Kenson Contractors (Benington) Ltd v London Borough of Haringey

Interim relief in judicial review requires a real issue to be tried, consideration of the balance of convenience, and any other relevant factors. The merits threshold is modest and does not predict whether permission will later be granted. Where damages are assumed unavailable, they fall out of the balance rather than creating a presumption for either party. The court may nevertheless consider the substantive merits where appropriate, especially when the case is plainly strong or weak. In procurement challenges outside the statutory procurement regime, the public-law character of the decision depends on the public body, the contract, the source of the tender process and the nature of the challenge. A challenge confined to the nuts and bolts of individual scoring will rarely be justiciable.

The claimant contractor challenged the decision of the London Borough of Haringey to award a road-improvement contract to Marlborough Highways Limited. The contract was below the threshold for the relevant parts of the Public Contracts Regulations 2015. The claimant sought an interim injunction suspending award or execution of the contract pending judicial review.

The application followed a delayed claim and urgent procedural directions. The central issues were whether there was a serious issue to be tried, whether the claim was justiciable as a public-law challenge, and where the balance of convenience lay, including the relevance of damages, the merits and the public interest.

1. Interim relief. The court applied the Administrative Court Guide and the American Cyanamid threshold. The claimant had shown a serious, or real, issue to be tried, but only just. That finding was provisional and did not make the later grant of permission a foregone conclusion.
2. Damages and merits. On the safer assumption that damages would not be available in this free-standing judicial review claim, their absence simply fell out of the balance of convenience. It created no presumption in favour of either party. The court could consider the substantive merits where appropriate. The claim was weak because causation was doubtful, there was a strong argument that it was not justiciable, and the claimant had delayed. The principles in NCB v Olint, [2009] 1 WLR 1405, Alstom v Eurostar, [2010] EWHC 2747, and Lion Apparel v Firebuy Limited, [2007] EWHC 2179 (Ch) supported taking merits into account.
3. Justiciability. The fact that the defendant was a public body was insufficient. Relevant considerations included the public body’s nature and status, the subject matter and public-facing character of the contract, its funding, the source of the tender process, and the nature of the challenge. A challenge to the legality of a statutory process or policy may have a stronger public-law character than a challenge to individual scoring. The court approved the approach in Gamesa Energy v National Assembly for Wales, [2006] EWHC 2167 (Admin): a challenge confined to the nuts and bolts of scoring will generally lack sufficient public-law content, although exceptional cases may exist.
4. Balance of convenience and outcome. The balance plainly favoured the Council. The works had a critical and confined timetable, preparatory expenditure had been incurred, and there was a substantial public interest in improving access, drainage and public safety. The speculative suggestion that errors might taint a separate, much larger procurement was irrelevant. The interim injunction was refused.