Long v Bord Bia and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 20 March 2015 |
| Neutral Citation | [2015] IEHC 206 |
| Court | High Court |
| Date | 20 March 2015 |
[2015] IEHC 206
THE HIGH COURT
BETWEEN
Contract – Tender process – Reg. EC 765/2008 – An Bord Bía Act, 1994.
Facts: The defendant sought an order to strike out the claim of the plaintiff. The plaintiff claimed that the defendant institutions failed in their statutory and EU obligations to properly apply the procurement rules. The plaintiff contended that the entire structure and operating basis of the defendants was deficient. The defendant contended that the plaintiff lacked standing to challenge the decision of the tender process.
Ms. Justice Baker held that the application for an order striking out the claim of the plaintiff would be granted. The Court held that the plaintiff failed to establish his standing to bring the case. The Court observed that the plaintiff would not fall in the category of a producer, supplier or a manufacturer as required by the law and therefore, lacked cause of action to challenge the decision of the tender process. The Court observed that the true claim of the plaintiff would be that the EU regime, and the statutory realisation of that scheme in Ireland, ought to be producer-led rather than market-led.
1. This is a motion brought by the defendant to strike out the claim of the plaintiff on the basis that the pleadings disclose no reasonable cause of action, are bound to fail and/or are frivolous or vexatious and an abuse of process.
2. The plaintiff is a litigant in person and he issued a plenary summons on the 20 th June, 2014 and served on the 25 th September, 2014, 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.
3. The plaintiff has a background in horticulture and food science, and quality food assurance and holds a BSc degree in Quality Management, a diploma in Food Quality Assurance, in Horticulture and many related certificates. He 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 generally. He does this through a body known as QMS Solutions, which he advises me is a trading name and he asks me to treat him for the purposes of the proceedings as a sole trader. I will come back later to the status of the firm QMS Solutions.
4. QMS Solutions submitted a response to a tender issued by Bord Bía on the 10 th February, 2014 for the provision of information technology services for the development and implementation of a web based portal, "Origin Green Platform", to facilitate communications and engagement with a sustainability development programme for Irish food, drink and horticultural companies. QMS submitted a response to the tender on the 24 th February, 2014 and was notified that its application was unsuccessful by letter of the 7 th April, 2014. Some days later on the 14 th April, 2014 the plaintiff himself attended a meeting with Bord Bía to discuss the reasons why QMS Solutions was unsuccessful in its bid.
5. Following the meeting the plaintiff sent emails from his QMS Solutions email account on the 14 th, 15 th, 16 th and 17 th April, 2014 to various Government departments, TDs, the Office of the Attorney General, members of foreign embassies in Ireland, various media outlets and other statutory and public bodies. In these emails the plaintiff complains 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.
6. In the course of the application before me the plaintiff accepted that some of the language used by him in these emails was unnecessarily inflammatory and he asked that I characterise his complaint found in the emails and subsequently in the litigation, the subject matter of this application, as motivated by a desire for Excellence in standards in the food industry. He tells me that his complaint is that the system operated by the defendants is in breach of the various statutory and EU obligations of those bodies, and that there is a flaw in the constitution of those bodies, primarily because he says the boards of the bodies consist of persons who have, or could objectively be seen to have, a conflict of interest. He points to the fact that there is a considerable overlap between the members of the boards in the various organisations, and as a result he says that the system is corrupt and not sufficient to meet the needs of producers.
7. His specific complaint as was articulated in the course of the hearing before me was that the bodies, and the enabling legislation, incorrectly transposes EU Law or EU requirements in that the focus of the Irish accreditation and standards 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".
8. Regulation EC 765/2008 is part of a series of EU Regulations which provide a framework of consumer and environmental protection in food production and supply in the context of the free movement of these goods. As a result of the Regulations certain bodies were established both at European and national level with the view to providing a system of recognition, accreditation and quality certification.
9. Bord Bía, the first named defendant, was established by An Bord Bía Act, 1994 and its statutory functions include under s.8(g) of that Act the operation of quality assurance schemes, the carrying out of evaluations of quality assurance schemes operated or proposed to be operated by other persons or bodies, and the administration of schemes, grants and other financial facilities requiring the disbursement of European Union funds.
10. The first defendant is alleged to have breached the standards and procurement processes mandated by the EU Regulations, and it is claimed that the Origin Green Platform, that entity or operation which was the subject matter of the tender process, does not "represent sustainability or sustainable systems", does not "represent value for taxpayers' money", and that in the operation of the Origin Green Platform tender Bord Bía breached public procurement legislation. The claim then is framed as a claim in general against Bord Bía, and in regard to the operation of the particular tender which the firm QMS Solutions did not win.
11. The third defendant was established by s.6 of the National Standards Authority of Ireland Act, 1996 with the statutory functions defined in s.7 as inter alia to encourage the use of standards specification, to formulate specifications, guides, recommendations and codes of practice, to arrange for the testing and analysis of commodities and to promote harmonisation of standards. The plaintiff claims that both the second and third defendants are acting in conflict with industry needs and industry standards.
12. The second defendant was established in 1985 and is a committee of the Health and Safety Authority under the Industrial Development (Dissolution of Forfás) Act, 2014.
13. The fourth defendant is a Minister of State.
14. The first defendant brings this motion to strike out the proceedings and does so on behalf of and with the authority of the other defendants, this method of proceeding being adopted in order to save costs. The same argument was made on behalf of each of them and it can fairly be said that the plaintiff's claim against each of them is broadly speaking similar if not identical. The defendants make the first general observation, with which I agree, that it is very difficult to discern the nature of the plaintiff's case from the documents lodged and I have already noted that the document which purports to be a statement of claim runs to over 300 pages. The general endorsement on the originating plenary summons describes the plaintiff's claim as being against the defendants for a failure to "adopt the systems solution proposed by QMS Solutions in support of producer organisations", and the claim is made that this "solution" would have put the defendants in compliance with both national and EU procurement legislation.
15. The defendants first make the point that the plaintiff is...
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Long v Bord Bia Irish National Accreditation Board
...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 ......