THE COURT OF APPEAL
Ryan P.
Irvine J.
Hogan J. Appeal No.: 2015/351
Forum Connemara Limited
Respondent/Applicant
- and -
Galway County Local Community Development Committee
Appellant/Respondent
Judgment of Ms. Justice Irvine delivered on the 26th day of February 2016
1. The present appeal requires this Court to examine the circumstances in which a court may exercise its discretion and extend time so as to permit an application to be made to review the award of a public contract outside the time limit specified by regulation.
2. Order 84A of the Rules of the Superior Courts 1986, as amended, provides that an application seeking to challenge a decision which comes within the ambit of that Order shall be made in accordance with the relevant time period contained in Regulation 7 of the European Communities (Public Authorities’ Contracts) (Review Procedures) Regulations 2010. That regulation requires that proceedings under O. 84A “shall be made within 30 calendar days after the applicant was notified of the decision, or knew or ought to have known of the infringement alleged in the application”.
3. Order 84A, r. 4(2) permits the court to extend the time in respect of the bringing of an application to challenge such a decision “where the Court considers there is good reason to do so”.
4. In a decision made in the High Court on 23rd June, 2015, Barrett J., concluded that the respondent, Forum Connemara Limited (“Forum Connemara”) had demonstrated good reasons why it should be granted an extension of time to challenge a decision made by the appellant, Galway County Local Community Development Committee (“Galway County LCDC”) on 30th September, 2014.
5. In this appeal Galway County LCDC maintains that there were no good reasons such that the Court could lawfully have invoked the provisions of O. 84A, r. 4(2). Thus, Galway County LCDC seeks to set aside the aforementioned order with the consequence that the proceedings would then be dismissed.
Factual background
6. Galway County LCDC was established in June, 2014. Under the Local Government Act 2001 it is charged with, inter alia, co-ordinating, managing and overseeing the implementation of local and community development programmes that have been approved either by the relevant local authority or by agreement between the LCDC and a relevant public authority, such as a Government department or State Agency. One such programme is the Social Inclusion and Community Activation Programme (“SICAP”) which is aimed at tackling poverty and social exclusion in disadvantaged communities. That programme is managed and administered by local community development committees which direct funding to various programme implementers or service providers.
7. At a meeting held on 30th September, 2014, Galway County LCDC made a decision that there should be only one service provider or programme implementer for SICAP for the entire County of Galway. Previously, the funding for SICAP had been implemented by two separate programme implementers and each was in control of one of two areas or lots. Forum Connemara and Galway Rural Development Company Limited were the relevant service providers.
8. The award of the contract for programme implementer of SICAP was a two stage procurement process. The result of the stage one phase led to five entities, including Forum Connemara, being deemed capable of delivering SICAP in County Galway and each of these were invited to participate in Stage two of the process.
9. As I have just stated, on 30th September, 2014, Galway LCDC decided that there would be one programme implementer for SICAP for the whole of the County of Galway. It is this resolution which Forum Connemara seeks to challenge in the within proceedings, its fundamental objection being the manner in which the decision that there would only be one programme implementer and one lot for the whole County of Galway was arrived at.
10. An invitation to tender for the provision of programme implementation services for SICAP was issued to the five companies selected under the Stage one procedure. The tender documentation issued on 20th October, 2014. The same described clearly that the contracting authority, Galway County LCDC, required the delivery of services in respect of one single lot, namely Lot 27, the said area being in respect of the whole of the County of Galway as identified on the map contained in the tender documentation.
11. The budget for the SICAP for Galway County which would come under the control of the successful candidate was to be €1.2m or thereabouts for the period spanning April to December, 2015.
12. Forum Connemara submitted a tender referable to what it described in its tender documents as Galway County (Lot 27) comprising an area of 5,796 kms² with a population of 175,124 as of 2011. Sometime later, Galway Rural Development Company Limited was awarded the contract and by letter dated 2nd March, 2015, Forum Connemara was advised that it had been unsuccessful in its tender.
13. It is now accepted, although initially disputed by Forum Connemara, that the decisions of 30th September, 2014, and 2nd March, 2015, concern a contract which falls within the scope of the Public Works Contracts, Public Supply Contracts and Public Services Contracts Directive (Directive 2004/18/EC) and the Review Procedures Directive (Directive 2007/66/EC as amended) as implemented by S.I. 329/2006 European Communities (Award of Public Authorities’ Contracts) Regulations 2006 and S.I. 130/2010 European Communities (Public Authorities’ Contract) (Review Procedures) Regulations 2010.
14. At the heart of these proceedings is the allegation made by Forum Connemara that on 30th September, 2014, there was a pre planned conspiracy whereby the Chief Officer and other agents of the respondent forced a number of Committee members, including Forum Connemara’s representative, to absent themselves from a meeting which was about to consider a proposal to have a single SICAP provider for the entire County of Galway. Forum Connemara maintains that the conflicts of interest policy, which was used to exclude those who had a potential interest in SICAP from the meeting, had the consequence that the persons who made the decision had no knowledge as to the likely effect it would have and wrongfully silenced key stakeholders under the guise of transparency, openness and the need to avoid a conflict of interests. Thus, it maintains that the procedure adopted was unfair and perverse and the resolution thereby rendered invalid.
Procedural background
15. On 23rd March, 2015, Forum Connemara was granted leave to apply for judicial review seeking an order of certiorari quashing the decision of Galway County LCDC made on 30th September, 2014, that there should be one service provider or programme implementer for SICAP for the entire Galway County area. It was also given leave to seek have the decision of 2nd March, 2015, to award the contract to Galway Rural Development Company Limited quashed. An order was also made staying the decision of 2nd March, 2015, until the determination of the proceedings. In response Galway County LCDC brought an application to strike out the proceedings on the basis that the claim was one to which the provisions of O. 84A applied and as such were, at that time, improperly constituted under O. 84. It also sought an order striking out the applicant’s challenge to the resolution of 30th September, 2014, to the effect that the implementation of SICAP should proceed by way of one lot, on the grounds of the delay on the part of Forum Connemara in seeking to challenge that decision.
Judgment of Barrett J. (High Court)
16. Barrett J. came to the conclusion that the applicant was well out of time for issuing the proceedings which it had commenced on 23rd March, 2015, when it had applied before the High Court (Noonan J.) for leave to apply for an order of certiorari. That application was made some twenty two weeks after the decision of 30th September, 2014, and twenty weeks after Galway County LCDC issued its invitation to tender on Monday 20th October, 2014.
17. The High Court judge did not feel it necessary to determine when the 30 day time limit for bringing a challenge under O. 84A began to run. He expressed himself satisfied from the affidavits before him, that Forum Connemara had established good reasons within the meaning of O. 84A, r. 4(2) such that he should extend the time to permit the challenge to proceed.
18. The circumstances relied upon by Forum Connemara to justify its delay in seeking to challenge the decision of 30th September, 2014, were set out at para. 38 of the affidavit of Mr. Terry Keenan dated 20th March, 2015. These can be summarised as follows:-
(i) As a community based partnership it felt it had an obligation to exhaust all avenues open to it before issuing legal proceedings.
(ii) Forum Connemara believed that it was entitled to rely upon a representation, allegedly made on 10th September, 2014, by a Senior Officer of the Department of the Environment, Mr. David Dalton, to the effect that more than one service provider would be required for the delivery of SICAP in the Galway region.
(iii) Following the decision of 30th September representations had been made to local councillors and politicians. The applicant believed that the final decision as to whether the funding for County Galway would be administered in more than one lot rested with the Department and they considered it likely that reason would prevail.
(iv) Notwithstanding the fact that Forum Connemara engaged with the tender process post 30th September, 2014, it considered that the tender was “all but irrelevant and believed that the Department as the final Arbiter would not allow a single lot decision to be implemented”. Thus, the decision of 2nd March, 2015, could not reasonably have been anticipated.
19. Having considered the evidence and the submissions made by the respective parties, the learned trial judge decided to exercise his discretion and extend the time to permit Forum Connemara challenge the lawfulness of the decision made on 30th September, 2014. In the course of his judgment he set out in some detail the circumstances which he considered amount to “good reasons” within the meaning of O. 84A, r. 4(2). These may be summarised as follows:-
(i) Forum Connemara, not being an “IFSC based commercial venture stuffed to the gills with legal whizz kids” might not have recognised the need for it to conform to the 30 day time limit for procurement related challenges and had acted reasonably in not issuing proceedings by reason of the fear of incurring substantial legal costs.
(ii) That the abuses alleged to have taken place at the meeting of 30th September went to the heart of good government and there was a public interest in ensuring that committees representing communities were not commandeered by councils into making decisions which were in conformity with what the council itself believed to be in the best interests of the community.
(iii) Forum Connemara had received an assurance on 10th September from a senior official at the Department of the Environment, Community and Local Government that SICAP funds would be dispersed in a manner different to that settled upon at the meeting of 30th September such that might give grounds to Forum Connemara to raise an argument as to legitimate expectation.
(iv) The decision of 30th September had generated significant public concern such that several hundred people had attended a meeting at Maam Cross to voice their disquiet about the decision.
(v) The contract to be awarded based upon the decision of 30th September was not to be equated to the normal type of procurement contract such as one to build a roadway or a bridge. It was a contract which determined who would get to distribute funds to vulnerable members of society, some of whom would be disappointed by how the money would be spent.
20. The trial judge concluded that the circumstances identified at (i) to (v) above were unlikely to present in most other procurement cases and thus when all five reasons were taken together they amounted to “good reason” within the meaning of O. 84A, r. 4(2) such that time ought to be extended to permit Forum Connemara’s challenge proceed.
21. In reaching his conclusions he saw no reasons why he should weigh in the balance the fact that Forum Connemara had, subsequent to 30th September itself tendered for the contract in furtherance of the tender documents issued to it on 20th October, 2014.
Submissions
22. Ms. Hyland, S.C., on behalf of the appellant submits that the features identified by the High Court judge and which he relied upon as good reasons to extend the time to permit Forum Connemara challenge the decision of 30th September, 2014, were not in any sense special or unique and could not justify the extension of time which had been granted. She submitted that challenges to procurement decisions inevitably raised issues of good government.
23. As to any representations that may have been made to Forum Connemara by any department official, representations which were fully contested by the respondent in its affidavits, there was, she submitted, nothing unusual about that type of conduct occurring at an information meeting. Even if the department official had indicated that there would be more than one service provider/lot for the County of Galway that representation had been overtaken by the decision of 30th September given that Galway County LCDC was the contracting authority.
24. As to the trial judge’s reliance on the fact that local people had been disquieted and had attended a meeting to express dissatisfaction with the decision of 30th September, that did not mark the case apart from any other procurement case.
25. As to the reliance by the High Court judge on the nature of the contract under consideration and the fact that he sought to distinguish it from other public contracts, Forum Connemara was in the business of distributing funds. It was irrelevant that the contract which it hoped to capture involved the disbursement of funds to vulnerable members of society. However, insofar as Forum Connemara relied upon an assertion that vulnerable members of society were likely to be adversely affected by the decision made on 30th September, 2014, that made it all the more important that it move with speed if it wished to challenge that decision.
26. Ms. Hyland submitted that in granting the extension of time which he did the High Court judge failed to have adequate regard to the prejudice to third parties and, in particular, that visited upon the successful tenderer. Further, by its conduct Forum Connemara had approbated the decision of 30th September, 2014, in that it had fully engaged with the tender process knowing that the tender was in respect of one lot for the whole of the County of Galway.
27. Ms. Hyland relied upon a number of decisions of the Irish courts, to which I will later refer to demonstrate that the delay on the part of Forum Connemara was unconscionable in the context of procurement proceedings which were to be treated as substantially different from ordinary judicial review proceedings where the current time limit to commence proceedings is three months.
28. Mr. Séamas Ó’Tuathail, S.C., on behalf of Forum Connemara maintained that the High Court judge had appropriately identified the existence of good reasons to justify exercising his discretion.
29. In response to Ms. Hyland’s submission regarding time limits in judicial review proceedings he relied upon the decision in O’Donnell v. Dun Laoghaire Corporation [1991] ILRM 301, in which Costello J., in a case pertaining to water changes, extended the time by five years so as to permit Mr. O’Donnell to pursue his challenge.
30. Mr. Ó’Tuathail stressed the trial judge’s finding that the challenge which his clients wished to pursue went right to the heart of good government. He complained that the conflict of interest policy which had been relied upon by the respondent to exclude a number of committee members on 30th September had not been circulated with the agenda. Thirteen members had turned up to the meeting and eight were excluded on the basis of a potential conflict of interest, including his client. Only five were left to vote on how many lots there would be for the purposes of the intended contract. He submitted that there was a manifest irregularity at the meeting whereby Forum Connemara had been excluded.
31. Mr. Ó’Tuathail submitted that the trial judge was correct to conclude that Forum Connemara had been legitimately concerned about racing to litigation in the immediate aftermath of the decision made on 30th September and that he had correctly concluded that it had acted reasonably in holding back from the issue of proceedings in the hope of a successful outcome to negotiations which it was holding with various interested parties post 30th September.
Decision
32. In the within proceedings Forum Connemara claims a multitude of reliefs including declarations to the effect that the decisions made by the respondent on 30th September, 2014, and 2nd March, 2015, are invalid, orders by ways of certiorari quashing those decisions and orders by way of injunction.
33. It is not in dispute that under S.I. 130/2010 European Communities (Public Authorities’ Contracts) (Review Procedures) Regulations 2010 and in particular Regulation 7(2) thereof that an application such as that brought by Forum Connemara “shall be made within 30 calendar days after the applicant was notified of the decision, or knew or ought to have known of the infringement alleged in the application”.
34. From the affidavits sworn by Mr. Keenan on behalf of Forum Connemara and the submissions made on its behalf there is no doubt but that with effect from 30th September, 2014, Forum Connemara was convinced that the decision made that day was wholly irregular in that the respondent had engaged in a conspiracy to bring about a vote in favour of a “one lot” programme implementer for the delivery of the SICAP to the entire County of Galway in substitution for the historic status quo which was to have two lots and two programme implementers.
35. Given that Forum Connemara was, according to Mr. Keenan, immediately outraged at what it considered to have been a gross infringement of proper procedures at the meeting of the 30th September, 2014, the 30 day time limit provided for in the regulations must be held have commenced on that date. In such circumstances what the Court must consider is whether there were good reasons for the High Court judge to have extended the 30 day time limit by approximately four and half months so as to permit Forum Connemara pursue its challenge.
36. The need for a relatively strict adherence to the time limits provided for the commencement of proceedings which seek to challenge decisions, including interim decisions, in a procurement process is well understood and it is not disputed by the parties on this appeal that the spirit and purpose of the prevailing time limit is to ensure that unlawful decisions of contracting authorities, from the moment they become known to those concerned, are challenged and corrected as soon as possible.
37. In this regard Regulation 8 of the European Communities (Public Authorities’ Contracts) (Review Procedures) Regulations 2010 is relevant insofar as it provides that once an application is made to correct an alleged infringement of an eligible persons interest in a particular public contract, that contract cannot be concluded until the court has determined the issues in dispute.
38. The principles which the Court ought to apply in public procurement cases have been set forth in some detail in the decision of the Supreme Court in Dekra Eireann Teoranta v. Minister for the Environment [2003] 2 IR 270. The then prevailing time limit under O. 84A, r. 4 was as follows:-
“An application for the review of a decision to award or the award of a public contract shall be made at the earliest opportunity and in any event within three months from the date when grounds for the application first arose unless the Court considers there is good reason for extending such period.”
39. As I have already noted, that time limit has since been reduced to 30 days subject to the discretion retained by the court to extend time if satisfied that there are good reasons to do so. However, the approach of the Court to such an application cannot be stated to have changed by reason of the rule change and the Court’s earlier guidance as to what may be considered to be good reasons within the meaning of O. 84A remain apposite in the context of the present proceedings.
40. Concerning time limits in relation to public procurement contracts, Fennelly J. at p. 304 of his decision in Dekra stated as follows:-
“The strictness with which the courts approach the question of an extension of time will vary with the circumstances. However, public procurement decisions are peculiarly appropriate subject matter for a comparatively strict approach to time limits. They relate to decisions in a commercial field, where there should be very little excuse for delay.”
41. Denham J. in the same case, when dealing with what might be considered “good reasons” to justify an extension of time, adopted the reasoning of Costello J. in O’Donnell v. Dun Laoghaire Corporation where he stated at p. 315:-
“The phrase “good reasons” is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84, r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example, where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that this explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (The State (Cussen) v. Brennan [1981] I.R. 181).
Or again, the delay may unfairly prejudice the rights and interests of the public authority which had made the ultra vires decision in which event there would not be a good reason for extending the time or a plaintiff may acquiesce in the situation arising from the ultra vires decision he later challenges or the delay may have amounted to a waiver of his right to challenge it and so the court could not conclude that there were good reasons for excusing the delay in instituting the proceedings.”
42. Similar sentiments to those expressed by Fennelly J. and Denham J. in Dekra are to be found in a number of other decisions to which the Court has been referred including that of Charleton J. in Copymoore Ltd. v. Commissioners of Public Works of Ireland [2014] IESC 63 where he emphasised the “clear public interest in the disposal of controversies involving multiple suppliers of goods to the State within a prompt time-frame.”
43. Further guidance concerning the Court’s approach to delay in public procurement contracts is to be found in the decision of Kelly J. in SIAC Construction Ltd. v. The National Roads Authority [2004] IEHC 262. In that case, the applicant was seeking an extension of time to bring proceedings under the then prevailing O. 84A which has been set out earlier. In concluding that O. 84A had to be interpreted as applying not merely to a decision to award a contract or the award of a contract but also to decisions taken by contracting authorities regarding contract award procedures he stated as follows at p.29:-
“Such being so, it follows that complaints of the type which are sought to be advanced here concerning the procedures followed must be brought at the earliest opportunity and, in any event, within three months from the date when grounds for complaint first arose. Proceedings cannot, and ought not to be postponed until the decision to award, or the award of, the public contract has been made. If that were so the complaint concerning, for example, the negotiated procedure where grounds first arose in August, 2001 would not be the subject of proceedings until 2004. Such a result in light of the authorities cited would be absurd.”
44. Earlier in his judgment Kelly J. referred to the consequences of delay by reference to the decision of the Court of Appeal in England in Jobsin Co. UK plc v. The Department of Health [2002] 1 CMLR 44 where Dyson L.J. emphasised that challenges to the lawfulness of any contracting process of this nature should be made as soon as possible. This is what he said at p.1274:-
“[I]t is a fairly startling proposition that, even where a tenderer knows that he has grounds for starting proceedings, he has a good excuse for not doing so because such proceedings may imperil his relationship with the contracting authority and may jeopardise his prospects of securing the contract. It seems to me that a tenderer who finds himself in such a situation faces a stark choice. He must either make his challenge or accept the validity of the process and take his chance on being successful, knowing that the other tenderers are in the same boat. In my view, it is unreasonable that he should sit on his rights and wait to see the results of the bidding process on the basis that, if he is successful he will remain quiet, but otherwise he will start proceedings. I do not believe that a tenderer who deliberately delays proceedings in an attempt to have his cake and eat it has good reason for an extension of time if the outcome of the process is not to his liking”.
45. Having set out the appropriate principles to be applied by the Court when faced with an application to extend time under O. 84A, I will now address the conclusions of the trial judge. I intend to deal in turn with the factors which he relied upon in coming to his conclusion that there were good reasons for exercising his discretion to extend time.
46. Insofar as it is to be inferred from the judgement of Barrett J. that he considered the fact that Forum Connemara was not an “IFSC based commercial venture stuffed to the gills with legal whizz kids” was good reason for not maintaining its challenge within the 30 day time limit, I fear that his conclusion cannot be accepted. Forum Connemara is a large commercial entity. It employs 200 people. Apart from the fact that Mr. Keenan clearly makes the case that Forum Connemara is a formidable organisation, its size, strength and commercial capability is readily apparent from its 109 page tender for the role of programme implementer for the County of Galway. Furthermore, it had already prior to September, 2014 been the successful applicant for a number of public contracts including that of programme implementer for one of County Galway’s two geographic lots. One could not, I think, reasonably infer that an organisation of such a nature could be forgiven for not seeking whatever legal advice it felt was necessary to put right the wrong which it maintains was so obviously perpetrated by the respondent on 30th September, 2014.
47. It is also the case that Forum Connemara never advanced such an argument. It had argued that it did not wish to rush to litigation because of the potential costs pertaining thereto. It never sought to make the case that it did not know of the prevailing time limits or that it had no access to legal advice. To the contrary, it made a purposeful decision not to pursue a challenge to the resolution of 30th September, 2014, in the belief that matters might be resolved without reference to litigation.
48. As to the trial judge’s reliance upon an assurance allegedly given to Forum Connemara by a Mr. Dalton of the Department of the Environment on 10th September, 2014, to the effect that SICAP funds would likely be dispersed in a manner different to that ultimately settled upon at the meeting of 30th September such that might give grounds to Forum Connemara to raise an argument based on the doctrine of legitimate expectation, that assurance, if it was made, was not good reason to extend the time to permit the lawfulness of that decision to be challenged. First, Forum Connemara is not advancing a claim based upon the doctrine of legitimate expectation. It is seeking to have the decision of 30th September, 2014, declared invalid on the basis that the decision making process was flawed. Second, even if Mr. Dalton had made such a representation, which he denies, the same was clearly overtaken by the later decision of the contracting authority to contract only one programme implementer for the SICAP for the whole of County Galway. That decision was clearly in conflict with any representation allegedly made by Mr. Dalton. It was the respondent as the contracting authority and not the department that had the power to make the decision as to whether there would be one or more programme implementers for the County of Galway. Thus, I can see no basis upon which Forum Connemara might reasonably have continued to rely upon an informal assurance given three weeks earlier.
49. Insofar as the trial judge considered that Forum Connemara’s fear of incurring legal costs was a good reason to justify its delay in challenging the decision of 30th September, I regret to say I do not agree. The position of Forum Connemara in this case was, in my view, no different from that of any other interested party aggrieved as to the manner in which a particular decision contrary to its interests was made in the context of a procurement contract. If such a party wants to challenge such a decision they are obliged to do so within the time permitted. The quid pro quo for the entitlement to challenge a decision or the award of a contract in a public procurement process, given that the effect of such a challenge is that any contract on foot of that decision is stayed pending the conclusion of the proceedings; is that they must move to have that dispute determined with immediate effect. The fact that such a challenge may result in the interested party having to incur legal costs, is simply a fact of life. For an organisation such as Forum Connemara, which has 200 employees and manages a very substantial annual budget, the potential costs of litigation can provide no justification for taking this case into any different category from any other procurement challenge.
50. Insofar as the trial judge concluded that the abuse alleged to have taken place on 30th September, 2014, went to the heart of good government to the extent that it was in the public interest that time would be extended to permit that decision to be challenged, I fear the conclusions of the trial judge were not reasonable. It cannot be denied that at every stage of the public procurement process there is the possibility of abuse and/or illegality. It is the occurrence of such abuse and/or illegality that is at the heart of almost every challenge brought under O. 84A. In each such instance good government is called into question and invariably there is a public interest that the court scrutinise the actions complained of, given that large sums of public money are usually involved. In this regard Forum Connemara’s intended challenge to the decision of 30th September is no different in terms of public interest to any other challenge in an alternative public procurement process.
51. The fact that the decision of 30th September, 2014, generated such public concern that several hundred people attended a meeting at Maam Cross in early 2015 to voice their disquiet about the decision, once again does not provide any good reason to justify Forum Connemara’s delay in commencing its proceedings. It is inevitable that decisions concerning public procurement contracts will find support with certain sectors of the public and will offend others.
52. I am also satisfied that it was entirely artificial for the trial judge to classify the contract the subject matter of the decision of 30th September, 2014, as being different from any other type of procurement contract, such as one to build a road or bridge. In doing so he relied upon the fact that the decision sought to be impugned concerned a contract which would determine who would get to distribute funds to vulnerable members of society, some of whom would be disappointed by how the money would be spent. What, with respect, he ignored was the fact that, like most companies that tender for public contracts, Forum Connemara is a large commercial enterprise that is in the business of distributing funding. That is how it makes its money. All of the funding for the SICAP will be received by the successful applicant for distribution to the community. Regardless of whoever obtains the contract there will be members/groups within the community who will receive funding and those who will not. Those who do will undoubtedly be pleased and those who don’t will probably be upset or aggrieved. However, that is the scenario that will pertain regardless of whoever is appointed to the role of programme implementer for the SICAP.
53. Leaving to one side for a moment the findings of the trial judge, I have to say that I find the reasons advanced by Mr. Keenan in his affidavit to explain why the proceedings did not issue within the permitted timeframe to be entirely without merit. For example, he maintains that regardless of the decision of 30th September, 2014, which he clearly considered to have been a reprehensible abuse of process, that he nonetheless believed that negotiations subsequent thereto would result in a tender issuing for two programme implementers in respect of two separate areas of County Galway. That contention, to me, is entirely lacking in credibility when considered against the backdrop of the invitation to tender issued on 20th October, 2014, which made clear that the proposed contract was in respect of one lot only and that the contract was for one programme implementer only. He simply chose to ignore the detail of the tender documents and the map appended thereto which clearly identified the designated area to be covered by the contract.
54. Nor can I accept Mr. Keenan’s statement that he believed that the invitation to tender was “all but irrelevant” and that the Department, as the final arbiter, would not allow a single lot decision to be implemented. That assertion is one that flies in the face of the 109 page detailed tender which Forum Connemara lodged in response to the aforementioned invitation. Objectively assessed, anyone reading that document would be driven to the conclusion that Forum Connemara considered the invitation to tender highly relevant and evidenced its determination to secure the contract on offer even though it now protests about the underlying decision which determined that the contract was in respect of one lot and for the benefit of one programme implementer only.
55. Insofar as the High Court judge relied upon the decision of Costello J. in O’Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 as a basis for granting the extension of time sought, I am satisfied that the trial judge erred in law in doing so. In O’Donnell, the plaintiff, a member of the public, instituted plenary proceedings challenging the validity of certain orders made by the local authority imposing water rates. He also sought a declaration that his water supply had been wrongfully disconnected. In dealing with the defendant’s submission that the plaintiff had unduly delayed in challenging the Local Authority’s decision on the grounds that it was ultra vires, Costello J. concluded that there were good reasons to excuse that delay. In so far as the plaintiff sought to challenge managerial orders made by the defendant in 1983, 1984 and 1985, Costello J. in excusing a period of delay of some five years, found as a matter of fact that while the plaintiff had failed to pay his water charges in respect of each of those years he had not so failed because he considered the same to have been illegally imposed.
56. It was only in 1987 that Mr. O’Donnell had come to the conclusion that the managerial orders were invalid and thus he was not to be faulted in respect of his delay over that period. Costello J. also accepted that Mr. O’Donnell had not undertaken the burden of instituting proceedings because he believed that the legality issue would likely be adjudicated upon in proceedings which would inevitably be instituted by the local authority to recover the water charges. The High Court judge felt entitled to take into account that legal fees constituted a disincentive to legal action for someone in the position of Mr. O’Donnell who, as a public service pensioner, might have to sell his home if the action failed.
57. The contrast between the facts in O’Donnell and those of the present case are stark. First, the proceedings in O’Donnell were proceedings that the plaintiff was entitled to institute by way of plenary proceedings. They were not proceedings involving a challenge to a procurement process which is subject to a mandatory code which requires that proceedings be brought pursuant to the O. 84A and within a 30 day timeframe. Second, while the court viewed a potential delay of five years in O’Donnell to be reasonable that was so because Mr. O’Donnell did not know of, nor suspect, that the managerial orders made in 1983, 1984 and 1985 were potentially invalid unlike in the present case where Forum Connemara was satisfied, on the day of the alleged wrongdoing, that a conspiracy had been orchestrated by the respondent. Third, there was no prospect of the legality of the decision of 30th September, 2014, being determined absent the issue of proceedings by Forum Connemara, unlike in O’Donnell where it was anticipated that the local authority would sue to recover the water charges thus paving the way for Mr. O’Donnell to challenge the legality of the managerial orders. Fourth, the costs implications of rushing to litigation for Forum Connemara and Mr. O’Donnell are hardly comparable. It is easy to understand why a member of the public such as Mr. O’Donnell, a civil service pensioner, might be reluctant to push ahead with litigation. As Costello J. stated, he would risk losing his home if he was unsuccessful in his proceedings. In this respect the same considerations do not apply to an organisation such as Forum Connemara whose access to litigation is not trammelled by such core concerns and whose purpose in pursuing litigation is to obtain commercial advantage.
58. While the decision in O’Donnell provides no basis for justifying the delay on the part of Forum Connemara in the present case, the decision is good authority for a number of propositions which are extremely material to the present case. First, Costello J. concluded that a party’s belief that they were justified in delaying the institution of their proceedings had to be objectively assessed. In my view, when objectively assessed, the circumstances relied upon by Forum Connemara fail to explain or afford a justifiable excuse for the delay. Second, Forum Connemara, in tendering for the one programme implementer contract, acquiesced in the decision which it maintains was unlawful such that it should be considered to have waived any entitlement it might otherwise have had to challenge the decision. Indeed, to state that Forum Connemara acquiesced in the decision is perhaps an understatement. It clearly set out to win this prestigious and highly valuable contract and only after its candidacy failed did it cry foul in respect of the decision upon which the tender depended. Contrary to what was found by the trial judge, Forum Connemara wanted to “have its cake and eat it”. It seems clear to me that had Forum Connemara been awarded the contract on 2nd March, 2015, no judicial review proceedings would ever have come to pass. Contrary to what was found by the trial judge, as a matter of law, the approach of Forum Connemara in tendering for the contract based upon the decision which it maintains was invalid is impermissible as is apparent from the decision of the English Court of Appeal in Jobsin. The interested party must choose whether to approbate the decision or challenge it. It cannot approbate and later challenge.
59. Finally, there is one last matter to which I believe the trial judge ought to have had regard and that was the effect of Forum Connemara’s delayed challenge to the validity of the decision of 30th September, 2014. The extension of time sought was one which was destined to confer significant benefit to Forum Connemara while visiting significant prejudice upon Galway Rural Development Company Limited, who was awarded this contract on 2nd March, 2015. Forum Connemara has, by reason of the relief granted by the trial judge, continued to act as programme implementer in respect of one of the two Galway lots as per the pre 30th September, 2014, status quo.
60. This, moreover, is another reason to distinguish the present case from O’Donnell where Costello J. stressed ([1981] I.L.R.M. 301, 318) that “no third parties have acquired rights which it would be unjust to injure” by granting the relief sought. By contrast, the rights of the successful tenderer have been seriously prejudiced by Forum Connemara’s delay.
Conclusions
61. I am satisfied that the trial judge erred in principle and in law when he concluded there were good reasons within the meaning of O. 84A to extend the time to permit Forum Connemara challenge the decision of 30th September, 2014. In addition there were other factors which sounded strongly against the granting of such relief. Not only did Forum Connemara not institute its proceedings within the prescribed time limit but it approbated the decision which it maintains was invalid and did so for its own commercial benefit. It was only when it was notified that the contract had been awarded to a third party that it decided to challenge the validity of the earlier decision made on 30th September, 2014. In so delaying it obtained the benefit of the status quo pre dating that decision and has caused significant detriment to the successful candidate, Galway Rural Development Company Limited.
62. Having considered all of the evidence I am quite satisfied that for the High Court to extend time under O. 84A in the circumstances of the present case would result in a gross impairment of the effectiveness of the implementation of the Community Directives on the award of public contracts. There are and were no good reasons entitling the trial judge to grant the reliefs sought. In such circumstances I would allow the appeal.
