The Supreme Court has refused Student Transport Scheme Limited’s application to reopen its 2016 decision refusing the company leave to appeal in a dispute over Ireland’s school transport scheme.
The application relied on a 2017 report by the Comptroller and Auditor General and two letters sent by the European Commission to the Irish State in 2019. Student Transport argued that the material cast doubt on evidence about whether Bus Éireann made a profit from the scheme and on whether the scheme met the European Union’s in-house exemption from procurement rules. It alleged that misleading information had been put before the High Court and Court of Appeal.
The Minister for Education and Skills and Bus Éireann disputed those claims. They said the report did not establish that Bus Éireann profited from the scheme, and that the Commission correspondence did not amount to a finding of an infringement. The judgment records these as opposing submissions; it does not make a finding that either party misled a court.
The underlying judicial review, brought in 2011, challenged the Minister’s alleged failure to put the school transport arrangements out to tender. The High Court dismissed the claim on four grounds. The Court of Appeal dismissed Student Transport’s appeal on different grounds, including that no written contract within the relevant procurement rules had been established and that the arrangements were of indefinite duration. It also rejected the High Court’s conclusion on the pecuniary-interest issue, applying intervening EU case law.
Chief Justice Frank Clarke said the Supreme Court’s exceptional power to reopen a final decision applies to a refusal of leave to appeal, but requires a very high threshold. An applicant must show a fundamental flaw in the process leading to that decision, such that it should be treated as a nullity. New evidence or a claim that an earlier decision was wrong is not, by itself, enough.
The Court found no material allegation that the 2016 leave process itself was flawed. Student Transport’s case instead concerned alleged failures of transparency in the proceedings before the lower courts. The Chief Justice said it was unclear whether such a breach could ever justify setting aside a final decision. If a claim of fraud, or a potentially available claim based on lack of transparency, were pursued, it would need to be brought in plenary proceedings in the High Court, where evidence could be tested.
The Supreme Court therefore refused the application. It did not decide that the allegations of misleading evidence or lack of transparency were established, nor did it reopen the underlying procurement case.