Court of Appeal refuses permission to appeal in long-running battle over £600m procurement of incinerator

The Court of Appeal has refused Community R4C (CR4C) permission to appeal the High Court’s dismissal of its claim against Gloucestershire County Council over the £600m+ procurement of an energy from waste plant.

CR4C admitted that it was “stunned” to learn of the Court of Appeal’s decision but added that new challenges would come on the grounds of illegal state aid and value for money.

In Community R4C Ltd v Gloucestershire County Council [2020] EWHC 1803 (QB) His Honour Judge Russen QC, sitting as a Judge of the High Court, found that the claimant lacked eligibility as an economic operator at the relevant time.

A core requirement for a valid claim under Regulation 91 of the Public Procurement Regulations 2015 was therefore missing, the judge said.

According to Gloucestershire, the Court of Appeal stated the “evidence was overwhelming” that CR4C would not have been able to bid for the contract to manage the county’s waste and that there was no realistic prospect that they could persuade the appeal court to reach a different conclusion.

The council said it had been awarded its costs of defending the High Court claim and was now in the process of recovering them from CR4C. 

Cllr Nigel Moor, the council’s Cabinet Member for the Environment, said: “I’m really pleased the Court of Appeal has issued such a robust reasoning in its dismissal of this case.

“Javelin Park disposes of the waste Gloucestershire can’t recycle cleanly and safely, whilst cutting our carbon emissions significantly. Taxpayers have been put to significant cost by this challenge – and we will take steps to recover as much of that as possible.”

CR4C Board director, Tom Jarman, said: “We will continue to challenge this illegal contract on the grounds of unfair competition and breach of state aid laws. The latter could still return £millions to County taxpayers.

“As a first step we have made a detailed application to DG Competition in the European Commission. They are responsible until January for referring matters of illegal state aid to the UK Courts. From January 2021 it will be the job of the Competition and Markets Authority and we are already in touch with them.”

CR4C said it had also made approaches to the council’s auditors, Grant Thornton, to issue a report on the value for money and legality of the contract.

CR4C Board chair Sue Oppenheimer said: “The latest legal decision is obviously a disappointment for us and all our loyal supporters. It is also very strange. It would seem to replace the legal remedy of loss of chance with a new law based on being able to prove the impossible: that we could have met a hypothetical tender at a hypothetical date with a hypothetical consortium. This is clearly nonsensical and the implications are negative nationwide for any non ‘big business’ consortium trying to bid for public projects. This will have a profound effect by unfairly preventing SME’s and community-led consortia from having a chance of a successful bid.”