The claimant challenged the scheme set out for procurement when making arrangements with a sponsor for establishing a school as an Academy school. . The main ground of challenge was that the procurement did not comply with the Public Contracts Regulations 2006.
Held: Arden LJ dismissed that ground substantively. She went on, however, to consider whether the claimant had standing, albeit the issue was ‘academic’. Arden LJ considered three bases on which the claimant asserted standing. First, it was said that she would have standing to bring a common law challenge to the rationality of the decision; and, that being so, the EU principle of equivalence meant that she must also have standing to complain about breach of the procurement regime. This argument was rejected at, because a rationality challenge was insufficiently similar to a challenge under the Regulations.
It was said that the issue was an important one, which ought to be capable of being tested in judicial review proceedings. But Arden LJ said that this was not enough to confer standing: ‘Economic operators can test the question of legality. It would drive a coach and horses through the requirement for standing if the importance of the issue justified standing in such circumstances. It would mean that people with no real interest in the question could bring judicial review proceedings.’
it was said that, if the claimant had an interest in the relief to be granted, she should be entitled to advance all available legal arguments in support of that relief. As to that, Arden LJ said: ‘Forbes J accepted the submission that a failure to comply with any of the 2006 Regulations gives rise only to a private law claim. Such a conclusion has potentially far-reaching implications. It means that a person who is not an economic operator entitled to a specific remedy under regulation 47 can never bring judicial review proceedings in respect of that failure unless he can bring himself within the exceptional type of claimant in the Law Society case. We consider that the judge’s proposition goes too far. The failure to comply with the 2006 Regulations is an unlawful act, whether or not there is no economic operator who wishes to bring proceedings under regulation 47, and thus a paradigm situation in which a public body should be subject to review by the court. We incline to the view that an individual who has a sufficient interest in compliance with the public procurement regime in the sense that he is affected in some identifiable way, but is not himself an economic operator who could pursue remedies under regulation 47, can bring judicial review proceedings to prevent non-compliance with the 2006 Regulations or the obligations derived from the Treaty, especially before any infringement takes place: see generally Mass Energy Ltd v Birmingham City Council [1994] Env LR 298, 306, cf Kathro’s case [2001] 4 PLR 83, where Richards J held that the claimants were not affected in any way by the choice of tendering procedure. He may have such an interest if he can show that performance of the competitive tendering procedure in Directive 2004/18 or of the obligation under the Treaty might have led to a different outcome that would have had a direct impact on him. We can also envisage cases where the gravity of a departure from public law obligations may justify the grant of a public law remedy in any event. However, while the court is in general bound to ask itself why a public law remedy is necessary when private law remedies are available, once permission to bring judicial review proceedings has been given, then, unless it is appropriate to deal with standing as a preliminary issue, there is likely to be little point in spending valuable court time and costs on the issue of standing. In that situation, we would not encourage the court to embark on a complex argument about standing. This will especially be the case where standing is a borderline issue.
However, in this case the observations of Richards J in Kathro’s case are particularly apposite. Ms Chandler states in her witness statement that she is sceptical about academy schools. She fears that they select the most gifted children as pupils. She is concerned that academy schools are run more like businesses than schools. Her first choice would be for her children’s school to be run by the local education authority. What Ms Chandler wants to happen is that there should be a competition to determine who should run the new school in Camden and she suggests that she should have the right to be consulted if the public procurement regime applied. In fact there would be no consultation of the kind she seeks. Ms Chandler is not challenging the Secretary of State’s decision because of any interest that she has in the observance of the public procurement regime but because she is opposed to the institution of academy schools. She is thus attempting, or seeking, to use the public procurement regime for a purpose for which it was not created. In all the circumstances, it would, in our judgment, be outside the proper function of public law remedies to give Ms Chandler standing to pursue her claim.’
Judges:
Sir Anthony May P, Arden and Toulson LJJ
Citations:
[2009] EWCA Civ 1011, [2010] BLGR 1, [2010] Eu LR 232, [2010] 1 CMLR 19, [2010] PTSR 749
Links:
Statutes:
Education Act 1996, Public Contracts Regulations 2006
Jurisdiction:
England and Wales
Cited by:
Cited – Good Law Project Ltd and Others, Regina (on Application of) v Secretary of State for Health and Social Care Admn 18-Feb-2021
Failure to Publish Contracts awards details
Challenge to alleged failures by the Secretary of State to comply with procurement law and policy in relation to contracts for goods and services awarded following the onset of the COVID-19 pandemic.
Held: The contracts had been awarded under . .
Lists of cited by and citing cases may be incomplete.
European, Education
Updated: 07 September 2022; Ref: scu.375939