Supreme Court: Motion to set aside refusal for leave to appeal rejected in student transport case

Killian Flood BL

About this case:

• Citation:
  [2021] IESC 35
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Frank Clarke

The court considered the case of Re Greendale Developments Ltd. (No. 3) [2000] 2 I.R. 514, which governed the circumstances in which a final decision of the court might be set aside. The court determined that the appellant’s application failed to pass the high threshold of the Greendale principles and held that the correct procedure in the case was to issue new plenary proceedings in the High Court.

Background

The appellant, Student Transport Ireland Limited, issued judicial review proceedings against the respondent Minister and Bus Eireann, as notice party, in 2011. The appellant’s claim lay in a school transport scheme which was agreed between the Minister and Bus Eireann to bring children to school. Bus Eireann was remunerated by the State on a costs recovery basis.

The appellant argued that the agreement was subject to public procurement law and therefore the Minister should have arranged a tender for the service.

Both the High Court and the Court of Appeal rejected Student Transport’s proceedings. In the Court of Appeal, Mr Justice Gerard Hogan overturned the High Court on a single ground, namely that the agreement between the Minister and Bus Eireann satisfied the pecuniary interest requirement under Council Directive 2004/18/EC, which regulates public service contracts.

However, it was held that the claim failed because Student Transport could not establish that a written contract was concluded by the parties and that the scheme was of indefinite duration. It dated back to 1967 and had no formal features of a commercial contract. It was an administrative arrangement and, accordingly, fell outside the scope of the 2004 Directive on public procurement.

The Court of Appeal also upheld the High Court’s findings that the appellant did not have standing to bring the proceedings as it was a shelf company. Finally, it was held that the appellant failed to bring proceedings within the six-month time period of the conclusion of the alleged contract, which also was fatal to the case.

The appellant sought leave to appeal to the Supreme Court, but this was refused in a determination in 2016. Following the refusal, two new documents came to light. The first was a report by the Comptroller and Auditor General in 2017 and the second was correspondence with the EU Commission in 2019.

The appellant claimed that the ICAG report showed that Bus Eireann had made a profit from the transport arrangement with the Minister, which was contrary to evidence in the original proceedings. In the Commission correspondence, the appellant claimed that it showed the EU Commission had determined that the scheme represented a breach of EU procurement law. This was disputed by the Minister.

In light of this correspondence, the appellant brought an application to the Supreme Court to set aside the previous refusal of leave to appeal and to hear the case. The Minister opposed the application.

Supreme Court

Giving judgment in the matter, Mr Justice Frank Clarke began by outlining the Greendale jurisprudence regarding the setting aside of a final decision by the courts. It was held that a court had to power to overturn a final order where an applicant successfully established that allowing the order to remain in place would infringe their constitutional rights. This was a jurisdiction which could be used only in exceptional or extraordinary circumstances. The court emphasised the need for finality in proceedings and simply pointing to an error in a judgment was not enough for a court to set aside a decision.

In the present application, the appellant submitted that the new documents showed that the Minister had failed to act in a transparent manner in the High Court and Court of Appeal (R. v. Lancashire County Council Ex. Parte Huddleston [1986] 2 All E.R. 941; RAS Medical Ltd v. The Royal College of Surgeons in Ireland [2019] IESC 4). As such, it was claimed that this was a sufficient basis for setting aside the court’s determination. It was noted that the appellant stopped short of claiming that the Minister had acted fraudulently in the case.

While the court accepted that this principle of transparency existed in Irish law, it was not yet established that a breach of the principle could be used to set aside a final order of a court.

Further, the court held that, in cases of fraud, the proper approach was for fresh plenary proceedings to issue so that a trial court could determine whether previous litigation was tainted by said fraud. The court held that this was also the applicable procedure where the transparency principle was alleged to have been breached.

Mr Justice Clarke emphasised that it was doubtful that a breach of the transparency principle could lead to the setting aside of a final order and this had to be properly tested in plenary proceedings.

Applying these findings to the case, the court held that the focus of the application had to be the process before the Supreme Court which was such to make the final order a nullity. The court held that it was not appropriate to make a determinative finding on the transparency point in the case.

The court held that no egregious flaw was established in the leave to appeal process itself and accordingly the application was dismissed. Given the serious of the allegations relating to transparency, the court also commented that the appellant had to be successful on all grounds of appeal in order to have a positive outcome in the case.

While the appellant had previously been successful on one point in the Court of Appeal, the rest of the points were adverse and fatal to the relief claimed. The court said that the appellant had failed to put any material before the court which might suggest the Court of Appeal was wrong in its conclusions.

As such, the appellant failed to reach the Greendale threshold or even the lower threshold of making an arguable case that the Court of Appeal had erred, the court said.

Conclusion

The principle of finality in litigation was important and the appellant was simply trying to “rerun a different case from that which failed before”. It was open to the appellant to take plenary proceedings in the High Court to challenge the issue of transparency. It was for the High Court to determine if such jurisdiction existed on the facts of the case.