P.J. Walls (Civil) Ltd v Aer Rianta Cpt

• Jurisdiction: Ireland
• Judge: Master of the High Court
• Judgment Date: 26 January 2005
• Neutral Citation: [2005] IEHC 19
• Docket Number: No. 2003/17 JR
• Court: High Court
• Date: 26 January 2005

[2005] IEHC 19

THE HIGH COURT

No. 2003/17 JR

P J WALLS (CIVIL) LTD v AER RIANTA CPT

IN THE MATTER OF COUNCIL DIRECTIVE 92/13/EEC AND

IN THE MATTER OF THE EUROPEAN COMMUNITIES (REVIEW

PROCEDURES FOR THE AWARD OF CONTRACTS BY ENTITIES

OPERATING IN THE WATER, ENERGY, TRANSPORT AND

TELECOMMUNICATIONS SECTORS) REGULATIONS, 1993

BETWEEN/

P.J. WALLS (CIVIL) LIMITED

APPLICANT

-and-

AER RIANTA CPT.

RESPONDENT

EUROPEAN COMMUNITIES (REVIEW PROCEDURES FOR THE AWARD OF CONTRACTS BY ENTITIES OPERATING IN THE WATER ENERGY TRANSPORT & TELECOMMUNICATIONS SECTOR & PUBLIC WORKS CONTRACTS) REGS 1993 SI 104/1993

EEC DIR 93/38

EEC DIR 92/13

SIAC CONSTRUCTION v MAYO CO COUNCIL 2002 3 IR 148 2002 2 ILRM 401 2002/26/6644

UPJOHN LTD v LICENSING AUTHORITY & ORS 1999 1 WLR 927 1999 ECR I-223 1999 1 CMLR 825

KILKENNY COMMUNITY COMMUNICATIONS CO-OPERATIVE SOCIETY v BROADCASTING CMSN OF IRELAND 2004 1 ILRM 170 2003/29/6939

CARLOW KILKENNY RADIO LTD & ORS v BROADCASTING CMSN OF IRELAND 2003 3 IR 528 2004 1 ILRM 161 2003/8/1714

SHORTT v DUBLIN CITY COUNCIL 2003 2 IR 69 2004 1 ILRM 81 2003/47/11495

PRACTICE AND PROCEDURE:

Discovery

Public procurement tender - Judicial review - European law- Utilities directive -Review of award of awarding authority by High Court -Whether discovery required to permit courts to exercise review function - SIAC v Mayo County Council [2002] 3 I.R.148 considered - Discovery granted (2003/17 JR - Master Honohan - 26/01/2005) [2005] IEHC 19

PJ Walls (Civil) Ltd. v Aer Rianta cpt.

The applicant in this case applied for discovery of a number of documents in judicial review proceedings, which related to fifteen alleged separate and distinct breaches of Directive 93/38 EEC. The applicant submitted a tender for specified works but was unsuccessful and accordingly instituted proceedings claiming an award of damages.

Held by the Master of the High Court in awarding seven categories of documents:

That discovery must be ordered in the circumstances of the case in order to enable the Court to effectively exercise its function of judicial review so as to make the principles of the public procurement of directives effective.

SIAC v Mayo County Council [2002] 2 I.L.R.M followed.

Reporter: L.O'S.

1 Master of the High Court delivered on the 26th day of January, 2005.

2 These proceedings are brought pursuant to the European Communities (Review Procedures for the Award of Contracts by Entities Operating in the Water, Energy, Transport and Telecommunications Sector and Public Works Contracts) Regulations 1993 (S.I. no. 104 of 1993) which provide that the High Court shall review the decisions taken by awarding authorities in these sectors. The relevant "utilities" Directive is 93/38 EEC and the "Remedies" Directive is 92/13/EEC. The S.I. provides for "review" in accordance with the conditions set out in the said directive. European case law in this area confirms that awarding authorities enjoy a wide discretion as to the criteria by which tenders are to be assessed and establish "manifest error" as the only ground for annulment of the award. Fennelly J. in his judgment in SLAC v. Mayo County Council [2002] 2 I.L.R.M. at p. 401, helpfully observes that "the word 'manifest' should not be equated with any exaggerated description of obviousness", and notes that "a study of the case law will show that the Community Courts are prepared to annul decisions, at least in certain contexts, when they think an error has clearly been made".

3 The SIAC case is significant because it signalled that the review standard in these cases is not the Common Law Judicial Review standard (Wednesbury/O'Keeffe). It was on this point that the decision of the High Court (Laffoy J.) was found to be in error. Fennelly J., at p.205 of his judgment aforesaid, expressed the view that application of the more restrictive standard would "run the risk of not offering what the remedies directive clearly mandates, namely, a judicial remedy which will be effective in the protection of the interests of disappointed tenderers".

4 In case C-120/97, Upjohn [1999] ECRI 223 the EC Court explained that a review of this sort the Court "must restrict itself to examining the accuracy of the findings of fact and law made by the authority concerned and to verifying, in particular, that the action taken by that authority is not vitiated by a manifest error or a misuse of powers and that it did not clearly exceed the bounds of its discretion... National procedure for judicial review must enable the court...effectively to apply the relevant principles and rules of Community Law". Fennelly J. points out that the relevant principles include "equality, transparency and objectivity" and that although the awarding authority, having correctly applied such principles, may have discretion, the permitted margin of discretion is not unlimited and does not absolve it from explaining its choice.

5 There are many recent decisions of the Irish Supreme Court which clarify the scope of discovery in judicial review applications. In particular I refer to Kilkenny Community Communications Co-operative Society v. Broadcasting Commission of Ireland [2004] 2 I.L.R.M 170 and Carlow/Kilkenny Radio Ltd. v. Broadcasting Commission of Ireland [2003] 3 I.R. 528. (Reference should also be made to O'Caoimh J's. judgment in Shortt v. Dublin City Council [2003] 2 I.R.69). All of these deal, however, with judicial review in accordance with the domestic law standard, and are of little use in discovery applications in cases under the remedies directive.

6 We are, therefore, in uncharted waters. Fennelly J., again at p. 425, puts it succinctly: "The function of the courts is to guarantee legality, though that notion itself has a number of elements, some procedural and some substantive".

7 The matter I am dealing with is an application for discovery in review proceedings in which the applicant complains of fifteen separate and distinct breaches of the utilities directive. If I can attempt to summarise them, they comprise complaints that-

8 (a) the applicable award criteria were miscalculated and/or applied variously not as previously notified to the applicant,

9 (b) the price criterion was either omitted or given a weighting which offended "the principles of openness, transparency, proportionality and non-discrimination underlying the Utilities Directive",

10 (c) the respondent breached the principle of equality and favoured the successful tenderer by significantly amending (for it alone) the scope of the works and risk profile, in effect, changing the specification.

11 (d) the opportunity to tender on an equal footing with other tenderers was denied the applicant as a result of a failure to advise in advance as to the weightings for criteria and a want of transparency and objectivity in the respondent's scoring method,

12 (e)...