In two recent decisions, Cookson and Clegg Ltd v. Ministry of Defence and
Another (21 January 2005) and M Holleran Ltd v. Severn Trent Water (4 November
2004), the English High Court has clarified the application of the procedural
rules for obtaining remedies under the EU procurement rules.
In the Holleran case, Cooke J was asked to consider the requirement, under
Regulation 32(4) of the Utilities Contracts Regulations 1996, for proceedings
for breach of the Regulations to be brought promptly and in any event within
3 months from the date when grounds for bringing proceedings arose.
First, he was asked to rule on whether the imposition of this time bar was
consistent with the Human Rights Act 1998 and the right of the applicants to
a fair trial of their claim under Article 6 ECHR. He held that it was, being
a proportionate measure designed to satisfy the public interest in the speedy
review of procurement decisions. Second, he had to consider if an applicant
could effectively re-start the 3 month clock by asking the contracting authority
to remedy an initial breach of the Regulations (which occurred beyond the time
limit) and then bring a claim within 3 months of its refusal to do so. The
judge rejected this tactic.
In the Cookson case, Bennett J ruled on the interaction of civil proceedings
for breach of the Public Supply Contracts Regulations 1995 with judicial review
proceedings brought in respect of the same breach.
In this case, the applicant raised simultaneous civil (or 'Part 7') proceedings
in the High Court along with judicial review ("JR") proceedings that
came before Bennett J. Identical remedies, including the setting aside of a
contract entered into in breach of the Regulations, were sought in each set
of proceedings. The applicant claimed that the JR proceedings were necessary
since (a) they allowed it to rely on wider public law principles (such as irrationality)
than the Part 7 proceedings and (b) the remedy of set-aside was not available
under the Part 7 proceedings (by dint of Regulation 29(6)) but would be available
The judge dismissed the JR proceedings, holding that the substantive claim
(which relied in part on the Alcatel ruling (see article on[url=#3] In-House
Awards and Procurement[/url] below)) could be adequately resolved via the Part 7 proceedings
and adding that it would be "fanciful" to think that a judicial review
could be used to re-run arguments which proved unsuccessful in a civil claim.