R Leyton Orient Football Club Ltd v London Legacy Development Corporation West Ham United Football Club (Interested Party)

JurisdictionEngland & Wales
JudgeMR Justice Lewis
Judgment Date19 September 2013
Neutral Citation[2013] EWHC 3653 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/2286/2013
Date19 September 2013

[2013] EWHC 3653 (Admin)




Royal Courts of Justice


London WC2A 2LL


Mr Justice Lewis


The Queen on the Application of Leyton Orient Football Club Ltd
London Legacy Development Corporation
West Ham United Football Club
Interested Party

Mr Adam Lewis QC and Mr Thomas Richards (instructed by Mishcon de Reya) appeared on behalf of the Claimant

Mr Richard Gordon QC and Mr Andrew Henshaw QC (instructed by Allen & Overy) appeared on behalf of the Defendant

Mr Fraser Campbell (instructed by Henry Bradman & Co) appeared on behalf of the Interested Party

MR Justice Lewis

There are before me three applications relating to a decision set out in a letter dated 7 December 2012 made by the defendant, the London Legacy Development Corporation ("LLDC"). That decision relates to the bid by the claimant, Leyton Orient Football Club ("LOFC"), to enable them to use, together with others, the Olympic Stadium which had previously been used as part of the London 2012 Olympic Games.


The first application is an application for reconsideration of the decision of Mr Justice Wilkie refusing permission to apply for judicial review of the defendant's decision. Mr Justice Wilkie gave that decision after consideration on the papers only. The second application is an application to amend the grounds of claim. The third application is an application for specific disclosure pursuant to CPR 31.12 for three different categories of documents. For reasons I will give at the end of this judgment, I have concluded that disclosure is not necessary for fairly and justly disposing of this claim.


I deal, first, with the background. The defendant began a process of inviting tenders for the use of the Olympic Stadium after the 2012 Olympic Games. For present purposes it is sufficient to consider the Invitation to Tender document that was issued on 22 December 2011 and then amended on 16 May 2012. That document should be read in its entirety.


In summary, the objectives of the defendant in relation to the use of the stadium are set out in section 1.5 of the Invitation to Tender document. Objective 1, for example, is as follows:

"To deliver a viable, long-term multi-use stadium that is deliverable and provides value for money."

There are three further objectives. Paragraph 2.4 of that document notes that –

"The grantor will enter into a concession agreement(s) in relation to the Stadium provided that concessionaires can demonstrate that the proposed concession(s) can contribute to a commercially viable and sustainable future for the stadium that has no requirement for ongoing public subsidy."


In terms of a brief summary of the process by which tenders were invited, I need say no more than this. Bids which satisfied certain pre-qualification criteria were to be considered in accordance with the process set out at section 6 of the Invitation to Tender document. First, bids were evaluated according to prescribed criteria in order to rank the bidders. That is set out at 6.1 (e) in the following terms:

"The evaluation process will result in bidders being ranked in the order in which they have been evaluated from the highest score to the lowest score."


Secondly, there was to be a process referred to as the teaming of bidders. That is described in paragraph 6.1 (f) of the Invitation to Tender documentation. That says as follows:

"Following the ranking of bidders in accordance with the Evaluation Criteria, bidders will be teamed as follows:

(i) Bidders will have been required to confirm in their bids that they are content to be teamed with any other potential bidder.

(ii) [The Defendant] will evaluate the Bidders for suitability in reaching an event calendar in accordance with the event calendar policy.

(iii) [The Defendant](on behalf of the Grantor) will negotiate and agree the terms of the Concession Agreements with each Bidder;

(iv) [The Defendant] will select the first-ranked bidder and apply the Event Calendar Policy and each Bidder's Proposed Event Calendar to see if it is possible to team the first placed Bidder with each other Bidder (in the order in which they are ranked).

(v) If no appropriate Teaming is possible, [the Defendant] may opt to appoint one Concessionaire and will reserve [the Defendant] and the Grantors' rights to appoint any number of additional Concessionaires, provided that it's Proposed Event Calendar is compatible, at a later date."


In essence, the aim of that process was to consider which bids were compatible with each other, that is to consider whether the proposed use of the stadium by the first-ranked bidder and one or more other bidders could be accommodated having regard to the events proposed to be held at the stadium.


The third process is set out at paragraph 6.1 (g) under the heading "Negotiation with Selection of Preferred Bidders." That process assumed that use by more than one bidder would be compatible and involves a process of deciding which of the bidders would be selected as preferred bidders. Paragraph 6.1 (g) says this:

"Following the evaluation of the Bids and the Teaming of Bidders, [the defendant] may proceed with the compliant bidders and it may select one or more as preferred bidders. Bidders should not assume that they will have the opportunity to revise their bids following submission. Prior to the selection of preferred bidders, the defendant may at its discretion nominate any number of preferred bidders provided those event calenders of all preferred bidders are compatible and in the view of the defendant can be agreed subject to the event calendar policy."

The rest of the section notes that the defendant reserves the right to require bidders to submit further documentation and that the defendant may seek to clarify certain matters with bidders. I note for completeness that there was no requirement that there be further bids after the teaming process and there was no entitlement on the part of any bidders to have further discussions or negotiations with the defendant.


These different aspects of the tender process can conveniently be referred to as three stages: first, the evaluation stage to rank the bidders; second, the teaming decision to determine which groups of bidders were compatible with each other; third, the selection of the prepared bidders stage, that is deciding which bidder or bidders should be nominated as preferred bidders.


To foreshadow the grounds of challenge, the claimant says that financial viability cannot be considered at the second stage, that is it cannot be considered at the stage referred to as the teaming decision when the defendant decides whether bids are compatible and can be teamed or grouped together. The claimant says financial viability can only be considered at the third stage when a team of bidders has been identified and following discussion and negotiation with those involved. The claimant says that the defendant excluded the claimant from a team at the second stage on financial viability grounds and that that was unlawful and in conflict with the process set out in the Invitation to Tender document.


To assess that claim, it is necessary to consider carefully the decision letter dated 7 December 2012. The decision letter should be read in its entirety. It should be borne in mind that it is a decision letter and it is addressed to the persons who have been involved with and are familiar with the tendering process. It should be read fairly, in context and as a whole. It is not a statute and it is not to be read or construed as a statute. The first paragraph at section 1 of the letter sets out the decisions in the following terms:

"The London Legacy Development Corporation (LLDC) would like to thank you for submitting your bid — the deadline is 12 July 2012 — and for the time you have invested in this competition. This letter is formal notice of the decision taken by the …… committee of LLDC on 5 December 2012 in respect of the stadium competition. LLDC regrets to inform you that (a) the bid submitted by Leyton Orient Football Club (LOFC) has been ranked third out of four in the evaluation of the bids and (b) that the LLDC has decided not to team LOFC and therefore your bid has been unsuccessful."

The letter then sets out the score that the claimant achieved. It explains how that score was arrived at and how stage 1 (the evaluation stage) was carried out and how the claimant was ranked three out of four.


At section 7, under a heading "Teaming Decision", the letter states:

"You should note that the teaming analysis is a separate step from the evaluation process. …..

In order to assess whether the teaming of the first-ranked bidder with each of the other concessionaires — each a teaming candidate — is practicable and economically viable, LLDC has;

• analysed the compatibility of each teaming candidate's proposed event calendar with the first preferred bidder's proposed event calendar and the event calendar policy,

• assessed whether each teaming candidate with the first-ranked bidder improved the financial position of the stadium as compared with the position were that team candidate not to be teamed in order to assess whether there is a business case that provides an economically viable option or combination of options for the stated business plan,

• assessed whether the ….. combination of bidders can be accommodated in relation to 4,000 square metres ….. as described in section 4.2 of the ITT.

The decision has been made that LOFC is not to be teamed because it is not a financially...

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