Siderise Insulation Limited, R (on the application of) v The Mayor and Burgesses of the Royal Borough of Kensington & Chelsea

A public authority may be required to follow its stated policy unless there is lawful justification for departing from it. Where a policy excludes companies whose conduct contributed to an identified harm, it is arguable that the authority cannot apply the policy without evidence of that contribution. A blanket restriction on a supplier’s participation in future public procurement exercises may also raise an arguable question under the Public Contracts Regulations 2015. At the permission stage, the court need only assess whether the grounds are arguable, have a realistic prospect of success, and are not defeated by a discretionary bar or other knockout point.

Siderise sought permission to apply for judicial review of Kensington & Chelsea’s decision of 11 December 2024 prohibiting the use or specification of its products in the council’s construction and maintenance projects. The decision followed the Phase 2 report of the Grenfell Tower Inquiry, which criticised aspects of Siderise’s marketing materials but found no dishonesty and no evidence that its marketing had contributed to the Grenfell Tower fire or its spread.

Siderise argued that the decision breached the council’s policy or was irrational, and that it was inconsistent with the procurement regime then in force. The council also sought to raise limitation objections under the Civil Procedure Rules 1998 and the Public Contracts Regulations 2015. The central issue was whether the claim disclosed arguable grounds with a realistic prospect of success.

1. Permission granted. Siderise was granted permission to apply for judicial review on both grounds.
2. It was properly arguable that the council’s policy required evidence that misleading conduct had contributed to the Grenfell Tower fire or its spread. The Phase 2 report criticised Siderise’s marketing as misleading, but made no finding that the marketing had been relied on in designing the building or had contributed to the fire. It also considered it unlikely that a competent designer would have been misled. The council therefore arguably failed to follow its own policy, alternatively acted irrationally, in prohibiting Siderise’s products without that further finding.
3. It was also properly arguable that the council had erred in law in concluding that it could exclude Siderise from supplying products in future procurement exercises under the Public Contracts Regulations 2015. Regulation 57 concerned mandatory and discretionary exclusion. Regulations 67(5) and 70 concerned criteria linked to the subject matter of a contract and special conditions of performance. The question was not straightforward and required determination at a full hearing.
4. Following International Game Technology plc v The Gambling Commission [2023] EWHC 1961 (TCC), the judge considered it arguable that the former Regulations permitted a challenge to a specific procurement decision only by a bidding party. Since Siderise challenged a broader policy rather than a specific procurement decision, it was arguable that the strict 30-day period under regulation 92 and rule 54.5(6) did not provide a knockout bar. The limitation issue was not decided and, if still live, was to be determined at the final hearing on evidence and full argument.
5. The council was permitted to amend its summary grounds of defence. That order was partly academic because the council would have the opportunity to reconsider the issue and serve detailed grounds.