Sanofi Aventis Ireland Ltd. t/a Sanofi Pasteur v Health Service Executive & anor

Factual and Procedural Background

The judgment concerns an application for costs made by the notice party ("Defendant B") following judicial review proceedings initiated by the Applicant ("Plaintiff") challenging the award of a public contract by the Respondent ("Company A"). Defendant B was the successful tenderer for a five-year contract to supply a vaccine commencing January 2018. Plaintiff, as a disappointed tenderer, contested the award on grounds including adequacy of reasons, equality of treatment and transparency, and manifest error in the scoring of tenders. The court previously rejected Plaintiff's challenge except for a limited finding of inadequate reasons, which was deemed insufficient to set aside the contract award. Costs between Plaintiff and Company A were partly awarded. Defendant B, not fully involved in the substantive challenge, now seeks full recovery of its costs related to its participation as a notice party.

Legal Issues Presented

1. Whether Defendant B, as a notice party joined to the judicial review proceedings, is entitled to recover its full party and party costs from Plaintiff.
2. The extent to which a notice party's participation and contribution to the proceedings justify an award of costs.
3. The application of principles governing costs awards to notice parties in judicial review, including considerations of necessity, reasonableness, and proportionality.

Arguments of the Parties

Defendant B's Arguments

• As the successful tenderer, Defendant B had a direct and significant commercial interest in the outcome of the proceedings.
• Defendant B's vaccine was challenged on safety and efficacy grounds, which justified its participation to protect its reputation.
• There was a substantial need to preserve the confidentiality of Defendant B's commercially sensitive information, requiring active involvement.
• Defendant B’s extensive experience as a tenderer positioned it to assist the court regarding the interpretation of tender documents.
• Defendant B incurred costs related to a redaction protocol, a four-day hearing, and review of an overnight transcript, all of which it seeks to recover.

Plaintiff's Arguments

• Confidentiality concerns could have been addressed through correspondence without full participation in proceedings.
• The Respondent (Company A) had already extensively addressed the issues Defendant B raised, including those concerning another tenderer.
• Plaintiff did not challenge the safety of Defendant B's vaccine but only argued that its own vaccine was superior, contesting the scoring on manifest error grounds.
• Defendant B overstated its role and contribution, as the court’s judgment made no substantive reference to Defendant B’s submissions or evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging Defendant B’s significant commercial interest and legitimate concerns regarding the challenge to its vaccine and the protection of confidential information. It recognized that Defendant B was entitled to be heard and to take necessary steps to defend its interests, including filing affidavits and negotiating confidentiality protocols.

However, the court distinguished between the right to be heard and entitlement to full costs. It noted that the Respondent (Company A) mounted a comprehensive and robust defence that fully addressed the issues raised by Plaintiff, including those touching on Defendant B’s vaccine. Defendant B’s evidence and submissions did not materially add to the Respondent’s case, as reflected by the absence of references to Defendant B’s contributions in the substantive judgment.

Applying established case law, the court emphasized that costs awards to notice parties require a fact-specific assessment of whether full participation was reasonable and necessary. The court found that while Defendant B reasonably incurred costs related to joinder, affidavit evidence, confidentiality, and transcript review, it was not reasonable to expect Plaintiff to indemnify Defendant B for all costs associated with full participation, particularly when the Respondent had already provided a full defence.

The court referred to authoritative guidance stressing that notice parties should consider whether their involvement justifies full representation and that factual contributions might be made through affidavits rather than full litigation participation. This approach promotes proportionality and avoids unnecessary duplication of costs.

Holding and Implications

The court GRANTED IN PART and REFUSED IN PART Defendant B’s application for costs. Specifically, Defendant B was awarded party and party costs against Plaintiff only for:

• Costs of the application to be joined as a notice party;
• Costs of preparing and filing affidavit evidence;
• Costs related to addressing confidentiality issues, including negotiating a redaction protocol;
• Costs of the overnight transcript and its review by solicitor and counsel.

All other costs sought by Defendant B were refused. The court emphasized that this decision does not reflect adversely on Defendant B’s submissions but rather applies established principles to ensure costs are reasonable and proportionate.

The ruling underscores that notice parties have a right to be heard but are not automatically entitled to full costs of participation, especially where the principal respondent fully defends the case. The decision encourages parties to resolve costs disputes amicably and avoid disproportionate litigation over costs.