The High Court has refused competing applications for interlocutory relief in a dispute between the Health Service Executive and Eamon Keogh, trading as Keogh Software, over support for software used at about 180 sites. It also stayed issues arising from the HSE’s amendment to its claim until the source code escrow agreements’ dispute procedures are completed.
The HSE had initially sought orders compelling Keogh to maintain and support software systems used in areas including radiology, accident and emergency, hospital billing and environmental health. An interim injunction requiring support was granted on 12 June 2009 and continued. Keogh disputed that he had stopped providing services, though he acknowledged threatening to do so. He said the HSE’s alleged contractual breaches entitled him to withdraw support.
The judge refused the HSE’s request for continuing support orders, finding they would serve no useful purpose and would be difficult for the court to supervise. The judgment noted that Keogh had made all 14 staff members who had serviced the HSE account redundant on 29 May. His son, Conall Keogh, provided the services required by the interim order. The defendant had undertaken to continue doing so until judgment.
The HSE then pursued temporary release of software source code held by NCC Escrow International Limited. The escrow agreements provide for an independent expert to decide whether a release event occurred. The HSE relied on Keogh having ceased to carry on business; Keogh disputed that a valid release event had occurred. The court noted that the expert procedure was designed to reach a decision quickly and protect the parties’ interests. It also observed that NCC, which holds the code and is responsible for releasing it under the agreements, was not before the court.
The judge allowed amendments to the HSE’s claim and motion, but refused to order temporary release of the codes, concluding there was no good reason to depart from the agreed expert process. The court also refused Keogh’s cross-application, which sought orders including payment of disputed invoices and suspension of the expert determination process. The judgment did not resolve the underlying factual disputes or decide whether a release event had occurred. The issues arising from the amendment to the claim were stayed pending completion of the escrow procedures.