Judicial Review time limit extended only for good reason; DEKRA's delay in public procurement appeal dismissed by Supreme Court.

THE SUPREME COURT

Record No 107, 118 and 158/02

Keane C.J.

Denham J.

Hardiman J.

McGuinness J.

Fennelly J.

BETWEEN

DEKRA EIREANN TEORANTA

Applicant/Respondent

and

MINISTER FOR THE ENVIRONMENT AND LOCAL GOVERNMENT

Respondent/Appellant

and

SGS IRELAND LIMITED

Notice Party/Appellant

JUDGMENT delivered on the 4th day of April, 2003 by FENNELLY J.

A disappointed tenderer for a public works contract under European Union public procurement procedures must bring his complaint by

way of Judicial Review within three months, unless he can show good reason for an extension of that time. The present appeal

concerns such an order made by O’Neill in the High Court.

The Legal and Factual Background

Council Directive 96/96EC of 20 December 1996 on the approximation of the laws of the Member States relating to roadworthiness

tests for motor vehicles and their trailers (OJ L 046 of 17th February 1997) obliges Member States to ensure that motor vehicles

registered in each state undergo periodic roadworthiness tests, specified in detail. Pursuant to Article 1 of that Directive, the tests

must “be carried out by the State or by a public body entrusted with the task by the State or by bodies or establishments

designated and directly supervised by the State, including duly authorised private bodies.” Article 11 provided for implementation no

later that 9th March 1998.

The Irish Government decided to seek a contractor from the private sector for the testing of private motor cars. Because of the scale

of the contract, it had to observe the public procurement procedures laid down by European Union directives. On 31st March 1998,

the Respondent/Appellant, the Minister for the Environment and Local Government (“the Minister”), as awarding authority, caused to

be published in Irish newspapers as well as in the Official Journal of the European Communities an invitation to tender for the

establishment and operation of a system of roadworthiness testing of private cars in Ireland. The deadline for the receipt of

applications was 28th April 1998.

The notice stated that the contract was to be awarded in accordance with the restricted procedure stipulated in Council Directive

92/50EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ L 209 of 24th July

1992). This meant that only invited service providers might submit a tender. It was also stipulated that the contract would “be

awarded to the service provider offering the most economically advantageous bid…” Directive 92/50EEC, as amended by European

Parliament and Council Directive 97/52EC, was implemented in the State by the European Communities (Award of Public Service

Contracts) Regulations, 1998 (S.I. 398 of 1998). I call these the public procurement directives.

The final tender documentation was forwarded to shortlisted candidates on 7th 1998. The documents specified a number of dates,

including:

Clarification meetings in July, August and September;

Receipt of tenders: 25th September 1998;

Selection of preferred tenderer: 13th November 1998;

Award of contract: 11th December 1998.

There were four tenders. The tenderers included the Applicant/Respondent (“DEKRA”), which is a joint venture company formed by

DEKRA International S.A. & CIE and the Society of the Irish Motor Industry. They also included the Notice Party/Appellant, SGS

Ireland Limited (“SGS”), the tenderer to which the contract was awarded.

Following the evaluation of the four tenders, a report was submitted to the Minister on 17th November 1998, recommending the

tender of SGS. On 23rd November, the Minister approved the award of the contract to SGS. On 24th November, Mr Des Coppins,

Principal Officer, Vehicle Control Section, Department of the Environment wrote to DEKRA to say that it had not been selected as the

preferred tenderer, but that SGS had been chosen, “subject to contract.” The letter offered an opportunity to have a “debriefing”

meeting. On the 8th of December 1998, such a meeting was held between the representatives of DEKRA and the respondent. DEKRA

claim that no information was given about the price at which SGS had been awarded the contract and, in particular, no information

about SGS’s re-test fee. However, DEKRA accepts that, in the following days, it learned from other sources that the SGS proposed

re-test, fee was substantially in excess of its own. On the following day, DEKRA learned from press reports of the location of the test

sites proposed by SGS. It is also common case that, by this date, they were aware of the essential facts to ground its other

complaint, which is based on an alleged conflict of interest due to the involvement of Messrs Copper & Lybrand as consultants to the

Minister, when an associated firm had previously advised a company linked to SGS in the United States.

On the 14th of December 1998, the respondent informed DEKRA that the formal announcement of the award of the contract would, as

in fact it did, take place the following day.

DEKRA were clearly disappointed with the result of the tendering process and took steps, as they were entitled to do, to inform

themselves both directly and indirectly of the reasons for their failure.

On 14th December, Lee McEvoy, solicitors, on behalf of DEKRA, wrote to Mr Coppins. The letter includes the following:

“We refer to our debriefing meeting last Tuesday.

We understand from this and from other information that the re-test fee submitted by DEKRA Eireann was substantially lower

than that submitted by other tenderers. This has caused us concern. We would be grateful if you would respond to us in

relation to this prior to the formal execution of the contract on Tuesday.”

[omissis]

“Paragraph 6.10 of the Information and Terms under the heading “key assumptions” states the following:

‘Tenderers should index the Test Fees to a fixed level below inflation as measured by the Consumer Price Index and Tenderers

are required to set out their proposals in this regard. In addition, in order to ensure transparency and fairness in the testing

regime, tenderers should set re-test fees at a level that only covers variable cost plus profit.’

In submitting its tender, DEKRA Eireann was guided by this requirement. Our re-test fee accordingly reflected the marginal

cost of re-testing together with DEKRA Eireann’s projected profit margin ….

Although we have not been supplied with the exact details of the SGS’s test fee, it appears that SGS’s test fee was

substantially higher than that submitted by DEKRA Eireann. It has already been confirmed that SGS’s initial test fee significantly

lower than that of other tenderers. This suggests to us that the SGS test fee proposal was unbalanced and that it was

designed to take unfair advantage of re-tests, in breach of paragraph 6.10 of the Information and Terms. If the SGS re-test

fee did not reflect the marginal cost together with SGS’s projected profit … then this tender must be rejected for non-

compliance.

The calculation of the re-test fee was a very important issue in the preparation of the DEKRA Eireann proposal, in view of

DEKRA Eireann’s concern that the re-test rate would be significant. Had DEKRA Eireann known that the requirements of

paragraph 6.10 of the Information and Terms could be varied or disregarded, it would most certainly have submitted a

substantially greater re-test fee and consequently, a significantly reduced initial test fee.”

The letter ended by asking that the Minister refrain from executing the contract “pending resolution of this issue.” Mr Coppins, in an

immediate letter of response on behalf of the Minister, contested the arguments in the DEKRA letter and declined to postpone the

step of executing the contract. The solicitors’ letter appears to have been interpreted as a threat to institute proceedings, since the

reply indicated that any proceedings should be served on the Chief State Solicitor. It also asked that, in the event of any application

for “injunctive relief, the letter of the Minister be brought to the attention of the court” and that the Minister would hold DEKRA

responsible for any loss caused.

In a final letter of 14th December 1998, Lee McEvoy, solicitors, joined issue with the Minister. They asserted that the award of the

contract to SGS was “in breach of Council Directive 92/50, as it involves the award of the contract, in breach of the awarding

authority’s own pre-determined rules for the award of the contract, to a non-compliant tender and/or to a tender which is not the

most economically advantageous tender.” The letter terminated with the following important paragraph:

“This letter is to put you on Formal notice as required by Article 1(3) of the Remedies Directive, Directive 89/665 and Article 5

of European Communities Procedures for the Award of Public Supply, Public Works and Public Services Contracts) (No. 2)

Regulations, 1994, that it is our intention to apply forthwith on short notice to the High Court to obtain an injunction

suspending the award of this contract unless we receive, by return, a notice from you that no award shall be made without

firstly providing us with the opportunity to apply to the High Court for an injunction restraining the award of the contract.”

DEKRA has made it clear, by affidavit, that, as indeed the letter states, the purpose of this letter was to comply with the requirement

to notify a contracting authority of an alleged infringement pursuant to the provision there recited.

Mr Coppins’ letter of 14th December had offered a further meeting in order to furnish details of the initial and re-test fees of SGS.

There were also some “without prejudice” discussions on or about 14th December and there was to have been a further meeting on

12th January. This meeting was cancelled by the Minister. In a letter of 5th January, Mr Coppins stated that the Department

considered that it had fully discharged its obligations “to provide the reasons why DEKRA was not selected as the preferred tender

together with the characteristics and the relative advantages of the selected tender……”

DEKRA next wrote, thorough its solicitors on 24th February 1999. They expressed disquiet at the “the last minute cancellation of the

proposed meeting” effected by the letter of 5th January. They then embarked upon a more detailed and searching enquiry concerning

the matters already raised, in particular the cost of re-test, the location of test centres and the method of scoring used by the

Minister. Correspondence about these matters continued until 11th March.

On 25th March 1999, DEKRA commenced these proceedings by issuing a Notice of Motion seeking:

A declaration that the award of the contract to SGS was in breach of the public procurement directives;

A declaration that the rejection of DEKRA’s tender was similarly in breach;

A declaration that the Minister had acted ultra vires;

Damages.

The Statement of Grounds accompanying the Notice of Motion specified the following grounds:

The Invitation to Tender required tenderers to set re-test fees at a level which only covered variable cost plus profit. The

retest fees set by SGS Ireland in its tender exceeded variable cost plus profit and accordingly did not comply with the

requirements;

The Invitation to Tender required each individual National Car Test Centre be located within 30 miles of 90% of the customers

served by it. The tender submitted by SGS Ireland did not comply with this requirement;

The contract was awarded in breach of the principles of natural justice, because Price Waterhouse acted as consultants to the

process, whereas Coopers and Lybrand, a constituent firm of Price Waterhouse, had previously successfully tendered with SGS

Testcom, a company related to SGS Ireland for the New York State inspection Program Data Management System. (“the

conflict of interest issue.”)

The Statement of Grounds also contended that the three-month period specified for review of a contract by Order 84A, Rule 4 of the

Rules of the Superior Courts had not expired. It continued:

“If the said three month period has expired, which is denied, the Applicant’s claim is limited to damages and to ancillary relief.

Specifically, the Applicant does not seek to set aside the award of the contract to SGS Ireland. In the premises there is no

prejudice to third parties arising from any delay…In the premises there is good reason for extending the time.”

The Statement of Grounds also claimed, alternatively, that the three-month limit was contrary to European Community law,

specifically that it was in breach of the Community law principles of effectiveness or equivalence. This argument was rejected in the

High Court and has not been pursued in this Court.

The right of a disappointed participant in a tendering procedure governed by the public procurement rules of the European Union to

seek a remedy against the award, and other interlocutory or ancillary reliefs, are governed by Council Directive 89/667/EEC of 21

December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review

procedures to the award of public supply and public works contracts (OJ L 395 of 30th December 1989).(“the Remedies Directive”).

The Remedies Directive was implemented in the State by the European Communities (Review of Procedures for the Award of Public

Supply, Public Works and Public Services Contracts) (No.2 ) Regulations 1994 (S.I. 309 1004). (“the Regulations”). Article 4 of the

Regulations confers the power of review on the High Court.

Article 1(3) of the Remedies Directive authorises Member States to require that a person seeking review first notify the contracting

authority of “the alleged infringement and of his intention to seek review.” Ireland has exercised this option in the form of Article 5 of

the Regulations. Member State may also provide that “where damages are claimed on the ground that a decision was taken

unlawfully, the contested decision must first be set aside by a body having the necessary powers.” (Article 2(5) of the Remedies

Directive.) Ireland has not exercised this option. Under the Regulations, the High Court may declare a contract or a provision of a

contract void, but it may also award damages whether or not it exercises any of its other powers.

In order to give effect to these provisions, the Rules of the Superior Courts (No. 4), (Review of the Award of Public Contracts), 1998

(S.I. No. 374 of 1998) were amended to provide that any application for review pursuant to the Regulations must be made by notice

of motion pursuant to the new Order 84A. The procedure closely follows the model of Judicial Review, save, in particular, that there is

no requirement to seek prior leave to apply. For the purposes of the present appeal, the central provision is in rule 4:

“An application for the review of a decision to award or the award of a public contract shall be made at the earliest

opportunity and in any event within three months from the date when grounds for the application first arose unless the court

considers that there is good reason for extending such period”.

As has been noted, the Minister decided, “subject to contract,” to award the contract to SGS on 24th November 1998 and the

contract was signed on 15th December 1998. The notice of motion did not issue until 25th March 1999.

The High Court Proceedings

In the present case, it was SGS which relied on the time limit. On 16th June 1999, it issued a Notice of Motion seeking an order

striking out DEKRA’s proceedings in limine on the ground of its failure to bring the proceedings within the three-month limit provided by

Order 84A.

After a very full exchange of affidavits, O’Neill J in the High Court heard the application. He identified the issues as follows:

the date on which time begins to run for the purposes of Order 84(a) Rule 4;

whether DEKRA initiated proceedings within the time limit;

whether assuming that the answer to (b) is in the negative, “good grounds” have been shown for extending the time limit;

whether the proceedings ought to be struck out because DEKRA did not apply at “the earliest opportunity”;

whether Order 84 (a) Rule 4 is contrary to Article 5 of the E.C. Treaty insofar as it results in procedural conditions where

actions relating to the exercise of E.C. law arise which are less favourable than those applicable to similar actions of a domestic

nature.

As I have already indicated, the last point has not been argued on this appeal. Accordingly, this judgment does not deal at all with

the possibility that the time limit may not be sufficiently effective to protect the interests in question or that it does not give

protection equivalent to that afforded in Irish law to equivalent rights.

Two other matters have arisen peripherally. Firstly, SGS contended that DEKRA was guilty of breach of an obligation of utmost good

faith in the manner in which it presented the facts surrounding its delay in making its application. I would dispose of this issue at

once. DEKRA was not making an ex parte application. All applications under Order 84A are required to be on notice. The Minister and

the Notice Party were on full notice and in a position to answer any incomplete presentation of the facts. In the absence of

something gross or fraudulent, there is no reason to extend the salutary rule of utmost good faith which reposes on those making

applications ex parte to proceedings inter partes such as the present. Secondly, DEKRA questioned the standing of SGS to bring the

application to strike out DEKRA’s application. This was not seriously pursued on this appeal, and, in my view, rightly so.

Each of the other matters has been fully argued and it suffices to refer to them very briefly. SGS argued that, where the earliest

opportunity to make an application arose outside the three-month time limit from the date of the award there is no jurisdiction to

extend the time. The learned High Court judge held that the rule permits an extension of time whether the earliest opportunity occurs

within or outside the three-month time limit. He thought 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 be construed as including both of these eventualities. He held, contrary to the

submission of DEKRA, that the decision of the Minister was made on 23rd November and that the time ran from that date so that,

when they issued proceedings, DEKRA were one month and one day out of time.

The learned judge also, in reliance on the judgment of Buxton L.J. in the case of Matra Communication v. Home Office (1999) 3 All

E.R. 562 at 570 (“Matra”) held that there could not be a difference to the time limit to be applied to a claim to set aside an award

and a claim limited to damages.

He reviewed in some detail the events that passed between 16th December and 15th March. He concluded that DEKRA were aware by

16th December of the three issues that became of concern to them, namely the re-test fee, the location of tests centres and the

conflict of interest issue.

He thought that it was reasonable for DEKRA to await the meeting proposed for 12th January but found that there was no explanation

whatever for the six-week delay from then until 24th February. He criticised the behaviour of DEKRA in the period after 5th January

and even in their initiation of renewed correspondence on 24th February. In view of the “essential urgency which was undoubtedly

required..,” he did not consider this latter behaviour to be justified.

At that point, the learned High Court judge embarked on an inquiry into who contributed to the delay. He considered arguments of

prejudice advanced on the part of the Minister and SGS, and the issue of the public interest. He then concluded as follows:

“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 discernible 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.

On the other hand if these proceedings are to be struck out now without been [sic] 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.

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.”

Arguments on the Appeal

Mr Gerard Hogan, Senior Counsel, on behalf of SGS, submitted that the learned High Court judge had erred in his approach to the

interpretation of Order 84A and in his application to the facts of the case in essentially respects. Firstly, the date when the decision

was made was 24th November 1998. The facts that the grounds for review of the decision were not then known to DEKRA does not

alter that fact, though it may be relevant either to the question of “the earliest opportunity” or the existence of “good reason” for

extending the time. Secondly, the onus is on DEKRA to explain the delay (see O’Donnell v Dun Laoghaire Corporation [1991 ILRM

301.). DEKRA had not explained the delay. Until they had, the judge could not go on to consider the issue of prejudice, though a

relatively short period of delay might be more easily explained. In the context of high-value public services contracts, well-advised

parties such as DEKRA bear a heavier onus to explain than immigrants who are subject to a much shorter period of fourteen days.

Thirdly, SGS had suffered prejudice. The “unsettling and disruptive effect” of a damages claim was recognised in the judgment of

Buxton LJ in Matra. DEKRA presented its claim ambiguously at first and only later made it clear that it was not seeking to set aside

the award of the contract to SGS. There is no basis for distinguishing between damages claims and claims to set aside an award for

the purpose of the time limit.

Mr Michael Carson, Senior Counsel, on behalf of the Minister argued that the expression, “the earliest opportunity” in Order 84A, rule

4 should be distinguished from the term “promptly” employed in the equivalent provision in Order 84: it is more emphatic. He

submitted, in particular, that it is only where an applicant has no opportunity to apply within the three-month period, as where he

was ignorant of the grounds for seeking the review or for some other reason, depriving him of the opportunity of making an application

that the time can be extended, if good reason can be shown.

Mr Bill Shipsey, Senior Counsel, submitted, on behalf of DEKRA the decision to award the contract to SGS was not made until 15th

December 1998. The notification of 24th November was expressed to be “subject to contract.” He accepted that he had the onus of

explaining the delay, even if, on his submission, it was a period of only fifteen days. The information about the re-test charges was

not available until after the debriefing on 8th December. Counsel accepted that grounds for DEKRA’s application arose on or about

15th December. After that date, it was reasonable for DEKRA to await the further proposed meeting with the Minister: the Minister

had promised to give more information about the SGS re-test fees. Even after 5th January, though DEKRA knew the Minister was not

going to supply more information it was reasonable for DEKRA to wait until they were better informed. Parties should not be placed in

the position of having to initiate uncertain litigation. The Minister might have supplied information, which would have dissuaded DEKRA

from proceeding.

Mr Shipsey emphasised that the decision to extend the time was a discretionary one. In Re Comet Machinery Co. Ltd.(In Liquidation)

[1999] I.R. 485, Keane J stated that the Supreme Court would give great weight to the views of a trial judge in such a case.

Conclusion

It is convenient to consider, firstly, the argument of the Minister that, where, as here, the earliest opportunity to apply for review of

a decision arose within the three-month period after it is made, the court has no power to extend the time. This involves reading the

first part of rule 4 of Article 84A entirely separately from the second. The obligation to apply “at the earliest opportunity” is, it is

claimed, distinct from the obligation to apply “in any case within three months from the date when grounds for the application first

arose.” The only period mentioned, and therefore the only one that can be extended is the three months.

In my view, this is an unduly restrictive reading of the provision. Taken to its logical extreme, this would mean that, even where an

application is made within the period of three months, it is out of time, if it is not made at the earliest opportunity. That would be a

startling proposition. To be fair, Mr Carson did not go that far. However, he did say that there is no power to extend the time where

the earliest opportunity arose within the period. The first difficulty about the argument is that the three months run from “the date

when grounds for the application first arose.” It is common ground, in the present case, that grounds first arose on or about 16th

December. Similarly, on the hypothesis put forward by Mr Carson, the earliest opportunity would arise, when the applicant first knew

of the grounds, i.e., the time would not commence to run until then. The answer is, I think, to be found in the clear link forged

between the first and the second part of the rule by the inclusive expression, “in any case.” The three-month period from the date

when the decision was made, or when the grounds first arose, if later, is available in every case. The obligation to move at the

earliest opportunity reinforces the obligation to act quickly. I do not find it possible to attach any great importance to the choice of

this expression rather than the word, “promptly.” At most, there is a slight difference of degree, but I will return to this.

In short, I am satisfied that the learned High Court judge was correct in rejecting the restrictive interpretation on the power to

extend the time proposed by the Minister.

The fact of the matter is that the application was made ten days outside the three-month limit. In this respect, I differ from the

judge’s analysis. He was correct to hold that the decision was made on 24th November, but did not draw the correct conclusion from

his correct finding that the grounds were not known until 15th December. It is to the decision of learned High Court judge to extend

the time in these circumstances that I must now turn.

I have already noted the crucial findings of the learned High Court judge concerning the delay of DEKRA in issuing proceedings from

16th December 1998 to 25th March 1999. Essentially, he concluded that there was no good reason for the delay between 5th January

and 24th February and that, having regard to the essential urgency of the matter, DEKRA was not justified in embarking on further

correspondence and inquiries with the Minister after the latter date. He remarked, correctly that “any belief 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, [of 12th January] leaving them under no doubt that

proceedings would be necessary if they were to progress their complaint.” Further, while accepting that both sides contributed to

delay up to 12th January, he held that “thereafter the delay was entirely the responsibility of DEKRA.”

In effect, this was a conclusion that DEKRA had not shown good reason for their delay after receipt of the letter of 5th January

cancelling the meeting arranged for 12th January. However, the learned High Court judge proceeded directly to consider the

arguments for and against prejudice respectively to the Minister and to SGS. As already noted, the High Court decision finally turned

crucially on the issue of the absence of prejudice to SGS or the Minister. The appellants submit, however, that the issue of prejudice

does not arise until “good reason” has been shown by the applicant.

The wording of Order 84, rule 21 of the Rules of the Superior Courts, which is very similar to that of the rule now under consideration,

was considered by Costello J. (as he then was) in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301. He said, at p. 315:-

"The phrase 'good reasons' is one of wide import which it would be futile to attempt to define precisely. However, in

considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective

one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in

delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84, r. 21 is on the

plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay."

The nature and extent of the burden to show “good reason” calls for some further remarks. The time to be explained by the applicant

may commence to run within the period. This flows from the need to move at “the earliest opportunity.” Nonetheless, a claim cannot

normally be defeated for delay if it is commenced within the period. There would need to be some quite special factor such as

prejudice to third parties. (State (Cussen) v Brennan [1981] I.R. 181). Thus, different levels of importance may be attached to time

falling within and without the period. The fact of delay within the period may affect the approach of the court to time falling without.

The court must always have regard to the circumstances of the particular case and to the fact that the power to extend the time is

there in the interests of permitting the courts to do justice between the parties. This was explained in the judgment of this Court,

delivered by Keane C.J. in The matter of Article 26 of the Constitution and the Illegal Immigrants (Trafficking) Bill, 1999[2000] 2 I.R.

360 at 394. Dealing with the fourteen-day period permitted by the legislation under consideration for challenge to certain decisions

and the power to extend that time for “good and sufficient reason,” he said:

“The court is satisfied that the discretion of the High Court to extend the fourteen day period is sufficiently wide to enable

persons who, having regard to all the circumstances of the case including language difficulties, communication difficulties,

difficulties with regard to legal advice or otherwise, have shown reasonable diligence, to have sufficient access to the courts

for the purpose of seeking judicial review in accordance with their constitutional rights.”

DEKRA, however, has also relied on the following passage from the judgment of McCarthy J in O’Flynn v Mid-Western Health Board

[1991] 2 I.R. 223:

“There is ample ground for saying that both in principle and in precedent an application for judicial review should not fail

merely because it is out of time: The State (Furey) v. Minister for Defence [1988] I.L.R.M. 89. In principle it is right to relieve

against delay in challenging an administrative decision where the delay has not prejudiced third parties.”

The proposition there enunciated can no longer be regarded as good law. The precedent upon which it was based, State (Furey) v.

Minister for Defence, was disapproved by this Court in de Róiste v Minister for Defence [2001] 1 I.R. 190. In his judgment, on page

197, Keane C.J stated that the passage from Furey’s case, upon which the later dictum of McCarthy J was founded was clearly

obiter. He went on to accept the explanation of the relevant law contained in the judgments of Denham and Fennelly JJ in the same

case. It will suffice if I refer to one passage from the judgment of Denham J, at page 210:

“The time element in judicial review proceedings requires early application to court by an applicant. This is indicated by the

requirement that the application be made promptly, and in any event within three or six months from when the grounds for

application arose, unless there is good reason to extend the period within which the application shall be made. This is a shorter

time span than the time required in other proceedings, for example a plenary summons. Time is more of the essence, more

urgent, in judicial review proceedings. Indeed in some areas of judicial review, by statutory requirement, an application must

be made within weeks. Thus, the case law relating to dismissing proceedings for lack of prosecution has some, but not great,

relevance to applications for judicial review. Such cases may be helpful in analysing the reason for delay to see if it is a good

reason and to achieve a just decision.

Although, the de Róiste case was an extreme one on its facts, concerning an application delayed for some thirty years, the judgments

usefully address some points of distinction between the principles applicable to delay in the context of Judicial Review and in the

context of the dismissal of an action for want of prosecution. In the first case, it is incumbent on the applicant to explain any delay

on his part in moving the court and the burden is upon him. In the second case, the plaintiff may commence his action within the

limitation period laid down by law. The burden of establishing that delay has been inordinate and inexcusable lies on the moving party,

ordinarily the defendant. Naturally, in each type of case, the court is called upon to strike a balance, in the interests of justice,

between a number of considerations.

There has been a tendency in recent legislation to impose comparatively short time limits for the challenge of administrative decisions.

The case of the Illegal Immigrants (Trafficking) Act, 2000 is a notable example. In delivering the judgment of the Court in that case,

Keane C.J drew attention to the public policy in this field:

“There is a well established public policy objective that administrative decisions, particularly those taken pursuant to detailed

procedures laid down by law, should be capable of being applied or implemented with certainty at as early a date as possible

and that any issue as to their validity should accordingly be determined as soon as possible.”

In the present case, there are two stages to the decision of the learned High Court judge. In the first stage, he held: that the

earliest opportunity for making the application arose on or immediately after 16th December; that DEKRA had the onus of explaining

and justifying any delay; that it was reasonable to postpone issuing proceedings in expectation of the meting proposed for 12th

January; that the cancellation of that meting by the Minister’s letter of 5th January must have left them in no doubt that there was

an end to any discursive process with the Minister; that DEKRA had provided no explanation for its delay after that date up to 24th

February; that DEKRA was not justified in re-engaging in correspondence after 24th February, having regard to the essential urgency

of the matter. In short, though he did not say so in express terms, learned High Court judge effectively concluded that DEKRA had

furnished no good reason for its delay.

The learned High Court judge proceeded directly to consider the issue of prejudice. He was undoubtedly influenced by the dictum,

quoted above, of McCarthy J in O’Flynn v Mid-Western Health Board. I am satisfied, however, that the statement in question does not

now correctly represent the law and that the legislative tendency towards the imposition of stricter time limits is matched by

corresponding judicial development. An applicant, who is unable to furnish good reason for his own failure to issue proceedings for

Judicial Review “at the earliest opportunity and in any event within three months from the date when grounds for the application

first arose” will not normally be able to show good reason for an extension of time. In particular, he cannot, without more, invoke the

absence of any prejudice to the opposing party as the sole basis for the suggested good reason.

The strictness with which the courts approach the question of an extension of time will vary with the circumstances. However, public

procurement decisions are peculiarly appropriate subject-matter for a comparatively strict approach to time limits. They relate to

decisions in a commercial field, where there should be very little excuse for delay. I agree with the learned trial judge that no more

favourable consideration should be given to DEKRA’s application for an extension of time by reason of the fact that they limited their

claim to damages. Firstly, their initial stance on this issue was ambiguous. Secondly, I agree with the view of Buxton L.J. expressed in

Matra that a continuing damages claim is capable of having an “unsettling and disruptive” effect on the contractual relations

established by the awarding decision. However, that issue really arises only when the applicant has shown prima facie good reason for

his delay and the respondents plead prejudice. In the present case, the applicant has not satisfied the first requirement. On the facts

of the present case, DEKRA were acutely aware of their legal position and of their legal remedies as early as 14th December. If DEKRA

had been prevented by concealment from learning the reasons for the failure of their, their position would very likely be different.

However, so aware were DEKRA of their grounds of complaint that they were in a position to give and did, in fact, give the statutory

notice to the Minister. It is practically uncontested that DEKRA have shown no good reason for their failure to commence proceedings

very shortly after the Minister’s letter of 5th January. The remedy of Judicial Review derives from the Remedies Directive which

requires that “decisions of contracting authorities may be reviewed effectively and, in particular, as rapidly as possible.” DEKRA did

not move as rapidly as possible.

For these reasons, I would allow the appeal. I would set aside the High Court order granting the extension of time and would

substitute an order dismissing DEKRA‘s application.