High Court of Ireland Decisions

1. By a Notice of Motion dated the 15th of June 1999, the Notice Party (hereinafter referred to as “S.G.S.”) seeks to have these Judicial Review proceedings struck out in limine due to the applicant’s failure to comply with the three month time limit prescribed in Order 84 A RSC 1986 or in the alternative due to the applicant’s inordinate and inexcusable delay in instituting these proceedings. These Judicial Review proceedings were initiated following on the respondents decision to award a contract to S.G.S. for the establishment and operation of a system for testing private cars in Ireland. The applicant (hereinafter referred to as “Dekra”), was an unsuccessful tenderer for this contract and had been informed by the respondent that it was ranked second to S.G.S. on the criteria set out in the invitation to tender.

2. Dekra is a joint venture vehicle of Dekra International S.A. C.I.E. and the Society of the Irish Motor Industry (“S.I.M.I.”) and was established to seek the National Car Testing contract. It was one of the parties that submitted a request for qualification to the respondent but did not succeed in winning the contract. The respondent awarded the contract to S.G.S. and supports S.G.S. in this Motion. S.G.S. also submitted a request for qualification to the respondent and was successful in winning the contract. S.G.S. is the moving party in this Motion.

3. E.U. Directive No. 96/96 O.J. No. L46, dated 17th of February 1996 requires Member States of the Union to introduce a system of periodic testing of the road worthiness of motor vehicles. In compliance with this Directive on the 31st of March 1998, the Irish Government launched the tendering process with the publication both in the Irish National Newspapers and in the Official Journal of the European Communities of a notice relating to the award of a contract to establish and operate such a system. On the 7th of July 1998, the applicant was one of the five undertakings invited by the respondent to submit tenders. This invitation, which stated that the target date for the award of the contract was the 11th of December 1998 was accepted by Dekra before the deadline of the 27th of September 1998.

4. On the 23rd of November 1998, following the submission of a report to the Minister, the respondent contends that a decision was made to award the contract to S.G.S.. The following day the 24th of November 1998, Dekra and the other unsuccessful tenderers were informed both verbally and in writing that “subject to contract” the tender of S.G.S. would be accepted. On the 8th of December 1998, a “debriefing” meeting was held between the representatives of Dekra and the respondent. On the 14th of December 1998, the respondent informed Dekra that the formal announcement of the award of the contract would take place the following day. Having learned from other sources that S.G.S.’s proposed re-test fee was substantially in excess of its own, Dekra through its solicitor wrote to the respondents raising this issue inter alia . Not being satisfied with the response of the respondent Dekra in another letter of the same date put the respondent on notice of its intention to seek injunctive relief unless the respondent refrained from awarding the contract to S.G.S.. A further meeting was held that evening between the representatives of Dekra and the respondent and it was agreed between these parties to meet again in order to provide a more comprehensive debriefing to Dekra. However the respondent subsequently by letter of the 5th of January 1999 informed Dekra that it did not consider further discussions on the subject appropriate.

5. On the 15th of December 1998, the award of the contract to S.G.S. was announced at a public ceremony and was signed by the respondent and a representative of S.G.S. Between then and the institution of these proceedings on the 25th of March 1999 there was an exchange of a number of letters between Dekra and the respondent. In this correspondence Dekra sought reasons for the respondent’s decision and clarification on a number of issues. Dekra contends that the responses received from the respondent were inadequate and did not deal with many of the queries raised.

6. On the 25th of March 1999 Dekra issued these Judicial Review proceedings.

7. S.G.S. identifies the following issues as necessarily arising on this Motion:

8. On the first of these issues namely the date from which time runs S.G.S. make the following submissions:-

9. S.G.S. submitted that on any view of when time began to run, the time limits stipulated in Order 84(A) Rule 4 RSC 1986 had not been complied with by Dekra.

10. S.G.S. submits that the obligation of Order 84(a) is to apply “at the earliest opportunity” and that this obligation arises independently of the three month time limit. S.G.S. submits that Dekra had such an opportunity in December 1998 but for reasons which have not been adequately explained this opportunity was not availed of and hence Dekra failed to comply with the requirement in Order 84(a) Rule 4 to make the review application “at the earliest opportunity”.

11. The respondent fully supported the submissions of S.G.S. and made the following additional submissions:-

12. The respondent points to the fact that upon the signing of the contract that S.G.S. would have acquired rights and obligations and undertaken investment and expenditure which would have been well known to Dekra and in delaying instituting proceedings Dekra created a situation in which S.G.S. potentially acted to its detriment in perhaps incurring great losses.

13. The respondent submits that there are no constitutional issues arising which would justify an extension of time and it submits that the delay on the part of Dekra in initiating the proceedings was in all the circumstances unconscionable and hence there is no good reason to extend the time.

14. The respondent therefore submits that there was no ambiguity as to the date of the decision to award the contract, the date of its signing or the provisions for its implementation.

15. The respondent submits that in commencing the review procedure by a letter of the 14th of December 1998 threatening legal proceedings yet failing to “prosecute” the action for an excess of three months is an abuse of process. The respondent submits that this is especially so having regard to the applicant’s knowledge at all material times of the date of the decision to award the contract, of his rights and remedies and of the inevitable resulting prejudice to S.G.S. and the respondent. As the tardy prosecution induced the respondent and S.G.S. to act to their detriment the court is asked that the applicant do not benefit from such abuse of process and for this reason alone the proceedings should be dismissed in limine .

16. The respondent adopts the arguments and submissions of S.G.S. on this issue

17. Dekra’s submissions raise a number of issues as follow:-

18. Dekra submits that S.G.S. has no standing to make the present application as no relief is being sought against it and as a consequence these proceedings cannot cause it to suffer any injury or prejudice. S.G.S. has no interest which a court could recognise which is injured or affected by these proceedings.

19. Moreover the applicant relies on the dicta of O’Higgins C. J. in Norris v. The Attorney General [1984] IR 36, 58 for the purpose of submitting that S.G.S. is relying on a jus tertii as it seeks to rely on the rights of the respondent.

20. Adopting the foregoing criteria Dekra made the following submissions.

21. Dekra accepted that the date of the award of the contract was the 15th December 1998 and for the purposes of Order 84 A Rule 4 that time began to run from the 15th December 1998 and thus the three months expired by the 15th March 1999. On this basis Dekra contends that the delay was only of ten days duration. Even if the earlier date contended for by S.G.S. and the respondent were to be accepted as the date upon which the grounds for the application arose the delay was still only one month and one day.

22. Dekra identified the following factors as being a contribution by the respondents to the delay;

23. Dekra admitted that there were a number of over-riding considerations which should govern the exercise of the court’s discretion as follows:-

24. Dekra raised this issue contending that S.G.S. have no locus standi to bring the Motion seeking the striking out of the proceedings in limine , on the grounds that no relief is sought in the proceedings against S.G.S. and having regard to the fact that Dekra seek only damages and not the setting aside of the award of the contract, the proceedings do not threaten any prejudice to S.G.S..

25. S.G.S. say that in order to get damages Dekra must prove that the award of the contract was illegal and obtain a declaration from the court to that effect. They say the granting of such a relief would place in jeopardy the contractual arrangements between S.G.S. and the respondents, perhaps rendering that contract unenforceable.

26. Whether or not the effect of such a declaration would go so far as to render the contract between the respondents and S.G.S. unenforceable is not a question which I have to decide on this Motion. I am satisfied however, that whatever be the ultimate legal effect of such a declaration on that contract, that a pursuit of such a declaration in these proceedings, and if it were obtained would undoubtedly have in the words of Buxton L.J. in the Matra case “an unsettling and disruptive effect on that process”. It would seem to me that at the very least such a declaration would give rise to uncertainty as to the status of the contract and the obligations thereunder of the parties, and would inevitably lead to damage to public confidence in the car testing system. I am of the view that these would be real prejudices to both S.G.S. and the respondents and hence in my view, S.G.S. have a real interest in the outcome of these proceedings and have in my view a locus standi to bring this Motion.

27. A number of issues were raised concerning the construction of various parts of this rule which reads as follows:-

28. The respondents submitted that where the “earliest opportunity” occurred within the three months period, that the rule does not permit or create a jurisdiction to extend the three month time limit. Conversely, they said it was only when the earliest opportunity arose outside of the three month time limit that the court could extend that time limit.

29. I cannot agree with this submission. It would seem to me that the phrase “unless the court considers that there is good reason for extending such period”, as it comes after the conjoined events, namely, at the earliest opportunity and within three months, and there being no distinction made between them, must in my view be construed as including both of these eventualities. The rule seems designed to confer upon the court a discretion to extend time. If the respondents submission were correct there would in effect be no discretion; as where the “earliest opportunity” occurred within the three months, the time period could not be extended, and where the “earliest opportunity” occurred outside of the three month period an extension of time would be inevitable. Accordingly therefore I am of the view that the rule permits an extension of time whether or not the “earliest opportunity” occurs within or outside the three month time limit.

30. Dekra submitted that the “earliest opportunity” would have to be construed as only arising after the notification to the contracting authority of the infringement alleged and of its intention to seek a review and the response on the contracting authority thereto. In this case Dekra, by a letter of the 14th December 1998, gave the notification required and the respondent gave his response to that notification also in a letter of the 14th December 1998. Thus Dekra were in a position to comply with Order 84 A Rule 3 from the 15th December 1998 onwards, and hence insofar as their obligation under this rule could have effected the “earliest opportunity”, their obligation under Order 84 A Rule 3 could not have postponed the “earliest opportunity” past the 15th December 1998 or within a day or two later as may have been necessary in order to prepare the necessary papers for the purposes of the application.

31. S.G.S. and the respondent contend that time began to run from the 24th November 1998 when Dekra were notified both verbally and by letter that a decision to award the contract to S.G.S. had been made. Dekra concedes that the contract was awarded on the 15th December 1998 and that therefore grounds for the application existed from that date and hence the three month time limit ran from that date. They contend that because of the use of the phrase “subject to contract” in the letter of the 24th November 1998 that it was reasonable for them to take the view that a final or firm decision had not been made to award the contract to S.G.S. at that time.

32. Order 84 A Rule 4 deals with two stages of the process of the awarding of a public contract. The first is the “decision to award” and the second is the “award of a public contract”. The facts as deposed on Affidavit convince me that by the 23rd November 1998 the respondents had made a “decision to award” the contract to S.G.S.. There is no doubt that they communicated their decision in that regard to Dekra and other unsuccessful tenderers both verbally and by the letter of the 24th November 1998. It seems to me that the terms of the letter are quite clear and unequivocally convey the fact that a decision had been made to give the contract to S.G.S.. While I would accept that the inclusion of the phrase “subject to contract” may have given rise to some reflection as to what it precisely meant in the context in which it was used, its inclusion, in this letter does not in my view, at all diminish the clear intent expressed in the letter namely to award the contract to S.G.S. and does not negate the knowledge that a decision to that effect had been made by the respondent.

33. Hence I reject Dekra’s contention that it was reasonable for them to understand this phrase as a meaning that no final decision to award the contract had been made. It would seem to me that the most obvious meaning of the phrase in the context in which it was used was, that the decision to award, was subject only to the formal execution of the contract itself, in the light of the fact that as Dekra points out, there were no terms of the contract which were opened to negotiation. While it might very well be the case that in that context the phrase “subject to contract” could be equated as it was submitted by Dekra with “the existence of the contract being denied”, that of course could not amount to a negation of the facts that “the decision to award” the contract had been made. Thus while the phrase “subject to contract” could be said to have conveyed to Dekra that the contract was not yet formally awarded to S.G.S., it could not have conveyed to them an understanding that a decision to award the contract to S.G.S. had not been made. However I would accept that Dekra did not know of grounds for dissatisfaction with that decision until some time later. Between then and the 14th of December, they learned, of the S.G.S.’s re-test fee, from “other sources”. Thus it can be said that notwithstanding the fact that “grounds for the application first arose” on 24th November 1998, that the “earliest opportunity” to apply for review occurred later.

34. I am therefore of the view that time for the purposes of Order 84 A Rule 4, ran from the 24th November 1998. Thus when Dekra initiated these proceedings on the 25th March 1993 they were one month and one day outside of the three month time limit.

35. It is clear from Directive 89/665/E.C. and, indeed, from Order 84 A Rule 4 that no distinction is made between claims for damages or other reliefs such as suspension or the setting aside of the award, and that being so, I agree with the following passage from the judgment of Buxton L.J. in the case of Matra Communication v. Home Office (1999) 3 All E.R. at 570:-

36. Were it the case that a different time limit were to apply in respect of a damages claim, the question would then arise as to what that time limit was, there clearly being no express provision for it in either the Directive or Order 84 A. It would seem to me that a differentiation in the treatment of damages as distinct from other reliefs sought, arises not in the context of the time limit, but in the context of whether or not the courts discretion to extend the time limit should be exercised in favour of an extension.

37. Both S.G.S. and the respondent rely upon a case of O’Donnell v. Dun Laoghaire Corporation (1991) I.L.R.M. 301 and say that Dekra, in order to obtain an extension of the time limit must both explain and justify the delay and that the test in this regard is an objective one.

38. Dekra submits that in exercising its discretion, the court must have regard to the well known dictum of McCarthy J. in the case O’Flynn v. The Midwestern Health Board, quoted above and also that the court should be guided by the principles set out in the English case of Kaymed (Medical) and Industrial Equipment Limited v. Forest Health Care NHS Trust.

39. It would seem to me that there are no irreconcilable differences between the approaches taken in these various cases. There is a primary onus on Dekra who seeks an extension of the time limit to demonstrate on an objective basis that there is an explanation for the delay and a justifiable reason for it. Of relevance to a conclusion as to whether or not there is such an explanation and such a justifiable reason are the factors set out in the Kaymed case. The respondent submits and I agree with him in this regard, that a factor which must be taken into account is the public interest. This was clearly envisaged by Costello J., as he then was, in the O’Donnell case. However, it would seem, to me that applying the dictum of McCarthy J. in the O’Flynn case must result in tilting the balance in favour of extension of time where that extension of time does not prejudice either the respondent or third parties.

40. Dekra contend that the fact that the letter informing him of the decision to award the contract was expressed to be “subject to contract” led them to believe that a final decision to award a contract had not yet been made. Although aware of the public ceremony on the 15th December, it was their belief that this was merely for the purpose of announcing the award of the contract and not the execution of the contract and they contend that they were unaware of the execution of the contract and believed that it would not take place until January 1999. They say that in the days following the 8th December 1998 when a “debriefing” meeting took place, they learned from “other sources” that S.G.S.’s re-test fee was substantially in excess of Dekras. As a consequence of this Dekra’s Solicitors Messrs. Lee McEvoy wrote to the respondents on the 14th December 1998 raising Dekra’s concerns in relation to the level of re-test fees. Dekra contend that following upon a further lengthy meeting on the 14th December 1998 it was agreed between Dekra and the respondents that a further meeting would take place on the 12th January where the matters concerning Dekra and in particular the question of the re-test fees would be fully explored. Dekra say that the respondent reneged on his promise to attend this meeting in his letter of the 5th January 1999. Dekra say that in their letter to the respondents of the 24th February 1999 they raise the question of re-test fees and other matters including the location of test centres and the issue of bias or conflict of interest arising out of the engagement of Messrs. Coopers & Lybrand as consultant to the respondent in relation to the tendering procedure. They say that their specific queries raised in this letter were not addressed in the reply of the respondent dated the 11th March 1999.

41. Dekra contended that it was reasonable for them to seek answers to their queries before launching the proceedings and when it was apparent that their endeavours in this regard were not going to be successful following the letter of the 11th March 1999, they promptly thereafter commenced the proceedings. They say that as a matter of principle and public policy, litigants should not be forced to issue a writ or otherwise commence proceedings without first taking steps to establish that the proceedings are warranted. Specifically they say that they were entitled to pursue their enquiries with the respondents as there was always the prospect that there might have been a reasonable and convincing explanation as to why the tender of S.G.S. was preferred, and in which circumstance proceedings would not be warranted, and the expense thereof could be avoided.

42. Both S.G.S. and the respondent in contending that Dekra have not offered either a reasonable explanation or a justifiable reason for the delay, point to the fact that they were informed of the decision to award the contract on the 24th November, by the 14th November as a result of the debriefing meeting on the 8th December and their own enquiries, they were aware of the three issues which caused them concern, namely the level of the re-test fee proposed by S.G.S., the conflict of interest issue involving Coopers & Lybrand, and the location of the test centres proposed by S.G.S.. They say that they were informed of the ceremony for the execution of the contract and invited to attend and they say that as a result of what transpired at that ceremony together with the press releases issued and the attendant publicity about it in the media on the 16th December 1998 that Dekra were fully aware of the issues which are subject matter of the substantive proceedings herein. They point to the correspondence of the 14th December 1998 where they raise these concerns and in particular the re-test issue and in which they give the notification as required by the relevant E.U. Directive of their intention to seek injunctive and other relief. They query as to why having taken that step and having regard to the knowledge which they had at the time, they did not promptly, then institute the proceedings and they say that no reasonable explanation has been advanced for this failure nor has there been any justification for the delay in initiating the proceedings up to the 25th March 1999.

43. In addition, the respondent contends that Dekra, in its Affidavits and in particular its statement grounding the proceedings and Affidavit of Verification have failed to make a full disclosure and indeed, that the statements and averments made in these documents are materially deficient, misleading and in breach of the principle of good faith and designed to obfuscate the facts and misled the court as to its true knowledge concerning the date of the decision to award the contract to S.G.S.

44. For the reasons already given, I do not accept that their reliance on the phrase “subject to contract” is an acceptable explanation of any delay from the 24th September 1998 to the 15th December 1998. By the 16th December 1998 in my view, Dekra were aware of the three issues which became of concern to them, namely the re-test fee, the location of tests centres and the conflict of interest issue.

45. I would be prepared to hold that the issues which were of concern to Dekra were complex in particular the issue of the re-test fees and that they may indeed have been baffled by the appellant discrepancy between the proposed re-test fee of S.G.S. and their own proposed re-test fee and that they strove for an explanation of this. To fully understand the difference between the two, I would readily be prepared to accept, would involve an exploration of the unlying data relevant to the concepts of variable cost and profit. Clearly discussion took place on these issues in the debriefing meeting of the 8th December 1998 and in the further meeting on the evening of the 14th December 1998 but, I would infer from the fact that a further meeting was arranged for the 12th January, that the parties involved in that meeting did not arrive at any kind of agreed conclusion or outcome.

46. The fact that Dekra did not initiate these proceedings pending the meeting on the 12th January 1999 is not surprising and I am inclined to view that their explanation of delay up to the point at which they were notified of the cancellation of that meeting is reasonable and justifiable. However, nothing was done from the receipt by them of notification of the cancellation of that meeting until their letter of the 24th February 1999, a full six weeks. There is no explanation whatsoever offered of this six week delay, a delay which formed a very significant part of the period of three months in Order 84 A Rule 4. At that point, namely 24th February 1999, they re-engaged in the same enquiries but obviously with greater elaboration. Having regard to the fact that the respondents had cancelled the meeting on the 5th January, they thereby intimated an end so far as they were concerned, to the discursive process related to the outcome of the tendering procedure.

47. In my view having regard to the essential urgency which was undoubtedly required having regard to the terms of the E.U. Directive 89/665 and Order 84 A Rule 4 the recommencement of correspondence of this kind on the 24th February 1999 was not justified.

48. Having regard to the foregoing I am of opinion that the “earliest opportunity” for the purposes of Order 84 A Rule 4 occurred in the week or so after the cancellation or the receipt by Dekra of notice of the cancellation of the meeting of the 12th January 1999.

49. While I would readily agree with Dekra’s submission that in general as a matter of public policy, litigants should not be forced to issue proceedings before they have a reasonable opportunity to satisfy themselves that the proceedings are warranted, having regard to the cancellation of the meeting on the 12th January 1999, any belief that they may have had that they would quickly reach a full understanding of the problem and fully inform their conclusion as to whether proceedings were warranted, must have been shattered by the cancellation of that meeting, leaving them under no doubt but that proceedings would be necessary if they were to progress their complaint.

50. The statement of Dekra grounding the proceedings together with the Affidavit of Verification could be said to have the appearance of a lack of candour, particularly in the light of the contents of the letter of the 14th December 1998 from Lee McEvoy Solicitors for Dekra where they say “we would be very grateful if you would respond to us in relation to this concern prior to the formal execution of the contract on Tuesday”.

51. It was submitted on behalf of Dekra that whatever deficiencies were there, they could not and did not mislead the court in the sense of getting the court to do something it might otherwise not have done because there was no application for leave and no application for interim relief. Undoubtedly this is so, but nevertheless the grounding statement and verifying Affidavit present an unhappy incompleteness. However without the benefit of the full hearing I would not be prepared to allow the exercise of my discretion on the issue raised in this Motion be swayed against Dekra on this ground alone.

52. Having regard to the foregoing, in my opinion, both the respondent and Dekra contributed to the delay up to the cancellation of the meeting on the 12th January 1999, thereafter the delay was entirely the responsibility of Dekra.

53. Both the respondent and S.G.S. claim that they are prejudiced by Dekra’s delay in instituting these proceedings. Both say that notwithstanding the fact that Dekra does not seek to set aside the contract between them but merely seeks damages, that nonetheless in order to obtain damages Dekra will have to obtain a declaration to the effect that the award of the contract to S.G.S. was an infringement of the relevant Directives and hence unlawful, and they point to the declaratory reliefs that are claimed in the originating Notice of Motion of Dekra. Both S.G.S. and the respondent contend that the granting of a relief of this kind would, perhaps, render the contract between S.G.S. and the respondent unenforceable or at the very least cast a doubt over the status of the contract and that this uncertainty would be prejudicial to them both. They both also point to the fact that S.G.S. has invested a great deal of money and other resources in the setting up of the N.C.T.’s and that all of this may be placed in jeopardy.

54. The respondent additionally contends that he was prejudiced in been unable to precede in timely fashion to conduct a competition to select the independent supervisor for the implementation of the N.C.T.'s and as a result of the delay ended up having to pay for two competitions, the first to engage a temporary supervisor and the second a permanent supervisor.

55. It is readily to be appreciated that the existence of these proceedings and the reliefs claimed would have an “unsettling” effect on the relationship between S.G.S. and the respondent. While it is the case that the setting aside of their contract is not sought, nevertheless if Dekra succeeds in obtaining the declarations that are sought in its originating Notice of Motion and its statement grounding the proceedings, some doubt will be cast on the contractual relations between S.G.S. and the respondent giving rise to uncertainty. However, although it is unnecessary for me to decide the matter in these proceedings, it would seem that there is a clear distinction to be drawn between an infringement or illegality in the process whereby the contract was awarded, and the existence and status of the contract itself. No issue at all arises in these proceedings concerning the terms or obligations of the contract between S.G.S. and the respondent and given that Dekra does not seek to have it set aside, it is hard to see how it is in reality threatened by the reliefs that are sought by Dekra in these proceedings.

56. Nevertheless I could envisage a situation where if those reliefs sought by Dekra were granted that there would be an undermining of public confidence in the N.C.T.'s which could create a variety of problems for and pressures on both S.G.S. and the respondent, emanating from a disgruntled public.

57. However, that is a consequence which would flow from the nature of the reliefs themselves, were they to be granted, and do not appear to me to flow from the delay of Dekra in initiating these proceedings. The only relevance of that delay to these consequences is that it is clearly in the interest of all concerned including the public that proceedings of this kind involving claims for the reliefs that are claimed in these proceedings should be deposed of as speedily as possible. In this context it could be said that the delay on Dekra’s part could make a marginal contribution to any prejudice in this regard that S.G.S. and the respondent might suffer. However having regard to the time involved in the prosecution of the proceedings to a final determination I would be of the view that the contribution of Dekra’s delay in initiating the proceedings is insignificant in terms of that prejudice.

58. In the light of the fact that the setting aside of the contract is not sought by Dekra, it would seem to me that the undoubted fact that S.G.S. has invested heavily both in terms of money and other resources in the setting up of the N.C.T.'s is irrelevant.

59. Having carefully considered the evidence on Affidavit concerning the delay in the holding of the competitions for the independent supervisor, I am left unconvinced that the delay on Dekras part in initiating these proceedings should be blamed for the difficulties that the respondent encountered in engaging the supervisor. From the 24th November 1998 the respondent had made a decision to award the contract to S.G.S.. A full four months elapsed between then and the initiation of these proceedings on the 25th March 1999. No explanation is offered by the respondent as to why the competition to engage the supervisor was not held in this period, when it is clear from the time scale involved in holding such a competition, that it could easily have been done within that period.

60. The respondents say that they were deterred from holding the competition because of ambiguity in the Notice of Motion, statement grounding the proceedings and verifying Affidavit concerning the reliefs to be sought and that this was not finally cleared up until the letter of the 25th June 1999 from Dekra stating unequivocally that it did not seek the setting aside of the contract.

61. It is quite clear that the Notice of Motion dated the 15th March 1999 does not seek an Order setting aside the contract or suspending it. In the Statement of Grounds likewise in the paragraph headed “Relief Sought”, a setting aside is not sought.

62. In the paragraph headed “Relief Sought” at paragraph (x) (g) at sub paragraph 6 the following is stated:-

63. Paragraph 18 of the Affidavit of Dietnar Bogk sworn the 22nd March 1999 says the following:-

64. While I would except that one can perceive an element of ambiguity in these documents relative to the relief claimed, it would seem to me that the overwhelming thrust or sense of the documents indicates to the contrary and I must confess to some surprise that the respondent would at the end of March or during April or May 1999 been deterred from an obviously necessary course, namely the holding of the appropriate competition to engage an independent supervisor, because of this alleged ambiguity.

65. On balance therefore, I am left unconvinced from the evidence that either the delay of Dekra or any alleged ambiguity in relation to a reliefs claimed in its Notice of Motion could be fairly blamed for whatever difficulties the respondent had in preceding with that competition up to June 1999.

66. Dekra contends that if these proceedings are struck out in limine as is sought, a grave injustice will be done to it because, what it contends is a valid claim will be defeated without ever being heard and that nothing that is advanced by either S.G.S. or the respondent as prejudice to them could be said in any serious way to outweigh the gross prejudice to it, that would result from these proceedings being struck out at this stage.

67. The respondents submit that the court must have regard to the public interest in exercising its discretion. The particular public interest that is advanced for consideration is the orderly administration of public contracts and tenders for public contracts. The respondents submit that were it the case that applications for review of awards of public contract were to be entertained outside the three month time limit, that this would lead to an administrative nightmare for various government departments and public bodies charged with the carrying out of these contracts, and that it would lead to great legal uncertainty affecting a great many parties if the status of these contracts was to be subject to uncertainty over a protracted period of time. In this regard the respondents point out that at any time there are several hundred of these contracts on going and that extensions of the three month time limits in relation to reviews of them would place an impossible burden on government departments and other public bodies.

68. I would readily accept that if the setting aside relief were to be sought in reviews of the decision to award or the award of public contracts initiated outside the three month limit, that this clearly could lead to kind of “administrative nightmare” that the respondents apprehend. Clearly in that situation a great many valuable public projects could be held up for lengthy periods of time and this would cause considerable prejudice to a great many people namely the contractors and all of the professionals involved, the departments of the State or other public bodies charged with dealing with these matters and last but not least, the publics enjoyment of the benefit of these contracts would be delayed for the duration of the completion of the litigation.

69. Where however, the setting aside of one of these contracts is not sought as in this case, an entirely different situation pertains. In this circumstance, all the public body or in this case the respondent is faced with is the task of defending the litigation. The project itself can and indeed has gone ahead. In this regard the litigation is in reality no different in terms of prejudice to the respondents than any other of the myriad proceedings that are directed against the state in general and this respondent in particular, on a daily basis and for which the State has ample resources, save that there is this difference, that under the relevant Directive 89/665 and under Order 84 A Rule 4 there is undoubtedly enjoined upon an Applicant for a review of the decision to award or the award of a public contract an onerous obligation to move with urgency and speed. On balance I do not see these proceedings as imposing any unusual or oppressive burden on the respondent.

70. The respondents also made the case that they are anxious to comply with their obligations under E.U. Law to implement the car testing system and point to the fact that they have heretofore been in breach of that obligation. This is rightly a concern of the respondent. The fact that Dekra do not seek the setting aside of the contract or a suspension of it means that these proceedings do not inhibit the respondent in proceeding to effect compliance with its obligations under E.U. Law. In fact the car testing system has been set up since January of the year 2000 without any apparent effect from these proceedings.

71. I have come to the conclusion that neither S.G.S. nor the respondent will suffer a significant prejudice that can be fairly attributable to the delay on the part of Dekra. Such prejudice as is decernable is of a potential or indefinite kind and would be the result of the proceedings themselves and the relief sought therein rather than the result of any delay on the part of Dekra in initiating these proceedings.

72. On the other hand if these proceedings are to be struck out now without been heard, a grave injustice may be done to Dekra. Balancing that prejudice against any potential prejudice to S.G.S. or the respondent, I have come to the conclusion that the balance must lie in favour of Dekra. I am mindful of the fact that Dekra have been in delay and as I have found earlier, have not explained a significant portion of that delay. Nevertheless the relief sought in this Motion by S.G.S. is of the most drastic kind and in my view is such that should only be granted in the clearest of cases where the default is gross or the prejudice caused by it is real and substantial and immediate. In this case the delay is short in terms of time, the extension of time required a matter of some one month. While urgency is clearly required in applications for reviews of the decision to award or the award of a public contract, nevertheless the conduct of these reviews are not a new departure in our jurisprudence such that a wholly different approach to the question of delay should be adopted. The courts are there to administer justice and only in the most extreme case should a party be repelled from the seat of justice unheard. No doubt the award of public contracts is a matter of great public importance involving potentially very serious obligations on the part of the State and where wrong doing occurs remedies which may place a heavy burden on the public purse. Be that as it may, the validity or the relevance to these reviews of the time honoured maxim Fiat Justitia Ruat Coelum remains undiminished.

73. For the foregoing reasons therefore, I have decided to exercise my discretion in favour of extending the time limit in Order 84 A Rule 4 to the 26th March 1999. In the light of this, it is unnecessary for me to express an opinion on Dekra’s submission, that the three month time limit in Order 84 A Rule 4 is ultra vires on the grounds that it offers the principle of equivalence. However, for the sake of completeness and in deference to the very erudite submission made by S.G.S. and Dekra on the topic I am prepared to say that, I am satisfied, that there is no comparator in our domestic law, breach of statutory duty being far to wide and diffuse to be a valid comparator. Hence, I would adopt the reasoning of Buxton L.J. in the Metra case and conclude that Order 84 A Rule 4 does not fall foul of the principle of equivalence.