High Court hands down important ruling on standing in procurement judicial review

United Kingdom

The High Court has recently delivered judgment in R (Wylde) v Waverley Borough Council [2017] EWHC 466 (Admin), a judicial review relating to the redevelopment of Farnham town centre.  The claim, brought by a number of councillors and local residents opposed to the redevelopment, centred on a decision by the Council to vary an agreement with the developer, including a reduction in the minimum land value of the site (in order to make the redevelopment economically viable).  The claimants argued that this variation in reality amounted to a new contract and so should have been subject to a new competitive tender process under public procurement law.

The preliminary issue for the judge to decide was whether the claimants, albeit not “economic operators” owed duties under public procurement law, nevertheless had standing to bring the claim.

The judge considered the existing case law at length before concluding that the correct approach was to consider the question of standing in the context of the policy, aims and objectives of the relevant public procurement rules.  The Public Contract Regulations were clearly focused on those directly engaged with and actively competing for public contracts.  Applying the test for standing in R (Chandler) v Secretary of State for Children, Schools and Families [2010] LGR 1, it was consistent with those Regulations (economic operators aside) to confine standing only to those who could demonstrate that the running of a competitive procurement might have led to a different outcome that would have directly impacted them.

The claimants had difficulty in showing that any competitive tender process for the varied contract would produce a different outcome.  They were also unable to demonstrate that they would be in any way directly impacted by the running of a competitive tender process.  The claimants were not economic operators nor did they have any interest in the procurement process which might give them status akin to an economic operator.  In short, the claimants as council tax payers and members of the local authority could not, without more, demonstrate standing.  

In reaching that conclusion, the judge noted that he felt unable to follow the approach taken in R (Gottlieb) v Winchester City Council [2015] EWHC 231 Admin, a case with similar facts where the claimant was found to have standing.  In the judge’s view it was clear that, had the Chandler test been applied in Gottlieb, the claimant in that case would not have been able to establish standing.

This is an important case in clarifying the limits for standing in judicial reviews relating to alleged breaches of public procurement law.  A copy of the judgment is available here

CMS acted for the developer and the interested party Crest Nicholson Regeneration.