Wordperfect Translation Services Ltd. v Minister for Public Expenditure and Reform [2019] IECA 264 (24 October 2019)

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	Irish Court of Appeal
You are here: BAILII >> Databases >> Irish Court of Appeal >> Wordperfect Translation Services Ltd. v Minister for Public Expenditure and Reform [2019] IECA 264 (24 October 2019) URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA264.html Cite as: [2019] IECA 264

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 24TH DAY OF

1. This appeal is from an order for discovery of documents made by the High Court (Simons

J.) on the 14th March 2019 wherein, inter alia, the appellant (“the Minister”) was ordered

to make discovery of nine categories of documents, such discovery to be made in

accordance with a Protocol of Inspection scheduled to the said order.

2. These are public procurement proceedings by way of judicial review wherein the

applicant/respondent (“Wordperfect”), an unsuccessful tenderer, seeks to challenge the

Minister’s decision, communicated to it by the Minister’s letter dated 12th October 2018,

to award the contract for the provision of translation services to An Garda Síochána to

3. Wordperfect submits that the categories of documents that the Minister has been ordered

to discover are necessary to enable it to fairly and properly challenge the Minister’s

decision in these judicial review proceedings on the basis of the grounds set forth in its

statement of grounds. The Minister had agreed to make limited discovery in respect of

only four of the nine categories of documents sought by Wordperfect and considers that

the discovery as ordered is impermissibly and unnecessarily broad in its scope. It is

submitted that the trial judge erred in concluding that all documents so ordered are

relevant and necessary for the fair and proper determination of the issues in the

4. It is convenient to set forth the nine categories of documents as ordered by the trial judge

1. All documents relating to the evaluation of tenders by reference to Criterion 4.1 (b)

2. All documents relating to the evaluation of tenders by reference to Criterion 4.1 (e)

3. All documents relating to the evaluation of tenders by reference to Criterion 4.3 –

4. All documents relating to the evaluation of tenders by reference to Criterion 4.2 (b)

5. All documents relating to the evaluation of tenders by reference to Criterion 4.2 (c

6. The Successful Tenderer’s Tender and all documents submitted by the Successful

Tenderer in response to the SRFT and/or in response to any requests for

clarification, including any communications between the Successful Tenderer and

7. All documents relating to the evaluation of the Successful Tenderer’s Tender.

8. All documents relating to the evaluation of the Applicant’s Tender.

9. All documents relating to the respondent’s failure to observe a Standstill Period.

5. On this appeal the Minister has divided these nine categories into three distinct groups,

and the submissions of the parties have been made by reference to each such group.

Group 1 relates to categories 1, 2, 3, 4 and 5. Group 2 relates to categories 6, 7 and 8.

6. The parties are in agreement that the principles which guide the Court in relation to

discovery in public procurement cases are best described in the judgment of Ryan P. in

this Court in BAM PPP PGGM Infrastructure Cooperatie UA v. National Treasury

Management Agency and Minister for Education and Skills [2015] IECA 246 (“BAM”)

where at paragraph 29 he summarised the relevant legal principles as follows:

1. The primary test is whether the documents are relevant to the issues between the

parties. Once that is established it will follow in most cases that their discovery is

2. Relevance is determined by reference to the pleadings. O. 31, r. 12 specifies

discovery of documents relating to any matter in question in the case.

3. There is nothing in the Peruvian Guano test which is intended to qualify the

principle that documents sought on discovery must be relevant, directly or

indirectly, to the matters in issue between the parties on the proceedings.

4. An application for discovery must show it is reasonable for the court to suppose

5. An applicant is not entitled to discovery based on speculation.

6. In certain circumstances a too wide-ranging order for discovery may be an obstacle

7. As Fennelly J. pointed out in Ryanair plc v. Aer Rianta cpt [2003] 4 IR 264, the

crucial question is whether discovery is necessary for “disposing fairly of the cause

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

9. Discovery could become oppressive and the court should not allow it to be used as

7. In addition to these principles, there can be issues of confidentiality and commercial

sensitivity which arise for special consideration in a public procurement case, and the

court will have to balance those legitimate concerns on the part of the winning tenderer

against an unsuccessful tenderer’s entitlement to challenge the decision to award the

tender to the winning tenderer, and for that purpose to obtain discovery of relevant

documents which are reasonably necessary to enable the applicant to properly and fairly

do so – see e.g. Varec S.A. v. Belgium (Case C-450/06) [2008] ECR I-581 where the

“51. It follows that, in the context of a review of a decision taken by a contracting

authority in relation to a contract award procedure, the adversarial principle does

not mean that the parties are entitled to unlimited and absolute access to all of the

information relating to the award procedure concerned which has been filed with

the body responsible for the review. On the contrary, that right of access must be

balanced against the right of other economic operators to the protection of their

52. The principle of the protection of confidential information and of business secrets

must be observed in such a way as to reconcile it with the requirements of effective

legal protection and the rights of defence of the parties to the dispute … and, in the

case of judicial review or a review by another body which is a court or tribunal

within the meaning of Article 234 EC, in such a way as to ensure that the

53. To that end, the body responsible for the review must necessarily be able to have

at its disposal the information required in order to decide in full knowledge of the

facts, including confidential information and business secrets.”

8. In accordance with the principles in BAM already referred to, it is first necessary to

identify from the pleadings what are the issues raised by Wordperfect in these

proceedings, and with which issue has been joined by the Minister. Clearly where facts

are admitted on the pleadings those facts need not be proved, and discovery is therefore

not necessary for that purpose, even though they may be relevant in a general sense.

1. All documents relating to the evaluation of tenders by reference to Criterion 4.1 (b)

2. All documents relating to the evaluation of tenders by reference to Criterion 4.1 (e)

3. All documents relating to the evaluation of tenders by reference to Criterion 4.3 –

4. All documents relating to the evaluation of tenders by reference to Criterion 4.2 (b0

All documents relating to the evaluation of tenders by reference to Criterion 4.2 (c) –

9. The need for these documents is explained by WordPerfect on the basis that in awarding

higher marks to the winning tenderer based on information provided under various

headings, the Minister has unlawfully applied Undisclosed Award Criteria, and that he has

interpreted and applied the Supplementary Request for Tenders (“SRFT”) in an unlawful

manner. The Minister in his statement of opposition denied this claim, and argued that

each of the so-called Undisclosed Award Criteria “is an example, characteristic or relative

advantage provided to the applicant with the notification letter to assist it with, which the

applicant has mechanistically converted into an alleged undisclosed award criteria”.

10. A useful example of such a complaint can be found at para. 64 of the respondent’s

statement of grounds which states the following relevant to category 1 above (“Very

“64. With respect to Very Urgent Requests for Service, the respondent applied an

(1) The Notification criticised the applicant for not demonstrating an approach to

prioritising and establishing the urgency of requests for service (namely, for

(2) The applicant understood – as would any reasonably well-informed and

normally diligent tenderer – that for the purposes of this question, all

requests were to be considered “very urgent” (unless they were requested

more than 24 hours in advance) and there was no requirement to prioritise

(3) Further, the applicant understood – as would any reasonably well-informed

and normally diligent tenderer – that all “very urgent” requests are to be

dealt with within 60 minutes and that any prioritisation would interfere with

(4) The deduction of marks from the applicant in respect of the Prioritisation

(6) The deduction of marks from the applicant in respect of the Prioritisation

Criterion involved the application of an undisclosed award criterion and/or

(7) Had the applicant been aware of the Prioritisation Criterion, it could and

11. Other instances of alleged undisclosed award criteria are contained in the statement of

grounds, and are further explained at paras. 10 – 67 of the affidavit of Aonghus

McClafferty, solicitor, grounding the application for discovery. As already stated, the

Minister refutes the allegation that by awarding higher marks to the winning tender he

has applied undisclosed award criteria, and pleads that any advantage identified in the

successful tenderer’s tender in the feedback that was provided to Wordperfect, and for

which additional marks were awarded to the successful tenderer, has been

“mechanistically converted” by Wordperfect into an undisclosed award criterion.

12. In response to the letter seeking voluntary discovery of categories 1, 2, 3, 4 and 5 the

Chief State Solicitor denied that these categories of documents were relevant and

necessary. Notwithstanding that denial, an offer was made on a without prejudice basis to

provide certain of the documents within categories 1, 2, 4 and 5. But category 3 was

refused in its entirety. In relation to categories 1 and 2 the offer was to provide “the

specific sections identified above of the final Evaluation Report as it relates to the

applicant”. The letter stated that “the balance of the document, which is irrelevant on the

pleadings, will not be provided or, where it appears on the same page as a discovered

section, will be redacted”. In relation to categories 4 and 5, the offer was “to provide the

specific sections identified above of the final Evaluation Report as it relates to the

applicant”. The letter went on to make the same comment regarding redaction.

13. The offer made in relation to providing certain documentation within categories 1, 2, 4

and 5 was not acceptable to WordPerfect, on the basis that the documents offered were

insufficient to enable WordPerfect to test whether undisclosed award criteria were applied.

The reasons why the documents offered are not considered to be sufficient are explained

by Mr McClafferty in his grounding affidavit. Principally he states at para. 17 thereof as

“17. … the category of documentation discovery of which is sought is directly relevant

to matters in dispute in these proceedings and is necessary for the fair disposal of

the proceedings and in particular, is necessary to enable the applicant to

demonstrate that the respondent has interpreted and applied the requirements set

out in the SRFT in an unlawful manner with respect to Very Urgent Requests for

Service and also evaluated Very Urgent Requests for Service unlawfully. Discovery

of this documentation may also serve to save costs by avoiding disclosure at the

hearing and facilitating the admission of certain documents or facts, prior to the

14. Further paragraphs 21 – 24 of Mr McClafferty’s grounding affidavit stated the following:

“21. The applicant maintains that the respondent conducted an unlawful evaluation of its

tender through the application of Undisclosed Award Criteria. The Respondent has

“denied that the matters [identified by the applicant] were ‘undisclosed award

criteria’. Whether or not Undisclosed Award Criteria were applied is therefore clearly

22. The discovery offered by the respondent is insufficient to enable the applicant to

test whether Undisclosed Award Criteria were applied, as in order to do so, it

requires sight, not just of the evaluation notes relating to its own tender, but those

applicable to the evaluation of the Very Urgent Requests generally.

23. It is also apparent that the final evaluation report will be insufficient; the

application of Undisclosed Award Criteria necessarily arises during the course of the

evaluation process. The final evaluation report will not record how that process was

conducted and is manifestly insufficient to enable the applicant’s claim regarding

24. Furthermore, the application of Undisclosed Award Criteria comprises only one of

the complaints made by the applicant relating to the evaluation of Very Urgent

Requests. By way of example only, another complaint is that the respondent erred

in awarding marks to the Successful Tenderer in respect of its approach to

identifying a suitable interpreter and notwithstanding that the applicant also

addressed this issue. Again, it is obvious that the applicant requires more than

15. Category 6 seeks the Successful Tenderer’s Tender and all documents submitted by that

party in response to the SRFT and any other requests for clarification. Category 7 seeks

all documents relating to the evaluation of the successful tender, and Category 8 seeks all

documents relating to the evaluation of the Wordperfect’s own tender. Mr McClafferty’s

affidavit, and the letter seeking voluntary discovery of these categories explains why this

discovery is needed. Firstly, it is contended that the Minister treated Wordperfect

unequally by comparison to the successful tenderer (which is denied by the Minister).

Secondly it is contended that the Minister has not explained the scores of the Successful

Tenderer in respect of a number of different criteria (which is denied). Thirdly,

Wordperfect contends that the Successful Tenderer should have been awarded fewer

marks in respect of those award criteria (which is denied by the Minister). It is argued

also that the Minister ought to have rejected the Successful Tender in its entirety on the

basis that it was an abnormally low tender. That is based on Wordperfect’s assertion that

as explained in the grounding affidavit Wordperfect tendered its own tender at cost, and

yet achieved a lower mark than was awarded to the Successful Tenderer under the cost

16. In relation to categories 6, 7 and 8 the Minister refused to make any offer of voluntary

discovery on the basis that this was a general discovery request and amounts to ‘fishing’,

and in addition did not meet the level of indispensability that is referred to in the

judgment of this Court in Word Perfect v. Minister for Public Expenditure [2018] IECA 87

in relation to discovery of the rival’s successful tender document. The Minister’s response

also stated that the successful tender had expressly asserted the commercial

confidentiality of its tender documentation. The Minister considered that Wordperfect had

been provided with sufficient information in relation to the relative characteristics and

17. Category 9 documents are all documents relating to the Minister’s failure to observe a

Standstill Period. The Minister declined this discovery firstly on the basis that there was

no “failure” as such since the standstill period is voluntary under law. Secondly, the

Minister stated that it is in any event not in dispute that there was no standstill period,

and that no factual dispute exists in relation to this purely legal question.

18. Having outlined the grounds upon which Wordperfect seeks to challenge the decision to

award the contract to the Successful Tenderer the trial judge determined that all the

documents sought on the application were both relevant and necessary, and considered

that the application did not amount to a ‘fishing expedition’. He considered that the

grounds of challenge were not speculative, but rather derive from what he considered to

be “the very limited information which [the Minister] has, to date, made available to

Wordperfect”. He stated that the comparison table that came with notification of the

decision purported to identify in a summary form how it is that the successful tenderer

was awarded higher marks than those awarded to Wordperfect. He went on to state in

“This comparison table indicates that, in some instances, the successful tenderer

was awarded marks for offering to provide a higher level of service than that

19. The trial judge’s conclusions are set forth at paras. 62 – 69 and it is convenient to set

“62. WordPerfect wishes to advance an argument to the effect that this approach to

marking entailed the Contracting Authority placing reliance on undisclosed criteria.

Counsel on behalf of the Contracting Authority … submits that discovery is not

necessary to advance this argument … . More specifically, it is suggested that

WordPerfect is already in possession of all the documents necessary to make this

argument, namely the comparison table and the SRFT. It is suggested that

WordPerfect can point to the reasons in the comparison table as indicating that

marks were awarded for particular items, and can then take the trial judge to the

terms of the SRFT, with a view to demonstrating that such items are not expressly

referenced in the table. Thereafter it is a matter for legal submission as to whether

63. With respect, I think that this argument involves an oversimplification of what is

likely to occur at the trial of the action. It appears from the Statement of Opposition

that the Contracting Authority intends to argue at the full hearing that what

WordPerfect seeks to portray as undisclosed award criteria are, in truth, no more

than examples of characteristics and relative advantages of the successful tenderer.

It is further suggested that WordPerfect has simply taken the reasons disclosed in

the comparison table for why the successful tenderer received higher marks, and

“mechanistically converted” these into alleged undisclosed award criteria.

64. Indeed, this argument was presaged to some extent at the hearing before me in

that counsel made express reference to the judgement in Baxter Healthcare v. HSE

[2013] IEHC 413. On the facts, the High Court rejected an argument that a

favourable comment in the evaluation of successful tender, to the effect that the

physical layout of the renal dialysis unit proposed by the successful tenderer would

involve less noise and disturbance for patients, meant that noise had been

introduced as an undisclosed award criterion. It was submitted by counsel that a

similar analysis should be applied to the facts of the present case.

65. This attempt to rely on Baxter Healthcare is consistent with the approach taken by

the Contracting Authority in its pleadings. The Contracting Authority has filed a full

defence to these judicial review proceedings. More specifically, the statement of

opposition filed on behalf of the Contracting Authority represents a full traverse of

the claims made by WordPerfect. Against this background, it is clear that issue has

66. Given the manner in which the issues have been joined in the pleadings, there is

simply no basis upon which WordPerfect can properly advance its case without

obtaining an order for discovery. Discovery is indispensable. WordPerfect needs to

have access to (i) the successful tenderer’s tender, and (ii) the evaluation of same,

in order to establish inter alia what precise specification the successful tenderer was

offering; the extent to which it goes beyond the specified award criteria; and what

weight and marks the Contracting Authority awarded for same. To date,

WordPerfect only has the benefit of the limited material provided to it by the

Contracting Authority. The comparison table is a document prepared ex post facto,

67. It may be useful to pause here, and to consider the implications of the Contracting

Authority’s argument if followed through to its logical conclusion. The essence of

the argument is that it is sufficient for the purposes of judicial review that the

applicant has access to limited information, authored by the relevant contracting

authority itself, which purports to provide an ex post facto summary of the

evaluation process. On this argument, neither the applicant for judicial review - nor

ultimately the court when exercising its supervisory jurisdiction – is entitled to

examine the contemporaneous documentation. With respect, this is to place too

great a premium on the accuracy and reliability of a summary prepared by a

contracting authority. Without in any way impugning the bona fides of contracting

authorities, and ex post facto summary is not the best evidence. As the judgment

in Roche Diagnostics Ltd (discussed at paragraph 13 above) indicates, access to

contemporaneous documentation is critical in order to ensure that an unsuccessful

tenderer has effective judicial review. More generally, it is wholly consistent with

the approach adopted by the High Court (Baker J) in Somague Engenharia S.A. v.

Transport Infrastructure Ireland [2015] IEHC 723 (discussed at paragraph 12

68. If WordPerfect is to have a meaningful opportunity to properly present its case at

full hearing, then discovery of both (i) the successful tenderer’s tender, and (ii) the

evaluation of same by the Contracting Authority, are necessary and indispensable.

The grounds which it pleads cannot be advanced at trial without WordPerfect being

able to take the trial judge to the contemporaneous documentation with a view to

persuading the judge that marks were indeed awarded in respect of undisclosed

award criteria. The compare and contrast exercise as between the specifications in

the SRFT and the evaluation of the successful tender cannot be done without sight

69. I am also satisfied that WordPerfect has an entitlement to discovery of the

evaluation carried out of its own tender (category 8). The grounds of challenge

clearly identify concerns as to the manner in which both tenders were marked. As

noted above, WordPerfect has shown to a non-speculative level at least that marks

appear to have been deducted from it for having a level of service above that [was]

specified in the SRFT, whereas in the case of the successful tenderer, the opposite

seems to have happened, i.e. additional marks seem to have been awarded for

offering to exceed the specifications. Further, the argument that the deduction of

marks in respect of the mistaken inclusion of monthly rather than quarterly was

disproportionate or irrational is one which meets any requirement of non-

20. The Minister submits that the trial judge erred in ordering discovery of these categories,

particularly in the light of the Minister’s offer of certain discovery of documents in these

categories. The Minister accepts the importance of transparency in a tendering process,

and that inter alia this must ensure that award criteria by which tenders are assessed are

confined to those identifiable from the SRFT. The Minister accepts that the successful

tenderer must not be awarded marks for criteria that are not disclosed in advance.

21. However, in the light of the explanations contained in the feedback provided to

Wordperfect, the Minister submits that the issue that the Court will have to determine in

this regard is not whether the successful tenderer was awarded correct marks in relation

to the particular award criteria identified in the statement of grounds, but rather whether

by reference to the explanations provided to Wordperfect the relative advantage or

advantages identified in the successful tender which were considered to merit a higher

mark than was awarded to Wordperfect are just that (i.e. relative advantages) as the

Minister submits is the case, or whether as Wordperfect submits, they amount to

undisclosed award criteria. It is submitted that no discovery is required for Wordperfect to

advance its arguments in this regard as it will be an issue to be determined as a matter of

interpretation of the SRFT according to the test of the “reasonably well-informed and

normally diligent tenderer” (also referred to as the REWIND tenderer test), and in that

regard the Minister has relied upon the judgment of Finlay Geoghegan J. in Gaswise Ltd v.

Dublin City Council [2014] 3 I.R. 1, and her reference therein to the judgment of the

Court of Justice in Case C-19/00 SIAC [2001] ER-1-7725. In this regard, Finlay

“ … the court in answering the question should attempt to put itself in the shoes of

a reasonably well informed and normally diligent tenderer who would be responding

to this particular ITT [Invitation To Tender], i.e. a person providing the relevant gas

22. It is submitted that the trial judge will have to interpret the SRFT from the perspective of

“the reasonably well informed and normally diligent tenderer” in accordance with these

principles, and determine whether the “relative advantages” considered to exist in the

successful tender, and which attracted a higher mark that the responses by Wordperfect,

amount to or do not amount to undisclosed award criteria. It is submitted that while the

documents sought by Wordperfect are clearly relevant to the tender process generally,

they are not necessary or indispensable for the advancement of the particular issues of

interpretation of the SRFT raised on the pleadings in these proceedings, where no

disputed facts exist relevant to that question of interpretation, and therefore should not

23. The Minister has also submitted that if the very broad discovery ordered by the trial judge

is permitted, it is likely that in future public procurement cases similar applications will be

made, where this is both unnecessary and will simply encourage unsuccessful tenderers

to launch an unspecific and broad challenge to the decision to award a tender, in the hope

that something can be found on discovery to give it substance – in other words a classic

24. The Minister points also to the fact that categories 1 and 2 as sought and ordered

captures not only the tenders of the successful tenderer and that of Wordperfect, but also

the third tenderer in the competition, which is not even a party to these proceedings.

25. The Minister is willing, as indicated to Wordperfect in its response to its letter seeking

voluntary discovery to provide discovery of sections of the final Evaluation report

identified in categories 1 and 2 in so far as they relate to Wordperfect.

26. As for category 3, the Minister submits that the trial judge erred in ordering discovery of

“all documents relating to the evaluation of tenders by reference to the criterion 4.3 – the

“Quality Assurance Plan”. Under this heading parties submitting a tender were supplied

with notional information and were asked to present that information based on one

calendar month. The successful tenderer did so, but Wordperfect presented it on a

quarterly basis, and as a result received a lower mark that the successful tenderer. The

feedback received by Wordperfect explained this situation, and Wordperfect has accepted

that it did so. No fact is therefore in issue in this regard. Wordperfect submitted that to

deduct marks in that regard was irrational and disproportionate. The Minister submits that

the trial judge was in error in concluding that all documents relating to the evaluation in

relation to this criterion are necessary – again since there is no disputed fact, and it will

be a matter for submission and argument at trial. The Minister has relied upon the

Supreme Court’s judgment in Carlow Kilkenny Radio Limited v. Broadcasting Commission

27. As for categories 4 and 5, the Minister has submitted that the trial judge erred in order

such wide discovery as sought, particularly where these documents are sought in relation

to complaints that Wordperfect makes in relation to how its own tender was evaluated,

and not that of the successful tenderer. The Minister had offered to provide discovery of

those parts of the Evaluation Report relevant to categories 4 and 5 as relate to

Wordperfect only. The Minister also makes another point under this category, namely that

in any event it would be disproportionate to have to make the discovery ordered in

relation to category 4 where the dispute involves a difference of just 1 mark between the

mark awarded to Wordperfect and that achieved by the successful tenderer, and where

the dispute to which category 5 relates involves a differential of just 0.5 of a mark.

28. The respondent submits that the trial judge identified the correct legal principles to be

applied in these type of cases, and that that he correctly applied them. In particular, it is

submitted that the trial judge considered in detail the grounds upon which the challenge

to the Minister’s decision is made, and concluded that the documents sought by way of

discovery “are all directed to issues which are in dispute on the pleadings” and “are

predicated on the grounds pleaded”. The respondent rejects the Minister’s submission

that the trial judge disregarded the pleadings and did not carry out the kind of close

examination of the issues raised on the pleadings in order to determine if the documents

sought by way of discovery were necessary for the determination of the issues in the

29. The respondent submits that the trial judge was correct to state that the application for

discovery was not a fishing expedition and also that this discovery was necessary if

Wordperfect is to have a “meaningful opportunity to properly present its case at full

30. The respondent characterises the issue raised as to Undisclosed Award Criteria to which

categories 1 and 2 relate as a factual dispute as to how the evaluations were carried out.

It submits that the question whether undisclosed award criteria were applied is an issue

relating to the evaluation process, which therefore requires to be examined by the Court,

and therefore the documents sought under categories 1 and 2 are both relevant and

necessary. It is submitted that the offer made by the Minister to provide the Final

Evaluation Report will provide only a summary of the outcome and will not assist in

31. The respondent disagrees that the issue as to undisclosed award criteria is purely a

question of interpretation and that there is no factual dispute which would be assisted by

discovery as sought. It contends that there is a clear factual difference between an

undisclosed award criterion and what is called by the Minister “a relative advantage”. It

submits that this is a question of fact which can only be resolved by an examination of the

evaluation documents. It is submitted that there is no error in the trial judge’s

determination as to necessity of the documents sought and ordered to be discovered.

32. As for category 3 documents, which includes but is not limited to parts of the successful

tenderer’s tender the respondent submits that the dispute as to Wordperfect’s tender

being marked down because it presented the notional information on a quarterly basis

whereas the SRFT specified that this should be done on a monthly basis, is a factual

dispute for which discovery of this category of documents is necessary for its fair disposal.

In so far as there may be confidentiality issues arising from the discovery of the

successful tenderer’s tender submission, and a public interest in promoting a competitive

tendering process, Wordperfect submits that this public policy can be adequately

safeguarded by the use of a confidentiality ring or inspection protocol such as was

envisaged in the Inspection Protocol attached to the order made in this case.

33. In my view, while the trial judge correctly identified from the judgment of this Court in

BAM that the first task on an application for discovery is to ascertain the issues that arise

on the pleadings, as it is these issues alone that arise for determination at the substantive

hearing. Clearly the Court cannot decide if documents sought by way of discovery are

relevant to the issues in the proceedings until those issues themselves have been clearly

identified. Once relevance to those issues is established, the question then arises is

whether the documents are necessary for the fair disposal of the issues, and a question of

proportionality may then arise also. The principles in BAM, which both parties accept are

the applicable principles, make that position clear. It is also clear both from BAM and

long- recognised prior authority that where an issue is raised only to the level of

speculation by the party seeking discovery, in the hope that something will turn up on

discovery that may substantiate the speculative issue, discovery will not be ordered.

“On the facts of the present case, the categories of documents sought are

undoubtedly relevant all relate to issues in the proceedings. As explained at

paragraph 60 below, the documents all relate to issues in the proceedings”.

35. Having so stated the trial judge went on to state that “the debate before me was directed

principally to questions such as whether the discovery sought was necessary, reasonable

“There is no doubt that the categories of documents in respect of which discovery is

sought satisfy the requirement of relevance. They are all directed to issues which

are in dispute on the pleadings. In this regard it is to be noted that the Contracting

authority has filed a statement of opposition that constitutes a full traverse of the

37. The trial judge was satisfied also that the grounds of challenge were not speculative and

derive from the limited information provided to Wordperfect by the Minister.

38. I have already set forth paras 62 – 69 from the judgment of the trial judge. He addressed

in some detail the issue to which categories 1 and 2 relate, namely the undisclosed award

criteria issue which I have outlines above. Having noted the Minister’s contention that this

issue was simply a matter for legal submission at the substantive hearing and to which no

factual dispute arose, the trial judge stated that he considered that to be an over-

simplification of what would likely arise at trial given the position of the Minister as

appears from the traverse in the statement of opposition. As seen from para. 66 of the

judgment, the trial judge considered that “given the manner in which issues have been

joined in the pleadings, there is simply no basis upon which Word Perfect can properly

advance its case without obtaining an order for discovery”. I have already set forth the

39. While the trial judge’s conclusions as to relevance commenced by reference to the

undisclosed award criteria, his overall conclusion that discovery was necessary and

indispensable appears also to embrace the discovery sought in relation to all categories of

40. I respectfully disagree with the conclusions of the trial judge as to relevance and

necessity. In my view while he carried out some examination of the issues in respect of

which categories 1 and 2 were sought by Wordperfect, namely the allegation that

undisclosed award criteria had been applied resulting in Wordperfect receiving a lower

mark than the successful tenderer, he failed to appreciate that while the statement of

opposition undoubtedly traversed the grounds contained in the statement of grounds, the

issue itself is simply whether the reasons given in the feedback provided to Wordperfect

for awarding a higher mark to the successful tenderer is properly construed as being an

undisclosed award criteria, or whether as the Minister contends it reflects “an example,

characteristic or relative advantage” contained in the successful tender submission

justifying a higher mark. There is, in my view, no factual issue which must be resolved in

order to determine that issue. Wordperfect knows already the marks awarded both to it

and the successful tenderer, and the explanation for the difference between the two. That

information is already known, and I cannot see that sight of the documents relating to the

evaluation of tenders covered by categories 1 and 2 might assist Wordperfect in making

that case. I would refuse discovery of categories 1 and 2 on the basis that they are not

relevant to the relatively narrow issue to which they are said to be relevant.

41. In relation category 3, the trial judge would appear to have concluded relevance by the

all-embracing conclusion as to relevance contained at para. 7. He makes a brief reference

“Further, the argument that the deduction of marks in respect of the mistaken

inclusion of monthly rather than quarterly reports was disproportionate or irrational

42. While I would not disagree that the issue is raised above the level of speculation, it does

not follow that in order to advance its case on this point, Wordperfect needs discovery of

“all documents relating to the evaluation of tenders by reference to Criterion 4.3 – the

Quality Assurance Plan”. The issue that the Court must determine is whether having

specified in the SRFT that reports were to be prepared on a monthly basis, and where

Wordperfect failed to comply with this requirement by instead providing a report on a

quarterly basis, it was impermissible to award Wordperfect a mark that was lower than

that awarded to the successful tenderer where the latter had provided a report on a

monthly basis as required. In my view that issue is a matter for legal argument and

submission by reference to the SRFT and the feedback report which explains the basis on

which marks were awarded. There are no facts in dispute which require sight of the

43. As for categories 4 and 5 as sought, again I consider that the trial judge failed to consider

adequately the actual issues to which discovery of these categories is said to be relevant

and necessary. He did not identify that the complaints made relate to how Wordperfect’s

own tender was marked and not that of the successful tenderer. The trial judge addresses

these complaints in his judgment at para 40 et seq. In so far as the successful tenderer

obtained marginally higher marks than Wordperfect in relation to certain aspects of

“Management Structures” and “Management Escalation Processes”, it is on the basis also

that the justification explained amounts to an undisclosed award criterion (see para. 43 of

the judgment). Again, I consider that these issues, as with categories 1 and 2 already

dealt with, are issues that can be fairly resolved without the discovery of the

documentation sought. They are issues of interpretation, not dependent upon information

that may be discerned from the documents sought by way of discovery. While the

documents sought may have relevance to the tender competition in that general sense

they lack relevance to the precise issues that will be determined in the substantive

proceedings and are not therefore necessary for the fair determination of the

proceedings. Neither would there be a saving in costs. In fact the ordering of discovery

would unnecessarily add to the costs of the proceedings. I would refuse to make an order

44. Having said all that in relation to categories 1, 2, 3, 4 and 5, I note that certain

documents within categories 1, 2, 4 and 5 were offered by the Minister on a voluntary

basis. That offer was refused. The Minister may well be still willing to offer that discovery

if Wordperfect wishes to now avail of it. That is a matter for the parties.

45. The documents sought under these categories are the followings:

6. The Successful Tenderer’s Tender and all documents submitted by the Successful

Tenderer in response to the SRFT and/or in response to any requests for

clarification, including any communications between the Successful Tenderer and

7. All documents relating to the evaluation of the Successful Tenderer’s Tender.

8. All documents relating to the evaluation of the Applicant’s Tender.

46. Wordperfect sought discovery of these categories of documents in order to support

grounds 8 – 10 of their statement of grounds which allege the following:

Ground 8: A breach of equal treatment in the evaluation of the applicant’s tender

Ground 9: A failure on the part of the [Minister] to explain the scores of the

Successful Tenderer in respect of a range of Award Criteria and the applicant’s

concern that the Successful Tenderer should have been awarded fewer marks.

Ground 10: Unlawful acceptance of an abnormally low tender from the Successful

47. Wordperfect submitted in the High Court that given the denial of these grounds in their

entirety in the statement of opposition, discovery of these categories of documents was

both relevant and necessary for the proper determination of the issues arising.

48. In resisting the application for discovery, the Minister submitted that in seeking the

entirety of the successful tenderer’s tender and the entirety of the evaluation,

Wordperfect was in effect seeking general discovery, and was indulging in a so-called

fishing expedition. It was submitted that such general pleas in a statement of grounds

could not satisfy a test of necessity in accordance with the principles in BAM, and it was

submitted that, in reality, Wordperfect was seeking discovery for the impermissible

49. The Minister also submitted that it appeared from the statement of grounds that

Wordperfect was attempting to make the case that in relation to certain Award Criteria

where it received equal marks to those awarded to the successful tenderer, the marks

awarded to the successful tenderer had not been explained, and that it needed discovery

as sought under these categories in order to make the case that in fact the successful

tenderer should not have been awarded even the marks that it did receive. In that

regard, it was pointed out by the Minister that Wordperfect had stated in its statement of

grounds that it reserved its right “to provide further particulars once reasons have been

provided, whether by way of discovery or otherwise”. This, it was submitted, was clearly

indicative that the claims in this regard are mere speculation, and that the application for

discovery amounted to “fishing”. In addition, the Minister submitted that there was no

obligation on him to explain scores where equal scores were obtained by each party, since

there were no relative advantages identified in favour of the successful tenderer. In

making that submission, the Minister had referred to, and relied upon, the judgment of

this Court in WordPerfect v. Minister for Public Expenditure (No. 3) [2018] IECA 156.

(Hogan J), as well as that of McDonald J. in Sanofi Aventis v. HSE [2018] IEHC 566

supporting his contention that where marks awarded to the successful tenderer in respect

of a particular award criterion are equal or lower, there is no obligation upon the

contracting authority under Regulation 6 of the European Communities (Public Authorities’

Contracts) (Review Procedures) Regulations 2010 (S.I. 130 of 2010) to give reasons for

50. On the other hand, Wordperfect had submitted that the claim of breach of equal

treatment was similar to the claim made in Bombardier Transportation Limited v.

Merseytravel [2017] EWHC 726 which held that a claimant alleging a breach of equal

treatment “is entitled to investigate fully the comparative treatment of the tenders, either

to confirm criticisms it has already made, or to found freestanding allegations”. It also

relied the judgment of Hogan J. in this Court in Wordperfect v. Minister for Public

Expenditure and Reform (No. 2) [2018] IECA 87 in which a portion of the successful

tenderer’s tender dealing with Quality Assurance was found to be discoverable where no

explanation had been offered by the Contracting Authority as to why it had been awarded

51. The trial judge referred to those judgments and others to which he had been referred

during the course of argument. Addressing the question of the practical difficulties facing

an applicant in judicial review wishing to challenge the decision to award a contract to

another tenderer due to the fact that the party does not have sight of the successful

tender and the evaluation of same, the trial judge stated that “in particular” he had been

referred to the judgment in Roche Diagnostics Ltd v. The Mid Yorkshire Hospitals NHS

Trust [2013] EWHC 933 (TCC) from which he quoted para. 28 as follows:

“Secondly, and most important of all, I consider that the Claimant is entitled to see

all of the documentation produced for and occasioned by the actual evaluation

process itself. I consider this to be fundamental. It appears that all of the

spreadsheets so far provided are ‘after the event’ exercises and that, thus far, the

defendant has not provided the documents, including the spreadsheets, which were

produced during the evaluation exercise. Yet, at trial, in a procurement case such

as this, the court will work carefully through how the evaluation itself was carried

out. Conventionally that is done by reference to a file of documents which contains

the actual evaluation exercise as it was carried out on both bids. That

contemporaneous documentation is critical in a case of this kind and the Claimant

has made out a clear entitlement to see that material now. (I understand that in

Germany, for example, public authorities are obliged to keep a file in which all the

documentation produced as a result of a tender evaluation is retained. At the end of

the bidding process, copies of that file are provided to all the tenderers. For the

reasons are apparent in this judgment, I consider that that is an approach which

52. The trial judge then referred to a commentary upon the judgment in Roche in Browne &

McGovern, Procurement Law in Ireland (Round Hall, Dublin) where at paras. 15-702/703

“This decision suggests that once proceedings are issued and the claimant can show

a basic case, it is entitled to see documentation relating to how the evaluation

process was carried out in order that an informed view can be taken as to its

fairness and legality. It is not appropriate for the contracting authority to proffer

only documents created after the issuing of proceedings in an attempt to show that

its evaluation was carried out correctly. On that basis, those evaluating should be

mindful that documents they create at the time of evaluation are disclosable and

could be ordered to be disclosed at an early stage in proceedings. Even before

proceedings are issued, contracting authorities should consider carefully any

request for information and/or documents from a bidder and whether the provision

of such information and/or documentation may help resolve a potential dispute

without a formal claim having to be made. In Wealden Leisure Ltd v. Mid-Sussex

District Council, disclosure of the final tenders was ordered to allow the claimant to

plead its case that the successful tender may have been abnormally low. However,

the High Court of England and Wales (Akenhead J.) refused certain applications for

discovery in Pearson and Covanta although certain elements of discovery/disclosure

Aggrieved tenderers are considered to be in ‘the uniquely difficult position’ of

knowing that they have lost while the reasons for their failure remain ‘within the

peculiar knowledge of the public authority’. The decision in Roche in relation to pre-

action disclosure confirms that contracting authorities in England and Wales are

under a duty under the Civil Procedure Rules to disclose basic documentation

without proceedings having to be issued. This duty to disclose should be construed

in conjunction with the Freedom of Information Act and the Environmental

53. It seems that the trial judge was persuaded by these authorities that categories 6, 7 and

8 of the discovery should be ordered on the basis that without sight of such them

Wordperfect would not be in a proper position to mount its case that the successful

tenderer ought not to have been awarded the scores that it received under the particular

criteria, even though its own scores under the same criteria were equal.

54. The Minister on this appeal has submitted that the ordering of these categories is an error

on the part of the trial judge. It is submitted that he has erred in concluding that the

grounds of challenge upon which the request for these documents rely are not speculative

in nature, despite the general and generic nature of the pleas in question. It is submitted

that such generalised claims can be made in any procurement case, and that to allow

discovery in relation to same would have serious implications for the procurement

process. In so far as the Minister has submitted that the pleas contained in the statement

of grounds with regard to alleged unequal treatment, the Minister referred to the

necessity in public procurement cases for grounds of complaint to be stated with

particularity, and has referred to my judgment in Fresenius v. HSE [2013] IEHC 414, and

to the judgment of Hogan J. in Wordperfect (No. 2) who stated at para. 13:

“Relevance for discovery purposes is, of course, determined in the first instance by

reference to the pleadings. This is perhaps especially true in procurement cases

where the parties are expected to bring forward their entire case with particularity

within a short period of time and where the possibility of amendment of pleadings is

generally limited. It is therefore necessary carefully to scrutinise the case made by

55. The Minister also submits that the question whether the Minister is obliged to provide

reasons why particular marks were awarded to the successful tenderer where those

marks are equal to the marks awarded to the applicant, is a question of law and therefore

not dependent upon anything that might be gleaned from discovery as sought in these

categories. The Minister refers to the fact also that in its respondent’s notice on this

appeal Wordperfect has at para. 8 (15) thereof stated, inter alia, that the point being

raised is that “Wordperfect is concerned that the Successful Tenderer should have been

awarded fewer marks in respect of these Award Criteria” [Emphasis provided]. The

Minister submits that being “concerned” amounts to speculation, and as such, cannot

form a proper basis for ordering the discovery of these categories of documents. The

Minister has placed reliance on the judgment of the CJEU in Varec S.A. v. Belgium, Case

“ … effectiveness would be severely undermined if, in an appeal against a decision

taken by a contracting authority in relation to a contract award procedure, all of the

information concerning that award procedure had to be made unreservedly

available to the appellant, or even to others such as the interveners.

In such circumstances, the mere lodging of an appeal would give access to

information which could be used to distort competition or to prejudice the

legitimate interests of economic operators who participated in the contract award

procedure concerned. Such an opportunity could even encourage economic

operators to bring an appeal solely for the purpose of gaining access to their

56. The Minister in this regard has referred also to this court’s judgment in WordPerfect

(No.2) and its emphasis upon the importance of confidentiality and the protection of

business secrets in relation to the tender process where business rivals must often reveal

their business secrets when advancing their best case in the tender submission.

57. As regards WordPerfect’s contention that the successful tenderer submitted an abnormally

low tender, and that discovery of these categories is required in order to support that

plea, the Minister submits that discovery is not necessary in circumstances where it is not

alleged that WordPerfect’s pricing strategy was known to the Minister. The Minister points

also to the fact that the differential of 9.65% between Wordperfect’s tender price and that

of the successful is admitted by the Minister, and therefore not a matter in dispute

between the parties. The Minister also submits that it is clear that the discovery sought in

these categories does not in the main relate to the score awarded in relation to price.

58. Turning now to the reliance by Wordperfect upon the judgment in Roche already referred

to, the Minister submits that it does not represent the law here, in the light of the

judgment of this Court in BAM which overturned the judgment of the High Court in that

59. In response Wordperfect denies that the pleadings supporting the discovery of these

categories are vague, generic and general, and submits that the claims for which

discovery of these categories of discovery are sought are clearly set forth in the

60. The respondent takes issue with the Minister’s reliance upon Wordperfect (No. 3), and

submits that the Minister has mischaracterised the judgment in Roche, and refers to the

fact that the Roche judgment is not even referenced in the BAM decision of this Court

61. In my view the seeking of discovery of the documents in categories, 6, 7 and 8 amounts

to a fishing exercise in the hope that by obtaining the successful tenderer’s tender

something may turn up that can substantiate the claims being made. The submissions of

Wordperfect on this appeal state that categories 6, 7 and 8 arise from claims made in the

statement of grounds as to Breach of Equal Treatment, Unjustified Scores, and

Abnormally Low Tender. Those headings appear in the statement of grounds at paras. 78

et seq. But in my view there is insufficient particularity of these claims to indicate that

discovery is necessary. I agree with the submissions of the Minister in this regard. To an

extent also, what is pleaded mirrors the claims already referred to in relation to

undisclosed award criteria, and does not advance the claims further. As regards the plea

of unequal treatment stated in para. 78 for example, the following paragraph states that

“In this regard, the applicant will rely, in particular (and without limitation) on the pleas

63. Wordperfect has pleaded that the Minister acted unlawfully by failing to conduct a

Standstill Period in respect of the award of the contract, and further that in so failing, the

Minister has breached Wordperfect’s legitimate expectations and/or made

64. The basis for these claims appear at paras. 60 and 61 of the statement of grounds. The

pleas of unlawfulness are contained in para. 60, and raise purely questions of law. The

case being made as to breach of legitimate expectation was summarised by the trial

“31. … It is also alleged that the Contracting Authority breached WordPerfect’s

legitimate expectation that there would be a standstill period. In this latter

connection, a number of factual matters have been pleaded by WordPerfect as

follows. It is alleged that the Contracting Authority has previously always observed

a standstill period when awarding contracts pursuant to the framework agreement.

Express references then made two other mini-tenders conducted pursuant to the

framework agreement. WordPerfect pleads more generally that, as a matter of Irish

public policy and the Contracting Authority’s custom and practice, a standstill period

is generally observed for contracts awarded pursuant to a framework agreement. It

is stated that WordPerfect has tendered for many public service contracts in Ireland

over many years, and has never come across a situation where a standstill period

has not been observed. The Contracting Authority has joined issue with all of this.”

65. In his statement of opposition, the Minister denied that there was any legal obligation to

provide a standstill for this contract, and went on to state that while it was a matter for

legal submission, the legal position is that under the EU procurement regime “Member

States may avail of derogations from a standstill period including in cases of contracts

called off under a framework agreement. This derogation was invoked by Ireland in

transposing the EU procurement regime. The Minister also pleaded that the applicant’s

allegations in respect of the interpretation of tender documentation or time-barred, and

therefore that any claim regarding the absence of a standstill period should have been

brought within the 30 day time limit. Without prejudice to those objections, the Minister

denied that the terms and conditions of the tender documentation incorporated a

standstill period for the contract, and stated that at the trial of the action he would refer

to the terms and conditions of the tender documentation for their meaning and legal

66. Turning then to the claims being made that the Minister made representations to

WordPerfect to the effect that a standstill period would be applied, this claim is denied.

“No such representation was made to the applicant. Further, the custom and

practice upon which the applicant purports to rely is not admitted and, in any

event, is not a representation made to the applicant whether in the context of the

67. At para. 13 of the statement of opposition the Minister pleads:

“13. Without Prejudice to the above, it is admitted that in the context of two

previous mini-tenders conducted pursuant to the Framework Agreement a Standstill

Period was observed. It is denied that the practice adopted in those mini-tenders

constituted a representation to the applicant or was in any way capable of giving

rise to an expectation reasonably held by the applicant to the effect that a Standstill

68. The documents sought in category 9 related to these claims regarding no Standstill

Period. The documents sought are “all documents relating to the respondent’s failure to

observe a standstill period”. The trial judge granted this discovery as sought. He does not

appear to have given specific consideration to the necessity of such a wide category of

documents, but, as previously stated, did conclude that all the discoveries sought in the

69. It does not seem to me that any case of necessity is made out for such a general

category of documents as sought. If WordPerfect wishes to pursue a claim that its

legitimate expectation in this regard was breached, it is in a position to give its own

evidence as to the basis for the claim both factually and as a matter of law. It will be able

to give evidence as to what it considered to be a reasonably held expectation based on

the representations as pleaded. It is entirely unclear what documents it considers would

be in the possession of the Minister that would be relevant and necessary to support its

claim. The Minister submits that this question is a purely legal issue and requires no

determination as to fact. Insofar as WordPerfect wishes to rely upon representations

giving rise to a reasonable expectation that there would be a standstill period the Minister

submits that WordPerfect can give whatever evidence it wishes to give in that regard on

affidavit and that discovery of documents does not arise. Indeed, it can be observed that

the deponent of the affidavit grounding this application for discovery has made averments

as to the basis for the legitimate expectation claim. The Minister makes the point also

that the discovery ordered is entirely non- specific and general.

70. Again, I agree with the Minister in regard to category 9 documents. The category seeks a

general trawl of any documents that the Minister might have in relation to the failure to

observe a Standstill Period relating to this contract. But I am not satisfied that a case of

necessity is made out. Indeed, in the absence of any detail as to the sort of documents

that might exist it is impossible to be satisfied that such documents would be relevant and

71. For the above reasons I would allow the appeal and vacate the order dated 14th March

2019.

Result: Allow appeal

Irish Court of Appeal