Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 25 September 2020
• Neutral Citation: [2020] IESC 56
• Date: 25 September 2020
• Docket Number: [Appeal No: 37/2020]
• Court: Supreme Court

BETWEEN/

WORD PERFECT TRANSLATION SERVICES LIMITED

APPLICANT/APPELLANT

AND

MINISTER FOR PUBLIC EXPENDITURE AND REFORM

RESPONDENT

[2020] IESC 56

Clarke C.J.

O'Donnell J.

MacMenamin J.

Dunne J.

O'Malley J.

[Appeal No: 37/2020]

THE SUPREME COURT

Discovery – Award of a contract – Scope of appeal – Appellant seeking discovery of documents – Whether only some of the grounds of appeal put forward by the appellant could properly be advanced

Facts: The appellant, Word Perfect Translation Services Ltd, challenged the award by the respondent, the Minister for Public Expenditure and Reform, of a contract for translation services. In the context of that challenge, an application 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 sought leave to appeal to the Supreme Court. By determination dated 18th May 2020, the Court granted Word Perfect leave to appeal the decision of the Court of Appeal: [2020] IESCDET 61. A dispute arose between the parties as to the permitted scope of the appeal. The Minister argued that some of the grounds of appeal sought to be pursued by Word Perfect did not come within the issues of general public importance identified in the Court’s determination and that the appeal was necessarily confined to the grounds which came within the parameters of the broad issues of importance identified.

Held by Clarke CJ that there were a number of types of document where he proposed that immediate discovery not be ordered but that the position be preserved so that the trial judge could require further disclosure should it become clear at the hearing that such disclosure was necessary for a just and fair resolution of the proceedings. The approach that Clarke CJ suggested should be adopted in appropriate procurement proceedings involves directing immediate discovery of documents which are relevant and which either do not involve confidentiality (or any other issue which might be relied on to suggest that relevant documents did not have to be disclosed) or where it is clear, even at the interlocutory stage, that the disclosure of confidential information will be required but where it is left to the trial judge to determine whether further disclosure may be necessary. It seemed to him that this approach was one which improved the likelihood of a speedy resolution to the proceedings. He held that where an iterated process is required in order to achieve a proper balance between the competing interests of effectiveness and confidentiality, then a speedy resolution would not be achieved if there were to be a series of separate interlocutory applications for discovery. It was for that reason that Clarke CJ proposed that any second round of additional discovery should be left to the judge actually conducting the full hearing rather than a process which might involve a second or third motion for discovery in advance of that hearing. He also indicated that comments which he made concerning further disclosure being directed by the trial judge should be taken as applying equally to a situation where immediate discovery is made of documentation which may be redacted and where the trial judge may have to consider whether the making available of an unredacted copy (either in whole or in part) may be necessary for the just and fair resolution of the proceedings. Clarke CJ proposed that the Court should direct that all documents in respect of which it was appropriate to adopt such an iterated approach should be the subject of an affidavit sworn contemporaneously with the main affidavit of discovery. He held that the affidavit, together with the documents referred to in it, should be available in court so that there could be immediate disclosure of any materials which the trial judge directs.

Clarke CJ proposed that the parties be given an opportunity to consider this judgment and to seek to agree the form of order for immediate discovery which should be made on the basis of this judgment.

Discovery ordered.

Judgment of Mr. Justice Clarke , Chief Justice, delivered the 25th of September, 2020.

1. Introduction

1.1 It might be felt that the law concerning the discovery of documents is very well settled, at least at the level of general principle. However, this Court has been called on to clarify the law in this area in a number of cases in recent years. Obviously those cases were considered by the Court to meet the constitutional threshold of involving a matter of general public importance. As the Court has pointed out in many determinations delivered in respect of applications for leave to appeal since the establishment of the Court of Appeal, the application of well-established principles to the facts of an individual case will rarely, if ever, meet the constitutional threshold. However, the Court has also noted that the application of very broad principles to specific areas can itself give rise to issues of general public importance, not least where the areas concerned arise regularly in litigation.

1.2 This case is, perhaps, a particular example. How the general rules concerning discovery should apply in the particular context of public procurement litigation is the issue which the Court has to address. It may be possible to see this appeal as either involving a suggestion that somewhat different rules may apply to discovery in public procurement cases or, at least, that the application of the same broad principles may lead to a different approach in practice, not least because sensitive commercial information may be involved.

1.3 There is also potentially a European Union law dimension to the issues which arise, in that the applicant/appellant (“Word Perfect”) asserts that European Union law may potentially influence the proper application of discovery procedural rules in a case such as this.

1.4 Word Perfect challenges the award by the respondent (“the Minister”) of a contract for translation services. In the context of that challenge, an application for the discovery of documents was made. The High Court (Simons J.) granted discovery of the nine categories of document sought, (see - Word Perfect Translation Services Ltd. v. Minister for Public Expenditure and Reform [2019] IEHC 153). The Minister appealed to the Court of Appeal, which overturned the decision of the High Court in its entirety (see the judgment of Peart J., speaking for the Court in Word Perfect Translation Services Ltd. v. Minister for Public Expenditure and Reform [2019] IECA 264). Word Perfect then sought leave to appeal to this Court.

2. The Determination and the Scope of the Appeal

2.1 By determination dated 18th May 2020 (see - Word Perfect Translation Services Ltd. v. The Minister for Public Expenditure and Reform [2020] IESCDET 61), this Court granted Word Perfect leave to appeal the decision of the Court of Appeal. The Court set out the issues of general public importance which it considered arose on the application for leave as made by Word Perfect in the following terms:-

“5. … [T]he fact that there was such a marked difference between the outcome in the High Court and the Court of Appeal, while both courts applied the same case law, suggests that the decision in BAM has not removed all uncertainty in this field. Furthermore, the question of whether or not the court should apply a test similar to that set out in the case law of England and Wales, in Roche Diagnostics Ltd. v. The Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC), and the question of whether discovery may be refused where no reasons are given in respect of those headings where the successful tenderer received either the same or less marks than the challenger, is a matter of some importance for public procurement proceedings generally. The court is satisfied therefore that the issues raised in this appeal are of sufficient general importance for such public procurement proceedings to justify an appeal to the court, and accordingly grants leave to appeal.”

2.2 It should also be noted that a dispute has arisen between the parties as to the permitted scope of the appeal. The Minister argued that some of the grounds of appeal sought to be pursued by Word Perfect did not come within the issues of general public importance identified in the Court's determination and that the appeal is necessarily confined to the grounds which come within the parameters of the broad issues of importance identified.

2.3 On this basis, it was the Minister's submission that only some of the grounds of appeal put forward by Word Perfect can properly be advanced. These are the grounds relating to Categories 1 and 2 of the discovery sought, which concern what are said to be undisclosed award criteria, certain aspects of Categories 6,7 and 8, insofar as they relate to the award criteria where Word Perfect scored equal points to its rival tenderers and Category 9, which concerns a standstill period. The Minister therefore argued that Category 3, concerning the evaluation of tenders by reference to a Quality Assurance Plan, and Categories 4 and 5, concerning complaints in respect of the evaluation of Word Perfect's own tender, did not fall within the scope of this appeal. It was further submitted that Categories 6, 7 and 8 should also be excluded from the appeal insofar as they relate to award criteria in which Word Perfect did not score equal or lower points than the successful tenderer. The categories of discovery sought by Word Perfect will be set out in more detail later in the judgment.

2.4 Word Perfect submitted that the disputed issues were raised as grounds of appeal in their application for leave and that the determination of this Court did not suggest any restriction in that...