APPROVED [2025] IEHC 324
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THE HIGH COURT
JUDICIAL REVIEW
2025 506 JR
2025 507 JR
IN THE MATTER OF THE EUROPEAN UNION (AWARD OF CONCESSION CONTRACTS) (REVIEW PROCEDURES) REGULATIONS 2017
BETWEEN
ATLANTIC ENDEAVOUR LTD
SMBT LTD
(TRADING AS SKELLIG MICHAEL BOAT TRIPS)
APPLICANTS
AND
OFFICE OF PUBLIC WORKS
RESPONDENT
JUDGMENT of Mr. Justice Garrett Simons delivered on 5 June 2025
1. These proceedings relate to the right to land boat passengers on Skellig Michael, Co. Kerry ("Sceilg Mhichíl"). It is permissible, under the national monuments legislation, to limit the number of visitors accessing the island. This is currently achieved by restricting the right to land passengers to a small number of boat operators and capping the number of passengers which each boat may land daily. The landing season runs from mid-May to the end of September each year.
2. The Commissioners of Public Works / Office of Public Works ("OPW") recently held a competition for the allocation of landing permits. It had been envisaged that the successful tenderers would each be granted a landing permit which would allow them to land a maximum of twelve passengers on Sceilg Mhichíl per day during the landing season. The tenderers had all been required to commit to the execution of a pro forma contract appended to the request for tenders. This pro forma contract is for the 2025 landing season.
3. The tenderers were each notified of the outcome of the competition by letters dated 27 March 2025. The letters each indicated that the OPW intended to award the fifteen permits to the preferred candidates no earlier than two calendar weeks from the date of the letter.
4. The outcome of the competition has been challenged by two of the unsuccessful tenderers, Atlantic Endeavour Ltd and SMBT Ltd ("the unsuccessful tenderers"). The unsuccessful tenderers each instituted judicial review proceedings on 14 April 2025. The institution of the proceedings triggered an automatic suspension on the conclusion of the contracts concerned. Put otherwise, the OPW is prohibited from entering into legally binding contracts with the fifteen successful tenderers. The automatic suspension remains in place until the determination, discontinuance or disposal of the legal proceedings. This is subject to the right of the OPW qua contracting authority to request the High Court to make an order permitting it to conclude the contract concerned. This is provided for under regulation 9 of the European Union (Award of Concession Contracts) (Review Procedures) Regulations 2017. An application of this type is usually referred to as an application to lift the automatic suspension.
5. The OPW has interpreted the automatic suspension as having the legal effect of precluding it from issuing landing permits. The practical consequence of this is that no landing permits have yet been granted for the 2025 landing season which had been scheduled to commence on 8 May 2025.
6. The unsuccessful tenderers disagree with this interpretation of the legal effect of the automatic suspension and seek to draw a distinction between the concepts of a framework agreement, a concession contract and landing permits. On this analysis, the unsuccessful tenderers contend that there are a number of mechanisms open whereby landing permits might legitimately be granted to the successful tenderers for the balance of the 2025 season, whilst preserving their own right to challenge the allocation of landing permits for the 2026 and subsequent seasons.
7. The OPW filed a motion in each set of proceedings seeking an order lifting the automatic suspension. The motions were afforded a priority hearing in circumstances where part of the 2025 landing season has already been lost and the season is set to expire at the end of September. The presiding judge in the Judicial Review List (Gearty J.) directed an expedited exchange of affidavits and written legal submissions. The two motions were heard together on 3 June 2025 and this omnibus judgment is delivered in respect of both.
8. For completeness, it should be recorded that a priority hearing date has now been assigned for the substantive action. The substantive action is to be heard, over three days, commencing on 21 July 2025.
9. The Office of Public Works regards the award of landing permits as a "services concession" for the purpose of Directive 2014/23/EU on the award of concession contracts. As such, the OPW conducted the tender competition in purported compliance with the requirements of the domestic implementing regulations, namely, the European Union (Award of Concession Contracts) Regulations 2017. The decision on the tender competition is subject to judicial review pursuant to the European Union (Award of Concession Contracts) (Review Procedures) Regulations 2017 ("Review Procedures Regulations").
10. Two aspects of the Review Procedures Regulations are of immediate relevance to the issues to be resolved in this judgment. The first is the distinction drawn between pre- and post- contractual remedies. The orthodox view is that once a legally binding contract has been concluded with the successful tenderer(s), same may only be declared ineffective in the very limited circumstances prescribed under regulation 12. These circumstances include cases where the contracting authority has failed to publish a tender notice or has failed to observe the standstill period.
11. Generally, once a legally binding contract has been concluded, an unsuccessful tenderer is thereafter confined to a claim in damages and cannot seek to set aside the concluded contract. The only type of damages available under the Review Procedures Regulations are what are known as Francovich damages. (See, by analogy, Word Perfect Translation Services Ltd v. Minister for Public Expenditure and Reform [2018] IECA 35, [2019] 2 IR 503 (at paragraphs 45 to 53)). To succeed in a claim for Francovich damages, it is necessary for the unsuccessful tenderer not only to establish an error of law on the part of the contracting authority but also to establish that there has been a "sufficiently serious" breach of EU public procurement law.
12. The second aspect of the Review Procedures Regulations is related to the first. The default position under the Regulations is that the possibility of pursuing pre-contractual remedies is preserved by way of an automatic suspension on the conclusion of the contract concerned. Regulation 1(2) provides that a contract has been "concluded" when it has been entered into and is legally binding.
13. The automatic suspension remains in place until the determination, discontinuance or disposal of the legal proceedings. This is subject to the right of the contracting authority to apply to lift the automatic suspension. This is provided for under regulation 9 of the Regulations:
"(1) On application made to it under this Regulation by the contracting authority or contracting entity, the Court may, notwithstanding the matters referred to in Regulation 8(3)(a) and (b), make an order permitting the contracting authority or contracting entity to conclude the contract referred to in Regulation 8(1).
(2) When deciding whether to make an order under this Regulation—
(a) the Court shall consider whether, if Regulation 8(2)(a) were not applicable, it would be appropriate to grant an injunction restraining the contracting authority or contracting entity from entering into the contract,
and
(b) only if the Court considers that it would not be appropriate to grant such an injunction may it make an order under this Regulation.
(3) The Court may, if it considers just to do so, specify in the order it makes under this Regulation that the order shall operate subject to there being satisfied one, or more than one, condition that it determines to be appropriate and specifies in the order."
14. This is the procedural mechanism by which the OPW's two motions to lift the automatic suspension have come before the court.
15. The Court of Appeal has provided authoritative guidance on the interpretation and application of the equivalent provision, under other public procurement regulations, in three judgments: Word Perfect Translation Services Ltd v. Minister for Public Expenditure and Reform [2018] IECA 35, [2019] 2 IR 503; ("Word Perfect 2018"); Word Perfect Translation Services Ltd v. Minister for Public Expenditure and Reform [2021] IECA 305, [2022] 3 IR 764 ("Word Perfect 2021"); and CHC Ireland v. Minister for Transport [2023] IECA 229.
16. The principles established in that case law which are of most immediate relevance to the present proceedings are as follows:
(i). The court is required to proceed, initially, on the hypothetical basis that an interlocutory injunction has been applied for. In the event that the court considers that no such injunction would have been granted, it must consider whether the automatic suspension should be lifted.
(ii). The test to be applied is the same as would be applicable on an application for an interlocutory injunction to restrain the awarding of the relevant contract: the court has to consider (1) whether there was a fair question or serious issue to be tried, and (2) whether the balance of convenience was in favour of or against the granting of the interlocutory injunction sought. The question of the adequacy of damages has to be considered as part of that balance.
(iii). In the event that the respondent makes an appropriate concession/admission in respect of the threshold governing Francovich damages, then such damages would, in principle, be available to an unsuccessful tenderer in the event that it succeeds in its claim. However, the fact that damages may be available does not mean that they are necessarily an adequate remedy.
(iv). The assessment of damages for the loss of a chance to be awarded a tender is inherently complex. The more variables there are which are fed into a "loss of chance" calculation and the more tenderers involved, the more uncertain will be the damages calculation exercise. The court may decide that damages are not an adequate remedy because of this uncertainty.
(v). It is critical in assessing the balance of convenience to consider the period of time for which it might be necessary to keep the automatic suspension of the public procurement process in place. If there is to be an early trial of the action, then this is a factor in favour of refusing to lift the automatic suspension.
(vi). In deciding whether to lift the automatic suspension, the court may take into account the probable consequences of lifting the suspension for all interests likely to be harmed, as well as the public interest. Thus, the interests of the applicant, the contracting party, the successful tenderer, the public interest and any other relevant interest may all be considered and weighed by the court in assessing where the balance of justice lies in the particular circumstances.
17. The principal benefit of an automatic suspension, from the perspective of an unsuccessful tenderer, is that it preserves their right to seek pre-contractual remedies. If the suspension is lifted, then this will normally result in the successful tenderers accruing contractual rights. This, in turn, will normally preclude any remedy which involves setting aside the contract. The unsuccessful tenderer is, instead, relegated to a claim for Francovich damages.
18. The raison d'être of an application to lift an automatic suspension is to allow the contracting authority to conclude a concession contract notwithstanding that same is impugned in judicial review proceedings which have yet to be determined. It follows, therefore, that the contracting authority should have no difficulty in identifying to the court the contract which it desires to enter into. Indeed, the contracting party might reasonably be expected to exhibit a pro forma version of the contract or at least outline the principal terms of same. In the present case, however, the OPW were, initially, coy as to the precise nature of the concession contracts to be concluded. This is so notwithstanding that this issue had been expressly flagged, in advance, by the unsuccessful tenderers.
19. It is possible to identify the contract by tracing the public procurement process. The stated purpose of the competition, as per the request for tenders, had been to establish what was described as a "multi-party framework" or "framework agreement" for the issuing of landing permits under concession agreements with fifteen economic operators.
20. (As an aside, it should be observed that—in contrast to the other public procurement directives—there is no express provision made under the Concession Contracts Directive for the use of framework agreements. Under the other directives, the maximum duration of a framework agreement is four years).
21. The proposed framework agreement was described as follows in the request for tender:
"2.1 Type of Framework
The Contracting Authority proposes to engage in a competitive process for the establishment of a framework agreement. A framework agreement constitutes a means of establishing overall terms and conditions in accordance with which, for a specified duration, individual permits may or may not be awarded.
This competition relates to the establishment of a multi-party framework for the issuing of Permits to land Passengers at Sceilg Mhichíl, Co. Kerry under concession agreements with fifteen (15) Economic Operators. Thereafter contracts will be awarded in accordance with the rules contained herein."
22. The duration of the framework agreement was described as follows in the request for tenders:
"2.5 Duration of the Framework Agreement
The framework agreement will be for a maximum period of five (5) years.
The Contracting Authority confirms that the period of any contracts awarded under the framework agreement may extend beyond the date of expiry of the agreement.
Permits will be renewed on an annual basis. Details of this are contained in section 3.7.2 of this document."
23. The request for tenders made it a prerequisite that all intending tenderers must submit, on their headed notepaper, a signed "tenderer's statement" in prescribed form.
24. Clause 2 of the pro forma tenderer's statement reads as follows:
"We accept all of the Terms and Conditions of the RFT, Permit Terms & Conditions of the Sceilg Mhichíl Permit, The Contracting Authority's Terms And Conditions and agree if awarded a Permit Contract to execute the Contract at Appendix 1 of the RFT."
25. As appears, there is an express commitment to execute a contract in prescribed form. The prescribed contract is to be found at Appendix 1 of the request for tenders. This appendix is headed up: "Permit Terms & Conditions of the Sceilg Mhichíl Permit". The opening paragraph reads as follows:
"The Terms and Conditions for the issue of permits to land visitors on Sceilg Mhichíl for the 2025 Season (while there is a guide presence on the island) are outlined below. Similar provisions shall apply where the Permit is renewed for the subsequent Seasons of the Term of the Contract subject to the right of the OPW at its absolute discretion to amend and/or vary same.
[...]
I understand that my Permit for the 2025 Season will be issued, subject to my acceptance of the Terms and Condition".
26. A series of terms and conditions are then enumerated. Relevantly, paragraphs 1.4 and 1.5 provide as follows:
"1.4 The award of a Permit is for the relevant year only, as set out in 1.5 below, and does not automatically entitle the holder to receive one in subsequent years.
1.5 This Permit is issued for the 2025 Season only. The Office of Public Works will designate the season on Sceilg Mhichíl. The Office of Public Works will endeavour to maintain the island open for as long a period as practicable, having regard to the need for maintenance works, the weather, costs and the comfort of visitors."
27. The intending tenderers were required to sign and return these terms and conditions as part of their response to the request for tenders.
28. The notices of motion each seek orders permitting the OPW to conclude contracts with the successful tenderers on "the terms advertised in the tender process contested in these proceedings". There is only one set of contractual terms advertised in the tender process, i.e. the terms and conditions in Appendix 1.
29. Counsel for the OPW confirmed that "but for" the institution of the judicial review proceedings, it had been intended to have the successful tenderers execute a contract in the terms indicated in Appendix 1 of the request for tenders. This contract will be referred to hereinafter as "the appended contract". It had not been intended that a separate "framework agreement" would be executed; indeed, no such document has been drafted. It was submitted, as a fallback position, that if the court required such a document, the court could impose that requirement as a condition to the lifting of the automatic suspension. Counsel emphasised that he was not advocating for such a condition.
30. In response, counsel on behalf of the unsuccessful tenderers submitted that the pro forma terms and conditions do not represent a concession contract as such, but rather are part of a statutory permitting process under the national monuments legislation. Counsel cited the judgment of the Supreme Court in Casey v. Minister for the Arts, Heritage, Gaeltacht and the Islands [2004] IESC 14, [2004] 1 IR 402 in support of his argument that the right to access Sceilg Mhichíl, for the purpose of landing boat passengers, arises under a statutory permit rather than a contract. Counsel invited the court to leave over the question of the status of the pro forma terms and conditions for determination at the trial of the action.
31. A court hearing an interlocutory application will, generally, avoid making any definitive findings on matters which will be agitated before the court of trial. This is especially so where the finding relates to a factual controversy which can only be resolved on oral evidence. On occasion, however, it will be necessary to make certain limited findings for the purpose of resolving the interlocutory application. Here, it is not possible to avoid reaching a finding on the duration of the contract which the OPW seeks to conclude with each of the successful tenderers. This is because it is essential to its assessment of the balance of justice for the court to know whether the contractual rights, which it is sought to confer on the successful tenderers in advance of the trial of the action, extend beyond the 2025 landing season. If so, then this curtails the relief that the unsuccessful tenderers can pursue at the trial of the action. Whereas they are prepared to confine the relief sought in respect of the 2025 landing season to a claim for damages, the unsuccessful tenderers seek to set aside any purported concession contract which goes beyond that season.
32. The interpretation of the terms and conditions of the appended contract is primarily a question of law, and this court is in as good a position as the court of trial to resolve this issue. It is not an issue which requires oral evidence. The meaning and effect of the appended contract is clear. The terms and conditions relate to the grant of a landing permit for a single season only, i.e. the 2025 season. Whereas the terms and conditions do envisage the possibility of the renewal of the permit, it appears that this would entail a further, separate contract. Such further contract might have "similar provisions", but the OPW expressly reserved the right "at its absolute discretion to amend and/or vary same".
33. It is impermissible to "read into" the appended contract a term which states that permits will be renewed annually for a five year period. Not only would such a term be inconsistent with the express language (in particular, §1.4 and §1.5), it also necessitates ignoring the fact that the indicative duration of the framework agreement is a "maximum" period of five years. This implies that the duration might actually be for a lesser period. There is nothing in the request for tender which settles upon a five year period.
34. The appended contract is thus confined to the 2025 landing season. It does not confer any contractual rights beyond that period of time. Whatever the full extent of the inchoate rights which the successful tenderers may ultimately enjoy, the only right which the OPW seek to translate into a concluded contract prior to the determination of the judicial review proceedings is confined to the 2025 landing season. This is the crucial point for the purpose of the application to lift the automatic suspension.
35. It should be reiterated that this court is only concerned to identify the extent of the contractual rights which will vest in the successful tenderers in the event that the appended contract is executed and becomes legally binding. This is because the Regulations confer a special status on concluded contracts. The finding that the contractual rights accruing under the appended contract are confined to the 2025 landing season does not determine the broader question of the legal consequences of the tender process. It may well be that the OPW will succeed at trial in demonstrating that the outcome of the tender process allows the OPW to confine the right to land passengers on Sceilg Mhichíl to the fifteen successful tenderers for a five year period. That is not an issue before the court on this application.
36. Counsel on behalf of the OPW has sought to argue that the appended contract must be interpreted by reference to the request for tenders. In particular, it is submitted that the reference in the tenderer's statement to their agreeing to the terms of the request for tender must be understood as, in some way, incorporating a five year period into the appended contract. Counsel relies on the concept of the "RWIND tenderer", i.e. the reasonably well-informed and normally diligent tenderer, in support of the proposition that the appended contract should not be interpreted as it would be by a lawyer. It is further submitted that the RWIND tenderer would understand the appended contract as committing to the renewal of landing permits on an annual basis for a five year period.
37. With respect, these submissions tend to overlook the distinction (discussed above) between the legal effect of the appended contract and the legal effect of the tender process. This court is only concerned with the former in the context of the application to lift the automatic suspension. For completeness, the submissions will be addressed briefly. First, the interpretation of a contract involves an objective not a subjective test. There is no ambiguity in the wording of the appended contract, and it is not legitimate to have regard to extraneous evidence of what may or may not have been said at the consultations/meetings held a number of months prior to the issuing of the request for tenders. Second, the concept of the RWIND tenderer is directed to the understanding of a request for tender not to the interpretation of a contract. Third, the pro forma tenderer's statement distinguished between the terms and conditions of the request for tenders and the terms and conditions of the appended contract. The acceptance of the terms and conditions governing the tender process—for example, as to the format in which documents are to be submitted and the prescribed timelines—does not imply that those terms and conditions are somehow translated into the separately identified appended contract. Fourth, the tenderers were expressly required to commit to the execution of the appended contract. This indicates that these were the terms of the intended concession contract. The appended contract does not purport to incorporate a fixed five year duration nor any part of the request for tenders as a contractual term. Finally, there is nothing in the request for tenders which settles upon a five year period: it is only ever indicated as a potential maximum period.
38. Counsel for the OPW submitted, additionally, that the court does not have jurisdiction to approve a different form of landing permit structure than that advertised in the tender process. Counsel cited Powerteam Electric Services v. Electricity Supply Board [2016] IEHC 87 (at paragraphs 59 to 62). With respect, no such mischief arises. The legal effect of lifting the automatic suspension is simply to allow the OPW to conclude contracts in the precise form prescribed under Appendix 1 of the request for tenders. Far from effecting a material modification of the tender process, it is allowing for its faithful implementation.
39. Finally, and for the avoidance of doubt, the foregoing findings do not preclude the unsuccessful tenderers from pursuing, at the trial of the action, their argument that a landing permit may be issued pursuant to the national monuments legislation even in the absence of a contractual arrangement.
40. Having addressed the various legal issues above, it is now possible to work through the legal test governing the lifting of an automatic suspension under regulation 9 of the European Union (Award of Concession Contracts) (Review Procedures) Regulations 2017. The court is required, initially, to consider the outcome of a hypothetical application for an interlocutory injunction restraining the contracting authority from entering into the contract concerned. It is only if the court considers that it would not be appropriate to grant such an injunction that the court may make an order permitting the contracting authority to conclude the contract.
41. The first item to be addressed is whether there is a serious issue to be tried. This is not in controversy in the present case. The OPW have accepted, solely for the purpose of the application to lift the automatic suspension, that the judicial review proceedings do disclose a serious issue to be tried.
42. It is necessary next to consider the balance of justice (balance of convenience). The adequacy of damages as a remedy falls to be considered as part of the balancing exercise rather than as a standalone stage of the legal test.
43. The principal factors in favour of the hypothetical interlocutory injunction are, first, that the conclusion of the contract would relegate the claim in respect of the 2025 landing season to a claim for damages; and, second, that any disruptive effect upon the successful tenderers and the wider public interest will be short-lived by virtue of the early trial date. The principal factors against are, first, that the prejudice to the unsuccessful tenderers is minimal in that damages are an adequate remedy in respect of the 2025 landing season; second, that the adverse impact on the successful tenderers and the local economy would be disproportionate to the benefit to the unsuccessful tenderers; and, third, that the public interest in the orderly implementation of prima facie lawful decisions of public authorities militates against enjoining the conclusion of the contract.
44. These factors are largely self-explanatory. It is necessary, however, to elaborate upon the adequacy of damages as a remedy for the unsuccessful tenderers as follows.
45. The rationale for seeking an interlocutory injunction restraining the conclusion of a concession contract is, typically, to preserve the availability of pre-contractual remedies. The orthodox view is that once the concession contract has become legally binding, an unsuccessful tenderer is confined thereafter to a claim for Francovich damages. This rationale is weakened in the present case because the legal effect of the execution of the pro forma concession contract (as appended to the request for tenders) is restricted to the 2025 landing season. Unless and until the OPW seek to execute a contract governing the 2026 and subsequent landing seasons, any claim in respect of those years is not confined to a claim for Francovich damages.
46. The unsuccessful tenderers have consistently stated, in open correspondence, that they are not seeking to prevent the OPW from permitting only the successful tenderers to operate during the 2025 landing season. For completeness, it should be recorded that the unsuccessful tenderers contend that this can be done by way of statutory permit alone and that a concession contract is not needed. For present purposes, however, the point is that the unsuccessful tenderers are prepared to confine their claim in respect of the 2025 landing season to a claim for damages, subject to the proviso that a suitably worded admission is given in respect of the legal test for Francovich damages. The word "admission" is used here rather than the more usual "concession" to avoid confusion with the principal meaning of the latter word in the context of this judgment.
47. The purpose of such an admission is to address the concerns identified in Word Perfect (2018). There, the Court of Appeal drew attention to the "highly restrained" nature of Francovich damages and observed that this undermined their adequacy as an alternative remedy to an interlocutory injunction.
48. Such concerns are well founded. The recent judgment of the Court of Appeal of England and Wales in Braceurself Ltd v. NHS England [2023] EWCA Civ 837, [2024] 1 WLR 669 illustrates the very real difficulties that can arise in practice. There, the automatic suspension had been lifted on the basis that damages would be an adequate remedy for the unsuccessful tenderer. In the event, the unsuccessful tenderer established, at the trial of the action, that there had been errors in the marking of the tenders with the result that the unsuccessful tenderer should have won the competition. Nevertheless, the unsuccessful tenderer was refused damages on the basis that the breach of EU law involved was not "sufficiently serious".
49. The belated response of contracting authorities to the judgment in Word Perfect (2018) has been to offer a concession/admission to the effect that if the applicant for judicial review establishes a breach of EU procurement law at trial, same will be treated as meeting the "sufficiently serious" threshold for the purpose of Francovich damages.
50. The OPW has, through its solicitor, offered the following concession/admission by letter dated 1 May 2025:
"Moreover, if the suspension is lifted, this would leave your client with the other remedies it has pleaded, in particular its claim as to damages. We have instructions to concede that, if your client succeeds in demonstrating a breach of EU public procurement rules, such a breach can be considered sufficiently serious for the purposes of Francovich damages. This contributes to protecting your client's position. For the avoidance of doubt, this concession would apply solely in the event the suspension is lifted. It is also without prejudice to the position of the OPW that the proceedings are unfounded and there is no basis for any of the reliefs sought. All of the rights of the OPW in respect of the defence of these proceedings are reserved, including as regards the issues arising in any claim for damages (including as regards proof of damage and causation) other than as regards the seriousness of the alleged breaches of EU law in these proceedings."
51. The unsuccessful tenderers have queried the adequacy of this admission/concession. In particular, the objection is made that the OPW has reserved the right to require proof of damage and causation. The further objection is made that damages may not be recoverable in circumstances where there has been a breach of the duty to give reasons. The judgment in Sanofi Aventis Ireland Ltd v. Health Service Executive [2018] IEHC 566 is cited in support of this latter submission.
52. This court is satisfied that the form of admission/concession given on behalf of the OPW in the letter of 1 May 2025 is enough to ensure that a remedy in damages would be an effective remedy. The admission is very broad in its terms: it indicates that any demonstrated breach of EU public procurement rules can be considered "sufficiently serious" for the purposes of Francovich damages. The admission is not confined to breaches which would have allowed for the decision to award a concession contract to be set aside (assuming that the concession contract had not been concluded). There is nothing in the terms of the letter of 1 May 2025 which indicates, for example, that a breach of the EU public procurement rules in relation to the giving of reasons should not qualify as "sufficiently serious".
53. The fact that the OPW has reserved its rights in relation to matters such as proof of damage and causation does not undermine the value of the admission. The mischief identified by the Court of Appeal in Word Perfect 2018 had been that the hurdle of establishing a "sufficiently serious" breach of EU public procurement law made recovery of Francovich damages very difficult. The purpose of the admission is to relieve an applicant for judicial review of having to surmount this hurdle. There is nothing in the judgment in Word Perfect 2018 which suggests that an applicant must also be relieved of having to meet the normal proofs applicable to any claim for damages.
54. It is, of course, correct to say that the quantification of damages in public procurement cases can be challenging. This is especially so where damages are to be calculated by reference to the loss of opportunity. In some instances, the difficulties in accurate quantification can be so significant that damages will not be an adequate remedy. This was the position in Word Perfect 2021. The circumstances of the present case are, however, distinguishable from that case.
55. In summary, therefore, this court is satisfied, for the reasons outlined above, that the balance of justice would lie in favour of refusing the hypothetical interlocutory injunction. The potential prejudice to the unsuccessful tenderers if the appended contract is to be concluded prior to the hearing and determination of the judicial review proceedings is outweighed by the potential prejudice to the successful tenderers and the local economy if no landings at Sceilg Mhichíl are to be permitted for a further six or seven weeks. The landing season is very short: one month has already been lost. The trial will not take place until 21 July 2025.
56. This finding in respect of the hypothetical interlocutory injunction satisfies the statutory qualifying criteria for the consideration of an application to lift the automatic suspension. It is necessary therefore to move to consider the second limb of the statutory test. The extent to which the criteria relevant to this consideration differ from those engaged in an application for an interlocutory injunction is not entirely clear. It is apparent from the wording of regulation 9 and 10 of the Regulations, and from the case law on the equivalent provisions of other public procurement legislation, that the court is entitled to consider factors such as the need to ensure an effective remedy, the impact on the successful tenderers, and the broader public interest. For reasons similar to those outlined above, and having regard to the admission in respect of Francovich damages, this court is satisfied that the justice of the case is met by allowing the OPW to enter into legally binding contracts with the fifteen successful tenderers in the form indicated at Appendix 1 of the request for tenders. This strikes a fair balance between the competing interests of the parties and the broader public interest.
57. For the reasons outlined above, this court will accede to the OPW's application to lift the automatic suspension. More specifically, an order will be made allowing the OPW to enter into a legally binding contract with each of the fifteen successful tenderers. The terms and conditions of the contract are to reflect the pro forma terms and conditions prescribed at Appendix 1 of the request for tenders. The order is made pursuant to regulation 9 of the European Union (Award of Concession Contracts) (Review Procedures) Regulations 2017.
58. The practical effect of this order is that it will now be legally permissible for the OPW to issue landing permits to the fifteen successful tenderers for the balance of the 2025 season. This will allow for the commencement of passenger landings at Sceilg Mhichíl.
59. It may be helpful to the parties to reiterate what issues this judgment does not decide. This judgment entails no finding whatsoever on whether the outcome of the tender process allows the OPW to confine the right to land passengers on Sceilg Mhichíl to the fifteen successful tenderers for a five year period. The proper interpretation of the request for tender and associated documentation, and the legal consequences of the tender process, remain open for debate at the trial of the action.
60. This judgment goes no further than deciding that the execution of concession contracts, in the form of the pro forma contract appended to the request for tenders, does not result in the crystallisation of a contractual right on the part of the successful tenderers to exclusive landing rights for the 2026 and subsequent seasons. The significance of this finding is that the unsuccessful tenderers are not relegated to a claim for Francovich damages in respect of the 2026 and subsequent seasons.
61. Whatever the full extent of the inchoate rights which the successful tenderers may ultimately enjoy as a result of the tender process, the only right which the OPW seek to translate into a concluded contract prior to the determination of the judicial review proceedings is confined to the 2025 landing season. This is the crucial point for the purpose of the application to lift the automatic suspension.
62. The OPW has not sought, at this stage, to execute a separate "framework agreement" with the successful tenderers. It remains open to the OPW to argue, at the trial of the action, that they are entitled to do so. Equally, it remains open to the unsuccessful tenderers to argue that the tender process does not have this effect and/or that the decision on the tender process should be set aside by reference to the alleged breaches of the public procurement legislation.
63. The substantive action is to be heard, over three days, commencing on 21 July 2025. The costs of the application to lift the automatic suspension are reserved to the trial judge.
Appearances
David Dodd for the applicants instructed by Herbots Solicitors
Andrew Beck SC and Barry Doherty for the respondent instructed by the Chief State Solicitor