The Court of Appeal has refused Student Transport Scheme Limited permission to introduce two documents as fresh evidence in its appeal over the school transport scheme, ruling that both could have been obtained with reasonable diligence before the High Court hearing.
The application concerned a 2009 report by accountants Farrell Grant Sparks and a 2011 Department of Education review of current expenditure. The court was considering only whether to admit those documents and whether EU law required a less stringent test. It did not decide the underlying appeal or revisit the High Court’s conclusion on the procurement issue.
The company’s judicial review challenge concerned an alleged public contract between the Department of Education and Bus Éireann for the 2011-2012 school year, which it said should have been put out to tender. The High Court rejected the challenge in 2012, finding that the school transport scheme was an administrative scheme rather than a contract for the purposes of procurement rules. The Court of Appeal said it was neither necessary nor appropriate to express a view on the correctness of that conclusion in deciding this application.
On the Farrell Grant Sparks report, the court noted that the company knew of the report during discovery in the High Court proceedings and had sought voluntary discovery of it. After the Department’s solicitors said the report was outside the agreed categories of discovery, the company was told it could apply for further discovery. It chose not to bring that application. The court rejected the company’s submission that the report had been inadequately described, finding it had been put on notice of its existence and could have pursued discovery.
The Department’s expenditure review, which included a section on school transport, had been published on the Department’s website in December 2011, months before discovery took place. The court concluded that this document also could have been obtained with reasonable diligence.
Applying the three-part test set out by the Supreme Court in Murphy v Minister for Defence, the court held that the company failed the first requirement: the evidence had to be unavailable at the time of the High Court hearing despite reasonable diligence. Because both documents failed that requirement, the court did not need to examine the other criteria, which concern likely influence on the outcome and credibility.
The company also argued that the test should be relaxed because the appeal engaged EU law and public procurement rules. The court rejected that argument, concluding that the test applied equally to EU and domestic claims and did not make the exercise of EU rights practically impossible or excessively difficult. The court therefore refused permission to admit either category of documents as fresh evidence.