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					REPUBLIC OF TRINIDAD AND TOBAGO

                           IN THE COURT OF APPEAL

Civ. App. No. 95 of 2005

           IN THE MATTER OF THE JUDICIAL REVIEW ACT, 2000
                    AND ORDER 53 OF THE RULES
                    OF THE SUPREME COURT, 1975

                                      AND

               IN THE MATTER OF AN APPLICATION BY
             NH INTERNATIONAL (CARIBBEAN) LIMITED
           FOR LEAVE TO APPLY FOR JUDICIAL REVIEW OF
     THE DECISION OF THE URBAN DEVELOPMENT CORPORATION
 OF TRINIDAD AND TOBAGO LIMITED (“UDECOTT”) (AS COMMUNICATED
                 BY UDECOTT TO THE APPLICANT BY
 LETTER DATED 16 NOVEMBER 2004) TO AWARD THE CONTRACT FOR
                    THE CONSTRUCTION OF THE
   ADMINISTRATIVE HEADQUARTERS FOR THE HEALTH SECTOR AT
              QUEEN’S PARK EAST, PORT OF SPAIN TO
                    HAFEEZ KARAMATH LIMITED

                                   BETWEEN

                NH INTERNATIONAL (CARIBBEAN) LIMITED
                                          Applicant/Appellant

                                      AND

                  URBAN DEVELOPMENT CORPORATION
                   OF TRINIDAD AND TOBAGO LIMITED
                                          Respondent/Respondent

                                      AND

                           HAFEEZ KARAMATH LIMITED
                                               Intervenor/Respondent




                                                            Kangaloo J.A./1



                                                               Page 1 of 36
PANEL:
       S. Sharma, C.J.
       M. Warner, J.A.
       W.N. Kangaloo J.A.


APPEARANCES:
       Mr. A. Fitzpatrick S.C. and Mr. R. Harnanan for Appellant
       Mr. S. R. Martineau S.C. and Mrs. D. Peake for Respondent
       Dr. C. Denbow S.C. and Mr. K. Ramkissoon for Intervenor


DATE OF DELIVERY: 17th March 2006




                                    Judgment
Delivered by W.N. Kangaloo
1.     Events have overtaken the facts which gave rise to this application for
judicial review, so the factual matrix is of historical interest only.    There is
however an important legal issue at stake.       It is indeed unfortunate that the
matter was not handled in accordance with the procedure adopted in Mass
Energy Limited v Birmingham City Council (1994) 3 Env. L.R. 298, (Mass
Energy) because as a result, the country (in particular the Ministry of Health) has
suffered from the non-implementation of the project which was the subject of the
tender procedure which gave rise to the judicial review application.


2.     At the core of this appeal is the important legal issue of whether a
decision of the respondent to award a contract after a tender procedure is
reviewable in public law.     I have come to the conclusion, contrary to my
instinctive reaction, that it is not. My conclusion is based on an analysis of three
cases in the United Kingdom, two of which fall on one side of the public
law/private law divide and the third, on the other side. In the event that I am
wrong however, other issues arise, such as whether there was a final decision of
the respondent to award the contract to the intervenor. If there was such a final
decision, the issue whether that the decision was irrational or unreasonable must
be addressed and finally there is the issue in this case of whether relief should



                                                                       Page 2 of 36
have been granted to the appellant because of (a) the allegations of improper
conduct made against it by the respondent, relative to the obtaining by it of
certain private and confidential material and also (b) the manner in which that
material was presented to the Court on the application for leave.


FACTUAL BACKGROUND AND LITIGATION HISTORY
3.     The factual background and the litigation history are important to put this
appeal in its proper perspective. The facts are set out comprehensively in the
thorough and careful judgment of Stollmeyer J. in the Court below and I need not
repeat them, except to say that in July 2004 the appellant (being one of four pre-
qualified contractors) was invited by the respondent to tender for the construction
of the proposed Administrative Headquarters for the Health Sector in accordance
with the tender documents which were enclosed.             In September 2004 the
appellant submitted its bid in the sum of $143,690,636.47 exclusive of VAT. The
intervenor’s bid was the lowest submitted in the sum of $129,999,136.07
exclusive of VAT. By letter of 16th November 2004 the respondent wrote a letter
to the appellant indicating that it ‘took a decision that this contract would be
awarded to the low tender, after completing a thorough review of all elements of
the contract and design, as well as value engineering the project, in an attempt to
bring it back to budget.’ The appellant sought leave to apply for judicial review of
the decision to award the contract to the intervenor but leave was refused
apparently on the ground that no final decision had yet been made.              The
                                                 th
appellant appealed this decision and on the 12 January 2005 was granted leave
and an interim injunction restraining the respondent from entering into any
contract with the intervenor until the hearing and determination of the judicial
review application, which was remitted to the High Court for determination. The
bidders had kept their prices for the project open until the 31st January 2005.
When the substantive motion was heard this deadline had passed and it was
now impossible to award the contract to anyone. Stollmeyer J. heard the matter
with creditable alacrity and gave his decision on the 23rd June 2005. The learned
judge decided that:
           (a)     there was no final decision to be reviewed;
           (b)     the decision to award a contract in the circumstances of this
                   case did not give rise to public law relief;



                                                                       Page 3 of 36
           (c)     even if he were wrong on (a) and (b) the decision was not
                   irrational or unreasonable;
           (d)     even if the decision were irrational or unreasonable he would
                   in any event not have granted relief to the appellant because
                   of its conduct in obtaining certain documents and the manner
                   in which they were put before the Court.


On the 27th June 2005 the appellant appealed the order of the learned judge and
by notice of motion dated the 29th June 2005 applied for an early hearing of the
appeal which order was granted on the 28th July 2005. The appellant, also on
the same day, obtained from the Court of Appeal an interim injunction in similar
terms as before but this time, pending the hearing and determination of the
appeal.


4.     I agree with the decisions/findings of Stollmeyer J. on all the issues in the
previous paragraph. The findings at (a) and (c), being factual, and the finding at
(b), being legal, are not a matter of discretion and so they have to be reviewed
differently from the finding at (d) which is discretionary.


5.     The appellant filed eleven grounds of appeal set out herein which
challenge the findings at (a), (b), (c) and (d) of paragraph 3 above and notably
included ground (7).


I will deal with this ground later on in the judgment but it may be that the learned
judge ‘failed to appreciate’ the effect of the decision as contended for by the
appellant because this was not the way in which the case was framed before
him. This ground was not included in the grounds of challenge to the decision of
the respondent in the appellant’s statement filed in the application for leave
neither was that statement ever amended to include the ground; additionally this
argument was neatly tucked away in the appellant’s written argument before
Stollmeyer J. and is to be found in the last paragraph thereof, where it is not dealt
with in great detail. The grounds of appeal are as follows:




                                                                        Page 4 of 36
“(1)   The learned judge erred in coming to the conclusion that the
       decision of the Urban Development Company of Trinidad and
       Tobago Limited (“the Respondent”), as communicated by the
       Respondent to the Appellant by letter dated 16th November, 2004,
       to award (whether conditional or final) the contract for the
       construction of the Administrative Headquarters for the Health
       Sector on State-owned lands at Queens Park East, Port of Spain,
       to Hafeez Karamath Limited (“the said decision”) is not susceptible
       to judicial review, is not one that attracts a public law element and
       was a commercial one in private law.

(2)    The decision of the learned judge that the Respondent was not
       shown to be the agent of government for the purpose of such
       contract is unreasonable and is not supported by and is against
       the weight of the evidence adduced before him.


(3)    The learned judge erred in coming to the conclusion that the said
       decision was not a final decision but was a “conditional award.


(4)    The learned judge erred in coming to the conclusion that the
       challenge to the said decision by the proceedings herein was
       premature.


(5)    The learned judge erred in finding that the said decision was not
       irrational and/or unreasonable in the circumstances of this case
       and in the light of the evidence.


(6)    In coming to the conclusion that the said decision was not
       unreasonable, the learned judge erred in holding that the bid of
       Hafeez Karamath Limited was the only one within budget and that
       such fact was not in issue in light of the Respondent’s letter dated
       the 16th day of November, 2004.




                                                               Page 5 of 36
       (7)    The learned judge failed to appreciate that the effect of the said
              decision    to   eliminate   the   Applicant/Appellant   from   further
              consideration and to proceed to negotiate with only one tenderer,
              namely Hafeez Karamath Limited (‘HKL”), with respect to revised
              contract elements and design and to permit HKL to price for prime
              cost items amounted to negotiations outside of the tendering
              process. In so doing the learned judge erred in not coming to the
              conclusion that the said decision was irrational and/or amounted
              to an abuse and/or misuse of power.


       (8)    The learned judge erred in coming to the conclusion that certain
              documents adduced in evidence could only have been obtained
              by subterfuge.


       (9)    The learned judge erred in holding that the method by which
              admissible and relevant documents, which are relevant and which
              a Respondent was under a duty to disclose and which may “very
              well have come to light in the course of discovery”, was obtained
              was relevant to the exercise of the Court’s discretion in
              determining whether to grant relief in respect of a decision which
              was irrational and/or unreasonable and/or amounted to an abuse
              of power.


       (10)   The learned judge erred in the exercise of his discretion in
              awarding costs against the Appellant in favour of the Respondent
              in the light of the Respondent’s letter dated 16th November, 2004
              by which it communicated the said decision to the Appellant.


       (11)   The learned judge erred in ordering that the Applicant pay 25% of
              the HKL’s costs, no new issues having been raised by the HKL.


PUBLIC LAW/PRIVATE LAW
6.     As indicated above, for me the critical question is whether the decision of
the respondent to award a contract after a tendering process is a decision which



                                                                       Page 6 of 36
sounds in public law or private law, for the purpose of relief. For the purpose of
the argument, I have taken the respondent to be a state enterprise although it is
a private company. It is, after all, wholly owned by the State and its mission
statement declares it is ‘to develop, redevelop and rehabilitate the physical fabric
of urban and other designated areas of Trinidad and Tobago’, obviously public
functions. It is now well known and accepted that a decision of a private body
which exercises public functions is reviewable if the decision has a sufficient
public element or flavour. So the question becomes whether a decision to award
a contract based on the tender procedures has a sufficient public flavour to it or
whether it is strictly speaking a commercial activity with remedies, if any, in
private law.


7.      The decision to award a contract as a result of a tender in my view
amounts to nothing more than the participation in the normal commercial activity
of a corporate entity, in much the same way as is a decision to employ personnel
or to engage in contractual relations with others for the supply of items for the
day to day running of the respondent. As the authorities discussed below show,
the quantum of money to be spent or the purpose of the contract does not take
the activity out of commerce and private law and place it in the public law arena.
There is no difference, in essence, between the decision to contract services for
the building of headquarters for the health sector at $150 million and the decision
to purchase a motor vehicle for $100,000 or the decision to engage the services
of a janitorial firm for daily cleaning of the respondent’s offices in the monthly
sum, of say, $10,000. If all these commercial decisions were subject to judicial
review, public bodies would become severely hamstrung in their operations. This
is not to say that none of the respondent’s decisions, is immune from judicial
review challenge. Certain of its decisions are obviously reviewable, for example
a decision of the respondent to construct low income or government subsidised
housing in a prime residential or even agricultural area would obviously be a
decision with sufficient public law flavour as to be reviewable, but a decision to
tender and award a contract based on an apparently regular tender procedure, in
my view, is entirely different.




                                                                       Page 7 of 36
8.     It must be remembered that there is no statutory basis in the instant case
for the tender procedures nor for the existence of the respondent, which makes
this case a stronger one for the conclusion that the decision in this case is not
reviewable, than was the position either in Mass Energy or R. v Lord Chancellor
ex parte Hibbits and Sanders (1993) COD 306, the two cases I referred to earlier,
which decided that the decision to award a contract based on a tender procedure
by obvious public bodies is not reviewable in public law. The case on the other
side of the divide is R. v Legal Aid Board, ex parte Donn & Co. (A firm) (1996) 3
All ER 1.


THE AUTHORITIES
9.     I pray forgiveness for quoting in some detail from these cases but it is my
view that this is necessary to appreciate what submissions were made and how
they were rationalised by the various courts. Mass Energy was decided by the
English Court of Appeal and is therefore more persuasive than either ex parte
Hibbits & Sanders or ex parte Donn & Co. In Mass Energy, the respondent
Birmingham City Council was obliged by the Environmental Protection Act 1990
to tender in a certain manner for the award of contracts for waste disposal, which
it did and decided to accept a revised tender from the interested party which was
the lowest bidder, subject only to negotiations about the final form of the contract
and any other details which lacked clarity.      Mass Energy’s tender was not
formally rejected but was held in reserve, pending the outcome of negotiations
between the respondent and the interested party. After these negotiations, a
contract was formally awarded to the interested party. Mass Energy challenged
both decisions and sought leave for judicial review which was refused at first
instance but renewed in the Court of Appeal.


10.    Counsel for Mass Energy contended that the contract which was
eventually entered into was not in accordance with the tender procedure and
sought, among other relief, a declaration that Mass Energy had a legitimate
expectation that the respondent would not depart from the tender process with
any tenderer, or enter into a contract with any tenderer outside the tender
process without giving other tenderers the opportunity to reconsider their tender.
At page 6 of his judgment Glidewell L.J. says: ‘In my view these arguments raise



                                                                       Page 8 of 36
matters for our consideration which I can summarise as follows: first of all, is this
a proper matter for judicial review at all…. On its face this is really a commercial
dispute between a successful and an unsuccessful tenderer; a situation which is
not of course at all uncommon. If there were no statutory requirement that the
city council should enter into a contract for its waste disposal operations and
particularly the construction of the incinerator to be the subject of a contract
entered into by tender, but if the council sought voluntarily to enter into a contract
by tender deciding to adopt that process of its own volition, then in my view, there
would be no public law element in such a dispute at all. Mass Energy could then
only hope to bring an action against the council on some contractual basis, for
instance if they can persuade a court that there was some sort of implied term
which entitled them to recover the wasted cost of tendering whether they had
such a right is a matter with which I do not concern myself.’ (my emphasis)
Thus, for Glidewell L.J. the only reason that the decision of the Council was
reviewable at all, was the statutory underpinning of the tender process and the
award of the contract. It cannot be emphasised too strongly that there is no
statutory underpinning of the tender process adopted by the respondent in the
instant case.    It was agreed on all sides that the Central Tenders Board
Ordinance 1961 as amended does not require the respondent to tender. The
decision to tender was purely voluntary on the part of the respondent;
undoubtedly because ultimately, there was the use of public funds (the
respondent being a state enterprise) there was a desire to demonstrate
transparency in the award of a contract of this magnitude.


11.     Glidewell L.J. goes on to say in the paragraph following “However as Mr.
Wilkie [for Mass Energy] urges upon us, I accept that because the statutory
powers of the council not to contract by means other than those described in Part
II of Schedule 2 of the Act, there is a public law element in this dispute to this
extent (but only to this extent): that it is a proper subject for judicial review to
consider whether the council have complied with section 51(1) and entered into a
contract as a result of following the procedure laid down in Schedule 2, Part II of
the Act. In my judgment, judicial review has no further place in my judgment in
this dispute.”




                                                                        Page 9 of 36
12.    In another judgment in Mass Energy Scott L.J. had the following to say on
the issue of whether the decision to award the contract to the interested party
was reviewable by judicial review:
       “The application before us is for judicial review. It seeks a review of
       whether the council has complied with its obligations under public law.
       But any process of contracting, any process of tendering by a waste
       disposal authority or by any private citizen or company, is apt to produce
       private rights. It is, I conceive, possible that the terms of an invitation to
       tender issued by a waste disposal authority may vest in the invitees who
       accept the invitation private rights of a contractual character.           An
       individual who invites tenders may, by the terms of his tender, bind
       himself to those who accept the invitation not to entertain tenders made
       after a specified date, or not to permit any substantial alteration in tenders
       after that date, or to accept the tender containing the highest price, and
       so on.


       The submission of a tender may constitute a contract between the
       tenderer and the invitor whereunder the invitor becomes contractually
       bound to observe the terms of the invitation to tender. A breach by the
       invitor of those terms may entitle a disappointed tenderer to some
       contractual remedy for breach of contract, whether damages or injunction,
       as the case may be. All of this may, in a particular case, result from an
       invitation to tender issued by a waste disposal authority pursuant to
       paragraph 20(4) of Part II of the second Schedule to the Act. If so, the
       aggrieved tenderer’s remedy lies, in my opinion, in private law not in
       judicial review.   Judicial review should be confined to dealing with
       breaches by the waste disposal authorities of their public law obligations.
       If the actions and decisions of Birmingham City Council of which
       complaint is made in the present case involve breaches of their public law
       obligations under the 1990 Act, then judicial review is the proper remedy;
       but, if there is no more than a complaint that the council has failed to
       comply with some express or implied term of the invitation to tender – not
       being a term required by the statutory scheme to be included in the terms
       of the invitation – Mass Energy’s remedy, if it has one at all, lies, in my



                                                                      Page 10 of 36
        judgment, in private law. The case would not be one for judicial review.”
        (my emphasis)


Again it will be seen that Scott L.J. is of the opinion that it is only if the decision of
the council involved breaches of public law obligations under the Environmental
Protection Act 1990 that remedy by judicial review is available.


13.     To my mind therefore Mass Energy is strong persuasive authority for the
proposition that the lack of a statutory underpinning of the tender procedure in
the instant case deprives the appellant of a remedy in judicial review for its
challenge to what is essentially a commercial dispute between the appellant and
the intervenor.


14.     The other authority which similarly decides the issue is the first instance
decision of ex parte Hibbit and Sanders.          In this case the applicants sought
judicial review of a decision of the Lord Chancellor to award a contract for court
reporting services.     As a result of the invitation to tender, thirty-one firms
tendered including the applicants.        The four lowest bidders were given the
opportunity, following interviews to submit lower tenders. The applicants were
not given the opportunity as they fell outside of a band of bidders selected. They
claimed that it was unfair because if given the opportunity to reduce their bid like
the selected four they could have been even more competitive than the
successful bidders.


15.     Rose L.J. says: “In my judgment the statement at page 21, particularly
when compared with the 1988 wording, clearly and unambiguously gave rise to a
legitimate expectation in the applicants that tenderers would not be able,
subsequently, to submit reduced bids. As the applicants fulfil all other criteria
and were precluded from submitting a reduced bid which, on the evidence, would
have been competitive, this breach of their legitimate expectation was, as it
seems to me, unfair and caused them prejudice.                Furthermore, as to the
identification of staff, although the purpose of this condition from the respondent’s
point of view was to ensure compliance with criterion (3) and although staff costs
are a matter for commercial judgment, neither of these points, as it seems to me,



                                                                          Page 11 of 36
answers the applicants’ case that their commercial judgment was affected by the
apparently mandatory requirement for staff to be identified.              I accept Mr.
Pannick’s [for the applicant] submission that this serves to underline the
unfairness to the applicants. They were apparently required to bid on a basis
which respondent chose not to maintain and thereafter they had no opportunity to
submit a lower bid even though it was price alone which was held against them.
Accordingly, for my part, I conclude that the applicants were treated unfairly by
the respondent.
The crucial question is whether that entitles them to judicial review.”


“Mr. Richards [for the Lord Chancellor] submitted that the statutory provisions
relied on provide no more than background.           They do not prescribe how
recording services should be provided or how the tendering process should be
carried out.   There is, he submitted, no sufficient public law element in the
present case, which involves no exceptional feature beyond the performance by
a public body of normal commercial activity pursuant to common law rights to
contract uncircumscribed by statute. The fact that shorthand writers perform an
important public function makes their engagement no more a matter of public law
than the engagement of a civil servant, as in Ex parte Nangle (see R. v Lord
Chancellor’s Department ex parte Nangle [1992] 1 All ER 897, [1991] ICR 743); a
police surgeon, RLR 332); a senior nursing officer, as in R. v East Berkshire
Health Authority, ex party Walsh [1985] 1 QB 152, [1984] 3 All ER 425; a
consultant surgeon, as in R. v Trent Regional Health Authority, ex parte Jones
(The times, 19 June 1986) or a prison officer, as in McClaren v Home Office
[1990] ICR 824, [1990] IRLR 338. The public importance of the work done does
not make the matter one of public law (see McClaren v Home Office per Dillon LJ
at 832 H). The exercise of a private law function, even when pursuant to a
statutory power is not susceptible to judicial review (see R. v IBA, ex parte Rank
The Times 14 March 1986 (a transcript of 13th March 1986)).” (my emphasis)


“Mr. Pannick submitted that there are four factors which here combine to create a
sufficient public law element.    First, as the applicants are only one of many
unsuccessful bidders, the decision challenged is of a general nature reflecting
the policy or practice of the Department in conducting a tendering exercise.



                                                                          Page 12 of 36
Secondly, there is no other remedy for the unfairness relied on. Thirdly, there
are the statutory provisions to which I have referred.         Fourthly, the Lord
Chancellor enjoys, the relation to shorthand writers and those who record
proceedings, as near a monopoly status as makes no difference. Accordingly,
said Mr. Pannick, it would be surprising if there were no legal remedy if the Lord
Chancellor allocated these contracts in a grossly unfair or arbitrary manner, for
example by refusing a bid from a tenderer because he was a member of the
Labour Party or had led a campaign for more legal aid.” (my emphasis)


16.    Rose LJ resolved the matter by dismissing the second, third and fourth
factors of Mr. Pannick on the basis that there was no evidence of a monopoly,
that the fact that there was no alternative remedy was immaterial to the question
of whether a public law remedy existed and thirdly that the statutory background
did not provide a framework for the employment of the shorthand writers. In
respect of the first contention of Mr. Pannick, Rose LJ says: “This leaves Mr.
Pannick’s first factor.   It is correct that the decision challenged affects many
others, apart from the applicants, though the same can be said of any large
tendering exercise by any government department or local authority. The fact
that a commercial function is being performed does not take the case outside the
ambit of public law (see R. v British Coal Corporation, ex parte Price, Vardy &
Ors (Divisional Court transcript, 21st December 1992)). But in my judgment it is
not appropriate to equate tendering conditions attendant on a common law right
to contract with a statement of policy or practice or policy decisions in the
spheres of Inland Revenue, immigration and the like, control of which is the
especial province of the State and where, in consequence, a sufficient public law
element is apparent. It is here, as it seems to me, that Mr. Pannick’s analogy
with and reliance on Ex parte Asif Khan (see R. v Home Secretary ex party Asif
Khan [1985] 1 All ER 40, [1984] 1 WLR 1337) and the other cases cited earlier in
relation to the concept of fairness breaks down. It follows that although the
applicants have my sympathy and although they were, as it seems to me, treated
unfairly, it is impossible, in my judgment to give them the relief they claim by way
of judicial review. The decision challenged lack a sufficient public law element to
found such relief. Accordingly, for my part, I would dismiss this application.” (my
emphasis)



                                                                     Page 13 of 36
17.     The reasoning thus appears to be that the fact that a commercial function
is being performed does not take the case outside of public law but tendering
conditions which are consequent upon a common law right to contract are
different from a statement of policy or practice within obviously public law domain
of Inland Revenue and Immigration so that the doctrine of unfairness is not
applicable to the former but the latter. Rose LJ therefore concluded that the
decision challenged lacked a sufficient public law element to give rise to relief in
judicial review.


18.     Waller J. in his judgment deals with the question of jurisdiction to give
relief in judicial review accepting that the Lord Chancellors’ department was
unfair to the applicants in the tendering process.          He starts by saying: “In
considering whether a decision can be judicially reviewed, it is critical to identify
the decision and the nature of the attack on it. Unless there is a public law
element in the decision, and unless the allegation involves suggested breaches
of duties or obligations owed as a matter of public law, the decision will not be
reviewable.” He continues, “In order for the applicants to be entitled to any relief
by way of judicial review, they must demonstrate that the above allegations
involve infringement of rights to which they were entitled as a matter of public
law. To put the matter another way, if the Lord Chancellor’s Department had the
obligation not to act as alleged in (i) to (iii) above, the critical question is whether
that would be so because of some public law obligation or whether it would be so
as a result only of some private law obligation.


It is not sufficient in order to create a public law obligation simply to say that the
Lord Chancellor’s Department is a governmental body carrying out governmental
functions and appointing persons to public office.          If a governmental body
carrying out its governmental functions enters into a contract with a third party,
including someone occupying a public office, the obligations that it owes will be
under that contract unless there also exists some other element that gives rise in
addition to a public law obligation. That follows from Ex parte Walsh (see R. v
East Berkshire Health Authority ex parte Walsh [1985] 1 QB 152, [1984 3 All ER
425].



                                                                         Page 14 of 36
There cannot be any justification, as I see it, for distinguishing between pre-
contractual negotiations and the contracts themselves. A governmental body is
free to negotiate contracts, and it would need something additional to the simple
fact that the governmental body was negotiating the contract to impose on that
authority any public law obligation in addition to any private law obligations or
duties there might be.” (my emphasis)


19.    On the issue of statutory underpinning Waller J. says that it provides one
example of the additional element to bring a decision into the realm of public law
and hence reviewable but it is not the only element which does so and in fact
opines that there are numerous cases where there was no statutory underpinning
but decisions were reviewable on the basis of breach of policy or practice.
Where however there is statutory underpinning he says: “The point, however, is
that to have a right which can then be the subject of review that right must flow
from the statute if it is to a statute that one has had to look for providing the
public law element.     It is not enough to say simply that the governmental
authority is acting by reference to certain statutory provisions without the
additional factor that it is those statutes which impose the obligation which is said
to have been broken.”


20.    In resolving the rival contentions of Mr. Pannick and Mr. Richards, Waller
LJ says: “What has happened in this case is that a government department,
appreciating that it has an important public duty to perform in the provision of
shorthand writers, and appreciating that it has an important public asset, i.e. the
contract to let, for which it is important that all shorthand writers should have a
fair opportunity of bidding, has set up a tendering procedure. That procedure
was set out in detail in the invitations to tender and would seem to me, prima
facie in any event, to carry with it, by implication, some representation that the
procedure will be carried out in accordance with its terms and fairly. My instinct
would tell me that if there is a failure to keep to that representation some remedy
should be available. What is more, I would feel, for my part, that a government
department is in a different position when seeking tenders for contracts as
compared with the ordinary businessman because there is an element in its aim



                                                                      Page 15 of 36
of allowing all shorthand writers to have an opportunity to bid. Unfortunately, and
somewhat reluctantly, that has not led me to the conclusion that judicial review is
available in this case for the following reasons:
      (1) Even if there is some distinction between a government and an ordinary
         businessman in their approach to tendering, it does not alter the nature of
         the tendering procedure once it is in place. That procedure itself was no
         different from any other procedure adopted in ordinary commercial
         contract situations. It is wrong, as I see it, to characterise the terms of the
         invitation to Tender as a statement of policy. The attack here is on a
         failure to comply with the terms expressed or implied of the negotiating
         procedure.     The application cannot, in my view, be accurately
         characterised as seeking to review a policy decision or a failure to adhere
         to a policy decision. If what was being sought to be reviewed was a
         policy decision, for example, not to allow shorthand writers who employed
         trade union members to tender, that would be a very different matter.”
         The learned judge concludes, “The instinctive reaction that there should
         be a remedy does not lead to the conclusion that there must be a public
         law remedy. It is just possible that there is a private law remedy. That
         aspect has not been fully explored, and unless it had been it cannot help
         one way or the other to have an instinctive reaction that there should be a
         remedy when considering merely the public law aspect.” (my emphasis)


21.      The principles which can be culled from these two authorities includes:
             a. a tender process without statutory underpinning does not give rise
                to public law rights;
             b. the nature of a tender process undertaken by a governmental
                nature of the body is not changed because of the governmental
                body. It is no different from the procedure adopted in ordinary
                commercial situations;
             c. If the obligation breached in tender procedures is fairness, that
                obligation cannot be equated to the obligation of fairness of
                government departments such as immigration and inland revenue
                to give rise to public law relief, because tender procedures are
                rooted in the common law right to contract.



                                                                         Page 16 of 36
It is instructive to analyse the authority of ex parte Donn (a firm) in light of these
principles.


22.     In that case it was held that the decision making process of a legal aid
committee in awarding a contract to solicitors for the conduct of multi-party action
was justiciable in public law.


The short facts were that the applicants submitted a tender to the respondent for
a contract to represent plaintiffs in a multi-party action brought against the
Ministry of Defence. The Lord Chancellor had made a direction enabling the
respondent to enter into contracts in accordance with the Legal Aid Multi-Party
Arrangements 1992. Paragraph 11 of those arrangements made provision for a
tendering process. Paragraph 12 stipulated the necessary contents of a tender
document. Paragraph 15 required the committee before making a selection to
consider (inter alia) the written tender. Paragraph 18 empowered a committee to
enter into a contract limited to generic work as was the contract entered into. It
turned out that the applicant’s tender as presented to the committee, was without
its pages 119 to 122, which dealt with matters required to be dealt with in the
tender document. This omission was as a result of a photocopying error of the
respondent’s secretariat. The tender committee made an award without the full
tender of the applicants.        When this was brought to their attention they
considered the tender afresh without convening a meeting but by a letter from the
chairman explaining the omission and including the missing pages and asking
members if they would have decided the matter differently. Six members of the
committee said it would not have changed their position.          The seventh was
unsure.


The question arose as to whether the committee’s decision-making process was
justiciable in public law.


23.     Two bases were put forward for the justiciability.        The first was the
statutory underpinning of the process; because section 4(4) of the Legal Aid Act
1988 placed the Multi-Party Action Arrangements 1992 under the purview of the



                                                                       Page 17 of 36
Lord Chancellor, it was contended that was sufficient to bring the tendering
process into the domain of public law. Secondly, it was contended that whether
there was statutory underpinning or not the tendering process in any event
involved a sufficient public law element. However argument was heard only on
the second basis at the Court’s invitation.


24.     Mr. Beloff for the respondent cited the case of ex parte Hibbit & Sanders
and the submissions made on behalf of the Lord Chancellor in that case
emphasizing that the public importance of the work does not make the matter
one of public law. Mr. Moses [for the applicants] contended that the case had a
sufficient public law element because inter alia, it related directly to the conduct
of litigation to be undertaken on behalf of the hundreds of legally aided and
privately paying plaintiffs and it is clearly in the public interest that the best firm
be selected by a fair and lawful procedure. He invited the Court to focus on the
public importance of the selection process adopted by the committee. He says
‘One is not here to be concerned with ordinary private law questions arising from
contractual relations between employer and employee, rather with procedures
chosen by the committee in the context of selection of solicitors to discharge a
task which is of great public importance.’ He further submitted that “there is here
a ‘vital public interest’ in the procedurally regular and fair conduct of the selection
process which, at common law, brings that process within the aegis of public
law.”


Ognall J. came to his conclusion on the justiciability issue as follows: “I confess
that I have not found the answering of this question an easy one. To a degree,
the exhortation to which I have referred, namely to look at ‘the subject matter’
itself raises a question not free from difficulty. In this case, for example, I find it
difficult to accept Mr. Moses’ invitation to put from my mind the object of the
selection process, namely the conduct of the litigation, and to focus solely upon
the selection process itself. Indeed, it was a central part of his argument that I
should consider the public importance of the task to be performed by the
preferred tenderer. So I have preferred to treat both the nature and purpose of
the selection process and its consequences as one indivisible whole.




                                                                        Page 18 of 36
The answer must, it seems to me, fall to be decided as one of overall impression,
and one of degree. There can be no universal test. But bearing in mind all the
factors drawn to my attention, I prefer the applicants’ submissions. I believe that
the function exercised by this committee under the respondents’ arrangements,
the purpose for which they were empowered to act and the consequences of
their decision-making process, all demand the conclusion that it would be wrong
to characterize this matter as one of private law.      Even if there were to be
arguable some private law remedy, or whether there is none, I am satisfied that,
quite independently, the public dimensions of this matter are of a quality which
make it justiciable in public law.”


25.     A few considerations arise from this authority. First, it does not appear
that Mass Energy was considered by the learned judge and to the extent that it
departs from the principles of that case, it must have been decided per incuriam.
Secondly, assuming that the Legal Aid Multi-Party Action Arrangements 1992 do
provide a statutory underpinning of the tender procedure (as it appears it does),
the decision of the case is not at odds with Mass Energy and there would have
been no need for the ‘indivisible whole’ test formulated by the learned judge.
Thirdly, assuming there is no statutory underpinning of the Legal Aid Multi-Party
Action Arrangements 1992, the invention of the ‘indivisible whole’ test, ingenious
as it is, does not deal with the fact a tender process is rooted in the common law
right to contract and that it ought not to make a difference who uses it, whether a
governmental body or a private entity, so as to take it outside the realm of private
law.


26.     I am afraid that were it not for Mass Energy, if the choice lay between ex
parte Hibbits & Sanders and ex parte Donn, it is my view that the former better
accords with principle and for that reason I am not persuaded by ex parte Donn.


27.     As I mentioned earlier, it was agreed on all sides that the Central Tenders
Board Ordinance, 1961 has no application to the factual scenario which gave rise
to the instant appeal because of the amendment to that legislation by Act No. 36
of 1979 which permitted government to enter into a contract with wholly owned
state companies, like the respondent, without the need to invite tenders. To my



                                                                     Page 19 of 36
mind, the consequence of this sequence of legislation is that, while prior to the
1961 legislation, the government’s ability to tender was firmly rooted in the
common law right to contract, after the 1961 legislation, the necessity on the part
of the government to tender became statutorily rooted.             However by the
amendment in 1979, Parliament, in effect, uprooted the obligation to tender in
respect of contracts with wholly owned state companies and transplanted it back
into the lush fields of the common law. It is therefore my respectful view that,
tempting as it may be, for courts to arrogate unto themselves a supervisory role
in the name of the protection of the public interest especially where vast sums of
the public purse are involved, the role of the court is limited and jurisprudentially,
courts must act in accordance with the established principles.


28.     The judicature, as an arm of state must respect the legislature, another
arm, and if the latter has dictated that government is free to contract with a wholly
owned state company, which itself does not fall under the purview of the 1961
legislation, then that wholly owned state company is equally free to contract, with
all its ramifications including tendering processes, firmly rooted in the common
law. The amendment in 1979 may be called many names, including colourable
device and sleight of hand, none of which changes the fact that it is what the
Legislative arm of state has decreed and there has been no challenge to its
legality or validity to date.


29.     Before I leave the issue of the public law/private law schism, a brief look
at two cases from New Zealand which found their way to the Privy Council may
be useful for extrapolating principles. The first is the case of Pratt Contractors
Limited v Transit New Zealand (2004) 1 BLR 143 (Pratt) and the second is
Mercury Energy Limited v Electricity Corporation of New Zealand (1994) 1 WLR
521. (Mercury Energy).


30.     Pratt was a case with all the ingredients of a judicial review application.
The defendant was a state enterprise which by statute was obliged to invite
tenders before awarding contracts for public works. There was an allegation and
a finding of a likelihood of bias in one of the members of the tender evaluation
team. It was alleged and found that there were at least two breaches of internal



                                                                       Page 20 of 36
rules relating to the tender process. The sum involved in the contract was large
(NZ$4m), all of which when taken together, if occurring in our jurisdiction, with
our penchant and fascination for judicial review, would have made it a long odds-
on favourite in the “judicial review derby”. Yet, curiously enough, it was a non-
starter; the action was brought in private law. It was accepted on both sides “in
light of modern authority, that the request for tenders was not a mere invitation to
treat and did give rise to a preliminary contract requiring it to comply with certain
obligations. [Transit] also accepts that the contract included an implied duty to
act fairly and in good faith.    But the parties differ over exactly what these
procedural obligations were and over what counts as acting fairly and in good
faith.” (See paragraph 2 of the judgment).


31.    Lord Hoffman in the following paragraph succinctly but pellucidly and
perspicaciously puts the dispute in its proper context when he says: “At the
centre of the dispute lies the question of the extent to which the procedure for
competitive tendering should be judicialised.     Tenderers naturally want to be
judged independently on their merits by an impartial selector and given the
opportunity to rebut any suggestions of demerit which they regard as unfair. The
parties who invite tenders, even if they are public authorities like Transit, want to
be able to choose in what they consider to be their best commercial interest and
not to be hobbled by quasi judicial rules.” (my emphasis)


32.    In Pratt the Plaintiff succeeded at first instance when Goddard J. found
inter alia that there was a real risk of bias on the part of the tender evaluation
team. However the Court of Appeal rejected “the judge’s finding of an implied
term which obliged Transit to conduct the evaluation in a way which did not
create a risk of bias. This was a public law concept inappropriate for adoption in
commercial dealings between parties who were each entitled to act in their own
interests. The only implied term was that Transit would not actually act contrary
to good faith and fair dealing.” (See paragraph 41 of judgment) (my emphasis).


33.    Lord Hoffman at paragraph 46 of his judgment in relation to this question
quotes and agrees with Finn J. in Hughes Aircraft Systems International v
Airservices Australia (1977) 146 ALR 1, 36-37 who emphasized that such an



                                                                      Page 21 of 36
implied term ‘does not as such impose on [the employer] under the guise of
contract law, the obligation to avoid making its decision or otherwise conducting
itself in ways which would render it amenable to judicial review of administrative
action.’


34.        Their Lordships in the Privy Council at the end of the day, upheld the
Court of Appeal which had reversed the decision of Goodard J. Their Lordships
were of the view that there was no finding of fact to justify a conclusion that there
was a breach of the express or implied terms of the preliminary procedural
contract.


35.        It therefore appears to me from the dicta quoted from Pratt that it is not
inappropriate to extrapolate the principle that tender cases, even if statutorily
underpinned do not fall into the realm of public law but because of their
commercial and contractual essence, they belong to the private law arena of
contract.


36.        Secondly, there is Mercury Energy where their Lordships of the Judicial
Committee of the Privy Council held that since the defendant, as a state
enterprise, was a public body established by statute carrying on business in the
interests of the public, and since its decisions made in the public interest might
adversely affect the rights and liabilities of private individuals without affording
them any redress, such decisions were in principle amenable to judicial review. I
respectfully agree with this approach and I have indicated earlier that some of the
decisions of the respondent are reviewable in public law, but it all depends on the
nature of the decision.


37.        Perhaps, more importantly for the instant appeal their Lordships also
opined “it does not seem likely that a decision by a state enterprise to enter into
or determine a commercial contract to supply goods and services will ever be the
subject of judicial review in the absence of fraud, corruption or bad faith.” (See
pg 529 A-B of report). It must be remembered that the challenge to the decision
of the respondent here is not founded on any one or a combination of fraud,
corruption or bad faith.



                                                                       Page 22 of 36
38.    Finally, in respect of the private law/public law issue there is the article of
the Sue Arrowsmith entitled Judicial Review of Public Procurement: The recent
decisions in the National Lottery case and R v Bristol City Council, ex p. D.L.
Barrett PPLR 200, 1 @ NA 41-46, in which the learned author, as the title
suggests, reviews the recent cases mentioned. However as the author points
out, because Richards J. in exparte Barrett decided the matter differently from
the decision in Hibbit and Sanders without giving any reasons for distinguishing
in principle between a decision to take a contractor off a list where judicial review
principles apply (as in Barrett) and a decision to award a contract (as in Hibbit
and Sanders), the “decision does nothing to clarify the confusing state of the law
on this point, if anything, it adds to it. In the absence of clarification by the Court
of Appeal or House of Lords, the prospects of success for challenges to
procurement decisions based on general principles of judicial review thus
remains something of a lottery.” (See pages 2 and 3 of the article).


39.    The other decision discussed by Ms. Arrowsmith is the case of R v
National Lottery Commission ex p. Camelot Group plc [2000] All ER 1205
(Camelot). This case was relied on by Mr. Fitzpatrick for the appellant to show
that the decision to negotiate with the intervenor was unfair, quite like the factual
scenario in the case itself. However, as I have said earlier this aspect of the
decision of the respondent was not part of the challenge of the appellant in the
Court below and no amendment was sought to include it. But coming back to
Camelot as Ms. Arrowsmith points out, no issue was raised as to whether judicial
review principles applied at all, no doubt because of the significant statutory
underpinning of the licencing procedure in the case. However it should be noted
that Camelot with statutory underpinning preceded Pratt also with statutory
underpinning yet no use was made of judicial review principles in the latter.


40.    In the circumstances, largely because of the lack of statutory
underpinning for the tender process in this case, but also because of the intrinsic
commercial and contractual nature of the tender process itself, I am afraid that
the decision complained of does not have a sufficient public law element or
flavour to be amenable to judicial review.       I conclude on this issue that the



                                                                        Page 23 of 36
learned judge was correct when he also so found. I should say explicitly that I
am not dismissing the appellant’s case as an abuse of process. It may have
been open to the appellant to argue in the alternative, once the Court was of the
view that private law remedies were available to the appellant, that the judicial
review application could have been converted to an action as if begun by writ
pursuant to section 12 of the Judicial Review Act, 2000, in which case the
appellant would have had to demonstrate at least an arguable case that private
law remedies were available. No such alternative submission was made and I
am not prepared, without argument, to decide one way or the other whether
private law remedies were available.


PROVISIONAL OR FINAL DECISION
41.     This conclusion is sufficient to dispose of the appeal but in the event that
my conclusion is wrong and the decision is justiciable in public law, the other
question that arises before the issues of irrationality, unreasonableness and
unfairness can be dealt with is whether the decision contained in the
respondent’s letter of 16th November 2004 was one which was final in the sense
that it could have been reviewed at that time as a decision to award the contract
to the intervenor. I am not prepared to entertain any submission by the appellant
that what it sought to challenge was the provisional decision to award the
contract to the intervenor on the ground that to do so would be unfair to the
appellant because it would not have been given the same opportunity to reduce
its bid and to value engineer the project as was given to the intervenor. I say so
first, because this is not a ground of challenge to the decision set out in the
appellant’s statement filed in the application for judicial review. If it were, then the
respondent would have been able to specifically lead evidence to deal with this
challenge. For example the respondent could have deposed a witness on what
aspects of value engineering of the project were intended to be undertaken and
whether the ‘review of the elements of the contract and design’ would have
entailed a variation of the design of the building to save costs. As the evidence
stands with the statement unamended to include this ground of challenge, one
would have to speculate on what was meant by these words in the letter of the
16th November 2004.




                                                                         Page 24 of 36
42.    As far as I am concerned, the challenged decision is as set out in the
statement of the appellant and the challenge is on the grounds set out in the
statement.   The challenged decision is to be found under the rubric of THE
RELIEF SOUGHT in the statement. It is:


       “(a) a declaration that the decision of the Urban Development Corporation
             of     Trinidad    and        Tobago     Limited         (“the   Respondent”)      (as
             communicated by the Respondent to the Applicant by letter dated
             16 November, 2004) to award the contract for the construction of
             Administrative Headquarters for the Health Sector at Queen’s Park
             East, Port of Spain to Hafeez Karamath Limited (“the said decision”)
             is unlawful, irrational, unreasonable, an abuse of power and is
             accordingly illegal, null and void and of no effect;


Thereafter the decision is referred to as ‘the said decision’ in the statement and
in the affidavit, the same formula of words is used to describe the impugned
decision. The words in parenthesis “as communicated by the Respondent to the
Applicant by letter dated 16 November 2004” cannot in my view extend the
decision to mean a provisional decision to award the contract. If this is what was
intended it should have been drafted specifically.                    The words in parenthesis
appear to show how the decision was communicated to the appellant. In any
event as I said the challenge to the provisional decision as set out in ground 7 of
the notice of appeal is not contained in the grounds of challenge to the decision
in the statement.


43.    The context in which the letter of the 16th November 2004 was written to
the Appellant is important. On the same day the appellant wrote a letter in the
following terms to the respondent:


                               NH international (Caribbean) Limited

                                                                                 16th November, 2004.
       Mr. Winston Agard
       Chief Executive Officer
       Urban Development Corporation
        of Trinidad and Tobago (UDeCOTT)
       Albion Court
       #61 Dundonald Street
        Port of Spain.




                                                                                   Page 25 of 36
       Dear Mr. Agard,

       Re:       Ministry of Health Headquarters

       You are aware that the Government has published a Green Paper on proposed procurement policies
       to be used for Government projects. The Central Tenders Board, the Joint Consultative Council for
       the Construction Industry and the Trinidad and Tobago Chamber of Industry and Commerce were
       part of the Committee that wrote the Green Paper.

       This Green Paper repeatedly emphasizes the Government’s determination to have full transparency
       in the process by which contracts are awarded. Government has already adopted on several major
       projects, the Inter-American Development Bank’s (IADB) rules of transparency whereby, prior to an
       award of a contract, all tenderers are advised which contractor has been selected for a project. Each
       tenderer is then given an opportunity over a period of ten days, prior to award, to read the
       Consultants’ evaluation report and register any objection they may have.

       I again emphasise that the IADB process takes place prior to a formal award.

       Under the circumstances I hereby request that all tenderers on the Ministry of Health Headquarters
       be advised of any intended award you propose, at the same time providing each tenderer with full
       access to the Consultants’ evaluation report.

       I am sure you appreciate that an urgent response with your agreement is necessary if the project is to
       proceed smoothly and without third party intervention.

                                                 Yours faithfully,
                                                 NH International (Caribbean) Limited

                                                 Emile P. Elias
                                                 Executive Chairman

       Copy:     Mr. Calder Hart, Chairman – UDeCOTT
                 Members of the Board of Directors – UDeCOTT
                 Mr. Winston Riley, President – JCC
                 Mr. Mikey Joseph, President – TTCA




It was to this letter that the respondent replied by letter of the same date the 16th
November 2004.

       November 16, 2004.

       Mr. Emile P. Elias
       Executive Chairman
       NH International (Caribbean) Limited
       39 Long Circular Road
       St. James.

       Dear Mr. Elias:

       Thank you for your letter November 16, 2004 regarding the Ministry of Health building.

       The Board of Directors, at its last meeting took a decision that this contract would be awarded to the
       low tender, after completing a thorough review of all elements of the contract and design, as well as
       value engineering the project an attempt to bring it back to budget.

       In order to ensure transparency and equity, the position of UdeCott on this and all other tender
       matters involving the prequalification of contractors for projects is that the low bid is likely to be the
       motivating factor along with an appropriate methodology statement, as was the case with the
       Customs & Excise Building.

       As to the validity and tone of your last paragraph, I am not sure I understand your reference to “third
       party intervention”. Perhaps you might be kind enough to explain to me what you mean by this
       choice of words.




                                                                                             Page 26 of 36
       Yours sincerely,
       URBAN DEVELOPMENT CORPORATION
       OF TRINIDAD AND TOBAGO LIMITED

       CALDER HART
       CHAIRMAN

       c.c.    Dr. Krishna Bahadoorsingh (Deputy Chairman)
               Mr. John Wmair (Director)
               Mr. Madan Ramnarine (Director)
               Mr. Robert Le Hunte (Director)
               Mr. Vishnu Djhanpaul (Director)
               Mr. Winston Agard (Chief Executive Officer)



My reading of this letter in the context of the appellant’s letter is that, the
respondent intended to award the contract to the low tender but only after a
thorough review of all elements of the contract and design was completed and
only after the project was value engineered to bring it back to budget.


44.    My understanding of the letter is fortified by what Winston Agard, the
Chief Executive Officer of the respondent, says in paragraph 14 of his affidavit
filed on the 11th March 2005:


       “In the circumstances and based on all the material before it, the Board of
       Directors decided that it was not then in a position to award the contract
       to any of the tenderers and took no decision to award the contract to
       Hafeez Karamath Limited or any other tenderer. Provisionally, the Board
       decided that bearing in mind that all contractors had prequalified so that
       price was a major consideration it would award the contract to the lowest
       tenderer provided however that all of the Board’s concerns were first
       satisfied and in particular the Board required to be satisfied as to the
       ability of the lowest tenderer to complete the project at the tendered sum
       so as to remain within the budget.                This could only be done after
       completing a thorough review of all elements of the contract and design
       and value engineering the project. In light of the above, the Board agreed
       that the Project Manager should be requested to take steps to address
       the    concerns     of   the    Board      and        then   submit   its    views   and
       recommendations at which stage an appropriate decision would be made
       by the Board concerning the contract including whether an award should




                                                                                   Page 27 of 36
       be made, to whom or any other decision the Board considered
       appropriate.


45.    It is my view that the learned judge below, came to the correct conclusion
on whether there was any final decision to award the contract to the intervenor.
He concluded it was only a conditional award and on the evidence, if the
respondent was not satisfied with the result of its investigations, then it was free
to take up the matter with any other bidder or proceed otherwise, if it so chose.
“The answer to this issue lies in whether HK [the intervernor] could have sought
to compel the award to it of the contract and performance of it by UDECOTT. In
my view it could not.” (See page 23 of 31 of the judgment). I agree entirely with
the reasoning of the learned judge on this issue and conclude there was no
decision to be reviewed.


46.    Assuming, however that I am wrong on the question of whether the
appellant should be entitled to challenge the provisional award to the intervenor
on the ground set out in ground 7 of the notice of appeal, I am still of the view
that the appellant cannot succeed on this ground.


47.    I so hold because Mr. Fitzpatrick for the appellant agreed before us that
unfairness would only have resulted if the respondent intended to alter the design
of the project so as to save costs to bring it back to budget. There would be no
unfairness if all the respondent were doing was seeking to get a better price from
the intervenor leaving the design unchanged. I think Mr. Fitzpatrick is correct in
that formulation of the hypothesis. However on a balance of probability there is
no evidence that the design was to be altered to save costs. The letter speaks
only of a ‘review of the design’, this as Mr. Martineau pointed out did not
necessarily mean an alteration. The Court was supplied with literature from both
sides after conclusion of argument to indicate the meaning of ‘value engineering’.
To me it appears to mean nothing more than getting the best value for money,
there is nothing in the literature to suggest the term inevitably means an
alteration of design. In any event I would be most hesitant to decide this issue
without the benefit of evidence of what ‘value engineering’ was intended. I am
firmly of the view that had the matter been raised squarely by the appellant as it



                                                                     Page 28 of 36
ought to, (if this were its case) the respondent would have been in a position to
indicate on affidavit exactly what was contemplated after the decision was taken
to make the provisional award in respect of review of design and value
engineering.


48.    I have come to the conclusion that in the areas where the judge had to
decide a legal issue (the justiciability of the decision in judicial review) and a
factual issue (whether the decision to award the contract was provisional or final)
that the learned judge came to the correct conclusion.


IRRATIONALITY OR UNREASONABLENESS
49.    There remain however the two other areas where the learned judge
would also have had to come to conclusions based on the evidence; they are
whether the respondent acted irrationally or secondly, unreasonably. It is not my
intention to sift through the evidence with the detail the learned judge did. All I
need say is that it has not been demonstrated in this Court that the learned judge
misunderstood any of the evidence before him, or drew any wrong inference from
the evidence before him, or failed to draw any proper inference from the
evidence before him. The learned judge correctly found the following facts as
enumerated in the respondent’s skeleton arguments before us:


       “(i)    UDECOTT’s concern was to obtain the best price for the project
               within its budget.
       (ii)    All contractors were prequalified.
       (iii)   The project manager did not recommend to UDECOTT that the
               contract be awarded to NH.
       (iv)    NH was the second lowest tender at $165,244,231.90 whereas
               HK’s tender was the lowest at $149,499,600.49.
       (v)     UDECOTT took cognisance of matters other than those brought to
               its attention by the quantity surveyor, the architect and the project
               manager. It did not accept without question what the documents
               set out.
       (vi)    UDECOTT did not abdicate the decision making process to any of
               its advisers.



                                                                     Page 29 of 36
       (vii)    UDECOTT looked at the reports and the concerns raised. These
                concerns were addressed. UDECOTT than raised questions of its
                own for discussion.
       (viii)   In arriving at its decision the various reports were considered and
                they were not merely rejected out of hand.
       (ix)     UDECOTT placed obtaining value for money on its list of
                considerations. It assumed a very high level of priority.
       (x)      The reports and comments of the advisers were considered in
                detail by UDECOTT which embarked on an analysis of what was
                set out in the report. UDECOTT then arrived at its conclusion.
       (xi)     At the end of the meeting of the Board, the Board decided that it
                was not in a position to award the contract to any tenderer.
       (xii)    There was nothing to prevent UDECOTT from breaking off any
                negotiations or halting its investigations. There was no unqualified
                acceptance of HK’s bid.”


50.    In my view the learned judge applied the correct test for irrationality as set
out in CCSU V Minister for Civil Service (1984) 3 All ER 935 @ 951 a-b which is
that a decision is irrational ‘which is so outrageous in its defiance of logic or
accepted moral standards that no sensible person who had applied his mind to
the question to be decided could have arrived at it.’


I have therefore come to the conclusion that there is no merit in the grounds of
appeal which deal with irrationality and unreasonableness.


DISCRETION TO DENY RELIEF
51.    There remains in the grounds of appeal, the issue whether the learned
judge erred when he concluded that assuming this was a case fit for judicial
review and the appellants had proven a case of irrationality or unreasonableness,
he would not have granted relief because of the conduct of the appellant. The
conduct of the appellant, of course, is the presentation of private and confidential
matter relating to the award of the tenderer to the Court on the application for
leave, as if this material were supplied to the appellant by the respondent. The
material consisted of the quantity surveyor’s report on the tenders, the architect’s



                                                                      Page 30 of 36
report on same and the project manager’s report on same. These were all put
before the Court on the appellant’s application for leave after the appellant
deposed that it had requested the consultant’s report from the respondent. The
impression created either wittingly or not, was that the respondent supplied the
appellant with these documents. However in his affidavit, Agard deposed that
the respondent never supplied these documents and annexed letters from the
quantity surveyor, the architect and the project manager indicating that the
material was not supplied by them.           The question then arises how did the
appellant come by these documents? This was met with stony silence on the
part of the appellant in its further affidavits filed thereafter.


52.     However, even more unbelievably and without apology or explanation,
the appellant in the further affidavit annexed a letter written on the 17th November
2004 to the project manager by the respondent and one written by the intervenor
to the respondent dated 14th December 2004. These subsequent letters caused
another round of enquiries from the respondent of these individuals to ascertain
whether any of them gave these letters to the appellant. The response again
was in the negative. The question remained how did the appellant come by these
documents?


53.     There is evidence from Agard which demonstrates that two of the reports
are not signed and are not in the format of the originals but are electronic copies
of the same. Agard was forced to depose at paragraph 15 of his affidavit as
another reason why the project had to be abandoned that ‘In addition the tender
process has been compromised by one of the tenderers, the Applicant, having
unauthorised access to internal documents which contain inter alia the
components of other tenderers and an analysis of the tenders.’


54.     What is a court to do in a situation such as this, even when a case is
made out by the ‘guilty’ party based on the illegally obtained evidence? To say
that the ‘guilty’ party can be allowed to use, without sanction, illegally obtained
evidence to prove its case would only encourage litigants to obtain evidence to
assist in their case without regard to the recognised procedures of the rules of
court for obtaining them.



                                                                     Page 31 of 36
55.    In cases such as tender cases, where the confidentiality of the documents
is paramount and therefore possibly protected from disclosure and discovery, a
party can in effect destroy the tender process by illegally obtaining the
documents and presenting them to the Court. What the appellant has done in
this case is effectively frustrate the tender procedure under review. It is worthy of
note that in its letter of 16 November 2004 to the appellant, the respondent
indicated it intended to award the contract to the low tender without naming the
bidder. However the appellant, probably because it was in possession of the
documents, knew that it was not the low tender and therefore sought judicial
review using the documents, thereby effectively putting an end to the instant
tender procedure, as it was unlikely, even if the respondent wanted to, that the
respondent would reopen the tender with all the confidential information now in
the public domain. It can reasonably be inferred that the appellant’s position was
if it was not going to be awarded the lucrative contract then no one else would.
Hence it is not surprising the not-so-veiled threat contained in its letter of the 16th
November 2004 to the respondent about third party intervention.


56.    It is my view that the conduct of litigation in the manner which I have
described above, must be condemned in the strongest manner by a Court. This
is moreso in tender cases where the documentation is critical and confidential. I
am of the view that such conduct, as described, should disqualify the litigant from
the tender process and that ultimately, if the litigant is successful he must be
denied all relief. This sanction may be considered to be harsh, but I think that it
is necessary in this case to safeguard the civil litigation system in this jurisdiction
and ensure that it maintains some modicum of rectitude and respect. In these
circumstances, I entirely agree with Stollmeyer J. when he concluded that even if
a case had been made out successfully for judicial review, he would have denied
the appellant any relief.


THE DESIRABLE APPROACH
57.    I would end this judgment where I began with some comments on what
should be the approach of the judicial system (including first instance courts) in a
matter where time does not afford the luxury of the many tiered approach to



                                                                        Page 32 of 36
litigation. In the Mass Energy case, leave to move for judicial review was refused
at first instance and was renewed in the Court of Appeal. The learned judges
there did not simply apply the arguable case test to see whether leave ought to
have been granted and if so remit the matter to the High Court to be heard on the
substantive motion. They did not, because time was running out for the project
of the waste disposal facility and additionally a contract was granted to the third
party when no application for an interim injunction was made by the applicant
although invited so to do. Because all the material was before the Court of
Appeal, the learned judges took the view that leave should only be granted, not
an arguable case test but on the basis ‘that the applicant’s case is strong; that is
to say likely to succeed.’ Glidewell LJ says:


       First, we have had the benefit of detailed inter partes argument of such
       depth and in such detail that, in my view, if leave were granted, it is more
       unlikely that the points would be canvassed in much greater depth or
       detail at the substantive hearing.       In particular, we have had all the
       relevant documents put in front of us. Secondly, Mr. Ouseley for the
       council urges us that we should take into account, in deciding whether or
       not to give leave, the fact that the time-scale for the provision of the
       incinerator plant and thus for the achievement of the council’s plan of
       incinerating most of the waste which arises in its area starting in 1996,
       depends upon the following of a contractual and construction process for
       which there is a very tight schedule.


       If leave be granted, the full hearing and a possible appeal by either party
       following a full hearing or certainly possible appeal by Mass Energy if they
       were unsuccessful at the full hearing, would not only cause extra
       expense, but, most importantly says Mr. Ouseley, would take a great deal
       of time which might well set back the date at which, in the end, the
       incinerator could be provided. That would be a very considerable public
       disadvantage.


       Mr. Ouseley urged that factor as being a matter which should enter into
       the discretion which we have to exercise in deciding whether or not to



                                                                     Page 33 of 36
       give leave. I put it in a slightly different way: I regard it as being an
       entirely proper factor to take into account in deciding what approach we
       should take to the question which we have to answer, or to put it more
       precisely: what is the question we have to answer?


       Thirdly, as I have already said, we have most, if not all, of the documents
       in front of us; we have gone through the relevant ones in detail – indeed
       in really quite minute detail in some instances – in a way that a court
       dealing with an application for leave to move rarely does, and we are thus
       in as good a position as would be the court at the substantive hearing to
       construe the various documents.


       For those reasons taken together, in my view, the proper approach of this
       Court, in this particular case, ought to be – and the approach I intend to
       adopt will be—that we should grant leave only if we are satisfied that
       Mass Energy’s case is not merely arguable but is strong; that is to say, is
       likely to succeed. So the question I have posed to myself is: is Mass
       Energy’s case likely to succeed if we grant leave?” (my emphasis)


58.    To my mind this approach makes tremendous practical sense. Of course
it can only be done in suitable cases but I am confident this was such a case. If
the approach had been adopted it may be that the project for a much needed
facility may not have been abandoned at obvious considerable public
disadvantage.




THE INJUNCTION
59.    Finally, there is the issue of the injunctive relief which was granted in this
case. It may be that if the Mass Energy approach were adopted in this case,
there might have been no need for injunctive relief. In any event, it may be that
in respect of large national projects, our Courts need to look afresh at the relative
ease with which injunctions are granted to temporarily halt them. I for myself,



                                                                      Page 34 of 36
(assuming but not deciding that there were private law remedies available) am
unsure whether damages would not have been an adequate remedy for the
appellant, even if it were successful at the end of the day. I am however not
called upon to decide that issue.         I would therefore formally discharge the
injunction granted herein on the 28th July 2005.     As a result of the discharge of
the injunction, the respondent is entitled to make an application for an inquiry into
damages it sustained (see para. 1077 of Vol. 24 Halsburys Laws of England 4th
Ed.).


60.     For the reasons which I have set out, I dismiss the appeal with taxed
costs to be paid by the appellant to the respondent and to the intervenor, in each
case fit for senior and junior counsel.




                                                              Wendell N. Kangaloo
                                                                Justice of Appeal




                                                                      Page 35 of 36

				
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