The High Court has ordered Sere Holding Limited to pay the Health Service Executive’s full costs after dismissing Sere’s challenge to an air ambulance tender. Notice party IAS Medical Limited will receive a narrower award covering its application to join the case, affidavit work and overnight hearing transcripts and their review.
The costs decision followed the court’s principal judgment of 10 February 2023, which found for the HSE on the key question of how the tender services should be interpreted. The court had concluded that those services included transporting organs and organ retrieval teams. Sere later decided it did not require a reserved judgment on whether the HSE had verified that IAS met the selection criteria, so that issue was not determined.
Sere argued that the HSE’s costs should be reduced because the tender documents and the HSE’s early correspondence were unclear, because the HSE had not expressly confirmed that it considered mediation, and because Sere said it had been misled about whether the contract would be signed. The court rejected those grounds. It found that the tender documents were sufficiently clear and that there was no evidence that earlier clarification from the HSE would have changed Sere’s decision to continue the case or reduced costs.
The judge was satisfied that the HSE had seriously considered resolving the dispute. The court also noted evidence of without-prejudice communications after proceedings began and that Sere had provided no evidence of its own efforts to resolve the dispute.
The judgment recounted correspondence in April 2021 about the standstill period and the contract. However, the court made no finding on whether the HSE had intentionally or innocently misled Sere: the allegation was not pleaded, and the solicitors involved gave no oral evidence. The court also considered that even if Sere had obtained an automatic suspension, the principal judgment would still have found that IAS satisfied the selection criteria. It found no basis to reduce the HSE’s costs.
IAS sought its full costs, citing its commercial interests and reputational concerns. The court said the HSE had adequately defended its own legal interests and that IAS’s participation at the hearing largely supplemented that defence. It awarded IAS costs for joining and preparing affidavits because IAS provided relevant specialist evidence unavailable to the HSE. It also allowed costs for overnight transcripts and their review in this Commercial Court case. The court declined to award IAS the costs of full representation at the hearing.