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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Word Perfect Translation Services Ltd -v- The Commissioner for An Garda Síochána [2015] IEHC 438 (19 June 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H438.html
Cite as: [2015] IEHC 438
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Judgment
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Neutral Citation [2015] IEHC 438 THE HIGH COURT [2015 No. 149 J.R] IN THE MATTER OF THE REVIEW OF THE AWARD OF A PUBLIC CONTRACT PURSUANT TO THE EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES’ CONTRACT) (REVIEW PROCEDURES) REGULATIONS 2010 AND ORDER 84 OF THE RULES OF THE SUPERIOR COURTS, AS AMENDED BETWEEN WORD PERFECT TRANSLATION SERVICES LIMITED APPLICANT AND
THE COMMISSIONER OF AN GARDA SÍOCHÁNA RESPONDENT JUDGMENT of Mr. Justice Brian McGovern delivered on the 19th day of June, 2015 1. In these proceedings the applicant seeks a judicial review of a decision made by the respondent to award interpretation services to certain preferred bidders to the exclusion of the respondent and for other ancillary relief. Pending the hearing of the judicial review an application has been made for an interlocutory injunction in the following terms:-
(ii) An order restraining the respondent pending the determination of these proceedings and/or pending the re-tender of these services, the subject matter of the contract at issue in these proceedings, from procuring interpretation services other than on the basis of the provisions of the Department of Justice and Equality Framework Agreement for the Provision of Interpretation Services; (iii) An order directing the respondent, when procuring interpretation services pending the determination of these proceedings and/or pending the re-tender of the services the subject matter of the contract at issue in these proceedings to procure such services under the Department of Justice and Equality’s Framework Agreement for the Provision of Interpretation Services.”
4. The basis of a claim for an injunction is that the respondent has been making illegal direct awards of contracts since the expiration of the previous Framework Agreement in 2013. 5. There is significant dispute between the parties as to whether or not the relief sought is of a type envisaged by Regulation 8 of the Remedies Regulations. But even if it is, the respondent argues that in the OCS case Barrett J. held that it is for the applicant to show that “…negative consequences of making any interim or interlocutory order as is sought do not exceed the benefits of such order”. If this case does not concern Regulation 8 then clearly the Campus Oil principles apply. Having listened to the arguments on behalf of the parties I am not persuaded that I should depart from the usual principles applicable to the granting of interlocutory relief namely the Campus Oil principles. The OCS case is distinguishable from this application because it concerned a challenge to an award of a contract before it became operative and it therefore resulted in an automatic suspension of the appointment which was challenged. That is not the case here. 6. In Commission v. Ireland [2007] ECR 1-9777D CJEU accepted that discrimination as between potential tenderers may be “justified by objective circumstances” and this is accepted by the applicant. In this case the respondent has set out the basis on which it has given interpretation or translation services to parties (including those complained of). It has stated that this has been done on an ad hoc basis in situations where it was necessary to do so. The respondent claims that circumstances of urgency or non-availability of other interpreters or translators are the sort of justification referred to in that case and that there is express provision made for exceptions to the requirement to advertise in cases of extreme urgency where contracts do fall within the scope of public contract regulations. The court is referred to Regulation 32. 7. The awarding of an interlocutory injunction is a discretionary matter although the court’s discretion must be exercised on well established principles. In this case, I am applying the Campus Oil principles. Applying these principles and in the exercise of my discretion, I have concluded that the applicant has not met the test for an interlocutory injunction. I have reached my decision on the basis of the following matters:-
(2) The applicant urges the court to order that the respondent utilised the Department of Justice framework which commenced in June 2011. But that framework expired on 5th June, 2015, and the notice of motion grounding this application was only filed on 6th May, 2015. (3) The applicant has been guilty of delay. The applicant has been aware of the alleged illegality of which he complains since January 2013 (when it participated in the extension of the 2009 Framework Agreement). This application was brought at the last moment in respect of agreement that has been in place since June 2011 and expired on 5th June, 2015. (4) It is not at all clear what will be achieved by the order which is sought by the applicant. I am satisfied on the evidence that the maintenance of the status quo is best achieved by not granting interlocutory relief and that the balance of convenience suggests that the order sought should not be granted particularly as it is, in effect, a mandatory injunction. (5) At present, the applicant is receiving some work form the respondent although not at the same level as heretofore. If the applicant proves that it has suffered loss as a result of the matters complained of, it seems to me that damages would be an adequate remedy. While there might be some difficulty establishing, with precision, the damages (should the applicant be successful). It would not be impossible to do so. 9. I refuse the application for interlocutory injunction. |