High Court refuses to issue interim injunction over Westminster procurement

A High Court judge has refused to grant parking services provider Apcoa an interim injunction restraining Westminster City Council from awarding contracts relating to parking enforcement or street management services.

Apcoa had claimed that Westminster acted unlawfully in the course of the procurement process for the contracts, which have been valued at approximately £50m, and been unfair.

The council had acknowledged earlier this year that it had behaved unlawfully and abandoned the original procurement process. It started a second, accelerated procurement process in March. Westminster argued that it was entitled to do so under contract law and the procurement regime.

However, Apcoa argued that Westminster had “compounded the unfairness” by effectively arranging matters so that the company was precluded from competing in the second process. Its argument was based on the fact that the council had raised the qualifying bar in relation to the turnover requirements for prospective bidders to a level higher than Apcoa could achieve.

Apcoa’s counsel, Timothy Brennan QC, argued in court that: “Having failed to provide a level playing field in the first place (thereby denying the claimant of the contracts that it would have won had the defendant conducted the process lawfully), the defendant has now excluded the claimant from the game.”

In response, Westminster said it was also entitled to raise the bar and that there were sound commercial and financial reasons for doing so. It said it was keen to bring the process to a speedy conclusion, having already had to extend its existing contractual arrangements by a further six months.

Mr Justice Eady rejected Apcoa’s call for an interim injunction stopping the second procurement process.

He said: “I have come to the conclusion that the essential foundation of the claimant’s argument is unsound in law. There is no legal basis to overturn or quash Westminster’s decision to terminate the first procurement process and thus no prospect of obtaining the only form of injunctive relief currently pleaded.”

The judge said the criteria identified in American Cyanamid v Ethicon Ltd [1975] AC 396 had not been satisfied. Westminster was expressly entitled under the Invitation to Submit a Final Tender for the first procurement process to not award contracts. It was also entitled to abandon the process under the Public Contracts Regulations 2006.

Mr Justice Eady also said that Apcoa had failed to demonstrate why damages would not be an adequate remedy. The judge added that the balance of convenience “lies clearly in favour of not imposing further delays on Westminster or further obstruction to its procurement process in relation to these important services”.

Dr Leith Penny, Westminster City Council's strategic director of city management, said: "From the outset we stated that the council had acted to ensure this procurement process was fair and transparent and I'm pleased that this claim for an injunction has now been dismissed.

"We are currently undertaking a new procurement process with a successful tenderer expected to be announced next month."