Brittany Ferries meet threshold to take legal action over Jersey-only ferry tender process

Brittany Ferries has taken the Minister responsible for Jersey's ferry tender process to Jersey's Royal Court.

Bretagne Angleterre Ireland S.A. (Brittany Ferries) is taking legal action against Deputy Kirsten Morel in his capacity as Sustainable Economic Development Minister.

On Tuesday 24 December, the Royal Court ruled that Brittany Ferries had met the legal threshold to take the Minister to court over his conduct during the ferry tender process.

Jersey's government has called Brittany Ferries' decision to take legal action "disappointing" but added they "respect the Court process".

They add: "Unless any Court process beforehand prevents it, the contract with DFDS will come into effect at just after 5pm on 31 December 2024."

DFDS' Chris Parker says: "We expect the contract between DFDS and the Government of Jersey to come into force on December 31st."

The judicial review won't apply to the decision to exit the joint procurement process with Guernsey and reject both DFDS and Condor.

However, it relates to the decision made in the Jersey-only process - and only on the grounds of bias and unfairness.

While the first two grounds didn't meet the legal threshold, Commissioner M. J. Thompson, Esquire, stated: "I was satisfied that adequate reasons were given for [the third ground] - the grounds of challenge were therefore limited to breaches of duty of procedural fairness and apparent bias.

"Brittany Ferries was given leave to challenge the decision of the Minister reached on 3 December 2024, by reference to allegations of procedural unfairness and apparent bias limited to the matters set out in this judgment."

The Commissioner adds: "I appreciate that this decision may have significant ramifications for the Government of Jersey and its desire to enter into a contract with DFDS.

"However, that is not a relevant consideration in relation to whether or not to grant leave if the relevant test is met and a trial is required.

"Rather, it is relevant to the Court and the parties making every effort to have matters resolved as soon as possible so that all parties and, more generally, the island know where they stand."

In an internal email sent to Condor Staff on Monday 23 December, Brittany Ferries CEO Christophe Mathieu said: "We feel very strongly that we should stand up for what is right and for what all of our staff deserve, after many years of dedicated [sic] service to the Islands.

"Last Friday (20 December), I attended the Royal Court in Jersey to challenge the government’s decision to appoint DFDS.

"During the hearing, I highlighted serious concerns regarding the fairness and legality of the process and asked the judge to conduct an investigation.

"Ultimately, we won the joint tender, but Jersey simply refused to accept the result. They then started a second process with a predictable outcome."

The Government of Jersey state:

"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 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.

"At a hearing on 20 December, the Royal Court gave Brittany Ferries permission to challenge only a limited aspect of our decision-making process by a judicial review. All their other grounds were rejected.

"There will be a further hearing before the Royal Court on 13 and 14 January 2025 to decide the limited ground of challenge."

Want a quick and expert briefing on the biggest news stories? Listen to our latest podcasts to find out What You Need To Know...