The Supreme Court allowed Dublin International Arena Limited’s appeal and refused applications by Campus and Stadium Ireland Development Limited and the State for security for costs in a challenge to the award of the National Aquatic Centre contract. It dismissed the State’s cross-appeal.
The Court held that security for costs is not automatically barred in proceedings under the EU Remedies Directive. But it found special circumstances in this case: the applications were made months after the respondents knew security would not be provided, and after their opposition had been filed. That delay was inconsistent with the requirement for effective and rapid review of public contract decisions.
The underlying judicial review was brought in May 2002. It challenged the award of a contract to design, build, finance, operate and maintain the National Aquatic Centre at Abbotstown for 30 years. Campus organised the tender competition. Waterworld was ranked first in December 2000, and a contract with it appears to have been made in February 2002.
The High Court had ordered Dublin International Arena to provide full security for Campus’s costs and one third of the costs of the Minister for Tourism, Sport and Recreation, Ireland and the Attorney General. The company appealed. The State cross-appealed, arguing that its application should also have been treated as one under section 390 of the Companies Act 1963.
The Supreme Court noted that the appellant company had nominal assets and was not in a position to meet the respondents’ costs if they succeeded. That ordinarily placed the burden on the company to establish special circumstances for refusing security. The Court also agreed that the Remedies Directive does not itself preclude security applications.
However, the Court found that the State’s application was issued in February 2003 and Campus’s in March 2003, after opposition documents had been filed and the case had been listed to fix dates. The State had sought security by letter in November 2002; Campus wrote in December, and the request was refused that month. The Court said the delay in bringing and determining the motions could impair the effective and rapid remedy required in public contract reviews.
The Court therefore found the delay to be a special circumstance justifying refusal of both applications. It allowed the appeal, refused the security orders, and dismissed the cross-appeal. It did not determine the underlying challenge to the contract award.