Copymoore Limited and other applicants issued proceedings contending that the qualification criteria set out in a request for tender for a multi-supplier framework agreement for the supply of printers and printing devices were disproportionate to the relevant market and discriminatory in a manner prohibited by the European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 ("the Remedies Regulations"). The originating Notice of Motion and Statement of Grounds were dated 19 March 2013. The matter was returned before the High Court on 22 April 2013 and was subsequently adjourned on a number of occasions. The respondents' Statement of Opposition and replying Affidavits were dated 15 August 2013.
In November 2013 the Applicant's solicitors wrote to the respondents seeking consent to amendment of the Statement of Grounds to add an additional ground on which the applicants sought to challenge, namely, the capacity of the Commissioners to enter into and/or conclude proposed framework agreements on behalf of public sector clients named in the tender documents. It was explained that the matter had already been argued before the High Court in separate proceedings between the two parties but that, owing to an oversight, relief had not been sought on that ground in the current proceedings. (The earlier proceedings had resulted in a judgment of the High Court (Hogan J) on 29 May 2013 declaring that a Circular by the Department of Public Enterprise and Reform was ultra vires in so far as it sought to compel relevant public bodies to use framework arrangements which had been advertised as voluntary [ IEHC 230].
The Remedies Regulations, Regulation 7, require that application to the Court be made within a relevant period (usually 30 calendar days) or in some instances 6 months. These periods are mirrored in Order 84A of the Rules of the Superior Courts governing applications for Judicial Review of decisions in a procurement context. Order 84A, Rule 8, further provides that the High Court may allow an applicant or other party to amend a Statement of Grounds by specifying different or additional grounds of relief or opposition or otherwise on such terms as the High Court thinks fit. Rule 4(2) empowers the Court to grant leave to make an application to which Regulation 7(2) of the Remedies Regulations applies after the expiry of the time mentioned "where the Court considers that there is good reason to...