Dekra Éireann Teo v Minister for Environment

JurisdictionIreland
CourtSupreme Court
JudgeDenham J.,FENNELLY J.
Judgment Date04 April 2003
Neutral Citation[2003] IESC 25
Docket Number[S.C. Nos. 107, 118 and 158 of 2002]
Date04 April 2003

[2003] IESC 25

THE SUPREME COURT

Keane C.J.

Denham J.

McGuinness J.

Hardiman J.

Fennelly J.

Record No. 107/02
118/158/02
DEKRA EIREANN TEORANTA v. MIN FOR ENVIRONMENT & SGS (IRL) LTD
IN THE MATTER OF THE EUROPEAN COMMUNITIES
(REVIEW PROCEDURES FOR THE AWARD OF PUBLIC SUPPLY,
PUBLIC WORKS AND PUBLIC SERVICES CONTRACTS)
(NO. 2) REGULATIONS 1994
BETWEEN/
DEKRA EIREANN TEORANTA
Applicant/Respondent

and

MINISTER FOR THE ENVIRONMENT AND LOCALGOVERNMENT
Respondent/Appellant

and

S.G.S. IRELAND LIMITED
Notice Party/Appellant

Citations:

RSC O.84(A)

RSC O.84(A) r4

EEC DIR 89/665 ART 1(3)

EUROPEAN COMMUNITIES (REVIEW PROCEDURES FOR THE AWARD OF PUBLIC SUPPLY PUBLIC WORKS & PUBLIC SERVICE CONTRACTS) (NO 2) REGS 1994 SI 309/1994 ART 5

RULES OF THE SUPERIOR COURTS (NO 4) (REVIEW OF THE AWARD OF PUBLICE CONTRACTS 1998 SI 374/1998 REG 4

EEC DIR 92/13

EEC DIR 92/50

EEC DIR 89/665 ART 1

EEC DIR 89/665 ART 2

MATRA COMMUNICATIONS SAS V HOME OFFICE 1999 3 AER 562

RSC O.84 r21(1)

CUSSEN, STATE V BRENNAN 1981 IR 181

R V HERROD 1976 QB 540

R V SHEWARD 1880 9 QB 741

R V GLAMORGAN APPEAL TRIBUNAL EX PARTE FRICKER 1917 33 TLR 152

O'DONNELL V DUN LAOGHAIRE CORPORATION 1991 ILRM 301

EEC DIR 96/96 ART1

EEC DIR 96/96 ART 11

EEC DIR 97/52

EUROPEAN COMMUNITIES (AWARD OF PUBLIC SERVICE CONTRACTS) REGS 1998 SI 378/1998

EEC DIR 89/667

EUROPEAN COMMUNITIES (REVIEW PROCEDURES FOR THE AWARD OF PUBLIC SUPPLY PUBLIC WORKS & PUBLIC SERVICE CONTRACTS) (NO 2) REGS 1994 SI 309/1994 ART 4

EEC DIR 89/665 ART 2(5)

TREATY OF ROME ART 5

COMET MACHINERY CO LTD (IN LIQUIDATION), RE 1999 IR 485

ARTICLE 26 & THE ILLEGAL TRAFFICKING IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 351

O'FLYNN V MID WESTERN HEALTH BOARD 1991 2 IR 223

FUREY, STATE V MIN DEFENCE 1988 ILRM 89

DE ROISTE V MIN DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

Synopsis:

CONTRACT

Public procurement

Practice and procedure - European law - Public procurement contracts - Process of tendering - Delay - Dismissal of proceedings - Principle of equivalence - Whether time to challenge award of contract should be extended - Whether proceedings initiated at earliest opportunity - Rules of the Superior Courts, 1986 (107, 118 & 158/2002 - Supreme Court - 4/4/2003)

Dekra v Minister for the Environment and Local Government - [2003] 2 IR 270 - [2003] 2 ILRM 210

The notice party (SGS) had been awarded the National Car Testing contract. The applicant (Dekra) had also submitted a tender for the contract and had been unsuccessful. Dekra brought judicial review proceedings seeking to challenge the award of the contract. SGS brought an application seeking to have Dekra's proceedings struck out on the grounds of delay. SGS claimed that the applicant had failed to comply with the three month time limit as set out in Order 84 A of the Superior Court rules or in the alternative due to the applicant's inordinate and inexcusable delay in instituting the proceedings. SGS contended that Dekra did not apply at the earliest opportunity and the proceedings initiated by Dekra must be struck out. The respondent submitted that to allow an application for the review of public contract outside the specified time period would prejudice the orderly administration of public tenders and would not be in accordance with the principle of legal certainty. In the High Court Mr. Justice O'Neill refused the application to dismiss proceedings holding that neither SGS nor the respondent would suffer a significant prejudice that could be attributable to the delay on the part of Dekra. If the proceedings were struck out now without having been heard a grave injustice might be done to Dekra. SGS appealed to the Supreme Court.

Held by the Supreme Court (Denham J and Fennelly J delivering judgment; Keane CJ, McGuinness J and Hardiman J agreeing) in allowing the appeal and dismissing the judicial review proceedings. Denham J held that an essential feature of both European law and the consequent court rules in regard to public procurement contracts was the policy of urgency. Dekra had not instituted judicial review proceedings at the earliest opportunity and had not instituted proceedings within the required three months. Dekra had not complied with the relevant rules and had not explained nor justified the delay. The appeal would be allowed and the application for judicial review refused. Fennelly J held that Dekra had shown no good reason for their failure to commence proceedings after receiving a letter from the respondent indicating the formal position. The appeal would be allowed and the judicial review proceedings dismissed.

1

Judgment delivered on the 4th day of April,2003by Denham J.

2

1. In the course of the last two decades, throughout the common law world, there has been an explosion in litigation by way of judicial review. In addition there has been a development of specialist law fields of judicial review. These include, for example, law on immigration, planning and development and, more recently, public contracts. This case concerns the specialist area of public contracts, which law has its roots in the European Union.

3

2. This case arises out of the decision by the Minister for the Environment and Local Government, the respondent/appellant, hereinafter referred to as the Minister, to award a contract to S.G.S. Ireland Limited, notice party/appellant, hereinafter referred to as S.G.S., to establish and operate a system for testing private cars inIreland.

4

3. Dekra Eireann Teoranta, the applicant/respondent, hereinafter referred to as Dekra, was an unsuccessful tenderer for the contract and on the 25 th March, 1999 issued judicial review proceedings against the Minister.

5

4. On the 15 th June, 1999 S.G.S., by notice of motion, sought to strike out the judicial review proceedings on the grounds that Dekra did not comply with the time limits prescribed under Order 84 A of the Rules of the Superior Courts and that there were no grounds which would warrant the extension of time.

6

5. The High Court refused the relief sought. O'Neill J., in a judgment of the 2 nd November, 2001, construed the terms of Order 84 A and decided to exercise his discretion in favour of extending the time limit in Order 84A.

7

6. Against that order and judgment of the High Court S.G.S. and the Minister have appealed.

8

7. S.G.S. filed the following grounds of appeal:

9

i "(i) The Learned Trial Judge erred in law and in fact in refusing to strike out the Judicial Review Proceedings;

10

(ii) The Learned Trial Judge in finding that time began to run for the purposes of Order 84 A Rule (4) from November, 24, 1998, against the Applicant/Respondent, erred in law and in fact in not striking out the proceedings as a result of the delay from that date to the date of the issue of the Judicial Review Proceedings being the 25 thMarch, 1999, which said period of delay exceeded the three month period and was both inordinate and inexcusable.

11

(iii) The Learned Trial Judge in holding that the Applicant/Respondent had failed to explain and excuse the delay in instituting the Judicial Review Proceedings erred in law and in fact in failing to accede to the application of the Notice Party/Appellant to strike out the Judicial Review Proceedings on the grounds of the Applicant/Respondents failure to comply with the three month time limit in Order 84 A of the Rules of the Superior Courts 1986 and/or its failure to institute the proceedings in a timely fashion.

12

(iv) The Learned Trial Judge erred in law and in fact in failing to have any or any proper regard to the essential urgency which was required under EU Directive 89/665 and Order 84 A of the Rules of the Superior Courts 1986 in refusing to strike out the Judicial Review Proceedings by reason of the Applicant/Respondents failure to act with urgency and in particular by reason of its inordinate and inexcusable delay and failure to meet the three month time limit.

13

(v) The Learned Trial Judge erred in law and in fact in holding that the Applicant/Respondent had been guilty of lack of candour in its Affidavits regarding its state of knowledge for the purpose of time running against it and thereafter refused to strike out the Judicial Review Proceedings whether on that ground alone or on that ground coupled with other grounds.

14

(vi) The Learned Trial Judge erred in law and in fact in assessing the issue of prejudice and in the manner in which he considered that issue and had regard to it in and about reaching his decision to refuse to strike out the Applicant/Respondent's Judicial ReviewProceedings.

15

(vii) The Learned Trial Judge erred in law and in fact in exercising his discretion to extend time in favour of the Applicant/Respondent.

16

(viii) The Learned Trial Judge erred in law and in fact in exercising his discretion to extend time in favour of the Applicant/Respondent and in particular failed to have any or any proper regard to the fact that he had found that the Applicant/Respondent had not explained and/or excused a significant portion of delay, failed to have any or any proper regard to the huge costs incurred by the Notice Party/Appellant in rolling out their network once the contract was awarded, failed to have any or any proper regard for the need for commercial certainty, failed to have any or any proper regard the (sic) statutory objectives encapsulated in the 1994 Regulations and failed to have any or anyproper regard for the need for speedy decision making the outcome of which is certain and beyond challenge.

17

(ix) The Learned Trial Judge erred in law and in fact in the formulation and application of the test to be met by the Notice Party/Appellant in seeking to have the Judicial Proceedings struckout.

18

(x) The Learned Trial Judge erred in law and in fact in the formulation and application of the test to be applied in relation to extending time for the...

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