Dukes Bailiffs Limited v Breckland Council

This judgment addresses whether a local authority contracting-out enforcement of local debts is governed by the Public Contracts Regulations 2015 (PCR 15) or by the Concession Contracts Regulations 2016 (CCR 16), and whether the award decision was amenable to judicial review. The court held that the relevant procurement fell within the definition of a services concession under Reg.3 CCR 16 (applying the principles in the Concessions Directive and the relevant CJEU jurisprudence such as Oymanns, Eurawasser and Stadler, and following the approach in JBW Group v MoJ and Newlyn). Consequently the PCR 15 did not apply and the claimant’s procurement claim under PCR 15 had no real prospect of success and was struck out / summary judgment entered for the defendant. Permission for judicial review was refused: the claim grounded on legitimate expectation and on inadequate or post-hoc reasons failed or was not amenable to review; an apparent-bias complaint against an evaluator was not arguable on the facts. A contract claim (including the claimant’s pleaded alternative that the authority had contracted to award 'as if' the PCR 15 applied) was left to proceed to trial.

The claimant, an incumbent enforcement agent (Dukes), was on a Dynamic Purchasing System (DPS 953) curated by YPO and bid in a call-off competition run by Breckland Council (on behalf of the Anglia Revenues Partnership) for enforcement services. The Council awarded the contract to Bristow & Sutor. Dukes issued two claims: a TCC claim under the PCR 15 alleging procedural breaches (scoring, inadequate reasons, apparent bias) and a JR claim arguing public-law analogues and two additional grounds (legitimate expectation and an Ermakov challenge that the authority relied on reasons not used at the time).

The court analysed: (i) the distinguishing features of 'public contracts' under PCR 15 and 'concession contracts' under CCR 16 (and the underpinning EU Directives and CJEU case law); (ii) which document(s) comprised the relevant contract for that legal categorisation; and (iii) whether, on the assumed facts, the award involved transfer of operating risk and exposure to market vagaries sufficient to qualify as a services concession under Reg.3 CCR 16.

Key issues framed and the court’s reasoning:

• Which instrument governs? The court interpreted Reg.2 PCR 15 and Reg.3 CCR 16 in the light of the 2014 Directives and retained pre‑Brexit CJEU/domestic authorities (EU retained law principles under the European Union (Withdrawal) Act 2018).
• What is the relevant contract? The court analysed the DPS agreement, the ITT/specification and the final contract with Bristow. It treated the award documentation (the 'call-off' / awarded contract) as the operative contract for the statutory test, while having regard to the procurement documents and the reasonable expectations of tenderers.
• Services concession test (Reg.3 CCR 16): the threshold requires that the award involves transfer of operating risk (demand and/or supply risk) and that the part of risk transferred gives real exposure to market vagaries such that potential estimated loss is not merely nominal or negligible; there is a deeming clause where the concessionaire is not guaranteed to recoup investments/costs in normal operating conditions. Applying those criteria to enforcement-agency contracts (with fees recoverable from debtor payments and a regulated fee structure under the Taking Control of Goods (Fees) Regulations 2014), the court concluded that the award involved transfer of operating risk and more‑than‑nominal exposure, so the arrangement was a services concession.
• Procedural and JR points (TCC and Administrative Court): applying strike-out and reverse summary judgment principles, the court concluded the PCR 15 challenge had no real prospect of success. Permission for JR was refused: the legitimate expectation argument was effectively a private-law alternative (the claimant retains a contract claim for damages), Ermakov-type complaints and reasons complaints did not supply a convincing public‑law basis to quash the award, and the apparent‑bias claim was not arguable on the pleaded facts and would not have produced a substantially different outcome.

The court therefore struck out / entered summary judgment dismissing the PCR-based procurement claim, refused permission for judicial review, and left the claimant’s contractual claims (including its alternative that the authority had contracted to apply the PCR 'as if' it applied) to proceed to trial with directions to be agreed.

This was a first-instance decision. The court held that the procurement in issue was properly characterised as a services concession within the meaning of Reg.3 CCR 16 and therefore not a public contract falling within the PCR 15. The PCR-based claim disclosed no real prospect of success and was struck out / summary judgment was entered for the defendant. Permission to bring the Judicial Review was refused: the legitimate expectation and related public-law grounds were not a proper or sustainable basis for quashing the award. The claimant’s alternative private-law contract claim (including the pleaded case that the authority contracted to run the call-off 'as if' the PCR 15 applied) may proceed to trial.