Lagan Construction Limited t/a Charles Brand and Northern Ireland Water Limited
| Jurisdiction | Northern Ireland |
| Judge | Horner J |
| Judgment Date | 09 October 2020 |
| Neutral Citation | [2020] NIQB 61 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 09 October 2020 |
1
Neutral Citation No: [2020] NIQB 61
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: HOR11303
ICOS No: 2020/31722
Delivered: 09/10/2020
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
(COMMERCIAL HUB)
___________
Between:
LAGAN CONSTRUCTION LIMITED t/a CHARLES BRAND
Plaintiff
and
NORTHERN IRELAND WATER LIMITED
Defendant
___________
Michael Humphreys QC (instructed by O’Reilly Stewart, Solicitors) for the Plaintiff
David Dunlop QC with Alistair Fletcher BL (instructed by Tughans, Solicitors)
for the Defendant
___________
HORNER J
A. INTRODUCTION
[1] Lagan Construction Limited t/a Charles Brand (“Lagan”) has issued a writ of
summons against Northern Ireland Water Limited (“the defendant”). It related to
the award of contracts under the Framework Agreement known as IF105. This
comprises three separate Lots, that is, Lot 1, Lot 2 and Lot 3. Lagan’s claim relates
only to Lots 2 and 3 under IF105. However, it is important to appreciate that the
Invitation to Tender at Section 3.1.5 emphasises that a tenderer can only be
appointed to one Lot. Lot 2 deals with non-infrastructure work, that is work carried
out above ground. Lot 3 deals with non-infrastructure work and infrastructure
work, that is work carried out below ground. Infrastructure works tie in with and
complement non-infrastructure works which I will explain later.
[2] The writ of summons issued by Lagan in respect of both Lots triggered an
automatic suspension of the award of contracts under the competition by operation
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of Regulation 110 of the Utility Contract Regulations 2016 (“the Regulations”). The
consequence was that the defendant was unable to enter into contracts with those
tenderers which had been successful in the tender competition for both Lots. The
defendant seeks to bring to an end the restraint imposed upon it under Regulation
110(1). The application is brought pursuant to Regulation 111(1)(a) and accordingly
the court in dealing with such an application has to decide whether, but for
Regulation 110(1), it would be appropriate to make an interim order which required
the defendant to desist from entering into contracts in respect of Lots 2 and/or 3.
[3] Lot 1 was also the subject of a challenge by an unsuccessful tenderer.
However, that challenge was abandoned and the defendant has been able to award
contracts to the successful tenderers in respect of Lot 1 although it is claimed by the
defendant that the options for work under Lot 1 have been restricted by the
automatic suspension imposed in respect of Lots 2 and 3. This judgment
concentrates on the application by the defendant to remove the Order which
prevents it from entering into contracts with the successful tenderers in respect of
Lot 3. Lagan has made it clear that its express preference is for Lot 3 and this has
been the primary focus of its submissions, both written and oral. TES Group
Limited (“TES”) has issued proceedings against the defendant solely in respect of
Lot 2. I am giving a separate but complementary judgment in that case immediately
after this which will necessarily concentrate on the award of tenders under Lot 2. So
while the judgments are separate I have endeavoured, save where it is absolutely
necessary, not to go over the same ground twice.
[4] There has been trenchant criticism by both sides of the other side’s evidence
and complaints have been made that the deponents have been guilty of exaggeration
and hyperbole. There has been no oral evidence in these interlocutory proceedings.
Both sides relied on the affidavits that they have filed. Mr Mitchell, the Head of
Asset Delivery Performance and Business Unit within the defendant, provided
sworn evidence. He has been accused by Mr McKenzie, a Director of Lagan, of
constructing “a work of fiction” and, also, by Lagan’s team of consciously “engaging
in a mixture of hyperbole and hysteria.” Deponents must appreciate that there will
be a day of reckoning. If it turns out that they have tried to mislead the court with
exaggerated or untruthful evidence they will have to answer to this court. By the
same token ill-considered and unfair criticism is often self-defeating. As a general
rule I have found that an understated but considered complaint of wrongdoing
carries much more weight than a wildly overblown accusation of iniquity. Less is so
often more.
[5] Leaving aside the criticisms made by each side of the other side’s affidavit
evidence, the quality of the oral and written submissions on behalf of Lagan and the
defendant has been very high indeed. It is only right that I should pay tribute to all
those involved on the respective legal teams, (including that of the TES). All the
relevant material has been opened to me so as to permit me to reach a fair and just
decision at this interlocutory stage in accordance with the overriding objective under
Order 1 Rule 1(1)(a). I am acutely conscious not to rehearse all the arguments
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2 cases
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River Recycling (Portadown) LTD and ARC 21
...reputation is a future provider of profitable work.” [98] As Horner LJ noted in Lagan Construction Ltd t/a Charles Brand v NI Water Ltd [2020] NIQB 61 a company taking part in the tendering process never has an absolute guarantee it will be awarded the contract but must always keep in mind ......
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Clarity Telecom Limited and (1) John Britton Megahey; and (2) Barclay Telecom Limited
...In making this assertion, he relied upon Horner J’s comments in paragraph [43] of Lagan Construction Limited v Northern Ireland Water [2020] NIQB 61 reiterating the importance, save in exceptional circumstances, of compliance with the Practice Direction on Expert Evidence, including critica......