CAF v Iarnród Éireann: Automatic Procurement Suspensions, Time‑Limited EU Funding and the “Balance of Justice” Test

1. Introduction

The decision of Twomey J. in Construcciones y Auxiliar de Ferrocarriles S.A. v Iarnród Éireann – Irish Rail & Anor [2025] IEHC 645 is a significant addition to the Irish jurisprudence on public procurement remedies, and in particular on applications to lift the automatic suspension that follows when a disappointed tenderer brings proceedings under the EU “Remedies” regime.

At the heart of the case lies a cross‑border, EU‑funded rail project: the replacement of the ageing Enterprise Service fleet on the Dublin–Belfast line. The contract at issue, worth a total of €650 million, concerns the purchase and maintenance of new trainsets and associated infrastructure. EU funding of €165 million under the PEACEPLUS Programme is contingent on delivery milestones by 31 December 2029.

When CAF (Construcciones y Auxiliar de Ferrocarriles S.A.), the losing tenderer, commenced judicial review proceedings challenging the lawfulness of the procurement, the automatic suspension under the European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010 (“Remedies Regulations”) prevented Iarnród Éireann and Northern Ireland Railways (collectively “IR/NI Rail”) from signing contracts with the winning tenderer, Stadler Rail Schweiz AG (“Stadler”).

IR/NI Rail urgently applied to lift the automatic suspension, arguing that if the contracts were not signed by 30 November 2025, Stadler’s production slots would be lost, the trains could not be delivered by the immovable EU programme deadline of 31 December 2029, and the €165 million EU contribution would be lost, effectively extinguishing the project in its current form.

The judgment is noteworthy for three inter‑linked reasons:

• It emphasises that in automatic suspension cases the court must treat the position as if no suspension existed, placing the onus squarely on the challenger to justify continued suspension.
• It treats the risk of extinguishment of the contract (rather than mere delay) and the associated loss of substantial, time‑limited EU funding as determinative factors on the “balance of justice”.
• It clarifies the limited role of arguments about the “inadequacy of damages” in public law procurement challenges and underscores the importance of the challenger’s undertaking as to damages.

2. Factual and Procedural Background

2.1 The Enterprise Service and the Project

• The Enterprise Service is a joint venture intercity rail service between Dublin and Belfast operated by Iarnród Éireann and Northern Ireland Railways.
• The current Enterprise fleet consists of four trainsets, in service since 1996, nearing the end of design life at end‑2027, and increasingly costly, polluting, and inaccessible by modern standards.
• IR/NI Rail developed the Enterprise Strategic Development Plan (2018) to enhance the service, including fleet replacement and associated infrastructure works under the Enterprise Fleet Replacement Project (“EFRP”).

To fund the EFRP, IR/NI Rail sought €165 million under the EU’s PEACEPLUS Programme, administered by the Special EU Programmes Body (“SEUPB”). A formal Letter of Offer issued on 10 July 2024, originally linked to the purchase and maintenance of eight new trainsets, with a hard cut‑off date of 31 December 2029 for defraying eligible costs.

2.2 The Procurement Process

• Call for competition: published in September 2023.
• Expressions of interest: four received; three shortlisted; one later withdrew, leaving CAF and Stadler.
• Invitations to Negotiate issued in May 2024.
• Tenders received: 10 April 2025. Neither tenderer could deliver eight trains by 31 December 2029.

Faced with this, IR/NI Rail entered negotiations with SEUPB in May 2025, seeking to revise the requirement to an initial delivery of four trains by 31 December 2029 (with further sets and infrastructure works to follow). IR/NI Rail asserted, based on past dealings with SEUPB, that SEUPB would likely accept this “major programme modification”, though no written confirmation had yet issued.

On 10 July 2025, Stadler was identified as the Most Economically Advantageous Tenderer (MEAT). Following a “Best and Final Offer” (BAFO) process, Stadler confirmed that it could deliver four trains by 31 December 2029, but only if the contracts were concluded by 30 November 2025, to secure production slots.

CAF, the only other remaining tenderer, was notified of the award decision on 18 September 2025. On 17 October 2025, CAF issued proceedings challenging the legality of the tender process, thereby triggering the automatic suspension under Regulation 8 of the Remedies Regulations, which prohibits the contracting entity from concluding the contract until the High Court lifts the suspension or the proceedings end.

2.3 The Urgent Application to Lift the Automatic Suspension

IR/NI Rail applied on 28 October 2025 to lift the automatic suspension so that it could sign the contracts with Stadler by 30 November 2025. The matter was heard in a day‑long hearing on 18 November 2025. The urgency stemmed from:

• Evidence from Stadler that production slots and the 31 December 2029 delivery commitment depended on contracts being signed by 30 November 2025.
• The immovability of the EU funding deadline: under the Letter of Offer, any costs not defrayed by 31 December 2029 would be ineligible, and no project lifetime extension was permissible beyond the programme end date.
• The risk, as IR/NI Rail asserted, that failure to sign in time would mean the EFRP would not proceed at all and the €165 million EU funding would be lost.

Given the time pressure, IR/NI Rail (for the purposes of this interlocutory application only) conceded that CAF’s challenge raised a “fair issue to be tried”. Thus, the court’s task was confined to deciding whether, on the balance of justice, the suspension should be maintained or lifted.

3. Summary of the High Court’s Decision

The High Court lifted the automatic suspension with immediate effect.

Twomey J. held that:

• The correct approach in automatic suspension cases is to treat the position as if no suspension had been granted and to place the onus on the applicant (CAF) to justify the continuation of what is, in substance, an interlocutory injunction.
• Although there was a fair issue to be tried concerning the alleged unlawfulness of the procurement (including with respect to the BAFO process and changes from eight to four trains), the strength of CAF’s case could not meaningfully be assessed at this interlocutory stage and thus did not weigh significantly in the balance.
• The decisive factor was the evidence that, if the suspension were not lifted:
  • the contracts with Stadler were unlikely ever to be signed (not merely delayed), because Stadler could not commit to delivery in time to secure EU funding, and
  • as a result, there was a real likelihood that the €165 million EU funding would be lost and the EFRP would not proceed in its current form.
• CAF’s refusal to give an undertaking in damages to cover any loss of the EU funding (offering instead only to cover additional costs of maintaining the current service) underscored the magnitude and real risk of that loss and supported lifting the suspension.
• In light of Okunade and subsequent case law, arguments about the “inadequacy of damages” for CAF carried , and the court was satisfied that damages for loss of chance and related loss could, in principle, be assessed.
• Public interest considerations – including avoiding the loss of substantial EU funding, advancing decarbonisation through lower‑emission trains, and improving accessibility for disabled passengers – further tilted the balance towards lifting the suspension.
• The “status quo” for the purpose of interlocutory relief is properly understood as the position without a suspension; continuing the automatic suspension is itself an alteration of that status quo.

Accordingly, the court concluded that lifting the suspension “leads to the least risk of injustice to the parties” and allowed IR/NI Rail to proceed to contract signature with Stadler.

4. Legal and Regulatory Framework

4.1 Remedies Regulations and Automatic Suspension

The proceedings were brought under:

• the European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010 (S.I. No. 131/2010), as amended (“Remedies Regulations”), and
• Order 84A of the Rules of the Superior Courts.

These instruments transpose and implement Council Directive 92/13/EEC (Utilities Remedies Directive), as amended by Directive 2007/66/EC, into Irish law. Central to this framework are:

• Regulation 8(1)(b): confers on a disappointed tenderer the right to seek review of a contract award decision.
• Regulation 8(2): provides that, where such proceedings are instituted, the contracting entity “shall not conclude the contract” until the High Court lifts the suspension or the proceedings are otherwise disposed of.

This is the so‑called “automatic suspension”—often described, as Twomey J. remarks, as an “injunction for the asking”, because it is triggered merely by issuing proceedings, regardless of their merits.

4.2 Interim Relief in Public Law: The Okunade Test

In Okunade v Minister for Justice [2012] IESC 49, Clarke J. established the general test for interim relief in judicial review/public law proceedings:

• First, the applicant must show a arguable case / fair issue to be tried.
• Second, the court must adopt a “risk of injustice” approach, asking what interim order best minimises the overall risk of injustice pending trial.
• In that assessment, the court considers various factors (public interest, orderly implementation of prima facie valid measures, etc.). The “adequacy of damages” is often less central than in private law disputes.

Twomey J. re‑casts this as the “balance of justice” rather than the more traditional “balance of convenience”, emphasising that the court’s task is to reduce to the greatest extent possible the risk of injustice to all parties pending final determination.

4.3 Automatic Suspension and Onus of Proof

The Court of Appeal in Word Perfect v Minister for Public Expenditure and Reform [2021] IECA 305 and in CHC Ireland DAC v Minister for Transport [2023] IECA 229 clarified two crucial points which Twomey J. applies:

• The court must approach automatic suspension cases as if no suspension existed; the fact that a suspension operates “automatically” is irrelevant to the substantive test.
• The onus lies on the applicant challenging the award (here, CAF) to justify the continuation of what is, in substance, injunctive relief; otherwise, the suspension should be lifted.

These points underpin the entire analysis in this case: CAF must show that the balance of justice favours granting (i.e., continuing) what is effectively an injunction.

5. Precedents and Authorities Cited

5.1 Okunade v Minister for Justice

In Okunade, the Supreme Court articulated the modern Irish approach to interim relief in public law:

• Recognising that the court must decide on temporary arrangements without knowing the ultimate outcome, Clarke J. held that the court should put in place a regime that minimises the overall risk of injustice.
• He notably stated that “the court must, in all cases, act so as to minimise the risk of injustice.”

Twomey J. explicitly invokes this formulation and uses it to justify his preference for the term “balance of justice” over “balance of convenience”, underscoring that “justice” – or more accurately, avoiding injustice – is the central criterion.

5.2 Word Perfect v Minister for Public Expenditure and Reform

Word Perfect is pivotal to two strands of the judgment:

1. Onus and Approach to Automatic Suspension Barniville J. held that in applying to lift an automatic suspension:
   • the court proceeds as if the suspension had not been granted automatically;
   • the applicant (disappointed bidder) bears the onus of showing that an interlocutory injunction should be granted, i.e. that the suspension should continue.
2. Adequacy of Damages The Court of Appeal in Word Perfect found that, in that particular case, the complexity of the procurement structure and the multiple ways in which alleged illegality might have affected outcomes made it extremely difficult to quantify damages. That complexity was a key reason for maintaining the suspension in that case.

Twomey J. follows the first point rigidly: CAF must justify the suspension. On the second point, he distinguishes the present case from Word Perfect, emphasising that:

• the contract here (two inter‑related contracts for supply and maintenance) is relatively more self‑contained;
• the extinguishment risk and loss of funding is the dominant factor, unlike the multi‑lot, multi‑variable structure in Word Perfect.

He also references a subsequent Court of Appeal decision in Word Perfect [2023] IECA 189, which stressed that parties should adopt a “broad‑brush” approach to costs and avoid “costly ‘nit‑picking’”, when explaining his case‑management directions on costs.

5.3 CHC Ireland DAC v Minister for Transport

CHC Ireland DAC v Minister for Transport [2023] IECA 229 is cited for two key propositions:

• The court must start “as if no automatic suspension had occurred”; the applicant must effectively earn the continuation of the suspension.
• Costello J. explained that the status quo in such cases is the position without a suspension. Therefore, maintaining the suspension is an alteration of the status quo, and where issues are finely balanced, the contracting authority’s position (i.e. lifting the suspension) is to be preferred.

Twomey J. relies on this to reject CAF’s argument that the existing suspension should be preserved merely because it already operates.

5.4 Powerteam Electrical Services v ESB

In Powerteam Electrical Services v ESB [2016] IEHC 87, Costello J. confirmed that when deciding whether to lift a suspension, the court may have regard to:

• the effect of the suspension on the commercial interests of the successful tenderer, and
• the possibility of awarding damages to a disappointed tenderer for loss of chance, and the courts’ capacity to quantify such damages.

Twomey J. uses Powerteam to:

• justify taking into account the fact that continuation of the suspension would likely extinguish Stadler’s contract, not merely delay it, causing greater injustice;
• rebut CAF’s argument that difficulties in calculating “loss of chance” or reputational benefits render damages inadequate.

5.5 BAM PPP v NTMA

In BAM PPP PGGM Infrastructure Cooperatie U.A. v National Treasury Management Agency [2015] IEHC 75, Barrett J. emphasised:

• the court’s ability to assess reputational damage claims is limited, and
• in procurement, losing and winning contracts is a normal commercial risk (“you win some, you lose some”).

Twomey J. builds on this to dismiss CAF’s contentions that the difficulty of valuing reputational and strategic benefits makes damages inadequate.

5.6 Homecare Medical Supplies v HSE

In Homecare Medical Supplies Unlimited Company v HSE [2018] IEHC 55, Barniville J. held that an applicant’s failure to offer a full, unqualified undertaking as to damages is a factor that may favour lifting the suspension. The contracting authority should not be forced to bear significant unprotected risk.

Twomey J. applies this reasoning directly: CAF’s undertaking was limited to additional operational costs of maintaining the current Enterprise service, and any loss of EU funding. This omission is treated as a significant factor weighing in favour of lifting the suspension.

5.7 Merck Sharp & Dohme and American Cyanamid

Twomey J. cites Merck Sharp & Dohme Corporation v Clonmel Healthcare Limited [2019] IESC 65 (which in turn cites American Cyanamid v Ethicon [1975] A.C. 396) for the proposition that:

• in most litigation, some element of damage will be hard to quantify, yet this does not generally render damages “inadequate” in the legal sense;
• difficulty in quantification is therefore usually not decisive when considering interim relief.

This supports the court’s rejection of CAF’s “inadequate damages” arguments.

5.8 Francovich and State Liability

The court notes that IR/NI Rail have undertaken that, if CAF ultimately succeeds, any breaches found can be considered “sufficiently serious” to satisfy the Francovich criteria, enabling the award of damages under EU state liability principles (Joined Cases C‑6/89 and C‑9/90). This pre‑empts any contention that high thresholds for EU‑law damages would render compensation practically unavailable.

6. The Court’s Legal Reasoning

6.1 Framing the Issue: The “Balance of Justice” and Onus on CAF

The starting point was undisputed: IR/NI Rail accepted that CAF’s complaints about the procurement raised a fair issue to be tried. Thus, the central question was:

Does the balance of justice favour granting CAF the effective injunction of continued suspension, or lifting the suspension to allow the contract with Stadler to be concluded?

Following Word Perfect and CHC, Twomey J. emphasises:

• the automatic nature of the suspension is legally irrelevant to the test;
• CAF, as the party seeking the benefit of an injunction, bears the onus to satisfy the court that continuation of the suspension is justified.

The court consciously uses the language of the “balance of justice” (rather than “balance of convenience”), in line with Okunade, to stress that:

• the court must, on incomplete information, adopt the interim position that minimises the risk of injustice overall;
• “justice”, rather than mere “convenience”, is the governing consideration.

6.2 A Unique Feature: Extinguishment of the Contract and Loss of EU Funding

The single most important factor identified by the court is that, unlike the vast majority of procurement suspension cases, this was not a situation where refusing to lift the suspension would merely cause a delay in signing the contract. Instead:

• IR/NI Rail, supported by Stadler’s evidence, asserted that if the contracts were not signed by 30 November 2025:
  • Stadler’s production slots would be lost, and
  • Stadler could no longer commit to delivering four trains by 31 December 2029.
• Because the SEUPB’s programme end date is 31 December 2029, costs incurred after that date are ineligible, and SEUPB has made clear that no extension of the project lifetime beyond that date is permissible.
• IR/NI Rail stated that, in those circumstances, the procurement would likely collapse, the EFRP would not proceed, and the €165 million EU funding would be lost “for good”.

Twomey J. accepts this evidence as “informed opinion” rather than speculation, grounded in IR/NI Rail’s prior experience with SEUPB on similar cross‑border projects (the earlier Enterprise refurbishment and the Derry–Londonderry hub).

This leads to two linked conclusions:

1. Greater injustice than mere delay It would be a significantly greater injustice to IR/NI Rail and Stadler if the contract were extinguished (with attendant loss of major funding and project collapse) than if its signature were merely delayed. No comparable case was cited where non‑lifting of a suspension threatened the existence of the contract itself.
2. No direct benefit to CAF even if successful Even if CAF succeeds both in maintaining the suspension now and in winning at trial, the court observes that CAF is unlikely to obtain this contract because the funding and the project would probably no longer exist in this form. At best, CAF might participate in some future competition for a yet‑to‑be‑designed, differently funded project.

These factors “weigh heavily in the balance of justice” in favour of lifting the suspension. The court explicitly finds them determinative when set against other, more evenly balanced considerations.

6.3 Magnitude and Percentage of Funding; CAF’s Limited Undertaking

The court emphasises not only the absolute sum (€165 million) but also its proportionate significance: it constitutes approximately 25% of the overall €650 million project. This amplifies the gravity of the risk.

Critically, CAF:

• offered an undertaking in damages only in respect of “additional costs (if any) … incurred … in maintaining the current service provision” pending the litigation;
• deliberately chose not to undertake to compensate IR/NI Rail for any loss of the €165 million EU funding if the suspension were wrongly continued.

The court treats this as highly significant:

• It starkly illustrates that the potential loss is so large that CAF itself is unwilling to bear that risk.
• It reinforces that, on any realistic view, the continuation of the suspension carries a very substantial, uncompensated downside risk for IR/NI Rail and the public purse.
• Following Homecare Medical, the absence of a full undertaking as to damages is a factor that weighs in favour of lifting the suspension.

6.4 Uncertainty Around SEUPB’s Revised Acceptance of Four Trains

CAF argued that IR/NI Rail’s fears about losing EU funding were speculative, since:

• the original Letter of Offer concerned eight trains, not four;
• SEUPB had not yet issued written confirmation that delivery of four trains (plus certain infrastructure) by 31 December 2029 would suffice.

Twomey J. accepts that there is no 100% certainty but notes:

• there was always uncertainty about compliance with the eight‑train deadline because both bidders had already admitted they could not meet it;
• SEUPB’s deadline of 31 December 2029 is clearly immovable, and there is no evidence that reduced funding or alternative arrangements would remain available;
• Stadler’s evidence is that it can deliver four trains in time, but only if contracts are signed by 30 November 2025;
• IR/NI Rail’s expectation about SEUPB’s flexibility is grounded in prior dealings on similar cross‑border transport projects.

On that basis, the court characterises IR/NI Rail’s position as a considered, experience‑based assessment, not mere conjecture. The risk of losing the funding if the contract is not signed promptly is therefore real and substantial, and the risk that funding will be preserved if contracts are signed in time is likewise real.

6.5 The Merits of CAF’s Underlying Challenge

CAF advanced several substantive complaints about the lawfulness of the procurement, including:

• There should have been negative marking against Stadler for certain alleged failures to meet deadlines.
• Although CAF scored better on “Lead Time” (offering earlier delivery of the eighth train), it was marked down on “Project Delivery” because IR/NI Rail deemed its tender insufficiently detailed and less credible than Stadler’s.
• The tender documentation and competition were framed for eight trains, whereas the proposed contract with Stadler is for four trains, with a fundamentally different delivery profile (three trains together, then a fourth) compared with the original two‑by‑two delivery model. CAF was not invited into the BAFO negotiations that produced this new structure.
• CAF argued that these changes and exclusive negotiations with Stadler breached the EU principles of equal treatment and transparency, potentially requiring the competition to be re‑run.

IR/NI Rail’s response emphasised:

• The tender conditions (Conditions 11.3 and 11.4) expressly reserved a right to:
  • seek BAFOs from one or more tenderers,
  • enter into further negotiations with “one or more preferred bidders”, and
  • award the contract without further reference to other tenderers.
• IR/NI Rail’s evaluation panel considered Stadler’s bid more credible overall, particularly on project delivery detail and confidence in timelines.
• IR/NI Rail produced sworn evidence that even with negative marking on the disputed point, the overall outcome (Stadler as MEAT) would not have changed.

Twomey J. expressly refrains from deciding which view is correct at this interim stage. He accepts that:

• CAF’s case raises a fair issue to be tried, and
• the dispute involves complex factual and legal questions that cannot properly be resolved on affidavit.

In line with Okunade, he therefore does not place weight on the relative strength or weakness of CAF’s case in the balance of justice, because:

This is not a case where the merits are so clear‑cut that their strength or weakness can properly tip the balance at the interlocutory stage.

6.6 Public Interest Considerations

In procurement judicial review, Okunade requires the court to attach weight to:

• “the orderly implementation of measures which are prima facie valid”, and
• “any public interest in orderly operation of the particular scheme”.

Twomey J. identifies several public interest factors favouring lifting the suspension:

1. Orderly implementation of a prima facie valid procurement Until a court finds otherwise, the tender process must be treated as prima facie valid; allowing it to reach its natural conclusion through contract signature is, in itself, a public interest factor supporting lifting the suspension.
2. Efficient use of EU funds and taxpayer protection The €165 million PEACEPLUS funding is a major public resource for the island of Ireland. If it is lost, any replacement funding burden falls on national taxpayers, or the project may be curtailed. Avoiding unnecessary loss of that external funding is a clear public interest.
3. Decarbonisation and emissions reduction The new fleet will be capable of running on electricity and battery, with IR/NI Rail estimating “drastically reduced emission levels” (at least 47%). Delaying or endangering such a project runs contrary to pressing environmental objectives. The court regards this as an “imperative” public project in the sense used in BAM.
4. Accessibility and equality The existing fleet requires wheelchair users to pre‑book assistance and use portable ramps. The new trains will offer step‑free access at every passenger door and dedicated accessible carriages and facilities. Enhancing accessibility is a strong public interest consideration.
5. Continuity vs improvement CAF argued that continuing the suspension would not interrupt the existing Enterprise service, unlike cases such as CHC where safety‑critical services were at stake. Twomey J. responds that, while continuity is not threatened, the improvement of the service and associated public benefits are; this still weighs in favour of lifting the suspension.

6.7 Adequacy of Damages for CAF

CAF contended that if the suspension were lifted and it later succeeded at trial, damages would not adequately compensate it, because:

• the contract brings not only direct profit but also:
  • economies of scale in manufacturing,
  • spread of development costs across markets,
  • reputational enhancement, and
  • reduction of overheads,
  all of which are difficult to quantify;
• if the court were to hold that the competition should have been re‑run, any damages would have to be assessed on a hypothetical “lost opportunity” to win a different future competition, adding further layers of uncertainty.

Twomey J. responds in several steps:

1. Adequacy of damages is less central in public law Following Okunade, the question of adequacy of damages is “unlikely to be a significant feature” in judicial review cases. Public interest and systemic considerations are more prominent than in purely private commercial litigation.
2. Difficult does not mean inadequate Citing Powerteam, the court notes that Irish courts do assess “loss of chance” damages and that difficulty does not equate to legal inadequacy. Likewise, personal injury awards demonstrate that courts routinely approximate compensation even for life‑altering, incommensurable harms.
3. Reputational and strategic benefits Following BAM and Powerteam, the court rejects the idea that reputational impacts of winning or losing a tender render damages inherently inadequate. CAF’s reframing of the claim as “loss of reputation gain” is, in substance, the same type of reputational claim that courts have been reluctant to treat as undermining the adequacy of damages.
4. Francovich undertakings IR/NI Rail’s undertaking that any breach, if established, could be treated as sufficiently serious for the purposes of Francovich ensures that EU law would not bar the award of compensation.
5. Comparative risk to IR/NI Rail CAF’s claims about its own inability to be made whole in damages carry less force when CAF has refused to accept the risk for IR/NI Rail by offering a full undertaking in respect of the possible EU funding loss.

The court acknowledges that calculating CAF’s full economic loss, including lost strategic and future bidding advantages, would be complex, but concludes that:

The difficulty of calculating damages does not render them legally inadequate, especially in a public procurement judicial review, and cannot outweigh the concrete and substantial risk that the project and its funding will be lost.

6.8 Time to Trial and the “Status Quo”

CAF suggested that the court could and should maintain the suspension because the trial could be expedited and heard within a few months. The court was not persuaded:

• Even in the most accelerated examples cited, there was at least a seven‑month gap between issuing proceedings and judgment.
• Here, the critical contractual deadline (30 November 2025) is only eight working days after the hearing; no realistic full trial can be concluded in that time.
• Thus, unlike other cases where the impact of a delay can be assessed over months, here the central question is not how long the contract will be delayed, but whether it will survive at all.

On the “status quo”, Twomey J. adopts the CHC analysis:

• The real status quo ante is the position with no suspension in place.
• Continuation of the automatic suspension alters that position and thus constitutes the exceptional measure that must be justified.
• Where the factors are finely balanced, respecting the status quo points towards lifting, not maintaining, the suspension.

CAF’s argument that the “status quo” was the already existing automatic suspension is therefore rejected.

7. Complex Concepts Explained in Simpler Terms

7.1 Automatic Suspension

Under the Remedies Regulations, when a losing bidder starts court proceedings to challenge a contract award decision:

• The contracting authority is automatically prevented from signing the contract.
• This happens without any court hearing or assessment of whether the challenge has merit.

The logic is to protect the effectiveness of judicial review: if the contract is signed and largely performed, setting it aside later becomes very difficult. However, this “automatic suspension” functions like a temporary injunction and can be lifted by the High Court if the authority applies and persuades the court that the suspension should not continue.

7.2 Balance of Justice vs Balance of Convenience

When deciding whether to grant an interim injunction (or continue a suspension), courts look at:

• whether there is an arguable case, and
• where the balance lies between the potential harms of granting versus refusing the interim order.

“Balance of convenience” is the traditional phrase, but “balance of justice” better reflects that courts are seeking the outcome which minimises overall injustice, not simply what is more convenient. In public law cases, this includes weighing:

• harm to the challenger,
• harm to the contracting authority,
• harm to the successful bidder, and
• wider public interest.

7.3 Adequate vs Inadequate Damages

A party arguing for an interim order will often say: “If you do not grant me this order now, and I win at trial, damages later will not make me whole.”

Courts distinguish between:

• Practical difficulty in calculating damages – which is common and rarely decisive, and
• Legal inadequacy of damages – where money could not realistically put the party into anything like their previous position.

In private disputes (e.g., about land, IP rights), this can be a central factor. In public law procurement cases, as Okunade recognises, adequacy of damages is only one factor and often not decisive. Public interest and the integrity of state schemes can be more important.

7.4 Loss of Chance Damages

“Loss of chance” damages arise where a party is deprived of an opportunity – for instance, to compete lawfully for a contract – and we cannot be sure they would have won, only that they had a real prospect.

Courts:

• estimate the percentage chance the party would have succeeded (e.g., 40%), and
• apply that percentage to the expected profits or benefits.

This is inherently approximate but is an accepted method of compensation in Irish law, including in procurement disputes.

7.5 Equal Treatment and Transparency in Procurement

EU and Irish procurement rules require:

• Equal treatment: all bidders must be treated fairly and consistently; no bidder should get hidden advantages or be allowed to change their bid fundamentally when others are not.
• Transparency: rules, criteria, and any significant changes must be clear, public, and applied in a predictable way.

CAF’s complaint that the process morphed from eight trains to four, via BAFO discussions only with Stadler, goes to these principles. Whether such changes were permissible under the tender terms and procurement law is a matter for the full trial.

7.6 Francovich Liability

Under EU law (Francovich), Member States can be liable to compensate individuals for losses caused by serious breaches of EU law, where:

• the breached rule is intended to confer rights on individuals,
• the breach is sufficiently serious, and
• there is a direct causal link between the breach and the loss.

In procurement, if a contracting authority seriously breaches EU procurement principles, disappointed bidders can, in principle, recover damages under these rules. IR/NI Rail’s undertaking that any breach could be treated as “sufficiently serious” removes one potential barrier to CAF obtaining compensation if it ultimately succeeds.

8. Likely Impact and Broader Significance

8.1 Strengthening the Evidential Burden in Funding‑Sensitive Cases

This judgment sends a clear signal to contracting authorities and bidders:

• Where a project depends on time‑limited external funding (such as EU structural funds), authorities who can put forward robust, detailed evidence showing that non‑lifting of the suspension will lead to:
  • loss of that funding, and
  • effective extinguishment of the project or contract,
  will be in a strong position to secure a lifting of the suspension.
• Bidders contemplating challenges in such contexts must weigh the real risk that the court will prioritise preservation of funding and project viability over maintaining the standstill, especially where the applicant cannot or will not underwrite the funding risk.

8.2 Re‑balancing the Power of the Automatic Suspension

Twomey J. openly acknowledges that the automatic suspension is a “hugely powerful legal tool” – an “injunction for the asking” – in the hands of disappointed tenderers in high‑value infrastructure projects. Yet by:

• treating it strictly as a procedural starting point with no substantive weight,
• placing the onus firmly on the challenger, and
• highlighting decisive factors (funding extinguishment, contract collapse) that favour lifting,

the judgment gently shifts the balance back towards:

• effective but proportionate remedies, and
• greater protection of the public interest in implementing major projects on time.

In practical terms, this may temper any inclination of losing bidders to issue proceedings primarily to exert commercial pressure or delay, particularly where tight programme deadlines and external funding are in play.

8.3 Emphasis on Undertakings as to Damages

The case underlines the strategic importance of the undertaking as to damages:

• If a challenger wants the suspension maintained, especially in a funding‑sensitive project, a limited or qualified undertaking will likely count against them.
• A full undertaking to cover the contracting authority’s real risks (including loss of external funding where credibly evidenced) may be practically impossible for many bidders to give, especially SMEs; yet its absence will weigh heavily in the balance.

This dynamic effectively means that in some high‑value, high‑risk projects, only very substantial operators capable of underwriting large potential losses might realistically maintain suspensions. That, in turn, may influence market structure and the practical accessibility of legal remedies.

8.4 Public Interest and Climate/Accessibility Objectives

The judgment places notable weight on:

• climate and emissions reductions, and
• improved accessibility for disabled users,

as public interest factors in the balance of justice. Future procurement disputes involving:

• low‑carbon transport,
• renewable energy, or
• major accessibility improvements

may increasingly see similar arguments deployed, with courts more willing to view such projects as “badly needed” within the BAM framework and to resist prolonged standstills that endanger them.

8.5 The Tension with “Effective Judicial Protection”

From an EU law perspective, there is an inherent tension:

• On one side, Directives 89/665 and 92/13 (as amended) seek effective judicial protection for bidders, including interim relief.
• On the other, strict programme deadlines and “use it or lose it” funding conditions make prolonged standstills potentially destructive of projects.

This judgment leans toward:

• speedy protection of funding and implementation, coupled with
• a greater readiness to accept that damages (including loss‑of‑chance damages) can provide adequate post‑hoc redress for bidders.

As more such cases arise, Irish courts will likely continue to refine the balance between preserving the usefulness of the automatic suspension and preventing it from derailing time‑critical public investments.

9. Concluding Observations

CAF v Iarnród Éireann crystallises a number of important themes in Irish procurement law:

• The automatic suspension is a powerful, but strictly procedural, safeguard. Courts must and will treat applications to lift it like any other interlocutory injunction application, with the onus on the challenger.
• Where the evidence shows that maintaining the suspension is likely to:
  • cause the extinguishment of the contract, and
  • lead to the irretrievable loss of substantial, time‑limited funding,
  those factors can be decisive on the “balance of justice”.
• The adequacy of damages remains an important but not dominant factor in public law challenges; difficulties in valuing “loss of chance” or reputational impacts will generally not suffice to maintain a standstill where major public interests are in play.
• The form and scope of the applicant’s undertaking as to damages are critical; reluctance to underwrite the most serious risks faced by the authority (such as loss of EU funds) will weigh against continuing the suspension.
• Public interest – in this case, efficient use of EU funds, decarbonisation, and accessibility – can substantially affect the outcome of suspension‑lifting applications.

Overall, the judgment refines the Irish approach to the “balance of justice” in procurement suspension cases by giving clear prominence to the real‑world consequences of interim orders in the context of large, EU‑funded infrastructure projects. It signals to both contracting authorities and tenderers that while challenges to procurement processes remain fully available, the courts will be slow to allow automatic suspensions to jeopardise significant public investments where convincing evidence is presented of likely funding loss and project collapse, and where damages offer a legally adequate, if imperfect, remedy.