High Court grants council summary judgment in procurement challenge over bailiff services
A bailiff firm has failed in a High Court challenge to Breckland Council’s appointment of a rival to a contract on behalf of Anglia Revenues Partnership.
The High Court in May 2021 granted Breckland’s application for summary judgment on claims made by Dukes Bailiffs under the Public Contracts Regulations 2015 (PCR) and refused permission for judicial review.
Dukes brought further legal challenges under both the PCR 2015 and by judicial review arguing that Breckland’s award was unlawful on grounds that included procedural unfairness, irrationality and failure to provide reasons.
Breckland applied for summary judgment on the PCR 2015 claim arguing that the contract was below the ‘concession’ contract threshold and so outside the regulation’s ambit.
The council also opposed the judicial review claim on the basis the dispute was not amenable to this because it concerned commercial decisions.
11KBW, whose Joseph Barrett appeared for Breckland, said: “The judgment provides detailed analysis of a number of important, and novel, issues in procurement law and applications for judicial review relating to price regulated industries and commercial decisions by public bodies.”
In Dukes Bailiffs Ltd v Breckland Council [2023] EWHC 1569 (TCC) HHJ Tindal said the case concerned the PCR 15 and Concession Contracts Regulations 2016 (‘CCR 16’) and “there is no case on this point yet…the question is whether a local authority contracting-out enforcement of its debts like council tax is governed by the PCR 15 or the CCR 16; or alternatively is amenable to judicial review”.
Dukes became the enforcement provider for the Anglia Revenues Partnership in 2019 and in 2022 a re-tender competition took place but Dukes lost out by 2.5% on the scoring to rival bidder Bristow & Sutor.
It criticised Breckland’s tender scoring, the reasons for its decision and apparent bias by a Breckland officer because of her connection with a Bristow manager who formerly worked for Dukes.
HHJ Tindal noted there was “a real ‘cliff-edge” between the PCR 15 and CCR 16 for contracts less than £5.3m in value.
“If the PCR 15 apply, there are strong statutory remedies. If not, as the CCR 16 do not, there are no statutory remedies. Whilst [Dukes] can still pursue a common law contract claim, this is limited to damages for lost opportunity, it cannot reverse the contract grant to Bristow. This is the reason why [Dukes] here has also brought the judicial review claim, seeking a quashing order.”
HHJ Tindal said the evidence before him drove him to conclude that Dukes “has no real prospect of success on the PCR 15 claim and I should grasp the nettle and grant summary judgment now”.
He said he would have refused permission for judicial review on the basis that there is an extant contract claim covering the same ground.
The challenge over apparent bias by Ms H “is not arguable”, the judge concluded as any fair-minded and informed observer would conclude the alleged connections between her and the manager “were relatively anodyne, consistent with a professional friendship” and her scores on the tendering were “not very far out of kilter with other (by definition, not apparently-biased) evaluators”.
Mark Smulian
