Ocean Outdoor v London Borough of Hammersmith & Fulham [2019] EWCA Civ 1642

16 Oct 2019 By Alfred Artley

Philip Moser QC and Ewan West appeared on behalf of the Appellant.

A. Introduction

In a major judgment handed down by the Court of Appeal last week, Coulson LJ has given important guidance on the scope of the Concessions Contract Regulations 2016 (“the CCRs”), the extent of the land transaction exemption, and the requirements for claimants to show ‘sufficiently serious breach’ in procurement claims more generally. This was the first case to consider the CCRs in such a level of detail, and – in a ruling likely to be welcomed by public authorities – the meaning of ‘concession contract’ for the purposes of the Regulations is construed relatively narrowly, with the land transaction exemption given a conversely generous interpretation. The judge’s comments on the hurdles which a claimant must surmount to be awarded Francovich damages for breaches of procurement law also have a notably pro-defendant slant.

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.