Cookson & Clegg Ltd, R (on the application of) v Ministry of Defence & Anor

Permission to appeal should be granted where there is a real, though difficult, issue whether judicial review may provide relief not available in parallel private-law proceedings. This may arise where the challenge concerns a public procurement decision and the claimant argues that domestic public-law principles, or the applicable procurement regime, could support relief affecting the contract itself. The existence of substantial obstacles, factual disputes, ongoing Part 7 proceedings and the availability of damages does not necessarily prevent permission being granted. The court may also consider consolidation appropriate where the proceedings substantially overlap and the successful party may seek relief affecting an interested third party.

The applicant had supplied military clothing and challenged the Ministry of Defence’s award of a substantial call-off contract to a newly formed joint venture. It brought Part 7 proceedings alleging breaches of the Public Supply Contracts Regulations and related unlawfulness, and separately sought judicial review of the award decision.

Permission for judicial review was refused by Sir Michael Harrison, Bennett J and, on paper, Sedley LJ. The applicant renewed its application before the Court of Appeal, arguing that judicial review might provide relief unavailable in the Part 7 proceedings, including relief affecting the contract. The issue was whether there was sufficient prospect of successfully challenging the judge’s discretionary decision to refuse permission.

1. Permission granted. The renewed application concerned a decision to award a public contract and overlapped substantially with pending Part 7 proceedings. The applicant alleged that the Ministry had failed to take account of relevant matters, including past experience, had not allowed adequate time for a legal challenge, had awarded the contract to a company outside the shortlist, and had acted irrationally.
2. There were considerable difficulties in the applicant’s way. Sedley LJ had considered that the Regulations were coextensive with the parties’ public-law rights and powers, that the public-law case outside the Regulations appeared artificial, that damages were not inadequate for losses on a potential commercial contract, and that factual disputes made judicial review less appropriate.
3. Nevertheless, the applicant identified a sufficiently arguable gap between the remedies available in the Part 7 proceedings and those potentially available on judicial review. In particular, it relied on Alcatel [1999] ECR I-7671 concerning the possibility of setting aside a contract, and on the difficulty of proving in damages that it would have obtained a call-off contract. The Court did not determine the merits of those issues.
4. The prospect of a consolidated hearing causing only a small increase in time and costs, together with the possibility that Cooneen was an interested party because relief might affect the contract, supported allowing the issue to be considered by a Full Court.

The application was granted. The appeal was to be heard by three judges, one of whom could be a High Court judge. Costs were costs in the appeal.

• Court of Appeal (Civil Division): permission to appeal granted on the renewed application; the proposed appeal was directed to the Administrative Court’s refusal of permission for judicial review.
• Administrative Court: Bennett J refused permission for judicial review and gave written reasons on 21 January 2005.
• On paper: Sir Michael Harrison initially refused the application, and Sedley LJ refused permission to appeal on paper.