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.