BRITTANY Ferries has been accused of “unconscionable conduct” by the lawyer representing Danish rival DFDS in the latest round of a legal battle over Jersey’s ferry links.
After signing a 20-year contract for services earlier this week, DFDS and the government were in the Court of Appeal yesterday [fri] to dispute losing bidder Brittany Ferries’ claims that the procurement process was not fair.
Advocates for DFDS and the government sought to persuade a trio of judges that Brittany Ferries had not acted sufficiently promptly in launching legal action against the government’s decision to select DFDS as the new provider of ferry services starting from 28 March.
Advocate Michael O’Connell, representing the government and Economic Development Minister Kirsten Morel, said Brittany Ferries could have elected to go down a legal route after being told on 6 November about the termination of the process for a joint ferry contract that was initially envisaged to include both Jersey and Guernsey. Guernsey subsequently picked Brittany Ferries.
The French operator had instead chosen to take part in a second tender process confined solely to Jersey, the court was told, and only launched its legal challenge on 18 December, around two weeks after the government confirmed DFDS as the winning bidder.
Advocate O’Connell warned of the consequences of allowing such challenges in procurement cases. “It would lead to administrative chaos if an aggrieved bidder could store up limitless grievances for the future should they be disappointed,” he said, likening this to an attempt “to have their cake and eat it”.
Advocate Sam Williams, representing DFDS, said Brittany should have initiated urgent action far sooner. “This was unconscionable conduct, an attempt to strong-arm Jersey into bending to the will of Brittany Ferries,” he said.
“They stored matters up when they should have brought action there and then.”
Advocate Rebecca McNulty, representing Brittany Ferries, said the company had “little option but to take part” in the second tender process and had brought its action promptly once the government had announced its decision on 3 December.
The panel of appeal judges, comprising Sir William Bailhache, Helen Mountfield KC and James Wolffe KC, is expected to rule whether the delay in starting the legal action was harmful to the interests of DFDS and the Jersey public.
The proceedings at the Royal Court came ahead of a further hearing scheduled to take place on 13 January, at which the grounds for the challenge by Brittany Ferries will be determined.
