Select a region
Jersey’s failure to tell Brittany Ferries fully why its bid failed the joint Channel Island process will be at the heart of a looming Royal Court battle – which the Government says it plans to “robustly” defend against.
Brittany Ferries sought permission to apply for judicial review of the island's decision to award the key ferry contract to DFDS on Friday, with a further Royal Court hearing taking place yesterday morning.
Yesterday afternoon, Commissioner Matthew Thompson confirmed that Brittany Ferries had been granted “leave on a limited basis to challenge the Ministerial Decision… not to award a long-term operation concession contract for a passenger and freight ferry service operating routes between the Bailiwick of Jersey, the United Kingdom and France to the Applicant and award it to DFDS”.
A detailed judgment explaining the specific grounds upon which the case will proceed – claims of "apparent bias" and "procedural unfairness" – was published this morning.
Responding to the judgment in a statement this lunchtime, the Government said it was "disappointed that Brittany Ferries have chosen to challenge the decision to designate DFDS as preferred bidder, but we respect the Court process".
Pictured: Brittany Ferries asked for permission to apply for a judicial review of ferry tender decision on Friday 20 December.
The statement continued: "Our priority has always been to ensure that the Channel Islands have the best possible ferry services, and the procurement process showed DFDS are best placed to deliver those services.
"We conducted a full and fair procurement process. The marking and evaluation were independently overseen, and DFDS won the bid by a large and clear margin.
"Jersey needs high-quality, good value, and resilient sea connectivity, and we are determined to deliver it.
"We are working hard with DFDS to finalise the details of ferry services for next year, and it is already clear that they will be better than the island currently enjoys."
The Government reiterated the commitments from DFDS, which promised greater frequency of ferries to the UK and France in peak periods, faster ferries to the UK, three new ferries within the next six years, and two dedicated high-speed ferries for the summer.
The statement added: "The last thing islanders need is more uncertainty over ferry services, and we hope Britanny Ferries will respect that.
"We are grateful to Condor for the service it has provided for islanders over the years and we would prefer the relationship not to end on this note."
"We will be robustly defending our decision and our right to enter into the right contract with DFDS for Jersey."
Pictured: The legal challenge has been brought against the Minister for Sustainable Economic Development in his official capacity, and not against Deputy Kirsten Morel personally.
The Commissioner's judgment provides a timeline on how the fraught ferry tender process panned out, as well as more detail on the claims advanced by Condor against the Economic Development Minister, and which of those are accepted as arguable.
The Commissioner accepted submissions from Brittany Ferries that they were not given reasons about why the Minister had concluded there was no tender that was capable of meeting the requirements to accept in the joint process.
"The flaw in this reasoning is firstly that Brittany Ferries had been invited to take part in the Jersey procurement process," his judgement says.
"For that process to be arguably fair, it was entitled to know what the concerns of the Minister were. By reference to the submissions of [the Minister's Advocate] O'Connell, those appeared in particular to be a reference to the financial standing of Brittany Ferries."
However, he said that neither the correspondence from the Government to Brittany Ferries, nor written evidence provided by Mr Andrew Scate, the Jersey civil servant leading the process, "sets out those concerns".
Pictured: DFDS was announced as the preferred bidder for Jersey's ferry services at the start of this month.
In email exchanges with the Government, Brittany Ferries "unequivocally offered to guarantee Condor Ferries' performance of a Channel Islands ferry contract", the judgment said.
The Commissioner wrote: "Brittany Ferries, based on the material before me, did not know what case it had to be meet in respect of its financial standing and why there were concerns about the guarantee offered (which was asked for in the draft concession agreement for the Channel Island Procurement Process).
"I did not regard it as a decision maker being in error to give feedback to a bidder on concerns about their bid, when the process is being modified or developed as long as there is equal treatment for all bidders.
"In other words, both Brittany Ferries and DFDS were both entitled to know about any concerns the Minister had about the bids they had made for a Channel Island Procurement Process."
He said that Brittany's case only just got over the threshold for giving leave on the ground of apparent bias.
Pictured: The email to Condor staff from Mr Mathieu sent to Condor staff yesterday – obtained by Express – outlined the reasons for the legal challenge.
"Had it been the sole ground I would have refused leave but when taken in conjunction with the failure to give reasons, I was persuaded that it was right to give leave on this ground in addition to the ground of procedural unfairness," he wrote.
Arguments in this area will centre on Jersey's decision to change the tender rules for the Jersey-only contract.
"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," the judgment said.
In handing down the judgment, the Commissioner noted that the decision to allow a judicial review "may have significant ramifications for the Government of Jersey and its desire to enter into a contract with DFDS".
While that impact should have no bearing on the decision itself, he noted that the court and everyone else involved in the case should make "every effort to have matters resolved as soon as possible so that all parties and, more generally, the island know where they stand".
The full judgment can be found online. There will be a further hearing before the Royal Court on 13 and 14 January 2025.
Follow Express for updates...
"We should stand up for what is right" – Brittany Ferries fighting Jersey Minister in Royal Court
FIRST LOOK: DFDS releases "provisional" ferry timetable
Comments
Comments on this story express the views of the commentator only, not Bailiwick Publishing. We are unable to guarantee the accuracy of any of those comments.