Braceurself Limited v NHS England (No 2: Substantive Appeal)
[2024] EWCA Civ 39
Dukes Bailiffs Limited v Breckland Council
26 June 2023
[2023] EWHC 1569 (TCC)
High Court
A company lost a bid for a government contract and sued. The judge said the contract wasn't covered by the rules the company thought applied, so the company lost the lawsuit. They can still try to win damages based on a different argument.
Key Facts
- •Dukes Bailiffs Ltd (Claimant) lost a tender to Bristow & Sutor for a debt enforcement contract with Breckland Council (Defendant).
- •The contract was for debt enforcement services, primarily Council Tax and Non-Domestic Rates, utilizing a Dynamic Purchasing System (DPS).
- •Claimant brought a claim under the Public Contract Regulations 2015 (PCR 15) alleging breaches and apparent bias.
- •Defendant argued PCR 15 did not apply; the contract was a 'services concession contract' under the Concession Contracts Regulations 2016 (CCR 16).
- •Claimant also brought a Judicial Review claim.
- •The contract value was below the financial threshold for CCR 16.
Legal Principles
Distinction between 'public contracts' (PCR 15) and 'concession contracts' (CCR 16).
Public Contract Regulations 2015, Concession Contracts Regulations 2016, CJEU case law (JBW, Newlyn, Ocean, Oymanns, Eurawasser, Stadler, Promoimpresa)
Interpretation of EU-derived domestic legislation; 'indirect effect' of EU Directives.
European Union (Withdrawal) Act 2018, CJEU case law (Marleasing)
Summary judgment principles; burden of proof.
CPR 24.2, CPR 3.4(2)(a), Easyair v Opal Telecom, Three Rivers No 3
Judicial Review principles; amenability, arguability, and 'no substantial difference' test.
CPR 54, Senior Courts Act 1981 s.31, R(Good Law Project) v Cabinet Office, R v East Berkshire AHA exp Walsh
Implied terms in contracts; 'good faith', 'consideration of tenders'.
Blackpool and Fylde Aero Club v Blackpool BC, JBW Group v MoJ
Outcomes
Claim under PCR 15 struck out; summary judgment granted for Defendant.
The contract was a 'services concession contract' under CCR 16, not a 'public contract' under PCR 15. The Claimant did not have a realistic prospect of success.
Permission for Judicial Review refused.
The grounds of challenge (legitimate expectation, Ermakov principle, inadequate reasons, apparent bias) were either not amenable to Judicial Review, not arguable, or would not have resulted in a substantially different outcome.
Contract claim to proceed to trial.
The contract claim, alleging breach of implied terms, is arguable and distinct from the struck-out PCR 15 claim.
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