LOC8 Code Ltd v The Department of the Environment and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Max Barrett
• Judgment Date: 20 December 2023
• Neutral Citation: [2023] IEHC 752
• Docket Number: [2022 No. 4553P]

Between

Loc8 Code Limited

Plaintiff

and

The Department of the Environment, Climate, and Communications and Capita Business Support Services Ireland Ltd Trading as Eircode, and An Post

Defendants

[2023] IEHC 752

[2022 No. 4553P]

THE HIGH COURT

Public procurement – Conspiracy – Breach of competition law – Defendants seeking dismissal of proceedings – Whether the proceedings had been brought out of time

Facts: The plaintiff, Loc8 Code Ltd, claimed breach of public procurement law. There were also claims concerning conspiracy, breach of competition law, breach of state aid rules, and interference with the conclusion of contracts. The first defendant, the Department of the Environment, Climate and Communications, by notice of motion of 17th January 2023, sought, among other matters, the following reliefs: (1) an order pursuant to O. 19, r. 28 RSC and/or the inherent jurisdiction of the High Court, dismissing and/or striking out in whole or in part the plenary summons and the statement of claim in the proceedings; and/or (2) an order dismissing the proceedings on the basis of having been brought outside the time limits applicable under the EC (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010 (SI 131/2010); and/or (3) an order pursuant to the inherent jurisdiction of the court and/or the Statute of Limitations and/or in the interests of justice, dismissing the proceedings on the basis of being statute barred and/or on the basis of inordinate delay and/or barred by laches; and/or (4) an order pursuant to O. 124 RSC, setting aside the proceedings for irregularity, in particular due to the failure of the plaintiff to comply with the requirements of SI 131/2010 and/or O. 84A RSC. The second and third defendants, Capita Business Support Services Ireland Ltd and An Post, sought similar reliefs by notices of motion of 16th January 2023.

Held by Barrett J that the public procurement claim had been brought years out of time. He held that the other claims were vague, inadequately particularised, and inextricably connected with and derivative to the public procurement claim; they had likewise been brought years out of time. He held that the delay in the case was so protracted, without any clear reason for same, that even if the tight time constraints in procurement proceedings did not apply (and they did) there was simply no basis on which he could properly tolerate the delay presenting and allow the proceedings to continue. He held that even if the proceedings fell to be decided by reference not to the Remedies Regulations (which was the applicable legislation) but fell to be decided under O. 84 RSC (and they did not), then the proceedings had been commenced very considerably outside the three-month time limit that arises under O. 84 RSC. He held that no application had been made under O. 84A RSC for an extension of time and even if it had been it would be doomed to fail; there was simply no basis for granting any extension, let alone an extension of the type which he would be called upon to countenance. As to the plaintiff’s efforts to recast elements of its claim as something other than a procurement-related claim, he found that it had been clear since at least the time of the decision in BAM PPP Ireland Ltd and Balfour Beatty Ireland Ltd v National Roads Authority [2017] IEHC 157 that the courts will not countenance attempts to re-characterise public procurement challenges as something other than public procurement challenges when that is what they are. He held that the entirety of the proceedings failed as being completely out of time, being a public procurement challenge to which the reg. 7 time limits applied.

Barrett J granted an order dismissing the proceedings on the basis of their having been brought very considerably out of time under the Remedies Regulations.

Proceedings dismissed.

Summary

In this judgment I explain why I will strike out these proceedings as having been brought out of time under the Remedies Regulations. Even if they did not fall to be struck out under the Remedies Regulations, I would have struck them out as being out of time under O.84A RSC.

JUDGMENT of Mr Justice Max Barrett delivered on 20 ^th December 2023 .

A. The Three Notices of Motion

1 . By notice of motion of 17 ^th January 2023, the Department has come seeking, among other matters, the following reliefs:

• (1) an order pursuant to O.19, r.28 RSC and/or the inherent jurisdiction of the court, dismissing and/or striking out in whole or in part the plenary summons and the statement of claim in these proceedings, and/or

• (2) an order dismissing the proceedings on the basis of having been brought outside the time limits applicable under the EC (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010 (SI 131/2010), as amended, and/or

• (3) an order pursuant to the inherent jurisdiction of the court and/or the Statute of Limitations and /or in the interests of justice, dismissing the proceedings on the basis of being statute barred and/or on the basis of inordinate delay and/or barred by laches, and/or

• (4) an order pursuant to O.124 RSC 1986, setting aside the proceedings for irregularity, in particular due to the plaintiff's failure to comply with the requirements of SI 131/2010 and/or O.84A RSC, as amended.

2 . This notice of motion is supported by a grounding affidavit sworn by Mr Lawlor, an assistant principal in the Department.

3 . By notice of motion of 16 ^th January 2023, Capita has come seeking, among other matters, the following reliefs:

• 1. an order pursuant to the inherent jurisdiction of the court dismissing the plaintiff's claim on the grounds that it is improperly constituted and/or misconceived;

• 2. an order striking out the plaintiff's claim for failure to initiate same under the provisions of O.84A RSC;

• 3. an order dismissing the plaintiff's claim for want of jurisdiction as proceedings issued outside of the time limits prescribed by O.84A RSC;

• 4. an order pursuant to the inherent jurisdiction of the court, pursuant to the Statute of Limitations 1957, and in the interests of justice dismissing the plaintiff's claim on the grounds that same are statute-barred and/or the plaintiff is guilty of inordinate and inexcusable delay;

• 5. an order pursuant to the inherent jurisdiction of the court and on the balance of convenience on the grounds that the plaintiff's claim is barred by laches;

• 6. an order pursuant to O.124 RSC setting aside the plaintiff's proceedings for irregularity on the grounds that (a) the plaintiff failed to bring his action to challenge the matters of public procurement pursuant to the specific provision for such applications under O.84A RSC, (b) the plaintiff deliberately sought use of a plenary action to detect the procedural and temporal requirements of O.84A RSC and the 2010 Utilities Remedies Regulations, (c) the plaintiff failed and/or refused to bring an application pursuant to O.84A, r.4(2) RSC seeking leave to extend time and to demonstrate good reasons, nor under O.122, r.7 RSC, and (d) the plaintiff's proceedings are therefore a nullity and ought to be dismissed; and/or

• 7. an order pursuant to O.19, r.5(2) RSC and/or the court's inherent jurisdiction striking out the plaintiff's proceedings on the grounds that the allegation of conspiracy made therein against the Capita is inadequately pleaded and fails to particularise the conspiracy (with dates and items); and/or

• 8. an order pursuant to O.19, r.27 and/or r.28 RSC and/or the court's inherent jurisdiction, striking out the plaintiff's claim on the grounds that the pleadings are unnecessary and/or scandalous, and/or may tend to prejudice, embarrass or delay the fair trial of the action and/or that the pleadings are frivolous and/or vexatious and/or disclose no reasonable cause of action and/or are bound to fail.

4 . This notice of motion is supported by a grounding affidavit sworn by Ms Chamberlain, the manging director of Capita.

5 . By notice of motion of 16 ^th January 2023, An Post has come seeking, among other matters, the following reliefs:

• 1. an order pursuant to O.19, r.28 RSC striking out the proceedings herein as against An Post on the grounds that they are frivolous and/or disclose no reasonable cause of action; and/or

• 2. an order pursuant to the inherent jurisdiction of the court striking out the proceedings as against An Post on the grounds that they are frivolous and/or vexatious and/or disclose no reasonable cause of action and/or are bound to fail and/or are an abuse of process;

• 3. an order pursuant to O.19, r.27 RSC striking out the proceedings herein as against An Post on the basis that they consist of pleadings which are unnecessary and/or scandalous and/or may tend to prejudice, embarrass, or delay the fair trial of the action;

• 4. an order dismissing the proceedings on the basis that they relate to the award of a contract subject to the EU public procurement regime or utilities procurement regime and have not been brought pursuant to Public Contracts Remedies Regulations, the Utilities Contracts Remedies Regulations, and/or in accordance with the provisions of O.84A RSC and that the time periods provided for under those regulations have expired;

• 5. an order pursuant to the inherent jurisdiction of the court dismissing the plaintiff's claim as against An Post on the grounds of inordinate and inexcusable delay in bringing same;

• 6. an order pursuant to O.19, r.5(2) RSC striking out the proceedings herein as against An Post on the basis that the allegation of conspiracy made against it is such as to require particulars (with dates and items) to be set out in the pleadings and no such particulars (or no such adequate particulars) are set out in the pleadings.

6 . This notice of motion is supported by a grounding affidavit sworn by Mr Carroll, a solicitor within An Post's...