Atlantic Endeavour Ltd & Anor v Office of Public Works (Approved)

Factual and Procedural Background

The case concerns the right to land boat passengers on a protected island, which is regulated by national monuments legislation limiting visitor numbers and restricting landing rights to a small number of boat operators with capped daily passenger numbers. The Office of Public Works ("OPW") conducted a tender competition to allocate landing permits for the 2025 landing season, envisaging permits allowing a maximum of twelve passengers per day for each successful tenderer. The tenderers were required to commit to a pro forma contract appended to the request for tenders.

Two unsuccessful tenderers challenged the outcome of the competition by instituting judicial review proceedings, which triggered an automatic suspension preventing the OPW from entering into legally binding contracts with the successful tenderers until the proceedings are resolved or the suspension is lifted by court order. The OPW applied to lift this automatic suspension to allow contracts to be concluded for the 2025 season. The motions were heard together with an expedited process, and the substantive trial was scheduled to commence on 21 July 2025.

Legal Issues Presented

1. Whether the automatic suspension on concluding contracts with successful tenderers should be lifted pursuant to regulation 9 of the European Union (Award of Concession Contracts) (Review Procedures) Regulations 2017.
2. The legal effect and duration of the pro forma contract appended to the request for tenders, specifically whether it confers contractual rights beyond the 2025 landing season.
3. The adequacy of damages as a remedy for the unsuccessful tenderers in respect of the 2025 landing season.
4. The interpretation and application of the legal test for lifting automatic suspension, including consideration of interlocutory injunction principles and the balance of convenience.

Arguments of the Parties

Applicant's (Office of Public Works) Arguments

• The OPW regards the award of landing permits as a services concession and conducted the tender in compliance with relevant EU and domestic procurement regulations.
• The pro forma contract appended to the tender documents governs the 2025 landing season only and does not constitute a framework agreement or confer rights beyond that season.
• The OPW seeks an order lifting the automatic suspension to conclude contracts on the terms advertised in the tender process, enabling passenger landings for the remainder of the 2025 season.
• The OPW conceded, for the purpose of lifting the suspension, that a serious issue to be tried exists and offered a broad admission that any breach of EU procurement law proven at trial would meet the threshold for Francovich damages, ensuring damages would be an effective remedy.
• The OPW argued that the court does not have jurisdiction to approve a different contract form than that advertised and that lifting the suspension would faithfully implement the tender process.

Unsuccessful Tenderers' Arguments

• The unsuccessful tenderers disputed the OPW’s interpretation of the automatic suspension and contended that landing permits might be validly issued under statutory permitting mechanisms independent of concluded contracts.
• They argued the pro forma terms and conditions do not constitute a concession contract but form part of a statutory permit process under national monuments legislation.
• The unsuccessful tenderers sought to confine their claim for the 2025 season to damages while reserving the right to challenge rights for subsequent seasons.
• They questioned the adequacy of the OPW’s admission on Francovich damages, particularly regarding proof of damage, causation, and breaches related to the duty to give reasons.

Table of Precedents Cited

Court's Reasoning and Analysis

The court commenced by clarifying the nature and duration of the contract the OPW seeks to conclude. It found that the pro forma contract appended to the request for tenders governs only the 2025 landing season and does not confer rights extending beyond that period. The court rejected arguments that the contract should be interpreted to include a fixed five-year term or that the framework agreement envisaged in the tender documents had been or would be executed as a separate binding contract.

The court emphasized the distinction between the legal effect of the appended contract and the broader tender process, noting that the former is the relevant focus for the application to lift the automatic suspension. It held that the contract’s terms are clear and unambiguous, requiring objective interpretation, and that no extraneous evidence could be admitted to alter this understanding.

Applying the legal test for lifting automatic suspension, the court proceeded on the hypothetical basis of whether an interlocutory injunction restraining contract conclusion would be appropriate. It accepted that a serious issue to be tried exists but found that the balance of convenience favoured refusing such an injunction. Key factors included the adequacy of damages as a remedy for the 2025 season, the minimal prejudice to unsuccessful tenderers given the limited contractual duration, and the disproportionate adverse impact on successful tenderers and the local economy if landings were further delayed.

The court gave significant weight to the OPW’s concession that any breach of EU procurement law proven at trial would be considered sufficiently serious to support Francovich damages, thus ensuring damages would be an effective remedy. It acknowledged that while quantification of damages can be difficult, the limited scope of the 2025 season contract made damages a suitable remedy in this case.

The court also considered the public interest in the orderly implementation of lawful administrative decisions and the practical consequences of prolonging the suspension, particularly given the short landing season and the imminence of the trial date.

Ultimately, the court concluded that lifting the automatic suspension and allowing the OPW to conclude contracts on the terms set out in the pro forma appended contract struck a fair balance between the competing interests of the parties and the public interest.

Holding and Implications

The court GRANTED the OPW's application to lift the automatic suspension imposed by the judicial review proceedings.

This decision permits the OPW to enter into legally binding contracts with the fifteen successful tenderers on the terms prescribed in the pro forma contract appended to the request for tenders, thereby enabling the issuance of landing permits for the remainder of the 2025 landing season and the commencement of passenger landings at the protected island.

The judgment explicitly does not determine whether the tender process confers exclusive landing rights for the 2026 and subsequent seasons; that issue remains for the substantive trial. The court’s ruling is limited to the contractual rights for the 2025 season and preserves the unsuccessful tenderers’ ability to challenge future rights beyond that period.

No new legal precedent was established beyond the application of existing principles governing automatic suspensions, interlocutory injunctions, and Francovich damages in the context of EU public procurement law.