The Court of Appeal would allow Word Perfect Translation Services Ltd.’s appeal against an order lifting the suspension of a State translation contract award, finding that damages had not been shown to be an adequate remedy. The judgment, delivered by Mr Justice Gerard Hogan on 14 February 2018, required Word Perfect to pursue its underlying High Court challenge urgently. It did not decide whether the award itself was unlawful.
The dispute concerns a 12-month contract to provide interpretation services to State immigration bodies and the Legal Aid Board. After an earlier tender was cancelled, the Office of Government Procurement ran a new mini-tender. In April 2017 it notified bidders that Translation.ie was the preferred bidder. Word Perfect then brought High Court proceedings challenging the proposed award.
The Minister applied to lift the automatic suspension that prevented the contract from being concluded while the challenge was pending. The High Court granted that application. Word Perfect appealed. It argued that the suspension should remain in place because the procurement challenge raised serious issues and damages would not adequately address the harm to its business. The Minister relied on alleged service and security problems under Word Perfect’s existing ad hoc arrangements and the public interest in securing reliable interpretation services. The parties disputed the extent and seriousness of those complaints.
The appeal court considered the rules governing applications to lift an automatic suspension. It concluded that damages available under the 2010 Regulations were limited to the EU law remedy known as Francovich damages, which requires more than proof of an error causing loss. Given that restriction, the court said damages had not been shown to be adequate if Word Perfect ultimately established a breach of procurement rules.
The judgment weighed that against the public interest in effective interpretation services and the concerns raised about the existing arrangements. It also considered the potential effect on Word Perfect, including its ability to retain specialist interpreters for rare languages. The court described the competing considerations as finely balanced, but found that keeping the standstill in place was necessary to preserve an effective remedy while the main case proceeded.
Mr Justice Hogan said he would have granted an interlocutory injunction on the hypothetical basis required by the regulations. He would therefore allow the appeal and refuse the Minister’s request to lift the suspension and conclude the contract with the successful tenderer. This was the judgment’s proposed disposition; the supplied text records no separate final order of the court.
As a condition, the judgment required Word Perfect to undertake to prosecute its High Court proceedings urgently and without further delay. It proposed that the case be listed before the Commercial List judge within two weeks, with Word Perfect ready for trial and prepared to accept a hearing date from 10 April 2018 onwards, or an earlier date set by the High Court.