The High Court refused the Minister for Culture, Heritage and the Gaeltacht’s application to pause an order quashing a fast ferry tender award while an appeal is considered. The contract covered a service period that ended more than two years before the court’s ruling on the stay.
In a supplementary judgment delivered on 28 July 2023, Ms Justice O’Regan addressed costs, the form of the order and a possible stay. The judgment followed the court’s principal judgment of 11 July 2023 in Liam Ó Dubhgain trading as WD Duggan’s judicial review of the Minister’s decision to award the contract to an anonymised affected party.
The court directed that the applicant’s costs be adjudicated, if the parties cannot agree, on the basis of a one-day hearing. Costs connected with an expert report and related affidavits are excluded. The judge said the pleaded case, apart from a manifest-error point, could have been heard in one day. Although the manifest-error issue did not take court time at the hearing, it had required the respondent to spend time and resources beforehand. The judge also found that unpleaded issues and material relating to the expert report took up a considerable part of the two-day hearing.
The judge made an order of certiorari quashing the Minister’s decision, set out in a letter dated 15 April 2019, to award the contract to the affected party. She declined the Minister’s request for a further hearing on the order’s form.
The Minister argued that putting the order into effect before an appeal could make the appeal moot and harm the affected party. The judge noted that the tender process concerned a fast ferry passenger service from 1 May 2019 to 30 April 2021, and found that the Minister had not identified specific prejudice from the order taking effect without a stay.
The judge said the Minister’s appeal submissions did not provide enough detail to assess most of the proposed grounds. She found an arguable ground concerning the “customer service” selection criterion, which the Minister said was outside the pleaded case. But even if that argument succeeded, the judge said other criteria could still account for 50 points potentially lost by the applicant, against a 20-point difference between the parties’ scores. She concluded that this ground would not materially change the outcome.
The stay on the main order was refused. A stay on adjudication and payment of costs will apply for 28 days from perfection of the order, and will continue if the Minister lodges an appeal within that period. Otherwise, it will lapse.