Supreme Court of Ireland Decisions

Judgment Title: Dublin International Arena -v- Campus and Stadium Ireland & Ors

Neutral Citation: [2007] IESC 48

Supreme Court Record Number: 321 & 327/2004

High Court Record Number: 2002 246 JR

Date of Delivery: 25 October 2007

Court: Supreme Court

Denham J.
Kearns J.
Finnegan J.

Between/


Dublin International Arena Limited

Judgment delivered the 25th day of October, 2007 by Denham J.
1. This is an appeal by Dublin International Arena Limited, the applicant/appellant, hereinafter referred to as 'the appellant', from the judgment of the High Court (O Caoimh J.) delivered on the 26th day of May, 2004, which order required the appellant to furnish full security for the costs of Campus and Stadium Ireland Development Limited, the first named Respondent, hereinafter referred to as 'Campus', and for one third of the costs of The Minister for Tourism, Sport and Recreation, Ireland and the Attorney General, being the second to fourth named respondents. The order in respect of Campus was made pursuant to s.390 of the Companies Act, 1963 and the orders in relation to the second to fourth named respondents was made in the exercise of its discretion by the Court pursuant to Order 29, r.1 of the Rules of the Superior Courts.

2. The second to fourth named respondents have cross-appealed from the limitation of the order of the High Court, that the appellant furnish security for one third of the second, third and fourth named respondents' costs in the proceedings.

3. Rohcon Limited, Dublin Waterworld Limited and Waterworld (UK) Limited are notice parties, and, where appropriate, are referred to as 'Waterworld'.

4. This appeal raises issues as to an order for security for costs in proceedings which seek judicial review of the awarding of a public contract.

5. Background
The background facts to the judicial review proceedings arise out of the awarding of a contract to design, build, finance and, for a period of thirty years, to operate and maintain the National Aquatic Centre at Abbotstown, Co Dublin. Campus was established by the Government to organise the public tender competition for the contract. On the 28th July, 2000, a tender notice was published. The award criteria selected was that of the most economically advantageous tender. Nine requests to participate were reviewed and five were selected to submit outline bids. Three of these were then requested to submit detailed bids. These three were: (a) the appellant, (b) Prospero Limited, and (c) Waterworld. On 19th December, 2000 a decision was taken that Waterworld should be given top ranking. On 7th February, 2002, it appears that a contract was entered into between Campus and Waterworld. The judicial review proceedings, commenced on the 7th May, 2002, seek a review of the award of the public contract pursuant to Council Directive 89/665/EEC, (the Remedies Directive), as amended by Council Directive 92/13/EEC. The judicial review proceedings were brought under Order 84A of the Rules of the Superior Courts.

6. Motions
The security for costs issue was raised by motion issued on the 11th February, 2003, by which the second to fourth named respondents sought security for costs. On the 3rd March, 2003, Campus, also by way of motion, sought security for costs.

7. Parties
The parties to the proceedings are as follows.
7.1 The appellant is a private company limited by shares. It was formed as a vehicle to organise and lead an international consortium to compete for the award of the contract for the aquatic centre and arena.

7.2 The first named respondent, Campus, is a public undertaking, the shareholding of which is held 25% by the Taoiseach, 25% by the Minister for Finance, and 50% by the Minister for Arts, Sports and Tourism. It is the contracting party with Waterworld.

7.3 The second named respondent, the Minister for Tourism, Sport and Recreation, is the Minister with the responsibility for the awarding of the contract.

7.4 The third and fourth named respondents are Ireland and the Attorney General.

7.5 When appropriate I shall refer to the second to fourth respondents as 'the State'.

7.6 The notice parties are the members of the Waterworld Consortium to whom the contract was awarded.

8. Issue
The issues on this appeal are: (a) Whether or not it is possible to make an order requiring the provision of security for costs in an application for the review of the award of a public contract pursuant to the Remedies Directive. (b) If it is possible to make an order requiring the provision of security for costs, whether it was appropriate on the facts of this case to order such security.

9. The High Court
On the issue as to the jurisdiction of the Court to make provision for the security for costs the learned High Court judge held:-

"It is conceded that the Applicant has an arguable case but as to whether it should be categorised as a strong case in light of the complexity of the case is something that I would be slow to make any determination of at this stage, notwithstanding the submissions made by counsel that I should engage in a minute consideration of the submissions and come to a view as to the strengths of the respective cases advanced on behalf of the various parties to these proceedings.




I am not inclined to the view that the EC Directives are such as necessarily preclude an application for security for costs. I recognize that the Directive envisages applications to be brought in a timely fashion. Insofar as there has been delay in this case, I don't think it all falls on one side. It is conceded by counsel for the State that it could have and possibly should have moved in January 2003 in light of the response received in the previous December refusing security for costs, but in the circumstances of the case, I have to bear in mind what took place in the context of the delay complained of and I am not at all satisfied that the Applicant has satisfied this Court that it has incurred costs or any significant costs in the interval or acted to its detriment in any way. Therefore, insofar as it is suggested that there has been, effectively, a situation giving rise to a legitimate expectation on behalf of the Applicant that no security would be sought, I don't find that case to be established. I don't believe that any basis exists for an estoppel in the seeking of the security for costs in the instant case. I also do not believe that principles of equivalence or of effectiveness are such as to preclude such an application.




Again, with regard to the European Convention of Human Rights, I am conscious of the fact that in many respects the principles underlying the European Convention are principles which are recognized as part of our constitutional heritage in this country and, in particular, in regard to the judgment of O'Hanlon J. in Salah -v- The General Accident, I believe that the underlying principle addressed there is no different to the principle enshrined in Article 6.1 of the Convention upon which reliance was placed -- namely, the right of access to the Courts. It has been recognized as an unenumerated constitutional right in this jurisdiction.




While there may have been some delay in moving to this Court, I think the applicant is in a Catch 22 position because, on the one hand, it is submitted that I should have regard to all the substance of the case in assessing the claim for security for costs and, on the other hand, this necessarily involves giving to the Respondents in the proceedings an opportunity to indicate the nature of their defence to the Court. Even if the more elaborate submission were not to be upheld in the context of demonstrating a real defence, they would have to be afforded an opportunity of doing so: At the same time, I believe that an application could have been made at an earlier date but I am not at all satisfied that even had it been moved some months earlier that it would have changed the essential situation that pertained at the stage when it was sought.




With regard to the issue of proportionality, I accept the submissions made on behalf of the Respondents which essentially rely upon the nature of the Applicant being a company, enjoying rights as a company with limited liability and also faced with a situation that certain disadvantages may attach to that situation, and I believe in that regard that the principle of proportionality is not offended. In this regard, I am therefore disposed to accede to the applications."





The learned High Court Judge determined the issue of security for costs as follows:



"Now, I come back to the situation that was addressed by me at the outset of this case. There are two applications, one which is brought by the company in which express reference is made to Section 390 of the Companies Act and I believe that I should direct security to issue in that regard in its favour. With regard to the State's position, I have indicated that in the letter seeking a security, reference was made to Section 390 and an intimation was given at that stage that an application would be brought pursuant to Section 390. The Notice of Motion and the grounding affidavit do not, as such, make any express reference to same and while I recognize the submission of counsel insofar as the matter was approached by Morris J. in the Lancefort case, I believe that I have to have regard to the particular circumstances of this case and I believe that in all of the circumstances, having regard to the identification of the State's position in the case - the nexus between it and the other respondent - that I should approach this on the wider basis rather than on the basis of Section 390 and I will direct in my discretion that security for costs be granted on behalf of the State, but in that regard I believe that the full security that will arise otherwise under Section 390 should not be required in this particular case and I would direct that the security in the context of the State should be on the basis of the traditional one-third rule."

10. Appeal
The appellant has appealed against the judgment and orders of the High Court on the grounds that the learned judge erred in law and in fact:-
· In failing to recognise and/or apply the principle that in cases involving multiple defendants/respondents, where separate representation is unwarranted or duplicative, the burden of duplication of costs should not be borne by the appellant;
· In failing to take into account the conduct of the respondents in awarding full or any security for costs in their favour;
· In failing to take into account the relative strengths of the parties' cases in awarding full or any security for costs;

· In concluding that it is far from clear that the Directive should be construed in the manner contended by the appellant;

· In concluding that there was no basis upon which a legitimate expectation arose that the respondents would not seek security for costs;

· In concluding that there was no basis for an estoppel in relation to an application for security for costs;

· In concluding that the principle of proportionality was not offended by virtue of the fact that the applicant was a legal as opposed to a natural person;

· In failing to take into account the circumstances of this particular application in awarding full or any security for costs;

· In concluding that insofar as security for costs were applicable or to be awarded in favour of Campus that an amount in excess of one third of projected costs should be provided;

· In concluding that an application for and/or an award of security for costs was consistent with and appropriate in the context of a review under Directive 89/665/EEC;

· In failing to analyse the merits of the claim and the proportionate risk of the claim being lost, and reflecting that analysis in the decision on the application for security for costs.
11. Cross-Appeal
The State has filed a cross-appeal against the judgment and order of the High Court upon the following grounds, that:-
· The High Court erred in finding that the application of the second, third and fourth named respondents for security for costs was made otherwise than by way of an application under s.390 of the Companies Act; Order 29, rule 1 of the Rules of the Superior Courts being simply a vehicle for that purpose.
· The High Court erred in determining the second, third and fourth named respondents' application for security for costs on a basis other than the exercise of the jurisdiction conferred upon the High Court by s.390 of the Companies Act.
· In determining the second, third and fourth named respondents' application for security costs, the learned Judge of the High Court erred in law in finding that the circumstances in which that application was made disentitled them to the benefit of an order under s.390 of the Companies Act.
12. Motions
By motion issued on 11th February, 2003 the State sought security for costs; the motion referred to Order 29. r.1 of the Rules of the Superior Courts. By motion issued on 3rd March, 2003, Campus sought security for costs. This latter motion cited in addition s.390 of the Companies Act 1963 - 2000. Both motions were issued after the delivery of the Statements of Opposition and grounding affidavits and after the case was put into the List to fix dates.

13. Submissions
Detailed submissions, both written and oral, were addressed to the Court on the issues arising on this appeal and cross appeal and I have considered them carefully.

14. Law
By S.I. No. 374 of 1998 Order 84A was inserted in the Rules of the Superior Courts. This Order provides that an application pursuant to the regulations for the review of a decision to award, or the award of, a public contract, within the scope of the Directives, shall be made to the Court in accordance with the provisions of this Order. It is expressly stated that this rule, i.e. Order 84A, shall be construed together with the Rules of the Superior Courts, 1986 - 1988.

Section 390 of the Companies Act, 1963 makes provision for security for costs in the following terms:-
"390. —Where a limited company is plaintiff in any action or other legal proceeding, any judge having jurisdiction in the matter, may, if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his defence, require sufficient security to be given for those costs and may stay all proceedings until the security is given."

Order 29 of the Rules of the Superior Courts makes provision for security for costs in the following terms:-
"1. When a party shall require security for costs from another party, he shall be at liberty to apply by notice to the party for such security; and in case the latter shall not, within forty-eight hours after service thereof, undertake by notice to comply therewith, the party requiring the security shall be at liberty to apply to the Court for an order that the said party do furnish such security.
…

6. Where the Court shall have made an order that a party do furnish security for costs, the amount of such security and the time or times at which, and the manner and form in which, and the person or persons to whom, the same shall be given shall, subject to rule 7, be determined by the Master in every case."
The relevant Directive which arises in this case is - The Remedies Directive, 89/665/EEC, as amended by Council Directive 92/50/EEC of 18 June 1992, and which states in Article 1:-
"1. The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the scope of Directives 71/305/EEC and 77/62/EEC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in the following Articles, and, in particular, Article 2 (7) on the grounds that such decisions have infringed Community law in the field of public procurement or national rules implementing that law.

2. Member States shall ensure that there is no discrimination between undertakings claiming injury in the context of a procedure for the award of a contract as a result of the distinction made by this Directive between national rules implementing Community law and other national rules.

3. The Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular public supply or public works contract and who has been or risks being harmed by an alleged infringement. In particular, the Member States may require that the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his intention to seek review."

Thus the Directive stresses that the remedy be effective and, in particular, as rapid as possible.

15. Decision
The essential issue for determination is whether the appellant has established that there are 'special circumstances' which justify the refusal of orders for security for costs.

16. It was conceded in the High Court that the respondents have established an arguable case, and it was conceded (for the motions) that there are prima facie defences.

17. Is there reason to believe that the appellant would not be able to pay the respondents' costs if they were successful? There is a wealth of detail in the pleadings as to the nature of the appellant company. The learned High Court judge held that:-
"It is not in issue that the Applicant does not have funds to meet an order for costs if same were to be made against it in the substantive proceedings."

It is clear that the appellant was set up as a vehicle for a consortium of companies to make a tender for the public contract in issue in the intended proceedings. The appellant has only nominal assets. However, the appellant is owned by companies which have very considerable assets. It was intended to capitalize the appellant only if it were awarded the contract. Consequently there is credible evidence that the appellant would be unable to pay the costs of the proceedings to the respondents if the respondents were successful.

18. Consequently, as a matter of law, the onus shifts from the respondents to the appellant in the motions for security for costs. The onus rests on the appellant to satisfy the Court that there are special circumstances which would justify the refusal of orders for security for costs. As Finlay C.J. stated in O'Toole Limited v. MacEoin Kelly & Associates [1986] IR 277, at p.283:-
“It is clear that there is no presumption, either in favour of the making of an order for security for costs or against it, but I am satisfied that where it is established or conceded, as arises in this case, that a limited liability company which is a plaintiff would be unable to meet the costs of a successful defendant, that if the plaintiff company seeks to avoid an order for security for costs it must, as a matter of onus of proof, establish to the satisfaction of the judge the special circumstances which would justify the refusal of an order.”

19. It is clear in this case that the appellant would be unable to meet the costs of successful respondents. Therefore, the appellant must, as a matter of proof, establish special circumstances which would justify a refusal of orders for security of costs.

20. In West Donegal Land League Limited v. Udaras na Gaeltachta [2007] 1 ILRM1 Geoghegan J. stated:-
"The case law under section 390 establishes that notwithstanding the insertion of the word “may” the court in the absence of special circumstances and as a matter of appropriate exercise of its discretion will in a given case order security for costs in the circumstances provided for by the section. The “special circumstances” would seem to be limited …
The only remaining question is whether there are special circumstances which might justify refusal of the order. The onus of establishing such special circumstances is on the plaintiff company. I would agree with the view expressed by Denham J. in her judgment that the categories of special circumstances are not closed. Although in the second edition of Delany and McGrath on Civil Procedure in the Superior Courts four categories of special circumstances are helpfully summarised, these are simply sets of circumstances which have in fact influenced courts in particular cases to refuse the order. I am satisfied, however, that this does not mean that a court is wide open in its discretion as to whether to grant or refuse the order."

21. Although I wrote a dissenting judgment in that case, I did not propose a different principle. In S.E.E. Co. v. Public Lighting Services [1987] I.L.R.M. 255 this court held that s.390 of the Companies Act, 1963 was not mandatory. Reference was made to the importance of any delay by an applicant to the exercise of a court's discretion. In considering the issue of 'special circumstances' McCarthy J. (with whom Finlay C.J. and Hederman J. agreed) stated, at p.258:-
"Without attempting to make an exhaustive list, it would seem relevant to consider such matters as:
(i) Has a prima facie case been made to the effect that the liability identified by the section flows from the wrong allegedly committed by the party seeking security?
(ii) Is there an arguable case stated in the motion of appeal?
(iii) Has there been undue delay by the moving party?"
However, there is no exhaustive list of 'special circumstances'.
22. The Law of Private Companies, Courtney, 2nd Edition, p.281 paragraph 6.042, notes that reported judgments have held the following matters to be 'special circumstances', i.e.:
(i) Lack of bona fides by the applicant,
(ii) The company's insolvency having been caused by the applicant,
(iii) The company seeking to vindicate the public interest,
(iv) The existence of a natural co-plaintiff,
(v) The applicant's delay in applying for an order for security for costs.

23. It is necessary therefore to consider the special circumstances advanced by the appellant in this case. The special circumstances must be considered in the context that this is a case under the Remedies Directive. The following issues would appear to arise:-
(i) Is it possible to make an order requiring provision of security for costs in an application for the review of the award of public contracts pursuant to the Remedies Directive, and,
(ii) if it is possible, whether it is appropriate on the facts of the present case to order such security. This raises, inter alia, the timespan of the case prior to the issue of the motions for security of costs, and issues of delay.
24. Issue No. 1
Is it possible to make an order requiring the provision of security for costs in the application for review of the award of a public contract pursuant to the Remedies Directive?

I agree with, and would affirm, the decision of the learned trial judge that the EC Directives do not preclude an application for security of costs. Therefore I would dismiss any appeal based on this ground.

25. Issue No. 2
Is it appropriate on the facts of the case to order security, given the delays in moving the motions?
This is the issue of delay. There are several aspects of the law on delay which are relevant.

26. Delay - General Domestic Law
I shall consider first whether there was delay by the respondents so as to disentitle them under domestic law to security for costs. It was submitted that because of the delay by the respondents in seeking an order for security for costs this Court should, as a matter of discretion, substitute its own exercise of discretion for that of the High Court, and reverse the decision.

The issue of delay was before the High Court and rejected. The facts of the case are important. The statement of grounds was filed on the 7th May, 2002, with the motion and the grounding affidavit. It is a complex case, both in law and on the facts, as may be seen from the statement of grounds and exhibits thereto. Campus delivered its Statement of Opposition on 27th September, 2002, together with a replying affidavit.

On the 22nd November, 2002 a letter was sent from the Chief State Solicitor on behalf of the second to fourth respondents requesting security for costs. On 16th December, 2002 a similar letter was written by Campus's solicitors; this was refused by letter of 20th December, 2002.

In January the applicant delivered replying affidavits, which were sworn on the 8th January, 2003. As a consequence replying affidavits were filed on behalf of Waterworld and Campus in February, 2003. The case had been transferred to the List to fix Dates.

The motion for security for costs on behalf of Campus was issued on the 3rd March, 2003. The State had already issued a motion for security of costs on 11th February, 2003.

The nature of a delay, in order to be a basis for refusing to grant security for costs against a corporation, must be of an undue and substantial kind. Delay may be a 'special circumstance'. As was stated in Hidden Ireland Holidays Limited v. Indigo Services Limited [2005] 2 IR 115 by Fennelly J. at p.122:-
"A review of the authorities shows that delay in applying for security may, depending on the circumstances, be a ground for refusing security. The court will look at the facts of the particular case, the impact of the delay, other surrounding circumstances, and, in the end, will seek to find a fair balance.
I would add that this Court will normally respect the discretionary character of a High Court decision under section 390. It will be slow to set aside a decision arrived by a judge who has considered the facts and weighed all the arguments appropriately. In this case, however, the learned judge made no mention whatever, in his decision of the issue of delay upon which the plaintiff had specifically relied. Consequently, his discretion was exercised without advertence to a key element in the case and it falls to this Court to exercise its discretion de novo."

In this case, contrary to the position in Hidden Ireland, the learned trial judge considered the issue of delay, the facts and the law, and expressly exercised his discretion on the issue. However, the decision was based on the facts of the case as set out in affidavits. It is not a situation where the High Court decision was determined on oral evidence, or where credibility of a witness was in issue. Thus, while respecting the decision of the High Court, the decision is open for review. This review is in the context of the Remedies Directive.

There was delay in this case. The proceedings commenced on 7th May, 2002, and the Statement of Opposition was filed in September, 2002. Yet the motions for security for costs were not brought until February and March, 2003.

In the circumstances of an application for judicial review, where parties are required to act promptly, in seeking a speedy remedy, this was delay.

27. Delay - Specific Public Contract Law
The requirement of rapid proceedings was the subject matter of specific rules in the Rules of the Superior Courts, relating to public contracts. Order 84A of the Rules of the Superior Courts set out the rules for the review of the award of a public contract. This order restates and stresses the requirement of promptness. Order 84A r.2 states that:-
"An application pursuant to the Regulations for the review of a decision to award or the award of a public contract within the scope of the Directives shall be made to the Court in accordance with the provision of this Order."

Order 84A r.4 requires that:-
"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 that there is good reason for extending such period. [emphasis added].

This stress on time is to be seen in Order 84A r.6 which states:-
"Any contracting authority or notice party who intends to oppose the application for review shall file in the Central Office a statement setting out concisely the grounds for such opposition and if any facts are relied on therein an affidavit verifying such facts. A copy of such statement and affidavit (if any) shall be served on all other parties not later than 7 days from the date of service of the notice of motion or such other period as the Court may direct." [emphasis added]

These rules, which prescribe procedures for the review by the High Court of a public contract, set out strict time limits. The rules emphasise that there be an early and prompt review of the award of a public contract. The rules implement the requirements of the Remedies Directive that relevant decisions, in this case a public contract, be reviewed effectively and, in particular, as rapidly as possible.

I am satisfied that there was delay contrary to the procedures to review public contracts. The delay in seeking the order for security for costs was contrary to the express and implied terms of the rules, national and European, for the review of such contracts. The review is required to be rapid. Yet these motions were brought months after the knowledge that security for costs would not be given, and after the Statement of Opposition was filed.

The consequence is that the delay in bringing the application for security for costs, and the delay in the determination of this issue, (for which the State is responsible) "impairs the effective implementation of the Community Directives on the award of public contracts", see Grossman Air Service v. Austria Case C-230/02 Judgment of 12 February 2004.

The State (and this includes the Courts) has an obligation to ensure that the decision relating to the public contract be reviewed as effectively and rapidly as possible. An application for security for costs should not infringe this, and should be brought and determined within the overall time frame set out in the Remedies Directive and Order 84A.

I interpret the Remedies Directive as excluding the application of national rules relating to security for costs where the delay arising from such applications would impair the right to an effective and rapid remedy. In SIAC Construction v. Mayo County Council [2002] 3 IR 148 Fennelly J., with whom the other members of the Court agreed, stated:
"Council Directive 89/665/EEC of 21 December 1989 on the co-ordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ No 1 395/33 of 30 December 1989) requires a fresh and different form of summary procedure more suited to the Community law nature of the remedy especially the principle of effectiveness."

I endorse the requirements of a fresh approach to procedures to obtain the effective and rapid remedy required.

As I stated in Dekra Eireann Teo v. Minister for Environment and Local Government [2003] IESC, 25 at p.10:-
"At issue in this case is a specialist area of judicial review and the construction of the relevant rules as to time limits. Judicial review litigation has expanded rapidly over the last twenty years. With the growth in public authority decisions has come an expansion of review of such decisions. Further, there has been a growth in specialist legislation and rules as to judicial review. In this case the relevant law and practice is that of public procurement contracts. An essential feature of both European law and the consequent Superior Court Rules is a policy of urgency and rapidity which is required in such judicial reviews. Thus, the Council Directive 89/665EEC of 21st December, 1989, Article 1 requires that ‘decisions taken by the contracting authorities be reviewed effectively, and, in particular, as rapidly as possible’. In national law an application under Order 84, rule 4 to review a decision to award, or the award of, a public contract (a) shall be made at the earliest opportunity, (b) and in any event within three months from the date when grounds for the application first arise, (c) unless the Court considers that there is good reason for extending such period.
This rule applies to a decision to award, or the award of, a public contract and is a specialist area of judicial review. The rules reflect a policy that such reviews be taken effectively and as rapidly as possible."

That statement applies to the facts of this case also. The delays arising from the motions for security for costs in these review proceedings are such that they could not comply with the Remedies Directive. Consequently, they are 'special circumstances' and in all the circumstances of the case the motions for security for costs should be refused.

28. In light of this decision on the issue of delay, the issues on the cross appeal do not arise.

29. Conclusion
On the facts of the case, in the special circumstances of proceedings under Order 84A and the Remedies Directive, there was delay so as to deny Campus and the State an order for security for costs. I am satisfied that proceedings brought under the Remedies Directive and Order 84A of the Rules of the Superior Courts require rapid proceedings. The approach required is similar to the case management in both the Commercial and Competition Courts, where cases are heard without delay and in a cost minimising manner. Anything other than a rapid application for security for costs is not consistent with the process. In this case the respondents failed to make an application rapidly. I am satisfied that this is a special circumstance upon which the applications for security for costs should be refused.

I appreciate that there is a certain irony in this decision, given the delays in the court system in processing this matter. However, two wrongs do not make a right. While the court delays may be relevant to other aspects of the case, the law is quite clear in requiring rapid proceedings in the judicial review of a public contract, and this applies to subsidiary motions in such proceedings. In this case there was such delay in seeking the security for costs that, bearing in mind the nature of the proceedings, there are special circumstances justifying the refusal of orders for security for costs; the delay defeats the motions.

Therefore, I would allow the appeal and dismiss the cross appeal.