instance, s. 123 (3) of the Residential

Tenancies Act 2004 provides for an appeal “on a point of law” to the High Court by any of the parties in respect of a determination of

a Tribunal of the Private Residential Tenancies Board. Similarly, a person affected by a decision of the Information Commissioner

following a review pursuant to s. 34 of the Freedom of Information Act 1997 may appeal to the High Court “on a point of law” under s.

42(1) of the 1997 Act. The decision of an appeals officer of the National Vetting Bureau is also subject to an appeal “on a point of

law” under s. 18(8) of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012. Such appeals have been the subject

of judicial determination as to their scope in cases such as O’Connor v The Private Residential Tenancies Board [2008] IEHC 205 (s.

123(3) of the Residential Tenancies Act) and in Killilea v The Information Commissioner [2002] 2 I.R. 402 (s. 42(1) of the Freedom of

Information Act 1997). However, if it had been intended that the appeal to the Circuit Court in a case such as this was to be limited

to an appeal "on a point of law" as interpreted in that case law, then it is surprising that the term "on a point of law" is used in

subsection (3) but in not subsection (1). While it is not necessary to reach any definitive conclusion on that point, it does seem that

the range of issues which can be canvassed in an appeal to the Circuit Court in the data protection field are more widespread than

those encompassed in an appeal which is confined purely to "a point of law".

5.7 It is also, in my view, very important to note that the only party who can appeal as of right is the party on whom the

Enforcement Notice is served. A party who may be affected by an Enforcement Notice can, however, be joined in the appeal. One

curious feature of the process that was followed in the context of the statutory appeal to the Circuit Court in this case is that it

would appear that the application to join the record companies was brought by the record companies themselves. Strictly speaking,

under the provisions of O.60, r.6 of the Rules of the Circuit Court, it would appear that it was only Eircom or the Commissioner (being

parties to the appeal) who could properly apply to have another party joined. Indeed, the record companies' application to join was,

on its terms, brought under O.6, r.4 of the Rules of the Circuit Court (which makes general provision for the joinder of parties) and/or,

it would appear, an assertion that the Circuit Court enjoyed an inherent jurisdiction to join. No mention was made in the application of

the specific rule (being O.60, r.6) which deals with the joinder of parties in appeals under the Data Protection Acts.

5.8 For whatever reason, however, no objection to the record companies’ application to join appears to have been taken either by

the Commissioner or Eircom based on an assertion that there was no jurisdiction at all to join outside of the circumstances

contemplated in O.60, r.6 and the fact that that rule does not allow a non-party to make an application to be joined. It follows that,

whatever the confusion in this case, a feature of the appeal system provided for in the Data Protection Acts and in the Rules of the

Circuit Court is that a party affected but who is not itself a party on whom an Enforcement Notice is served, may well have no right

even to apply to be joined and may well be dependent both on there being an appeal by a person on whom an Enforcement Notice is

served and an application by such person to have them joined being made in order that they might have any entitlement to be heard.

While one aspect of those requirements (being the requirement that an application be join be brought by someone who is already a

party) was not enforced on the facts of this case, the regime which I have sought to analyse only goes to emphasise the highly

conditional nature of any right of appeal which a party in the position of the record companies enjoys.

5.9 In that context, it is also necessary to have regard to the sequence of events which occurred when the record companies sought

to be joined in this case. It seems to me to be fair to characterise the initial position of the Commissioner as being one which

amounted to opposition to the record companies becoming joined to the proceedings. It is, of course, entirely reasonable for any

party to be concerned that the costs of proceedings in which they are necessarily involved will not be increased by the presence of

additional parties whose involvement may have the effect both of prolonging the procedure and, if the proceedings are unsuccessful,

adding to the number of parties who may seek costs. However, in that context a number of points needs to be noted.

5.10 First, there is a difference between an entitlement of a party to be heard, on the one hand, and the reasonableness of such a

party (particularly viewed in the context of costs) in exercising their entitlement to be heard, on the other. Any party affected in a

material way by a public law measure has a prima facie entitlement to be heard in proceedings which challenge the validity or terms of

the measure concerned. However, in many such cases the interest of a party affected will not differ in any material way from the

interests of other parties more directly involved. While all such affected parties undoubtedly have the right to seek to be heard, it

does not follow that the exercise by such parties of any right to be heard carries with it an entitlement to be paid their costs even if

their side is ultimately successful. It is entirely reasonable to require that parties should only be paid costs, even if successful, if their

involvement in the proceedings concerned was necessary for the protection of their interests in the sense that there were arguments

which they could put before the Court or evidence or materials which could be presented which added to the case beyond the

argument or evidence likely to be furnished by those (frequently a relevant public authority) primarily charged with standing over the

measure which is challenged. Parties who do not add to the case to any great extent, while entitled to be heard, cannot reasonably

be expected to be paid their costs. Indeed, in an extreme case, it would be open to the Court to penalise such a party in costs if it

was felt that the proceedings had, by virtue of the unnecessary involvement of the party concerned, been unduly lengthened (and

thus made more expensive) without that party having added anything of substance to the argument or the evidence. In addition, it

may well be that there will be cases where a party could only reasonably involve themselves at an early stage of the proceedings

(perhaps up to and including the filing of written submissions) so as to be satisfied that all matters which they wished to canvas were

before the Court but not, in such a case, involving the additional and frequently significant expense of being present at an oral

hearing when it had become clear from the written procedure that their presence would not add to the case. Indeed, the position

adopted by Eircom in these judicial review proceedings before the High Court reflects such an analysis.

5.11 It should, however, be noted that there is also a significant difference between a party, as it were, putting down a marker in

respect of costs at an early stage of the proceedings, on the one hand, and a party seeking an order, at that early stage, which

would bind the parties and the Court to a particular approach to costs in respect of the future progress of the case, on the other.

Assuming that a party is truly affected by a measure under challenge then such party is, at the very minimum, entitled to be satisfied

that their interests will, in reality, be fully protected in the proceedings. That is not achieved by either a pre-emptive strike which

suggest that they should not be allowed become involved at all or, alternatively, should not be allowed to become involved without

giving a guarantee that they will not be able to recover their costs if successful.

5.12 However, what the Commissioner appears, at least initially, to have done in this case is to suggest that the record companies

should not be permitted to be heard at all rather than solely seeking to place a marker against the record companies recovering costs

at the end of the day in the event that the proceedings were successful. So far as costs were concerned the initial position of the

Commissioner appears to have been that the price which the record companies should have to pay if they were, contrary to the

Commissioner's primary submission, to be allowed join in the proceedings, would be that there should have been some form of

guarantee in advance concerning the record companies' costs.

5.13 It is true to say that, at a later stage in the process, but only after the possibility of judicial review was raised in

correspondence, the Commissioner seems to have adjusted his position to one which might reasonably be characterised as accepting

that the record companies should be permitted to join in the proceedings but only on terms relating to costs.

5.14 It is against such a background that the decision of the record companies to seek judicial review needs to be viewed. It is true

that the record companies had sought to involve themselves in the statutory appeal process although, as has been pointed out, they

had no absolute or statutory right to become so involved, required an order of the Court in that regard and, indeed, may well not

have been entitled to apply to be joined at all. It is also of particular relevance that the only party on whom the statutory right of

appeal is directly conferred is the party to whom a relevant Enforcement Notice is directed. It is, therefore, less easy to apply the

underlying principle, to which reference has already been made, which places weight on the assumption that the Oireachtas intended

that an appeal was to be the appropriate means of reviewing an Enforcement Notice, to the situation in which the record companies

found themselves for the statutory scheme did not confer any direct right on the record companies to challenge the Enforcement

Notice by means of such an appeal.

5.15 It is, of course, true that had the record companies successfully applied to become notice parties without any limitation as to

degree of participation or the right to recover costs if successful the situation might well be different. In such a situation, whatever

might have been the theoretical position, the record companies would in fact have had a full right to engage in the issues which

would arise on the statutory appeal on the same terms as would apply in respect of a judicial review. That being so a court might well

have to engage in a more detailed analysis of the scope of appeal which would, in fact, have been available so as to assess whether

an appeal would have provided an adequate remedy in respect of the issues which it was sought to raise. However, the process

never got to that point largely because of the position adopted by the Commissioner. The fact that, at the level of principle, an

appeal process to which a party has been unconditionally admitted might provide an adequate remedy, thus excluding judicial review,

does not mean that, unless and until that party has been admitted on an unconditional basis to the relevant appeal process, such an

appeal can necessarily be regarded as providing such an adequate remedy.

5.16 Be that as it may, it does have to be recognised that the precise scope of the issues which might be canvassed on an appeal to

the Circuit Court by means of such an appeal is not clear. That lack of clarity also needs to be seen in the context of the fact that

the Commissioner suggested, in his affidavit opposing the record companies' application to be joined, that no issues relevant to the

record companies were within the scope of the appeal. By adopting such a position the Commissioner reasonably led the record

companies to have legitimate concerns as to the scope of the matters which might be capable of being canvassed on a statutory

appeal even if they were allowed, by the Court, to become notice parties. In that context it is important to return to the basic

process provided for by the Protocol. As earlier noted the record companies, through the agency of operators who appear to be able

to access relevant information directly from the internet, obtain information as to the IP addresses of persons who seem to be

engaged in the sort of file sharing which is said to be a breach of the record companies' copyright entitlements. On the basis of the

evidence and materials currently available, there does not appear to be any suggestion that Eircom is involved in that part of the

process at all. It is not clear as to whether the Commissioner asserts that any breach of the Data Protection Acts or EU law occurs in

that part of the process. If it is so contended, then it is difficult to see how such a position can be reconciled with the

Commissioner's assertion that the Enforcement Notice is directed solely to Eircom and that the record companies are not, therefore,

directly relevant to the issues arising in the appeal to the Circuit Court. Be that as it may, I am satisfied that, not least because of

the position adopted by the Commissioner, there was, and remains, legitimate doubt as to the precise range of issues which are

capable of being dealt with within the parameters of the statutory appeal in this case.

5.17 In the circumstances of this case I would place particular weight on the fact that the record companies have no statutory right

of appeal at all. As pointed out, the underlying rationale of much of the relevant jurisprudence stems from an assumption that those

on whom a right of appeal is conferred should, in the absence of sufficiently weighty countervailing circumstances, exercise their right

of appeal rather than invoke judicial review. That rationale has no application in the case of a party who does not have a right of

appeal. While that rationale might have some limited relevance in a case, such as this, where a party has at least a possibility of

becoming involved in an appellate process (and much greater relevance if the record companies had actually achieved an

unconditional involvement in the appeal process), it seems to me that the weight to be attached to such a conditional entitlement to

appeal (which after all could only be exercised in the event that the right to appeal is invoked in the first place by a party, Eircom in

this case, who has the statutory right to appeal and could well have been refused on the basis that the record companies had no

right to apply) must be limited. When to that is added, on the facts of this case, the initial position and belated change of position by

the Commissioner such that, at the time when a decision to seek judicial review was made, the question of the entitlement of the

record companies to be involved in the statutory appeal was open to question, coupled with the doubts which surrounded the scope

of any appeal which might be pursued, it seems to me that an analysis of all the circumstances suggests that the limited and

conditional possibility of appeal which the record companies might have enjoyed in this case is not such as could have rendered the

invocation of the alternative of judicial review an abuse of process.

5.18 For those reasons, it seems to me that the trial judge was correct in concluding that this was one of those cases, exceptional to

the general rule, in which the record companies were entitled to pursue judicial review notwithstanding the possible availability of a

statutory appeal. Having concluded that judicial review was, in those circumstances, not inappropriate, it is next necessary to turn to

the questions of reasons.

6. The obligation to give reasons

6.1 The starting point has to be note that this is not one of those cases where the Court has to consider whether there is an

obligation to give reasons at all for the simple reason the legislation itself requires reasons. This much is clear from s. 10(4)(a) of the

Data Protection Acts which provides:

“An Enforcement Notice shall—(a) specify any provision of this Act that, in the opinion of the Commissioner, has been or

is being contravened and the reasons for his having formed that opinion…”

Rather, the real question is as to what type of reasons needs to be given and where it is appropriate to look to find such reasons.

6.2 So far as the question as to the type of reasons which need to be given is concerned, this Court has had occasion to consider

such issues in a number of cases. One of the earlier cases, The State (Sweeney) v Minister for the Environment & Anor [1979] 1

I.L.R.M. 35, concerned, amongst other things, the requirement of a planning authority to give reasons for a refusal of an application

for planning permission. At p. 37 of his judgment, Finlay P. stated:

“…it is clear that having regard to the provisions of s. 26 of the Local Government Planning and Development Act, 1963

and the other provisions of that Act that the purpose of the obligation which rests upon a planning authority to set out,

in their notification of a refusal, reasons which have led to the decision to refuse a particular application for permission

must be as follows. It is to give the applicant such information as may be necessary and appropriate for him, firstly, to

consider whether he has got a reasonable chance of succeeding in appealing against the decision of the planning

authority and secondly to enable him to arm himself for the hearing of such an appeal. The reasons set out therefore in

the Schedule to a decision of refusal under the Planning Act, 1963 need not in my view be set out with the precision of a

court order nor need they necessarily contain any particular words of a technical nature nor refer in any formal way to

any of the provisions of the Act.”

6.3 More recently, in Meadows v. Minister for Justice [2010] 2 I.R. 701, Murray C.J. said as follows at paras. 93 and 94:

“An administrative decision affecting the rights and obligations of persons should at least disclose the essential rationale

on foot of which the decision is taken. That rationale should be patent from the terms of the decision or capable of

being inferred from its terms and its context.

Unless that is so then the constitutional right of access to the courts to have the legality of an administrative decision

judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective.”

6.4 At para. 6.8 of my judgment in Rawson v Minister for Defence [2012] IESC 26, I also addressed the rationale for a requirement to

provide reasons, when I said:

“While the primary focus of a number of the judgments cited, and indeed aspects of the decision in Meadows itself, were

on the need to give reasons as such, there is, perhaps, an even more general principle involved. As pointed out by

Murray C.J. in Meadows a right of judicial review is pointless unless the party has access to sufficient information to

enable that party to assess whether the decision sought to be questioned is lawful and unless the courts, in the event of

a challenge, have sufficient information to determine that lawfulness. How that general principle may impact on the

facts of an individual case can be dependant on a whole range of factors, not least the type of decision under question,

but also, in the context of the issues with which this Court is concerned on this appeal, the particular basis of

challenge.”

6.5 It follows that a party is entitled to sufficient information to enable it to assess whether the decision is lawful and, if there be a

right of appeal, to enable it to assess the chances of success and to adequately present its case on the appeal. The reasons given

must be sufficient to meet those ends.

6.6 The next issue concerns the question of where it is appropriate to look to find such reasons. In Sister Mary Christian v Dublin City

Council [2012] IEHC 163, the High Court was faced with a claim that Dublin City Council had failed to give sufficient reasons said to

be required under the Planning and Development Act, 2000 (as amended) in relation to parts of the Dublin City Development Plan. As

part of that enquiry, the Court also had to examine whether it was necessary for those reasons to appear in the development plan

itself. At para. 9.2 of my judgment, I concluded as follows:

“It does not seem to me that it necessarily follows from the above analysis that the reasons have to be included in the

development plan itself. It is, for example, possible that there may be documents referred to in the development plan

which can provide the rationale for aspects of the measures incorporated into the development plan. In addition,

documents prepared in the context of the adoption process may, depending on the content, also be capable of being

relied on as an authoritative statement of the rationale. However, the requirement of reasonable certainty as to the

reasons seems to me to necessitate that any documentation said to represent the reasons must be either expressly

referred to in the development plan or be, by necessary implication, from the terms of the development plan, clearly

adopted by those voting in favour of the development plan as part of the reasoning concerned.”

6.7 However, in Mallak v Minister for Justice Equality & Law Reform [2012] IESC 59, Fennelly J. acknowledged that there may be

circumstances where it is not necessary for the reasons to accompany the decision itself. At para. 66 of his judgment, he stated:

"The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of

complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair,

open and transparent and the affected person has been enabled to respond to the concerns of the decision-maker,

there may be situations where the reasons for the decision are obvious and that effective judicial review is not

precluded."

6.8 While the comments made in Christian related to the specific circumstances of that case and derived from the context of a

development plan, it seems to me that there is a more general principle at play. Legal certainty requires, as was pointed out in

Christian, that it must be possible to accurately determine what the reasons were. There should not be doubt as to where the

reasons can be found. Clearly, an express reference in the decision itself to some other source outside of the decision document

meets that test. Where, however, it is suggested that the reasons can be found in materials outside both of the decision itself

together with materials expressly referred to in the decision, then care needs to be taken to ensure that any person affected by the

decision in question can readily determine what the reasons are notwithstanding the fact that those reasons do not appear in the

decision itself or in materials expressly referred to in the decision.

6.9 Where, for example, an adjudicator makes a decision after a process in which both sides have made detailed submissions it may

well, as Fennelly J. pointed out in Mallak, be that the reasons will be obvious by reference to the process which has led to the

decision such that neither of the parties could be in any reasonable doubt as to what the reasons were. But it seems to me that, in a

case where any party affected by a decision could be in any reasonable doubt as to what the reasons actually were, it must follow

that adequate reasons have not been given.

6.10 There may, of course, be cases where it is easy to see what reasons have been given and where the real issue is as to whether

those reasons are adequate. However, the first point has to be to determine what reasons, if any, have been given, and where those

reasons may be found.

6.11 It follows that in reasons cases there may well be three questions raised:- 1. Do reasons have to be given and if so what type

of reasons; 2. Where can the reasons be found, and by reference to what evidence or materials can the Court objectively ascertain

the reasons; and 3. When the reasons given, if any, have been ascertained, are those reasons sufficient to meet the requirements

established in the case law?

6.12 Given the statutory requirement for reasons in this case and the obvious obligation that those reasons be sufficient to enable

any party affected by an Enforcement Notice to form a view as to whether it was lawful and whether there might be a realistic

chance of successfully pursuing an appeal (together with preparing for such an appeal), no great questions arise in respect of item 1.

In reality it is item 2 which forms the controversy in this case, for the trial judge held that there were no reasons at all to be found in

the decision. If that be correct then the question of whether the reasons were adequate to meet the case law would not, of course,

arise. On that basis, it is necessary to turn to the facts of this case.

7 The Facts of this Case

7.1 It seems to me that the trial judge was entirely correct in holding that the Enforcement Notice itself does not provide any

reasons. The real question is as to whether, as argued by counsel for the Commissioner, it might be said that the reasons are obvious

either inherently, having regard to the circumstances of the case, or by reference to the process which led up to the decision to

issue the Enforcement Notice. At the level of principle, in many types of cases, it is, of course, possible that a requirement for

reasons may be met where the reasons are inherently obvious or where they can be readily inferred from the decision sought to be

challenged, taken in conjunction with the process which led to the making of that decision. However, of particular importance in this

case is the fact that the statute itself requires that the Enforcement Notice specify the reasons for the Commissioner having formed

an opinion that there has been a breach. Thus this is, therefore, a case where there is an express statutory obligation for the reasons

to appear in the notice concerned. I would strongly doubt whether, for that reason, it is possible, in this case, to regard the

statutory requirement as having been met by virtue of reasons which are said to be obvious or to derive from the process.

7.2 I can see that in other cases, not involving a specific statutory requirement that the reasons be found in the decision, it might be

inherently obvious from the form of the decision as to the reasons for the making of same and that this might be sufficient to render

the process fair. An assertion that a certain set of facts existed which amounted to a breach of a specific obligation might, in a case

where there could be little doubt but that if the facts were true a breach would have occurred, meet the test of the reasons being

inherently obvious. However, in any event, and even if it were possible to ignore the statutory requirement that reasons be found in

the notice itself, it does not seem to me that such a test would be met on the facts of this case. As I have already pointed out, on

the basis of the evidence and materials currently available, it appears to be accepted that the method by which the Protocol works is

that all Eircom does is to receive a series of IP addresses from the record companies, write the appropriate letter to the customer

corresponding with that IP address, and invoke the suspension or termination provisions of the Protocol as appropriate. On that basis

it is not inherently obvious as to why such activity necessarily involves a breach of data protection law.

7.3 In addition, it may be that in other situations there could be cases where the necessary reasons are obvious from the process

leading up to the issuance of a relevant decision. However, given the express statutory requirement that the Enforcement Notice

itself specify the reasons, it seems to me that an Enforcement Notice under the Data Protection Act could not be such a case. Even

if that were not so, a number of aspects of the process in this case require analysis. First, it needs to be noted that, while the record

companies were copied with some of the relevant correspondence, they were not copied with all of it. It seems clear that the record

companies are potentially affected by the Enforcement Notice. After all, the record companies have entered into contractual

arrangements with Eircom in settlement of court proceedings and where that settlement has been ruled by the Court as being in

compliance with data protection law. An Enforcement Notice which has, as its effect, a requirement that Eircom not comply with that

court approved contractual obligation necessarily affects, in a very serious way, the record companies. As a party affected, the

record companies are entitled to know the reasons for the Enforcement Notice so as to enable them to consider what legal options,

whether by seeking to be involved in a statutory appeal or judicial review, may be open to them.

7.4 The reasons must be adequate to meet the record companies' needs in that regard. As pointed out, it may well be obvious to the

parties involved in an adversarial process as to what the reasons for the decision of an adjudicator were in the light of the case made

to that adjudicator and the adjudicator's decision. However, where a legally binding measure is sought to be put in place which

affects parties beyond those who were part of the process leading to the adoption of the measure concerned, then there is a greater

onus on the decision-maker to ensure that the reasons are transparent not just to those who were involved in the process, but to

anyone else who might be affected as well. In the planning process, for example, all documents relevant to that process would

normally be available to any interested party. If the reasons for a planning decision require reference to the process leading to that

planning decision, then it is reference to a process which is transparently open to all. However, where, as here, the process affected

the record companies but only directly involved Eircom and the Commissioner, it will inevitably be more difficult to satisfy the

requirement for reasons from a consideration of the process.

7.5 I should say that I am by no means convinced that, even so far as Eircom is concerned, the reasons would be obvious from the

process. However, I am absolutely satisfied that, from the perspective of the record companies, it could not be said that the reasons

can definitively be inferred from the process. Thus even if it were (contrary to my primary finding on this point) possible to infer

reasons from the process in a case where, as here, there is an express statutory requirement that the reasons be specified in the

notice itself, I am not satisfied that the process in this case would meet the necessary test in any event.

7.6 I am, therefore, satisfied that the trial judge was correct to conclude that there was a complete absence of reasons in this case

and that the Enforcement Notice, therefore, was unlawful as being in breach of the statutory requirement for reasons under s. 10(4)

(a) of the Data Protection Acts.

7.7 I should not leave the question of reasons without touching on a further argument made by counsel for the Commissioner at the

hearing of the appeal. Counsel contended that the parties (and in particular the record companies) did not appear to have

encountered any real difficulty in addressing the legal issues which arose from the Enforcement Notice at the hearing before Charleton

J. On that basis it was argued that the record companies must have fully understood the reasons why the Enforcement Notice was

served for, it was said, without understanding those reasons it would have been impossible for the record companies to properly

engage with the substantive issues which were debated before the High Court. It may well, of course, be the case that a party who

is affected by a legally binding measure may be able to infer why the measure was put in place. However such matters should not be

left to inference at least in cases where there is an express statutory requirement that reasons be included in the document putting

the measure in force and where the reasons might be open to any reasonable doubt. Legal certainty requires that the reasons can be

determined with some reasonable measure of precision. The fact that a party may, in many circumstances, be able to make a good

fist of inferring the reasons does not meet the legal obligation of a statutory decision maker to ensure that the reasons can be

determined with adequate certainty. On that basis it does not seem to me that the argument put forward on behalf of the

Commissioner, which derived from the extent to which the record companies were able to address substantive issues in the High

Court, provides anything like an answer to the complaint that the Enforcement Notice failed to specify the reasons in accordance with

the statutory requirement so to do.

8 Conclusions

8.1 It follows that I am satisfied that this is one of those cases where, exceptional to the general rule, the record companies are

entitled to maintain judicial review proceedings notwithstanding the highly conditional availability of a statutory appeal in respect of

which, while not having a right of involvement, the record companies have at least a possibility of being joined as a notice party and

further, notwithstanding the attempt by the record companies to become involved on the facts and in all the circumstances of this

case.

8.2 In addition, I am satisfied that the trial judge was correct in holding that the Enforcement Notice is invalid because of the

absence of any reasons.

8.3 It follows, in my view, that the appeal should be dismissed and the order of the trial judge affirmed.