The Court of Appeal dismissed Express Bus Ltd’s appeal against the strike-out of its damages proceedings against the National Transport Authority, ruling that the claim was out of time because it amounted in substance to a collateral challenge to a public-law decision.
The dispute concerned changes approved by the Authority in September 2014 to Dublin Bus routes 38 and 38b serving Damastown, Dublin 15. Express Bus, which had a licence for a passenger service between O’Connell Street and Damastown, alleged that the changes breached EU procurement rules because they were approved without a fresh tender process.
The company sought damages for breach of statutory duty and under the EU-law principle known as Francovich. The Authority applied to have the proceedings dismissed, arguing that they indirectly challenged the validity of its 2014 decision and had been brought outside the time limits for judicial review. The High Court struck out the case in March 2017. Express Bus appealed.
Delivering judgment on 18 July 2018, Mr Justice Gerard Hogan said the Francovich claim would require Express Bus to show that the alleged EU-law breach was “grave and manifest” or “inexcusable”. In the court’s view, establishing that claim would also require the company, at least indirectly, to challenge the validity of the Authority’s decision. The court reached the same conclusion about the domestic statutory-duty claim, even assuming such a claim could otherwise be maintained.
The Court of Appeal held that the judicial-review time limits under Order 84 of the Rules of the Superior Courts applied by analogy to the plenary proceedings. It said a party could not avoid those requirements by bringing an ordinary damages action. The court considered the claim well outside the three-month limit: Express Bus knew of the decision by February 2015 at the latest, while proceedings began in October 2015. No application to extend time had been made.
The judgment also said Dublin Bus should have been a party if the proceedings were, in substance, a challenge to the decision affecting its services. The court’s stated basis for disposing of the appeal, however, was that the claim was time-barred and had no reasonable prospect of success. It upheld the strike-out in limine. The appeal judgment did not determine whether the alleged procurement breach had occurred.