Long v Bord Bia Irish National Accreditation Board
| Jurisdiction | Ireland |
| Judge | O'Donnell J.,McKechnie J.,Dunne J. |
| Judgment Date | 03 February 2017 |
| Neutral Citation | [2017] IESCDET 12 |
| Court | Supreme Court |
| Date | 03 February 2017 |
[2017] IESCDET 12
THE SUPREME COURT
DETERMINATION
O'Donnell J.
McKechnie J.
Dunne J.
AND
This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal (Peart J., with Irvine and Keane JJ.) delivered on the 8th November, 2016 ( [2016] IECA 316) and from the resulting order of that Court made on the 22nd November, 2016 and perfected on the 23rd November, 2016.
Noel Long, hereinafter referred to as ‘the Applicant’, seeks leave to appeal to this Court from the said judgment of the Court of Appeal.
Bord Bia, Irish National Accreditation Board, National Standards Authority of Ireland, Department of Agriculture, Food and the Marine are hereinafter referred to as ‘the Respondents’.
The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of the Article 34.5.3° of the Constitution and many determinations made by this Court since the enactment of the Thirty Third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the Applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.
Any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned, and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this Court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, the issue or issues in respect of which leave is granted to appeal to this Court will in due course be disposed of in the substantive decision of the Court.
The Applicant is a qualified trainer in management systems and describes himself as being experienced in the implementation, training and lodging of applications for accreditation and certification in the food industry. He does this through a body known as QMS Solutions. QMS Solutions submitted a response to a tender issued by Bord Bia on the 10th February, 2014 for the provision of information technology services for the development and implementation of what is described as a web based portal named ‘Origin Green Platform’ in order to facilitate communications and engagement with a sustainability development programme for Irish food, drink and horticultural companies. QMS was unsuccessful in its application for the award of this tender and was so notified by letter dated the 7th April, 2014. Thereafter the applicant met with representatives of Bord Bia to discuss the reasons why his bid was unsuccessful. Subsequently, he sent a number of e-mails to various Government Departments, media outlets and other statutory and public bodies in which he complained that the tender process was in breach of EU and national public procurement legislation and that the entire agri-food sector is being criminally exploited. He then issued a plenary summons on the 20th June, 2014, a document which was described by the learned trial judge in the High Court as follows (at para. 2):
‘… a document running to over 300 pages described as “supplementary to all originals” which contains detailed submissions, copies of Acts of the Oireachtas, various Regulations issued by the European Communities, and other general documentation. For the purpose of this application a document that appears towards the end of that documentation and which takes the form of a letter and runs to three pages has been treated as a form of a statement of claim.’
An application was brought by the first named respondent to strike out the proceedings on the basis that the pleadings disclosed no reasonable cause of action, were bound to fail and were frivolous or vexatious and an abuse of process. The application, whilst brought by the first named respondent, was brought on behalf of and with the authority of all of the other Respondents.
The trial judge (Baker J.), in delivering judgment on 20th March, 2015 ( [2015] IEHC 206), noted that the specific complaint articulated by the Applicant in the course of the hearing before her was that the bodies, and the enabling legislation, incorrectly transposed EU law or EU requirements in that the focus of the Irish Accreditation and Standard Scheme is the market and not the needs or abilities of producers. He describes the schemes and the operation of the schemes as being ‘market driven’, and said that they ought to be ‘producer driven’. The point was made by the Respondents concerning the pleadings:
(1) that it was very difficult to discern the nature of the Applicant's case from the 300 page document purporting to be a statement of claim;
(2) that the Applicant was seeking to mount a collateral attack on the decision made by Bord Bia in the tender process and that such claim must fail not having been brought within the time mandated within the Rules of the Superior Courts and on the basis that the Applicant had no standing to challenge the decision in relation to the tender process given that such challenge was only open to QMS Solutions.
In response the Applicant indicated that he did not seek to challenge the decision on the tender by QMS Solutions and did not seek to impugn or reverse the decision of Bord Bia in refusing to award the tender. He stated that his claim is more general and it is a claim of the failure of the system to properly protect the interests of producers. In those circumstances the trial judge concluded that it was not necessary to consider whether the Applicant was mounting a collateral attack on the refusal of the tender to QMS Solutions.
In the course of argument, the Applicant stated that he brought the claim as a citizen on the basis that the entire structure and operating basis of the Respondents was deficient as a matter of national and EU law and did not properly respect the rights of producers. It was noted by the trial judge that the Applicant was not a producer. The Applicant argued that he was an ‘authorised representative’ within the meaning of the definition contained in Article 2.4 of Regulation E. C./765/2008 of 9th July, 2008 which sets out the requirements for accreditation and market surveillance relating to the marketing of products. Reference was also made to the definition of an economic operator. She noted that neither the plaintiff nor his firm can have standing to challenge the means by which the Regulations have been incorporated into Irish law or the means by which the various Respondents have met their obligation to have a harmonious and functioning accreditation system. She went on to say that if there was a claim it is a claim that may be made by producers, importers or distributors and she was persuaded by the Applicant's argument that his true claim is that the EU regime and the statutory realisation of that scheme in Ireland ought to be producer led rather than market led. On that basis she said that if his claim was that producers are not properly dealt with or considered under the process then only a producer could be said to have standing to prosecute such an action. Accordingly she concluded that the Applicant did not have standing to bring the proceedings. She went on to consider the general challenge brought by the Applicant to the effect that the various bodies comprising the Respondents were improperly constituted and fail in their application of standards to apply standards either objectively or in accordance with law. She concluded that if it is the case that the Irish State has wrongly transposed the Regulations and other EU legislation into Irish law then the EU institutions may challenge the State in respect of such wrong transposition. She noted that the Applicant had not identified one decision of any of the Respondents nor any Act of the Oireachtas which he challenged. His claim was made in general terms that the market and in particular the producers of food stuffs gain no benefit from the...
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