THE COURT OF APPEAL
Neutral Citation Number: [2018] IECA 35
Record No. 2018/20
Hogan J.
Hedigan J.
Gilligan J.
IN THE MATTER OF THE REVIEW OF THE AWARD OF A PUBLIC CONTRACT PURSUANT TO THE EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES’ CONTRACTS) (REVIEW PROCEDURES) REGULATIONS 2010 AND ORDER 84A OF THE RULES OF THE SUPERIOR COURTS (AS AMENDED)
BETWEENWORD PERFECT TRANSLATION SERVICES LIMITED
APPELLANT
- AND -
MINISTER FOR PUBLIC EXPENDITURE AND REFORM
RESPONDENT
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 14th day of February 2018
1. As its name conveys, the plaintiff company, Word Perfect Translation Services Ltd. (“Word Perfect”), is the supplier of specialist translation services to a range of State bodies. These public procurement proceedings which have been brought by the plaintiff concern a challenge to the award by the Minister for Public Expenditure of a contract for the supply of translation services to the State’s immigration services (including the International Protection Appeals Tribunal) and the Legal Aid Board to another company known as Translation.ie.
2. The present appeal arises out of an application made to the High Court by the Minister for an order pursuant to Article 8A of the European Communities (Public Authorities’ Contracts Review Procedures) Regulations 2010 (S.I. No. 130 of 2010)(“the 2010 Regulations”) lifting the automatic stay provided by the Regulations on the execution of the contract award by the Minister pending the outcome of this challenge to that award. In the High Court, Noonan J. granted the Minister the order sought: see Word Perfect Translation Services Ltd. v. Minister for Public Enterprise [2018] IEHC 1. The claimant, Word Perfect, has now appealed to this Court against the making of this order.
3. Before considering the legal issues which arise in this appeal, it is first necessary to consider the background to the proceedings.
The background to the present proceeding
4. In October 2015 the Office of Government Procurement (“OGP”) initiated a tender request for interpretation services over a range of public bodies. The tender request was divided into some eight different lots. The present appeal concerns Lot 4, which is concerned with the State’s immigration service and the Legal Aid Board.
5. The modern practice of public procurement often involves framework tendering in the first instance. The preferred bidders who are admitted to the framework agreement are then invited to participate in a mini-tender against each other. Word Perfect were included as among the tenderers admitted as preferred bidders in the Interpretation Services Framework Agreement in January 2016. Three suppliers were nominated to Lot 4 which included Word Perfect and Translation.ie.
6. On the 27th April 2016, a supplemental request for tenders for a 12 month contract was issued by way of mini-competition to the three service providers concerned. The result of the mini-competition was published to the tenderers on the 5th August 2016, by way of a voluntary standstill letter. As it happens, Word Perfect’s tender was unsuccessful and, as a result, in a pre-action letter dated the 12th August 2016, it indicated that it intended to bring a legal challenge to the contract award. This prompted the OGP to review the tender process. It concluded that the process was flawed and, accordingly, on the 31st August 2016, the OGP cancelled the tender.
7. On the 7th December 2016, the OGP issued a new mini-tender to the three service providers on the framework agreement with a closing date of the 17th January, 2017. On the 18th April 2017 a voluntary standstill letter was issued by OGP to each tenderer notifying them that Translation.ie was the preferred bidder. In response, Word Perfect issued these proceedings in the High Court on the 8th May 2017 in which it challenged the proposed award of the contract. On the 28th June 2017 the Minister then issued a motion pursuant to Article 8A of the 2010 Regulations (as amended) seeking to have the automatic stay on the execution of the contract lifted. As I have already noted, the Minister succeeded in this application in the High Court and Word Perfect has now appealed to this Court.
The 2010 Regulations
8. It is next necessary to consider the relevant provisions of the 2010 Regulations, as amended by the European Communities (Public Authorities’ Contracts) (Review Procedures) (Amendments) Regulations 2015 (S.I. 192 of 2015)(“the 2015 Regulations”). Article 8(1) of the 2010 Regulations provides that a disappointed tenderer may apply to the High Court for measures to suspend the contract award. As originally promulgated, Article 8(2) provided that in the event such an application were made, the contracting authority could not conclude the contract until the proceedings were heard and disposed of or “the Court gives leave to lift any suspension of a procedure.”
9. Article 8(2) was, however, amended in 2015 in circumstances I shall presently describe. As so amended, Article 8(2) now provides:
the contracting authority may conclude the contract if, on application to the Court under Regulation 8A, the Court so orders.”
10. A new Article 8A was also added by the 2015 Regulations:
11. In passing, a word of explanation regarding the provenance of the amendments to Article 8(2) and the inserted of a new Article 8A by the amending 2015 Regulations may be in order. As we shall presently see, the scheme envisaged by the Remedies Directive is that the launch of proceedings within the appropriate time limit would have automatic suspensive effect. In OCS One Complete Solutions Ltd. v. Dublin Airport Authority [2014] IESC 51 the Supreme Court held that the court had no jurisdiction to lift the suspensive effect of the automatic stay provided for in Article 8(2) the 2010 Regulations once an application was made by the disappointed claimant for an order under Article 8(1).
12. In the wake of that decision, a new version of Article 8(2) was then inserted by the 2015 Regulations. These Regulations also inserted a new Article 8A. As Costello J. explained in Powerteam Electrical Services Ltd. v. ESB [2016] IEHC 87, the effect of the new Article 8A is to require the Court to proceed on the hypothetical basis that an interlocutory injunction has been applied for and in the event that the Court considers that no such injunction would have been granted, to consider then whether the suspensive effect created by the standstill provisions should be lifted.
13. Returning to the 2010 Regulations, it remains to mention Article 9 which provides inter alia:
14. As we shall shortly see, the proper interpretation of Article 9(6) is at the heart of the present appeal, since this bears on the vital question of whether damages are an adequate remedy.
The present proceedings
15. It is next necessary to consider the present proceedings. In its grounding statement, Word Perfect seeks to set aside the award of the contract to Translation.ie on a number of grounds, including the contention that the OGP’s decision to award the contract was unlawful and ultra vires. In his judgment in the High Court Noonan J. summarised these grounds as relating to:
(a) a failure to give adequate reasons for the decision,
(b) manifest error in a number of areas and
(c) alleged concerns about the integrity and transparency of the process which centre on the prior involvement of a particular OGP official in the earlier tender which was subsequently cancelled.
16. Word Perfect has been in business in Ireland since 2001. It has provided for interpretation services to the Irish Immigration Service for a number of years. It currently does so on an ad hoc basis outside the scope of any formal contractual arrangement. It is evident for some considerable period of time that there have been issues with Word Perfect’s performance. Although these issues are canvassed at great length in the parties’ respective affidavits, they can generally be characterised as those relating to quality of interpretation, late arrival at appointments and a failure to produce ID badges which are said by the Minister to be essential to prove that the interpreters are who they say they are and have thus been subject to Garda vetting.
17. Whilst it is not disputed by Word Perfect that these issues have arisen, there is, however, a major dispute between the parties as to the extent and seriousness of these problems. The OGP says that these are serious and ongoing problems which are impacting in a very significant way on the operation of the immigration services, particularly in relation to appeals. On the other hand Word Perfect says that the complaints are historical and relatively minor, largely resolved and contrived for the purposes of these proceedings.
18. A number of lengthy affidavits have been sworn on behalf of the Minister by Ms. Anne Lannon, a procurement portfolio manager in the OGP and on behalf of Word Perfect by Mr. Agim Gashi, a director and the operations manager of the company. In her first affidavit grounding this application sworn on the 27th June, 2017, Ms. Lannon sets out the background and chronology to the Lot 4 tender. She says that Word Perfect have been providing interpretation services to a variety of entities within the immigration authority on an ad hoc basis since January 2016. She sets out details of the issues arising with the service being provided by Word Perfect and avers that there is a significant risk of harm to these services if the suspension is not lifted. She points to the fact that national security concerns are involved and one of the biggest problems of the current ad hoc arrangement is that there is no adequate contract management mechanism in place.
19. In a lengthy and detailed replying affidavit of the 31st July 2017, Mr. Gashi dealt extensively with significant delays that have occurred not only with Lot 4, but also throughout all other tender lots within the framework agreement stretching over several years. He said that this demonstrates clearly that there is no urgency in the Minister’s application such as would require the lifting of the suspension. He disputes in detail the complaints made about the quality of Word Perfect’s service and comments on the motivation as he sees it for these complaints. He points to the fact that Word Perfect have been providing the services now for several years and if there were substance to these complaints, the Minister would have terminated even these ad hoc arrangements. He further stated that if the Minister were permitted to proceed with the contract, this would cause irremediable reputational damage to Word Perfect. He also stated that if the suspension is lifted, it would result in Word Perfect’s existing turnover being reduced by between €500,000 and €800,000 which, he says represents a very substantial portion of that turnover. Mr. Gashi says that the consequence of this would be that certain positions within Word Perfect would become redundant including six head office positions and in excess of 100 interpreter positions. Those positions include what are described as “rare” language interpreters for whom there would be little or no work if the suspension was lifted.
20. In a replying affidavit sworn on the 12th September 2017, Ms. Lannon takes issue with all of Mr. Gashi’s assertions concerning complaints about the service, security issues and urgency. Further she says that it is not open to the immigration service to employ a third party on an ad hoc basis in lieu of Word Perfect. She contests that there would be any significant reputational damage to Word Perfect as a result of not getting what is after all a twelve month contract only and it would be free to tender for any further contract thereafter.
21. Mr. Gashi swore a supplemental affidavit in reply on the 2nd November, 2017. Again this focuses extensively on the issue of the seriousness of the complaints about Word Perfect’s service and their extent. In a section of his supplemental affidavit entitled “Adequacy of Damages” Mr. Gashi provides a much more expansive treatment of the issue than was the case in his first affidavit. In that second affidavit Mr. Gashi suggested that the loss of the rare language interpreters in the context of the immigration services would constitute a loss of 17% of Word Perfect’s turnover but more importantly, would ultimately result in a loss of over 90% of its turnover by virtue of the unavailability of rare language interpreters for all other contractual commitments of Word Perfect.
22. In this affidavit, Mr. Gashi goes considerably further than his first affidavit in now suggesting that the loss of the rare language interpreters in consequence of lifting of the suspension would mean that Word Perfect will go out of business, as it would not be in a position to sustain that loss even during the currency of the twelve month contract award to the successful tenderer.
23. In a final affidavit, sworn by Ms. Lannon on the 17th November 2017, she again takes extensive issue with Mr. Gashi’s previous affidavit and reiterates her belief that damages would be an adequate remedy for Word Perfect whereas from the Minister’s perspective, damages would not be an adequate remedy if Word Perfect’s claim were to fail. On the question of loss of rare language interpreters, Ms. Lannon says that there can be no guarantee to any provider of interpretation services of continuing business from State entities with the attendant commercial risks. She points to the fact that Word Perfect still retains a need for rare language interpreters to fill existing obligations with other entities as well as tendering for new framework business.
The submissions of the parties on the appeal
24. In the High Court counsel for the Minister, Mr. Newman S.C., did not really dispute that there was a serious issue to be tried. It is only fair to record that this was also accepted by the Minister in the context of the appeal to this Court. Mr. Newman S.C. submitted, however, that the guiding principles to applications of this kind were to be found in the recent judgments of the High Court in BAM PPP PGGM Infrastructure Cooperative UA v. National Treasury Management Agency and another [2015] IEHC 756, Beckman Coulter Diagnostics Ltd. v. Beaumont Hospital [2017] IEHC 537 and, in particular, Powerteam Electrical Services Ltd. v. ESB [2016] IEHC 87.
25. He submitted that these cases establish that the court must apply the test appropriate for interlocutory injunction applications recognised by the Supreme Court in Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88. This meant that the onus rested on Word Perfect to show that:
(a) there is a fair issue to be tried,
(b) damages would not be an adequate remedy, and if not then
(c) that the balance of convenience was in favour of granting the injunction. He argued that the Remedies Regulations expressly provide that the court can award damages and the headings of potential damage identified by Word Perfect are all capable of being compensated by a damages award.
26. Counsel for Word Perfect, Ms. Hyland S.C., had submitted that the scheme of the Remedies Directive strongly favoured the pre-contractual remedy such as the automatic suspension in this case. In particular, she contended that the reference to damages in Article 9(6) of the 2010 Regulations referred simply to Francovich damages and not the damages which might generally be available in a standard claim for breach of contract. Ms. Hyland S.C. further emphasised the likely reputational damage which Word Perfect would suffer if the contract award were to stand through the loss of specialist interpreters for rare languages and that this loss might even prove terminal to its business. She further contended that the State had not adequately made out the case that it required to put contracts in place immediately to ensure adequate service and all of the evidence pointed to that conclusion. No genuine national security issue had been established and the balance of convenience was strongly in favour of preserving the status quo pending the trial of the application in the High Court.
The earlier High Court authorities dealing with the adequacy of damages issue
27. In his judgment Noonan J. first conducted a careful review of the earlier High Court authorities in this area to which reference has already been made. It may be convenient to review these authorities before considering the judgment of Noonan J.
28. The first of these was the decision of Barrett J. in BAM. This case had concerned the award of a contract to build a new university campus for which the applicant had tendered unsuccessfully. BAM’s challenge resulted in an automatic suspension of the contract. Barrett J. in the course of his judgment noted that the Supreme Court had concluded in OCS One Complete Solutions v. DAA [2015] IESC 6 that the original 2010 Regulations did not permit the court to lift a suspension and that, in consequence, the 2015 Regulations were subsequently promulgated by the Minister. Article 8A now expressly empowered the High Court to lift such an automatic suspension.
29. Barrett J. then noted with regard to applications of this nature under Article 8A:
“Because one is dealing in these proceedings with an exclusively Irish-law matter, i.e. whether or not to lift an automatic suspension that was not required to arise as a matter of European Union law, there is no reason to consider that anything other than the usual Campus Oil criteria ought to apply when determining whether the circumstances presenting are circumstances in which, absent Article 8(2)(a) it would be appropriate to grant an injunction.”
30. Barrett J. went on to consider the availability of damages in public procurement cases. He concluded:
“Third, BAM points to the fact that the main reason European lawmakers took action to strengthen pre-contractual remedies was that they considered damages to be, in general, an inadequate remedy in public procurement cases. The types of concerns with which European lawmakers were occupied also present in the Irish context, and concern the integrity of the award process.
Having regard to all of the foregoing, the court is coerced to the conclusion that damages are an available and suitable remedy for BAM, albeit not, from its perspective, the most desired of remedies.”
31. The decision of Costello J. in Powerteam was another application to lift an automatic suspension. The contract in issue there was for the installation, maintenance and repair of the ESB’s national electricity supply infrastructure in respect of which it required contractors to supplement its own workforce. The case made in Powerteam was rather similar to the one advanced here concerning the issue of adequacy of damages, since it was alleged that if the suspension was lifted, it would lose most if not all of its highly trained workforce to competitors and its position in the market would thereby be damaged irretrievably and probably terminally. Importantly, in that case, the respondent did not contest this evidence. This led Costello J. to conclude that damages would not be an adequate remedy but she nonetheless concluded that the balance of convenience favoured the lifting of the suspension.
32. In the course of her judgment, Costello J. considered the 2010 Regulations and how they should be applied to applications to lift a suspension under Article 8A. Costello J. took the view, as Barrett J. had done in BAM, that the Campus Oil principles were to be applied. Notably, she considered that these principles were not to be modified by reference to the provisions of Article 9(4) of the 2010 Regulations, saying:
“The applicant argues that the test be applied to an application under Article 8A(2) is that set out in Article 9(4) of the Remedies Regulations, cited above. It emphasises that there is no scope for a test assessing the adequacy of damages as a remedy as this would be contrary to the policy of the Remedies Directive to strengthen pre-contract remedies.
In my opinion the correct approach is to employ the Campus Oil principles for the following reasons. Article 8A(2)(a) enjoins the court to frame its considerations by reference to the granting of an injunction. On the other hand, no reference is made to having regard to the matters set out in Article 9(4). In my opinion this leads to the conclusion that the Oireachtas requires the court to consider those matters which are habitually balanced by the courts when deciding whether or not to grant injunctions when dealing with an application to lift the automatic suspension of the right of a contracting entity to award a contract. The Oireachtas did not refer the courts specifically to the provisions set out in Regulations 9(4) when it was clearly open to the Oireachtas to do so. It is therefore to be inferred that this was not its intention.”
33. Costello J. noted that in BAM Barrett J. had reached a similar conclusion. She also dealt with an argument by Powerteam that the Remedies Directives required the court to disapply the Campus Oil principles and rejected it. Costello J. also rejected the argument that damages would not be an adequate remedy because of the reputational damage it would suffer and also because of the loss of staff. She observed that reputational damage arising from the loss of a tender competition per se could not warrant the conclusion that damages are an inadequate remedy because this would be inconsistent with the existence of damages as a remedy in procurement cases expressly provided for in the Remedies Directive. As Barrett J. had concluded in BAM, Costello J. also took the view that there was no reason to think that an unsuccessful tenderer in a public procurement competition would necessarily be inhibited in any subsequent competition.
34. Costello J. nonetheless concluded damages would not in fact provide an adequate remedy on the facts of the case because she accepted that Powerteam’s business would probably fail if the stay was lifted on the basis that an interlocutory injunction would not have been granted (i.e., by reason of an application of the test provided for by Article 8A(2)(a)). Even though damages would not be an adequate remedy for the claimant, the balance of convenience nonetheless favoured lifting the suspension even though this was likely to put Powerteam out of business.
The judgment of the High Court
35. In his judgment Noonan J. conducted a careful review of the earlier High Court authority, saying:
“These authorities are at one in demonstrating that the Campus Oil principles are to be applied in this case and the onus of proof rests upon Word Perfect to justify the continuation of the suspension. Despite what was urged on behalf of Word Perfect, I do not accept the proposition that these domestic law principles require in some sense to be modified by European jurisprudence or to be inconsistent with that jurisprudence. In both BAM and Powerteam, the court dealt with similar arguments that in procurement cases damages might not be available and thus were not an adequate remedy, and discounted them.”
36. As Noonan J. found that Word Perfect had raised a fair issue to be tried, he proceeded to consider whether damages would be an adequate remedy. He held that whatever loss of profit which Word Perfect might suffer, it “was not something that cannot be assessed, and readily assessed, by way of damages.”
37. Noonan J. then went on to consider the issue of reputation damages:
“On the question of reputational damage, I find myself in agreement with the views expressed in BAM and Powerteam that it is somewhat difficult to accept the proposition that any reputational loss could accrue to Word Perfect merely from being an unsuccessful tenderer for a twelve month contract for interpretation services in only one of a larger number of lots across various State entities requiring such services. That must surely be a standard hazard that any commercial entity competing for State business has to take on board. If there is any loss of chance arising, then as Costello J. noted in Powerteam, there is ample authority for the proposition that such loss can be assessed by way of damages.
On the issue of loss of staff, here again it seems to me that the cases demonstrate a willingness on the part of the courts to undertake a damages assessment in respect of any loss that may be said to arise from such an event. These were all the matters identified in Mr. Gashi’s first affidavit which were said to be those that could not be remediated by an award of damages.
However, as I have already pointed out, in Mr. Gashi’s second affidavit sworn some two months after the first, he makes an entirely new case for the first time. Instead of attributing a monetary sum to the loss of immigration interpretation business of between €500,000 and €800,000 he says that this amounts to 17% of WP’s turnover. However, he now advances the proposition that the loss of turnover will not be confined to that percentage but will, due to the loss of rare language interpreters, actually result in a 91% loss of turnover, effectively rendering Word Perfect’s business unsustainable.
Thus, Mr. Gashi appears in effect to be saying that such is the fragility of Word Perfect’s long established business and its dependence on rare language interpreters that if it fails to obtain this twelve month contract, its business will be terminally affected. It is somewhat surprising, to say the least, that such a dramatic state of affairs appears to have entirely escaped Mr. Gashi’s attention when he swore his first affidavit, running to some 38 pages.”
38. Noonan J. then concluded:
What level of damages are recoverable in public procurement cases?
39. It is clear from the judgment of Noonan J. that he was following earlier High Court authority which had held that damages will readily be available in a public procurement case such as this in much the same way as if this was, for example, an action for breach of contract so that the only issues were, in essence, causation, foreseeability and quantification. But is that really the case here?
40. It must first be recalled that the entire field of public procurement is largely governed by EU law. The original public procurement directives in 1971 contained no enforcement provisions. Change was prompted by the decision of the Court of Justice in Case C-31/87 Gebroeders Beentjes BV [1988] E.C.R. 4635 which held that these Directives were sufficiently precise and unconditional and thus conferred rights on private parties. This led to the introduction of the Remedies Directive in 1989, which itself was later amended in 2007. The Remedies Directive now provide for a scheme of standstill provision, the setting aside of awards and damages. Article 2(1) of the Remedies Directive provides:
“Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for powers to:
(a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority;
(b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure;
(c) award damages to persons harmed by an infringement.”
41. Rather unhelpfully the Union legislator did not, however, specify either in 1989 or 2007 precisely what kind of damages it had in mind. Was the measure of damages to be determined as a matter of national law or of Union law or perhaps as some type of hybrid? Just as critically, did Article 2(1) of the Directive create some sort of strict liability or was it in some sense fault based? Or does the reference to damages in Article 2(1) refer simply to Francovich damages (Joined Cases C-6/90 and Case C-9/90 Francovich [1991] ECR I-5357)?
42. These matters were discussed and examined by the Court of Justice in Case C-568/08 Combinatie Spijker Infrabouw-De Jonge Konstruktie EU:C:2010: 751, [2010] E.C.R. I -12655. These were public procurement proceedings which involved a claim for damages against a Dutch province as awarding authority. The Rechtbank in Assen took the view that the province might have acted unlawfully and accordingly asked the following questions 4(c) and (d) in the courts of an Article 267 TFEU reference to the Court of Justice:
“(c) If [the] authority is required to pay damages, does Community law set criteria for determining and estimating those damages, and if so, what are they?
(d) If the contracting public authority cannot be deemed liable, is it possible, under Community law, for some other person to be shown to be liable, and on what basis?”
43. The Court of Justice addressed question 4(c) as follows:
“85. By its fourth question, part (c), the referring court asks, in essence, whether, if the awarding authority has to make good the damage arising from an infringement of EU law on the award of public contracts, EU law provides criteria on the basis of which the damage may be determined and estimated and, if so, what those criteria are.
86. Article 2(1)(c) of [the Remedies Directive] clearly indicates that member states must make provision for the possibility of awarding damages in the case of infringement of EU law on the award of public contracts, but contains no detailed statement either as to the conditions under which an awarding authority may be held liable or as to the determination of the amount of the damages which it may be ordered to pay.
87. That provision gives concrete expression to the principle of State liability for loss and damage caused to individuals as a result of breaches of EU law for which the State can be held responsible. According to case law developed since the adoption of the [Remedies Directive], but which is now consistent, that principle is inherent in the legal order of the Union. The Court has held that individuals harmed have a right to reparation where three conditions are met: the rule of EU law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between the breach and the loss or damage sustained by the individuals ([the Francovich case] para 35, the Brasserie du Pêcheur case] paras 31 and 51; and [the Danske Slagterier case] paras 19 and 20).
88. As matters stand at present, the case law of the Court of Justice has not yet set out, as regards review of the award of public contracts, more detailed criteria on the basis of which damage must be determined and estimated.
89. As regards EU legislation, it should be noted that Directive 89/665 has been largely amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC (OJ 2007 L 335, p 31), adopted after the date of the facts which gave rise to the dispute in the main proceedings. However, on that occasion, the EU legislature refrained from adopting any provisions on that point.
90. In the absence of EU provisions in that area, it is for the legal order of each member state to determine the criteria on the basis of which damage arising from an infringement of EU law on the award of public contracts must be determined and estimated (see, by analogy, Case C-315/01 GAT [2003] ECR I-6351 para 46; and Case C-314/09 [the Stadt Graz case [2010] ECR I-8769], para 33) provided the principles of equivalence and effectiveness are complied with (see, to that effect, Joined Cases C-295/04 to C-298/04 Manfredi and others [2006] ECR I-6619, para 98).
91. It is apparent from well-established case law that the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness)
92. Therefore, the answer to the fourth question, part (c) is that, as regards state liability for damage caused to individuals by infringements of EU law for which the state may be held responsible, the individuals harmed have a right to redress where the rule of EU law which has been infringed is intended to confer rights on them, the breach of that rule is sufficiently serious, and there is a direct causal link between the breach and the loss or damage sustained by the individuals. In the absence of any provision of EU law in that area, it is for the internal legal order of each member state, once those conditions have been complied with, to determine the criteria on the basis of which the damage arising from an infringement of EU law on the award of public contracts must be determined and estimated, provided the principles of equivalence and effectiveness are complied with.
93. In view of that answer, there is no need to reply to part (d) of the fourth question.”
44. It is, accordingly, clear that Member States are required by EU law to provide remedies by reference to the Francovich criteria. But it is also clear from paragraphs 88-90 of the judgment of the Court of Justice in Spijker Infrabouw that it is open to Member States to provide a more elaborate and, if you will, a more claimant-friendly remedy, so that in the words of Lord Mance JSC in EnergySolutions v. Nuclear Decommissioning Authority [2017] 1 WLR 1373, 1388 “the criteria for damages [for public procurement breaches] are to be determined and estimated by national law”, provided that the key principles of equivalence and effectiveness are nonetheless respected.
To what type of damages does Article 9(6) refer?
45. This brings us to the next question. Article 2(1)(d) of the Remedies Directive was transposed into our domestic law by Article 9(6) of the 2010 Regulations. To what measure of damages does Article 9(6) then refer?
46. While Article 9(6) does not give any guidance in terms as to the availability of damages in public procurement cases of this kind, it is of considerable relevance that the 2010 Regulations were not transposed by means of legislative enactment by the Oireachtas, but rather by way of ministerial order made under s. 3 of the European Communities Act 1972.
47. It is largely unnecessary to rehearse the rather complex case law that has emerged since the decision of the Supreme Court in Meagher v. Minister for Agriculture [1994] 1 I.R. 329 regarding the interaction of Article 15.2.1 of the Constitution (providing for the exclusive legislative power of the Oireachtas) on the one hand and Article 29.4.6 (providing that laws, acts and measures “necessitated” by the obligations of Union membership cannot be found to be unconstitutional) on the other. It is instead sufficient for present purposes to state that the constitutionality of s. 3 of the 1972 Act was upheld by the Supreme Court in Meagher because on its proper construction it only permits the State to take such steps as are necessary to give effect to the requirements of E.U. law.
48. In those particular circumstances, s. 3 of the 1972 Act thus permits the Minister thereby to change the law by ministerial order without the necessity for the enactment of legislation by the Oireachtas. As Denham J. explained ([1994] 1 I.R. 329, 365):
“If the directive left to the national authority matters of principle or policy to be determined then the ‘choice’ of the Minister would require legislation by the Oireachtas. But where there is no case made that principles or policies have to be determined by the national authority, where the situation is that the principles and policies were determined in the directive, then legislation in a delegated form, by regulation, is a valid choice.”
49. What, then, are the requirements of E.U. law in this context? As I have already observed, it clear from the decision in Strijker Infrabouw that where E.U. law requires that whereas damages must be assessed as a minimum by reference to Francovich criteria, Member States may nonetheless elect to go further in their domestic law and provide, subject only to principles of equivalence and effectiveness, that the determination and estimation of damages may be assessed by reference to less rigorous criteria. As Lord Mance put it EnergySolutions ([2017] 1 WLR 1373, 1391) the Francovich conditions “are no more than minimum conditions, which domestic law is free to relax or ignore.”
50. It is thus clear that the reference to damages in the 2010 Regulations must be understood as being a reference to Francovich damages only, because that is all that E.U. law requires. If it had been thought desirable to provide for an award of damages on some different basis (such as, for example, a form of strict liability), this would have represented a change in the law above and beyond that necessitated by E.U. law itself. It is axiomatic that Article 15.2.1 of the Constitution requires that such a change can only be effected by legislation and not by ministerial order made under s. 3 of the 1972 Act. This, in other words, would represent the type of national policy choice not necessitated by E.U. law which Denham J. had said in her judgment in Meagher could only be effected by an Act of the Oireachtas.
51. It is also worth noting that precisely the same issues arose before the UK Supreme Court in EnergySolutions. That case also concerned the interpretation of the relevant UK regulations transposing the Remedies Directive and which also had been made under the (UK) European Communities Act 1972. The UK Supreme Court also concluded that the damages recoverable under the UK Regulations were confined to Francovich damages, with Lord Mance saying ([2017] 1 W.L.R. 1371, 1394):
“The scheme of the Remedies Directive is a balanced one. The Francovich conditions represent the Court of Justice’s conclusion as to the appropriate minimum by way of damages which an economic operator can expect…I think it a natural assumption that the UK legislator will not go further than required by EU law when implementing such a scheme, without considering this and making it clear.”
52. Quite independently of the particular constitutional considerations which constrain the exercise of the parallel power to make ministerial regulations in s. 3 of our 1972 Act, the same working assumption could just as readily be applied in this jurisdiction.
53. All of this leads inevitably to the conclusion that the reference to the award of damages in Article 9(6) of the 2010 Regulations is a reference to Francovich damages, because this is all that is that EU law actually requires.
Whether Francovich damages constitute an adequate remedy in this context
54. If the damages that might be available under Article 9(6) of the 2010 Regulations are confined to Francovich damages, what, then are the implications of this for the present appeal? The immediate consequence is to remove this case from that of the standard application for an injunction in a breach of contract matter so far as the issue of the adequacy of damages is concerned.
55. I say this because it is clear from the Francovich case law that the entitlement to damages for a breach of EU law is itself highly conditional and limited, a point neatly illustrated by the recent Supreme Court decision in Ogieriakhi v. Minister for Justice and Equality [2017] IESC 52, [2017] 2 I.L.R.M. 340. In that case the plaintiff established that, viewed objectively, his dismissal from his employment in An Post on the ground that he had no entitlement to work in the State was founded on a wrongful interpretation of E.U. law. O’Malley J. nonetheless held the plaintiff was not entitled to recover Francovich damages, saying ([2017] 2 I.L.R.M. 340, 368) that:
“In summary, the appellant has undoubtedly been injured by the mistaken interpretation of the relevant EU law on the part of the Minister. He lost his employment and was threatened with deportation. Both of these events are likely to have caused him distress. However, the right to damages as a remedy for breach of European Union law requires him to demonstrate, not just that an error of law caused his loss, but that the error of law concerned was inexcusable. In the circumstances of this case I consider that it was not, and that no right of his under the national legal order has been infringed such as to give rise to a right to damages.”
56. The decision in Ogieriakhi illustrates the chasm which has opened up between the prospects of a plaintiff recovering Francovich damages on the one hand and damages in respect of contractual claims on the other. In the latter case the claim to damages rest fundamentally on whether, viewed objectively, there has been a breach of contract. By contrast, in the case of Francovich damages (and, by extension, damages for breach of public procurement rules under Article 9(6) of the 2010 Regulations), it is necessary to show not simply that there had been an objective breach of breach of E.U. law, but rather that such breach was either “grave or manifest” or “inexcusable”.
57. Judge Anthony Collins made this very point in his article, “Damages in Public Procurement – An Illusory Remedy” in Of Courts and Constitutions – Liber Amicorum in Honour of Nial Fennelly (ed. Bradley, Travers and Whelan)(Hart Publishing, 2014) at 431:
“Whilst a simple infringement of the law may constitute a sufficiently serious breach where a Member State or Union institution exercises a limited discretion, the technical nature of the Procurement Rules, coupled with the elements of discretion that Member States enjoy in transposing their Procurement Directive and the contracting authorities require to operate them, means that not every such infringement will constitute a ‘sufficiently serious’ breach of E.U. law.”
58. It would have to be accepted, therefore, that a claimant such as Word Perfect would not find recovery of damages straightforward, even if, following a full hearing, a material breach of the procurement rules were actually to be established.
59. What implications does this conclusion have insofar as the present case is concerned? As the Supreme Court stressed in Okunade v. Minister for Justice [2002] IESC 49, [2003] 3 I.R. 153, the task of the Court in the context of an interlocutory application such as this is to assess the facts and apply legal principles designed to ensure the minimum possible injustice to the parties pending the outcome of the main action. If, however, the ability of Word Perfect to recover damages is highly restrained this clearly impacts on the manner in which these factors should be weighed and balanced.
60. In the light of the conclusions I have just reached regarding the interpretation of Article 9(6), it cannot be said that damages have been shown to be an adequate remedy. In these circumstances, one must consider (i) whether an arguable case has been made out and (ii) where the balance of convenience actually lies. As it is accepted that Word Perfect have raised arguable grounds that the contract award was in breach of E.U. law and the public procurement rules, the remaining question is where the balance of convenience lies.
The balance of convenience
61. There is no doubt but that, as Noonan J. stressed, there is considerable public interest in ensuring that the State has available to it the best possible translation service, a factor which weighs heavily in terms of the balance of convenience and the general Okunade principle of ensuring the least possible injustice. The present ad hoc situation is far from satisfactory especially in the absence of a concluded contract, as there is then no formal mechanism to address complaints such as lateness, lack of security badges and fraternisation with witnesses. There have been persistent complaints along these lines in the last few years in respect of the services provided by Word Perfect, although it is fair to say that it would probably be unrealistic to expect that there would be no complaints from time to time with any servicer provider.
62. Weighed on the other hand is the fact that Word Perfect has provided this service to many State agencies for years and it has shown itself in the round at least to be a competent provider of a specialist service. If it were to lose this business there seems little doubt that but that it would hamper its ability to retain specialist employees who can translate rare languages such as Farsi, Albanian and Ga. Irrespective of whether Mr. Gashi raised this concern only somewhat belatedly, there must be a real risk of significant reputational damage to the company which might possibly prove to be terminal.
63. These competing factors are admittedly rather finely balanced on both sides. In this context, the fact that damages have not been shown to be an adequate remedy has an important - perhaps even a decisive - impact for the present appeal. Irrespective of whether the matter is viewed from the perspective of national or E.U. law, the right to an effective remedy is a constitutional fundamental: see Article 40.3.2 of the Constitution and Article 47 of the EU Charter of Fundamental Freedoms respectively. In the present case adherence to the standstill clause is, in reality, the only real remedy a claimant such as Word Perfect currently enjoys. It is true that Article 9(1)(b) of the 2010 Regulations enables the Court to declare a reviewable public contract “ineffective”, but it is equally clear from Article 11 that this particular remedy is available only in quite special cases – such as where the authority concluded the contract in breach of the standstill clause – none of which apply to the present case.
64. At all events, if that protection is lifted by court order then, in practice, Word Perfect would enjoy no real remedy, even if the matter were to go to trial and a material breach of the public procurement regime were ultimately to be established so far as the contract award was concerned. In these circumstances I am driven to the conclusion that the fact that damages are not an adequate remedy is decisive in terms of any evaluation of where, in Okunade terms, the greatest risk of possible injustice lies.
Conclusions
65. It follows that I would have granted Word Perfect an interlocutory injunction on the hypothetical basis contemplated by Article 8A(2)(a) of the 2010 Regulations. It equally follows in turn that I would allow the appeal and refuse to grant the Minister an order lifting the suspensive effect of the proceedings and permitting him to conclude the contract with the successful tender pursuant to Article 8A(1) of the 2010 Regulations (as amended).
66. I would, however, require as a condition of this decision an undertaking on behalf of the applicant that it will prosecute these proceedings with urgency and without any further delay. To ensure that this is so I would propose that the matter should now be listed before the judge having seisin of the Commercial List within the next two weeks. The applicant must be ready for trial and stand prepared to accept any date for hearing in the High Court from 10th April 2018 onwards or, indeed, such earlier date for hearing as that Court may fix and direct.
