The Court of Appeal has dismissed Loc8 Code Limited’s appeal against the striking out of its proceedings over the contract to develop and manage Ireland’s National Postcode System, known as Eircode.
In a judgment delivered on 30 September 2024, Mr Justice Allen, with whom Justices Meenan and O’Moore agreed, affirmed the High Court order striking out the action against the Department of Environment, Climate Support and Communications, Capita Business Support Services Ireland Limited and An Post.
Loc8 Code had issued proceedings in 2022 claiming damages for conspiracy and seeking injunctions relating to Capita’s operation of Eircode and a possible extension of its licence. The company maintained that its case was based on conspiracy, not a challenge under public procurement law. The Court of Appeal found that the substance of the pleaded claim was that Loc8 Code had been wrongfully excluded from the tender process and that the contract awarded to Capita was unlawful.
The tender process began in 2011. Capita was awarded a ten-year contract in December 2013, with an option to renew for a further five years. Loc8 Code alleged, among other things, that the pre-qualification process imposed an annual turnover requirement that prevented smaller companies from tendering. The Department disputed that account. The appeal court expressed no view on whether the alleged requirement existed.
The company also pleaded that a decision in 2013 allowed the postcode system to be used for purposes beyond those described in tender documents, and said it first learned of that decision in 2018. The court said that, even on that account, the claim concerned an alleged infringement of public procurement rules and had not been brought within the applicable time limit. It rejected the use of a conspiracy claim to get around those limits.
The High Court had struck out the proceedings in December 2023, finding that the core claim was an out-of-time public procurement challenge. On appeal, Loc8 Code argued that the case could be amended or clarified. The Court of Appeal said the High Court had dealt with the motions on the pleadings as they stood, with the appellant’s agreement, and that the fundamental defect could not be cured by amendment.
The court did not determine disputed factual allegations or decide whether the alleged procurement irregularities occurred. It dismissed the appeal and affirmed the strike-out order. Because the respondents succeeded, they were presumptively entitled to costs, but Loc8 Code was allowed 14 days to make a written submission seeking a different costs order; the respondents could then reply within 14 days.