The Technology and Construction Court has in its judgment delivered on 5 November 2014 re-iterated that the American Cyanamid principles applicable to applications to lift statutory suspensions in the field of procurement are compatible with the current Remedies Directive 2007/66/EC.
In the context of a challenge by the incumbent provider to the award of a contract for media services by Crown Commercial Services (on behalf of Cabinet Office) to Carat, and an application by the defendant to lift the statutory suspension imposed by virtue of Regulation 47G of the Public Contracts Regulations 2006, the claimant contended that the approach of first instance courts based on American Cyanamid principles was in conflict with the Remedies Directive. The claimant claimed that the Directive provides simply for a balance of interests test and does not provide for a separate assessment of whether damages are an adequate remedy and does not require the provision of cross undertakings in damages. Examining in turn the provisions of Article 2 of the Directive by reference to the various steps involved in the Amercian Cyanamid tests, Mr Justice Akenhead rejected those arguments and concluded that the American Cyanamid approach is consistent with (or at worst nor inconsistent with) the relevant provisions of the Remedies Directive. Applying those principles the judge proceeded to lift the statutory suspension on the ground, inter alia, that there was no serious issue to be tried.
Please click to view the full Group M UK Limited v Cabinet Office judgment.
Michael Bowsher QC and Anneliese Blackwood (instructed by Freshfield Bruckhaus Deringer) for the Claimant
Philip Moser QC, Ewan West and Daisy Mackersie (instructed by The Treasury Solicitor) for the Defendant
Valentina Sloane (instructed by Slaughter and May) for an Interested Party (Carat)