Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 12 March 2019 |
| Neutral Citation | [2019] IEHC 153 |
| Court | High Court |
| Docket Number | 2018 No. 938 J.R. |
| Date | 12 March 2019 |
[2019] IEHC 153
THE HIGH COURT
Simons J.
2018 No. 938 J.R.
IN THE MATTER OF COUNCIL DIRECTIVE 2004/18/EC
AND IN THE MATTER OF THE EUROPEAN COMMUNITIES (AWARD OF PUBLIC AUTHORITIES CONTRACTS) REGULATIONS 2006
AND IN THE MATTER OF COUNCIL DIRECTIVE 89/665/EEC
AND IN THE MATTER OF THE EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES CONTRACTS) (REVIEW PROCEDURES) REGULATIONS 2010
Judicial review – Discovery – Proportionality – Applicant seeking discovery of a number of categories of documents – Whether the discovery sought was necessary to allow the applicant to pursue its application for judicial review
Facts: The applicant, Word Perfect Translations Ltd, sought to challenge a decision to award a contract for the provision of translation services to An Garda Síochána to a rival tenderer. Word Perfect identified what it said were a series of legal errors in the conduct of the tendering process. In particular, it was alleged that the Contracting Authority relied on undisclosed award criteria; carried out an unlawful evaluation of the tenders; made an award to an abnormally low tender; and, following the conclusion of the process, failed to observe a standstill period. Word Perfect sought discovery of a number of categories of documents which it said were necessary to allow it to pursue its application for judicial review. The Contracting Authority resisted the application on the basis inter alia that the documents sought were not “indispensable” to the resolution of the proceedings, and that the documentation sought in respect of the successful tender was commercially sensitive. The Contracting Authority brought a separate application for discovery against Word Perfect. The documents sought related to certain pleas made by Word Perfect in respect of (i) its previous experience of public authorities applying a standstill period following a tender competition, and (ii) its claim that the successful tender was an abnormally low tender.
Held by the High Court (Simons J) that the discovery sought by Word Perfect was both relevant and necessary/indispensable. Simons J concluded that the making of an order for discovery would not be disproportionate. Simons J was satisfied that, save for a modified form of category 1, the Contracting Authority was not entitled to the discovery sought.
Simons J held that he would make an order directing the respondent, the Minister for Public Expenditure and Reform i.e. the Contracting Authority, to make discovery of the documents in categories 1 to 9 (inclusive) in the applicant’s notice of motion of 1 February 2019. Simons J also proposed to make an order directing the applicant to make discovery of the following category of documents: “All documents evidencing all public contracts tendered for by the Applicant for the period between 1 January 2015 to 31 December 2018, limited to the notification letter from each contracting authority. This category is limited to those tenders called off Framework Agreements.” Simons J held that he would hear counsel as to the period of time to be allowed for the making of discovery, and as to the identity of the respective deponents.
Application granted.
This judgment is given in respect of cross-applications for the discovery of documents in public procurement proceedings. The proceedings have been taken by an unsuccessful tenderer, Word Perfect Translations Ltd. (‘ Word Perfect’), seeking to challenge a decision to award a contract for the provision of translation services to An Garda Síochána to a rival tenderer. Word Perfect seeks discovery of a number of categories of documents which it says are necessary to allow it to pursue its application for judicial review. The Contracting Authority resists the application on the basis inter alia that the documents sought are not ‘indispensable’ to the resolution of the proceedings, and that the documentation sought in respect of the successful tender is commercially sensitive.
The Contracting Authority has brought a separate application for discovery against Word Perfect. The documents sought relate to certain pleas made by Word Perfect in respect of (i) its previous experience of public authorities applying a standstill period following a tender competition, and (ii) its claim that the successful tender was an abnormally low tender.
There is some disagreement between the parties as to the legal test governing applications for discovery in public procurement proceedings. In particular, there is some debate as to whether there a is requirement that the documents sought must be ‘indispensable’ to the resolution of the proceedings. I address this issue under the first heading below.
The most detailed discussion of the legal test governing applications for discovery in public procurement proceedings is to be found in the judgment of the Court of Appeal in BAM PPP PGGM Infrastructure Cooperatie UA v. National Treasury Management Agency [2015] IECA 246 (‘ BAM’).
Giving the judgment of the court, Ryan P. emphasised the importance of identifying the issues by reference to the pleadings. See paragraph [35] of the judgment.
‘The first task in a discovery application is to ascertain the issues that arise on the pleadings. The Court's function in the substantive case is to decide on the issues put before it by the parties; it does not possess a power to engage in a roving investigation of the relationship between the parties or of the circumstances that gave rise to the proceedings. It is a question of jurisdiction and function fundamentally. The Rules of the Superior Courts require that claims be stated and defended and that particulars be furnished to enable the parties to know the case they have to meet. In the case of the claimant that consists of the statement of claim or equivalent pleading document. For a defendant or respondent party meeting the case, clarity of pleading is also required. The point is that each side should know what the other's position is so that is can address the matters that are in dispute and can take for granted those that are undisputed.’
At an earlier point in the judgment, Ryan P. had summarised the principles applicable to an application for discovery as follows at paragraph [29].
‘1. The primary test is whether the documents are relevant to the issues between the parties. Once that is established it will follow in most cases that their discovery is necessary for the fair disposal of those issues.
2. Relevance is determined by reference to the pleadings. O. 31, r. 12 specifies discovery of documents relating to any matter in question in the case
3. There is nothing in the Peruvian Guano test which is intended to qualify the principle that documents sought on discovery must be relevant, directly or indirectly, to the matter in issue between the parties on the proceedings.
4. An application for discovery must show it is reasonable for the court to suppose that the documents contain relevant information.
5. An applicant is not entitled to discovery based on speculation.
6. In certain circumstances a too wide ranging order for discovery may be an obstacle to the fair disposal of proceedings rather than the converse.
7. As Fennelly J. pointed out in Ryanair plc v. Aer Rianta cpt [2003] 4 I.R. 264, the crucial question is whether discovery is necessary for “disposing fairly of the cause or matter.”
8. There must be some proportionality between the extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant or damage the case of his or her opponent in addition to ensuring that no party is taken by surprise by the production of documents at trial.
9. Discovery could become oppressive and the court should not allow it to be used as a tactic in war between parties.’
As appears from this summary, Ryan P. emphasised that the primary test is relevance, and that once relevance is established, it will follow in most cases that discovery is necessary. On the facts of the present case, the categories of documents sought are undoubtedly relevant. As explained at paragraph 60 below, the documents all relate to issues in the proceedings. The debate at the hearing before me was directed principally to questions such as whether the discovery sought was necessary, reasonable or proportionate. It may be useful at this point of the judgment to seek to separate out and distinguish these related concepts.
(i). The concept of ‘necessity’ is closely related to relevance. In most cases, it will follow from a finding that a document is relevant to an issue in dispute in the pleadings that an order for discovery will be necessary. It is only where there is some alternative procedural route available by which the party seeking discovery can advance its case on the issue that discovery might not be necessary. One obvious example from judicial review is where the respondent is under a statutory duty to make certain documents available. An Bord Pleanála, for instance, is required under the planning legislation to make its file on a planning appeal available to the public. Such documents will meet the test of relevance, but an order for discovery will not be necessary.
As discussed below, there was some disagreement between the parties as to whether the judgment of the Court of Appeal in Word Perfect Translation Services Ltd. (No. 2) v. Minister for Public Expenditure and Reform [2018] IECA 87 has introduced a higher standard than necessity, namely indispensability.
(ii). The concept of ‘reasonableness’ is sometimes used to describe the minimum threshold which the moving party must satisfy before being granted an...
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Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform
...for the discovery of documents was made. The High Court (Simons J) granted discovery of the nine categories of document sought: [2019] IEHC 153. The Minister appealed to the Court of Appeal, which overturned the decision of the High Court in its entirety: [2019] IECA 264. Word Perfect then ......