Student Transport Scheme Ltd v Minister for Education and Skills

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 18 December 2015
• Neutral Citation: [2015] IECA 303
• Date: 18 December 2015
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 2014/665

Between/

Student Transport Scheme Limited

Applicant/Appellant

and

The Minister for Education and Skills

Respondent

and

Bus Éireann

Notice Party

[2015] IECA 303

Ryan P.

Peart J.

Hogan J.

Record No. 2014/665

[Article 64 transfer]

THE COURT OF APPEAL

Evidence – Admission of fresh evidence – Public procurement law – Appellant seeking to admit fresh evidence – Whether documents should be admitted by reference to Murphy [1991] 2 IR 161

Facts: The appellant, Student Transport Scheme Ltd, is a private company which maintained that a contract existed between the respondent, the Minister for Education and Skills, and the notice party, Bus Éireann, for the school year 2011-2012 which ought to have been put out to tender and was not. The appellant then commenced judicial review proceedings which were first admitted to the Commercial Court. Following a lengthy exchange of affidavits, the matter was resolved adversely to the appellant by McGovern J in a reserved judgment delivered on 23rd October 2012 (Student Transport Scheme Ltd v Minister for Education and Skills [2012] IEHC 425). The appellant then originally appealed that decision to the Supreme Court. For the purposes of that appeal the appellant first sought leave to admit certain additional evidence pursuant to the provisions of Ord. 58, r. 8 RSC, which was the rule then governing the admission of new evidence in appeals from the High Court to the Supreme Court. The Supreme Court directed that the appellant identify the additional evidence sought to be admitted for the purposes of the appeal. Five such documents were identified by the appellant and the admissibility of three of these documents was agreed between the parties. There remained for consideration two disputed categories of documents. These were termed the Farrell Grant Sparks report (2009) (the FGS Report) and documents arising from a general review of Departmental expenditure in 2011. Having heard submissions on the remaining two documents, on 25th July 2014 the Supreme Court directed the parties to file additional composite affidavits addressing the question of the admissibility of the documents having regard to the test set out by the Supreme Court in Murphy v Minister for Defence [1991] 2 IR 161, and the context of and/or relevance of any such new evidence to the appeal, assuming it were so admitted. Following the establishment of the Court of Appeal on 28th October 2014, the Chief Justice (with the concurrence of the other members of the Supreme Court) directed the transfer of the appeal to the Court of Appeal in accordance with Article 64 of the Constitution.

Held by Hogan J that, although the application was formally moved before the Court as an application to admit fresh evidence pursuant to Ord. 86A, r. 4(c), there were, in reality, two questions which arose on this motion: 1) Should the documents in question be admitted as fresh evidence before the Court by reference to the Murphy principles?; 2) If the answer to that is in the negative, must those principles be varied in some way having regard to the fundamental principles of EU law in general and, specifically, public procurement law in particular? Hogan J refused the appellant permission to admit the additional categories of evidence sought pursuant to Ord. 86A, r. 4(c). Hogan J held that the documents in question, the FGS report (2009) and the Department of Education's Review of Departmental expenditure (2011), could both have been obtained with reasonable diligence on the part of the appellant. As such, as the appellant could not satisfy the first of the three cumulative requirements specified in the Murphy criteria, Hogan J held that it followed that the documents in question could not be admitted as fresh evidence for the purposes of an appeal to the Court. Hogan J held that the Murphy criteria fulfil important objectives in relation to legal certainty and finality in relation to evidence taking at the court of trial and do not infringe general principles of EU law; the criteria are, moreover, applied flexibly and simply require an appellant to show in principle that the fresh evidence it is sought to adduce could not with reasonable diligence have been obtained prior to the hearing in the High Court. As such, Hogan J held that these criteria do not infringe the principle of effectiveness, since they do not make the exercise of EU rights unduly difficult or impossible. Hogan J held that the Murphy principles are not in conflict with the requirements of equivalence and effectiveness, whether as viewed in relation to the principles of EU law generally or with reference to the principles of public procurement law in particular.

Hogan J held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 18th day of December 2015

1 The school transport system is an essential feature of rural life, as it is by this mechanism that thousands of primary and post-primary children are brought to and from school every day during the course of the school year. The scheme is an administrative one and (so far as primary school children are concerned) may be regarded as an effectuation of the State's constitutional duty as provided in Article 42.4 of the Constitution to 'provide for free primary education.'

2 The present scheme dates from 1967 and is operated by Bus Éireann as agents of the Minister for Education and Skills, albeit that some 90% of actual school transport services are tendered by Bus Éireann to private contractors.

3 The applicant in these proceedings is a private company which maintains that there exists a contract between the Minister and Bus Éireann for the school year 2011–2012 which ought to have been put out to tender and was not. The applicant then commenced judicial review proceedings which were first admitted to the Commercial Court. Following a lengthy exchange of affidavits, the matter was resolved adversely to the applicant by McGovern J. in a reserved judgment delivered on 23rd October 2012: see Student Transport Scheme Ltd. v. Minister for Education and Skills [2012] IEHC 425.

4 The applicant then originally appealed this decision to the Supreme Court. For the purposes of that appeal the applicant first sought leave to admit certain additional evidence pursuant to the provisions of the (now superseded) Ord. 58, r. 8 RSC, which was the rule then governing the admission of new evidence in appeals from the High Court to the Supreme Court . The Supreme Court directed that the applicant identify the additional evidence sought to be admitted for the purposes of the appeal. Five such documents were identified by the applicant and the admissibility of three of these documents was agreed between the parties. There remains for consideration two disputed categories of documents. These may be termed the Farrell Grant Sparks report (2009) ('the FGS Report') and documents arising from a general review of Departmental expenditure in 2011. I will return presently to the significance of these disputed documents.

5 Having heard submissions on the remaining two documents, on 25th July 2014 the Supreme Court directed the parties to file additional composite affidavits addressing:

(i) the question of the admissibility of the documents having regard to the test set out by the Supreme Court in Murphy v. Minister for Defence [1991] 2 I.R. 161;

(ii) the context of and/or relevance of any such new evidence to the appeal, assuming it were so admitted.

6 Following the establishment of this Court on 28th October 2014, the Chief Justice (with the concurrence of the other members of the Supreme Court) directed the transfer of this appeal to this Court in accordance with Article 64 of the Constitution.

7 Although this application is formally moved before this Court as an application to admit fresh evidence pursuant to Ord. 86A, r. 4(c), there are, in reality, two questions which arise on this motion. First, should the documents in question be admitted as fresh evidence before this Court by reference to the Murphy principles ( i.e., the question already identified by the Supreme Court)? Second, if the answer to that is in the negative, must those principles be varied in some way having regard to the fundamental principles of EU law in general and, specifically, public procurement law in particular?

8 It is, perhaps, appropriate first to describe the Murphy principles before proceeding to examine these questions.

The Murphy principles

9 In Murphy the Supreme Court set out the principles governing the admission of new evidence on appeal in the following terms:

'1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;

2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;

3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.'

10 The three criteria are, of course, cumulative, so that any prospective party wishing to adduce additional evidence on an appeal to this Court which evidence was in existence at the time of the trial of the action in the High Court must satisfy all three criteria.

11 The first thing to note is that these principles apply indistinctly to all types of appeals. The extensive subsequent case-law shows, moreover, that these principles have been applied in a flexible manner. Thus, for example, the Supreme Court has stated that fresh evidence will be admitted if the underlying premise of the High Court 'has been falsified by subsequent events' or where to do otherwise would 'affront a sense of justice': see Fitzgerald v. Kenny [1994] 2 I.L.R.M....