Important TCC judgment on interested parties’ costs

25 Mar 2021

Bechtel Ltd v High Speed Two (HS2) Ltd ((No.2) Costs of the interested party)

Judgment of 24 March 2021; Fraser J; [2021] EWHC 640 (TCC).

The TCC yesterday handed down an important judgment on the ability of interested parties to recover their legal costs in public procurement litigation, including costs incurred to protect commercially confidential information and comply with confidentiality ring provisions.

The ruling arises out of litigation between Bechtel Ltd. and HS2 Ltd. regarding a contract for the construction of Old Oak Common Station, a “super-hub”, which will connect the HS2 line with the West Coast Main line, Heathrow Express and Crossrail. Once completed, Old Oak Common will be one of the largest and most expensive stations ever built in Europe.

Fraser J dismissed Bechtel’s claim ([2021] EWCH 458 (TCC)) and following that judgment, ‘BBVS’, the winning bidder and an interested party to the proceedings, made an application for costs: (1) incurred to comply with the confidentiality ring provisions and protect its own confidential information; and (2) arising out of the plea by Bechtel for a declaration of ineffectiveness.

BBVS was awarded the former category of costs but not the latter. In his judgment, Mr Justice Fraser set out (at paragraph 25) principles “of general application to costs applications by interested parties in procurement challenges”. It would also appear that these principles will also be relevant to public procurement claims commenced in the Administrative Court by way of judicial review.

Michael Bowsher QC and Ligia Osepciu were instructed for Bechtel.

Anneliese Blackwood and Will Perry were instructed for BBVS, the interested party. Philip Moser QC was also instructed for BBVS at an earlier stage of proceedings.

Please click here to read the case note.