The applicant, BAM, issued proceedings against NTMA and the Minister seeking to set aside their decision to accept a late tender submitted by a rival bidder consortium. Under the provisions of the 2010 Irish national Procurement Remedies Regulations, once those proceedings issued NTMA and the Minister were legally precluded from awarding the contract. Under the 2015 Regulations power was granted to the High Court, on the application of a contracting or awarding authority, to grant an order lifting the automatic suspension at interlocutory stage (that is on a temporary basis pending full trial).
The High Court (Barrett J) held that since the 2015 amending Regulations (which were retrospective) the automatic suspension arose both on the review of an interim decision as well as of a final decision to award a contract but that:
- the automatic suspension could be lifted by the High Court.
- the amended Remedies Regulations enabled the High Court to make an order permitting the awarding authority to conclude the contract even though the challenge had not been determined at full trial;
- there was no requirement that in order to lift an automatic suspension that the decision being challenged must be a contract award decision rather than an interim decision; and
- in the present case, the test on whether to lift the automatic suspension would be the same as that conventionally applicable in the Irish Courts on the granting or refusing of an interlocutory injunction, namely that set forth in Campus Oil Limited v Minister for Industry and Energy (No 2).
The High Court held that the Remedies Directive 2007/66/EC did not require the automatic suspension in respect of a review of an “interim” decision (in this instance allegedly accepting a late tender). Barret J held that the Remedies Directive only requires automatic suspension in relation to contract award decisions. Accordingly the High Court considered the Irish Regulations of 2010 and 2015 go beyond what was required as a minimum under the Remedies Directive and, thus, the test to apply in relation to the lifting an automatic suspension in relation to an interim decision was that conventionally available under Irish law, namely, the Campus Oil test. That test mainly comprises the following elements:
- monetary damages inadequate;
- the applicant establishing a fair or stateable case; and
- the “balance of convenience” favouring the grant or withholding of interlocutory injunctive relief.
In this judgment, the Court did not deem it necessary to apply the test which the same judge had articulated in OCS One Complete Solution Ltd v Dublin Airport Authority but subsequently decided by the Supreme Court on different grounds. In OCS Barrett J had held that the Campus Oil test was not compatible with the Remedies Directive. However, the Courts in Northern Ireland and England and Wales have taken a different view of the Remedies Directive and applied the Campus Oil (American Cyanamid in UK law) test. In Ireland, on slightly different facts McGovern J in Word Perfect also applied the Campus Oil test.