Appeal court overturns decision lifting suspension of translation service contract

The suspension came into effect after a company which has been supplying interpreters for several years, Word Perfect Translation Service Ltd, brought a legal action against the Minister for Pubic Expenditure and Reform challenging the integrity of the award process.

The Minister applied to have the suspension lifted and last month the High Court's Mr Justice Seamus Noonan granted the Minister an order lifting it.

Today, Mr Justice Gerard Hogan, in a unanimous decision on behalf of the three-judge Court of Appeal, overturned the High Court ruling.

He said damages would not be an adequate remedy for Word Perfect should it win its main challenge to the procurement process which led to the contract being awarded to another company.

Mr Justice Hogan said if Word Perfect was to lose its business, there seems little doubt but that it would hamper its ability to retain specialist employees who can translate rare languages such as Farsi, Albanian and Ga.

Irrespective of whether Word Perfect's director, Agim Gashi, raised this concern somewhat belatedly, there must be "a real risk of significant reputational damage to the company which might possibly prove to be terminal".

These competing factors are admittedly rather finely balanced on both sides, he said.

In this context, the fact that damages have not been shown to be an adequate remedy (should Word Perfect win its main case), this has an important and perhaps even a decisive impact on the appeal, he said.

The right to an effective remedy is a constitutional fundamental, he said.

In this case, the adherence to a "standstill clause", whereby the awarding of the contract is put on hold pending the legal proceedings, is in reality the only real remedy Word Perfect has, he said.

If that protection was lifted, Word Perfect would enjoy no real remedy even it the case went to full trial and a material breach of the public procurement regime, under which the contract was awarded, was established.

Therefore damages would not be an adequate remedy.

Mr Justice Hogan said it was a condition of the appeal court decision that there would be an undertaking by Word Perfect to prosecute its main proceedings in the High Court without any further delay.

Word Perfect was unsuccessful in its tender under a supplemental request for tenders for a 12 month contract in 2016. After it indicated it intended to bring a legal challenge to that process, the Office of Government Procurement (OGP) decided the process was flawed and cancelled it.

The OGP started a new supplemental request process and again Word Perfect was unsuccessful. A company called Translation.ie was the preferred bidder.

Word Perfect then brought it High Court challenge claiming, among other things, there was manifest error in a number of areas, a failure to give adequate reasons. It also expressed concerns about the integrity and transparency of the process.

Under EU Remedies Regulations, once such a challenge is brought, it acts as an automatic suspension on the awarding of the contract pending determination of the matter by the court.

Word Perfect argue if the suspension of the awarding of the contract was lifted, he said, more than 100 interpreters would become redundant the company would go out of business. Among the positions that would be affected were rare language interpreters.