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.
Judges:
Raamsey J
Citations:
[2014] EWHC 3133 (TCC), [2015] PTSR 566, [2014] WLR(D) 416
Links:
Statutes:
Utilities Contracts Regulations 2006, Directive 89/665/EEC, Directive 92/13/EEC, Directive 2007/66, Utilities Contracts Regulations 2006
Jurisdiction:
England and Wales
Citing:
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – von Colson and Kamann v Land Nordrhein-Westfalen ECJ 10-Apr-1984
LMA Art.177[Art.234] EC proceedings – Ms Van Colson had applied for a job with the prison service and Ms Harz had applied for a job with a private company Deutsche Tradex GmbH. Both had been rejected. The German . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – NWL Limited v Woods 1979
Lord Diplock said: ‘Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its . .
Cited – Cayne and Another v Global Natural Resources Plc ChD 12-Aug-1982
The court gave this example of the legitimate use of the directors’ powers to defeat a take-over: ‘If Company A and Company B are in business competition, and Company A acquires a large holding of shares in Company B with the object of running . .
Cited – National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) PC 28-Apr-2009
Jamaica – The customer appealed against refusal of an order requiring its bank not to close the customer accounts after the customer had been accused of fraud. There was no evidence that the account was being used unlawfully.
Held: In the . .
Cited – Exel Europe Ltd v University Hospitals Coventry and Another TCC 21-Dec-2010
Akenhead J said: ‘For many years, the Courts of England and Wales have, with regard to interlocutory or interim injunctions, applied the principles and practice laid down in the well-known case of American Cyanamid Co v Ethicon [1975] AC 396. The . .
Cited – Alstom Transport v Eurostar International Ltd ChD 20-Jan-2012
The claimant wished to supply rolling stock to the defendant, and alleged that its tendering process had been breach of European requirements. The defendant argued that the process was not subject to the rules.
Held: Roth J said: ‘an . .
Cited – DWF Llp v Secretary of State for Business Innovation and Skills, Acting On Behalf of The Insolvency Service CA 8-Jul-2014
The claimant firm of solicitors challenged the decision made by the respondent in the award of contracts to provide legal services to the respondent.
Held: Sir Robin Jacob, giving the judgment of the Court of Appeal with which the other . .
Cited – Evans Marshall and Co Ltd v Bertola SA CA 1973
Lord Justice Sachs considered whether damages were an adequate remedy for the refusal of an injunction, and said: ‘The standard question in relation to the grant of an injunction, Are damages an adequate remedy?’ might perhaps, in the light of the . .
Cited – European Dynamics Sa v HM Treasury TCC 23-Dec-2009
The claimant challenged a framework agreement proposed by the defendant for the delivery of software application solutions for various national public bodies. . .
Cited – Araci v Fallon CA 4-Jun-2011
The claimant said that the defendant jockey had agreed to ride the claimant’s horse in the Epsom Derby (to be run on the date of the hearing), and that he should not be allowed to ride another horse. The parties had entered into a Rider Retainer . .
Cited – Covanta Energy Ltd v Merseyside Waste Disposal Authority TCC 26-Sep-2013
Coulson J summarised the principles when assessing wether damages might be inadequate as a remedy and interim injunction should be granted: ‘(a) If damages are an adequate remedy, that will normally be sufficient to defeat an application for an . .
Lists of cited by and citing cases may be incomplete.
Transport, Contract, European, Administrative, Litigation Practice, Utilities, Commercial
Updated: 31 May 2022; Ref: scu.537333
