Suspension to €650m northern rail improvements contract is lifted

High Court Reporters

The High Court has cleared the way for the awarding of a €650 million contract to replace the Dublin-Belfast Enterprise Service train rolling stock.

Mr Justice Michael Twomey found the balance of justice favoured the lifting of an automatic suspension which came into effect when a disappointed bidder launched a challenge to the award.

Iarnród Éireann-Irish Rail and Northern Ireland Railways Co Ltd, who operate the service, asked the court to lift the suspension after the challenge by unsuccessful Spanish tenderer, global transportation systems company, Construcciones Y Auxiliar De Ferrocarriles (CAF) SA.

The rail companies claimed the suspension could mean the loss of up to €165 million of EU funding towards the project.

The contract was awarded to Switzerland-headquartered Stadler Busnang AG on September 18th.

In his decision, Mr Justice Twomey said that lifting the suspension leads to the least risk of injustice to the parties because of the risk that the contract will be extinguished and that the EU Funding of €165 million for the Dublin-Belfast rail line will be lost if the suspension is continued.

This was a unique factor as the continuation of the suspension is likely to lead to the extinguishment of the contract with Stadler and not simply a delay in its execution and with the possibility that it might be executed with CAF, he said.

This fact and the likely loss of €165 million in EU funding was, in the court’s view, a significant factor in the balance of justice in favour of the lifting of the suspension.

He said it was clear this case involved a detailed investigation of facts and law before one can determine how strong CAF’s claim is, regarding the unlawfulness of the tender process.

There is a very significant public interest in not unnecessarily delaying publicly-funded projects which reduce emission levels, he said.

Another public interest attaching to the project are the significant benefits of the new trains, particularly regarding access for people with disabilities,over and above those provided by the existing trains, he said.

There was also the issue of the reduction of emissions by the new trains which might be regarded as "badly needed", he said.

Itr should also be noted that CAF’s claim, that damages are an inadequate remedy for it - if it wins at trial - would carry more weight if it had given an undertaking to pay damages itself, which would ensure that damages would be an adequate remedy for IR/NI Rail if they win, he said.

The court did not accept that if damages are awarded to CAF, it will be a difficult task to calculate those damages for loss of opportunity in respect of a re-run competition.

Irish Rail and NI Railways said, that despite an overall and refurbishment in 2015 of the current locomotives and carriages on the northern line, the fleet is reaching the end of its 30-year design life at the end of 2027.

It will then require significant work and investment to ensure continued safe service beyond this date.

Some 3.3m people live within a 40-mile commute distance from the Dublin-Belfast line and fast and reliable services are vital to the economic life of the island.

The planned investment in the service will see an hourly service between the two cities, doubling the current eight services per day to 16.

It will also mean the replacement of "non-Enterprise sets" of rolling stock which do not have the same feel and kit-out as Enterprise trains.

Passengers are also unhappy with them and they are more expensive to operate and inefficient.

The new service will create a capacity to provide four million passenger journeys a year by 2030 with 2.4m passenger journeys expected to be taken by 2033.

It will also achieve higher speeds than the current service which has a maximum speed of 90mph.