Background
The Irish Court of Appeal has delivered a significant judgment
in legal proceedings arising from a challenge by Word Perfect
Translation Services Limited (“Word Perfect”) to an order
for discovery made by the High Court compelling the appellant, the
Minister for Public Expenditure and Reform (the
“Minister”) to discover nine categories of
documents1.
The decision arises from legal proceedings brought by Word
Perfect, an unsuccessful tenderer, challenging the Minister’s
decision to award a contract for the provision of translation
services to another economic operator following a mini-competition
under a multi-party framework agreement.
The key issue which the Court of Appeal had to address was
whether the nine categories of discovery sought by Word Perfect and
granted by the High Court were relevant and necessary to enable
that party to fairly and properly challenge the Minister’s
award decision.
In a judgment which has potentially significant implications for
economic operators seeking to challenge certain procurement
decisions in Ireland, the Court of Appeal overturned the High Court
decision in all material respects, concluding that all nine
categories of discovery ordered by the High Court were not in fact
relevant and necessary for the fair and proper determination of the
issues in the proceedings.
Facts of the case
Word Perfect initiated legal proceedings challenging the outcome
of a mini-competition for a contract for the provision of
translation services. In the course of those proceedings, Word
Perfect sought discovery of nine categories of documents which it
argued were relevant and necessary to enable it to fairly and
properly challenge the Minister’s award decision. The documents
sought related to the evaluation of specific award criteria, the
successful tenderer’s tender and associated clarifications, the
evaluation of the successful tender, the evaluation of Word
Perfect’s tender and the failure to observe a standstill
period.
The Minister agreed to make limited discovery in respect of four
of the nine categories of documents sought, but this offer was
refused. Word Perfect subsequently sought an order for discovery in
the High Court (Simons J) which determined that all documents
sought by Word Perfect were both relevant and necessary. The Court
held that the grounds of the challenge were not speculative, but
rather derived from what it considered to be “the very
limited information which [the Minister] has, to date, made
available to Word Perfect”. The Minister appealed this
decision.
Decision of the Court of Appeal
The Court of Appeal recited with approval the key principles
that guide the Irish Courts in relation to discovery in public
procurement cases, as summarised by the Court in BAM PPP PGGM
Infrastructure Cooperatie UA v. National Treasury Management Agency
and Minister for Education and Skills2:
1. The primary test is whether the documents are relevant to the
issues between the parties. Once that it is established, it will
follow in most cases that their discovery is necessary for the fair
disposal of those issues.
2. Relevance is determined by reference to the pleadings.
3. Documents sought on discovery must be relevant, directly or
indirectly, to the matters in issue between the parties to the
proceedings.
4. An application for discovery must show it is reasonable for
the court to suppose that the documents contain relevant
information.
5. An applicant is not entitled to discovery based on
speculation.
6. In certain circumstances an order for discovery which is too
wide-ranging may be an obstacle to the fair disposal of proceedings
rather than the converse.
7. The crucial question is whether discovery is necessary for
“disposing fairly of the cause or matter”.
8. There must be some proportionality between the extent or
volume of the documents to be discovered and the degree to which
the documents are likely to advance the case of the applicant or
damage the case of his or her opponent, in addition to ensuring
that no party is taken by surprise by the production of documents
at trial.
9. Discovery could become oppressive and the court should not
allow it to be used as a tactic in war between parties.
The discovery requests were divided into a number of
categories.
A number of document categories concerned the evaluation of
tenders by reference to specific award criteria. Word Perfect
submitted that certain undisclosed award criteria had been applied
by the Minister during the evaluation of tenders and the tender
documents had been unlawfully interpreted. The Minister had denied
this claim, arguing that the alleged undisclosed criteria were
merely characteristics or relative advantages of the successful
tender. The Minister denied that documents relating to the
evaluation of tenders were relevant and necessary for dealing with
these claims.
Other categories of documents concerned the successful tender
and clarification documents, documents relating to the evaluation
of the successful tender and documents relating to the evaluation
of Word Perfect’s own tender. These related to the claims (all
denied by the Minister) that Word Perfect had been treated
unequally; that the Minister had not explained the scores of the
successful tender in respect of certain criteria; that the
successful tender should have received fewer marks; and that the
successful tender was abnormally low.
A further category of documents related to the Minister’s
failure to observe a standstill period following the
mini-competition.
The High Court had ordered the discovery of documents in all
nine categories on the basis that they were both relevant and
necessary. It held that the grounds were not speculative and
determined that there was no basis on which Word Perfect could
properly advance its case without obtaining an order for discovery.
According to the judge, discovery was indispensable and it was not
sufficient for the parties and the Court to only have access to the
summary information provided to Word Perfect in the letteradvising
it that it had been unsuccessful. The English case of Roche
Diagnostics3 and the Irish case of Somague4
were both cited in support of this decision.
On appeal, the Minister submitted that the trial judge erred in
ordering discovery of all nine categories.
In relation to those categories of documents concerning the
complaint that undisclosed award criteria were used, the Minister
argued that the issue the Court had to determine was not whether
the successful tenderer was awarded the correct marks, but rather
whether the relative advantages of the successful tenderer were
just that (i.e. relative advantages) and not undisclosed award
criteria. The Minister argued that no discovery was required for
Word Perfect to advance its case on these grounds; this was a
matter of interpretation of the tender documentation. Word Perfect
countered, arguing that the documents sought were all related to
the pleaded grounds and that they were necessary for it to have a
meaningful opportunity to present its case. It disagreed that the
issue of undisclosed criteria was purely a question of
interpretation, contending that there was a clear factual
difference between a relative advantage and an undisclosed
criterion which can only be resolved by an examination of
evaluation documents. The Court of Appeal found that the trial
judge was wrong in relation to his conclusions on relevance and
necessity. There is no factual dispute to be resolved when
determining whether the feedback provided to Word Perfect
constituted undisclosed award criteria or merely characteristics or
relative advantages. The discovery of documents relating to the
evaluation of tenders could not assist Word Perfect in making its
case and were therefore not relevant to the narrow issue to which
they related.
Another category of documents related to a complaint that Word
Perfect had been deducted marks unlawfully for its response to a
particular award criterion. The Minister submitted that there was
no factual issue at all and that the specific complaint about the
deduction of marks did not necessitate the discovery of evaluation
documents. Word Perfect argued that it was a factual dispute for
which discovery was necessary. Again, the Court of Appeal held that
there was no need for Word Perfect obtain sight of this category of
documents. The complaint that these documents related to could be
resolved by legal argument and reference to the tender documents
and feedback. There were no facts in dispute which required sight
of the documents for their resolution.
Other documents related to how Word Perfect’s own tender was
marked. The Court of Appeal found that the trial judged had failed
to consider adequately the actual issues to which these documents
were said to be relevant and necessary. The issues concerning how
the unsuccessful tender was marked could be resolved by
interpreting the tender documents and were not dependent on
information from documents sought by discovery.
Word Perfect had also sought discovery of the successful tender
and documents relating to the evaluation of both that tender and
Word Perfect’s own tender, on the grounds that they were
relevant to an alleged breach of equal treatment during evaluation,
an alleged failure to explain the scores and the alleged acceptance
of an abnormally low tender. The Minister characterised this as
speculative and pointed to the fact that the Court of Appeal has
previously held that where marks awarded to a successful tenderer
for a particular criterion are equal to or lower than the marks
awarded to an unsuccessful tenderer, there is no obligation on the
authority to give reasons for the marks awarded to the successful
tenderer5. The Court of Appeal held that the seeking of
discovery of these documents was indeed a ‘fishing
exercise’ which aimed at turning up something which might
substantiate the claims being made. The Court held that there was
insufficient particularity in the pleaded claims to indicate that
discovery was necessary.
Finally the Court considered Word Perfect’s application for
discovery of documents relating to its claim that the Minister
acted unlawfully by failing to conduct a standstill period prior to
awarding the contract. Overturning the High Court’s decision on
this, the Court of Appeal held that a case of necessity had not
been made for what it considered to be the “general
category of documents” sought. It considered that this
was a ‘general trawl’ of documents which the Minister might
have and in the absence of any detail as to the sort of documents
that might exist, it was impossible to be satisfied that such
documents would be relevant and necessary.
Conclusion
This significant judgment should be considered carefully by
procurement practitioners, awarding authorities and economic
operators who may be considering challenging public contract award
decisions in Ireland.
The complete reversal by the Court of Appeal of the High
Court’s decision in relation to all nine categories of
documents sought demonstrates the relatively uncertain nature of
the law of discovery as it applies to public procurement cases in
Ireland and how it is evolving.
The restrictive approach adopted by the Court of Appeal will be
welcomed by contracting authorities. However it could create
significant difficulties for applicants seeking to challenge award
decisions going forward, particularly in the many cases where it is
alleged that undisclosed award criteria have been revealed by
authority correspondence and where the scoring of tenders is called
into question.
The Court of Appeal is clearly mindful of the risk of
unsuccessful tenderers trawling speculatively for evidence to
substantiate their claims. It favours an approach which
forensically examines whether each any every category of document
sought is truly relevant and necessary for the disposal of the
issues at hand.
Applicants will argue that the bar for discovery is being set
very high in procurement cases and this, together with other recent
developments (such as the limiting by the Court of Appeal of
information that is required to be included in standstill letters
when the successful tenderer scores the same or fewer marks for a
particular criterion) risks encroaching upon their fundamental
right to seek an effective remedy.
Footnotes
1. Word Perfect Translation Services Limited v. Minister
for Public Expenditure and Reform [2019] IECA 110.
2. BAM PPP PGGM Infrastructure Cooperatie UA v. National
Treasury Management Agency and Minister for Education and Skills
[2015] IECA 246.
3. Roche Diagnostics Limited v. The Mid Yorkshire
Hospitals NHS Trust [2013] EWHC 933 (TCC).
4. Somague Engenharia S.A v. Transport Infrastructure
Ireland [2015] IEHC 723.
5. Word Perfect v. Minister for Public Expenditure (no.
3) [2018] IECA 156 (Hogan J). See also Sanofi Aventis v. HSE [2018]
IEHC 566.
6. This case note was first published in the Public
Procurement Law Review, Issue 4/2020, by Thomson
Reuters
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
