The operators of North West Radio (NWR), which has been broadcasting for the past 14 years, have lost their High Court challenge to the Broadcasting Commission's decision to grant a broadcasting licence for their area to a rival company.
Sligo-based NWR had sought to quash the awarding by the BCI of the licence to North West Broadcasting Ltd (NWBL), trading as Ocean FM radio.
NWR, which has broadcast to Sligo, south Donegal and north Leitrim since the early 1990s, argued that, when the decision was made in April 2003 to award the contract to NWBL, NWR was the most successful radio station in the country.
In a reserved judgment yesterday, Mr Justice Peart rejected the challenge brought by NWR. The board of NWR will decide later whether to appeal against that decision.
Afterwards, the financial controller of NWR, Mr Enda Carberry, said they were "devastated". They had felt very confident about the action and had a strong case, he added.
NWR broadcast for seven years until September 1997 when the licence was automatically renewed for a further seven-year term, which is due to expire on October 1st next. On April 29th, 2003, a meeting of the BCI was held at which the franchise was awarded to NWBL.
The decision was made on the casting vote of the chairman. The meeting had been scheduled to take place on April 28th, 2003, but was instead held the following day, when six out of the 10 BCI board members were present.
Among matters raised by lawyers for NWR were the legal consequences following upon the shredding of handwritten notes of a secretary taken at the meeting of April 2003. The BCI argued that Section 18 of the Freedom of Information (FoI) Act imposed no obligation on the BCI to keep the handwritten notes in question.
Mr Justice Peart said he was satisfied there was no statutory provision which obliged BCI either directly or indirectly to ensure that a handwritten note was taken of meetings at which decisions were made. The statutory provisions obliged BCI to provide reasons for its decision to refuse an application, he said.
The BCI's own internal notes to members merely stated that notes would be taken so BCI could comply with its obligations under the FoI legislation. Those obligations were to give reasons for a refusal to an unsuccessful applicant.
It was submitted on behalf of NWR that the mere fact that BCI shredded the notes was sufficient to constitute it as a "spoilator" or wrongdoer, regardless of its motive for doing so.
The judge said he found it difficult to accept that a person or body who was under no legal obligation to do something (in this case to keep the notes) should be categorised as a "wrongdoer" simply because they had not done that thing. In this case, there was evidence of what took place at the meeting in the form of minutes which were approved by the board at its next meeting.