Word Perfect Translation Services Ltd v Commissioner of an Garda Síochána

 
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[2015] IEHC 668

THE HIGH COURT

[No. 149 J.R./2015]
[No. 40 COM/2015]
Word Perfect Translation Services Ltd v Commissioner of An Garda Siochana
No Redaction Needed
Approved Judgment
COMMERCIAL
IN THE MATTER OF THE REVIEW OF THE AWARD OF A PUBLIC CONTRACT PURSUANT TO THE EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES' CONTRACTS) (REVIEW PROCEDURES) REGULATIONS 2010 AND ORDER 84(A) OF THE RULES OF THE SUPERIOR COURTS, AS AMENDED

BETWEEN

WORD PERFECT TRANSLATION SERVICES LIMITED
APPLLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA
RESPONDENT

2015/149JR & 2015/40COM - Costello - High - 3/11/2015 - 2015 IEHC 668

Local government – European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 – Rules of the Superior Courts – Amendment of Statement of Claim –

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1. In these proceedings the applicant seeks a judicial review of a decision made by the respondent to award interpretation services to certain preferred bidders to the exclusion of the respondent and for other ancillary relief. The decision, the subject matter of these proceedings, was made on 18 th February, 2015, and was notified to the applicant by a letter of that date received on 23 rd February, 2015. The proceedings were commenced by an originating notice of motion and statement required to ground the application for review of the award of a public contract dated 19 th March, 2015.

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2. By Notice of Motion dated 24 th June, 2015, the applicant sought an order granting it liberty to amend its Statement required to ground the application for review of the award of a public contract. The respondent opposed the application and the matter was argued on 14 th October, 2015.

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3. Applications to review an award of a public contract must be brought within 30 calendar days of the date of the decision or award the subject of the challenge. This is a requirement of the European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010, Regulation 7 and O.84A, r.4(1)(i) of the Rules of the Superior Courts. Unlike other applications for judicial review, there is no requirement that an applicant obtain leave of the Court to bring the application for judicial review. While there are strict time limits applicable to the application, there is a jurisdiction in the Court both to extend the time to bring an application and to permit an applicant to amend the Statement of Grounds. Rule 8 provides as follows:-

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2 "(1) [t]he Court may on the hearing of the Originating Notice of Motion allow the applicant or any other party to amend his statement whether by specifying different or additional grounds of relief or opposition or otherwise on such terms, if any, as it thinks fit and may allow further affidavits to be filed if they deal with new matters referred to in an affidavit of any other party to the application."

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4. The parties are agreed that the principles upon which the Court's discretion should be exercised are to be found in the judgments of the Supreme Court in Keegan v. Garda Síochána Ombudsman Commission [2012] 2 I.R. 570 and Copymoore Limited and Ors v. Commissioners of Public Works of Ireland (No. 2) [2014] IESC 63.

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5. Keegan v. GSOC involved a judicial review of a decision of the respondent to investigate the conduct of the applicant in circumstances where the respondent had previously determined that the complaint of a member of the public was inadmissible and had not proceeded on foot of the complaint. The applicant sought to amend his Statement of Grounds to include a new ground to challenge the decision of the respondent. He did not seek to amend the relief sought in the original Statement of Grounds. The explanation for the failure to include the new ground was due to "an oversight on the part of the applicant's legal advisors". The application was refused in the High Court and it was appealed to the Supreme Court. At paras. 30-37 Fennelly J. held as follows:-

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2 "[30] It is not surprising that there is no comprehensive and exhaustive judicial statement of the circumstances in which a court may permit an applicant for judicial review to amend the grounds for the relief sought. It is equally unsurprising that the courts, using varying language, have expressed themselves reluctant to grant such amendment without good reason.

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3 [31] Persons are permitted to seek review of administrative decisions which affect them within prescribed times and on grounds in law which they propose and which the courts grant them leave to argue. The object of the system is to strike a fair balance between the certainty and security of administrative decisions and the rights of persons affected by them who wish to contest them.

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4 [32] The strict imposition of time limits is mitigated by the power of the court to permit an application outside the permitted time, provided the court is persuaded that there is good reason for the delay and that no other party is adversely or unfairly prejudiced.

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5 [33] Once an applicant has obtained an order granting leave to apply for judicial review, he is confined to the grounds permitted. He may not argue any additional grounds without leave of the court.

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6 [34] If he applies for an amendment of his grounds within the judicial review time limit, he should, obviously, at least in normal circumstances, have no difficulty obtaining the amendment. If he applies for an amendment outside the time, he will have to justify the application. He will have to explain his delay, just as in the case of a late applicant. The court will expect him to give reasons to explain his failure to include the new proposed ground in his original application.

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7 [35] On the other hand, it is difficiult to see why an applicant for an amendment of grounds should have to satisfy a more exacting standard in explaining delay than is imposed on an ordinary late application. He may say that the additional ground is based on material of which he was unaware when he was making his original application. On occasion, the respondent reveals a new ground of argument in its answer to the application, as appears to have occurred in McCormackv. Garda Síochána Complaints Board [1997] 2 I.R. 489 and Dooner v. Garda Síochána Complaints Board (Unreported, High Court, Finnegan J., 2nd June, 2000). The applicant may offer a different explanation. There is no reason, in logic, to impose on an applicant a criterion of newly discovered fact to justify an application to amend, when an application for an extension of time is not subject to any eqidvalent condition. This is not to say that the applicant's knowledge of the facts is irrelevant. In some cases, as in McCormack v. Garda Síochána Complaints Board, discovery of new facts may be an explanation for the omission to include a ground. In other cases, the applicant may have been aware at all relevant times of the facts relevant to the new ground and this will weigh in the balance against him, without being necessarily conclusive.

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8 [36] None of this is to take away from the fact that an application for an amendment of his grounds for judicial review must explain his failure to include the proposed new ground in his original application. The cases show that the courts are reluctant to admit new grounds which amount to advancing an entirely new cause of action, as in Ní Eilí v. Environmental Protection Agency [1997] 2 I.L.R.M. 458, or a challenge to a different decision, as in Muresan v. Minister for Justice, Equality and Law Reform [2004] 2 I.L.R.M. 364. The nature of the decision under attack may also be relevant. If it is one which benefits the public at large or a large section of the public, a challenge may have corresponding disadvantages for a large number of people. This may explain why special and stricter statutory rides have been introduced in cases of public procurement, planning and development, and asylum and immigration. The courts will have regard to the public policy considerations which have prompted the adoption of such rides.

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9 [37] Amendment may be more likely to be permitted where, as in Ó Síodhacháin v. Ireland (Unreported, Supreme Court, 12th February, 2002), it does not involve a significant enlargement of the applicant's case. To the extent that leave has already been granted, the public interest in the certainty of a decision is already under question. An additional ground may not make any significant difference, particularly if it is based, as in the present case, on a pure matter of law. A court might take a different view, if the new ground were likely to give rise to further exchange of affidavits relating to the facts."

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6. In applying these principles the Supreme Court permitted the amendments sought in the case.

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7. Copymoore Limited and Ors v. Commissioners of Public Works of Ireland (No. 2) was an appeal from the refusal of the High Court of a motion to extend the grounds in a judicial review application in a public procurement challenge. The applicant wished to add two new grounds to its pleadings, one relating to the capacity of the respondent and the other to seek damages. It was accepted that the failure to plead the capacity ground arose through a simple error made by the lawyers in drafting the Statement of...

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