This
guidance has no legal value and does not necessarily represent
the official position of the European Commission.
Part 1 - Public Procurement in the European Union <Top>
The Purpose of this Guidance <Top>
This guidance outlines the remedies available in the 15
Member States in respect of breaches of the European Union
(EU) procurement rules, as implemented into national law.
Separate sections are devoted to the situation in each
Member State. The guide is intended to increase awareness
and understanding amongst suppliers to the public and
utility sectors. Each section gives practical guidance
on the steps open to suppliers who feel that they have
suffered as a result of a breach.
The Guidance does not, however, purport to provide a detailed
legal analysis of all the options since each case will
clearly turn on its particular facts. Potential complainants
will, therefore, need to take legal advice in appropriate
cases.
The Substantive Procurement Rules <Top>
The EU has laid down a series of laws, in the form of
Directives, which are intended to ensure that public procurement
is open to European-wide competition and that suppliers
and service providers in any EU Member State are given
an equal opportunity to bid for and win public contracts.
The rules constitute an important element of the Single
Market programme.
One set of Directives (the "public sector" Directives)
covers contracts awarded by central government, local
authorities and other bodies in the public sector.
The substantive rules for these public bodies (known as
"contracting authorities") are set out in the
following three directives:
i Council Directive 93/36/EEC of 14th June 1993 co-ordinating
procedures for the award of public supply contracts ("the
Supplies Directive");
ii Council Directive 93/37/EEC of 14th June 1993 concerning
the co-ordination of procedures for the award of public
works contracts ("the Works Directive"); and
iii Council Directive 92/50/EEC of 18th June 1992 relating
to the co-ordination of procedures for the award of public
service contracts ("the Services Directive").
A parallel set of rules is set out in Council Directive
93/38/EEC of 14th June 1993 co-ordinating the procurement
procedures of entities operating in the water, energy,
transport and telecommunications sectors ("the Utilities
Directive"). This Directive applies to procurement
by utilities which are in the public sector or which,
although in the private sector, carry out the specified
activity on the basis of "special or exclusive rights".
The Value Thresholds <Top>
The procurement rules apply whenever an awarding authority
intends to award a contract of more than a specified value.
The value thresholds are as follows:
i ECU 5 million for all works contracts (construction
and civil engineering);
ii Special Drawing Rights (SDR) 130,000 for supplies and
services contracts awarded by Central Government authorities
covered by the international accord known as the Government
Procurement Agreement (GPA);
iii ECU 200,000 for supplies and services contracts that
are put out by other public sector bodies (e.g.. local
government);
iv ECU 400,000 for supplies and services contracts awarded
by utility companies other than telecommunications operators;
and
v ECU 600,000 for services and supplies contracts awarded
by telecommunications utilities.
The equivalent amounts expressed in national currencies
are fixed periodically for a two-year period and published
in the Official Journal.
Obligations and Potential Breaches <Top>
Before awarding a contract above the relevant threshold,
the awarding authority is usually obliged to advertise
the contract by way of a notice in the Supplement to the
Official Journal of the European Communities and to carry
out a fair, competitive procedure in order to select the
successful supplier.
Potential breaches of the procurement rules include the
following:
i a failure to advertise a relevant contract in the Official
Journal;
ii the awarding authority uses non-objective criteria
in choosing its supplier, whether at the qualification
or award stage, which discriminate between suppliers;
iii the authority fails to specify its qualification and
award criteria at the outset of the procedure or it does
so but then changes them or applies them in an unfair
way;
iv the authority lays down technical specifications or
standards which discriminate against certain suppliers,
for example because national standards are used or;
v the authority fails in some other way to respect the
duty to treat all tenderers equally.
The above is only a short and non-exhaustive list of the
types of conduct which may well infringe the procurement
rules. The remainder of this section considers the remedies
potentially available to suppliers who believe that they
have been prejudiced by such a breach.
The Remedies Directives <Top>
The substantive procurement rules are backed up by two
Directives specifically dealing with remedies (collectively
"the Remedies Directives"), which are as follows:
i Council Directive 89/665/EEC of 21st December 1989 on
the co-ordination of the laws, regulations and administrative
provisions relating to the application of review procedures
to the award of public supply and public works contracts;
and
ii Council Directive 92/13/EEC of 25th February 1992 co-ordinating
the laws, regulations and administrative provisions relating
to the application of community rules on the procurement
procedures of entities operating in the water, energy,
transport and telecommunications sectors.
Directive 89/665 applies in relation to public procurement
covered by the Supplies Directive, Works Directive and
Services Directive. Remedies Directive 92/13, on the other
hand, applies to procurement by utilities under the Utilities
Directive.
The Remedies Directives have required each Member State
to ensure effective remedies and means of enforcement
are made available to suppliers, contractors and service
providers who believe that they have been harmed by an
infringement of the substantive procurement rules. This
has usually been achieved through the enactment of legislation
at national level, incorporating into national law the
rights and remedies of complainants under the procurement
rules.
Remedies Available in National Courts and Tribunals <Top>
Interim measures <Top>
The Remedies Directives require Member States to ensure
that interim measures are available. In particular, complainants
must have the possibility of obtaining an interim suspension
order which suspends the contested award procedure in
question. The rapid availability of such interim orders
is critical because, in almost all Member States, an award
decision cannot be set aside once the resulting contract
has been entered into. Hence, without interim orders,
the complainant would be powerless to stop the relevant
contract being entered into, leaving damages as his only
possible remedy.
In general, interim suspension orders may not be granted
after the contract in question has been entered into.
It is therefore essential for complainants to seek such
orders without delay as soon as they become aware of the
alleged infringement of the procurement rules.
In order to obtain an interim order, the complainant may
first have to establish that he has at least a prima facie
arguable case. More importantly, the courts in most Member
States apply some form of "balance of interests"
test. Thus, the complainant may have to show that he is
likely to suffer serious and possibly irreparable harm
if the interim order is not granted. Furthermore, that
harm must outweigh the inconvenience which the interim
order would cause both to the awarding authority and to
the public interest at large. The complainant might also
have to show that the harm which he is likely to suffer,
if the interim order is not granted, could not be adequately
compensated through financial damages.
Set-aside and amendment orders <Top>
The Remedies Directives also stipulate that national courts
or tribunals must be given the power to lay down set aside
orders and orders for the amendment of documents. As for
interim measures, Member States are entitled to stipulate
that set aside and amendment orders can only be requested
prior to the date on which the contract in question is
entered into. In deciding whether or not to grant such
orders, national courts and tribunals generally apply
a balance of interests test similar to the one which governs
the grant of interim orders.
Damages <Top>
The Remedies Directives require the remedy of damages
to be available to a complainant, regardless of whether
or not the contract in question has been entered into.
In all Member States, damages may only be granted in the
ordinary civil courts, even though the complainant typically
has to apply to an administrative court or tribunal in
order to obtain interim or set aside orders. The Remedies
Directives do not expand upon the principles governing
the availability and measure of damages. Nevertheless,
these matters are subject to the general principle that
there must be effective remedies for breaches of Community
law. This wider principle was underlined by the European
Court of Justice in the Joined Cases C-46/93, Brasserie
de Pêcheur and C-48/93, Factortame. In its judgment
of 5th March 1996, the Court stated that:
"Reparation for loss or damage caused to individuals
as a result of breaches of Community law must be commensurate
with the loss or damages sustained so as to ensure the
effective protection for their rights."
Subject to this general principle, damages largely remain
to be determined by national law and practice.
Typically, a complainant seeking damages must prove that:
i the awarding authority has committed an infringement
of the procurement rules;
ii the complainant has suffered some harm or loss; and
iii there is a direct causal link between the said breach
and the damage suffered.
In some Member States, the complainant is not obliged
to prove the fact of the breach if it brings a claim for
damages in the civil courts after the contested decision
in question has already been declared unlawful and set
aside by an administrative court or tribunal.
In most Member States, it appears that an aggrieved tenderer
should in principle be entitled to recover (all or in
part) one or both of the following:
i the costs he incurred in preparing his tender and participating
in the award procedure ("bid costs");
ii loss of the profit he would have derived if awarded
the contract.
One recurring issue is whether, in order to recover damages,
(or at least loss of profit) a complainant needs to prove
that, in the absence of the alleged breach, he would have
been awarded the contract in question. Alternatively,
is it sufficient for the plaintiff to establish only that
he had a real chance of winning the contract?
Remedies Directive 89/665 is silent on this question,
whereas Directive 92/13 provides some clarification as
regards the recovery of bid costs as against utilities.
Directive 92/13 provides that where an aggrieved tenderer
establishes that an infringement deprived him of a "real
chance" of winning the contract, he is entitled (at
least) to damages covering his bid costs. General principles
and relevant case law in a significant number of Member
States suggest that this "real chance" test
would apply more generally to any claim for damages under
either Remedies Directive.
Dissuasive penalty payments <Top>
Under Article 2(1) of Remedies Directive 92/13, applicable
to utilities, Member States were given the option of introducing
an alternative remedy to the usual combination of interim
measures and set aside orders which must be made available,
at least prior to the conclusion of the contract. Instead
of those two remedies, Member States could legislate for
the availability of dissuasive penalty payments where
an infringement is not corrected or prevented. The option
of dissuasive penalty payments has only been taken up
by three Member States: France, Denmark (as regards offshore
oil and gas utilities only) and Luxembourg.
Complaints to the European Commission <Top>
As well as (or instead of) bringing an action before a
national court, it is open to a supplier to lodge a complaint
with the European Commission in Brussels at the following
address: 200 rue de la Loi, 1049 Brussels. The Commission
is responsible for overseeing compliance with the procurement
Directives and is used to handling complaints from individuals
and firms.
Under the Remedies Directives, the Commission may invoke
a "corrective" procedure when, prior to a contract
being concluded, it considers that a clear and manifest
infringement of EU procurement rules has been committed.
In such a case, the Commission will notify the awarding
authority and the relevant Member State Government of
the circumstances of the alleged infringement. The Commission
will set a time limit of at least 21 days (public sector)
or 30 days (utility sectors) within which the national
Government has to respond. In practice the awarding authority,
through the medium of Government, is called upon to justify
its conduct, rectify the infringement or suspend the award
procedure.
In cases where the Commission is not satisfied with the
explanations or actions of the awarding authority or the
Member State Government, it may commence formal proceedings
against the latter under Article 169 of the Treaty of
Rome. Such an action may ultimately result in the European
Court of Justice ("ECJ") issuing a ruling which
condemns the Government in question for failing to fulfil
its Community law obligations. In particularly serious
cases, the Commission might also ask the ECJ to grant
interim measures.
Alternative Dispute Resolution <Top>
Where a dispute arises relating to a procurement procedure,
it will usually be in the interests of both sides (the
authority and the supplier) to attempt to resolve the
matter without embarking upon litigation. Hence, the supplier
in question should consider informing the authority of
its grievance, with a view to settling the matter in an
amicable way. For example, the authority might be persuaded
to remove a discriminatory technical standard or award
criterion.
Where amicable discussions fail to resolve the matter,
the parties could seek to reach a settlement through arbitration.
The parties could agree to the appointment of an independent
arbitrator drawn from a recognised body of independent
arbitrators. The address for such a body in the UK is
given in the annex of Useful Addresses at the end of this
Guidance.
Where a dispute relates to procurement by a utility, a
supplier may seek to invoke the conciliation procedure
laid down in Remedies Directive 92/13 for the utilities
sectors.
Recourse to this conciliation procedure involves the following
steps:
i the supplier forwards a request for use of the conciliation
procedure to the European Commission;
ii the Commission asks the utility in question to state
whether it is willing to take part in the conciliation
procedure. The procedure can only continue if the utility
gives its consent;
iii the Commission proposes a conciliator drawn from a
list of independent persons. Both sides must state whether
they accept the conciliator and each side designates an
additional conciliator;
iv the applicant supplier, the utility and any other relevant
candidate/tenderer have the opportunity to make representations
to the conciliators; and
v the conciliators endeavour to reach agreement between
the parties which is in accordance with Community law.
The utility or the supplier may withdraw from the procedure
at any time. Unless the parties decide otherwise, each
is responsible for its own costs.
Part
2 - United Kingdom <Top>
1. Implementation of the Remedies Directives <Top>
In the United Kingdom, implementation of the EU Directives
on procurement has been achieved by way of the following
statutory instruments:
i Public Works Contracts Regulations 1991;
ii Public Services Contracts Regulations 1993;
iii Public Supplies Contracts Regulations 1995; and
iv Utilities Contracts Regulations 1996.
The first three sets of Regulations listed above govern
the procurement practices of Central Government, local
authorities and other public sector bodies. The Utilities
Contracts Regulations 1996, on the other hand, apply to
"utility" companies (most of them privatised)
operating in the water, energy, transport and telecommunications
sectors.
As well as setting out the substantive rules on procurement
procedures, the above regulations (collectively "the
Regulations") each include a section dealing with
rights of recourse to the British courts. The remedies
potentially available are described below.
2. The relevant forum <Top>
Proceedings under any of the Regulations must be brought
in the:
i High Court in England and Wales; or
ii Court of Session in Scotland; or
iii High Court in Northern Ireland.
Such a court is located in most large or medium-sized
towns and cities throughout the United Kingdom. The exact
choice of court will depend on the location of the authority
and the complainant, but it would be usual for the action
to be brought in the court located nearest to the authority
in question or in London (if the proceedings are to be
commenced in England or Wales).
3. Available remedies <Top>
The remedies potentially available to a complainant under
the procurement Regulations fall into three categories,
which are each described in turn below.
Interim orders <Top>
The complainant may ask the court to issue an interim
order (or "injunction") which suspends the allegedly
defective award procedure or suspends the implementation
of any decision or action taken by the awarding authority
in the course of such a procedure. It is important to
note that such interim measures may only be granted if
the contract in question has not been entered into between
the authority and a third party. After the contract has
been entered into, the only remedy available is damages
(see Damages below). It is therefore in the interests
of the complainant to lodge his request for interim measures
as rapidly as possible.
In order to obtain an interim order, a complainant must
first show that there is a serious case to be tried (though
not necessarily that he has a better than 50% chance of
succeeding) at the final trial. This is not in general
a difficult hurdle to overcome. More importantly, the
complainant will need to persuade the court that the "balance
of convenience" lies in favour of granting such an
order.
In applying this test, the court is likely to consider
various factors, including the following:
i whether it would cause greater hardship to grant or
refuse the order. The court might decide, for example,
that suspending the contract procedure would be against
the public interest because it would delay the provision
of important services to the public;
ii whether damages would provide an adequate remedy to
the complainant if the injunction is not granted; and
iii the relative strength of each party's case.
As the name suggests, interim measures are granted at
an interim or "interlocutory" stage in the proceedings,
without there being a full trial of the issues in question.
These issues remain to be ruled upon at the subsequent,
full trial.
Set-aside and amendment orders <Top>
The High Court has the power to order the setting aside
(or annulment) of any decision or act taken unlawfully
in a procurement procedure. This could be the decision
to award the contract to a particular supplier or any
earlier decision in the procedure, such as the one preselecting
a shortlist of candidates to tender. The set-aside order
would take the form of a final injunction: that is, one
that is given at the full trial (rather than at an interim
or interlocutory stage) and which is intended to be permanent
in effect.
Where there has been an infringement of the procurement
rules, the High Court may also order the awarding authority
to amend any documents. This power could be used, for
example, to require the alteration of discriminatory technical
specifications or the extension of unduly short time limits.
Set-aside and amendment orders, like interim measures,
may only be granted if the contract in question has not
yet been entered into.
Damages <Top>
Regardless of whether or not a contract has been entered
into, the High Court is empowered to award damages to
a supplier who has suffered loss or damage as a consequence
of a breach of the procurement rules. The Regulations
do not expand upon the principles governing the availability
and amount of damages. The only exception is under the
Regulations applicable to utilities which state that,
where the complainant establishes that an infringement
deprived him of "a real chance" of winning a
contract, he shall be entitled to damages covering his
costs of preparing a tender and participating in the award
procedure ("bid costs"). Otherwise, British
courts are likely to apply existing principles of domestic
law when considering claims for damages.
In order to obtain damages, complainants will be required
to prove that the authority has committed a breach of
the Regulations and that this breach has caused him harm
or damage. Depending on the facts of the case, the damages
award may cover all or part of the complainant's bid costs
and/or the loss of the potential profit that he would
have made on the contract.
It appears that a complainant will not be required to
prove that, in the absence of the breach, he would necessarily
have won the contract at stake. A reasonable chance of
winning the contract ought to be sufficient. On the other
hand, the damages award might be reduced by a certain
percentage in order to take into account the possibility
that the complainant's bid would have been unsuccessful
in any event.
4. Who may apply? <Top>
The rights of action laid down in the Regulations are
available to any person who sought, or who seeks, or who
would have wished, to be the person to whom a relevant
contract is awarded. In other words, the remedies are
potentially available to any supplier who had an interest
in being engaged to carry out the contract in question.
This will include suppliers who participated in the award
procedure, as well as any others who would have done so
but for the infringement.
The only further qualification is that the complainant
must be a national of and established in an EU Member
State or in certain other European countries listed in
the Regulations.
5. Time limit for bringing actions <Top>
Under each set of Regulations, legal actions must be brought
promptly and in any event within three months from the
date when the grounds for bringing the proceedings first
arose, unless the Court considers that there is a good
reason for extending the period within which proceedings
may be brought.
The time limit begins to run from the date when the challenged
conduct occurred. For example, if the plaintiff is complaining
that he was improperly disqualified in a pre-qualification
exercise, he would have (at most) three months to commence
any court action as from the date of the authority's decision
to exclude him. The Court might, however, exercise its
discretion to extend the three month time limit if, for
example, the authority fails to inform the complainant
immediately of its decision to exclude him. In such a
case, the time limit ought to start to run only from the
date on which the complainant became aware (or ought to
have become aware) of the decision to exclude him.
6. Procedure <Top>
Duty to give notice <Top>
Proceedings under the Regulations may not be brought unless
the complainant has first informed the awarding authority
of the breach or alleged breach and of his intention to
bring proceedings in respect of it. A ruling of the High
Court has indicated that this is a strict procedural requirement
and that any failure to inform the authority both of the
alleged breach and the intended action will render the
action inadmissible. It is advisable that such notice
is given in writing.
Applications for interim orders <Top>
A complainant who seeks an interim measure such as an
injunction will deal with the matter by an application
by a summons to the Court together with a supporting affidavit
(sworn statement). This may initially be dealt with by
the Court before the summons and affidavit are served
on the other party (i.e.. ex parte) but will then be dealt
with at a subsequent hearing at which the other party
may be present (inter partes). A claim for an interim
injunction will not normally involve oral evidence but
will, instead, involve lawyers making submissions to the
judge on the basis of the affidavit evidence.
The summons for interim relief may be issued prior to,
simultaneously with, or after the issue of a writ (see
below) but where the summons is issued prior to the issuing
of a writ it would be usual for the complainant to have
to give an undertaking to issue and serve a writ. The
applicant for an injunction will usually have to give
an undertaking that he will pay damages for any loss suffered
if at the final hearing of the proceedings the application
for the injunction loses the case. Similar (but not identical)
procedures apply in relation to interim injunctions in
the context of judicial review proceedings (see below).
Ordinary court procedure <Top>
Proceedings in the High Court are normally commenced by
writ. This must be endorsed with either a full statement
of the plaintiff's claim or a concise statement of the
nature of the claim and the relief or remedy being sought.
Once the court has issued the writ, it must be served
on the defendant within four months. A series of formal
documents (pleadings) then pass between the parties setting
out their respective cases. The pleadings should contain
only material facts and should not normally contain statements
of law. The plaintiff's first pleading is his Statement
of Claim (which may be part of the writ). The defendant
subsequently answers with a Defence, and other pleadings
may follow. Pleadings are deemed to close 14 days after
service of the last pleading in the action, although the
court may permit further amendments.
After the close of pleadings, the rules of the High Court
provide that discovery shall automatically take place
between the parties to the action. Discovery comprises
two stages: disclosure by way of a list of documents by
one party to the others of all relevant documents; and
inspection by the other party of such of those documents
as are not legally privileged. The scope of discovery
is very wide and extends to all documents that are or
have been in a party's possession, custody or power relating
to any matter in question in the case, save for those
which are legally privileged (e.g.. Communications between
a party and his solicitor).
Within one month of close of pleadings the plaintiff must
take out a summons for directions. This provides an opportunity
for the court to consider the preparations for trial of
the action. Among other things, the directions will deal
with witness statements and expert evidence.
Witness statements are prepared in order to support a
case and are the equivalent of the factual oral evidence
that is to be given if the witness is called at trial.
They should therefore be comprehensive, as evidence of
matters not covered in the statement will only be permitted
at trial with the leave of the court. Expert evidence
may be appropriate in some procurement proceedings. Experts
will be able to give opinion evidence on any relevant
matter on which they are qualified to speak. Witness statements
and the reports of expert witnesses must normally be disclosed
to the other parties in advance of the trial.
The case will normally be tried by a single Judge of the
High Court without a jury and is usually in public. At
the trial the parties are normally represented by lawyers
(usually barristers) who make submissions on their behalf
and examine and cross-examine witnesses, who give oral
evidence.
Duration of proceedings <Top>
Interim measures can be sought and obtained almost immediately
in the High Court in cases of urgency. The applicant would
be required to set out the urgent circumstances in an
affidavit to the Court. The time taken for the matter
to proceed to full trial and final judgment varies greatly
from case to case and depends to some extent upon the
workload of the division of the High Court in which the
case is lodged. As a very general estimate, the time lag
between initiation of the proceedings and the final judgment
can be anything from one to two years.
If the case raises difficult questions of EU law, the
national court may refer questions of interpretation to
the European Court of Justice for a so-called "preliminary
ruling". Such a reference would be likely to add
at least two years to the duration of proceedings in the
national court. In practice, this kind of reference is
only made in a small minority of cases.
Finally, it should be noted that any appeal against the
High Court ruling to the superior courts will add many
more months of delay before the case is finally decided.
Judicial review <Top>
An alternative, and completely distinct, approach is to
proceed by way of judicial review. This is the traditional
procedure by which third parties have been able to challenge
the actions and decisions of public authorities in the
UK. The existence of the Regulations means it is no longer
obligatory to challenge public procurement decisions by
way of judicial review, but this option is still open
_(as confirmed by the statement in the Regulations that
their application is without prejudice to the availability
of other remedies).
The aggrieved person wishing to bring judicial review
proceedings must initially apply to a Judge of the High
Court for leave to do so. This is perhaps the main drawback
of using judicial review rather than bringing an ordinary
action under the Regulations. Indeed, the existence of
the latter avenue could be one reason why a judge refuses
to grant leave for judicial review. Any application for
leave must be made promptly and, in any event, within
three months from the date when the grounds for the application
arose unless there is good reason for extending the period.
If leave is granted (which may involve consideration of
papers only or a hearing open to the public), the substantive
application proceeds and the matter is heard by a Judge
or Judges of the High Court (and is normally open to the
public).
Judicial review proceedings are usually determined by
reference to affidavit (rather than oral) evidence without
some of the other formal procedures which apply in ordinary
civil cases. There is often little or no discovery.
The following remedies are available in judicial review
proceedings: an order restraining the decision-making
body from acting outside its jurisdiction (prohibition)
or quashing and requiring it to reconsider the matter
(certiorari); an order requiring the body to carry out
its judicial or other public duty (mandamus); the granting
of a declaration as to the rights of the parties; the
granting of an injunction; and, depending on the type
of claim, in limited circumstances, an award of damages
against the decision-making body. It can be seen that
these remedies closely overlap with those available under
the Regulations, although the right to damages is much
more limited.
There may be circumstances in which it is advantageous
for a complainant to bring an action alleging infringements
of the Regulations by way of, or in combination with,
an action for judicial review. This is a complex issue
upon which the complainant may well need to take legal
advice.
Is it necessary to engage a lawyer? <Top>
It is normal practice in High Court litigation for both
parties to instruct solicitors to act on their behalf,
both in order to deal with the complicated procedural
requirements and to present each side's arguments on the
law and merits. Furthermore, under the rules governing
High Court practice, most oral submissions can only be
presented by counsel (i.e.. a barrister rather than a
solicitor). Consequently, it is usually necessary for
the instructed solicitors to instruct counsel (complainants
cannot usually instruct a barrister directly themselves).
The cost implications of instructing lawyers are considered
in Section 7 below.
It is possible for a complainant to represent himself
in the proceedings, but this is very rare and not generally
recommended.
7. Costs of proceedings <Top>
A relatively small court fee, in the sum of £500
in this type of case is payable upon the commencement
of proceedings. More importantly, a complainant will need
to bear in mind the cost of instructing lawyers in order
to pursue litigation. The overall cost of doing so will
depend on the gravity, complexity and duration of the
case and is difficult to predict at the outset.
It is normal practice for the High Court to order the
unsuccessful party in the litigation to pay a large part
of the legal costs of the successful party. This is an
additional risk to be taken into account when embarking
upon litigation. Moreover, if the complainant was successful
in obtaining an injunction at an interim stage but ultimately
lost the case at the final hearing, he might find himself
liable to pay damages to the defendant under the terms
of a cross-undertaking in damages. Complainants are often
required to give such a cross-undertaking in order to
obtain the injunction.
8. Rights of appeal <Top>
Once the High Court has laid down its judgment, the unsuccessful
party may seek to appeal the ruling to the Court of Appeal.
In some cases the leave of the judge or the Court of Appeal
may be needed. This means that permission is required
before the appeal can be brought and courts will consider
a number of matters, including the prospect of success,
when deciding whether or not to grant leave. The judgment
of the Court of Appeal may in turn be appealed, with leave,
to the House of Lords, which is the highest judicial authority
in the UK.
9. Enforcement of judgment <Top>
It is highly unlikely that an awarding authority would
choose deliberately to contravene a High Court order made
against it, particularly in view of the severe penalties
that may follow. If an authority disobeyed the terms of
injunction, the complainant could apply for the committal
of its officials to prison (although the court would probably
give the authority a warning at first hearing in order
to induce compliance). In the case of judgment for damages,
the complainant could apply for an order to appropriate
the authority's assets.
Useful
Addresses <Top>
The
High Court in London:
Royal
Courts of Justice
Strand
London WC2A 2LL
The
Court of Session in Scotland:
Parliament
House
Parliament Square
Edinburgh EH1 1RQ
The
High Court in Northern Ireland:
Royal
Courts of Justice
Chichester Street
Belfast BT1 3JF
In
addition, district registries of the High Court (and Court
of Session in Scotland) are located in numero us towns
and cities throughout the United Kingdom.
Address
of the UK Government department responsible for overseeing
implementation of the EU procurement rules:
HM
Treasury
Procurement Policy
Allington Towers
19 Allington Street
London SW1E 5EB
Tel:
020 7270 1648
Fax: 020 7270 1653
All
information in this guidance is checked and believed to
be correct, but cannot be so guaranteed and the publishers
shall not be liable for any loss suffered directly or
indirectly as a result of its use.
