Copymoore Ltd and Others v Commissioners of Public Works of Ireland

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton
• Judgment Date: 07 November 2014
• Neutral Citation: [2014] IESC 63
• Court: Supreme Court
• Docket Number: Record number 211 JR/2013,[S.C. No. 314 of 2014]
• Date: 07 November 2014

An Chúirt Uachtarach

Copymore 5 November 2014

Between

Copymoore Limited, Cork Office Machines and Supplies Limited, Cusken Limited, EMS Copier Services Limited, Eurotech Office Equipment Limited, Inest Limited, Mormac Limited, MBE Mallow Limited, O'Rourke Office Supplies Limited, Sharptext Cork Limited and TOS Ireland Limited

Applicants/Appellants

and

Commissioners of Public Works of Ireland

Respondent

Composition of the Court:

[2014] IESC 63

Murray J

Laffoy J

Charleton J

Record number 211 JR/2013

Appeal number 314/2014

The Supreme Court

Judicial review - Public procurement - Multi-supplier framework agreement - Whether applicants should be permitted to add two new grounds to their pleadings- Capacity and damages - Amendment to pleadings - Whether good reasons advanced - Statutory time periods - Public interest

Facts This is an appeal from the judgment and order of O"Neill J refusing a motion to extend grounds in a judicial review application in a public procurement challenge. The issue in question is whether the applicants should be permitted to add two new grounds to their pleading. One is in relation to capacity; and the other relates to damages. The failure to plead the capacity ground arose through a simple error made by the lawyers in drafting the notice of application. The damages claim was not mentioned there, or in statement to ground the application for judicial review but did appear in the originating notice of motion. Any amendment to proceedings must take into account the public interest in the swift disposal of litigation and will only allow exceptions to the strict time limits involved where good reasons are advanced. Commencing the proceedings had the effect of freezing a decision by the respondents to limit public procurement to a number of providers in a multi-supplier framework agreement for the purchase of monochrome and colour printers and other multifunction devices. The resolution of the proceedings depends on whether a breach occurred of the European Communities (Award of Public Authorities" Contracts) Regulations 2006, in respect of which applications must be made swiftly under the European Communities (Public Authorities" Contracts) (Review Procedures) Regulations 2010. Regulation 7(2) provides an application to suspend the process of awarding contracts must be made "within 30 calendar days". This runs from when "the applicant was notified of the decision, or knew or ought to have known of the infringement alleged in the application." Regulation 10(2) of the Remedies Regulations enables rules of court to extend the statutory time period for the commencement of such applications. This requires "good reason to do so." The capacity issue that is sought to be added to the proceedings is that the respondents did not have the capacity to set up or enter into a multi-supplier framework agreement. The motion to amend to add a claim in damages is a straightforward contention that the applicants have suffered a monetary loss.

Held The judge applied the test in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 and said the applicant had to show that there were reasons which both explained the delay and offered a justifiable excuse. The judge explained one of the most important factors was the public interest and another was the conduct of the parties. As to the first, he said there was a clear public interest in the disposal of controversies involving multiple suppliers of goods to the State within a prompt time-frame. The judge said the applicants sought to claim damages on the basis that they had been wrongly shut out of profits from the contracts under the multi-supplier framework agreement. He concluded no reason had been advanced as to why the point was not included in the statement to ground the application for judicial review. He concluded an award of damages was not essential to the disposal of the aspect of the case that would be in the public interest.

-Amendment in respect of capacity allowed; amendment in respect of damages refused

1 Mr Justice Charleton delivered on the 7th day of November 2014

2 Judgment delivered by Charleton, J.

3 1. This is an appeal from the judgment and order of Ó Néill J refusing a motion to extend grounds in a judicial review application in a public procurement challenge; [2014] IEHC 234 (Unreported, Ó Néill J, High Court, 9 ^th May, 2014). At issue in this appeal is whether the applicants/appellants should be permitted to add two new grounds to their pleading; one relating to capacity and the other to damages. The failure to plead the capacity ground arose through a simple error made by the lawyers in drafting the notice of application. That ground was, however, clearly notified to the respondent in the initial letter of 15 ^th March 2013, prior to the commencement of proceedings. The damages claim was not mentioned there, nor in statement to ground the application for judicial review but did appear in the originating notice of motion. Since at issue is the validity of a decision to Limit the available range of suppliers in public procurement for State bodies, any amendment to proceedings must take into account the public interest in the swift disposal of this kind of litigation and will only allow exceptions to the strict time limits involved where good reasons are advanced.

4 2. These proceedings commenced by originating notice of motion on 19 ^th March, 201 3. One issue which arises in the proceedings before the High Court is whether that motion commencing the proceedings was issued in time, which is the first plea in the notice of opposition. No comment will be made on this. Since that is a decision that needs to be resolved by the High Court, this decision is solely concerned with an amendment application and assumes, without deciding, that the proceedings started in time. Commencing the proceedings had the effect of freezing a decision by the respondents to limit public procurement to a number of providers in a multi-supplier framework agreement for the purchase of monochrome and colour printers and other multifunction devices. The trial date for the substantive review in the High Court is set for 10 ^th December, 2014. Pending the resolution of the proceedings, these devices are being purchased by the respondents on behalf of a multitude of State agencies without implementing the limiting measures as to suppliers with which the applicants/appellants take issue. The resolution of the proceedings will depend on whether a breach has occurred of the European Communities (Award of Public Authorities' Contracts) Regulations 2006 ( S.I. No. 329 of 2006), known as the Public Procurement Regulations, in respect of which applications must be made swiftly under the European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 ( S.I. No. 130 of 2010), known as the Remedies Regulations. Order 84A of the Rules of Superior Courts reflect the time limits in the originating legislation. Under the Remedies Regulations at Regulation 7(2) an application to suspend the process of awarding contracts must be made "within 30 calendar days". This runs from when "the applicant was notified of the decision, or knew or ought to have known of the infringement alleged in the application." Regulation 10(2) of the Remedies Regulations enables rules of court to extend the statutory time period for the commencement of such an application. This requires "good reason to do so." Order 84A rule 8 on amending a statement of application whether by specifying different or additional grounds is silent on the standard to be met before such an amendment will be permitted. There is no doubt, however, that for an amendment to be permitted, good reason is also required. In Keegan v GSOC [2012] 2 IR 570 at issue before the Supreme Court was an amendment under Order 84. Having reviewed the various authorities on leave to amend judicial review proceedings, Fennelly J stated that a fair balance needed to be struck between the certainty and security of administrative decisions and the rights of those affected to contest them. Of necessity, various strict time limits are set by the Rules of the Superior Courts or by legislation for challenging such decisions. As Fennelly J points out at paragraph 32, however, such limits are mitigated by the power of the courts to permit an application outside the permitted time "provided the court is persuaded that there is good reason for the delay and that no other party is adversely or unfairly prejudiced." Where an amendment is sought, as Fennelly J points out at paragraph 35, there is no reason to impose a more exacting standard than would be the case for a late application:

5 On the other hand, it is difficult to see why an applicant for an amendment of grounds should have to satisfy a more exacting standard in explaining delay than is imposed on an ordinary late application. He may say that the additional ground is based on material of which he was unaware when he was making his original application. On occasion, the respondent reveals a new ground of argument in its answer to the application, as appears to have occurred in McCormack and Dooner. The applicant may offer a different explanation. There is no reason, in logic, to impose on an applicant a criterion of newly discovered fact to justify an an application to amend, when an application for an extension of time is not subject to any equivalent condition. This is not to say that the applicant's knowledge of the facts is irrelevant. In some cases, as in McCormack, discovery of new facts may be an explanation for the omission to include a ground. In other cases, the applicant may have been aware at all relevant rimes of the facts relevant to the new ground and this will weigh in the balance against him, without being...