Iridium Concesiones De Infraestructuras, S.A. & Ors v Transport for London

In procurement proceedings involving an automatic suspension, an awarding authority seeking discharge should provide sufficiently detailed reasons and supporting information before issuing its application. General familiarity with the project does not relieve the authority of that obligation. The parties must act cooperatively, reasonably and with commensurate speed, particularly where urgency and the balance of convenience are central. A failure to provide adequate detail before applying may justify departing from the usual rule that costs follow the event, even where the suspension is ultimately discharged by consent. The court may make a proportionate costs order reflecting both the applicant’s success and its conduct before and during the application.

The claimants were the unsuccessful consortium in a procurement for a major Thames crossing project. After the defendant awarded the project to another bidder, the claimants commenced proceedings under the Procurement Regulations, triggering an automatic suspension of the contract award process.

The defendant applied to discharge the suspension. Before issuing the application, it sought the claimants’ consent but gave limited detail about the urgency and balance-of-convenience case on which it would rely. After the application was issued, substantial evidence was provided, much of it initially placed within a confidentiality ring. The claimants later consented to discharge of the suspension but disputed the defendant’s entitlement to its costs. The issue was whether the defendant’s conduct justified departing from the usual costs rule.

1. Application and applicable approach. The defendant was the successful applicant because the claimants consented to discharge of the automatic suspension. The application was considered by reference to principles virtually identical to those governing an interlocutory injunction, including the serious-issue, adequacy-of-damages and balance-of-convenience questions.
2. Pre-application disclosure. A contracting authority seeking discharge must provide proper detail of the basis on which it says the suspension should be lifted. It is insufficient merely to identify the project’s public importance, urgency and likely delay. The claimant must be given enough information to understand the proposed case and decide whether consent should be given. That information need not necessarily take the form of sworn evidence, but it should contain detailed and comprehensive reasons.
3. Conduct in urgent procurement litigation. Parties must act cooperatively, reasonably and proportionately in providing information. Since applications concerning suspension and urgency must be heard promptly, the parties must act with commensurate speed. The defendant could and should have provided substantially more detail before issuing its application. The blanket treatment of evidence as confidential, and delay in enabling an appropriate client representative to review relevant material, further supported the claimant’s position, although those matters were secondary.
4. Costs. The claimant’s consent did not prevent the court from considering whether the defendant’s conduct had caused unnecessary costs or delay. The court accepted that the detailed evidence materially differed from the limited pre-application explanation and that the claimant could reasonably have needed the information before deciding whether to consent. Allowance was made for the urgency of such applications, inevitable expenditure and possible commercial considerations. The defendant therefore recovered 60 per cent of its costs, rather than the whole amount.