S.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 my tentative comments concerning reg.89 PCR2015, which do not apply to actions for judicial review against those same decisions), s.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 [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, as amended by Directive 2007/66, available here). Consequently, in order to comply with the obligation to provide all remedies foreseen in EU procurement rules, reg.104 PCR2015 reduces the immunity of the Crown in these proceedings.
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, as amended by Directive 2007/66, available here). Consequently, in order to comply with the obligation to provide all remedies foreseen in EU procurement rules, reg.104 PCR2015 reduces the immunity of the Crown in these proceedings.
By disapplying s.21 of the Crown Proceedings Act in public procurement challenges, reg.104 PCR2015 allows for the Court to give effect to reg.96 PCR2015 (interim orders). The question that remains beyond my understanding of English public and private law is whether a combined effect of reg.104 PCR2015 (allowing for injunctions against the Crown) and reg.96(6) PCR2015 (clarifying that the content of reg.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 reg.96(1) PCR2015 (for a list of the theoretically possible, see here), or not.
Given that reg.104 PCR2015 was needed to allow for interim injunctions to be adopted by the Court despite the existence of reg.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], I would guess that no other interim orders are allowed (or indeed appropriate, with the exception of interim declarations). However, this is an area
where I most likely stand to be corrected…
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(*) I am thankful to my colleague Prof Cosmo Graham for the clarification and for discussion on what is and is not part of the Crown, which is not susceptible of an easy answer... I am also thankful to him for pointing me in the direction of Part 25 of the CPR Rules and Practice Directions and discussing the implications of the different types of interim orders.
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(*) I am thankful to my colleague Prof Cosmo Graham for the clarification and for discussion on what is and is not part of the Crown, which is not susceptible of an easy answer... I am also thankful to him for pointing me in the direction of Part 25 of the CPR Rules and Practice Directions and discussing the implications of the different types of interim orders.