CHC Ireland Designed Activity Company v The Minister for Transport

• Jurisdiction: Ireland
• Judge: Mr Justice Twomey
• Judgment Date: 24 October 2023
• Neutral Citation: [2023] IEHC 581
• Court: High Court
• Docket Number: Record No. 2023/680JR

Between

CHC Ireland DAC

Applicant

and

The Minister for Transport

Defendant

and

Bristow Ireland Ltd. (No. 2)

Notice Party

[2023] IEHC 581

Record No. 2023/680JR

THE HIGH COURT

COMMERCIAL

Tender process – Automatic suspension – Costs – Notice party seeking costs – Whether the notice party was entitled to costs for its part in successfully defeating the attempt by the applicant to suspend the awarding of a public contract to the notice party

Facts: The applicant, CHC Ireland DAC (CHC), was the incumbent provider of aviation services for the search and rescue work of the Irish Coast Guard under the terms of an existing contract, which was signed between CHC and the defendant, the Minister for Transport (the Minister), on 22nd July, 2010. On 31st May, 2023 the Minister communicated to CHC its decision that he had selected the notice party, Bristow Ireland Ltd (Bristow), as the successful tenderer in the competition for the award of the contract pursuant to the Competitive Procedure with Negotiation as provided for in s. 29 of the European Union (Award of Public Authority Contracts) Regulations 2016. On 14th June, 2023, CHC issued proceedings challenging the legality of the tender process and the award of the contract to Bristow. As a result of Regulation 8(1) of the European Communities (Public Authorities’ Contracts) (Review Procedures) Regulations 2010, the very fact that the proceedings had issued led to the automatic suspension of the tender process and so prevented the Minister signing the contract with Bristow. The proceedings were then admitted to the Commercial Court on 26th June, 2023, on the application of the Minister. The Minister’s preliminary application was to lift the automatic suspension. Twomey J held that the balance of justice favoured the lifting of the automatic suspension: [2023] IEHC 457. CHC accepted that Bristow should be entitled to its costs for providing evidence on affidavit to the hearing in support of the defendant’s case. Accordingly, the key question was whether Bristow should be entitled to its costs for appearing at the hearing, which was disputed by CHC.

Held by Twomey J that as a result of the Court of Appeal decision in Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2023] IECA 189 at para 94 per Donnelly J, the High Court was obliged to take ‘a broad-brush-stroke approach’ to costs. Twomey J noted that the case involved the most serious claims by CHC, which only Bristow could answer, namely that Bristow would not be able to provide the search and rescue aviation services by 1 July 2025. She noted that, in view of the fact that lives were alleged to be at risk by both sides, the case was critically urgent. She noted that in the two weeks or so prior to the hearing in the High Court (on 4th July, 2023), there was a huge volume of material, approximately 2,500 pages, generated which had to be reviewed by the legal teams involved. She noted that the High Court was dealing with the costs of just one day, despite the complexity of some of the issues and the amount of documentation involved. She noted that this was not a dispute which was minor in value, where an award of two sets of costs might be regarded as disproportionate, since one was dealing with a contract with a value of €800 million over 10 years.

Twomey J awarded Bristow its costs against CHC subject to the following caveats. The first caveat related to the costs of Bristow’s written legal submissions. Twomey J held that CHC should not have to pay ‘on the double’ for those written legal submissions, since they were very similar to those of the Minister. The second caveat related to the costs of the half-day hearing on 19th July, 2023 which was requested by CHC in light of the information which came to light regarding a proposed meeting of the Oireachtas Joint Committee on Transport and Communication on the 19th July, 2023. Twomey J did not see why Bristow should be paid by CHC for choosing to pursue its commercial, rather than its legal, interests by attending the hearing.

Application granted.

JUDGEMENT ofMr Justice Twomeydelivered on the 24th day of October, 2023

INTRODUCTION

1 . As a result of the recent Court of Appeal decision in Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform[2023] IECA 189 at para 94 per Donnelly J., the High Court is now obliged to take ‘ a broad-brush-stroke approach’ to costs and not to engage in nit-picking:

– ‘ a broad-brush-stroke approach must be taken’ (Emphasis added).

2 . This is entirely logical since, as noted by Donnelly J., the trial court having heard the trial and adjudicated on the case is in an excellent position to make the costs decision and this should be capable of being done quickly by taking a broad approach to the issue. As noted by Donnelly J. the other reason for a broad-brush approach and a quick decision is that everything should be done to avoid a situation where there is a long and complex costs hearing where ‘ available court resources are depleted and costs mount for litigants’ (at para 50).

3 . Accordingly, in this case this Court is adopting a broad-brush approach to the costs. More generally it seems to this Court that in light of the Word Perfect judgment, requiring the High Court to determine costs on a broad-brush basis, means that the parties themselves should make submissions on that basis, and so costs hearings in the future should not take up any more than 15 minutes of a court's time, in most cases.

4 . The issue in this case is whether a notice party is entitled to costs for its part in successfully defeating the attempt, by the applicant, to suspend the awarding by a State body of a public contract to the notice party.

5 . Terms and expressions used in the principal judgment ( CHC Ireland DAC v The Minister for Transport[2023] IEHC 457) are used in this judgment.

The law in relation to costs for a notice party

6 . The question of whether Bristow is entitled to costs as a notice party must be considered in light of the most recent Court of Appeal caselaw on this subject. In particular in the case of Dowling & Ors v Minister for Finance[2023] IECA 197, Haughton J. held at para. 26 that under s 169 of the Legal Services Regulation Act, 2015 and O. 99 of the Rules of the Superior Courts, the ‘ default position’ is that a winning notice party is entitled to her costs and it is for the losing party to persuade the court that a court should exercise its discretion not to award costs to the notice party.

7 . A question arises as to the effect, if any, of Dowling on the approach to notice parties' costs, and in particular on the previous position adopted by the High Court regarding notice party costs in the cases of Telefonica 02 Ireland Ltd v Commission for Communications Regulation[2011] IEHC 380 and Sanofi Aventis Ireland Ltd v HSE[2018] IEHC 719.

8 . It seems to this Court that Dowling does not alter the position regarding notice party's costs but rather...