Wordperfect Translation Services Ltd v Minister for Public Expenditure and Reform

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 24 October 2019
• Neutral Citation: [2019] IECA 264
• Docket Number: Neutral Citation Number: [2019] IECA 264 Record Number: 2019/110
• Date: 24 October 2019
• Court: Court of Appeal (Ireland)

[2019] IECA 264

THE COURT OF APPEAL

Peart J.

Whelan J.

McGovern J.

Neutral Citation Number: [2019] IECA 264

Record Number: 2019/110

BETWEEN:

WORDPERFECT TRANSLATION SERVICES LIMITED

RESPONDENT/APPLICANT

AND

MINISTER FOR PUBLIC EXPENDITURE AND REFORM

APPELLANT/RESPONDENT

Discovery – Public procurement – Judicial review – Appellant seeking to appeal from an order for discovery of documents – Whether the categories of documents sought were relevant

Facts: The appellant, the Minister for Public Expenditure and Reform, appealed to the Court of Appeal from an order for discovery of documents made by the High Court (Simons J) on the 14th March 2019 wherein, inter alia, the appellant was ordered to make discovery of nine categories of documents, such discovery to be made in accordance with a Protocol of Inspection scheduled to the said order. These were public procurement proceedings by way of judicial review wherein the respondent, Wordperfect Translation Services Ltd, an unsuccessful tenderer, sought to challenge the Minister’s decision, communicated to it by the Minister’s letter dated 12th October 2018, to award the contract for the provision of translation services to An Garda Síochána to another party who participated in the tender competition. Wordperfect submitted that the categories of documents that the Minister had been ordered to discover were necessary to enable it to fairly and properly challenge the Minister’s decision in these judicial review proceedings on the basis of the grounds set forth in its statement of grounds. The Minister had agreed to make limited discovery in respect of only four of the nine categories of documents sought by Wordperfect and considered that the discovery as ordered was impermissibly and unnecessarily broad in its scope. It was submitted that the trial judge erred in concluding that all documents so ordered were relevant and necessary for the fair and proper determination of the issues in the proceedings. The nine categories of documents as ordered by the trial judge were as follows: (1) all documents relating to the evaluation of tenders by reference to Criterion 4.1 (b); (2) all documents relating to the evaluation of tenders by reference to Criterion 4.1 (e); (3) all documents relating to the evaluation of tenders by reference to Criterion 4.3; (4) all documents relating to the evaluation of tenders by reference to Criterion 4.2 (b); (5) all documents relating to the evaluation of tenders by reference to Criterion 4.2 (c); (6) the successful tenderer’s tender and all documents submitted by the successful tenderer in response to the Supplementary Request for Tenders and/or in response to any requests for clarification, including any communications between the successful tenderer and the respondent during the course of the competition; (7) all documents relating to the evaluation of the successful tenderer’s tender; (8) all documents relating to the evaluation of the applicant’s tender; (9) all documents relating to the respondent’s failure to observe a standstill period.

Held by Peart J that he would refuse discovery of categories 1 and 2 on the basis that they were not relevant to the relatively narrow issue to which they were said to be relevant. He held that there were no facts in dispute which required sight of the category 3 documents for their resolution. As for categories 4 and 5, he considered that the trial judge failed to consider adequately the actual issues to which discovery of those categories was said to be relevant and necessary. Peart J held that those issues could be fairly resolved without the discovery of the documentation sought. The submissions of Wordperfect on this appeal stated that categories 6, 7 and 8 arose from claims made in the statement of grounds as to breach of equal treatment, unjustified scores, and abnormally low tender. Peart J held that there was insufficient particularity of these claims to indicate that discovery was necessary. He held that category 9 sought a general trawl of any documents that the Minister might have in relation to the failure to observe a standstill period relating to the contract. Peart J was not satisfied that a case of necessity was made out.

Peart J held that he would allow the appeal and vacate the order dated 14th March 2019.

Appeal allowed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 24TH DAY OF OCTOBER 2019

1 This appeal is from an order for discovery of documents made by the High Court (Simons J.) on the 14th March 2019 wherein, inter alia, the appellant (“the Minister”) was ordered to make discovery of nine categories of documents, such discovery to be made in accordance with a Protocol of Inspection scheduled to the said order.

2 These are public procurement proceedings by way of judicial review wherein the applicant/respondent (“WordPerfect”), an unsuccessful tenderer, seeks to challenge the Minister's decision, communicated to it by the Minister's letter dated 12th October 2018, to award the contract for the provision of translation services to An Garda Síochána to another party who participated in the tender competition.

3 WordPerfect submits that the categories of documents that the Minister has been ordered to discover are necessary to enable it to fairly and properly challenge the Minister's decision in these judicial review proceedings on the basis of the grounds set forth in its statement of grounds. The Minister had agreed to make limited discovery in respect of only four of the nine categories of documents sought by WordPerfect and considers that the discovery as ordered is impermissibly and unnecessarily broad in its scope. It is submitted that the trial judge erred in concluding that all documents so ordered are relevant and necessary for the fair and proper determination of the issues in the proceedings.

4 It is convenient to set forth the nine categories of documents as ordered by the trial judge at this point. They are as follows:

1. All documents relating to the evaluation of tenders by reference to Criterion 4.1 (b) – “Very Urgent Requests for Service”.

2. All documents relating to the evaluation of tenders by reference to Criterion 4.1 (e) – “Interpreter Support”.

3. All documents relating to the evaluation of tenders by reference to Criterion 4.3 – “the Quality Assurance Plan”.

4. All documents relating to the evaluation of tenders by reference to Criterion 4.2 (b) – “Management Structures”.

5. All documents relating to the evaluation of tenders by reference to Criterion 4.2 (c) –”Management Escalation Processes”.

6. The Successful Tenderer's Tender and all documents submitted by the Successful Tenderer in response to the SRFT and/or in response to any requests for clarification, including any communications between the Successful Tenderer and the respondent during the course of the Competition.

7. All documents relating to the evaluation of the Successful Tenderer's Tender.

8. All documents relating to the evaluation of the Applicant's Tender.

9. All documents relating to the respondent's failure to observe a Standstill Period.

5 On this appeal the Minister has divided these nine categories into three distinct groups, and the submissions of the parties have been made by reference to each such group. Group 1 relates to categories 1, 2, 3, 4 and 5. Group 2 relates to categories 6, 7 and 8. Group 3 relates to category 9.

6 The parties are in agreement that the principles which guide the Court in relation to discovery in public procurement cases are best described in the judgment of Ryan P. in this Court in BAM PPP PGGM Infrastructure Cooperatie UA v. National Treasury Management Agency and Minister for Education and Skills [2015] IECA 246 (“BAM”) where at paragraph 29 he summarised the relevant legal principles as follows:

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 matters 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.

7 In addition to these principles, there can be issues of confidentiality and commercial sensitivity which arise for special consideration in a public procurement case, and the court will have to balance those legitimate concerns on the part of the winning tenderer against an unsuccessful tenderer's entitlement to challenge the decision to award the tender to the winning tenderer, and for that purpose to obtain discovery of relevant documents which are reasonably necessary to enable the applicant to properly and fairly...