Citation: [2014] EWHC 3133 (TCC)(, [2014] WLR(D) 416, [2015] PTSR 566
NATS is the current provider of air traffic control at Gatwick Airport. GAL is the airport operator. NATS was unsuccessful in a tender conducted by GAL to award a new 10 year contract for air traffic control services and challenged the tender process based on alleged infringements of the Utilities Contracts Regulations 2006 (the Regulations) and of an implied tender contract.
GAL argued that it was not a utility caught by the Regulations. The hearing of 10 and 12 September 2014 was to determine whether GAL would be prevented from entering into the contract with the successful tenderer pending trial, on the basis either that the automatic suspension under the Regulations would be maintained or (if the Regulations did not apply) that an interlocutory injunction should be granted.
Mr Justice Ramsey held that there was a serious issue that GAL was a utility on the basis that it exploited Gatwick Airport further to special and exclusive rights granted by a competent authority by way of legislative, regulatory or administrative provisions. Ramsey J further held that there was a serious issue as to the existence of an implied tender contract under which the Regulations or equivalent principles applied. For the purpose of the hearing, GAL accepted that there was a serious issue as to the alleged infringements.
Ramsey J found that damages would not be an adequate remedy for NATS given, in particular, the difficulty in assessing damages for loss of a chance and the reputational loss that could be suffered if it were to lose the Gatwick contract. It was held that the balance of convenience favoured maintaining the suspension given that NATS’ interest in the new 10 year contract weighed heavily and that a further delay of 6 to 12 months should be viewed in the context that there had already been a delay of two and a half years in the procurement process. Ramsey J concluded that the suspension was to be maintained if one applied and if not, an interlocutory injunction should be granted.
Counsel: Sarah Hannaford QC and Simon Taylor appeared on behalf of the Claimant.
