Word Perfect Translation Services Ltd v The Minister for Public Expenditure and Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 12 November 2021
• Neutral Citation: [2021] IECA 305
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2021/24

Between

Word Perfect Translation Services Limited

Applicant/Appellant

and

The Minister for Public Expenditure and Reform

Respondent/Respondent

[2021] IECA 305

Edwards J.

Faherty J.

Barniville J.

Court of Appeal Record Number: 2021/24

THE COURT OF APPEAL

CIVIL

Framework agreement – Suspension – Damages – Appellant appealing from the judgment and order granting an application by the respondent for an order permitting the respondent to conclude a Multi-Supplier Framework Agreement for the provision of Irish Language Translation Services – Whether the trial judge ought to have found that damages would be an inadequate remedy for the appellant

Facts: The appellant, Word Perfect Translation Services Limited, appealed to the Court of Appeal from the judgment and order of the High Court (McDonald J) delivered and made on 23 September, 2021 granting an application by the respondent, the Minister for Public Expenditure and Reform, for an order pursuant to Regulation 8A of the European Communities (Public Authorities’ Contracts) (Review Procedures) Regulations 2010 (S.I. No. 130 of 2010), as inserted by the European Communities (Public Authorities’ Contracts) (Review Procedures) (Amendments) Regulations 2015 (S.I. No. 192 of 2015) and as amended by the European Communities (Public Authorities’ Contracts) (Review Procedures) (Amendments) Regulations 2017 (S.I. No. 327 of 2017) (together the Remedies Regulations) permitting the respondent to conclude a Multi-Supplier Framework Agreement for the provision of Irish Language Translation Services. The effect of the judgment and order under appeal was that the automatic suspension which arose under Regulation 8(2) of the Remedies Regulations and which prevented the respondent from entering into the Framework Agreement with tenderers who had successfully tendered under the relevant competition was lifted. The appellant submitted that the judge: (1) erred in principle, or made a decision which would lead to an injustice for the appellant, in his treatment of the question of the adequacy of damages and ought, on the basis of the Supreme Court in Merck, Sharp & Dohme Corporation v Clonmel Healthcare Limited [2019] IESC 65, have concluded that damages would not be an adequate remedy for the appellant; and (2) erred in his assessment of the balance of convenience such as to give rise to an injustice to the appellant, and, in particular, made findings in support of his conclusion that the balance of convenience required the lifting of the suspension which were not supported by the evidence and included errors of fact.

Held by Barniville J that the trial judge ought to have found that damages would be an inadequate remedy for the appellant, having regard to the complexity of the exercise in assessing damages and the number of variables involved in that exercise. Barniville J concluded that in failing to find that damages would be an inadequate remedy for the appellant, the judge erred in principle in light of the approach suggested by the Supreme Court in Merck. Barniville J was also satisfied that the judge ought to have concluded that the balance of convenience or balance of justice lay in favour of keeping the suspension in place, in the particular circumstances of the case, and having regard to the likely duration of the suspension. In Barniville J’s view, the evidence did not support the conclusion that the balance of convenience required the immediate lifting of the suspension by reason of the “sheer volume of the material” which the Official Languages Act 2003 requires to be translated or the “sheer number of public bodies” covered by the obligations under the 2003 Act or the “sheer scale” and “systemic importance to the public service” of the 2021 Framework.

Barniville J held that the approach which best minimised the risk of injustice was to keep the automatic suspension in place until the conclusion of the trial, with the continuation of the suspension thereafter to the date of judgment in the High Court being a matter for the trial judge, and that it would create a serious injustice for the appellant if the suspension were lifted at this stage. Barniville allowed the appellant’s appeal and refused the respondent’s application to lift the suspension.

Appeal allowed.

Approved Judgment

No Redaction Needed

JUDGMENT of Mr. Justice David Barniville delivered on the 12 ^th day of November, 2021

Index

1. Introduction	2
2. The Parties	2
3. The Competition/Tender Process	3
4. The Proceedings/ Automatic Suspension	5
5. Application to Lift Automatic Suspension	7
6. Application to Lift Automatic Suspension: The Relevant Test	16
7. The Judgment of the High Court	19
8. The Appeal	28
9. The Approach of this Court on Appeal	28
10. The Issues to be Decided on the Appeal	30
11. Summary of Conclusions	49

1. Introduction

1 . This is my judgment on an appeal by the applicant/appellant, Word Perfect Translation Services Limited (the “appellant”), from the judgment and order of the High Court (McDonald J.) delivered and made on 23 September, 2021. In the judgment and order under appeal, the High Court granted an application by the respondent, the Minister for Public Expenditure and Reform (the “respondent”), for an order pursuant to Regulation 8A of the European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 (S.I. No. 130 of 2010) (the “2010 Regulations”), as inserted by the European Communities (Public Authorities' Contracts) (Review Procedures) (Amendments) Regulations 2015 (S.I. No. 192 of 2015) (the “2015 Regulations”) and as amended by the European Communities (Public Authorities' Contracts) (Review Procedures) (Amendment) Regulations 2017 (S.I. No. 327 of 2017) (the “2017 Regulations”) (together the “Remedies Regulations”) permitting the respondent to conclude a Multi-Supplier Framework Agreement for the provision of Irish Language Translation Services (the “Framework Agreement”). The effect of the judgment and order under appeal was that the automatic suspension which arose under Regulation 8(2) of the Remedies Regulations and which prevented the respondent for entering into the Framework Agreement with tenderers who had successfully tendered under the relevant competition was lifted. The High Court placed a stay on its order permitting the respondent to enter into a Framework Agreement with those tenderers. That stay lasted until 15 October, 2021. The appellant immediately appealed to this Court. The stay was not renewed after the 15 October, 2021 but was re-imposed by this Court at the conclusion of the hearing of the appeal on 27 October, 2021 on certain terms.

2. The Parties

2 . The appellant is an Irish company which provides translation and interpretation services throughout the State to both public and private sector clients. The majority of its business appears to consist of work for public sector clients. The appellant has competed over many years in various public sector tender competitions. It is a small enterprise with an annual turnover of less than €5m. Its public sector clients include the Irish Naturalisation and Immigration Service, the Refugee Application Commissioners (Irish Protection Office), the Refugee Appeals Tribunal (Irish Protection Appeals Tribunal) and Immigration Border Control, the Department of Justice, the Irish Refugee Protection Programme and Office of Promotion and Migration, the Department of Social Protection, the Probation Service, An Garda Síochána and the HSE.

3 . The respondent is the contracting authority in the competition the subject of the proceedings. The Office of Government Procurement (the “OGP”) is an office within the Department of Public Expenditure and Reform which is tasked with sourcing goods and services on behalf of the public service. The OGP has oversight of the conduct of the tender process the subject of the proceedings.

3. The Competition/Tender Process

4 . Following the publication of the required contract notice, on 15 May 2021, the respondent, acting through the OGP, published a Request for Tenders dated 12 May, 2021 to establish a “Multi Supplier Framework Agreement for the Provision of Irish Language Translation Services (the “RFT”)” on the eTenders website. The respondent is to be the contracting authority under the proposed Framework Agreement and under the contracts to be allocated to successful tenderers under the framework (the “2021 Framework”). The RFT invited tenders from economic operators for appointment to the 2021 Framework for the provision of certain Irish language translation services which, in summary, were described in the RFT as “reliable and high quality Irish language translation services for Framework Clients as and when required”. The services were described in more detail in Appendix 1 to the RFT. The “Framework Clients” were described at para. 1.4 as comprising the respondent as well as the following:

• “1. Ministers of the Government of Ireland, Central Government Departments, offices and non-commercial Agencies and Organisations which have a formal reporting and legal relationship to Central Government Departments, including all local authorities in Ireland (themselves including regional assemblies, local enterprise boards and library bodies);

• 2. Entities in the Irish health sector including but not limited to the Health Service Executive (HSE) and the Health Information and Quality Authority (HIQA), provided that such entities are contracting authorities within the meaning of Regulation 2 of the European Union (Award of Public Authority Contracts) Regulation 2016 (Statutory Instrument 284 of 2016);

• 3. Contract authorities which are Third Level Educational Institutions (including universities, technical universities, institutes of technology and members of...