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Notice party not entitled to full costs of judicial review where their full participation was not necessary

By: James Cross BL

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High Court, having refused judicial review concerning the tender for the supply of the '6 in 1' vaccine, refuses to award the successful tenderer, a notice party to the proceedings, their full costs on the grounds that it was not necessary for them to fully participate in the proceedings where the respondent was making substantially the same case as the notice party.

Commercial - costs of legal proceedings – successful tenderer for contract for the supply of the 6 in 1 vaccine seeking their costs – notice party to proceedings - High Court rejected challenge to tender process by disappointed tenderer save that there was a failure to provide adequate reasons in respect of two award sub-sub-criteria – Court took the view that it would not be proportionate to set aside the award of the contract – Court awarded the HSE 75% of its party and party costs of the proceedings – successful tenderer seeking all its costs - did not involve itself in the debate relating to the adequacy of reasons - had a direct and crucial interest in the outcome of the proceedings – argued that its interests went beyond the norm in circumstances where disappointed tenderer challenged the “safety and efficacy” of its vaccine - there was a significant concern about the need to preserve the confidentiality of their information - by reason of its long experience as a tenderer they were particularly well placed to assist the court - no mention is made of any submission made by successful tenderer - circumstances in which the successful tenderer came to be joined as a participant in these proceedings - not envisaged that the successful tenderer would play a full part in the proceedings – points made in affidavit were also made by HSE - relevant case law - court is required to consider all of the circumstances - availed of the opportunity to file affidavit evidence - availed of the opportunity to address the manner in which its confidential material could best be protected – entitled to these costs - undoubtedly had a significant commercial interest in the outcome of the proceedings but the fact that a notice party has an interest to protect does not necessarily justify doubling the costs of defending judicial review proceedings where the case made by both the respondent and the notice party is substantially the same - entitlement to be joined as a notice party must be distinguished from its entitlement to costs – necessary to file affidavits –not necessary for successful tenderer to fully participate in the proceedings – entitled to costs of the application to be joined as a notice party to the proceedings – entitled to costs of the preparation and filing of its affidavit evidence - costs of addressing the confidentiality issue including the negotiation of the redaction protocol - costs of the overnight transcript - the costs of review of the transcript by solicitor and counsel –

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