Dukes Bailiffs Limited v Breckland Council
[2023] EWHC 1569 (TCC)
Cambrian Offshore South West Limited, R (on the application of) v Norfolk County Council
7 May 2024
[2024] EWHC 1042 (Admin)
High Court
A company claimed grant money, but the council refused due to problems with how the company chose a subcontractor. The court agreed to review some, but not all, of the company's complaints about the council's decision. The main issues are about whether the rules for choosing subcontractors were properly followed and whether the council's decision was fair.
Key Facts
- •Cambrian Offshore South West Limited (COSW) claimed £1,372,405 in grant monies from Norfolk County Council (the Defendant) for work subcontracted to Keynvor Morlift Limited (KML).
- •The Defendant rejected the claim due to alleged breaches of procurement obligations, including failure to advertise EU-wide, inadequate conflict of interest mitigation (Diccon Rogers, a director of both COSW and KML), and uncommercial contract variations.
- •COSW challenged the decision through judicial review, raising seven grounds of challenge.
- •The contract involved removing a tidal stream turbine, with significant contract variations arising from delays.
- •The Interreg VA France (Channel) England Programme, supported by the European Regional Development Fund (ERDF), governed the grant.
- •The dispute centered on whether the contract was a 'public works contract' or a 'public services contract' under EU procurement law and whether the ESIF National Procurement Requirements applied.
Legal Principles
Duty to give adequate reasons for a decision
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1065C; South Buckinghamshire District Council and another v Porter [2004] 1 WLR 1953 at [36]
Interpretation of 'national rules' in the Interreg Programme Manual regarding procurement
Interreg Programme Manual, page 28
Definition of 'public works contract' under Regulation 2 of the PCR, read with Schedule 2 and regulation 4
Public Contracts Regulations 2015
Standard of review for material errors of fact
E v Secretary of State for the Home Department [2004] QB 1044
Substantive legitimate expectation
R (Bibi) v Newham London Borough Council [2002] 1 WLR 237 at [59]; Jobsin Co UK plc v Department of Health [2002] 1 CMLR 44
Article 1 Protocol 1 of the European Convention on Human Rights (peaceful enjoyment of possessions)
Kurban v Turkey, no. 75414/10, 24 November 2020 at [63]
Sound financial management under Article 125 of Regulation (EU) No 1303/2013
Regulation (EU) No 1303/2013
Outcomes
Permission for judicial review granted in respect of Grounds 2, 3 and 5 (in part).
Grounds 2 and 3 raised arguable points of construction regarding the applicability of ESIF requirements and the classification of the contract as a works or services contract. Ground 5, relating to contract variations, was partially arguable.
Permission for judicial review refused for Grounds 1, 4, 6, and 7.
Ground 1 (inadequate reasons) failed because COSW was not substantially prejudiced. Ground 4 (irrelevant considerations) failed because the considerations were relevant, even if factually incorrect. Ground 6 (legitimate expectation) failed due to inconsistencies with the express terms of the agreements and lack of factual foundation. Ground 7 (A1P1 ECHR) failed due to lack of clear argument on how it was engaged.
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