KPW Business Forms Ltd t/a KPW Print Management v State Examinations Commission

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 05 March 2019
• Neutral Citation: [2019] IEHC 141
• Docket Number: 2018 No. 302 JR
• Court: High Court
• Date: 05 March 2019

[2019] IEHC 141

THE HIGH COURT

Barrett J.

2018 No. 302 JR

IN THE MATTER OF THE REVIEW OF THE AWARD OF A PUBLIC CONTRACT PURSUANT TO THE EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES' CONTRACTS) (REVIEW PROCEDURES) REGULATIONS 2010 (AS AMENDED) AND ORDER 84A OF THE RULES OF THE SUPERIOR COURTS (AS AMENDED)

Between:

KPW BUSINESS FORMS LIMITED

T/A KPW PRINT MANAGEMENT

Applicant

– and –

STATE EXAMINATIONS COMMISSION

Respondent

Costs – Moot proceedings – Award of contract – Applicant seeking costs – Whether there was an event to which the general rule as to costs should be applied

Facts: The applicant, KPW Business Forms Ltd, applied to the High Court for costs in moot proceedings concerning a competition for the award of a contract relating to the operation of Ireland’s second-level examinations. The proceedings became moot because the respondent, State Examinations Commission (SEC), unilaterally decided not to award the contract.

Held by Barrett J that, referring to MKIA v IPAT [2018] IEHC 134: (1) there was an event to which the general rule as to costs should be applied, being the SEC’s unilateral decision not to award the contract, rendering the proceedings moot; (2) the event was caused by the applicant’s proceedings; (3) the proceedings were not moot due to a factor outside the control of either party; (4) the proceedings were not moot due to a factor which was within the control of one party but which had no causal nexus with the proceedings, as the proceedings were moot due to the unilateral decision of the SEC not to award the contract (a) in circumstances where it could have arrived at an alternative decision and (b) in the context of a tendering process, the relatively constrained timeframe of which was entirely of the SEC’s design; (5) the proceedings were moot due to a factor within the control of one party that did have a causal nexus with the proceedings.

Barrett J held that the court would make an order of costs in favour of KPW.

Application granted.

JUDGMENT of Mr Justice Max Barrett delivered on 5th March, 2019.

1 This is an application for costs made in now moot proceedings concerning a competition for the award of a contract relating to the operation of Ireland's second-level examinations. Following the commencement of these proceedings, the SEC, consistent with the RFT, took the decision not to award that contract. So the proceedings became moot because the SEC unilaterally decided not to...