CHC Ireland Ltd v Minister for Transport (Approved)

Factual and Procedural Background

The Applicant currently provides an aviation service pursuant to a contract with the Respondent, which is due to expire on a specified date. The Applicant has separately challenged the Respondent's decision to award a new contract to a Notice Party for the continuation of the aviation service after the expiry of the existing contract. In the present proceedings, the Applicant challenges an alleged impermissible modification of the new contract by the Respondent, contrary to EU and Irish procurement law. However, no credible evidence was presented to establish that any such modification decision has been made or that a modified contract has been entered into. The Respondent has not received any proposal regarding the alleged modifications, and the claims advanced by the Applicant are based on speculation and belief rather than concrete evidence.

Legal Issues Presented

1. Whether the Respondent has made a decision to modify the new contract with the Notice Party contrary to EU and Irish procurement law.
2. Whether the Applicant's proceedings are maintainable in the absence of any actual decision or contract modification by the Respondent.
3. Whether the proceedings should be struck out on the basis that they are bound to fail due to lack of credible evidence of any contract modification.

Arguments of the Parties

Applicant's Arguments

• The Applicant asserts that the Respondent has impermissibly modified the new contract with the Notice Party.
• The Applicant relies on assumptions and hearsay evidence suggesting that modifications have occurred or been tacitly approved, including changes relating to site location, requisite authorisations, transfer of personnel under Transfer of Undertakings Regulations, and alternative training provisions.
• The Applicant contends that delays and changes in the Notice Party’s proposals indicate contract modifications that should be subject to judicial review.

Respondent's Arguments

• The Respondent submits that no modification decision has been made and no modified contract has been entered into, either expressly or tacitly.
• The Respondent has not received any proposals regarding the alleged modifications and has no intention to agree to any such proposals without proper consideration under the contract’s Change Control Procedure.
• The Respondent argues that the Applicant’s claims are based solely on assumptions, speculation, and hearsay without credible evidence.
• The Respondent relies on established public law principles that judicial review requires an actual decision to be challenged, not hypothetical or speculative claims.
• The Respondent contends the proceedings are bound to fail and should be struck out pursuant to procedural rules.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chakari v. Criminal Injuries Tribunal [2018] IEHC 527	Judicial review requires an actual decision or failure to decide; no action means no reviewable decision.	Applied to hold that no decision or contract modification existed to support the Applicant’s claim, leading to dismissal.
Donegal Fuel & Supply Co Ltd v. Londonderry Harbour Commissioners [1994] 1 I.R. 24	Judicial review proceedings can be struck out if no decision has been made.	Supported the principle that claims based on non-existent decisions are bound to fail.
North East Pylon Pressure Campaign Ltd v. An Bord Pleanala [2016] IEHC 300	Similar principle regarding absence of a decision for judicial review.	Reinforced the requirement of an actual decision for proceedings to proceed.
Spencer Place Development Co Ltd v. Dublin City Council [2020] IECA 268	Judicial review requires a concrete decision or action by the decision-maker.	Supported striking out claims lacking a decision.
Habte v. Minister for Justice and Equality [2021] 3 I.R. 627	Confirmed that judicial review claims can be struck out when no decision exists.	Applied to dismiss speculative claims.
Siemens Mobility Ltd v. High Speed Two Ltd [2023] EWHC 2768 (TCC)	Court cannot adjudicate on hypothetical contract modifications not yet proposed or agreed.	Supported refusal to consider alleged but unproposed contract changes.
Dublin Cinema Group Ltd v. Balark Trading GP Ltd [2019] IEHC 776	Proceedings may be dismissed if they require determination of hypothetical issues.	Applied to dismiss claims based on hypothetical contract modifications.
Hinde v. Pentire Property Finance DAC [2018] IEHC 520	Evidence on affidavit can be used to assess whether factual disputes exist.	Used to assess the absence of credible factual disputes.
McAteer v. Friend [2019] IECA 216	Similar evidentiary principles regarding affidavit evidence and factual disputes.	Supported conclusion that no factual dispute warranted hearing.
TB v. HSE [2022] IEHC 538	Consideration of affidavit evidence in procedural rulings.	Supported striking out in absence of credible evidence.
RAS Medical Ltd v. RCSI [2019] 1 IR 63	Affidavit evidence relevant in procedural contexts.	Referenced in assessing evidential sufficiency.
Barry v. Buckley [1981] IR 306	Claims dependent on non-existent contracts are bound to fail.	Analogous to current case where no modified contract existed.
Price & Lynch v. Keneghan Developments Ltd [2007] IEHC 190	Similar to Barry v. Buckley on contract existence and claim viability.	Supported dismissal of claims based on assumed contract modifications.

Court's Reasoning and Analysis

The court began by emphasizing the fundamental requirement in judicial review that there must be a concrete decision or action by a public authority to challenge. The Applicant's claims rested on assumptions, hearsay, and speculative assertions without any credible evidence that the Respondent had made or agreed to any contract modifications, either expressly or tacitly. The evidence showed that the Respondent had not received any proposals regarding the alleged modifications and had no intention to agree to any changes without following the established contractual Change Control Procedure.

The court carefully examined the Applicant's evidence, particularly the affidavit of the Applicant's representative, finding it to be based on speculation and lacking direct evidence of any decision or contract modification. The court reiterated that one cannot challenge a "nothing"—that is, a non-existent decision. The court also noted that adjudicating on hypothetical contract modifications not yet proposed or agreed upon is impermissible under established case law.

Furthermore, the court considered the Applicant's constitutional right to litigate but found that the absence of any evidential conflict or factual dispute meant that a hearing was unnecessary. The court relied on precedent allowing dismissal of proceedings bound to fail or lacking a reasonable prospect of success. Having concluded that the proceedings were bound to fail, the court exercised its procedural powers to strike out the claim without needing to consider abuse of process.

Holding and Implications

The court's final decision was to STRIKE OUT the proceedings brought by the Applicant.

The direct effect of this decision is that the Applicant's challenge to the alleged contract modification is dismissed on the basis that no such modification decision exists or has been agreed. The court did not set any new precedent but applied established principles confirming that judicial review requires an actual decision to be challenged and that speculative or hypothetical claims are not maintainable. Consequently, the Respondent is not restrained or required to justify any contract modification that has not been made or proposed.