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

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 09 June 2022
• Neutral Citation: [2022] IECA 131
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2022/32

Between

Word Perfect Translation Services Limited

Appellant

and

The Minister for Public Expenditure and Reform

Respondent

[2022] IECA 131

Donnelly J.

Faherty J.

Barniville J.

Court of Appeal Record Number: 2022/32

THE COURT OF APPEAL

CIVIL

Standing – Eligible person – Request for tender – Appellant appealing from a decision dismissing the appellant’s challenge to a decision made by the respondent – Whether the appellant had standing to maintain its challenge

Facts: The appellant, Word Perfect Translation Services Ltd (Word Perfect), appealed to the Court of Appeal from a decision of the High Court (Twomey J), in a judgment given on 2 February 2022 ([2022] IEHC 54), dismissing Word Perfect’s challenge to a decision made by the respondent, the Minister for Public Expenditure and Reform, through the Office of Government Procurement, to adopt and publish on 15 May 2021 a Request for Tender, 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 High Court dismissed Word Perfect’s challenge on the ground that it did not have standing to bring the proceedings, as it had not submitted a tender in response to the RFT. The judge decided that Word Perfect was not an “eligible person” within the meaning of that term in Regulation 4 of the Remedies Regulations, which transposed into Irish law the EU Remedies Directive and so was not entitled to bring the proceedings challenging the impugned decision under Regulation 8(1) of those Regulations. Word Perfect maintained that the judge was wrong to identify a general rule that, in order to have standing to challenge a decision such as the decision at issue, it is necessary for an applicant to have submitted a tender unless certain exceptions apply. On the other hand, the respondent maintained that the judge correctly interpreted the cases and applied the principles to be derived from them properly in holding that, in order to have standing to challenge the decision, Word Perfect was required to have submitted a tender, did not do so and did not, and could not, rely on any exception to the general rule.

Held by Barniville J that the judge was correct in his interpretation of Regulation 4 of the Remedies Regulations, which he derived from a well-established line of authority from the CJEU, including cases such as Case C-230/02 Grossmann Air Service v Republik Österreich [2004] ECRI-1829, as applied by the High Court (Hogan J) in Copymoore Ltd & Ors v Commissioners of Public Works in Ireland [2013] IEHC 230 and in a number of subsequent judgments of the High Court, and most recently by the CJEU in Case C-328/17 Amt Azienda Trasporti e Mobilità SpA v. v AtplLiguria. Barniville J was satisfied that the judge was correct in his application of that interpretation to the facts as agreed and found by him. Barniville J was satisfied that the judge correctly decided that Word Perfect was not an “eligible person” and did not have standing to maintain its challenge to the relevant decision on the ground that it could have submitted but did not submit a tender in response to the RFT and did not and could not rely on any of the potentially relevant exceptions.

Barniville J dismissed Word Perfect’s appeal and affirmed the order of the High Court.

Appeal dismissed.

JUDGMENT of Mr. Justice David Barniville delivered on the 9 ^th day of June, 2022

Index

1. Introduction	2
2. Factual Background	4
3. Relevant Statutory and EU Legislative Provisions	9
4. The Judgment of the High Court	12
5. The Appeal	20
(a) Word Perfect's Position	20
(b) Respondent's Position	24
6. Analysis and Decision	28
(a) The Net Issue	28
(b) The Correct Approach to Determining Standing	28
(c) The Relevant Facts	29
(d) Article 1(3) Remedies Directive/Regulation 4 of the Remedies Regulations	30
(e) Consideration of Relevant Case Law: General Rule and Exceptions	31
(f) Principle of Legal Certainty	50
(g) Judge Not Legislating	51
(h) The Other Irish Cases	52
(i) Principles of Effectiveness and Equivalence	54
(j) Respondent's Failure to Raise Standing in a Different Case	55
(k) Significance of Tenderers' Statement	56
(l) New Point on Appeal: s.3 of European Communities Act 1972	56
7. Summary and Conclusion	56

1. Introduction

1 . This is an appeal by the appellant, Word Perfect Translation Services Limited (“Word Perfect” or the “appellant”), from a decision of the High Court (Twomey J.), in a judgment given on 2 February 2022 ( [2022] IEHC 54), dismissing Word Perfect's challenge to a decision made by the respondent, The Minister for Public Expenditure and Reform (the “Minister”), through the Office of Government Procurement (the “OGP”), to adopt and publish on 15 May 2021 a Request for Tender (“RFT”), 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 High Court dismissed Word Perfect's challenge on the ground that it did not have standing to bring the proceedings, as it had not submitted a tender in response to the RFT. The judge decided that Word Perfect was not an “ eligible person” within the meaning of that term in Regulation 4 of the Remedies Regulations, which transposed into Irish law the EU Remedies Directive (described in more detail below) and so was not entitled to bring the proceedings challenging the impugned decision under Regulation 8(1) of those Regulations.

2 . Word Perfect had sought to challenge the decision to issue the RFT on several substantive grounds. The judge heard the parties' submissions on all of those grounds over the course of a four-day hearing in the High Court. The judge was persuaded by the respondent that, for various reasons, including the urgency of the matter, from the respondent's perspective at least, and as there were no facts in dispute, he should decide the standing issue first, in advance of deciding the substantive issues in the case. The judge gave judgment on 2 February 2022 ( [2022] IEHC 54) and decided that Word Perfect was not an “ eligible person” within the meaning of that term in the Remedies Regulations and did not, therefore, have standing to bring the proceedings, in circumstances where it had not submitted a tender in response to the RFT and where there were no exceptional circumstances in which, in effect, its failure to submit a tender could be overlooked. The High Court then made an order on 9 February 2022 giving effect to the judgment and refusing the reliefs sought by Word Perfect in the proceedings.

3 . Word Perfect immediately appealed to this Court. The appeal was opposed by the respondent. While the automatic suspension of the entitlement of the respondent to conclude a framework agreement with successful tenderers under the competition lapsed on the making of the order by the High Court, the respondent undertook not to conclude any contract until the determination of the appeal.

4 . The appeal involves a net issue, namely, whether Word Perfect was and is an “ eligible person” within the meaning of that term in Regulation 4 of the Remedies Regulations, such that it had and has standing to maintain its challenge to the decision to issue and adopt the RFT. There are a number of judgments of the CJEU and of the Irish courts which are relevant to the resolution of the net issue. The judge considered and applied the principles derived from those judgments in the judgment under appeal. However, Word Perfect contends that the judge misunderstood and misapplied those judgments. It maintains that the judge was wrong to identify a general rule that, in order to have standing to challenge a decision such as the decision at issue in this case, it is necessary for an applicant to have submitted a tender unless certain exceptions apply. On the other hand, the respondent maintains that the judge correctly interpreted the cases and applied the principles to be derived from them properly in holding that, in order to have standing to challenge the decision, Word Perfect was required to have submitted a tender, did not do so and did not, and could not, rely on any exception to the general rule. That, in a nutshell, is the issue which arises on this appeal.

5 . For the reasons set out in this judgment, I am satisfied that the judge correctly applied the principles set out in the CJEU judgments and in the Irish cases and correctly decided that Word Perfect was not an “ eligible person” and did not have standing to maintain its challenge to the relevant decision on the ground that it could have submitted but did not submit a tender in response to the RFT and did not and could not rely on any of the potentially relevant exceptions.

2. Factual Background

6 . The relevant facts are not in dispute. They were set out in some detail in my judgment for the Court in Word Perfect's appeal from the decision of the High Court to lift the automatic suspension which arose under Regulation 8(2) of the Remedies Regulations, which prevented the respondent from entering into the framework agreement with those operators who had successfully tendered in response to the RFT. In a judgment for the Court delivered on 12 November 2021 ( [2021] IECA 305), I allowed Word Perfect's appeal and decided that the automatic suspension should remain in place until the conclusion of the trial, with the continuation of the suspension thereafter being a matter for the trial judge. In the course of that judgment, I outlined in some detail the reasons for the tender process commenced by the publication of the RFT on 15 May 2021, the terms of the competition and the challenge to the competition...