Ocean Outdoor UK Ltd v Hammersmith and Fulham LBC
[2019] EWCA Civ 1642
Independent editorial summary — not the official judgment. Read the full judgment via the source link.
Ratio Decidendi
Leases of council land for commercial advertising were not services concession contracts under the Concessions Contract Regulations 2016: a concession involves the authority entrusting services it would otherwise provide as part of its public obligations, under a legally enforceable obligation on the operator to provide them. Genuine leases of land also fall within the land transaction exemption in regulation 10(11), and a bare procedural breach of the Regulations is not automatically 'sufficiently serious' to sound in damages.
Facts
Hammersmith and Fulham council owned land either side of the Hammersmith Flyover carrying two towers with large digital advertising screens, which it had leased to Ocean Outdoor. When the leases came up for renewal the council ran a competition and granted new 10-year leases to Outdoor Plus, which bid £1.7 million a year against Ocean's £600,000. Ocean claimed damages, arguing the exercise was an unlawful procurement to which the Concessions Directive and the 2016 Regulations applied.
Judgment Summary
The Court of Appeal dismissed Ocean's appeal, holding that the new leases were not concession contracts: the council had no obligation to provide advertising services, the leases imposed no enforceable obligation on Outdoor Plus to provide advertising, and in any event they were genuine leases of land within the land transaction exemption. The court added that damages would have been irrecoverable even if the Regulations had applied, because mere non-compliance is not automatically 'sufficiently serious' and Ocean was outbid so comprehensively that it would have lost a lawful competition anyway.
Key Quotes
"In those circumstances, I consider that the twin strands of the judge’s conclusions on principal issue 1 were essentially correct. In consequence, the Regulations did not apply to the tender process for the New Leases."
— Coulson LJ at [47](verbatim, verified against the judgment)
"For these reasons, therefore, I consider that this was precisely the sort of situation which the land exemption was designed to cover. In those circumstances, that is a third reason why the Regulations do not apply to the New Leases."
— Coulson LJ at [70](verbatim, verified against the judgment)
Subsequent Treatment
Clarifies the distinction between service contracts and concessions.
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