Supreme Court refuses to hear further appeal over school transport contract

Company initiated proceedings in 2011 over lack of tender for school transport services

The Court of Appeal  found the arrangement between the Minister and Bus Éireann was not a contract concluded in writing for the purpose of EU procurement rules and therefore the Minister was not obliged to tender for those services in 2011-2012.

The Court of Appeal found the arrangement between the Minister and Bus Éireann was not a contract concluded in writing for the purpose of EU procurement rules and therefore the Minister was not obliged to tender for those services in 2011-2012.

 

A student transport firm has failed to persuade the Supreme Court to hear a further appeal over the rejection of its claim the Minister for Education was obliged to tender for the provision of school transport services between 2011 and 2012.

Student Transport Scheme (STS) initiated proceedings in 2011 alleging a written public contract existed between the Minister and Bus Éireann for supply of the school transport service between 2011-2012 with the effect the Minister was obliged to put that contract out to tender.

After losing in the High Court, STS appealed but the Court of Appeal (COA) in 2016 dismissed the appeal. The COA found the arrangement between the Minister and Bus Éireann was not a contract concluded in writing for the purpose of EU procurement rules and therefore the Minister was not obliged to tender for those services in 2011-2012. STS’ claim should also be dismissed as the scheme is of indefinite duration, therefore falling outside the regime of the EU public procurement regime, the COA held.

STS sought a further appeal to the Supreme Court but, in a determination published later in 2016, that court refused permission to appeal.

STS then appealed to the Supreme Court to set aside that determination.

It argued, inter alia, conclusions reached in a 2017 report by the Comptroller and Auditor General, and two letters received by the State from the European Commission in 2019, would have resulted in reversal of the orders made in the lower courts.

Those documents, it claimed, showed inconsistent evidence from the Minister and Bus Éireann to the lower courts, including concerning the profitability of the scheme for Bus Éireann. The respondents strongly disputed those claims and argued the high threshold for a further appeal had not been met.

On Monday, the Supreme Court refused to set aside its 2016 determination.

‘Not permissible’

The Chief Justice, Mr Justice Frank Clarke, said what STS truly sought is the opportunity to rerun a different case before the Supreme Court from that which failed before the lower courts but such a course of action is not permissible.

Nor did he consider that the material put forward on behalf of STS suggested the COA was wrong in the conclusions reached by it when dismissing the STS appeal.

A party seeking to set aside a determination of the Supreme Court refusing leave to appeal, itself a final order, must meet a very high threshold, he said. They must show a clear and significant breach of the fundamental constitutional rights of a party, going to the very root of fair and constitutional administration of justice, in the manner in which the process leading to the determination was conducted.

General accusations by STS concerning the way in which the proceedings were conducted before lower courts do not give rise to the proper exercise of the relevant jurisdiction in respect of a final order, judgment or determination of the Supreme Court, he held.

There is no legitimate basis for giving STS the opportunity to now run a different case in the High Court to the one which failed before, he ruled.

If STS has any entitlement arising from the allegations made by it, that can only be pursued by fresh plenary proceedings in the High Court, he added.

If STS can persuade the High Court it has jurisdiction to set aside final orders on the basis of a breach of the obligation on State parties to conduct litigation in a transparent manner, and if STS can establish, to whatever standard may be considered necessary, a breach on the facts of this case, then it is possible the case could be reopened subject to whatever terms the High Court might consider just, he said.

If there is a jurisdiction to set aside proceedings on grounds that a State authority allegedly failed to conduct those proceedings in a transparent manner — and he considered there is “significant doubt” such a jurisdiction exists — an attempt to invoke that jurisdiction must be pursued by plenary proceedings, he held.