Atlantic Endeavour Ltd and SMBR Ltd v Office of Public Works (“OPW”) [2025] IEHC 324 addressed the complex issue of assessing the adequacy of damages in an application to lift an automatic suspension, in light of the nature of Francovich damages, which require a tenderer to establish that there is a “sufficiently serious” breach of public procurement law.

The OPW held a competition described as a services concession to allocate landing permits at Skellig Michael. Successful tenderers were to sign a form of contract attached to the tender documents and to be granted landing permits for the 2025 season. Two unsuccessful tenderers challenged the outcome of the competition, which triggered an automatic suspension of conclusion of the contracts.

The High Court lifted the automatic suspension, finding that the balance of justice lay in favour of refusing its continuation. The Court found that the contract only related to the grant of a landing permit for the 2025 season, not for further seasons, as argued by the unsuccessful tenderers. The unsuccessful tenderers were prepared to confine their claim in respect of the 2025 landing season to a claim for damages, subject to receiving a suitably worded admission from the OPW in respect of the legal test for Francovich damages.

The purpose of such an admission was to address the concerns identified in Word Perfect [2018] IECA 35, where it was observed that the “highly restrained” nature of Francovich damages undermined their adequacy as an alternative remedy to an interlocutory injunction (the test for which is used in assessing whether an automatic suspension should remain in place or be lifted). The High Court noted the recent judgment of the Court of Appeal in England and Wales in Braceurself Ltd v NHS England [2023] EWCA Civ 837 where an automatic suspension was lifted on the basis that damages would be an adequate remedy for the unsuccessful tenderer. At trial, the unsuccessful tenderer did establish that there had been errors in marking the tenders and that it should have won the competition. However, the unsuccessful tenderer was refused damages on the basis that the breach of EU law was not “sufficiently serious”.

In this application, the OPW was prepared to offer an admission that, if the unsuccessful tenderers established a breach of EU procurement law at trial, it would be treated as meeting the “sufficiently serious” threshold required to award Francovich damages. The High Court was satisfied that the form of admission (which is set out in the judgment) was enough to ensure that a remedy in damages would be an effective remedy. The fact that the OPW reserved its rights in relation to matters such as proof of damage and causation did not undermine the value of the admission. The substantive action will be heard in July 2025.