Brendan McGurk wins Academy Schools Procurement Challenge

Judgment in Bromcom Computers Plc v United Learning Trust  [2022] EWHC 3262 (TCC) has been published. The Claimant technology provider was the disappointed bidder in a procurement for the award of a contract for the supply of a Cloud Management Information System to the Defendant, the largest Multi-Academy Trust in the UK. Following a split trial on liability and causation, Mr Justice Waksman allowed the Claimant’s claim finding that the Defendant had committed four separate sets of breaches (encompassing several individual breaches) of procurement law, concluding that had the procurement been conducted in accordance with the published criteria, the Claimant would have won by a significant margin.

The decision is not only important within the education sector, but raises a number of interesting questions of procurement law. In particular:

  1. The Defendant opted not to award scores from 0 to 5, as the ITT had indicated it would, but instead calculated final scores on an aggregated and averaged basis, taking all individual evaluator’s scores, and calculating the average for each quality criteria, leading to scores of, for example, 4.2, rather than 4. The ‘averaging’ approach replaced a proper moderation process and led to erroneous scores remaining within the final scores, rather than being weeded out pursuant to a proper moderation. It further meant that the Defendant Authority could not identify its own reasons (as distinct from individual evaluator’s reasons) for the scores awarded. The Court found that the use of an averaging method, together with the absence of any proper moderation or reasons, was contrary to procurement law.
  1. The Court also found that it was unlawful for the winning bidder to have submitted its final tender by way of a drop-box to which the winning bidder continued to have access, both after submitting its final tender, and after the deadline for final tenders had passed. Submitting a final tender by way of attachments to an email or via a secure portal hosted by the Authority would allow the exact time and date of receipt to be determined compatibly with Regulation 22(16) of the PCR. Use of a drop-box would not.
  1. An important issue also arose as to whether the winning bidder could offer, as part of its price bid, a discount on a separate contract that it had already entered into with the same Authority for the provision of the same Cloud services in respect of a number of the Authority’s schools that fell outside the scope of this procurement. The Court agreed with Bromcom that seeking to leverage its incumbency as a supplier of those services to other schools within the Trust violated procurement law. The Court found that the Defendant Authority also allowed the winning bidder to benefit from its incumbency in relation to that other contract in other ways when scoring the bidders’ bids.
  1. The Court further found that individual evaluators between them made no less than 10 manifestly erroneous scoring errors in the scoring of the quality responses.

Being a damages claim, the Court considered what the outcome would have been in a counterfactual in which the Defendant complied with its own award criteria and procurement law, finding that Bromcom would have been awarded the contract. In that regard, the Court rejected the novel contention that since some of the calls that took place between Bromcom and the Defendant authority were recorded without the consent of the Defendant, that Bromcom had committed ‘grave professional misconduct’ that would have led to Bromcom’s disqualification in any event. Mr Justice Waksman both rejected the contention that this amounted to grave professional misconduct and found that the Authority would not have disqualified Bromcom on this basis even if it had been aware that a very small number of calls had been recorded purely for note-taking purposes.

The litigation now proceeds to a trial on quantum later in 2023.

Brendan McGurk successfully acted for Bromcom, instructed by JMW Solicitors LLP.

Robert Palmer KC and Clíodhna Kelleher succeed for the IMA in significant judicial review of EU citizens’ rights in the UK

The High Court has today handed down judgment in R (Independent Monitoring Authority for the Citizens’ Rights Agreements) v Secretary of State for the Home Department, a challenge to the arrangements made by the UK in implementing its obligations under the UK-EU Withdrawal Agreement, the UK-EEA EFTA Separation Agreement.

The IMA is the post-Brexit citizens’ rights watchdog, established in accordance with the Agreements to monitor and protect the rights of EU citizens and EEA EFTA nationals and their family members in the UK. This is the first case brought by the IMA as a claimant in its own right.

Under the Home Office’s EU Settlement Scheme (the EUSS), EU citizens and other qualified applicants who had been granted “pre-settled status” (i.e., limited leave to remain) are required to make a second application to “upgrade” their pre-settled status to “settled status” (i.e., a right of permanent residence in the UK), failing which they will be considered unlawful overstayers, liable to detention and removal and losing the right to live, work, rent and receive social security support in the UK.

Granting the IMA’s claim for judicial review, the High Court determined that these arrangements are unlawful:

  • The grant of limited leave to remain to individuals who apply successfully under the EUSS does not give effect to their rights under the Withdrawal Agreement, the Separation Agreement or the Swiss Citizens’ Rights Agreement because the limitations on leave inherent in that status are a constraint on the residence rights conferred under the Agreements. This is contrary to Articles 13(4) WA, 12(4) SA and 12(3) SCRA which provide that no limitations may be imposed on the residence rights conferred under the Agreements except as provided for in the Agreements.
  • The right of permanent residence under the Agreements accrues automatically to an individual who makes an initial successful application under the EUSS and resides in the UK for the requisite five years. The Secretary of State accordingly cannot require an individual to make a second application for status, or withdraw a right of residence beyond five years based on a failure by an applicant to make a second application for status.

Mr Justice Lane determined that these matters are acte clair and did not require a reference to the CJEU.

The IMA’s application for judicial review was supported by interventions from the European Commission and from the3million.

The IMA has previously published its Statement of Facts and Grounds and skeleton argument for hearing.

Robert Palmer KC and Clíodhna Kelleher were instructed by the IMA.

The case has been reported in the press:

The Guardian

Sky News


Philip Moser KC wins permission to appeal Braceurself judgment on “sufficiently serious breach”

Decision of Alexander Nissen KC, sitting as a Deputy High Court Judge, 7 December 2022 (unrep.)

Braceurself Ltd v NHS England [2022] EWHC 2348 (TCC) was a decision on an alternative claim in damages for breach of the procurement regulations (“the Damages Judgment”) in a case where the TCC had earlier decided to lift the automatic suspension on contract-making ([2019] EWHC 3873 (TCC)) and the contract had accordingly been awarded to another party.

In a judgment on liability, [2022] EWHC 1532 (TCC), the TCC found that the contracting authority had committed a manifest error of assessment in its scoring of Braceurself’s tender and that, absent that error, Braceurself’s tender would have won.

In the Damages Judgment the TCC found that Braceurself had however not suffered “sufficiently serious” damage to be entitled to a Francovich award of damages, there having been a single error which had been excusable and inadvertent. This was the first such judgment in which a breach that had led to an award to the wrong bidder was considered insufficiently serious to merit an award of damages.

Braceurself instructed Philip Moser KC of Monckton Chambers for the appeal.

In a decision following a hearing on 7 December 2022, Alexander Nissen KC, sitting as a Deputy High Court Judge, has granted Braceurself permission to appeal the Damages Judgment to the Court of Appeal on the question of whether the breach was sufficiently serious on Francovich principles so that the claimant was entitled to damages.

Philip Moser KC is acting for the Claimant Braceurself Limited.

Ronit Kreisberger KC and Julian Gregory involved in new opt-out collective proceedings claim against Google

A new opt-out collective proceedings claim has been brought against Google in the Competition Appeal Tribunal on behalf of publishers that sell advertising on their websites – from large news organisations to individuals who host advertising on their blogs.

Different users may be shown different ads when viewing the same webpage, and the sale of display ads typically takes place through online auctions run in the fraction of a second between when a user clicks to open a webpage and the webpage content opens.  Advertisers bid in the light of what is known about the relevant user, such as their purchase or browsing history.

The technology used to manage this process is known as ‘ad tech’.  The claim alleges that Google has abused its dominant position in ad tech markets, by engaging in unlawful self-preferencing.  Specifically, the claim alleges that Google’s publisher ad server, which manages the sale process on behalf of publishers, treated its own ad exchange, which runs the auctions, more favourably than rival ad exchanges, and vice versa.

The claims are standalone (rather than follow-on), but the allegations of abuse heavily overlap with findings made by the French Competition Authority in an infringement decision of 7 June 2021.  In addition, many of the allegations are supported by findings made by the CMA in its online platforms and digital advertising report.

The claims seek damages of up to £13.2bn to compensate a class of claimants estimated to be as large as 130,000.

Ronit Kreisberger KC and Julian Gregory are representing Mr Claudio Pollack, the Proposed Class Representative, a former Ofcom director.

They are instructed by litigation specialists Humphries Kerstetter. Also instructed are Geradin Partners, a specialist competition law practice, and Charles River Associates, both of which have extensive experience in ad tech markets from their involvement in the UK and French investigations. The claim is funded by Harbour.

Press releases from Humphries Kerstetter and Geradin Partners are available here and here.


Gerry Facenna KC leading on claim against Facebook over ‘surveillance advertising’

Meta, the owner of Facebook, is facing a claim in the UK High Court that Facebook’s model of “surveillance advertising” breaches the right to object under Article 21 of the UK General Data Protection Regulation (“UK GDPR”). The claimant Tanya O’Carroll is an independent expert and tech campaigner and is seeking to establish that users of Facebook and other social media platforms have the right to use those services while being able to opt out of being profiled and having their personal information used for targeted advertising.

Gerry Facenna KC is leading on the claim for Tanya O’Carroll, instructed by the law firm and digital rights agency AWO. The claim is supported by the Global philanthropic organisation Luminate.

The case has been reported in the national and international press:
The Guardian
Bloomberg UK
The Times here and here

New opt-out class action claims against water and sewerage companies

Following recent publicity regarding unlawful discharges of untreated sewage and wastewater into waterways like rivers, streams, and coastal waters, Jon Turner KC, Julian Gregory and Antonia Fitzpatrick are working to prepare opt-out collective proceedings claims to be brought in the CAT against water and sewerage companies in England.

As well as providing individual compensation and justice, opt-out proceedings act as a deterrent to future misconduct. As the Supreme Court stated in Merricks, such claims serve “efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing”.

Each water and sewerage company in England is a monopolist in its local area, and the claims will contend that certain systematic failures relating to sewerage discharges which resulted in increased charges to customers constitute a breach of their dominant position contrary to section 18 of the Competition Act 1998.

The claims will be the first UK collective proceedings claims with a strong environmental rationale and impact.

Jon, Julian and Antonia are working with Leigh Day (see their press release here), Alix Partners and legal finance experts Bench Walk.

Professor Roberts, a water resource management specialist, is the proposed class representative, and Professor Hammond, who has been at the forefront of attempts to hold the water and sewerage companies to account for unlawful spills, is acting as a consultant.

High Court hears landmark challenge to the EU Settlement Scheme

The High Court has today commenced hearing R(IMA) v Secretary of State for the Home Department, a judicial review of the Home Office’s implementation of the UK’s obligations to EU citizens and EEA nationals under the Withdrawal Agreement and EEA-EFTA Separation Agreement.

Robert Palmer KC and Clíodhna Kelleher appear for the claimant, the Independent Monitoring Authority for the Citizens’ Rights Agreements (“IMA”) – the post-Brexit watchdog for the rights of EU citizens and EEA-EFTA nationals. This case marks the first occasion on which the IMA has launched legal proceedings on behalf of EU/EEA citizens and their family members under the Agreements.

The case concerns the requirement under the EU Settlement Scheme that EU citizens who have lived in the UK for less than five years and so have been granted “pre-settled status” must apply for “settled status” or re-apply for pre-settled status before their current pre-settled status expires. If they do not apply in time, they will automatically lose rights to work, access housing, education and claim benefits and be liable to detention and removal from the UK.

The IMA’s position is that the Agreements provide for a loss of rights in very limited circumstances, and that the failure to make a second application for status is not one of them.

The European Commission was granted permission to intervene by way of oral submissions, in support of the IMA’s position, in addition to its right to provide written observations under Article 162 of the Withdrawal Agreement. The IMA’s interpretation of the Agreements is further supported by the intervention of the3million, a campaigning group focused on the rights of EU, EEA and Swiss citizens living in the UK.

The hearing continues on 2 November 2022.

This case is being reported in the press: The Guardian, Reuters and Financial Times.

Good Law Project’s antibody testing challenge dismissed

R (Good Law Project) v Secretary of State for Health and Social Care (“Abingdon”) [2022] EWHC 2468 (TCC)

Judgment, 7 October 2022 (link to judgment here)

In these judicial review proceedings, the Good Law Project (GLP) had challenged DHSC’s decisions at the height of the pandemic to enter into three contracts with a company called Abingdon Health for Covid antibody testing.

The Court (Waksman J) dismissed GLP’s claim in its entirety and went on to find that GLP lacked standing to bring such claims. Having referred to the remarks of the Court of Appeal in Public First (2022) (see report here), the Judge held that GLP, a stranger with no commercial interest, lacked standing: it was not affected in any tangible way by the award of the public contracts; the alleged breach was not ‘grave’, and very limited weight was to be attached to GLP’s ‘experience and expertise’ in procurement litigation; finally, that no economic operator had brought a claim was not a determinative factor either way.

The facts of the case were that in 2020 in response to the Covid-19 pandemic, DHSC entered into public contracts with Abingdon to develop and potentially supply a lateral flow test which could be used by individuals at home to identify Covid-19 antibodies. It was thought at the time that if a link could be shown between the presence of antibodies and immunity to Covid-19, such tests could support the return to normal life, although, in the end, such a link was not found.

GLP’s challenge was on the following grounds: (i) rationality; (ii) apparent bias, conflict of interest, unlawful nationality preference; (iii) breach of the equal treatment and transparency obligations and (iv) unlawful State aid.

The Court dismissed each of these grounds, holding:

(i) Rationality:

  • There was no basis to suggest that the decision to enter into the first contract (a research contract) was made on the basis of false information or that there was a failure to make rational enquiries.
  • In relation to the second and third contracts, in the unparalleled circumstances of the Covid-19 pandemic, advance purchasing of tests/ components which were plainly in short supply was not irrational even if there was a risk that the tests would not be suitable or the link between immunity and Covid-19 antibodies would not be established. Moreover, there were appropriate contractual safeguards in place.

(ii) The allegations of apparent bias, conflict of interest and/or unlawful nationality preference were not made out on the facts.

(iii) The allegation that the equal treatment obligation under Regulation 18 had been breached was baseless in circumstances where: DHSC had made it clear that it was open to dealing with any economic operator; a competition was not required; GLP could not identify an economic operator which had been “unequally treated” as compared to Abingdon, and even if Regulation 18 were engaged and had been violated, the derogation was objectively justified in the exceptional circumstances of the Covid-19 pandemic. On the choice of Abingdon as the single contractor, on the facts the relevant supply contract was a “very good deal” for DHSC, it was not at all clear that any other operator would have contracted on that basis and there was an absence of evidence of other available tests.

(iv) State aid: applying the well-recognised principles in British Academy of Songwriters, Composers and Authors (2015), Waksman J found that there had been no State aid on the facts. In so finding, he determined that DHSC was plainly acting qua economic operator, so that in applying the MEOP test the burden of showing that the finance provided did not accord with ordinary market conditions was on the Claimant (Commission v EDF C-124/10 applied). There was plainly value given by Abingdon and no evidence adduced by GLP that the figure paid by DHSC was excessive. The relevant policy context was the urgent need for the research as the precursor to obtaining a speedy supply of possibly millions of tests.

It is also of significance that Waksman J determined that a debate about whether the Government Legal Department had adequately searched the mobile phones of key witnesses had “got quite out of hand”. The Judge found that GLP’s allegations of foul play were made without a proper basis and did not assist the Court.

A detailed case note by Imogen Proud is here

Philip Moser KC, Ewan West and Khatija Hafesji represented the Department of Health and Social Care, successfully defending the claim brought by the Good Law Project.

Ligia Osepciu and Cliodhna Kelleher represented Abingdon Health, the Interested Party.

CAT rejects Apple’s application for split trial in App Store collective proceedings

The Competition Appeal Tribunal earlier this week heard and dismissed an application by Apple for a split trial in the collective proceedings brought by Dr Rachael Kent. The proceedings concern alleged exclusionary and exploitative abuses by Apple in relation to the distribution and pricing of iOS apps. Apple sought directions for a preliminary trial confined to the issues of market definition and dominance. This was opposed by Dr Kent, including on the basis that Apple’s proposal would significantly increase costs and result in serious delay to securing compensation for the class of 19.5 million individuals that Dr Kent represents. Following a day of argument the Tribunal decided to reject Apple’s proposal (with reasons to follow) and instead gave directions for a full trial of all the issues to commence in October 2024.

Michael Armitage appeared (unled) for the class representative, Dr Rachael Kent, instructed by Lesley Hannah and Luke Streatfeild of Hausfeld LLP. Ronit Kreisberger KC is also acting for Dr Kent in the collective proceedings.