Minister for Sustainable Economic Development v Bretagne Angleterre Irlande SA (Court of Appeal : Appeal (Civil)) [2025] JCA 036 (24 February 2025)

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URL: https://www.bailii.org/je/cases/UR/2025/2025_036.html
Cite as: [2025] JCA 36, [2025] JCA 036

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Applications for leave to appeal the decisions of the Royal Court on 20 and 31 December 2024

[2025] JCA 036

Court of Appeal

24 February 2025

Before     :

Sir William Bailhache,  President;
Helen Mountfield KC JA, and;
The Rt Hon James Wolffe KC JA.

 

Between

Minister for Sustainable Economic Development

Appellant/Respondent (to Judicial Review and to the cross-appeal and to application to set aside)

And

Bretagne Angleterre Irlande SA

Respondent to Appeal and Cross-Appellant / Respondent (to judicial review)

And

DFDS A/S

Interested Party

Advocate M. St J. O'Connell for the Appellant/Respondent.

Advocate R. J. McNulty for the Respondent to Appeal and Cross Appellant

Advocate S. Williams for the Interested Party.

judgment

mountfield ja:

Introduction

1.        This Court sat on 3 and 6 January 2025 to hear urgent applications for leave to appeal decisions of the Royal Court (Commissioner Thompson) on 20 and 31 December 2024, concerning  decisions of the Minister relating to tendering for ferry services to the Island of Jersey from March 2025.

2.        The Court had before it three applications for leave to appeal, which all arose from an application to bring proceedings for judicial review in relation to the Minister's decision to grant DFDS preferred status as the successful bidder in the contract for the provision of ferry services to and from the Island of Jersey for a minimum period of 15 years with effect from 25 March 2025, when the current contract which is held by Condor Ferries Limited ("Condor") expires.  The ferry services which form the subject matter of these proceedings are lifeline services for the Island, being the means by which essential supplies are brought to it.  

3.        In the latter stages of the procurement process, there were two bidders for this contract - Bretagne Angleterre Irlande SA ("Brittany Ferries"), which is the 51% shareholder of Condor (the current and proposed operator) and  DFDS A/S ("DFDS"), which is a Danish ferry provider. 

4.        This was the second of two tender processes.  The first tender process was subject to the terms of an Invitation to Tender issued jointly by the States of Guernsey and the Government of Jersey on 13 May 2024 ("the Channel Island Procurement Process").  The intention under that process was that a draft Concession Agreement would be entered into with the relevant operator or operators, by the Government of Jersey acting through the Minister for Sustainable Economic Development ("the Minister") and the Ports of Jersey Limited, and also by the States of Guernsey.  This Invitation to Tender set out the rules for and conditions upon which the bidders would participate.  Paragraph 3.2 permitted both governments to withdraw from or terminate the procurement process at any time without liability, and to make amendments and changes on reasonable notice and subject to fair and equitable treatment.  No Jersey public procurement legislation applied, but the Invitation to Tender stated that the process would be conducted in an open and transparent way -˜akin to' a Competitive Procedure with Negotiation as set out in the  Public Contracts Regulations 2015 ("PCR 2015") which apply in the law of England and Wales.  These English regulations provide at paragraph 29(16) that during negotiations, the contracting authority shall ensure equal treatment of all tenders and not provide information in a discriminatory manner. Notwithstanding the assertion that the Channel Island Procurement Process would be undertaken -˜akin to' a process under the PCR 2015, it was expressly stated  in the Invitation to Tender that "the Procurement Process is not bound by PCR 2015 or CCR 2016 and Bidders are unable to access any of the remedies available through them."

5.        In the circumstances summarised below, the States of Guernsey broke with this joint approach and unilaterally selected Brittany Ferries as the preferred bidder on 30 October 2024, entering into a Guernsey-only concession agreement on 4 December 2024.

6.        The Government of Jersey accordingly formally terminated its participation in the joint process, which had effectively been frustrated by the States of Guernsey's withdrawal from it, on 7 November 2024. 

7.        The Guernsey decision on 30 October had placed the Jersey government in a difficult situation, since the current ferry concession was intended to expire in March 2025.  The Jersey government therefore invited the existing operator, Condor, to extend its contract for seven months to allow a full tender process to take place for a Jersey-only service, but Condor and its parent company, Brittany Ferries, declined.  This meant that there was only a short window in which Jersey could re-tender and get a service up and running for the end of the existing contract in March 2025 (which of course would take time to organise and establish, if the existing carrier were not to prove the successful bidder). 

8.        Accordingly, the Government of Jersey ran a second, truncated tender process for a Jersey-only service ("the Jersey Procurement Process").  

9.        The Jersey Procurement Process, subject to the terms of the Request for Proposal issued on 22 November 2024, differed from the previous procurement process in some material respects.  The criteria were slightly different, and an external consultant, KPMG, was appointed to advise on evaluating the bids against those criteria.  However, that apart, the conditions were equivalent to the Invitation to Tender in the Channel Island Procurement Process, and contained an equivalent form of submission statement from the bidder.

10.     For the Jersey Procurement Process, as for its predecessor, the Invitation to Tender provided that formal acceptance of a tender by the Government of Jersey or its relevant part (i.e. here, the Minister) and the draft contract documentation attached to the tender bid would comprise a binding contract between the Government of Jersey and the bidder, even before the Concession Agreement was executed.  In other words, by participating in the process, a bidder understood that the award of preferred bidder status amounted to the formation of a legally binding agreement on the part of a successful bidder to provide services to the Government of Jersey.

11.     The two bidders in the final stage of the Jersey Procurement Process were again Brittany Ferries and DFDS.  On 3 December 2024, Brittany Ferries was informed by the Minister that DFDS had been awarded preferred bidder status.  

12.     By an application of 18 December 2024, issued ex parte but on notice to the Minister, Brittany Ferries sought to challenge two decisions by way of judicial review.  The first was the Minister's  decision of 6 November 2024 to terminate his participation in the Channel Island Procurement Process ("the first decision").  The second was the Minister's decision as to the preferred bidder for the Jersey Procurement Process ("the second decision").

13.     The Commissioner heard the leave application with extreme expedition.  On 20 December 2024, the Commissioner refused Brittany Ferries leave to challenge the first decision.  However, he granted partial leave in respect of the second decision, granting leave to challenge on grounds of procedural unfairness and apparent bias, but refusing leave on grounds of failure to give sufficient reasons for the decision.  He gave a written decision on the leave application on 24 December 2024 (Bretagne Angleterre Irlande SA v Minister for Sustainable Economic Development [2024] JRC 292).

14.     On 30 December 2024, the interested party DFDS (which had been present but had not been heard at the hearing on 20 December 2024) applied to set aside the  Commissioner's grant of leave, on the grounds that the applicant had not drawn to the court's attention material disclosing prejudice arising from its delay in proceeding.  The Commissioner considered this application (and the Minister's and Brittany Ferries' responses to it) on the papers.  By an Act of Court of 30 December 2024 and Judgment of 31 December 2024, he refused to set aside his judgment (Bretagne Angleterre Irlande SA v Minister for Sustainable Economic Development [2024] JRC 297).  The substantive hearing of the application for judicial review was set for 13 and 14 January 2025.

15.     By Notices of Appeal dated 31 December 2024, DFDS and the Minister applied for permission to appeal the decisions (i) to refuse to set aside the permission granted on 20 December 2024, and (ii) to grant Brittany Ferries leave to apply for judicial review.  Brittany Ferries opposed those appeals.  It also cross-appealed  the Commissioner's decisions to limit leave to apply for judicial review to the second decision, and to refuse leave to argue its -˜reasons' challenge. 

16.     Thus, the Court of Appeal had before it three separate appeals: 

(i)        An application by the Interested Party, DFDS, to appeal against the refusal to set aside the leave given to Brittany Ferries to challenge the decision of 3 December 2024 by way of judicial review.

(ii)       An application by Brittany Ferries for leave to appeal:

(a)      against the Commissioner's decision to refuse permission to challenge the decision of 6 November 2024 to terminate the Channel Island Procurement Process to commission ferry services to the islands of Jersey and Guernsey.  

(b)      against the Commissioner's decision to refuse them permission to challenge the decision of 3 December 2024 on the basis of an alleged failure to give adequate reasons for the decision.

(iii)      An application by the Minister for leave to cross-appeal against the Commissioner's decision to grant permission to challenge his decision by way of judicial review and allow the appeal. 

17.     This Court heard all three appeals on 3 January 2025 and handed down its judgment and summary reasons on 6 January 2025 (Bretagne Angleterre Irlande SA v Minister for Sustainable Economic Development [2025] JCA 005).  Given the urgency of the subject matter, the Court indicated that it would hear the applications for leave and the substantive appeals together.  The Court granted leave to appeal to DFDS and the Minister, and allowed the DFDS and the Minister's appeals.  It refused permission on both Brittany Ferries' applications for leave to cross-appeal.  It followed that the judicial review proceedings were at an end, and the hearing listed for 13 and 14 January 2025 was vacated. 

18.     The decision was handed down with a summary explanation ahead of full reasons because of the extreme urgency of the appeal's determination.  Given that the subject matter of the appeal was the award of a contract for provision of ferry services to the Island of Jersey with effect from March 2025, and that the operating entity had to take extensive steps to ensure that the service could be provided from that date, it was essential for all parties to know where they stood as soon as possible if disruption of delivery of essential supplies to the Island was to be avoided.  The Court indicated that it would hand down the fully reasoned judgment at a later date, and this we now do.

A short summary of the factual background

19.     A summary of the general factual background to this challenge was set out in the Commissioner's judgment of 24 December 2024 at paragraphs 3-65 of the judgment, and this -“ with the same caveats -“ the Court accepted and adopted. 

20.     In short, the Jersey Procurement Process arose after the termination of the Channel Island Procurement Process which had commenced on 13 May 2024, and which had resulted, in the later stages at least, with two bidders submitting tenders and invitations to negotiate - Brittany Ferries and DFDS.

21.     Unfortunately, there was a disagreement between the two procuring parties in the Channel Islands Procurement Process.  The States of Guernsey considered that Brittany Ferries had the stronger bid (and that DFDS should be excluded from the process because it had failed to satisfy one essential criterion).  The Government of Jersey considered that neither bidder had given a satisfactory bid on the basis of the criteria advertised, and had further questions in particular for Brittany Ferries which it considered should be addressed before a decision was reached.  

22.     However, on 30 October 2024, the States of Guernsey departed from the joint approach and announced a unilateral decision to procure services from March 2025 from Brittany Ferries, without awaiting the result of enquiries which the States of Jersey considered necessary for it to reach a proper decision.  

23.     This put the Government of Jersey in an invidious position - either to accept the Brittany Ferries bid without the answers to the questions which the Minister felt were necessary; to obtain those answers; or to withdraw from the procurement process (as the procurement rules as published in the tender documents permitted it to do).

24.     On the same date, the Chief Minister and the Minister requested Brittany Ferries to attend a meeting to answer some questions they had in relation to the bid.  A further question about which party -“ Brittany Ferries or Condor -“ would be the counter-party, was put in writing on 1 November 2024, and Brittany Ferries responded.  Evidently this answer did not satisfy the Minister sufficiently to -˜fall-in' with the Guernsey decision.

25.     The States of Guernsey entered into a Guernsey-only concession agreement with Brittany Ferries on 4 November 2024.

26.     On 6 November 2024, Mr Andrew Scate, Senior Responsible Officer for the procurement process informed Brittany Ferries orally (and confirmed in writing on 7 November 2024) that the joint Channel Island Procurement Process was terminated (as paragraphs 3.2 and 105 of the Invitation to Tender permitted).

27.     Mr Scate informed Brittany Ferries that the Government of Jersey would start a fresh procurement process for a -˜Jersey-only' Ferry Services Operator.  Brittany Ferries made enquiries as to the respects in which the Government of Jersey had had concerns about its bid in the Channel Island Procurement Process.  However, Mr Scate declined to enter discussions about the terminated process with one bidder, ahead of the launch of the new process.  

28.     Condor was invited to extend the existing contract by seven months so as to allow the new procurement process to be conducted.  However, on 11 November 2024, Mr Christophe Mathieu of Brittany Ferries wrote and said that Condor would "not be able" to accept the proposed seven month contract extension.  The reason he gave was that the logistics of a short term extension to the Jersey only service risked being in conflict with the parameters of the long term concession in the course of finalisation with Guernsey.

29.     He also raised concerns in a letter to Jersey's Chief Minister in a letter of the same date (11 November 2024) about what he said was a lack of openness and transparency about the reasons for termination of the Channel Island Procurement Process, which he alleged would "taint" the fairness of any subsequent process.  He also alleged apparent bias against Brittany Ferries, on the basis of what he said arose from two matters.  The first was that, at an earlier stage of the Channel Island Procurement Process, the then Senior Responsible Officer, Mr Corrigan had expressed personal views on the best bidder in the course of a public consultation on the matter.  (Mr Corrigan had since apologised for his error of judgment, recused himself and taken no further part in the process:  he played no part in either the first or second decision under challenge).  The second basis for alleging apparent bias was public observations of the Minister, Deputy Kirsten Morel. 

30.     In his letter of 11 November 2024, Mr Mathieu said that Brittany Ferries and Condor did not intend to participate in the process described for a Jersey-only solution given what he said was a "lack of confidence in the integrity and impartiality of Deputy Morel".

31.     On 13 November 2024, the Minister made a public statement in the States of Jersey, saying (in effect) that they would not be pushed by the States of Guernsey's decision to entering a contract, and that they would pursue "the right result for the States of Jersey".  This statement, together with the involvement of Mr Corrigan in the earlier Channel Island Process, was subsequently relied upon by Brittany Ferries as indicating apparent bias in favour of DFDS.

32.     The Minister explained to Mr Mathieu his view that he could not properly enter into explanatory correspondence about the Channel Island Procurement Process without tainting the Jersey Procurement Process, because "we remain in a process with DFDS and we must be fair and equitable to all parties".  Nevertheless, Brittany Ferries was encouraged to participate in the Jersey Procurement Process.

33.     On 18 November 2024, Brittany Ferries informed the Minister that it had decided to participate in the Jersey Procurement Process, albeit saying that it  "reserved all rights" in relation to a prospective challenge to the impartiality of the Minister.  We will come back to that statement and its significance to the delay argument in due course.

34.     Brittany Ferries did indeed lodge a tender on 27 November 2024.  In this tender, earlier uncertainties were resolved in that it was the bidder and operator, with Condor Ferries discharging the obligations of operator by way of subcontract.

35.     Pausing there, it is a significant part of the factual background in this case that the Minister invited Condor to extend the existing contract by seven months to allow a fresh procurement exercise to be considered and undertaken, but Brittany Ferries as Condor's parent company refused that request on 11 November 2024.  This meant that, whereas the Channel Island Procurement Process was launched more than ten months before the anticipated commencement date of the new operation from March 2025, the second Jersey Procurement Process launched in November 2025 for the same operation had to be undertaken with great haste. 

36.     Affidavit evidence, sworn on 19 December 2024 and filed on behalf of the Minister on the eve of the 20 December 2024 hearing, explained the way the Minister went about this Jersey Procurement Process and involved the Minister:

(i)        Taking active steps to encourage both previous bidders to bid in the second process;

(ii)       Publishing new (slightly adjusted) criteria - using essentially similar criteria to the previous procurement process but, among other changes, amending the terms of the legal criterion which had resulted in a "technical fail" for DFDS in the Channel Island Procurement Process;

(iii)      Providing for a more extensive involvement than in the Channel Island Procurement Process of external consultants, KPMG, who had participated in the first process in a purely advisory capacity, but in the Jersey Procurement Process assisted with their own independent assessment of the bidders and scoring of bids against the bid criteria;

(iv)     Ensuring independent separate assessments of the bids by civil servants (who, for the hearing before us, put in affidavit evidence as to the process they undertook and their reasoning, which they undertook independently from one another);

(v)      Restricting the Minister's role by excluding him from the evaluation and assessment process and leaving him only to reviewing and considering whether to accept the recommendation of his officials.

37.     On 3rd December 2024 Mr Scate telephoned Mr Mathieu of Brittany Ferries to inform him of the Minister's decision that following the expedited Jersey Procurement Process, DFDS would be awarded preferred bidder status for the concession for ferry services to the Island of Jersey for a period of 15 years with effect from 25 March 2025.  The contract was to be finalised on 31 December 2024.  This decision was communicated in writing on 4 December 2024.

38.     Mr Mathieu's undisputed evidence is that he reiterated his concerns about procedural unfairness and apparent bias, and an alleged lack of sufficient reasons for the decision in the telephone call on 3 December 2024.  Nonetheless, the first formal request for reasons for both the first and second decisions was only made by lawyers acting for Brittany Ferries on 11 December 2024. 

39.     Mr Scate responded to the 11 December letter on 16 December 2024 with a further, more detailed explanation of the decision to award the tender to DFDS.  First, he set out scores and reasons in an Excel spreadsheet which had been used to "objectively assess and give value to the key criteria across each of the bids as evaluated and overseen by KPMG along with GoJ Technical advisors".  On the basis of those scores, DFDS scored 74% and Brittany Ferries  scored 55% - in other words, there was a very significant difference in the evaluation of the strength of the two bids, with DFDS being rated as much the stronger bid.  Importantly, in the context of the arguments developed before us, Mr Scate also gave a brief narrative synopsis of the differences between the bids, which was quoted in paragraphs 38 and 41 of the Commissioner's decision.

40.     Mr Scate's evidence on behalf of the Minister summarised concerns about the Brittany Ferries' bid and stated (at paragraph 9.9):

"I wouldn't say we were biased.  I certainly think we were looking for a company that does not have clear and present financial issues, which would mean that these services cease operation which would put Lifeline Services at risk.  We don't want that.  We want a service that just operates properly and that we don't have to worry about.  And that, fundamentally, is what we have been trying to achieve".

41.     The concession contract between the Minister and DFDS for provision of ferry services to the Island of Jersey was perfected on 31 December 2024 (when a stay agreed by the Minister came to an end).  Accordingly, by the time we heard the appeal, there was in place a binding concession contract between the parties, in terms of which DFDS was committed to onerous contractual obligations.

42.     When it brought its application to the Commissioner to set aside leave, DFDS lodged an affidavit from Filip Werne Hermann sworn on 23 December 2024, explaining the extensive logistical steps it had already taken - including tens of millions of euros of expenditure - to ensure that it would be in a position to commission these services by March 2025.  We also had before us a second affidavit dated 31 December 2024 from Mr Mathieu.

The Commissioner's decisions

43.     The application by Brittany Ferries for leave to bring proceedings for judicial review was lodged on 18 December 2024, and heard on 20 December 2024.  DFDS was present as an interested party, but counsel for DFDS was not invited to speak at what was formally an ex parte application.  The Commissioner indicated that -˜at that stage' the issues were principally between Brittany Ferries and the Minister.

44.     Having heard counsel for Brittany Ferries and the Minister, on 20 December 2024, the Commissioner refused leave for judicial review of the first decision.  He held that the Minister had had little option other than to terminate the first process after the States of Guernsey had unilaterally departed from it.  However, he granted leave to apply for judicial review of the second decision, albeit on two limited grounds.  

45.     He held that the apparent bias submission was arguable.  He refused to consider the prior involvement of Mr Corrigan in the first process, who was by then out of the picture, but accepted that it was arguable that the Minister's public comments about seeking "the right result" for Jersey might indicate to the fair-minded outside observer that he had a predisposition towards awarding the contract to DFDS.  However, he observed that "Brittany Ferries only just got over the threshold for giving leave on this ground", and said that he would have refused leave on grounds of bias if he had not also been minded to grant leave on the basis that want of procedural fairness was arguable.  This he granted on the basis that the refusal more fully to explain to Brittany Ferries why the Minister had concluded there was no tender in the Channel Island Procurement Process that was capable of being accepted might have tainted the fairness of the Jersey Procurement Process.  He refused leave in relation to a third intended ground of challenge, namely a failure to give adequate reasons for the decision of 3 December 2024, in the light of the evidence before him.

46.     As to the impact of the grant of leave on the public interest and third party interests, the only reference which the Commissioner made to these was in paragraph 133 of his judgment of 24 December 2024, in which he recognised that the decision on leave may have significant ramifications for the Government of Jersey and its desire to enter into a contract with DFDS, but held that "that is not a relevant consideration in relation to whether or not to grant leave if the relevant test is met and a trial is required ".

47.     DFDS subsequently brought an application under Royal Court Rule 16/6 to set aside the decision to grant leave on the basis that there had been material non-disclosure by Brittany Ferries as to delay and its consequences in relation to detriment to good public administration and third party interests, and that the leave so granted should be set aside in the light of the "compelling evidence" of Mr Hermann, sworn on 23 December 2024, as to the serious commercial detriment to DFDS and harm to its ability to procure and provide a ferry service in time for the 25 March 2025 start date if the judicial review were allowed and relief were granted.  DFDS submitted that even the uncertainty created by the proceedings was detrimental to good administration since it caused doubt over the commitment of millions of euros of expenditure, contracts with ports and recruitment of employees necessary to "stand a chance" of being ready to provide services at the end of March.  These submissions were supported by the Minister.  

48.     In view of the urgency of the matter, and the importance of the decision to award a new ferry contract for Jersey, the learned Commissioner considered this application on the papers only.  On 31 December 2024, he handed down written reasons for refusing it.  In short, he considered the submissions made by DFDS might be relevant to relief but were not relevant to the grant of leave. 

Late evidence

49.     Brittany Ferries submitted that we should not have regard to affidavit evidence which the Minister and DFDS sought to submit under cover of emails of 30 December 2024 and 31 December 2024 and other affidavits filed on 2 January 2025, because this post-dated the Royal Court's decision.  It said that there were no special grounds upon which this evidence should be admitted (as is required by Rule 12(1) of the Court of Appeal (Civil) Rules 1964), and that in any event the evidence was irrelevant to the issue of whether leave should be granted, and was only relevant (if at all) to the substantive determination of the claim for judicial review.

50.     Given the extremely truncated timetable for both the leave hearing and set aside hearing before the Commissioner, and the intervention of Christmas and New Year, it is unsurprising that there was some evidence before us which was not put before the Commissioner.  

51.     We considered this evidence, which further explained the decision making process, and which also fleshed out the factual basis for submitting that the grant of leave would cause serious detriment to good public administration and DFDS's ability to commit resources and expenditure to preparing the "lifeline services", de bene esse, without reaching a formal decision as to its admissibility.

52.     However, having done so, we rejected Brittany Ferries' objection to its admissibility.  Firstly, given the extremely truncated timetable upon which the Commissioner had to consider the application for permission (two days after it was lodged) it is unsurprising that there was "simply no time" as counsel put it for full evidence in reply to be lodged in time for that ex parte on notice hearing.  Secondly, the compelling new affidavit of Mr Hermann sworn on 23 December 2024 ( but which was not taken into account by the Commissioner in his paper consideration of the set-aside application), provided evidence which had not been, and indeed, given the timescale, could not realistically have been, at the hearing before him on 20 December 2024.  Mr Hermann's affidavit provided important evidence as to commercial and contractual steps taken after its tender was accepted, some of which had (necessarily) been taken after the Commissioner's leave decision.  So it was updating evidence on new matters, not late evidence on matters which had occurred before the application for leave.  Thirdly, we concluded that, on application of the proper test as to the grant of leave, this evidence was highly material to the decision which we had to reach under Rule 16(6) of the Court of Appeal Rules (as we explain in our judgment below).  Fourthly, there was no prejudice as Mr Mathieu had been able to swear a second affidavit on behalf of Brittany Ferries on 31 December 2024, which we also took into account (and counsel for Brittany Ferries did not indicate that it had submissions to make in response to the small quantity of fresh affidavit evidence which was sworn on 2 January 2025 without lodging further evidence of its own).  Accordingly, we admitted this evidence and found it to be of assistance.

The legal test to be applied on the grant of leave

53.     The parties before the Commissioner were agreed that the test for deciding whether to grant leave to apply for judicial review is that set out in the decision of the Privy Council in Sharma v Browne-Antoine [2006] 1 WLR 780 at para 14.4 -

"The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy . But arguability cannot be judged without reference to the nature and gravity of the issue to be argued.  It is a test which is flexible in its application".

54.     Rule 16/3 of the Royal Court Rules provides, in rule 16/3 (1) and (2), that leave to apply for judicial review must be brought "promptly, and in any event not later than 3 months from the date when grounds for the application first arose" and that the Bailiff may refuse an application made within the period of 3 months "if satisfied that the application is not sufficiently prompt, and that if the relief sought were granted, on an application made at this stage, it would be likely to cause substantial hardship to, or substantial prejudice to, the rights of any person or be detrimental to good administration".

55.     There is accordingly a duty on an applicant for judicial review to bring the application promptly.  It is not the law that there is a three month time limit, and that if an application is brought -˜within' that time then leave must be granted if the case is arguable.  The relevant obligation is to bring the claim -˜promptly' - the three month limit is a long-stop, and any claim after that time will be refused unless there are good grounds for an extension of time.

56.     What amounts to promptness, however, depends on the circumstances.  In a commercial context, or in the context of a major public contract, where it can be expected that parties will have access to good legal advice and understand the need for urgency, and where the detriment to public administration and third party interests of even a short delay is foreseeable, an application for judicial review must be brought as soon as grounds for making it arise.  Even a very short delay -“ well within the three month long-stop - may amount to a lack of promptitude.  In exercising its discretion as to whether to grant leave, the court must consider and balance the questions of promptness, prejudice to good administration and prejudice to third party interests (if relief is granted) - see the Privy Council decision of Maharaj v Nation Energy Corporation of Trinidad and Tobago [2019] UKPC 5 at [36-43]). Essentially the same test was applied by the Royal Court in BJ O'Connor Ltd v Gambling Licensing Authority [2004] JRC 178.

57.     The Court drew the parties' attention to a recent application of this principle by an English Divisional Court (Singh LJ and Foxton J) in the case of R(British Gas Trading Ltd) v Secretary of State for Energy Security and Net Zero [2023] EWHC 737 at 134-136 and 141.  That case involved the application of two well-established principles which seemed to us apposite here.  Firstly, in a commercial context, even a very short delay may be material, depending partly on the impact on third parties - this may be a matter of days not weeks or months. 

58.     Secondly, time runs from when the claimant is aware of the essential substance of the grounds available to it.  Although we understood that the substantive decision in the British Gas Trading case was shortly to be considered by the English Court of Appeal, we did not consider that the two principles as declared by the Divisional Court could seriously be in dispute.

Did the Commissioner err in law?

59.     The Court had considerable sympathy for the Commissioner who had to consider these very factually complex applications under considerable pressure of time.  They also raised a number of important and difficult collateral issues of law (for example as to the admissibility of statements made by a Minister in the States, and for what purpose).  We also bore in mind that there was not much argument addressed to the Commissioner at the hearing on 20 December 2024 as to delay, damage to good administration and/or detriment to third party interests.  The Court also reminded itself that the test on an appeal against an exercise of judicial discretion to grant leave to appeal is not to ask what the members of the Court of Appeal might have decided if they had been judges of first instance.  As is well known, the Court of Appeal does not override such an exercise of discretion unless:

(i)        the judge has misdirected himself with regard to the principles in accordance with which the discretion is to be exercised;

(ii)       the judge in exercising his discretion has taken into account matters which he ought not to have done or has failed to take into account matters which he ought to have done;

(iii)      the decision is plainly wrong; or

(iv)     in an interlocutory appeal, where there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it.

See Rahman v Chase Bank (CI) Trust Company Limited and Others [1984] JJ 127 at 134.

60.     Nonetheless in our judgment, there were two reasons why the Commissioner's exercise of discretion could not stand.  The first is that he erred in law in paragraph 133 of his judgment of 24 December 2024 when he held that the "ramifications" of the grant of relief were not a relevant consideration in relation to whether or not to grant leave in this case "if the relevant test was met".  It would appear that the test which he applied as being the applicable one for deciding whether to grant leave was the test which he articulated at paragraph 72 of his judgment -“ namely, simply whether the applicant had an arguable case.

61.     If that was indeed the test which he applied, this was an error of law, and a failure to take into account a relevant consideration, since it left out of account the question of whether there was a discretionary bar to leave being granted.  If the Commissioner was proceeding on the assumption that an application brought within three months of the impugned decision was inherently "prompt" and so could not raise the issue of whether there was any such bar, that was an error of law.  As we have explained above, an applicant for leave to apply for judicial review must bring the application promptly and in any event within three months.  As the Privy Council explained in Maharaj, the detriment to good administration and third party interests occasioned by delay are important considerations in deciding whether or not an application has been brought promptly.

62.     The Commissioner accordingly erred in not considering the issue of promptness and in particular, by taking the view that the "ramifications" were not relevant to his determination of the leave application.  Whilst the Minister did not emphasise the delay argument before the Commissioner at the leave application and it was understandable that he addressed the main arguments which had been placed before him, we consider that, in the circumstances of this case, to exclude consideration of the "ramifications" as he did represented an error of law.

63.     In any event, the point was squarely before the Commissioner at the set aside application.  Yet, he addressed that application on the basis (disclosed at paragraphs 22 and 32 of his judgment) that the test which he fell to apply remained whether the "threshold" for the grant of leave -“ which he characterised as "arguability" -“ had been met.  Again, he appears to have left out of consideration the implications of delay, as a discretionary bar to leave being granted.

64.     The second reason is that fresh evidence before us shows that the situation has changed since the Commissioner made his decision.  Notably, there is now a perfected Concession Agreement.  The new evidence as to the consequences for the Island and for DFDS means that any evaluation of the facts as of now must take into account the fresh circumstances.  But we add this for completeness - we would have decided that the Commissioner had erred in law even without the change in circumstances since he reached his decision.

65.     This meant that his decision had to be set aside.  The options for us were to remit it for a fresh permission application, or to determine the issue for ourselves, and in view of the urgency of the matter, we decided the application for ourselves.

Application of the law to the facts

The first decision

66.     The Commissioner refused leave to challenge the first decision -“  the Minister's notification of the decision to terminate the Government of Jersey's participation in the Joint Channel Island Procurement Process -“ on the basis that the grounds of challenge were unarguable, and in our view he was right to do so for the reasons he gave.

67.     But further, and in any event, it cannot properly be said that the application for judicial review of this decision, lodged almost six weeks after it was reached, was brought "promptly" when the full background and Brittany Ferries' state of knowledge of the matters of which it complained are properly taken into account.

68.     Time to challenge that decision started to run at the latest when it was formally communicated to the parties on 7 November 2024.  Brittany Ferries was alert to the factual basis for its allegation that the Minister had failed to explain the basis for the Jersey government's decision in relation to termination of the first process when that process was terminated.  Yet it did not launch proceedings to challenge that decision until 18 December 2024.  There was nothing to stop the challenge to the first decision having been brought much earlier.

69.     In any event, that challenge was academic because the States of Guernsey had already unilaterally departed from the Channel Islands Procurement Process, and because by then both the final bidders had agreed to participate in the second process.

70.     For these reasons, Brittany Ferries' appeal against the refusal to grant leave to challenge the first decision fails.

The second decision

71.     The Commissioner expressed considerable doubt as to the strength of the argument on apparent bias.  He said that he would have not have granted leave on that basis had he not also considered that it was arguable that the procedure through which the Jersey Procurement Process was conducted was unfair, by virtue of arguably being "tainted" by refusal to explain how Brittany Ferries' bid under the Channel Islands Procurement Process had been found wanting.

72.     We agree with him that the application for judicial review, even if barely arguable, was thin.  This is a matter to which we will return, but it is relevant when we come to balance the strength of the claim against the questions of promptitude, prejudice to third party interests and detriment to good administration.

73.     As to the issue of lack of promptness in relation to the second decision, although the application for judicial review was brought only a little over two weeks after the second decision was communicated, in our judgment, this was not prompt in all the circumstances.  Mr Mathieu had expressed his concerns on the matters which he said gave rise to arguable procedural unfairness and apparent bias as early as 11 November 2024.  Yet on 18 November, he indicated that Brittany Ferries would participate in the second tender exercise and would not, at that time, seek to challenge these alleged failings, while purporting to "reserve its position" in relation to these matters.

74.     We do not consider that the concept of "reserving one's position" has much if any application in the field of judicial review.  If there is a challenge to be brought to the decision of a public authority, there is a requirement under the rules that it be brought "promptly": that is, when the factual basis for the alleged legal failing first comes to the applicant's attention.  This may be before the decision which is based on the allegation is reached.  If a party to a tender alleges that the process is unfair, or unlawful, then that challenge to the process should be brought directly, without waiting to see the outcome.  This is an application for judicial review, not an application under statutory public procurement rules (as in the English case of Joseph Gleave and Son Ltd v Secretary of State for Defence [2017] EWHC 238 (TCC) [2017] PTSR 607, upon which Brittany Ferries relied).  And this is a case where the applicant seeks to have the decision which it challenges quashed; Gleave was a case where the applicant was seeking to expedite a challenge to an ongoing process, when the court found there was no good basis for doing so, since the remedy, if any, would be in damages and this might be avoided if the tenderer proved successful.

75.     But even if it were arguable that Brittany Ferries was justified in waiting until it learned the outcome of the second procurement decision before bringing a challenge based on the issues which it had raised at the time when the first process was terminated, there was no justification for its lack of promptitude after it learned of the decision on 3 December 2024.

76.     Even though Brittany Ferries had indicated in advance that it had legal concerns about that decision, no lawyers' letter was sent until 11 December.  Proceedings were not launched until 18 December, more than a fortnight after the substantive decision.  

77.     Brittany Ferries had already claimed it had a basis (which it purported to "reserve") for expressing concern about the tainting of the second process.  It was accordingly in a position to prepare its challenge and to be ready to bring it from the time when the events to which it objected and which it said gave rise to unfairness arose, i.e. several weeks before the decision to award the tender to DFDS.  It could and should have been in a position to initiate proceedings very much sooner than it did -“ within a day or two of the award of the tender at the very latest.

78.     The argument which Brittany Ferries sought to run, to the effect that Mr Corrigan's involvement in an early stage of the Channel Island Procurement Process, provided an arguable case of apparent bias in relation to the second, seems to us extremely weak given that he had long recused himself; but to the extent that that argument had any merit, it had been open to Brittany Ferries to bring forward its concerns about potential "tainting" of the process by Mr Corrigan's former role since October 2024, when it became aware of the facts upon which it relied.  The Minister's statements, upon which Brittany Ferries' bias argument was also based, were made in mid-November. 

79.     As to the separate, albeit factually related, allegation of procedural unfairness of the Jersey Procurement Process, Brittany Ferries was aware all the way through the Jersey Procurement Process that it had not had the explanations as to the first process which, it submitted, made the second process unfair (even on the assumption that it had not had such explanations -“ Mr Scate in his second affidavit contends otherwise).  So Brittany Ferries could and should have been ready to advance those arguments immediately once the decision on the process was reached.

80.     Brittany Ferries should also have been aware, as a commercial operator, of three material matters.  First, that by submitting a tender, DFDS bound itself to enter a contract with the Minister immediately if it was selected as a preferred bidder. 

81.     Second, that getting a new operation up and running between early December 2024 and late March 2025 would be no small undertaking, and that it would involve very considerable expenditure (running into the millions of euros) and contractual and logistical undertakings to ensure that this lifeline service could continue.  It would follow that uncertainty as to the outcome of the procurement process would have very serious implications for continuation of services and third party commercial interests. 

82.     And thirdly, that part of the reason for the urgency was that Brittany Ferries itself had informed the Minister that it was not prepared to avoid this cliff-edge by extending the existing Condor operation for another seven months to allow a less rushed and more orderly process.  The urgency in launching and determining the Jersey Procurement Process arose in large part because of Brittany Ferries' own decision.  Whatever the reasons for Brittany Ferries' refusal to extend the existing Condor contract in the first place, it created considerable pressure on the Minister to conduct a second procurement process very quickly -“ a fact which was entirely foreseeable for Brittany Ferries.  In our view, it is irrelevant to our exercise of discretion that some weeks later - after the DFDS application to set leave aside on the basis of delay - Brittany Ferries reconsidered that view, and indicated a willingness to reconsider that decision.  By then, DFDS had put forward a second bid, in good faith, and been told that it was the preferred bidder.  It would have constituted a serious detriment to good public administration if the Government of Jersey were to be seen by third party contractors as an unreliable commercial partner, by pulling out of the Jersey Procurement Process after a preferred bidder had been announced.  

83.     In any event, as we have indicated, we regard the grounds for challenging the second decision by way of judicial review as relatively slight, and certainly not strong enough to justify permitting a challenge which had not been brought promptly to proceed, having regard to the very considerable detriment which delay has caused and would cause to third party interests and good administration.

84.     As the appeal went only to whether permission should have been granted to proceed by way of judicial review, we do not have to (and do not) express a final view on the merits of the substantive arguments.  However, as to the submission on apparent bias, we agree with the Commissioner that the involvement of Mr Corrigan in the earlier stages of the Channel Island Procurement Process was of no relevance.

85.     The Minister's remarks upon which Brittany Ferries sought to rely as evidencing apparent bias were made in the States, and would generally be covered by States Privilege.  However, for the purposes of addressing arguability, we proceed on the assumption, without deciding the point, that Brittany Ferries would be able to rely, without violating States Privilege, upon these remarks as evidence of a state of mind which affected decisions reached outside the States (cf Toussaint v. Attorney General of St Vincent and the Grenadines [2007] 1 WLR 2825).

86.     Nevertheless, we are not convinced that the observations in the statement about DFDS' bid and the statement that the Minister must make the -˜right decision for Jersey' indicated an animus against one bidder or would justify a reasonable apprehension that there was a realistic possibility that there was apparent bias in the process.  We observe, firstly, that Brittany Ferries was expressly encouraged to re-apply and, secondly, that steps were taken, through the role of KPMG and otherwise, to ensure the integrity of the assessment of the competing bids in the Jersey-only process.  Nor do we think it likely that the alteration of the criteria so that DFDS would not score a "technical fail"' in the Jersey Procurement Process as it had done in the previous process would fall to be regarded as indicative of apparent bias.  The hypothetical observer, who is not unduly suspicious, would perhaps be more likely to consider this to be a sensible adjustment of the criteria so that both bids could be considered on their merits.

87.     Given that Brittany Ferries knew of the terms of the statement more than a month before its challenge, and given the detriment to good administration and third party interests if the challenge were to proceed, we think the weakness of the argument is a factor which supports the conclusion that leave should not have been granted to advance a contention that the statement indicated apparent bias.

88.     Having refused leave to challenge the first decision on its merits, we think it odd to suggest that alleged defects in the first decision could form a basis for submitting that the second decision was "tainted" by those very alleged defects.  But in any event, we think it was right for the Minister to decline to provide information or explanations to Brittany Ferries as to the assessment of the merits of its bid in the first tender ahead of a new competitive tender process, in which there was a duty to be fair and non-discriminatory between both parties.  Equally, to the extent that Brittany Ferries considered that it would be unfair to require it to bid on the basis of the amended criteria without explaining why the criteria had been changed, that was an argument that it was open to it to advance and to prepare before awaiting the outcome of the bid.

89.     Finally, the Commissioner refused leave to challenge the decision on the basis of a lack of reasons.  He was right to do so.  This case was not on all fours with the European Court of Justice case of Case T-5709 Alfastar Benelux SA v Council of the European Union, which was cited to us.  In that case, all that had been given to the unsuccessful bidder was a bare score, without an explanation for it.  Even if the decision of the General Court -“ which was based on the EU public procurement regime which did not directly apply here -“ was a relevant precedent, in our judgment, it was a very long way from the present case on its facts.  In this case, Mr Scate gave Brittany Ferries by way of explanation, not only the bare scores on the different criteria in the assessment matrix (which -“ incidentally -“disclosed that DFDS had scored significantly better on every criterion).  He had also given a narrative explanation as to why DFDS had been the successful bidder, which the Commissioner summarised in his judgment of 24 December 2024 at paragraphs 36-41.

90.     Moreover the evidence which was lodged on the Minister's behalf after the leave application but before the hearing before us (and which would have been available to the Royal Court in any substantive application for judicial review, had leave been given) elaborated at considerable length on the approach which had been taken by individuals involved in assessing the two bids.  It is difficult to see what more could have been said by way of reasons.  So by the time of the hearing before us, any possible argument on this basis was academic.

91.     It is right that, in determining how a question of exercise of judicial discretion should be applied in a case of want of promptness, the Court must consider not only the extent of detriment to the good administration and third party interests of the grant of relief, but also the strength of the case itself.  That is because there is a public interest in egregious errors of law being corrected, in the interests of upholding the rule of law.  But the public interest in correcting any error of law was a matter to be weighed in the balance, with promptitude, prejudice and detriment, as the Privy Council explained in Maharaj, and this is a balance, no doubt in part because of the pressure of time, the Commissioner did not perform.  Had he weighed all these factors, we consider he would have been bound to conclude that leave should be refused or (had he done this on the set aside application) have been set aside.

92.     Matters of prejudice had become even more pressing by the time we considered the matter than they had been before the Commissioner.  DFDS and the Minister had entered into a contract on 31 December 2024 when the stay was lifted.  We had before us evidence from DFDS, not before the Commissioner, as to the steps which it had taken and the expenditure which it had committed to ensuring that a ferry service with a new operator could be in place before the termination of the Condor service on 25 March 2025.

93.     We considered that the detriment to good administration caused by Brittany Ferries' lack of promptness was of the highest significance in this case.  What was at issue were lifeline ferry services - the sole route for many essential supplies reaching the Island.  Urgent and extensive preparatory steps were necessary (and were already on foot) to ensure that service would be in place by late March.  We accepted the evidence that to ensure that this was the case for a new operator meant that these preparatory steps, arranging vessels and so forth, had to be put in place on a very tight timetable.

94.     In those circumstances, given the information it had and its knowledge of the tendering process, and bearing in mind that its own decision had given rise to the time pressure on those involved, we consider that Brittany Ferries should have been ready to file any challenge to the second decision immediately the decision was intimated to it - within days of the written intimation of the decision on 4 December, if not on that day.  It was not open to Brittany Ferries to "keep the penny and have the bun", as it had sought to do, by "reserving its position" in relation to those allegations, whilst at the same time declining to extend its existing service so that the essential supplies to the Island would be secured during the conduct of that process. 

95.     Accordingly, applying the test in Rule 16(6)(1) and (2) of the Royal Court Rules, we consider that the application for leave to apply for judicial review should have been dismissed on all grounds, having regard to Brittany Ferries' lack of promptness in bringing the application when it was aware of the basis for it, and the detriment to public interests and DFDS's interests if the claim were allowed to proceed and relief was given.  There were no grounds for judicial review of a strength or importance to outweigh these considerations.  For similar reasons, the application of DFDS under Rule 16(6) should have succeeded even if, contrary to our view, leave had been properly granted in the first place.  There were substantial reasons why it would have been just to have acquiesced in that application.

96.     For these reasons, we allowed the appeals of DFDS and the Minister, refused the appeal of Brittany Ferries and dismissed the application for leave to apply for judicial review.

97.     We will decide the matter of costs after the parties have had the opportunity to make written submissions, if costs cannot be agreed.

Authorities

Bretagne Angleterre Irlande SA v Minister for Sustainable Economic Development [2024] JRC 292

Bretagne Angleterre Irlande SA v Minister for Sustainable Economic Development [2024] JRC 297

Bretagne Angleterre Irlande SA v Minister for Sustainable Economic Development [2025] JCA 005. 

Court of Appeal (Civil) Rules 1964. 

Sharma v Browne-Antoine [2006] 1 WLR 780. 

Maharaj v Nation Energy Corporation of Trinidad and Tobago [2019] UKPC 5. 

BJ O'Connor Ltd v Gambling Licensing Authority [2004] JRC 178. 

R(British Gas Trading Ltd) v Secretary of State for Energy Security and Net Zero [2023] EWHC 737. 

Rahman v Chase Bank (CI) Trust Company Limited and Others [1984] JJ 127. 

Joseph Gleave and Son Ltd v Secretary of State for Defence [2017] EWHC 238 (TCC) [2017] PTSR 607. 

Toussaint v Attorney General of St Vincent and the Grenadines [2007] 1 WLR 2825

Case T-5709 Alfastar Benelux SA v Council of the European Union


Page Last Updated: 25 Feb 2025


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