Newlyn plc v LB of Waltham Forest HT-2016-000029
The High Court has dismissed a claim under the Public Contracts Regulations 2015 (“the PCR 2015”), and for judicial review, seeking to challenge the evaluation and award of public contracts under the United Kingdom YPO national dynamic purchasing system (“the DPS”).
Holding that the claims should be struck out or subject to summary judgment, Coulson J accepted LBWF’s submissions that:
- the decision of the Court of Appeal in JBW Group Limited v Ministry of Justice[2012] 2 CMLR could not be materially distinguished, and so the contracts were “services concessions” that fall outside the PCR 2015 altogether,
- the Court does not have power, or alternatively should not (absent exceptional circumstances) exercise a case management power to ‘transform’ a claim pleaded as a Part 7 claim for breach of statutory duty under the PCR 2015 into a claim for judicial review,
- references in the YPO and other tender documents were not capable, or sufficient, of founding a legitimate expectation (enforceable by way of judicial review) that the evaluation would be conducted in accordance with the PCR 2015,
- decisions regarding the evaluation and award of contracts falling outside the PCR 2015 should not be subject to judicial review on grounds of irrationality (applying authorities such as R (Gamesa Energy) [2006] EWHC 2167 (Admin)).
The Court held that the claims should therefore be struck out/subject to summary judgment (and/or that permission for judicial review should be refused).
Joseph Barrett of 11KBW was sole counsel for the successful Defendant, LBWF.
The judgment can be read here.
