A meeting of creditors to discuss a survival plan for Eircom will go ahead tomorrow, after the Commercial Court rejected an application to defer the meeting to allow a revised bid by a disappointed bidder to be considered by the examiner.
Michael McAteer - who is the examiner appointed to Eircom, Meteor and Irish Telecommunications Investments Limited - is recommending approval of the survival plan so the companies can exit examinership as soon as possible.
If creditors approve the plan, as expected, it will then have to go back before the Commercial Court for approval.
Mr Justice Peter Kelly refused an application for orders to defer the meeting and requiring the examiner to allow the failed bidder, Hutchinson Whampoa Limited, to phase two of the process.
Hutchinson Whampoa Limited is the parent company of mobile company 3 Ireland.
The judge said the orders sought would effectively involve the court in exercising a commercial judgment and micro managing the examinership, which the court was not permitted to do.
He also said the exaiminer had a reasonable basis for rejecting the initial bid from Hutchinson.
Judge Kelly said that the examiner should not be criticised for moving as fast as possible.
The application came after the examiner last week rejected the revised €2bn cash offer for Eircom from 3 Ireland and HWP and said no further offers would be considered.
HWP claimed "lock-up" restructuring proposals agreed between the companies and senior creditors prior to the examinership prevented exploration of potential investment opportunities with others.
Mr McAteer denied that claim and said he was not a party to or bound by the senior offer but, having considered it and the Hutchison indicative offer, he believed the senior offer was the best option for the companies and was recommending it for approval.
Mr McAteer's Senior Counsel Paul Sreenan argued that the Hutchinson offer was made late in the examinership, that it was inferior to the senior offer and was conditional on regulatory approval which could not be achieved within the examinership timeframe. Granting the HWP application could derail the entire examinership, he argued.
Paul Gallagher SC, for Eircom, said the Hutchinson application was "audacious" and "extraordinary", there was no legal authority for it and it was brought by a competitor who was seeking orders including one requiring Eircom to disclose confidential company information to it.
Hutchison was effectively seeking to have the examiner play some form of "corporate Russian roulette", counsel argued.
The application for deferral of the creditors meetings and requiring the HWP offer be admitted to phase two was also brought by New York-based DW Investment Management LP, which claimed to represent more than 50% creditors of Eircom holding €350m Floating Rate Notes.
Its legal standing was disputed by the companies, examiner and senior creditors. Mr Sreenan argued DW Investment had been attached to the Hutchison application in an effort to secure the necessary legal standing to bring it.
Replying, Gráinne Clohessy SC, for the applicants, said all Hutchison wanted was to be let in and given a chance to make a final bid, she said.
