Law Report: Judicial review not possible: Regina v Lord Chancellor, Ex parte Hibbit and Saunders Queen's Bench Divisional Court (Lord Justice Rose and Mr Justice Waller), 11 March 1993

The Lord Chancellor's decision to award, after a national tendering exercise, the contract for court reporting services to a particular firm of shorthand writers was not susceptible to judicial review as it lacked a sufficient public law element. Therefore, although the applicant firm of shorthand writers had been treated unfairly by the Lord Chancellor, the Divisional Court had no power to grant a legal remedy.

The Divisional Court dismissed an application for judicial review of the Lord Chancellor's decision to award the contract for court reporting services for the Chelmsford group of courts to the firm of Barnett Lenton. The applicant was a company of shorthand writers that had provided court reporting services to the Chelmsford group of courts since 1907. The Lord Chancellor's department advertised in the national press inviting tenders for court reporting services for groups of courts. The instructions for tendering stated that the department reserved the right to enter into discussions with any tenderer to clarify the submitted bid.

The department adopted a procedure whereby it eliminated, at the first stage, all tenderers whose bids were pounds 250,000 above the lowest price offered. The applicant's bid was rejected solely on price. The four lowest bidders were, on interview, given the opportunity to submit lower tenders.

David Pannick QC, (Bates Wells & Braithwaite) for the applicant; Stephen Richards (Treasury Solicitor) for the Lord Chancellor's Department.

LORD JUSTICE ROSE said that procedures followed by the Lord Chancellor were in part unfair. Although the board was entitled to have a secret yardstick for sifting tenders, the condition about discussions was in a different category. The tendering instructions gave rise to a legitimate expectation in the applicant that tenderers would not be able subsequently to submit reduced bids.

The applicant was treated unfairly. The crucial question was whether that entitled them to judicial review.

The Lord Chancellor was susceptible to judicial review. That susceptibility existed only in relation to his decisions which were either in some way statutorily underpinned or involved some other sufficient public law element as to which there was no universal test.

Section 32(1) of the Criminal Appeal Act 1968, by which shorthand writers were appointed, provided a background which emphasised the importance of shorthand writers to the administration of justice but provided no framework for their employment. The decision challenged affected many others apart from the applicant, but the same could be said of any large tendering exercise by any government department. The fact that a commercial function was being fulfilled did not bring the case outside the ambit of public law but it was not appropriate to equate tendering conditions attendant on a common law ability to contract with a policy decision or statement of policy or practice in the sphere of inland revenue, immigration and the like, control of which was the especial province of the state.

Although the applicant had been treated unfairly, it was impossible to give relief by judicial review. The decision challenged lacked a sufficient public law element to found such relief.

MR JUSTICE WALLER concurred.

Ying Hui Tan, Barrister