A BID by Brittany Ferries to seek a judicial review against the government’s decision to award the Island’s ferry services contract to DFDS has floundered – after the Court of Appeal decided it wouldn’t have “a realistic prospect of success”.
Reading out the decision at a hearing this afternoon, Helen Mountfield KC – one of the three appeal judges – said that leave previously granted by the Royal Court for the French firm to challenge Jersey’s decision in relation to allegations of “procedural unfairness and apparent bias” had been set aside.
News of Brittany Ferries’ legal action had emerged shortly before Christmas, marking the latest twist in the Island’s controversial saga to choose a new ferry operator – with incumbent operator Condor’s current agreement due to end in March.
This began in May last year with the launch of a pan-island selection process, which collapsed in October when Guernsey revealed that it had decided to appoint Brittany Ferries – Condor’s majority owner – as its preferred bidder.
DFDS won the subsequent Jersey-only tender and has signed a 20-year contract to provide freight and passenger services between the Island, starting from 28 March.
In an internal memo seen by the JEP, Brittany Ferries chief executive Christophe Mathieu told Condor staff he had raised concerns “regarding the fairness and legality of the process”.
Criticisms put forward by Brittany Ferries in court included concerns over the way the Jersey-only tender was designed following the collapse of the initial pan-island procurement process, an alleged lack of reasons as to why the French firm was not awarded the contract and claims that certain public statements had “clearly indicated” a preference for DFDS prior to the start of the Jersey-only tender.
At a later hearing, advocates for DFDS and the government sought to argue that Brittany Ferries had not acted sufficiently promptly in launching legal action against the government’s decision to select the Danish shipping giant.
Those 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.
But today’s ruling stated that the application “was not brought sufficiently promptly”, noting that DFDS was “lining up its services” and that for the government to decide not to proceed with the contract “would have caused serious detriment to good public administration”.
“Such is the prejudice to good administration (and to the interests of DFDS), that we consider the delay itself to be prima facie sufficient to set aside the leave which has been granted,” it continued.
It also concluded that the arguments made so far in favour of the review were “weak”.
“There is no arguable ground for judicial review which has a realistic prospect of success which is not subject to a discretionary bar.”
