Copymoore Ltd v Commissioners of Public Works of Ireland
| Jurisdiction | Ireland |
| Judge | Neill J. |
| Judgment Date | 09 May 2014 |
| Neutral Citation | [2014] IEHC 234 |
| Date | 09 May 2014 |
| Court | High Court |
[2014] IEHC 234
THE HIGH COURT
BETWEEN
AND
JUDGMENT of Neill J. delivered on the 9th day of May 2014
1. By notice of motion dated 15 th January 2014, the applicants seek an order pursuant to the Rules of Superior Courts, granting liberty to amend the originating notice of motion and statement of grounds dated 19 th March 2013, as well as an order extending the time period for bringing this application.
2. The respondent issued a 'Request for Tenders' on 31 st January 2013, with a view to establishing a multi-supplier framework agreement for the supply of printers and printing devices. The closing date for receipt of applications was 20 th March 2013. The applicants contend that the qualification criteria as set out in the Request for Tenders is disproportionate to the relevant market and discriminatory in a manner prohibited by Regulation 8(1) of the European Communities (Public Authorities' Contracts)(Review Procedures) Regulations 2010. also referred to in these proceedings as the 'Remedies Regulations'. The originating notice of motion and statement of grounds are dated 19 th March 2013. The proceedings were returnable before the High Court on 22 nd April 2013, and have been adjourned on a number of occasions. The respondent's statement of opposition and replying affidavits are dated the 15 th August 2013.
3. On 4 th November 2013, the applicants' solicitors wrote to the respondent " for the purposes of seeking the Respondent's consent to the amendment by our clients to the Statement of Grounds..." This letter stated that the applicants were seeking to challenge "the capacity of the respondent to enter into and/or conclude (he proposed framework agreements on behalf of the clients specified in the framework agreements". It was explained that this matter had already been argued before the High Court in separate proceedings between the two parties, but that due to an oversight, the relief was not sought in these proceedings.
4. By letter dated 8 th November 2013, the respondent's solicitors informed the applicants that the respondent was not willing to furnish the consent sought for the following reasons:
"Firstly, as you are aware specific and strict time limits are provided for the in the relevant statutory regulations and Rules of the Superior Courts and it is clear that your clients are far out of the allowed time to raise these matters. "
Secondly, if applicants were permitted to avoid the effect of the strict time limits laid down in procurement matters by the statutory regulations, the Rule of the Superior Courts and the case law of the courts on the basis of mere "oversight", those time limits - which are imposed in the public interest - would be rendered nugatory.
Thirdly, the pleadings are closed and extensive affidavits have already been exchanged in this matter... if your clients were permitted to raise this matter at this juncture it would require an additional verifying aff?davit to be delivered by your clients...Furthermore, the new grounds which are sought to be raised would require the delivery of new and additional affidavit evidence on behalf of oar clients."
5. Finally, it was stated that the introduction of these issues into the proceedings would cause considerable costs to be incurred and would almost certainly result in delay. As a result of this refusal, the applicants commenced these proceedings by notice of motion dated 15 th January, 2014.
6. The European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 entitles an 'eligible person' to apply to this Court for relief under the Regulations in respect of a "reviewable public contract". Regulation 7 sets out the time limits for applications to the Court:
2 "7. (1) Subject to any order of the Court made under a rule referred to in Regulation 10(2), an application to the Court shall be made within the relevant period determined in accordance with this Regulation.
(2) An application referred to in subparagraph (a) or (b) of Regulation 8(1) shall be made within 30 calendar days after the applicant was notified of the decision, or knew or ought to have known of the infringement alleged in the application.
(3) An application for a declaration that a contract is ineffective shall be made within 30 calendar days (commencing on the appropriate date determined in accordance with paragraph ( 4) or (5), as the case requires), in the following cases-
(a) where the contracting authority published a contract award notice in accordance with Regulations 41 and 45 of the Public Authorities' Contracts Regulations, and, in the case of a contract awarded without prior publication of a contract notice in the Official Journal, on condition that the contract award notice sets out the justification of the contracting authority's decision not to publish a contract notice:
[...]
(6) In any other case an application for a declaration that a contract is ineffective shall be made within 6 months after the conclusion of the relevant contract."
These time limits have been incorporated into O. 84A of the Rules of the Superior Courts.
7. Regulation 8 sets out the relief which may be sought from the Court:
2 "(1) An eligible person may apply to the Court-
(a) for interlocutory orders with the aim of correcting an alleged infringement or preventing further damage to the eligible person's interests, including measures to suspend or to ensure the suspension of the procedure for the award of the public contract concerned or the implementation of any decision taken by the contracting authority, or
(b) for review of the contracting authority's decision to award the contract to a particular tenderer or candidate.
[...]
(3) A person who is an eligible person in relation to a reviewable public contract that has been concluded may apply to the Court for a declaration that the contract is ineffective."
8. Order 84A of the Rules of the Superior Courts sets out the procedure for parties seeking to review or set-aside public contracts. Order 84A, r. 8 states that:
2 "(1) The Court may on the hearing of the Originating Notice of Motion allow the applicant or any other party to amend his statement whether by specifying different or additional grounds of relief or opposition or otherwise on such terms, if any, as it thinks fit and may allow further affidavits to be filed if they deal with new matters referred to in an affidavit of any other party to the application.
(2) Where the applicant or any other party intends to apply for leave to amend his statement or to use further affidavits he shall give notice of his intention and of the proposed amendment to every other party."
9. Under Order 84A, r. 4(2), the time periods in 0. 84A are capable of extension:
"Notwithstanding sub-rule (1), the Court may grant leave, on the application of the intending applicant for that purpose, to make an application to which Regulation 7(2) of the European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 or, as the case may be, Regulation 7(2) of the European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010 applies after the expiry of the time mentioned in sub-rule (l), where the Court considers that there is good reason to do so."
10. The applicants contend that O. 84A provides to this Court a clear jurisdiction and discretion to grant the relief sought. In relation to amending the originating notice of motion and statement of grounds dated 19 th March 2013, counsel for the applicants accepts that in the context of statutory or non-conventional judicial review, the courts have adopted a strict approach to the amendment of grounds outside of time limits. However, it was submitted, relying on Delaney & McGrath 'Civil Procedure in the Superior Courts' 3 rd Ed., 2012), that a "different and less restrictive approach" has been adopted where the time period is capable of extension. Reference was made to Sweetman v. An...
To continue reading
Request your trial
-
Copymoore Ltd and Others v Commissioners of Public Works of Ireland
...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 ad......
-
Forum Connemara Ltd v Galway County Local Community Development Committee
...perhaps buttresses the approach being taken by the court in the within proceedings. F. Copymore Ltd. v. Commissioner of Public Works [2014] IEHC 234; [2014] IESC 63 26 The issue of an extension of time was considered in the procurement context by O'Neill J. in Copymore, albeit in the contex......