High Court lifts automatic public procurement contract suspension due to EU funding loss risk.

COMMERCIAL COURT

[2025] IEHC 645

RECORD NUMBER 2025/1548 JR

THE HIGH COURT

IN THE MATTER OF THE REVIEW OF THE AWARD OF A PUBLIC CONTRACT

PURSUANT TO THE EUROPEAN COMMUNITIES (AWARD OF CONTRACTS BY

UTILITY UNDERTAKINGS) (REVIEW PROCEDURES) REGULATIONS 2010 (AS

AMENDED) AND ORDER 84A OF THE RULES OF THE SUPERIOR COURTS (AS

AMENDED)

BETWEEN

CONSTRUCCIONES Y AUXILIAR DE FERROCARRILES, S.A

APPLICANT

AND

IARNRÓD ÉIREANN – IRISH RAIL AND NORTHERN IRELAND RAILWAYS

COMPANY LIMITED

RESPONDENTS

AND

STADLER RAIL SCHWEIZ AG

NOTICE PARTY

JUDGMENT of Mr. Justice Twomey delivered on the 26th day of November 2025

INTRODUCTION

1. Normally, for A to be able to stop B from signing a contract, which A alleges is unlawful, A would have to convince a court that his claims about that contract had merit. Yet, when it comes to the judicial review of important infrastructural projects which are subject to public procurement (such as a contract for over half a billion euro to supply new trains for the Dublin-Belfast line, in this instance), such a contract can be suspended without court involvement.

2. This may come as a surprise to many people; however, it arises because these public procurement contracts are automatically suspended by the simple act of a disappointed tenderer issuing proceedings, irrespective of whether those proceedings have any merit. A disappointed tenderer has, in effect, ‘an injunction for the asking’ which halts the signing of the contract, and this Court is not aware of any other instance where an injunction like this is obtained, not from a court, but by the simple act of issuing proceedings (irrespective of the merit of those proceedings).

3. It is of course important to note that there are policy reasons for this right of a disappointed tenderer to an automatic suspension of a public procurement contract. It is a right which arises under Regulations 8(1)(b) and 8(2) of S.I. No. 131/2010, the European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulations 2010 (the “Remedies Regulations”), which was enacted pursuant to the Council Directive 92/13/EEC, as amended by Directive 2007/66/EC. Accordingly, it is important to note that an applicant who obtains an automatic suspension, by issuing proceedings, is simply exercising its rights under Irish law.

4. Nonetheless, the result of this legislation is that there is a hugely powerful legal tool in the hands of a disappointed tenderer. This is particularly striking, when one is dealing with multi-million-euro contracts for significant infrastructure projects (in this case, the contract is worth €650 million). Indeed, from a disappointed tenderer’s perspective, even if there is only a minor chance of the merits of their challenge to the tender being upheld, with so much money at stake, one can see the attraction of challenging the tender they had lost, even if there is a slim hope that the contract will be awarded to them. It is of course important to note that it is not being suggested in any way that the substantive claims (made by the disappointed tenderer in this case, the applicant, a Spanish global transportation company, “CAF”) are without merit or that CAF does not believe that it has a good chance of success at the trial of the action. As noted hereunder, at this interlocutory stage, this Court is not in a position to make a finding about the merits of CAF’s claims regarding the procurement process.

5. The foregoing comments, regarding automatic suspensions in procurement cases, are however important background to why there was such an urgency in this case. This urgency arose, in part, because the automatic suspension of a €650 million contract was obtained by CAF, not by court order, but simply by the fact that it issued proceedings on 17 October 2025. This led the respondents (“IR/NI Rail”) to bring an urgent application to lift the automatic suspension, which was heard by this Court on Tuesday

18 November 2025. After a day-long hearing, judgement was reserved. The following Tuesday (25 November), IR/NI Rail came into court to inquire as to when the judgment might be delivered. This is because IR/NI Rail needed to have the relevant contract signed by 30 November and they were seeking to ensure that there was sufficient time for an appeal to be heard by Friday 28 November, in the event of the automatic suspension not being lifted by this Court. The reason IR/NI Rail want the automatic suspension urgently lifted is because they believe they will lose funding of €165 million, from the EU, if they are not permitted to sign the contract within eight working days of the hearing of this matter, i.e. by 30 November 2025.

6. Finally, in this regard, it is important to bear in mind that the foregoing comments regarding the fact that large infrastructural projects can be suspended without court involvement, and so without having to show merit, have been outlined solely to provide context to the urgency which arose in this case. They have no application to the legal test to be applied in applications such as this one. This is because, as noted by the Court of Appeal in CHC Ireland DAC v The Minister for Transport [2023] IECA 229, this Court must start its consideration of the matter, as if no automatic suspension had occurred (and so the fact that a party has obtained an automatic suspension ‘for the asking’ is irrelevant).

The Contract which has been subjected to an automatic suspension

7. The challenge in this case is to the award of a pair of inter-related contracts (the “Contract”) worth €165 million pursuant to a competitive tender process run by IR/NI Rail. The Contract is for the purchase and maintenance of trains (and associated infrastructure upgrade works) for the Dublin-Belfast railway line, which is known as the Enterprise Service (“Enterprise Service”).

8. The notice party, a Swiss company, Stadler Rail AG (“Stadler”) was identified by IR/NI Rail as the Most Economically Advantageous Tenderer (“MEAT”) on 10 July 2025. CAF was informed of the decision to award the Contract to Stadler on 18 September 2025. On 17 October 2025, CAF, which was at that point the only other tenderer, issued these proceedings.

9. Under Regulation 8 of the Remedies Regulations, CAF, as a disappointed tenderer was entitled to challenge the award of the Contract and Regulation 8(2) provides that the contracting entity, in this case IR/NI Rail, ‘shall not conclude the contract’ (hence the automatic suspension of the contract). This suspension lasts until the High Court ‘gives leave to lift’ that suspension. Thus, in this case, the Contract for a total of €650 million cannot be signed by IR/NI Rail and Stadler, even though Stadler was the winner of the tender process.

10. It is not surprising therefore that, on 28 October 2025, 11 days after the issue of the proceedings by CAF, IR/NI Rail brought this application to lift the suspension and enable the Contract to be signed by IR/NI Rail and CAF. This application was subject to a day-long hearing on 18 November 2025. Why IR/NI Rail say the Contract must be signed by 30 November 2025

11. This Court was asked to give its decision in a matter of days, after hearing the application. This is because this Court was told that it was imperative that the Contract (which is one for the supply of four trains) between IR/NI Rail and CAF be signed by

30 November 2025.

12. The reason given by IR/NI Rail for the Contract having to be signed by 30 November 2025, was that the production slots at Stadler’s factory for the manufacture of the trains would be lost, if the Contract was not signed by that date. The Court was told that this would then result in the four trains (which are the subject of the Contract) not being delivered by a deadline of 31 December 2029. This Court was told that meeting this 31 December 2029 deadline is critical, because of its impact on the availability of €165 million in funding which is being sought for the purchase of the trains for the Belfast- Dublin line under the Peace-Plus EU Programme (“EU Funding”). This funding has been offered by the Special EU Programmes Body (“SEUPB”) which is administering the Peace-Plus EU Programme. The letter of offer (“Letter of Offer”) for this EU Funding from SEUPG, dated 10 July 2024, references the purchase and maintenance of eight trains, rather than four trains, and this is referred to as the “Project” in that letter. For present purposes however, it is sufficient to note what the Letter of Offer states about the deadline for the funding: ‘The Project end date is 31/12/2029 after which time any costs not defrayed will be deemed to be ineligible for reimbursement. Your activity should cease in advance of this date to ensure the final claim for expenditure has been certified by the Controller and all associated costs have been incurred by the final date of the Project Lifetime.

[…]

The Project Lifetime may be only extended with the prior written agreement of SEUPB. Please note, the programme end date is 31 December 2029 and therefore no extension will be permissible for this Project Lifetime.’ (Emphasis added)

13. IR/NI Rail provided evidence to the Court that the 31 December 2029 deadline has been set by SEUPB because the EU’s Peace-Plus Programme, under which this funding of €165 million is to be granted, is due to end on 31 December 2029. Accordingly, IR/NI Rail have stated that funding commitments past that date are not possible.

14. It was made clear by IR/NI Rail to this Court, whether one was dealing with four or eight trains, that the EU Funding was coming to an end on 31 December, 2029 and if the trains are not delivered by that date (which Stadler says they will not be, if the Contract is not signed by 30 November 2025), funding would be unlikely to be available.

15. This is a crucial aspect of this case and it was made clear to this Court, by IR/NI Rail, that the failure to give the judgment in time (to enable the Contract be signed by 30 November 2025, if the Court was minded to lift the suspension) could lead to a loss, for good, of EU Funding of €165 million for this major infrastructural project. All of this brought a unique urgency to this case.

Concession by IR/NI Rail that there is a fair issue to be tried

16. In light of the urgency of the case, IR/NI Rail conceded (albeit, only for the purposes of this application to lift the suspension, and not for any subsequent trial) that CAF’s complaints about the legality of the tender process raises a fair issue to be tried. Accordingly, this Court was asked to only consider whether the balance of justice favoured the lifting of the suspension, which is now in place. Does the balance of justice favour the lifting/continuation of the suspension?

17. As a preliminary point, a more accurate way to consider this question, is not whether the balance of justice favours the continuation of the suspension, but rather whether the balance of justice favours granting CAF the suspension (in other words, an injunction suspending the execution of the Contract). This is because it is clear from Word Perfect v Minister for Public Expenditure and Reform [2021] IECA 305, at para. 56 (per Barniville J.) that this is the correct approach to these suspension cases. It follows that, even though the automatic suspension is currently in place as a matter of law, the onus of proof is on CAF to establish that the execution of the Contract should be suspended. Otherwise, the suspension will be lifted. In this regard, there was no dispute regarding the law applicable to this question. Accordingly, this judgment does not extensively restate the statutory provisions or the case law applicable to the lifting of suspensions in public procurement cases.

18. This Court has considered all the arguments presented by the parties in their written and oral submissions. However, in light of the urgency of this case, this judgment deals only with the key issues which determine the application. This Court therefore adopts the approach of Finlay Geoghegan J. in Flynn v Breccia [2017] IECA 74 at para. 32, where she noted that: ‘I do not propose considering each and every ground or indeed setting them out. I have fully taken them into account and both the written submissions and the oral submissions help identify the primary contractual issues which must be resolved by this Court.’ BACKGROUND

19. The origins of the project the subject of the within proceedings date back to June 2018, on which date Iarnród Eireann and Translink (the parent company of the second named respondent, Northern Irish Railways) issued the Enterprise Strategic Development Plan which proposed major enhancement of the Enterprise Service between Dublin and Belfast.

20. The Enterprise Service is a joint venture operated by IR/NI Rail and it provides an intercity rail service between Dublin and Belfast, which served a total of 1.2 million passengers in 2023/24. At present, it consists of four trains (also referred to as “sets”) which entered service in 1996, and which are coming towards the end of their design life, which is the end of 2027. The service is also supplemented by other trains that are separate from the Enterprise Service train stock.

21. IR/NI Rail contend that the existing service is unsatisfactory for a number of reasons:

• Mr. Peter Smyth, (“Mr. Smyth”) the Chief Mechanical Engineer for Iarnród Éireann avers that older rolling train stock requires increased levels of maintenance to be kept performing to ‘even a tolerable level’ and to maintain safety standards; that the emissions production of older train stock is much higher, that comfort levels on more modern carriages are much higher, and that modern carriages are required to accommodate persons of reduced mobility.

• Mr. Smyth also avers that the existing Enterprise fleet of four sets is only capable of operating eight services per day in each direction, which is insufficient to meet passenger demand. IR/NI Rail have added seven additional services per day in each direction using stock outside of the Enterprise fleet. IR/NI Rail, however, argue that these sets are unsatisfactory because they are: unpopular with passengers, more expensive and inefficient, required elsewhere, and because future funding for them is uncertain.

• Finally, IR/NI Rail provided evidence that feedback from users indicates that the train journey is too long and that the proposed new trains will improve journey times.

22. More generally, IR/NI Rail submit (at para. 3 of their written submissions) that the Contract ‘will result in very significant public benefits’ and CAF replied (at para. 4 of its written submissions) that it was ‘largely in agreement with [this] description of the Proceedings’.

The process which led to the Contract

23. In April 2022, IR/NI Rail began engagement with the SEUPB in respect of funding under the European Commission’s PEACEPLUS programme, and ultimately submitted a funding application for €165 million to be allocated against the purchase of eight new Enterprise sets as part of the Enterprise Fleet Replacement Project (“EFRP”) (this being the term used for the overall project involving the replacement of the Enterprise fleet, infrastructure upgrade works, and introduction of maintenance systems).

24. In April 2024, SEUPB wrote to IR/NI Rail confirming that this application was ‘approved in principle’ but ‘subject to formal letter of offer being issued’. IR/NI Rail received the formal Letter of Offer on 10 July 2024, to which reference has already been made, providing for the full €165 million to be awarded. According to IR/NI Rail this sum was conditional on all eight of the new Enterprise sets under the EFRP being in service. This is because, as Mr. Smyth points out, the practical effect of the requirement, in the Letter of Offer (that costs be defrayed by IR/NI Rail before 31 December 2029, in order to be reimbursed) is that: ‘all eight of the new Enterprise Sets would need to be in service before 31st December 2029 in order for the EFRP to receive the full amount of funding.’ The remaining balance of the total value of the contracts (€650 million) is to be made up by the Department of Transport in Ireland and the Department for Infrastructure in Northern Ireland (together, the “Sponsoring Departments”).

25. The call for competition in this case was first published in September 2023. This led to the receipt of four expressions of interest to participate in the tender competition. Invitations to Negotiate (“ITN”) were issued to three shortlisted tenderers in May 2024, and one of the tenderers withdrew in July 2024, leaving just Stadler and CAF as prospective tenderers.

26. To secure €165 million in EU Funding, the project originally required the delivery of eight trains by the deadline of 31 December 2029 under the terms of the Letter of Offer. However, after the tenders received on 10 April 2025 from both CAF and Stadler revealed that neither bidder could meet this deadline, IR/NI Rail opened negotiations, in May 2025, with SEUPB to reduce the requirement to an initial delivery of four trains by 31 December 2029 (referred to as the “Current Delivery Timeline”), along with certain infrastructure modifications. Under that revised timeline, the first three trains are to be delivered in 2028, the fourth in the second half of 2029, and with the new service expected to commence in December 2030 with six sets (and a further two new sets to follow).

27. IR/NI Rail have indicated their preference for this timeline to the SEUPB, and they are confident that the SEUPB will be amenable to amending their funding requirements. However, there is no formal confirmation of same from the SEUPB.

28. After identifying Stadler as the MEAT on 10 July 2025, IR/NI Rail then engaged with Stadler for the purposes of seeking a ‘Best and Final Offer’ (“BAFO”). In its oral submissions, IR/NI Rail stated that it was through the BAFO, which was concluded in September 2025, that Stadler confirmed that it could deliver four trains by the 31 December 2029 deadline, but Stadler’s evidence is that this cannot be delivered if the contracts are not signed by 30 November 2025 (see the affidavit of Mr. Stephen Dietrick, Senior Contract Manager at Stadler, at para. 6, and the affidavit of Mr. Ralf Warwel, Sales Director at Stadler, at para. 25).

29. CAF was informed of the decision to award the contract to Stadler on 18 September 2025, and CAF issued these proceedings on 17 October 2025 challenging the legality of the tender process, which had the effect of automatically suspending the Contract between IR/NI Rail and Stadler.

30. In his affidavit of 17 November 2025, Mr. Smyth on behalf of IR/NI Rail summarises this application to lift the suspension in the following terms: ‘57. As I noted in my previous Affidavits, there is an element of uncertainty as to the precise terms which may ultimately be applied to the SEUPB Funding. As I have previously explained, the concern for both the Sponsoring Departments and [IR/NI Rail’ ] is that whatever the SEUPB specifically requires to be achieved in return for its funding is completed (and all related costs defrayed) by 31 December 2029). This is crucial, because if that does not happen, then the SEUPB will be entitled to recover some or all of the funding which it has extended. In these circumstances, neither the Sponsoring Bodies nor [IR/NI Rail] can proceed with the Contracts unless there is a high degree of confidence that the SEUPB's requirements can be achieved.

58. One point in respect of which there is no doubt and in respect of which the SEUPB has been entirely consistent is the immovability of the 31 December 2029 deadline.

59. I have already addressed in my previous Affidavits the basis for the [IR/NI Rail’s] expectation that the delivery of four new Enterprise Sets by 31 December 2029 will be sufficient to meet the SEUPB's requirements. I would add in this regard that [IR/NI Rail] have significant experience in dealing with the SEUPB and of its approach and processes in circumstances where the SEUPB contributed to the funding of: (a) the 2015 refurbishment of the Enterprise Fleet which was (like the EFRP) a project jointly carried out by [IR/NI Rail] with the support of the Sponsoring Departments; and (b) the development of the Northwest Transport Hub in Derry-Londonderry which was completed in 2019. [IR/NI Rail’s] confidence in respect of the SEUPB's intentions is based in large part on those previous dealings with the SEUPB and the working relationship that has been developed in that regard.

60. It is clear from the Affidavits delivered by Stadler that the only prospect of meeting that deadline in respect of the delivery of four trains is to conclude the Contracts with Stadler prior to 30 November 2025. What is equally clear from those affidavits is that Stadler can commit to delivering four new Enterprise Sets by 31 December 2029.

61. Accordingly, [IR/NI Rail] are strongly confident that, if the Suspension is lifted such that the Respondents can conclude the Contracts with Stadler by 30 November 2025: the EFRP will proceed; the first four new Enterprise Sets will be delivered by

31 December 2029; and that delivery will satisfy the SEUPB's conditions for the provision of €165 million in funding.

62. By contrast, if the Suspension is not lifted such that the Respondents cannot conclude the Contracts with Stadler by 30 November 2025 and Stadler cannot commit to the delivery of the four new Enterprise Sets by 31 December 2029, [IR/NI Rail] expect that the Contracts will not be concluded at all and the EFRP will not proceed. If that happens, there will be no benefit to anyone - not to [IR/NI Rail], not to the public, not to Stadler and not to CAF itself.

63. In these circumstances, I say and am advised that the balance of convenience clearly lies in favour of the Suspension being lifted.’ (Emphasis added)

WHERE THE BALANCE OF JUSTICE LIES IN THIS CASE

31. The key issue in this case is whether the balance of justice favours the continuation of the suspension or not. Balance of justice or balance of convenience?

32. As a preliminary point, it should be noted that this Court uses the term ‘balance of justice’, rather than ‘balance of convenience’ (which is sometimes used), when analysing whether to grant/not grant an injunction (and thus, whether to lift/continue a suspension). However, from a legal perspective nothing turns on which term is used. Nonetheless, the term ‘balance of justice’ has the advantage, in this Court’s view, of being more accessible, than the term ‘balance of convenience’, to non-lawyers (bearing in mind that it is invariably non-lawyers who are the persons who are the subject of proceedings).

After all, the administration of justice is ‘not about judges and lawyers’ but it is ‘concerned exclusively with serving the interests of those who seek justice’.1 Crucially, laws being accessible to all citizens is a critical factor in the rule of law and no country can afford to be complacent in this regard. As pointedly observed by Vos M.R., ‘[e]very country has a rosy view of its own compliance with the rule of law.’2 In addition, the term ‘balance of justice’, unlike the term ‘balance of convenience’, emphasises the role ‘justice’ (or more accurately the role, which seeking to avoid injustice) plays, when a court is deciding whether to grant/not grant an interlocutory Speech of the Minister for Justice, Home Affairs and Migration on 6 October 2025 at New Legal Year Ceremony.

In the paper delivered by Vos M.R. entitled ‘The importance of the Rule of Law and a robust legal system for business and economic development’, at the Dublin International Disputes Week Conference on 22 October 2025. injunction or continue/lift a suspension in a procurement case. This is clear from the statement of Clarke J. (as he then was) in Okunade v Minister for Justice and Others [2012] IESC 49, 3 IR 152 at para. 67 in the context of the grant of interlocutory injunctions: ‘The problem stems from the fact that the court is being asked, on the basis of limited information and limited argument, to put in place a temporary regime pending trial in the full knowledge that the court does not know what the result of the trial will be.

It seems to me that, recognising that a risk of injustice is an inevitability in those circumstances, the underlying principle must be that the court should put in place a regime which minimises the overall risk of injustice […] The court must, in all cases, act so as to minimise the risk of injustice.’ (Emphasis added)

33. So, with this in mind, where does the balance of justice lie in this case, or to put it another way, does lifting or continuing the suspension lead to the least risk of injustice? If the suspension is not lifted, a delay in contract signing is usually the worst outcome

34. When considering this issue, the first observation to make is that, in most cases involving the lifting/continuation of a suspension, invariably if the suspension is not lifted, one is dealing with a delay to the signing of the contract. Thus, if at the trial of the action, it turns out that the suspension was wrongly continued, then the extent of the injustice to the parties seeking to sign the contract is that the contract ends up being delayed in its execution.

35. However, this case is unique in one respect. This is because IR/NI Rail are saying to the Court that if the suspension is not lifted, it is not a case of the Contract simply being delayed. Instead, IR/NI Rail are saying the Contract is unlikely to be signed at all, since the EU Funding for the Contract is likely to be lost.

36. This is a unique aspect to this case, because all the cases opened to this Court (regarding the lifting/continuation of a suspension on the signing of a procurement contract), concerned merely the ‘injustice’ of a delay to that contract being signed, if the suspension was not lifted (and if the challenge to the tender was ultimately unsuccessful). No case was opened to the Court where there was evidence, as here, that if the suspension was not lifted, the contract was likely not to be signed at all.

37. This is a significant factor, in this Court’s opinion, in the balance of justice in favour of lifting the suspension. This is for the simple reason that it cannot be denied that it is a greater injustice to a party seeking to sign a contract, if that contract is extinguished, than if the signing of contract is merely delayed, as a result of the continuation of a suspension. For this reason, it seems to this Court that this is a factor that weighs heavily in the balance of justice in favour of lifting the suspension.

38. It is true, as pointed out by CAF, that it is just this Contract, which will be extinguished, rather than delayed, and that undoubtedly, at some future stage there will be another contract, howsoever funded, for the replacement of the current Enterprise trains. While this is likely true, it does not take away from the fact that this is a case, where the effect of the continuation of the suspension, would go beyond the usual inconvenience of a delay in the signing of that Contract, to the extinguishment of that Contract. In particular, it is a greater injustice to Stadler, since this Court is being told that this Contract will not be available if the suspension is continued. In this regard, it is well established that this Court can have regard to the effect of a suspension on the commercial interests of a successful tenderer in weighing the balance of justice, as it did in Powerteam Electrical Services v ESB [2016] IEHC 87 at para. 5 (per Costello J.). The Court of Appeal also had regard to the effect of a suspension on the commercial interests of a successful tenderer in Owens v Kildare County Council [2020] IECA 361 at para. 66 (per Costello J.). The amount, and percentage, of funding which will be lost, is significant

39. The next factor in the balance of justice is that this Court has been provided with evidence that indicates that very significant EU Funding for an important infrastructure project on the island of Ireland, could be lost if the suspension is not lifted, i.e. €165 million. The sheer amount of the money at risk if the suspension is continued is therefore a factor in the balance of justice, since the extent of the possible loss must be considered by a court in considering where the balance of justice lies.

40. However, it is not just the amount of money that is at risk, but it is the fact that it makes up such a large part (25% of the overall funding of €650 million) for a major infrastructural project on the island.

41. Clearly, if the EU Funding was significantly less in amount and was also a minor percentage of the overall funding, this would be less of a factor in favour of the lifting of the suspension.

42. In this regard, when one is considering where the balance of justice lies, this Court must have regard to the adequacy of damages (which is considered in detail hereunder). For present purposes however, it is relevant to note that this involves considering not just whether damages would be adequate for CAF (if the suspension is not lifted, and the trial court finds it should have been lifted), but also whether damages would be adequate for IR/NI Rail (if the suspension is continued, and the trial court finds it should not have been lifted). In this context, and in order to support its application to continue the suspension, CAF has offered an undertaking to pay damages to IR/NI Rail if the trial finds that the suspension was wrongly continued. This undertaking states: ‘…that, subject to Suspension being maintained in place, [CAF] is willing and able to give an undertaking in damages in respect of the additional costs (if any) actually and reasonably directly incurred by [IR/NI Rail] in maintaining the current service provision until such time as [CAF’s] proceedings are disposed of.’ Thus, CAF has limited its undertaking as to damages, to those damages incurred by IR/NI Rail in maintaining the current Enterprise Service.

CAF will not give undertaking to cover loss of this large sum

43. It is striking therefore to note that CAF has deliberately chosen not to offer to cover the loss to IR/NI Rail of €165 million in funding, if this sum is lost as a result of the suspension being continued (and the trial court finds that it should not have been continued).

44. This is relevant at this juncture because the unwillingness of CAF to cover IR/NI Rail’s potential losses in this regard simply highlights just how much money could be lost by the continuation of the suspension. It is so large that CAF is not prepared to cover the loss of it, to IR/NI Rail. CAF is, in effect, saying to IR/NI Rail that, if CAF succeeds in getting the suspension continued, but the trial court finds that the suspension should not have been continued, and the EU Funding is lost, IR/NI Rail will have to live with the loss of that funding for this major infrastructure project on the island of Ireland.

45. This clear failure to offer the undertaking to cover all damages which might arise, from the suspension which CAF seeks, simply serves to highlight the unique and considerable financial risks in this case attaching to the continuation of the suspension. But CAF says no certainty regarding the provision of EU Funding for four trains

46. CAF focuses in particular on IR/NI Rail’s key reason to lift the suspension (i.e. the risk of it losing EU Funding if the Contract is not signed by 30 November 2025) and it submits that this is: ‘based on nothing more than an “expectation that the SEUPB will require inter alia that the first four Enterprise trains…be delivered by 31 December 2029”’ This submission from CAF was in reply to the averments from IR/NI Rail to the effect that IR/NI Rail were engaging with the European Commission in respect of what it has characterized as a ‘major program modification’ (according to Mr. Smyth’s averments) but it submitted that IR/NI Rail ‘cannot be absolutely certain with regard to what final

decision the capital SEUPB will make.’ CAF concludes that this amounts to speculation and claims that it should not be deprived, on this basis, of what it describes as the effective remedy of suspending the Contract until a full trial is held of its allegations that the tender process was unlawful.

47. It is of course true, as pointed out by CAF, that when considering the balance of justice, there is no certainty that the EU Funding will be provided for the purchase of the four trains plus the infrastructure works, as the offer of funding was made in respect of eight trains.

48. However, it also must be observed that there was always some uncertainty regarding the funding, even of the eight trains, since the evidence before the Court was that both CAF and Stadler could not meet the deadline for delivering eight trains by 31 December 2029. Thus, the lack of certainty is simply continuing and so it is not sufficient, in itself, to support a continuation of the suspension.

49. However, while there is not 100% certainty that funding will be provided by SEUPB, what does seem clear is that there is a deadline for obtaining the EU Funding and delays could mean that this deadline is missed. It is also clear that there is no suggestion from any party that this deadline could be moved. Similarly, there was no evidence to suggest that a sum less than the €165 million might be available for the EFRP. In addition, there was no evidence that the EFRP can proceed without the EU Funding. Combined with all of this is the evidence from Stadler that it needs the Contract signed by 30 November 2025 to deliver four trains by the deadline of 31 December 2029 for the EU Funding to be achieved.

50. Thus, based on the evidence before this Court, if the Contract is not signed by 30 November 2025, it is likely that some, if not all, of the funding will not be provided. Furthermore, there was cogent evidence before this Court that it is likely that if the suspension is lifted, and the Contract is signed by 30 November 2025, that the EU funding will be provided. This evidence, in the form of the opinion of Mr. Smyth of IR/NI Rail, is not mere speculation, since it is supported by previous experience of dealings between Iarnród Eireann and Translink, on the one hand, and SEUPB, on the other hand, i.e. the experience of obtaining previous SEUPB funding for the Enterprise line and for the Derry/Londonderry hub. Therefore, it seems to this Court that it is more appropriate to categorise this evidence as informed opinion, rather than as speculation, as was claimed by CAF.

51. To conclude in relation to the unique and most important aspect of this case (i.e. the risk of the loss of EU Funding if the suspension is not lifted), in this Court’s view, while some of the other factors in the case might support CAF’s position, and some might support IR/NI Rail’s position, the foregoing factors regarding the EU Funding are determinative of whether the continuation of the suspension is justified on the balance of justice. In particular, this is:

• because of the magnitude of the funding (€165 million) which is likely to be lost - a fact starkly highlighted by the failure of CAF to undertake to compensate IR/NI Rail in this sum, if the EU Funding is lost as a result of the suspension being continued, and

• because the suspended contract is likely not just to be delayed, but to be extinguished, if the suspension is continued.

52. Another way to view this unique case is that, unlike the usual suspension-lifting cases, CAF, if it is successful in having the suspension continued, and then is successful at the trial, is not going to benefit from the Contract. This is because, based on the evidence before this Court, the Contract will be extinguished, since the EU Funding for same is unlikely to be available.

53. CAF’s response to this appears to be that, while it may not get this Contract, there may have to be a new competition at some stage in the future, however that is funded, and CAF will be entitled to compete in that process. However, this does not get away from the fact that the reason this Contract will not be available to be signed by CAF is not for some minor technical reason, but rather because of the possible loss of EU Funding of €165 million, which cannot be ignored and weighs heavily in the balance of justice to in this case.

54. Thus, when considering the balance of justice in this case, there is one unique factor. It is the fact that the continuation of the suspension is likely to lead to the extinguishment of the Contract (to be entered into with the notice party), and not simply a delay in its execution (with the possibility that it might be executed with the applicant). This fact and the reason for it (i.e. the likely loss of €165 million in EU Funding) is, in this Court’s view, a significant factor in the balance of justice in favour of the lifting of the suspension.

55. There are however other factors which were raised in this case by both parties, which will be briefly considered.

The merits of the claim that the tender process was unlawful

56. CAF makes various complaints about the legality of the tender process, which have not had to be considered, in the context of whether they raise a fair issue to be tried. This is because, as previously noted, this was conceded by IR/NI Rail. However, CAF claims that its case, that the tender process was unlawful, is so strong that this weighs in the balance of justice in favour of continuing the suspension.

57. In this regard, CAF complains that there should have been negative marking allocated to Stadler for its failure to commit to meet the deadline under the tender, which taints the tender process. However, in relation to this complaint, there is sworn evidence provided by IR/NI Rail to the effect that even with negative marking, this would not have made any difference to the outcome of the tender process.

58. More generally regarding the marks awarded in the tender process, IR/NI Rail accept that CAF is correct when it points out that it got more marks than Stadler, regarding the Lead Time criteria under the competition. This is because CAF’s proposed date, by which IR/NI Rail would have accepted the eighth train from CAF, was within a quicker time frame than Stadler (albeit that it was still beyond the 31 December 2029 deadline). However, IR/NI Rail also point out that CAF got considerably less marks in respect of Project Delivery criteria, than Stadler, because IR/NI Rail’s tender evaluation panel (the “Evaluation Panel”) believed that CAF did not provide sufficient detail for its tender to be credible. In contrast, the Evaluation Panel found that Stadler’s tender was, ‘credible and well thought through and the panel has a high level of confidence in the delivery of the timescales’ (which is stated in the letter dated 26 September 2025 from IR/NI Rail to CAF).

59. However, perhaps the most significant complaint about the tender process, from CAF’s perspective, is that the tender that it bid on was for eight trains, but the Contract which is to be entered into with Stadler is for four trains. CAF states that the Contract for four trains arose from the BAFO negotiations between IR/NI Rail and Stadler, to which it was a stranger. In particular, CAF complains that it was not given an opportunity by IR/NI Rail to engage in the BAFO process, and so to alter/improve its bid. In a similar vein, as regards the delivery process, CAF states that the tender it bid on, provided for the delivery of two trains, which had to be certified via a testing/commission process that could take up to 18 months, and only thereafter was a third train (out of the eight trains) to be delivered. CAF points out that the Contract proposed with Stadler provides for the delivery of three trains together and then a fourth train, which it says is a significant variation from the original tender. CAF claims that it was not given an opportunity to alter its bid to take account of this change, unlike Stadler. CAF claims that this all amounts to a breach of the principle of equal treatment and transparency which renders the tender process unlawful.

60. On the basis of these claims about the allegedly flawed tender process, CAF argues that, not only could it have won the tender, but that it is arguable that the tender process should be re-run because of the extensive changes to that process.

61. In reply however, IR/NI Rail argue that the changes from the four to eight trains, and the changes in the delivery process for those trains, were permitted. This is because they say they arose from the BAFO process, which they undertook with Stadler, which had emerged from the competition as the MEAT. They point, in particular, to Condition

11.3 and 11.4 of the Conditions of Tendering, which state that: ‘[11.3] IE and NI Railways reserve the right to conduct the evaluation of Tenders in successive stages, including the right to reduce the number of bidders by way of shortlist and/or seek best and final offers (“BAFOs”) from one or more of the Tenderers or to award the Contract without any further reference to, or communication with, any further reference or communication with any of the Tenderers. [11.4] IE and NI Railways reserve the right to enter into further negotiations with one or more preferred bidders. In the event that negotiations with the preferred bidder(s) do not result in the award of the Contracts to any of the preferred bidder(s), IE and NI railways reserve the right to negotiate with any one or more of the remaining Tenderers and finalise any outstanding issues in terms of contract schedules and to award the Contract without any further reference to or communication with any of the Tenderers.’ (Emphasis added)

62. At an interlocutory hearing, this Court cannot determine which of the parties is correct in this regard. However, what is clear from the foregoing claims and counterclaims is that this is not a straightforward case, such that this Court can reach a view on the strength (or weakness) of the applicant’s case at the interlocutory stage. Accordingly, the alleged strengths or weaknesses of CAF’s case is not a factor which weighs in the balance of justice in favour (or against) the granting of an injunction/continuation of the suspension. In the words of Clarke J. in Okunade at para. 104, one asks whether this is a case: ‘not involving detailed investigation of fact or complex questions of law [so that] the court can place all due weight on the strength or weakness of the applicant’s case.’ On the contrary, it seems clear to this Court that this case does involve a detailed investigation of facts and law before one can determine how strong CAF’s claim is, regarding the unlawfulness of the tender process. Thus, CFA’s claims are not so clearcut and strong as to support the lifting of the suspension.

Public interest factors

63. Okunade, at para. 104, requires that, in judicial review or public law proceedings such as this one (which is taken under the Remedies Regulations), that appropriate weight be given to ‘the orderly implementation of measures which are prima facie valid’. The tender process operated by IR/NI Rail must therefore be treated as prima facie valid. This therefore is a factor (albeit not determinative) in favour of lifting the suspension, so as to allow for this prima facie valid process to lead to its logical conclusion, namely the signing of the Contract.

64. Okunade, at para. 104, also requires that a court to, ‘give such weight as may be appropriate (if any) to any public interest in orderly operation of the particular scheme in which the measure under challenge is made’. In the context of a public procurement challenge, in Powerteam Electrical Services v ESB [2016] IEHC 87 at para. 58, Costello

J. (as she then was), put the same point in the following way: ‘the court may take into account the probable consequences of lifting the suspension for all interests likely to be harmed, as well as the public interest.’ In this instance, there is a considerable public interest in EU Funding of this magnitude being provided to a project which will improve the quality of the rail service between Belfast and Dublin. This is because if the EU does not fund this project then it seems likely that it is the public, via the taxpayer, which will have to come up with the shortfall. A further public interest concerns the improvement in emissions, which will result from replacing diesel trains with trains capable of running on electricity and battery. This was described in IR/NI Rail’s submissions as leading to ‘drastically reduced emission levels’ by ‘at least 47%’ (according to Mr. Smyth’s averments). This is because there can be little doubt there is a very significant public interest in not unnecessarily delaying publicly-funded projects which reduce emission levels.

65. 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. In this regard, the current situation is that a wheelchair user has to give prior notice to the Enterprise Service so as to ensure that there is a member of staff there to allow him/her to use portable ramps to access the train. In contrast, the new trains will have all passenger doors capable of being used by wheelchair users, without the necessity for a portable ramp. In addition, two carriages will be designed for use by wheelchair users and mobility scooters with accessible toilets and accessible catering facilities, so that they will have the same on-board options as able-bodied passengers.

66. As noted by Barrett J. in BAM PPP PGGM Infrastructure Cooperatie U.A. v National Treasury Management Agency [2015] IEHC 75 at para. 23, a relevant consideration in the balance of justice is 'the imperative of allowing badly needed public projects to proceed’. It seems to this Court that the reduction of emissions on its own might be regarded as ‘badly needed’, and so this, and the other public interest reasons, are a further factor in the balance of justice in favour of the lifting of the suspension. Damages as an inadequate remedy for CAF?

67. In opposing the lifting of the suspension, CAF placed particular emphasis on the fact that it believes that damages are not an adequate remedy for it (if the suspension is lifted and the trial court finds it should not have been lifted). Accordingly, it claims that this should weigh in the balance of justice in favour of the continuation of the suspension.

68. Firstly, it should be noted that IR/NI Rail have provided an undertaking to CAF that the alleged breaches in the tender process can be considered sufficiently serious, so as to satisfy the criteria in the joined cases of C-6/89 and C9/90 Francovich v Italian Republic, to enable damages be awarded to CAF. It follows that the Francovich test should not prevent any damages, which might be awarded to CAF, from being adequate. Nonetheless, CAF makes the case that there are other reasons why an award of damages would not sufficiently compensate it (if the trial court finds that the suspension should not have been lifted).

69. Before considering these reasons, it is important to bear in mind that we are not dealing with an assessment of the adequacy of damages in the context of a private law matter, but rather in the context of public law or judicial review proceedings concerning a matter of public interest. In this regard it is important to bear in mind the statement of Clarke J. in Okunade at para. 90: ‘the question of the adequacy or otherwise of damages is unlikely to be a significant feature in reaching an assessment as to how best to minimize the risk of injustice in the context of an interlocutory application pending trial of judicial review proceedings.’ (Emphasis added) This does not mean that in certain cases the inadequacy of damages might not be determinative, as happened in Word Perfect v Minister for Public Expenditure and Reform [2021] IECA 305. However, in public law/public interest cases such as this one, the fact that damages might be claimed not to be adequate is not as significant as in private law injunction cases.

70. Bearing this in mind, it is to be noted that CAF claims that, if it was to be successful at trial, damages will be an inadequate remedy, as they will not properly compensate CAF for its loss. This is because, as averred by Mr. David Lowe (“Mr. Lowe”), Managing Director of CAF Rail UK (a subsidiary of CAF) : ‘A contract in this industry not only brings a direct profit but also opportunities to leverage scale opportunities in manufacturing, spread development costs for a new product for this and other markets, reputational gain, reduction in overheads, amongst other matters, which would be very difficult for a Court to award a sum of compensation in respect of, if at all. I am advised that another possibility is that the competition would be determined by the Court to have been one which should have been re-run by [IR/NI Rail]. In that event, the Court would have to try to award a sum of compensation for the lost opportunity to participate in and win a completely distinct tender process (indeed maybe one with a much greater emphasis on production and acceptance deadlines). I am advised that this would be a very difficult task for the Court to meaningfully undertake, with little assurance of proper compensation.’

71. Firstly, it should 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, which would ensure that damages would be an adequate remedy for IR/NI Rail (if they win at trial). This is because one has to consider, as part of the balance of justice, the question of the adequacy of damages, not just for CAF (if it wins at trial) but also for IR/NI Rail (if they win at trial). Thus, CAF’s failure to provide an unqualified undertaking to IR/NI weighs in favour of the lifting of the suspension. This is clear from Homecare Medical Supplies Unlimited Company v HSE [2018] IEHC 55 at paras. 58 and 74 where Barniville J. (as he then was) stated: ‘I do not believe that the HSE should have to take that risk, however real that risk may be, by accepting a lesser form of undertaking as to damages.

[...]

The absence of an unqualified undertaking as to damages is also a factor which I take into account and which favours the lifting of the automatic suspension.’

72. Secondly, this Court does accept, as claimed by Mr. Lowe, 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 etc. However, this does not necessarily make them inadequate. This is because it is clear from Powerteam that the courts do get involved in assessing damages for loss of opportunity (or loss of chance), even though this is not a straightforward task. At para. 37, Costello J. stated: ‘Irish courts have quantified damages in respect of “loss of chance” claims in Vavasour v. O'Reilly [2005] IEHC 16 and indicated that they could be assessed in Minister for Communications v. Figary Watersports Development company Ltd. [2010] IEHC 541. It is well settled law that a difficulty of quantifying damages will not warrant the conclusion that damages are an inadequate remedy.’

73. Thirdly, as regards damage to reputation, it is clear from BAM and Powerteam, the Irish courts do not regard difficulties in assessing claims for reputational damage, as a result of not winning tenders, as meaning that damages are inadequate in those cases. At para.

37 in Powerteam, Costello J. stated: ‘I do not accept that reputational damage arising from the loss of a tender competition per se will warrant the conclusion that damages are an inadequate remedy for an applicant.’ In BAM at para. 19, Barrett J. answered the contention that the reputational damage to the losing tenderer would be very difficult to evaluate and so damages would be inadequate in the following way: ‘The court is unconvinced by BAM’s contention in this regard. When it comes to tendering for contracts, to use a colloquialism, “you win some, you lose some”’. Furthermore, it is this Court’s view that CAF’s characterisation of its claim, as a loss of a ‘reputation gain’ (which it would have got, if it had won the tender), is in effect, the other side of the same coin as loss of reputation. After all, in both instances a party is looking for damages for the impact on its reputation, for its (allegedly wrongful) failure to be awarded a tender. Thus, since to date damages have not been awarded by the Irish courts for reputation loss (in the context of a tender bid), this Court does not believe that damages are available for the loss of a reputation gain (in the context of tender bid). Hence CAF’s claim that damages are inadequate for this reason is rejected.

74. Fourthly, and more generally regarding the difficulty of assessing damages alleged by CAF, it is clear that (as noted by Lord Diplock in American Cyanamid v Ethicon Ltd. [1975] A.C. 396 and quoted by O’Donnell J. (as he then was) in Merck Sharp & Dohme Corporation v Clonmel Healthcare Limited [2019] IESC 65, [2020] 2 IR 1) at para. 36, in most litigation, parties will be able to show that they will suffer damage that cannot be adequately compensated for in damages or that ‘there is some element of unquantifiable damages’. Thus, CAF’s claim that it would be ‘very difficult for a Court to award a sum of compensation […] if at all’ could be said about many cases before the courts. A difficulty assessing damages, does not make them legally inadequate, such that in a case such as this one, the tender process must be halted because of a challenge to its legality. This is because damages could be said in many, if not most, cases to be inadequate. Indeed, the perfect example of how inadequate damages are is provided by personal injury cases. This is because no sane person would regard €550,000 as adequate general damages for the pain and suffering of a young person being catastrophically injured and bed-bound for the rest of their life. This is because no one can ever be put back into the situation one would have been, by a sum of money. However, because courts have to nonetheless attempt to fix a sum which is fair to the plaintiff and the defendant, this is the sum so fixed, and these general damages are regarded as legally adequate (albeit that special damages can be multiples of that sum).

75. Similarly, CAF might never be put back into the exact financial position, it would have been, if the trial court were to find that the tender was unlawful/should have been rerun. However, as noted at para. 42. of Merck, the difficulty of the calculation of damages, whether in a personal injuries’ situation or a breach of contract case, does not mean that damages are not legally adequate. This is especially so in a public procurement case because as previously noted in Okunade at para. 90, in those cases ‘the question of the adequacy or otherwise of damages is unlikely to be a significant feature.’

76. CAF relied on Word Perfect v Minister for Public Expenditure and Reform [2021] IECA 305, and it is true that it is an example of a case where the damages were held to be sufficiently inadequate as to support a finding that the automatic suspension should be continued. However, that case did involve the challenge to a number of aspects of a competition. For this reason, the calculation of damages would have been particularly onerous as it involved conceptualising the competition without the allegedly unlawful aspects and various variables not included. Accordingly, there were in the Court of Appeal’s view too many counter-factuals, not involving the breaches, which would be extremely difficult to calculate.

77. This case involves the award of two inter-related contracts (the purchase and the maintenance contract for the trains), and so it does not involve quite the same complexity as the Word Perfect case. However, the crucial difference between this case and Word Perfect is the fact that in this case there is the likely extinguishment of the Contract and likely loss of EU Funding, which arise from the continuation of the suspension. Delay between a continuation of the suspension and the trial of the issue

78. In the Word Perfect case, the Court of Appeal (per Barniville J.) stated that the starting point in analysing the balance of justice assessment is a consideration of the likely period during which the automatic suspension will remain in force. It is not the starting point for the analysis in this case, because of the unique feature that the failure to lift the suspension is likely to lead to an extinguishment of the Contract and the loss of the EU Funding. Nonetheless, it is a factor to be considered. In this regard, CAF argues that it should be possible to have a trial of the action within a number of months and so any delay regarding the signing of a contract would be minimal, which it says favours the continuation of the suspension.

79. This Court does not agree. This is because the shortest time frame of any case, which was opened to this Court, between the issue of proceedings (which in this case was 17 October 2025) and judgment, was 7 months. In considering this length of delay, it is crucial to note that one is not involved in an assessment of the length of delay in isolation. Rather one must assess the delay to the signing of the contract, in the context of what is being delayed. Thus, for example, in CHC Ireland DAC v The Minister for Transport [2023] IECA 229, what was being delayed was lifesaving coastguard rescue services and the length of any delay, no matter how short, had to be considered in that context. On the other hand, in Word Perfect, a longer delay in the context of the provision of translation services (which could in any case be sourced separately by the contracting authority), might be (and was in that instance) considered more leniently.

80. Here, the facts are unique, as there is evidence that the Contract must be signed within

8 working-days from the hearing of this application, failing which, the Court was told, the Contract will be extinguished. There is no prospect of a trial within that time-frame. Thus, this is a case where the length of the delay, between the application to lift the suspension and the trial court giving judgment on the substantive dispute, has limited relevance to the balance of justice. This is because this is not a case of the Contract only being delayed for say 7 months, awaiting the judgment of the trial court, rather it is a case of the Contract being extinguished if there is a delay beyond 8 working days from the date of the hearing of the application to lift the suspension.

The status quo

81. CAF argues that the status quo, which has to be considered by this Court, when deciding to lift/continue the suspension, is the undisputed fact that the SEPUB deadline for the delivery of eight trains cannot be met. However, this is only a partial picture of the status quo, since the evidence before the Court is that IR/NI Rail have engaged with SEPUB and believe that the EU Funding will be provided for the purchase of four trains, which will be delivered by the deadline. Reliance by CAF on the status quo, in the sense of the position on the ground at the date of the hearing regarding the EU funding, does not therefore add something to the balance of justice in favour of continuing the suspension. This is because the evidence before the Court is that the position on the ground is that EU funding is probable.

82. In any event, it seems to this Court that the most important aspect of the status quo, in the context of this application, is the fact that this Court must deem the status quo to be that there is assumed to be no suspension in place. This is because, as noted by Costello

J. in CHC at para. 113 the continuation of the suspension ‘amounts to an alteration of the status quo’ and the ‘status quo is that there is no suspension’. All of this means that, as noted by Costello J., if the issues in a suspension-lifting case are finely balanced, it is the party seeking to lift the suspension who wins, since the status quo is that there is no suspension. This therefore is yet another factor in favour of the lifting of the suspension in this case, i.e. that the status quo is that there is no suspension in place.

No risk to the operation of the Enterprise Service

83. CAF argues that a fact, in favour of continuing the suspension, is that doing so will not risk any interruption to the provision of the services under tender, unlike say in the CHC case where there was a risk to the operation of the coastal rescue services (and where the suspension was lifted).

84. It is true that lifting the suspension does not put the Enterprise Service at risk. However, focusing on this factor ignores what is at risk, namely the loss of EU Funding, which puts the improvement of the Enterprise Service, in the short-term at least, at risk. This factor relied upon by CAF is not therefore one which weighs in favour of continuing the suspension.

CONCLUSION

85. For all the reasons set out, and primarily 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 Court concludes that the balance of justice favours the lifting of the suspension with immediate effect and that lifting the suspension leads to the least risk of injustice to the parties.

86. In view of the urgency of this case, it will be put in for mention tomorrow, 27 November 2025, at 10.45 a.m. to deal with any final orders and costs. However, on the assumption that it should not be necessary to expend costs on a further court sitting, and in order to facilitate the parties agreeing all outstanding matters, the parties have liberty to notify the Registrar if such a listing proves to be unnecessary. This is particularly so in light of the clear implication from Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2023] IECA 189 at para. 94, that there is an onus on lawyers to take a broad-brush approach to costs and not to engage in the inefficient use of court resources and costly ‘nit-picking’.