Energy Solutions v Nuclear Decommissioning
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 10 October 2014 |
| Neutral Citation | [2014] EWHC 3873 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 10 October 2014 |
| Docket Number | Case No: HT-14-133 |
[2014] EWHC 3873 (TCC)
IN THE HIGH COURT OF JUSTICE
TECHNOLOGY AND CONSTRUCTION COURT
The Rolls Building
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
Mr Justice Akenhead
Case No: HT-14-133
COUNSEL N/K (instructed by N/K) appeared on behalf of the Claimant
COUNSEL N/K (instructed by N/K) appeared on behalf of the Defendant
Approved Judgment
(Start time 10.39)
In this public procurement case, there is a disagreement between the parties and it is a perfectly bona fide legitimate difference as to whether the first main hearing, which, it is accepted at the very least, should include all aspects of liability, the difference being the extent to which causation issues should be dealt with at that hearing.
Primarily what the claimant wants to bring about, for better or for worse, is a finding that any breaches established do or do not causatively lead to a state of affairs where there might be any claimable loss.
Much of this turns on the extent to which, assuming hypothetically for the moment that there were any breaches of the Regulations, how the claimant's bid should have been marked, compared primarily at least with that of the bidder who was successful, CFP. That will almost definitely be the prime comparison in any event, because even if breaches are established by the claimant in respect of its bid, it will still be necessary to determine whether those breaches were such that the result i.e. of RSS not winning and CFP winning, would have been the same, because if the answer to that is yes, there are some breaches, but no, it does not make any material difference, then the sooner the parties know about that, it seems to me, the better.
The reverse of that is simply true. If the finding is that the breaches were such that if marked "correctly" (and I use that word in parenthesis), the claimant would have won this competition, then subject to any other causation argument, it may then have its way open to a damages claim.
I say subject to other arguments, one of the other arguments may be, following on from any decision reached by this court on the preliminary issues as to whether even if breach is established and even if it is established that those breaches would have led to the claimant, so to speak, "winning" this tender process, that the circumstances are such under the Regulations that its way through to damages is barred by reason of, or in connection with, its omission to take steps to bring about the statutory suspension on the placing of the contract with the ultimately successful tenderer and it seems to me that the causation issues in that regard then achieve an importance.
Mr Giffin QC, who has argued...
To continue reading
Request your trial