omagh forum legal challenge against daera
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By Gary Daly
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Examining Omagh Forum’s Legal Challenge Against DAERA – A Case Study

This case is based on a procurement competition essentially, for a rural community support service in the Fermanagh and Omagh District Council area.

The Plaintiff in this action, the provider, objected to DAERA’s application.

The procurement process began in 2022 following a collapse in 2021 between competitors. Proposals were submitted by the Plaintiff and Fermanagh Rural Community Network, with the latter being chosen for the contract. Shortly thereafter, the Plaintif commenced legal proceedings which challenged the lawfulness of DAERA’s actions.

Throughout the course of the proceedings, the Plaintiff faced challenges in serving its statement of claim which ultimately led to threats of dismissal by the Defendant. The Court then directed that the Plaintiff serve their statement of claim. The Plaintiff complied with the direction however sought specific discovery and requested that the hearing be expedited.

Affidavits were submitted by DAERA and the Network Manager for the Plaintiff. Both affidavits presented conflicting perspectives. DAERA on one hand argued that the existing contract could not be extended beyond 31 January 2023, whilst the Plaintiff contended that damages were not the appropriate remedy in this case given the charitable nature and critical role of the contract whilst in operation.

In reaching a decision, the Court applied the conventional American Cyanamid test for injunctive relief which involves: -

  1. Determining if there is a substantial issue to be tried;

  2. If so, assessing whether damages would sufficiently address the Plaintiff’s concerns if the suspension were lifted, and they prevailed at trial;

  3. If not, examining whether damages would be a satisfactory remedy for the Defendant if the suspension were to be maintained and their defence succeeded at trial;

  4. In cases of uncertainty regarding the damages for either party, considering where the balance of convenience lies.

As is customary in the majority of suspension lifting cases, DAERA acknowledged during the hearing that there was a significant issue to be tried. DAERA also conceded that damages would be a suitable remedy if the suspension were to remain in place.

This case also highlights the complexity of procurement disputes and the careful consideration which the Court will give to the principles outlined in existing regulations and legal precedent. This judgment delves into Regulations 95 and 96 of the Public Contracts Regulations 2015.

The key assessment in this case was whether there was a serious issue to be tried – the adequacy of damages and the balance of convenience. The Court held that damages were inadequate for the plaintiff and concluded that the balance of convenience favours maintaining the suspension.

In summary, this judgment analyses whether damages are an adequate remedy for both parties. It also explores the impact of the Plaintiff’s charitable activities and the public interest in providing vital services.

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