Ireland: Allpay Limited v Northern Ireland

Last Updated: 16 October 2015
Article by William Curry and Pat Mc Govern


The High Court of Northern Ireland applied the American Cyanamid test (serious issue to be tried; monetary damages inadequate; and balance of convenience) and granted an order lifting the automatic suspension thereby allowing NIHE to conclude the contract. If the challenger ultimately won (after full trial – at a later date) it could obtain a remedy in monetary damages. The Court had regard to the public interest in such public contracts being awarded without further delay if (as held to be the case here) monetary damages would compensate adequately a challenger which might succeed ultimately.

The Court considered that there was no reasonable suspicion that the bid of Paypoint, the first placed bidder, was abnormally low or that it might not be able to perform its obligations if it won the contract. The Court held that the bid was in any case "at market rates". It concluded that, even if it was wrong on those points, there was no general obligation on an awarding authority to investigate such a bid.


The defendant, Northern Ireland Housing Executive (NIHE), ran a procurement competition lots 1 and 3 of which were to provide a payment connection network and provision of a secure web payment service. This was in connection with processing payments to NIHE in connection with its public housing function.

NIHE advised the plaintiff Allpay of an intention to award lots 1 and 3 to Paypoint. Allpay issued proceedings challenging this. NIHE sought to set aside the "automatic suspension" under Regulation 47H(1)(a) of the Public Sector Regulations 2006 (as amended). The automatic suspension (operative automatically once Allpay had issued its proceedings) prevented the awarding authority (here NIHE) from concluding a contract with the winning bidder until the trial of the matter or until the High Court ordered otherwise at an earlier date. NIHE applied to the High Court to lift the automatic suspension at interlocutory stage pending full trial later.

At the heart of the matter was the fact that NIHE required tenderers to offer customers a "Maximum Transaction Value" (MTV) for all methods of payment (cash, credit cards, debit cards and others) no lower than £220. Allpay sought clarification as Paypoint, a rival bidder, had its own network (which Allpay proposed to use) and was only prepared to permit Allpay a MTV of £200 when using that network. Allpay complained but NIHE rejected the complaint. Allpay also complained that the bids were abnormally low and ought to have been excluded by NIHE.


The High Court (Horner J) held that NIHE had made clear that it required the minimum MTV as stated. Moreover, Allpay was not obliged to use the Paypoint network and the defendant NIHE did not disqualify the plaintiff on that count but rather merely did not award any marks to Allpay for the Paypoint network. Allpay was held to have no ground for complaint.

The Court held that the tender documents for lot 1 could have been more clearly worded but that was not the test. The Court considered that the claim confused the difference between average and maximum. If the plaintiff had been in any doubt whether a tenderer had to offer a MTV greater than £220 that would have been dispelled by a clarification issued by NIHE. The Court considered that the stance taken by the plaintiff was opportunistic and the plaintiff knew exactly what NIHE had in mind, namely, that the required MTV applied to each cash payment and any other payment which any reasonably well informed and normally diligent ("RWIND") tenderer intended to include in its offer. Horner J held that there was no serious question to be tried on that issue.

American Cyanamid

The Court applied the American Cyanamid [1] test, deeming it appropriate in the circumstances and compatible with EU Law. It held that, in any case, damages would be an adequate remedy for Allpay including because nothing had been put forward which suggested to the contrary. The Court was capable of assessing damages if necessary. Moreover, this was not a case involving a claim for reputation damage which might be difficult to assess. The balance of convenience lay in favour of lifting the automatic suspension. There was a public interest in permitting the contract to be awarded rather than delayed further and it was not good administration to delay further a public contract such as this. It would also be unfair that Paypoint would have to subsidise the litigation by being required to provide its services to the defendant under the old contract which attracted lower payments.

Abnormally Low Bids

As to the question of abnormally low bids, the Court ruled that there was no serious issue to be tried because no suspicion had been aroused that the bids of Paypoint were abnormally low and that both bids in respect of lots 1 and 3 were in line with prices which Paypoint currently charged and thus were in line with "market rates". Furthermore, the Court concluded that there was no general obligation on NIHE to carry out an investigation into those bids. The relevant legislative provisions were designed to avoid contracting authorities rejecting low tenders where there was a good reason for the tender being low. The Court did not have to determine such an issue in this case. Accordingly, damages would be an adequate remedy for the plaintiff if it ultimately succeeded.


The Court lifted the automatic suspension thus leaving the plaintiff to pursue a claim in monetary damages and NIHE free to award the contract.


The case is a classic application of the American Cyanamid principles on the question of lifting the "automatic suspension" at interlocutory stage. It also illustrates the importance which the Courts attach to the public interest in public contracts being awarded.

The Court affirmed its view that there was no general obligation on an awarding authority to investigate an allegedly abnormally low bid.


[1] American Cyanamid Company v Ethicon Limited [1975] AC 396

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.