The Court of Appeal has ordered the Sustainable Energy Authority of Ireland (SEAI) to disclose specified parts of Abtran Unlimited Company’s tender in a public procurement challenge brought by Kerrigan Sheanon Newman Unlimited Company (KSN). It refused KSN’s separate request to place its director, Justin Travers, inside the confidentiality ring that governs access to commercially sensitive material.
In a judgment delivered on 2 October 2025, Mr Justice Brian O’Moore said the appeal concerned discovery, not the final merits of KSN’s challenge to the contract award. Justices Allen and McDonald agreed.
KSN, which had provided managing agent services to SEAI, challenged the award of a replacement contract to Abtran. Its pleaded case includes allegations that Abtran proposed an alternative methodology that did not comply with the tender documents, and that SEAI treated tenderers unequally or failed to act transparently. SEAI denies those allegations and says the tender allowed the combinations of services and methods Abtran proposed. The Court of Appeal did not decide those underlying claims.
The disputed discovery category sought relevant parts of Abtran’s tender describing its service delivery methodology, its approach to specified qualifying criteria and its proposed combination of services. The High Court had refused that request, reasoning that the dispute turned on interpreting the tender documents.
O’Moore said the case also raised questions about the actual methods Abtran proposed and whether they were permitted or involved unequal treatment. Without access to those methods, he said, KSN would be at a significant disadvantage in arguing its case. The court therefore allowed the appeal on category 6(b) and ordered discovery, restricted to members of the confidentiality ring.
The court set a deadline of 6pm on 13 October 2025 for SEAI to make discovery. It said Marion O’Brien appeared to be the appropriate person to provide the supporting affidavit.
The court dismissed KSN’s appeal over Travers’s exclusion from the confidentiality ring. It found no evidence that KSN’s retained expert needed Travers’s input to understand the documents, and accepted concerns about the practical difficulty of policing undertakings if he received access. The judgment did not change the existing confidentiality protections for other discovered material.
O’Moore’s provisional view was that the costs of the High Court discovery application and the appeal should be costs in the cause, as each side succeeded on one issue. Any party seeking a different costs order had to notify the Court of Appeal by 6pm on 13 October 2025.