In this case the High Court differentiated between the earlier decision in OCS One Complete Solution Ltd v Dublin Airport Authority in which Barrett J had held that applying the Campus Oil test (the traditional test for interlocutory injunctions) was not consistent with the EU Remedies Directive 2007/66/EC. In this case, McGovern J held that the present application by Word Perfect was not an application for an order in connection with an alleged wrong during the course of a procurement procedure nor was it challenging a decision to award a contract at the end of that procedure. It was thus not clear if the matter was governed by Regulation 8 of the Remedies Regulations, as was the case in OCS. Accordingly McGovern J applied the conventional Campus Oil test and, on the facts, refused to grant the injunction.
Word Perfect Translation Services Ltd (WP) was the incumbent provider of interpretation and translation services under a Department of Justice and Equality Framework Agreement (the FA) for the provision of interpretation services. It applied for judicial review of a decision made by the Commissioner to award a new contract for interpretation services to certain preferred bidders but excluding Word Perfect.
WP sought interlocutory injunction orders:
- preventing the Commissioner from procuring interpretation services on the basis of a framework for interpretation and translation services which had commenced on 1 February 2009 and expired on 31 August 2013;
- restraining the Commissioner pending determination of these proceedings or pending aggrieved tender from procuring other than on the basis of the FA; and
- an order directing the Commissioner to procure such services under the FA.
The High Court dealt first with the issue of whether the principles elaborated in Campus Oil v Minister for Industry and Energy (No 2) (which followed in Ireland the English case of American Cyanamid Company v Ethicon Ltd) or whether the matter ought to be dealt with in accordance with the judgment of Barrett J in the High Court in OCS One Complete Solution Ltd v Dublin Airport Authority . The High Court (McGovern J) noted that the OCS decision had been appealed to the Supreme Court and decided there on different grounds. The Judge noted that in OCS the Supreme Court had distinguished between, on the one hand, Regulation 8(1)(a) of the Irish Utilities Remedies Regulations, governing applications to suspend a tender procedure or process during the course of the procedure and, on the other hand, Regulation 8(1)(b) governing that process after a contract award decision had been made at the end of the procedure. In the present case, the Court (McGovern J) stated that it was clear that the application for interlocutory relief was not an application for an order in connection with an alleged breach taking place in respect of a procurement procedure in the course of its being conducted which was under review. Nor was it an application for review of a decision to award a contract at the end of that procedure. Rather, the basis of the claim was that the respondent had been making illegal direct awards of contracts since the expiration of the FA.
OCS not applicable
There was a dispute between the parties as to whether the matter was governed by Regulation 8 of the Remedies Regulations. But McGovern J held that, even if it was, the Commissioner had argued that in OCS Barrett J had held that it was up to the applicant to show that the
“… negative consequences of making any interim or interlocutory order as is sought do not exceed the benefits of such order”.
McGovern J stated that if the case did not concern Regulation 8 then the Campus Oil principles applied.
(It will be recalled that in summary, these principles required the test based on the following factors for granting or withholding an injunction at interlocutory or interim stage pending full trial:
- inadequacy of monetary damages,
- establishing a fair or stateable case, and
- the “balance of convenience” favouring the granting or withholding the injunction.)
In Word Perfect the High Court stated that OCS was distinguishable as it concerned a challenge to award a contract before it became operative and therefore resulted in an automatic suspension of the contract award which was challenged. That was not the case here.
The Court, applying Campus Oil principles, concluded that WP had not met the test for an interlocutory injunction including for the following reasons:
- the relief sought was not in the nature of a final remedy or mandatory injunction and WP had not met the test required for such relief;
- WP had been guilty of delay, had been aware of alleged illegality since January 2013 and had only applied for injunctive relief in May 2015;
- what might be achieved by the order sought was not clear; and
- monetary damages would be an adequate remedy.
Accordingly, the Court refused to grant an injunction.
The case makes a fine distinction between circumstances falling under Regulation 8(1)(a) governing applications relating to suspension of a tender process during the course of such a tender procedure and the facts of the present case where it appeared that the applicant had been informed that it was being excluded from the procedure.
Interestingly, interpretation services are governed by Part B of the Public Sector Directive 2004/18/EC and the Irish Regulations. There has been some debate as to the extent to which such contracts are governed by the full Remedies Regulations.
This will become clearer when the 2014 Directives are transposed as is required of all Member States by 18 April 2016.