The Court of Appeal has dismissed CHC Ireland DAC’s appeal over the scope of document disclosure in its challenge to the award of the Irish Coastguard Aviation Service contract to Bristow Ireland Limited.
In a judgment delivered on 15 December 2023, Mr Justice Noonan, with Ms Justice Faherty and Mr Justice O’Moore agreeing, held that the High Court’s discovery order was within the range of decisions open to the motion judge. The appeal concerned discovery only; it did not determine the validity of the contract award or CHC’s underlying procurement claims.
CHC, the incumbent provider whose contract was due to expire in 2025, alleged that the Minister provided Bristow with confidential information about “alternative training”, that the tender evaluation was deficient, that political influence affected the award, and that some evaluators had conflicts of interest. These remain allegations in the broader proceedings.
The High Court had excluded Bristow-to-Minister documents from one category of discovery concerning alternative training, finding that CHC had not put forward a credible evidential basis to show its training information was confidential. The Court of Appeal agreed. It also declined to rely on a further affidavit CHC submitted after the High Court decision, finding that it addressed matters that had arisen earlier and did not alter the result.
For evaluation materials, the High Court limited discovery to relevant, appropriately redacted sections of the evaluation report, rather than the broader set of meeting notes, individual assessments, draft reports and tender material sought by CHC. The appeal court found that this limitation was justified by the pleaded issues and the need to balance relevance and necessity against the confidentiality of tender information. CHC may apply for further discovery after reviewing the first documents, if it can show that more is needed.
The High Court had also narrowed a request for communications about who would provide the service after the existing contract expired to communications between the Minister, Senator Gerard Craughwell and other members of the Joint Oireachtas Committee on Transport and Communications relating to the new service contract. The Court of Appeal considered that a proportionate response to CHC’s reliance on a statement made by the Senator in the Seanad.
The Court of Appeal dismissed the appeal, concluding that CHC had established neither a significant error in the High Court’s order nor an injustice requiring it to be set aside.