Wylde and Others v Waverley Borough Council: Admn 9 Mar 2017

The claimants challenged the procurement methods of the respondent in acquiring land to support a development. The Court considered their standing to bring such proceedings.
Held: Arden LJ’s observations in Chandler (and Richards J’s in Kathro) had not been intended to suggest that anyone who did not have an ‘ulterior’ or ‘improper’ motive would have standing, but: ‘The approach taken by the Court of Appeal in Chandler’s case [2010] PTSR 749 is in my view clearly grounded in a conventional approach to an assessment of standing. However, that conventional approach, focused upon the purpose and policy of legislation being invoked, leads to a much more restrictive qualification for standing in procurement cases than would apply in judicial review generally.
It is clear from the 2006 Regulations . . that the purpose of those Regulations and the Directive which lies behind them, is firstly, to provide for an open and transparent system for the competition for public contracts in the interests of securing a fair and efficient market for those contracts and secondly, to provide a bespoke system of remedies for those parties who are directly involved in competing for such contracts and participating in the market for them. This regime is quite clearly tightly focused on those directly engaged with and actively seeking the benefit of obtaining public contracts that fall within the scope of the 2006 Regulations. The public interest is no doubt served by these aims and objectives of the 2006 Regulations (for instance, by fostering value for money and the objective evaluation of bids for public works), but that is very different from saying that it follows that any member of the public could have an interest in the enforcement of those Regulations which should be recognised by the grant of standing in judicial review. It is in my view entirely consistent with the purpose of the Regulations to confine standing in any judicial review claim brought outside the extensive range of remedies available to economic operators, and by a person who is not an economic operator, to only those who ‘can show that performance of the competitive tendering procedure . . might have led to a different outcome that would have had a direct impact on him’.’
Thus, Dove J held at [41] that, whilst a trade association might satisfy the test, a council tax payer or concerned local resident or member of the local authority cannot without more bring themselves within it, because the procurement decision would have no direct impact on them. Dove J said: ‘It follows that I do not feel able to follow the approach which was taken by Lang J in Gottlieb’s case . . for the following reasons. Firstly, it is pertinent to note in my opinion that Lang J recognised that for the claimant in that case to be found to have standing to bring the claim it would be necessary to distinguish Chandler’s case. For the reasons I have already given that must be right. I am, however, unable to accept Lang J’s reasons for distinguishing Chandler’s case and reaching the conclusions which she did. Her grounds for distinguishing the claimant in Gottlieb’s case from Chandler’s case, set out in para 153, related to considerations of ulterior motive, which she considered existed in Chandler’s case but which did not arise in the case before her as the claimant genuinely wanted to have an open competition for the procurement of the development partner for the development. The difficulty with that analysis is that in my view it does not engage with the reason why there is the restricted test for standing set out in Chandler’s case, namely the policy, aims and objectives of the 2006 Regulations and their focus on the interests of economic operators. As I have set out above, in my view what was being examined in para 78 of the Court of Appeal’s decision in Chandler’s case was not directly related to ulterior motive but rather a demonstration of the distance between the interests of the claimant and the policy and purpose of the public procurement regime. It appears clear that had the Chandler test been applied in Gottlieb’s case the claimant in that case would not have established that he had standing to bring the claim.’
Dove J
[2017] PTSR 1245, [2017] EWHC 466 (Admin), [2017] WLR(D) 210
Bailii, WLRD
Senior Courts Act 1981, Public Contracts Regulations 2006, Parliament and Council Directive 2004/18/EC
England and Wales
Cited by:
CitedGood 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 . .

These lists may be incomplete.
Updated: 08 March 2021; Ref: scu.579641