NATS (Services) Ltd v Gatwick Airport Ltd and Another: TCC 2 Oct 2014

NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award of contracts pending resolution.
Held: The automatic suspension under the Regulations should not be lifted.
The issue of whether GAL was a ‘relevant person’ so as to come within the Regulations raises a serious issue to be tried. Furthermore: ‘there would be great difficulty in estimating the damages which would have to be assessed if the breach in terms of undisclosed, irrational and inappropriate criteria were to be proved. The court would have to assess what would be the impact if those criteria had been disclosed to the tenderers and what would be the impact if rational and appropriate criteria had been applied. Even with two tenderers the court will be left to speculate on a range of possibilities and, whilst it would do its best to come to a conclusion, the difficulty in estimating the damages is, as Sachs LJ said a factor to be taken into account in determining whether it would be unjust to confine a claimant to damages for breach. ‘ Damages to NATS would not be an adequate remedy. Moreover, the balance of convenience lies in favour of the contract not being entered into under the procurement until after an expedited trial.

Raamsey J
[2014] EWHC 3133 (TCC)
Utilities Contracts Regulations 2006, Directive 89/665/EEC, Directive 92/13/EEC, Directive 2007/66
England and Wales
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CitedCayne and Another v Global Natural Resources Plc ChD 12-Aug-1982
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CitedEvans Marshall and Co Ltd v Bertola SA CA 1973
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Lists of cited by and citing cases may be incomplete.

Transport, Contract, European, Administrative, Litigation Practice

Updated: 31 October 2021; Ref: scu.537333