The High Court has ordered Sanofi Aventis Ireland Ltd to pay GlaxoSmithKline Ireland Ltd’s costs for specific work in a challenge to a public contract for the supply of a six-in-one vaccine. Glaxo’s application for its full costs was refused.
Mr Justice Denis McDonald delivered the costs judgment on 14 December 2018. The underlying challenge concerned the Health Service Executive’s award of a five-year vaccine supply contract to Glaxo, beginning in January 2018. Sanofi, an unsuccessful tenderer, challenged the award on several grounds.
In an earlier judgment on 12 October 2018, the court rejected Sanofi’s case except for a limited finding that the HSE had not given adequate reasons on two award sub-sub-criteria. The judge decided that setting aside the contract award would be disproportionate. The costs judgment dealt only with Glaxo’s application, made on 30 November.
Glaxo argued that its commercial interests, concerns about confidential tender information and Sanofi’s claims about the rival vaccine justified full costs. Sanofi accepted that confidentiality was a legitimate concern, but argued that the HSE had fully defended the challenge and that Glaxo’s participation had added little to the evidence and submissions before the court.
The judge found that Glaxo had a significant commercial interest and was justified in filing evidence about Sanofi’s claims and protecting confidential information. But the HSE had mounted a comprehensive defence. The judge said Glaxo’s evidence did not substantially add to the HSE’s evidence, and he had not relied on Glaxo’s evidence or submissions when deciding the earlier challenge.
The order allows Glaxo its party-and-party costs against Sanofi for its joinder application, preparing and filing affidavit evidence, addressing confidentiality including negotiating a redaction protocol, obtaining the overnight transcript, and having solicitors and counsel review that transcript. The court refused Glaxo’s application for the balance of its costs, including the costs of fully participating in the proceedings. The judgment did not alter the earlier decision on the contract award.