The Channel Tunnel Group Ltd & Anor (t/a "Eurotunnel") v Secretary of State for Transport

Where procurement proceedings concern an urgent public interest issue and an early decision is required, the court may order an expedited trial, even though this necessarily restricts disclosure and other case-management steps. The practical consequences of an adverse judgment, including whether a declaration of ineffectiveness should be made, should generally be determined after the liability issues have been tried and fully argued. Related judicial review proceedings may be deferred where the defendant has not yet served an acknowledgement of service or detailed grounds of resistance, and where the procurement proceedings are likely to determine issues materially relevant to the judicial review.

Eurotunnel brought Part 7 procurement proceedings in the Technology and Construction Court concerning the award of contracts for additional freight capacity across the Short Straits. It also issued related judicial review proceedings in the Administrative Court. Eurotunnel sought an expedited trial before 29 March 2019, when the contracts were due to take effect, while the Secretary of State sought a trial in April.

The court determined the appropriate timetable and considered whether permission and directions should be given in the judicial review proceedings. The central issues were whether the procurement claim should be tried urgently and how the related judicial review should be managed pending determination of the procurement claim.

1. The procurement proceedings were ordered to be tried on an expedited basis. The court considered the issues to be matters of significant public interest and accepted that an early decision was required. A four-day trial was fixed to begin on 1 March 2019. The accelerated timetable justified a narrower scope of disclosure than would ordinarily be ordered.

2. The court declined to prejudge the consequences of any adverse judgment. The practical effect of a judgment before 29 March 2019, and whether a declaration of ineffectiveness should be made, were matters for the trial judge after the liability issues had been determined and full argument heard. The potential absence of sufficient time to take effective remedial steps could be advanced as a substantive argument at that stage.

3. The related judicial review proceedings were not permitted to proceed at that hearing. Although permission would ordinarily be considered first and appeared justified on the information then available, the defendant had not served an acknowledgement of service or detailed grounds of resistance. Directions were therefore deferred.

4. No substantive steps were to be taken in the judicial review proceedings until judgment was available on the liability issues in the procurement proceedings. The precise procedural mechanism, whether a formal stay or a general adjournment, was left for further consideration.

The judgment is a first-instance case-management ruling. The procurement proceedings and related judicial review proceedings had been issued on 25 January 2019. An order made on 6 February 2019 provided for consideration of directions and the judicial review permission application alongside the Technology and Construction Court case-management conference.