Application for permission to bring judicial review

[2025]JCA005

Court of Appeal

6 January 2025

Before     :

Sir William Bailhache,  President; Helen Mountfield KC JA, and; The Rt Hon James Wolffe KC JA.

 

Advocate R. J. McNulty for the Appellant/Respondent.

Advocate M. St J. O’Connell for the Respondent to Appeal and Cross-Appellant.

Advocate S. Williams for the Interested Party.

DECISION AND SUMMARY OF REASONS

mountfield ja:

Introduction

1.        This hearing is to hand down our decision in relation to the applications for leave to appeal the decisions of the Royal Court (Commissioner Thompson) on 20 and 31 December 2024.  There were three applications for leave, which all arose from an application to bring proceedings for judicial review in relation to the Minister’s decision to grant DFDS preferred status as the successful bidder in the contract for the provision of ferry services to the Island of Jersey for a minimum period of 15 years with effect from 25 March 2025, when the current contract which is held by Condor Ferries Limited (“Condor”) expires.  The ferry services which form the subject matter of these proceedings are lifeline services for the Island of Jersey, being the means by which essential supplies are brought to the island.

2.        In the latter stages of the procurement process, there were two bidders for this contract: Bretagne Angleterre Irlande SA (“Brittany Ferries” ) is the 51% shareholder of Condor Ferries (the proposed operator), and another ferry service provider called DFDS/AS (“DFDS”).  As unsuccessful bidder, Brittany Ferries, sought to challenge two decisions by way of judicial review.  The first was the Minister’s decision of 7 November 2024 to terminate an earlier procurement exercise.  The second challenge was to the decision of 3 December 2024 to award the franchise from March 2025 to DFDS, the successful bidder.

3.        The proceedings were lodged on 18 December 2024, but necessarily the courts moved quickly, because of the extreme importance of matters proceeding swiftly to ensure that these services continue to be in place from the end of the existing contracted provision and the start of the new contract.  We will set out a little more detail about the background to the appeals before us in a moment.

4.        In summary, we heard three appeals on 3 January 2025, against the Commissioner’s decisions of 20 and 31 December 2024.  (We gave notice to the parties prior to the appeal that given the urgency in dealing with the matters raised, we would hear the applications for leave and the substantive appeals together). 

This is our decision in relation to those applications.

Our decision on the appeals

Our decisions are:

(i)        We allow the application by the Interested Party, DFDS, to appeal against the refusal to set aside the leave given to Brittany Ferries to challenge the decision of 3 December 2024 by way of judicial review and allow the appeal.

(ii)       We refuse the application by Brittany Ferries for leave to appeal against the Commissioner’s decision to refuse permission to challenge the decision of 7 November 2024 to terminate an earlier procurement process which had been commenced by the States of Guernsey and the Government of Jersey jointly, to commission ferry services to the islands of Jersey and Guernsey.  We also refuse Brittany Ferries’ application for leave to appeal against the Commissioner’s decision to refuse them permission to challenge the decision of 3 December 2024 on the basis of an alleged failure to give adequate reasons for the decision.

(iii)      It follows that the judicial review proceedings are at an end, and we set aside the grant of permission and vacate the hearing listed for 13 and 14 January 2025.

(iv)     It also follows that we also grant the Minister leave to  appeal against the Commissioner’s decision to grant permission to challenge his decision by way of judicial review and allow the appeal. 

(v)      We are presently minded to award the costs of and occasioned by this appeal to the Minister and to DFDS as the successful appellants.  However, this is subject to any submissions which the parties may wish to make on this, and we will set out a timetable acceptable to the parties for the making and consideration of such submissions.

5.        A fully reasoned judgment will be handed down at a later date.  We give brief reasons for our decisions now – which will be expanded upon in the judgment to come.  The written reasons which will follow in due course will be the authoritative judgment.

A short summary of the factual background

6.        A summary, which he recognised would necessarily be partial and incomplete, of the general factual background to this challenge was set out in the Commissioner’s judgment of 24 December 2024 at paragraphs 3-65 (Bretagne Angleterre Irlande SA v Minister for Sustainable Economic Development [2024] JRC 292).  It is unnecessary to repeat it here.

7.        In short, the current procurement process arose after the termination of an earlier procurement process, referred to by the Commissioner as the Channel Island Procurement Process which ran between May and October 2024, and intended to be held jointly with the States of Guernsey.  The Channel Island Procurement Process had resulted in two bidders submitting tenders and invitations to negotiate: Brittany Ferries and DFDS.

8.        At the end of that process, the States of Guernsey considered that Brittany Ferries had the stronger bid.  The Government of Jersey had further questions which it considered should be addressed before a decision was reached.  However, on 30 October 2024, the States of Guernsey reached a unilateral decision to procure services from March 2025 from Brittany Ferries, without awaiting the result of enquiries which the States of Jersey considered necessary to reach a proper decision.  On the same date, the Chief Minister and the Minister requested Brittany Ferries attend a meeting to answer some questions they had in relation to the bid.  A further question about which party – Brittany Ferries or Condor – would be the counter-party, was put in writing on 1 November 2024, and Brittany Ferries responded.

9.        On 6 November 2024, Mr Andrew Scate, Senior Responsible Officer for the procurement process informed Brittany Ferries orally (and confirmed in writing on 7 November 2024) that the  joint Channel Island Procurement process was terminated (as paragraphs 3.2 and 105 of the Invitation to Tender permitted).

10.     Mr Scate informed Brittany Ferries that the Government of Jersey would start a fresh procurement process for a ‘Jersey-only’ Ferry Services Operator.  He said that it would not be appropriate to compromise or contaminate this new process (i.e. act unfairly to other prospective bidders) by entering discussions about the terminated process ahead of the launch of the new one.  Condor was invited to extend the existing contract by seven months so as to allow the new procurement process to be conducted.

11.      On 11 November 2024, Mr Mathieu of Brittany Ferries raised concerns about what he said were lack of openness and transparency about the reasons for termination.  He also raised concerns about potential bias, arising from two matters.  The first was the previous involvement of a Senior Responsible Officer, Mr Corrigan, who had expressed views on the best bidder in the previous process in the course of a public consultation on the matter.  (That SRO had since recused himself and taken no further part in the process: he was not a decision maker).  The second of public observations of Deputy Kirsten Morel, which he said indicated bias against Brittany Ferries.

12.     Critically to this appeal, he said that he “explained that Condor would not be able to accept the proposed 7 month contract extension”.  He also explained that BAI/Condor did not intend to participate in the process described for a Jersey-only solution given what he said was a “lack of confidence in the integrity and impartiality of Deputy Morel”.

13.     On 13 November 2024, the Minister made a public statement in the States of Jersey which was subsequently relied upon, together with the involvement of Mr Corrigan in the Channel Island Process, as indicating apparent bias in favour of DFDS.

14.     However, following further correspondence (which included an explanation by the Chief Minister to Mr Mathieu that ‘we remain in a process with DFDS and we must be fair and equitable to all parties’ and specific encouragement to Brittany Ferries to participate in the Jersey-only process, they decided on 18 November 2024 to set aside their decision not to participate, and indicated that they would participate in the new tender process, albeit ‘reserving all rights’ in relation to a prospective challenge to the impartiality of the Minister.  Brittany Ferries did indeed lodge a tender on 27 November 2024.  In this tender, it was the bidder and operator, with Condor Ferries discharging the obligations of operator by way of subcontract.

15.     Pausing there, we see it as a significant part of the factual background in this case that the Minister invited Condor to extend the existing contract by seven months to allow a fresh procurement exercise to be considered and undertaken, but Brittany Ferries as Condor’s parent company refused that request.  This is essential background.  It meant that the second procurement process had to be undertaken with great haste.  Affidavit evidence put in on the eve of the 18 December hearing on behalf of the Minister explained the way the Minister went about this process, which involved:

(i)        Taking active steps to encourage both previous bidders to bid in the second process;

(ii)       Publishing new (slightly adjusted) criteria - using essentially similar criteria to the previous procurement process but, among other changes, amending the terms of the legal criterion which had resulted in a ‘technical fail’ for DFDS in the Channel Island Process;

(iii)      More extensive involvement than in the first process of external consultants, KPMG, to assist with the assessment and scoring of the two bids;

(iv)     Independent separate assessments of the bids by civil servants, who put in affidavit evidence (to us – not available at the time of the expedited leave hearing before the Commissioner) as to the process they undertook and their reasoning.

16.      On 3^rd December 2024 Mr Scate telephoned Brittany Ferries to inform them of the Minister’s decision that following the expedited second process, the  contract for Ferry Services from 25 March 2025 would be awarded to DFDS.  This decision was communicated in writing on 4 December 2024.

17.     Mr Mathieu says that he complained that no reasons were given for the decision in the telephone conversation on 3^rd December 2024, but external legal advisors retained by Brittany Ferries first wrote to seek reasons both for the decision to award the contract to DFDS and the earlier decision of 7 November 2024 to terminate the Channel Island Procurement Process more than a week later, on 11 December 2024.  Mr Scate responded setting out scores and reasons in an Excel spreadsheet which had been used to ‘objectively assess and give value to the key criteria across each of the bids’ as evaluated and overseen by KPMG along with GoJ Technical advisors”.  On the basis of those scores, DFDS scored 74% and BAI scored 55%.  Mr Scate also gave a brief narrative synopsis of the differences between the bids, quoted in paragraphs 38 and 41 of the Commissioner’s decision.

18.     Mr Scate’s evidence on behalf of the Minister summarised concerns about the Brittany Ferries bid and stated (at paragraph 9.9):

“I wouldn’t say we were biased.  I certainly think we were looking for a company that does not have clear and present financial issues, which would mean that these services cease operating which would put Lifeline Services at risk.  We don’t want that.  We want a service that just operates properly and that we don’t have to worry about.  And that, fundamentally, is what we have been trying to achieve”.

19.     The contract for provision of Ferry Services with DFDS was indeed entered into on 31 December 2024 (when a stay agreed by the Minister came to an end), and DFDS has lodged evidence explaining the extensive logistical steps it has taken including tens of millions of euros of expenditure, to ensure that it is in a position to commission these services by March 2025. 

The Proceedings giving rise to these appeals

20.     The application by Brittany Ferries for leave to bring proceedings for judicial review was lodged on 18 December 2024, and heard on 20 December 2024.  The parties were agreed as to the test for leave, which is that set out in the decision of the Privy Council in Sharma v Browne-Antoine [2006] 1 WLR 780 at para 14.4

“The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy …. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued.  It is a test which is flexible in its application”.

21.     On 20 December 2024, the Commissioner granted leave to apply for judicial review of the decision reached on 3 December 2024 by the Minister for Sustainable Economic Development (“the Minister”) not to award a long-term ferry contract to Brittany Ferries and instead to award it the Interested Party, DFDS.  He granted that leave on limited grounds: allegations of a breach of the duty of procedural fairness and apparent bias.  He refused permission on the basis of an allegation of failure to provide reasons.

22.     First, he granted leave only in respect of the 3 December 2024 decision to award the contract to DFDS.  He refused to grant leave to challenge the earlier decision of the Minister, notified to Brittany Ferries on 6 November 2024, in relation to the earlier joint procurement exercise with the States of Guernsey.

23.     Secondly, he granted leave only on the grounds of alleged procedural fairness and apparent bias.  He restricted his decision on arguability on grounds of apparent bias to the statement of the Minister on 13 November to the States and whether there was evidence of predisposition towards DFDS on that basis, and on the basis of the alteration of the criterion on the basis of which DFDS had scored a mandatory fail in the Channel Islands Process.  He refused to consider the prior involvement of Mr Corrigan in the first process, who was by then out of the picture, and observed that “Brittany Ferries only just got over the threshold for giving leave on this ground”.  He refused leave in relation to a third intended ground of challenge, namely a failure to give adequate reasons for the decision of 3 December 2024.

24.     He also observed (para 133) that the decision on leave may have significant ramifications for the Government of Jersey and its desire to enter into a contract with DFDS, but held that ‘that is not a relevant consideration in relation to whether or not to grant leave if the relevant test is met and a trial is required…’.

25.     DFDS subsequently brought an application under Royal Court Rule 16/6 to set aside the decision to grant leave on the basis of delay and its consequences in relation to detriment to good public administration and third party interests.  It submitted that this was an argument in relation to which it contended Brittany Ferries had not been entirely frank (as to the date of its state of knowledge about the remedies open to it), and which the Commissioner had not addressed in his 20 December decision or 24 December judgment.  DFDS submitted that it suffered serious prejudice as a result of this delay – a submission supported by evidence lodged by DFDS and summarised in its skeleton argument.  It averred that the Commissioner had erred in failing to address these matters, which were not properly put before the Court.  These submissions were supported by the Minister.  

26.     In view of the urgency of the matter, and the importance of the decision to award a new ferry contract for Jersey, the learned Commissioner considered this application on the papers only.  On 31 December, he handed down written reasons for refusing it (Bretagne Angleterre Irlande SA v Minister for Sustainable Economic Development [2024] JRC 297).

Short Summary of our reasons

27.     We have convened the Court today to give our decision on the applications before us.  We are providing a short summary of our reasons for the decisions now, to assist with public understanding of them.  However, the authoritative written reasons for the decisions will follow in due course.

28.     In short, we consider the Commissioner was mistaken in the approach which he took to determining the set aside application.  In our view, the application for leave was insufficiently prompt, and the grant of relief would cause substantial prejudice to the rights of DFDS and – more importantly – detriment to good public administration and the safety of the Island.

29.     Rule 16/3 of the Royal Court Rules provides, in rule 16/3 (1) and (2) that leave to apply for judicial review must be brought “promptly, and in any event not later than 3 months from the date when grounds for the application first arose” and that “the Bailiff may refuse an application made within the period of 3 months if satisfied that the application is not sufficiently prompt AND that if the relief sought were granted, on an application made at this stage, it would be likely to cause substantial hardship to, or substantial prejudice to, the rights of any person or be detrimental to good administration”.

30.     There is accordingly a duty on an applicant for judicial review to bring the application promptly.  The question of whether an application has been brought sufficiently promptly will depend on the circumstances.  In particular, the impact of the passage of time on third parties and on good administration is a material consideration in determining whether or not an application has been brought sufficiently promptly.

31.      There is extensive authority – which we will set out in our full judgment in due course – that in a case where delay may cause serious detriment to the public interest in terms of good public administration, and/or commercial interests, then an application may require to be brought within days not weeks or months.  Moreover, what amounts to a ‘prompt’ application depends in part on the applicant’s state of knowledge and when grounds first arose.

32.     That is highly material here.  There was an obvious need for arrangements to be put in place quickly for these lifeline ferry services.  The urgency was in large part created by Brittany Ferries decision not to extend the existing contract beyond March 2025.  It was or should have been obvious that binding contractual commitments would be entered into quickly after the preferred bidder was identified.  DFDS’ evidence explains the financial and practical implications for it.

33.     Brittany Ferries were alert to the factual basis for their allegation that the Minister had failed to explain the basis for the Jersey government’s decision in relation to termination of the first process when that process was terminated – i.e. around 7 November.  The Minister’s remarks upon which they relied were made on 13 November.  So time for bringing such a challenge started to run from those dates.  It was not open to Brittany to ‘keep the penny and have the bun’ by ‘reserving its position’ in relation to those allegations while both participating in the second tender process, and declining to extend its existing service so that the essential supplies to the island would be secured during the conduct of that process.

34.     We see some force of the argument advanced, under reference to the case of Joseph Gleave and Son Limited v Secretary of State for Defence [2017] EWHC 238 (TCC), to the extent that it may have been rational for Brittany Ferries to withhold the actual lodging of its application for judicial review until after it saw whether or not it might become academic.  (If it had won the second tender, there would have been no relief to seek).  But even if Brittany Ferries thought it had the basis for a claim, we consider that it should have been preparing its challenge at least immediately after lodging its second tender (on 27 November) and have been ready to lodge within days of the written decision of 4 December, if not on that day.

35.     This mattered because the Government of Jersey could not guarantee the ongoing provision of essential supplies without a ferry service, and Brittany Ferries had refused to extend its contract so as to enable a less curtailed process to take place.  (It is irrelevant that at a later date it sought to reconsider that decision – by then the second process was necessarily underway).  DFDS had bid again in good faith, and was lining up services to ensure it could fulfil its contract with the Minister by 25 March 2025.  For the Government to decide not to proceed with this contract would have caused serious detriment to good public administration.

36.     We accordingly conclude that the application was not brought sufficiently promptly.  To grant relief on this application would be significantly detrimental to good administration.  Such is the prejudice to good administration (and to the interests of DFDS), that we consider the delay itself to be prima facie sufficient to set aside the leave which has been granted.

37.     We bear in mind that the arguable merits of the underlying judicial review are a matter to be balanced against the discretionary bar of delay (as explained in Sharma).  However, for reasons we will set out in more detail in our written judgment, we consider the arguments, so far as arguable to be weak.  We do not consider it arguable that the Minister was in breach of any duty to give reasons for terminating the first tender process, and accordingly we do not consider the second process was tainted by procedural unfairness for his failure to do so.  Assuming that the Minister’s statement to the States of Jersey on 13 November 2024 is admissible (which we do not need to decide), we consider that the argument in relation to apparent bias is also very weak.  And even if there were an arguable case on the failure to give adequate reasons (which the Commissioner did not accept), this would not be sufficiently strong to outweigh the detriment to good administration caused by delay.  In any event, the affidavit evidence now lodged on behalf of the Minister makes good any possible inadequacy in the initial reasons given.

38.     For these reasons, we set aside the leave previously granted to apply for judicial review.  In short, having regard to the test in Sharma there is no arguable ground for judicial review which has a realistic prospect of success which is not subject to a discretionary bar.  We have indicated that we will decide costs at a later date, if those cannot be agreed.

Authorities

Bretagne Angleterre Irlande SA v Minister for Sustainable Economic Development [2024] JRC 292.

Sharma v Browne-Antoine [2006] 1 WLR 780.

Bretagne Angleterre Irlande SA v Minister for Sustainable Economic Development [2024] JRC 297.

Joseph Gleave and Son Limited v Secretary of State for Defence [2017] EWHC 238 (TCC)