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Irish Court of Appeal |
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You are here: BAILII >> Databases >> Irish Court of Appeal >> Copymoore Ltd & Ors -v- The Commissioner of Public Works in Ireland [2015] IECA 119 (11 June 2015) URL: http://www.bailii.org/ie/cases/IECA/2015/CA119.html Cite as: [2015] IECA 119 |
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Judgment
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THE COURT OF APPEAL Neutral Citation Number: [2015] IECA 119
[2014/920 and 932] The President Kelly J. Peart J.
COPYMOORE LIMITED, CORK OFFICE MACHINE AND SUPPLIERS LIMITED, CUSKEN LIMITED, EMS COPIER SERVICES LIMITED, EUROTECH OFFICE EQUIPMENT LIMITED, INEST LIMITED, NORMAC LIMITED, MBE MALLOW LIMITED, O’ROURKE OFFICE SUPPLIES LIMITED, SHARP TEXT CORK LIMITED AND TOS LIMITED APPLICANTS/RESPONDENTS AND CROSS APPELLANTS AND
THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND RESPONDENTS/APPELLANTS JUDGMENT of the Court delivered by the President on 11th June 2015 Introduction 2. The procedure whereby the successful outcome was obtained was highly unusual and has given rise to concern on the part of the Commissioners and the State, which took over the responsibility for arranging such service provision. The High Court held that the applicants were not entitled to relief under O. 84A but did have a basis of claim for ordinary judicial review. The Copymoore litigants had applied under O. 84A for cancellation of the procurement process and on obtaining leave caused the operation of the scheme to come to a stop but they failed on that issue. By that means, they held up the scheme without the usual commitments that are demanded of a party seeking an injunction. There is anxiety because they were able to segue from one mode to the other. If that were to become an option, it would undermine the policy behind the special procedure provided in O. 84A. That might be a reason for pursuing the appeal even if the case otherwise were to be considered moot. 3. This Court holds that there is no continuing lis or controversy between the parties because of the withdrawal of the circular that operated to the detriment of the Copymoore litigants. Neither is there a public interest issue that would justify using Court time to hear the debate. The procedure adopted in the case was wholly exceptional, arose in the special and very unusual circumstances and was a pragmatic expedient that was deployed in the interests of justice. Since it does not accordingly establish a precedent, the issue of procedure alone or with any other feature of the case is not a sufficient reason to outweigh the fact that there is nothing remaining to be decided between the parties. 4. The Court accordingly accedes to the application made by the Copymoore litigants. This judgment explains in more detail the Court’s consideration of the application. Background 6. The applicants are eleven small or medium size businesses. Ten of them supply print services to various public bodies, of which schools predominate. The eleventh supplies consumables to the others but does not directly supply print services itself. None of the Copymoore applicants submitted a tender pursuant to the request for tenders. 7. The Commissioners made their contract award decision on the 8th February 2012 whereby they listed the seven parties eligible for contracts for managed print services. 8. The Government was disappointed by the small amount of work made available for competition and decided to change the rules to make it compulsory for public authorities to offer their contracts to the panel of chosen suppliers to compete among themselves. 9. On 25th July 2012, the Minister for Public Expenditure and Reform published Circular 60/12 Public Procurement (Framework Agreements) which stated, inter alia, that the Government had decided that it should be mandatory for public service bodies to use the specified framework agreements. The purpose was to increase the usage of National Procurement Services framework agreements and thereby secure best value for money. 10. Appendix 1 of the Circular indicated that in the case of managed print services, there were seven named suppliers that these arrangements were to be used by Central Government, Local Government, the Defence Forces, An Garda Síochána, the Prison Service, the Health Sector and all levels of the Education Sector including VECs. 11. The new mandatory arrangements came into force on 1st September 2012. The High Court Proceedings 13. The judgment of the High Court found the applicants could not be regarded as “eligible persons” within the meaning of Article 4 of the European Communities (Public Authorities’ Contracts) (Review Procedures) Regulations 2010 since they did not participate in the MPS Framework Agreement and therefore lacked the requisite locus standi to object to the contract. Neither were they prejudiced by any of the alleged irregularities of which they complained. 14. Notwithstanding the above, the Court found that the applicants had standing to challenge the 2012 Circular if even they had no standing to challenge the outcome of the tender process. 15. The Court held the 2012 Circular had the effect because it was mandatory of effectively locking the applicants out of key public sector markets. Hogan J. held as a conclusion:-
Events Subsequent to the High Court Proceedings
4. Where public bodies do not utilise central procurement frameworks they should be in a position to provide a value for money justification. Value for money justifications should take into account the full costs of running a public procurement competition. Public bodies must comply with their obligations under national law and guidelines.” Submissions 20. The Commissioners submitted first that the case is not moot. Secondly, and alternatively, even if it is to be so considered, the case falls within the exception exemplified by O’Brien v. Personal Injuries Assessment Board (No. 2) [2007] 1 IR 328 and Irwin v. Deasy [2010] IESC 35. 21. It was submitted that the appeal is not moot because this set of circumstances involving the same applicants may arise again if there were to be another tendering for a Framework Agreement. It has a continuing impact and will arise again. The effect of the judgment of the High Court is not spent. The case involves matters of principle that go beyond the Circular and will have ramifications for the State’s operation of Frameworks Agreements in the future. 22. If it is moot, it stills falls within the discretion of the Court to hear it for various reasons. It was submitted that the decision of the High Court would have implications far beyond the present applicants, as there has been a proliferation of procurement cases before the courts in recent years. The finding that a Circular, an administrative document, would be capable of invalidating a tendering process retrospectively is a concept that would have far reaching implications. So if it is considered to be a moot this is a case that warrants full argument in light of the far-reaching findings of the impugned High Court decision. Whether the Appeal is Moot 24. Lofinmakin v Minister for Justice [2013] IESC 49 contains a comprehensive review of the authorities in respect of mootness. In that case, the appellants appealed against the refusal of the High Court to make an order of certiorari in respect of a deportation order made by the Minister for Justice that was revoked prior to the hearing of the appeal. The Supreme Court determined that the appeal was moot, since the possibility of a fresh deportation order was remote and in any event the appeal had regard to the specific factual circumstances in which the order had been made. 25. In her judgment, Denham C.J. (with whom Murray, Fennelly, McKechnie and MacMenamin JJ concurred), cited with approval the previously adopted dictum of the Supreme Court of Canada in Borowski v. Canada [1989] 1 SCR 342 that :-
27. In O’Brien v. Personal Injuries Assessment Board (No. 2) [2007] 1 IR 328, the applicant requested the Personal Injuries Board to deal directly with his solicitor in his application pursuant to the Personal Injuries Assessment Board Act 2003. They refused. The plaintiff obtained a declaration from the High Court that such refusal was contrary to s. 7 of the Act. Following the service of a notice of appeal, but before the appeal hearing, the statutory process under the Act concluded, with the result that it was no longer necessary for either party to engage with each other. The Supreme Court allowed the appeal to proceed. The plaintiff, apart from the costs order, had no continuing interest in the proceedings. Notwithstanding the absence of such interest, however, Murray C.J. did not believe that the proceedings had “completely” lost their character as containing a live issue or that a decision would not further resolve “some controversy affecting or potentially affecting the rights of the parties”. In such circumstances he was of the opinion that PIAB retained a real current interest in the issue and therefore its appeal should be determined. 28. In this case a “real current interest in the issue” is not present. The Minister withdrew the Circular that made it mandatory for public authorities to send their work only to the select panel. The applicants are back to where they were when the tender process terminated with its seven nominations. The public authorities are free to deal with their old suppliers if they want to. 29. The appeal does not raise any issue of exceptional public importance and there are no special reasons in the public interest for hearing the appeal. The Supreme Court in Irwin v. Deasy held:-
Order 84A 31. The High Court was clear that this was a wholly exceptional and unusual procedural situation and was prepared to entertain the application for judicial review of the Circular in the circumstances in the interests of justice. The Court considers that it does not accordingly establish an alternative procedural option. Conclusion |
