By Richard Digard
YOU might recall that when Ferrygate broke towards the end of last year, I asked what Jersey had spotted that Guernsey hadn’t in its decision not to award a long-term contract to Brittany Ferries to operate passenger and freight services to these islands. It’s a question that remains as valid now, despite several frantic court actions over the holiday period.
And I say “frantic” deliberately, because the reasons advanced by both ferry operators DFDS and the States of Jersey to try to deny BF a judicial review of Economic Development Minister Kirsten Morel’s actions look pretty flimsy to me. “Unconscionable conduct”, as DFDS brief Advocate Sam Williams termed it, might have a ring to it but it’s hardly standard grounds for an appeal against an earlier court ruling.
The problem here for we bystanders is to eliminate comment and conjecture from established fact at the same time as some pretty complex legal processes are in train. Let me try to explain.
Most of the media coverage to date implies that BF is taking a bit of a flier – “an attempt to strong-arm Jersey” was one comment – with its legal action. Alas for minister Morel, that’s not the view of Royal Court Commissioner M J Thompson.
In a closely reasoned judgment, he explained why, based on the material before him, he concluded that the threshold for permitting judicial review that the Jersey procurement process was procedurally unfair was met.
He went further. “Secondly, I concluded that Brittany Ferries were able to contend that the change in process to alter the requirements which had led to a mandatory fail on the part of DFDS for the Channel Islands Procurement process was based on a predetermination.”
There are two things to note with this. The first is the commissioner was not saying whether the BF allegations are right or not. “Rather, the question for the Court is whether Brittany Ferries have overcome the threshold for leave to be granted.” And on two of its three grounds the commissioner concluded that it has.
This is important because the test of admissibility was accepted by Brittany Ferries, DFDS and the States of Jersey. And that is the application having a realistic prospect of success and not subject to a discretionary bar, such as delay or an alternative remedy.
The court rejected the other ground relating to Jersey’s not appointing BF, as Guernsey had done, and opening a new tender process of its own.
As the court noted: “At that stage, Jersey faced the choice of either agreeing to the appointment of Condor because DFDS had technically failed the procurement process or launching its own process. It is right to add that it was not in a position to appoint DFDS because DFDS had failed the process and therefore any appointment of DFDS without a further process would inevitably have led to a judicial review challenge.”
In short, no review of the second tender process is required because that decision was not about who would receive a contract from Jersey, but only what process Jersey was going to follow to make that choice.
Since then, of course, DFDS have challenged the court’s decision to allow a judicial review on the grounds of procedural unfairness and apparent bias of the minister’s decision on 3 December to award a contract to DFDS. It did so on the basis that BF was slow to bring its case and, in any case, granting it would be likely to cause substantial hardship or substantially prejudice the rights of DFDS.
The court was not convinced DFDS had a claim. To set aside BF’s case for judicial review “is a high threshold because it would require me to determine that the reasons relied upon were such that any application for judicial review was no longer arguable or did not merit a trial.”
And it is this latest decision that has been referred to the Court of Appeal, which is expected to issue its decision shortly. Much rides on that as the appeal judges Sir William Bailhache, Helen Mountfield KC and James Wolffe KC will in effect be deciding whether the earlier court commissioner seriously misdirected himself or made some other significant error or whether the judicial review can go ahead on 13 January as planned.
Turning aside from these legal points, the issue for Guernsey is whether Jersey entered into a supposedly joint tender process in good faith. Yes, that’s a strong suggestion, but one that’s strengthened by Jersey’s subsequent decision to award DFDS a 20-year contract instead of the previous 15-year period both had agreed.
Why change now unless it’s to prevent a similar joint process in the future because Guernsey can’t be relied on to come to the right decision?
Arguably, however, on the basis of the material before the earlier court, Guernsey came to the right decision because a panel of five officers from each Island as one company (assumed to be DFDS) obtained an overall score of “fail” under one of the areas of evaluation. As the island stated in November, “Brittany Ferries’ bid was very strong and passed all requirements under the tender including financial.”
Reference to BF’s financial standing is also interesting as Jersey’s concerns about Condor seem to have been addressed by BF. In email correspondence with the Chief Minister’s office, it was asked: “Will Brittany Ferries (parent company) provide an explicit financial guarantee of all liabilities of the operating company? YES or NO?” The response:
“Yes – in signing the parent company guarantee, BAI [Bretagne Angleterre Irlande SA, otherwise Brittany Ferries] (Topco) will be guaranteeing all the liabilities (including financial liabilities) of the operator [Condor] to the Channel Islands.”
The other point of difference revealed in court papers is Guernsey’s apparent willingness to accept BF’s older vessels on the route. As Jersey stated, “As an island, we do not want to have old ferries running in our waters without a degree of useful economic life to them” and the bid from DFDS proposed three new vessels.
That said, it’s not clear which vessels these would be or even if it can operate them because “It needs to enter into agreements with ports, stevedores and linesmen, all before the end of January.”
So there we are, still as clear as mud. And it’s also worth noting that the summary of events provided by the court was relevant only to the application for leave to have a judicial appeal. “The full sequence of events is more complex and, at this stage, the material before the Court only represents information in the possession of Brittany Ferries,” the commissioner said.
“It is inevitable that in the context of the granting of a contract as significant as this one that there will be material in the possession of the minister to which Brittany Ferries were not privy.”
In other words, there’s a lot more to emerge.
If the appeal court does quash Brittany Ferries’ leave for a judicial review, that’s the end of Ferrygate – bar picking up the pieces and the issue of costs. If not, the subsequent hearing should be revealing about the reasons why Jersey couldn’t accept BF’s bid, but Guernsey could, and decided on action that sidestepped DFDS’s first bid failure.
Whatever the eventual outcome, however, I’m far from sure there are any winners in this.
*This article was written before Brittany Ferries’ legal action was dismissed by the Court of Appeal.
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Richard Digard is a former editor and director of the Guernsey Press and Star and has recently retired as chairman of Guernsey Post Ltd. He has been a Douzenier of the Vale Parish in Guernsey since 2016 and is a consultant and media commentator.
