The High Court made no order as to costs after a preliminary issue in a challenge by the Veolia Water Consortium to Fingal County Council’s award of a water metering contract.
Mr Justice Clarke said the parties had equally valid claims to have succeeded on the issue, which concerned whether Veolia’s proceedings were out of time and whether time should be extended. The hearing lasted six days.
An earlier judgment found Veolia out of time, but extended time for one group of grounds and refused it for another. In a further judgment delivered on 22 June 2006, the judge held that Veolia had met the low threshold of arguability on its “upgradeability” ground, allowing time to be extended for that group as well.
The combined effect was that Veolia could pursue two of its three groups of grounds. Time was not extended for grounds alleging that Fingal breached its obligations in the award process by evaluating competing tenders for ranking purposes without reference to “provisional items”. Those allegations were not determined on their merits in this costs judgment.
The parties disagreed over who had won the preliminary issue. Fingal argued that it had succeeded by excluding grounds that were time-barred. Veolia argued that Fingal had sought a preliminary hearing in the hope of ending the proceedings altogether, and had failed to achieve that result.
The judge said both arguments had merit. He also considered the time spent on the issues: Fingal had succeeded on a legal question about when time began to run, while Veolia obtained extensions for two groups of grounds. The issues were interlinked, and the time devoted to them came out roughly equally for each side.
The judge concluded that the unusual circumstances justified no order as to costs. He added that if Fingal were treated as the successful party, a costs award based on a four-day hearing would have been appropriate; if Veolia were treated as successful, the award would have been based on a two-day hearing. Those were alternative assessments, not the order made.