Minister erred in bus dispute, rules judge


A PRIVATE bus company has won a High Court order overturning the Minister for Transport’s decision allowing Dublin Bus operate a rival service on a route operating between Swords and Dublin city centre via the Port Tunnel.

Mr Justice Bryan McMahon ruled the Minister had erred in concluding there was no competition between the service operated by Digital Messenger Ltd, trading as Swords Express, and that of Dublin Bus.

Swords Express, Lower Grand Canal Street, Dublin, had argued the Minister’s August 2009 decision allowing the Dublin Bus service on the Port Tunnel route was flawed because it was based on a report from consultants which did not address the issue of competition, but rather the issue of competitive advantage.

Swords Express also argued the Minister unlawfully delayed in making a decision on its application for a licence for an additional road service. The Minister denied the claims.

On the basis of his findings, the judge made orders quashing the Minister’s decisions to permit Dublin Bus to operate the altered 41X passenger service route between Swords and Dublin city centre via the Port Tunnel. He also quashed the ruling that the altered 41X service did not compete with the Swords Express service.

The judge also granted a declaration the Minister unlawfully delayed in making a decision on the application by Swords Express in February 2008 for a second service.

The judge noted Swords Express had commenced operating a bus service between the city centre and Swords via the tunnel after obtaining a licence from the Minister in October 2007. Encouraged by its success, it applied for a second passenger licence.

Between March and June 2008, Dublin Bus applied to the Minister to re-route the 41X service between Swords and the city centre through the tunnel. The department determined Dublin Bus was not in competition with Swords Express which meant Dublin Bus, a subsidised company, could operate the route.

Swords Express contested the findings and the Minister later agreed to engage consultants, Booz Co, to assist in determining if there was competition on the route. It was also agreed that the Minister would use his best endeavours to decide on the Swords Express second licensing application within three months of deciding the competition issue.

The consultants reported to the Minister there was competition on the route in February 2009. Dublin Bus then revised the 41x route by removing a stop at Ballintrane Wood on Forrest Road.

In a second report, the consultants held the removal of that stop would remove Dublin Bus’s competitive advantage and restore a level playing field.

The judge agreed with Swords Express that the Minister’s decision was wrong. The second report did not address the issue of competition but rather the question of competitive advantage and the Minister had erred, the judge found.

In relying on the second consultant’s report, the Minister “had taken something into account which was not of statutory concern.”

The first consultants report had firmly concluded Dublin Bus was in competition with Swords Express on the route and it was “difficult to understand” how the consultants could have found competition in the first report but no competition in the second report.

It was “even more difficult to understand” how the Minister, relying on those reports, reached his decision there was no competition due to the alteration of the route proposed by Dublin Bus.

The judge also rejected the argument that the delay in dealing with the second licence application was excused because that application was queued behind another application by a third party.