Philip Moser QC and Ewan West act in first Concessions Contracts case
Ocean Outdoor v London Borough of Hammersmith & Fulham  EWCA Civ 1642
The Court of Appeal has given judgment in Ocean Outdoor, the first case turning on the Concessions Contract Regulations 2016 (“the CCRs”). The lead judgment was given by Coulson LJ, formerly the presiding judge in the TCC which is the preferred jurisdiction for public procurement cases and from which this was an appeal. The judgment is remarkable in at least four principal respects: first, it delineates the ambit of the CCRs by providing a judicial definition of what constitutes a relevant ‘concession’ for these purposes; secondly, in a finding with significance for procurement cases across the board, it confirms O’Farrell J’s decision below that in order for there to be a public contract it must be one for the benefit of the contracting authority “in respect of its public obligations”; thirdly, the CofA ruled on the land transaction exemption, again for the first time in a case where it was directly in issue, giving it a fairly wide ambit, and finally the CofA gave important guidance on damages in public procurement cases, both as to the Francovich conditions (where mere breach of the Regulations, even the OJEU advertising requirement, will not suffice to render it a “sufficiently serious breach”) and on the applicability of the “loss of a chance principle” to procurement damages claims.
Read full judgment here.