Episode V: The OPW strikes back!

High Court clarifies circumstances where a judicially reviewed tender may nonetheless be fully implemented pending trial.

Atlantic Endeavour Ltd SMBT Ltd (trading as Skellig Michael Boat Trips) -v- Office of Public Works.

Introduction

RDJ acted for 12 boats servicing the UNESCO protected Sceilg Mhichíl, which gained Worldwide fame in recent years after featuring prominently in the Star Wars franchise.  Our clients were the incumbent tenderers who were successfully reappointed under a 2025 tender process.  RDJ represented them in a Judicial Review (“JR”) challenge taken by three unsuccessful tenderers to that process.

As the JR was commenced during the “standstill” period following the tender award, an automatic suspension kicked in which prevented the award of the contract pending the outcome of the JR.  As was widely publicised, this led to a situation where, despite huge tourist demand, no boat trips to Sceilg Mhichíl were possible, even after the season opened in early May (not May the 4^th before anyone asks…).

Given the huge damage this situation was causing both locally and (reputationally) internationally to the Irish tourist industry, the OPW (against whom the JR had been taken) applied by way of interlocutory application to lift an automatic suspension. In a judgment delivered on the 5^th of June 2025, Judge Simons concluded that the automatic suspension should be lifted, allowing the successful tenders to begin trading for the 2025 season.

Full Background

In this regard, all of the tenderers were notified of the outcome of the competition by letters dated 27 March 2025. The tenderers had all been required to commit to the execution of a pro forma contract for the 2025 landing season as part of the tender process.

Three of the unsuccessful tenderers, who had been incumbents up to the 2025 tender process,  commenced judicial review proceedings challenging the outcome.  The institution of the proceedings triggered the automatic suspension on the conclusion of the contracts concerned.

At the urgent hearing to consider the issue last month, the unsuccessful tenderers resisted the application to lift the suspension and contended that there were a number of mechanisms open whereby landing permits might legitimately be granted to the formerly incumbent tenderers (rather than the newly successful tenderers) for the balance of the 2025 season, whilst preserving their own right to challenge the allocation of landing permits for the 2026 and subsequent seasons.

The Court ultimately found that the potential prejudice to the unsuccessful tenderers if the appended contract was concluded prior to the hearing of the judicial review proceedings was outweighed by the potential prejudice to the successful tenderers and the local economy if no landings at Sceilg Mhichíl were permitted for a further six or seven weeks (the earliest possible full trial date).

 The Court thus granted an order allowing the OPW to enter into a legally binding contract with each of the fifteen successful tenderers, noting that the contract would be confined to the 2025 season. In this regard the Court was particularly persuaded by the fact that an agreed form of contract had been appended to the tender documents which simply needed to be executed (i.e. it didn’t need to be negotiated).  The Court found that damages would be a sufficient remedy for the unsuccessful tenders in respect of the 2025 season if they were successful at the full hearing of the JR.  Generally, once a legally binding contract has been concluded, an unsuccessful tenderer is confined to a claim in damages and cannot seek to set aside the concluded contract. However, the Court made it clear that in this case, at the full hearing, it would still be open to the challengers to seek remedy beyond damages.

Thus boat trips to Sceilg Mhichíl recommenced in early June.  Moreover, it has been announced in recent days that the full proceedings have since been resolved as between the three JR challengers and the OPW such that the JRs have been struck out without the need for a full hearing. 

Conclusion

This case highlights both the practical difficulty faced by awarding bodies and successful tenderers when JRs are taken, but also demonstrates a most welcome willingness for the Courts to adopt a pragmatic approach to resolving these difficulties.