Suspension lifted in Deep Tube Procurement claims

08 Nov 2018

Bombardier Transportation UK Ltd v Hitachi Rail Europe Ltd & Ors [2018] EWHC 2926 (TCC)

In the latest High Court ruling on a procurement suspension, Mrs Justice O’ Farrell determined that the suspension should be lifted in claims by Alstom, Hitachi and Bombardier against London Underground Limited (LUL).

The procurement concerned a procurement under the 2006 utilities rules concerning 94 new trains for the Piccadilly Line, together with technical support and spares, with options for further trains on the Bakerloo, Central and Waterloo and City Lines. LUL awarded the contract to Siemens. The Claimants brought three claims challenging the outcome (Hitachi and Bombardier had formed a joint venture) and contended that the contract was a once in a generation opportunity, the loss of which could not be compensated in damages.

The Court allowed LUL’s application to lift the automatic suspension of the procurement. It held that the contract was distinctively prestigious, and that damages would not be an adequate remedy for the harm to the Claimants’ reputations. However, the balance of convenience favoured lifting the suspension to allow the upgrade programme to proceed in the public interest.

The judgment is the first to consider a suspension application in the context of claims by multiple claimants. In addition, the judgment is notable for its consideration of the “sufficiently serious breach” test in the context of suspension applications and the Court’s ruling that, in principle, delay arising because of the need for a new procurement if the claims succeed at trial should be disregarded in the balance of convenience.

A copy of the judgment can be found here.

Philip Moser QC, Valentina Sloane and Anneliese Blackwood acted for Hitachi and Bombardier instructed by DLA Piper and Womble Bond Dickinson.

Ewan West acted for Alstom instructed by Hogan Lovells.

Rob Williams acted for Siemens instructed by Osborne Clarke.