The contract in Dynniq UK Ltd v Lancashire County Council (2017) EWHC 3173 (TCC) concerns the maintenance of traffic signal installations and associated equipment, and the construction of new or replacement traffic signal installations and equipment, in Lancashire.  The parties were in dispute as to the proper interpretation of the contract.

Coulson J stated:-

“10.      The rules of construction are now well-known: there has been a plethora of cases in the House of Lords and the Supreme Court in recent years in which the relevant rules have been repeatedly set out, including Chartbrook Limited v Persimmon Homes Limited [2009] UKHL 38; Rainy Sky SA v Kookmin Bank [2011] UKSC 50; Arnold v Britton [2015] UKSC 36; and Woods v Capita Insurance Service Limited [2017] UKSC 24. As I have pointed out elsewhere, some practitioners and legal commentators, with nothing better to do, have sought to exploit certain fine linguistic differences between the various judgments in those cases but, in my view, they all point in the same general direction. What matters is the objective meaning of the language used, to be derived from the natural usual meaning of the words in the contract, when seen against the background/context of the contract. Where there are rival interpretations, one test is to consider which interpretation is more consistent with business common sense.”

“12.      … It is a well-established principle that the court should endeavour to give effect to all parts of the contract and to treat no part of it as inoperative or surplus: …”

“31.      … There is no lack of clarity in the words, and the bespoke amendments will (if there is a clash, which I doubt) take precedence over the standard form of the Method of Measurement …”

In Save Britain’s Heritage v SoS for CLG and Westminster City Council (2017) EWHC 3059 (Admin) Lang J held that there was no duty on the SoS to give reasons for a decision not to call in the controversial planning application for the Paddington Cube development.  There had been a practice that could well have given rise to a procedural legitimate expectation that reasons would be given for non-intervention. However, that practice had ceased.  There was no longer an established practice to that effect. On the contrary, the established practice had become that reasons would not be given. The earlier practice and statements sought to be relied upon had been superseded.  They could no longer found a legitimate expectation that reasons would be given.  No misleading representation had been made at the relevant time.  Anyone active in planning matters should have been aware of the well-publicised change. If any expectation remained, it had ceased to be a legitimate one. There was no legal requirement to issue a formal statement of the change.  Practice and policy are subject to change.

In R (Help Refugees Ltd) v SSHD (2017) EWHC 2727 (Admin) a Divisional Court held that there had been no unfairness in the SSHD’s statutory consultation with local authorities on the requirements relating to the relocation of Unaccompanied Asylum Seeking Children.  The test was not whether the consultation process was free from all blemish, but whether the consultation was so unfair as to be unlawful, i.e. whether it reached an appropriate level of fairness, judged in the light of the criteria for a fair consultation.  The target audience was knowledgeable, sophisticated, and familiar with refugee issues. There was no reasonable expectation that late responses would be considered. Read more »

Lewis J in R (Lupepe) v SSHD (2017) EWHC 2690 (Admin) considers (paragraphs 48/49) the principle that it is unreasonable, in the public law sense, to disagree with a factual conclusion of an adjudicator who has heard the evidence unless the adjudicator’s conclusion is itself unlawful as a matter of public law (or unless fresh material has become available since the hearing).  An illustration of the principle is the decision of the Court of Appeal in R v Warwickshire County Council ex p Powergen (1996) 97 LGR 617 where the Court of Appeal held that a highway authority could not depart from the decision of a planning inspector on a planning appeal that a particular development did not give rise to highway safety issues and it could not act on the basis that the proposed development would create highway dangers.

Lewis J also considered (paragraphs 61-66 inclusive) the position with respect to unpublished policies and (paragraphs 67-69 inclusive) procedural fairness (opportunity to make representations). The law governing the application of unpublished policies was considered by the Supreme Court in R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2012] 1 AC 245. The Supreme Court concluded that what must be published “is that which a person who is affected by a policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made”. Where there is a policy in existence, and its provisions are material to the exercise of a discretion in a particular case, those provisions must be made public.

In Case E-16/16, Fosen-Linjen AS v AtB AS, the EFTA Court has said, in a Judgment on 31 October 2017, that damages are available as a remedy for breach of the procurement rules where there is a sufficient causal link between the breach and the damage irrespective of the gravity of the breach.  A simple breach of procurement law is in itself says the Court sufficient to trigger the liability of the contracting authority to compensate for damage incurred: paragraph 82.  This contrasts with the Supreme Court Judgement in Energy Solutions v NDA (2017) UKSC 34.

R (Hersi & Co) v Lord Chancellor (2017) EWHC 2667 (TCC) is concerned with the defendant’s conduct of a public procurement exercise for the award of contracts to provide publicly-funded legal services relating to immigration and asylum and mental health work.

As part of the tender, there were 7 particular questions, grouped under the heading ‘Selection Criteria’, which all applicants were required to answer. The claimant answered the first three, but then left blank the answers to Questions 4, 5, 6 and 7. In consequence, the defendant awarded the claimant no points for its answers to those questions and the claimant’s tender failed to gain the required points to justify the award of a contract. The claimant now argues, either that the defendant should have sought clarification of their non-answers, and/or that the answers to the questions were plain from other parts of the claimant’s tender and should have been scored accordingly. In addition, the claimant has a wider case in which it seeks to compare the defendant’s treatment of numerous other applicants on other aspects of their tenders, so as to allege inequality of treatment. Read more »

The Judgment of Coulson J in Cemex v Network Rail [2017] EWHC 2392 (TCC) is of interest on a number of aspects of procurement challenges.  On applications for an extension of time to serve the Particulars of Claim the Judge said:- Read more »

The best possible service to the public, without disruption, and with minimal risk to service recipients, is a factor in favour of allowing a public contract award to be implemented. In Sysmex (UK) Ltd v Imperial College Healthcare NHS Trust [2017] EWHC 1824 (TCC) Coulson J was concerned with a procurement challenge to the Trust’s award of a managed services contract (“the MSC”) in respect of pathology services. Read more »

Agoreyo v Lambeth LBC (2017) EWHC (2019) QB reaffirms that suspension ( of a teacher ) is not a ” neutral act ” ( para 24 ) and should not be considered a routine response to the need for an investigation ( para 27 ) and that alternatives must be considered ( para 29 ).

In Dudley MBC v Willetts, UKEAT/0334/16/JOJ, the President of the EAT, Simler J, held that payment for voluntary overtime which is regularly worked is normal remuneration for the purposes of calculating holiday pay notwithstanding that there is no obligation in the employment contract itself to perform the work.