Brittany Ferries accused of trying to “have their cake and eat it”

Monday 06 January 2025

The lawyer representing Jersey's Government in a legal battle over the island's ferry links has warned that allowing Brittany Ferries to challenge the tender process could lead to "administrative chaos if an aggrieved bidder could store up limitless grievances for the future".

Jersey's Government was represented in the island's Court of Appeal on Friday alongside their winning bidder DFDS to dispute competitor Brittany Ferries’ attempt to legally challenge the decision-making process.

Advocates for Jersey's Government and DFDS, whose contract is due to begin at the end of March, sought to persuade a trio of judges that Brittany Ferries had not acted sufficiently promptly in launching its legal action.

"An attempt to strong-arm Jersey"

Representing Jersey's Government and Economic Development Minister Kirsten Morel, Advocate Michael O’Connell said Brittany Ferries could have gone down a legal route after being told on 6 November about the termination of the process for a joint ferry contract that was initially envisaged to include both Jersey and Guernsey.

Guernsey picked Brittany Ferries, with the decision announced in October, before contracts were signed in December. 

The French operator chose to take part in the second 'Jersey-only' tender process, the court was told, and only launched its legal challenge on 18 December – around two weeks after Jersey confirmed DFDS as the winning bidder.

Pictured: Brittany Ferries is taking legal action against Minister Kirsten Morel in his capacity as Jersey's Economic Development Minister.

Advocate O’Connell warned of the consequences of allowing such challenges in procurement cases.

“It would lead to administrative chaos if an aggrieved bidder could store up limitless grievances for the future should they be disappointed,” he said, likening this to an attempt “to have their cake and eat it”.

Advocate Sam Williams, representing DFDS, said Brittany Ferries should have initiated urgent action far sooner.

Pictured: Jersey's Royal Court granted Brittany Ferries “leave on a limited basis to challenge the Ministerial Decision. 

“This was unconscionable conduct, an attempt to strong-arm Jersey into bending to the will of Brittany Ferries,” he said. “They stored matters up when they should have brought action there and then.”

"Little option but to take part"

But Advocate Rebecca McNulty, representing Brittany Ferries, said the company had “little option but to take part” in the second tender process.

She argued that Condor's parent company had brought its action promptly once the government had announced its decision on 3 December.

The panel of appeal judges, comprising Sir William Bailhache, Helen Mountfield KC and James Wolffe KC, is expected to rule today on whether the delay in starting the legal action was harmful to the interests of DFDS and the Jersey public.

Matters should be resolved "as soon as possible"

The proceedings at Jersey's Royal Court came ahead of a further hearing scheduled to take place on 13 January, at which the grounds for the challenge by Brittany Ferries will be determined.

The contract with DFDS was signed on New Year's Eve and is due to come into effect on 28 March.

Jersey's Royal Court originally published its judgment granting Brittany Ferries "leave on a limited basis" to challenge the Ministerial Decision not to award it the contract on Christmas Eve.

In doing so at the time, the presiding Commissioner noted that the legal process could have "significant ramifications" for Jersey's Government and DFDS and said everyone else involved in the case, including the court, 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".

A decision is expected on Monday afternoon.

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