Court to hear Smart 3G case in July

THE High Court has fixed July 6 for the hearing of Smart Telecom’s claim that it is entitled to be awarded the lucrative 3G mobile phone licence.

The action, brought by Smart against the communications regulator ComReg, is expected to last four days and will be heard in the Commercial Court, the commercial division of the High Court. Eircom has also been joined to the proceedings, for the purpose only of addressing public law issues.

When first fixing July 6 as the date of hearing yesterday, Mr Justice Peter Kelly pointed out that the court was in a position to hear the case next month and it was unfortunate that a number of earlier dates did not suit the parties.

The judge also fixed dates for the exchange of legal documents between the sides.

If Smart wished to challenge ComReg’s claim of privilege over a number of documents sought by Smart from ComReg for the hearing, a motion for that purpose should be brought next month, he directed.

Earlier, the judge was told that Smart has written to the Communications Minister asking him to empanel an appeal panel to hear Smart’s appeal against ComReg’s handling of the 3G licence issue.

However, because of the ongoing legal action, the minister may decide not to convene an appeal panel, it was stated.

In the proceedings, Smart is seeking a declaration that there was a contract for the awarding of the 3G licence to Smart and a further declaration that ComReg was obliged to give the company reasonable time to comply with conditions set down for the awarding of the licence.

The court has heard Smart had to lodge a €100 million performance-related bond with the regulator by close of business on January 30 last as a condition of the 3G licence.

Draft performance guarantees from three leading commercial banks who are underwriting the guarantees were forwarded to the regulator, it was stated.

Smart claimed ComReg had then imposed significant extra requirements in relation to the terms of the bonds over the weekend of January 30.

As a result, Smart claimed it had no opportunity to meet those concerns, particularly as one of its preferred banks was a Chinese bank, which was closed for Chinese New Year.

If given a reasonable opportunity, Smart could meet ComReg’s concerns or provide appropriate alternative arrangements agreeable to the regulator, the company contends.