Forum Connemara Ltd v Galway County Local Community Development Committee
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 15 June 2015 |
| Neutral Citation | [2015] IEHC 369 |
| Date | 15 June 2015 |
| Court | High Court |
[2015] IEHC 369
THE HIGH COURT
AND
Local government – Award of contract – Discrimination – Local Government Act, 2014 – O. 84A of the Rules of the Superior Courts – Whether delay in commencing proceedings excusable
Facts: In the proceedings, the applicant challenged the decision taken by the respondent in distributing certain government funds wherein the entire respondent county was to be treated as a single lot. The applicant contended that the decision of the respondent to adopt a conflicts interest policy and exclude many Committee members from voting on the decision-making process was arbitrary and irrational. The respondent contended that the proceedings were time barred.
Mr. Justice Max Barrett declined to grant an order striking out the within proceedings on the basis that it was improperly constituted under o. 84A of the Rules of the Superior Courts. The Court granted orders permitting the present proceedings and allowing the applicant to amend and/or re-constitute the proceedings so as to bring it within ambit of the said order. The Court held that the decision of the respondent was not an interim decision; it was a full and final decision for the purposes of award of a contract and therefore fell within the clutches of o. 84A. The Court held that the present case had good reasons imbibed in public interest within o. 84A, r. 4 (2) for allowing it to proceed albeit it was commenced late.
Galway County Local Community Development Committee took a decision last September that for the purposes of a tender for distributing certain Government funds, all of Galway would be treated as a single 'lot' Forum Connemara has objected to that decision from the day it was made. It has liaised with politicians to see what can be done; some of those politicians have been vocal in their criticism. The public in west Galway are so incensed by the decision of last September that a meeting in the village of Maam Cross in March attracted hundreds of attendees. The problem is essentially as follows. West Galway and the Aran Islands are quite different from the rest of County Galway. Not least among these differences is that they are among the few places in Ireland where the Irish language continues to be spoken widely and as a mother-tongue, rendering them a linguistically, and perhaps also culturally, distinct area. There are concerns that if, as presently intended - thanks to Forum Connemara having lost out in the tender for distribution of the Government funds - the responsibility for distribution moves from Connemara and is centralised elsewhere in County Galway, a great deal of local knowledge, experience, community activism, community commitment, efficiencies and know-how will be lost irretrievably. So the decision of last-September has led to serious and various concerns, though it seems to the court that all of them fall into one or both of two categories: the way the decision was made; and the ultimate effect of the decision.
As to the way the decision was made, the core of the issue arising is this. The Local Community Development Committee is a statutory committee that was established in June of last year, following the enactment of the Local Government Act, 2014. It met for the first time on 30 th September of last year. Section 36 of the Act of 2014 provides that the Committee is charged with "developing, co-ordinating and implementing a coherent and integrated approach to local and community development". As a committee, the LCDC is representative of the communities it serves. So, for example, it has members from Údarás na Gaelteachta, Comhar na nOileán Teo., Galway Chamber of Commerce, and even companies that have historically been involved in the disbursement of public funds, such as Forum Connemara. Forum Connemara itself, though a private limited company, is part of a partnership of voluntary, local and statutory bodies based in Connemara which have, as their objective, putting in place strategies and programmes to tackle the problem of rural decline among peripheral communities in west County Galway.
At the meeting of 30 th September, a staff-member of Galway County Council who was present as the Committee's Chief Officer, produced a conflicts of interest policy that was agreed to by the Committee. This conflict of interests policy had the result that when it came to deciding how new Government funding, the "SICAP" funding, would be distributed, no fewer than eight of the Committee members present had to leave the meeting-room. In their absence, the five members remaining decided (by a 4-1) decision that the SICAP funding would be distributed by a single tenderer throughout all of County Galway. So four out of 19 people decided the basis on which funding in excess of €1 million would be spent. When the excluded members returned to the meeting-room, objection was made to the decision. But to no avail. After the meeting was over, politicians and public objected to the decision. But to no avail. The objections appear to have been focused on the fact that west Galway is quite different to the rest of Galway and this difference had historically been recognised by having certain government funding locally disbursed there because of the local conditions pertaining and local knowledge required. In fact, it is alleged by Forum Connemara that at a meeting of 10 th September in Ballina, which it attended, a senior member of the Department of the Environment, Community and Local Government, no less, had indicated that Galway was too large and disparate for funds to be distributed on an all-county basis. There is also a contention in Forum Connemara's submissions that, in effect, Galway County Council 'pulled a fast one' at the meeting of 30 th September and used the conflicts of interest policy to engineer an end which it, for whatever reason, preferred, namely that SICAP funds would be distributed in Galway by a single party on an all-county basis.
The adoption of the conflicts interest policy, the subsequent exclusion of many Committee members from the meeting-room, the fact that the decision as to the distribution of the SICAP funds was decided by four members of a 19-member committee, and the suspicion that all of this was contrived to produce a result that Galway County Council wanted to achieve are, the court understands, the principal pillars relied upon to support Forum Connemara's contention that the decision of 30 th September was made in a wrong manner. As to the substance of the decision, the objection taken by Forum Connemara to it is that the decision never made sense, and has never been considered by it to make sense, that it sat and sits badly with the assurance allegedly given by the Department of the Environment, Community and Local Government at the meeting of 10 th September, and that it made and makes no sense when viewed in the context of how funds have been historically distributed in west-Galway, and how Connemara and the Aran Islands have historically been treated as a quite different region from the rest of Galway.
Forum Connemara's challenge to the decision of 30 th September has been commenced well out of time. And it comes after it competed unsuccessfully, in the tendering process that followed the decision of 30 th September, to be the sole distributor of SICAP funds in County Galway. It is a classic example, the respondent contends, of a failed tenderer seeking to have its cake and eat it. The court does not consider it to be anything of the sort. Just because circumstance forces a party through a tendering process, which it maintains from the outset to be flawed and contrived, does and should not have as a necessary consequence in all instances that such party has by its participation forfeited any right to object to that process thereafter. On and since 30 th September, Forum Connemara has made patently clear that it is completely dissatisfied with the basis for the tendering process. But when, on 20 th October, the invitation to tender issued following the decision of the 30 th, what was Forum Connemara to do? It could hardly stand aside while a contract for distribution of in excess of €1 million of funds was whipped from under its nose and given to another. So it did what likely anyone would do. It bid for the tender, and it and interested members of the public and some public and community representatives kept up the efforts on the political front.
There may be (the court reaches no conclusion in this regard) that there was a possible touch of naïveté in the approach adopted by Forum Connemara. Once matters had formalised into an invitation to tender and a formal bidding process had begun, there was perhaps only one place a dispute was going to end up - and it has duly ended up in that place. But as this Court stated at para.7 of its judgment last year in Harrington v. EPA [2014] IEHC 307:
"The courts in applying the law must be sensitive to the personal and social background of persons who present before them. This is what makes our courts hallowed places in which, subject at all times to what the law requires, measured justice is dispensed and unmerited harshness avoided. The correctness of this approach has been confirmed by the Supreme Court in the recent past…in Comcast International Holdings Limited v. Minister for Public Enterprise and Others [2012] IESC 50".
Here one is dealing with a company that works in the community sector, not some IFSC-based commercial venture stuffed to the gills with legal 'whizz-kids'. The court...
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...significant and profound needs in his daily life. 52 In Forum Connemara Limited v. Galway County Local Community Development Committee [2015] IEHC 369, Barrett J. noted his own decision the previous year in Harrington v. EPA [2014] IEHC 307: ‘The courts in applying the law must be sensitive......