Brittany Ferries has been ordered to pay Jersey’s Government and DFDS tens of thousands of pounds in legal costs, after the island’s Court of Appeal ruled that its failed attempt to challenge the ferry contract process was commercially motivated, brought too late, and lacked substance.
While Jersey’s Minister for Sustainable Economic Development and DFDS both applied for indemnity costs – heavier costs applied when the court wishes to “mark its displeasure at the conduct of the unsuccessful party in relation to the litigation” – the court decided not to go that far.
However, it agreed that both parties should have their legal costs paid on a standard basis and ordered Brittany Ferries to pay £40,000 to DFDS within 28 days.
The sum of Jersey’s Government’s legal costs were not included in the judgment.
In a judgment handed down on 1 April, but made public for the first time on Friday, Jersey’s highest court concluded that Brittany Ferries’ judicial review proceedings – which challenged the Government’s decision to award a key ferry services contract to rival operator DFDS – amounted to “something not far short of a full hearing on the merits” and deserved cost consequences, despite being framed as a permission (or leave) application.
The case followed the collapse of the first Channel Islands’ joint procurement process in late 2024, after which a second round was run at speed to choose a ferry firm to run Jersey’s services.
Brittany Ferries had already won the contract for Guernsey’s services, and it applied for a judicial review to challenge Jersey’s second process when the Minister decided to award the contract to DFDS.
But the Court of Appeal found there was “nothing substantial in it” and said that the application was “not brought promptly”.
They also suggested that the case was commercially motivated.
“Brittany Ferries competed for a commercial tender and were unsuccessful,” the court said in its judgment. “The application for judicial review should be seen against the background of its commercial interest.”
The court was also critical of the fact that, although the case was technically about seeking ‘permission’ to go to the next step of having a full case, all parties opted for a full hearing, which meant going into the substance.
“All parties appealed (including Brittany Ferries). Brittany Ferries lost convincingly,” the court said.
“Whilst the decision was focused on permission – in particular on delay – the urgency of the matter meant that we had to hold a full day rolled up hearing, and we also commented on the relative weakness of their substantive arguments. In effect, the parties had something not far short of a full hearing on the merits. “
Jersey’s court also upheld a second set of costs for DFDS, saying that while it was not unusual for a commercial party to be involved in such litigation, DFDS’s position and obligations under the awarded contract justified separate representation.
“The Minister was concerned to defend his decision-taking process. By contrast, DFDS were concerned to ensure that their obligation under that process to be able to comply with the contractual terms they had secured as a result of their successful tender could be performed. The interest, though in some ways aligned, was different.
“The interest of the developer in a planning case cannot be compared with the interest of a party with contractual obligations, such as DFDS in the present case. Furthermore, the evidence provided by DFDS as to the impact of the leave application on its preparations for performing the contract which it was awarded was not material which was before the Minister.
“This emphasises the different interest which DFDS and the Minister had in these appeals. We therefore consider that the just decision is to award both the Minister and DFDS the costs of the hearing before us.”