Regulation 104 – Injunctions against the Crown

Commentary

Regulation 104 PCR2015 determines that in proceedings against the Crown, the Court has power to grant an injunction despite section 21 of the Crown Proceedings Act 1947. This is another unfathomable jigsaw for the continental lawyer… What we can make of regulation 104 PCR2015 is the following.

Section 21 of the Crown Proceedings Act establishes restrictions on the nature of relief (or remedy) that can be sought in civil procedures against the Crown–ie against the public sector, with the exception of local authorities, which are not part of the Crown. Given that public procurement challenges based on the remedies foreseen in the PCR2015 are of a civil nature, ultimately based on tort law (see tentative comments concerning Regulation 89 PCR2015, which do not apply to actions for judicial review against those same decisions), section 21(1) of the Crown Proceedings Act would be relevant and prevent the Court from granting an injunction or making an order for specific performance against the Crown. On this see P Cane, Administrative Law, 5th edn, Clarendon Law Series (Oxford, OUP, 2011) 339; for discussion, see MH Matthews, “Injunctions, interim relief and proceedings against Crown servants” (1988) 8 (1) Oxford Journal of Legal Studies 154-68.

In that case, a compensation for loss or damage would be the only available remedy, which would infringe EU law (and, in particular, Directive 89/665/EEC, as amended by Directive 2007/66/EC, available here). Consequently, in order to comply with the obligation to provide all remedies foreseen in EU procurement rules, regulation 104 PCR2015 reduces the immunity of the Crown in these proceedings.

By disapplying section 21 of the Crown Proceedings Act in public procurement challengesRegulation 104 PCR2015 allows for the Court to give effect to Regulation 96 PCR2015 (interim orders). The question that remains beyond our understanding of English public and private law is whether a combined effect of Regulation 104 PCR2015 (allowing for injunctions against the Crown) and Regulation 96(6) PCR2015 (clarifying that the content of Regulation 96 does not prejudice any other powers of the Court regarding interim orders) actually opens up the door to orders for interim remedies different from those listed in Regulation 96(1) PCR2015 (for a list of the theoretically possible, see here), or not.

Given that regulation 104 PCR2015 was needed to allow for interim injunctions to be adopted by the Court despite the existence of Regulation 96 (or was it?); for general discussion of the possibility to obtain interim measures in procurement challenges in the UK, see P Henty, “Remedies Directive implemented into UK law” (2010) 19(3) Public Procurement Law Review NA115-24; and M Trybus, “An Overview of the United Kingdom Public Procurement Review and Remedies System with an Emphasis on England and Wales”, in S Treumer and F Lichere (eds), Enforcement of the EU Public Procurement Rules(Copenhagen, DJØF, 2011) 201, 214], we would guess that no other interim orders are allowed (or indeed appropriate, with the exception of interim declarations). However, this is an area where we most likely stand to be corrected…

Last modified: December 8, 2016 by Pedro Telles

  1. In proceedings against the Crown, the Court has power to grant an injunction despite section 21 of the Crown Proceedings Act 1947(1).

 

(1) 1947 c.44