The Court of Appeal has reaffirmed that a party cannot circumvent judicial review time limits by seeking relief in plenary proceedings.

In Express Bus Ltd v National Transport Authority1 the plaintiff alleged that the National Transport Authority (“NTA”) violated EU public transport procurement rules contained in Council Regulation (EC) No. 1370/2007 by permitting a 2014 amendment to certain public bus timetables without inviting a fresh tender process. The plaintiff sought Francovich-type damages in respect of the alleged breach. The Court of Appeal struck out the claim as being bound to fail and set out where the plaintiff’s difficulties lay.

In summary, Hogan J. was satisfied that the Francovich claim could not succeed unless the plaintiff could demonstrate that the alleged breach of EU law was either “grave and manifest” or “inexcusable”.2 However, the plaintiff could not do this without also simultaneously challenging the validity of the NTA’s decision so that the Francovich claim here amounted in substance to a collateral challenge to that decision.

The plaintiff’s difficulty lay in the fact that any challenge to the decision should have been brought within the three month time limit for judicial review prescribed by Order 84 Rules of the Superior Courts which the court said would apply by analogy here. This was made clear in Shell E & P Ireland Ltd v McGrath3 where the Supreme Court also stipulated that a “party cannot circumvent judicial review requirements by the device of commencing plenary proceedings or by mounting a counterclaim in such proceedings.”

Here the plaintiff was well out of time and had not sought to extend time. The Court of Appeal rejected the plaintiff’s argument that it was entitled to pursue its claim for damages within the six year period prescribed by s11 Statute of Limitations 1957. As a result, the proceedings had no reasonable prospect of success and should be struck out.

Comment

This case reinforces the need for expediency by those seeking to challenge an administrative decision. It also highlights the need to understand when formulating proceedings how these may be interpreted by the courts who will be very alive to any circumvention of procedural requirements whether intentional or not.