Britain is noted for being rather detached from the rest of the EU, and our legal system is no exception. Take public procurement cases – a major source of income for them; a foreign language to us, despite Harmon.
Autumn is not just the season of mists, mellow fruitfulness and party conferences. It is also the time for Europe’s construction lawyers to gather for their annual European Congress and meeting of the European Society of Construction Law. This year, it was the turn of the Dutch Instituut voor Bouwrecht to organise the event, which it did with some style, in the splendid Nederlands Congres Centrum at The Hague over the weekend of 22 October.

As the organiser of the show, it was able to choose the subject. It selected the topic that was of most interest to Dutch lawyers, and to many of their European brethren – public procurement. It put together a spoof proposal for the development of a 50 km railway. The railway was to pass through a tunnel and where it did so there was to be a station. Around the station there was to be development of shops and offices. Part of the revenue from the commercial development would be used to cover the costs of the construction of the whole project. Private investment would be required for some aspects, but the commercial operation and management would remain public.

Delegates were asked to assume that this project was to be undertaken in his or her own country. They were asked all sorts of questions designed to stimulate their jaded palates: which procurement directive, if any, applies to this development, and which tendering procedure is most likely to be followed? What will be the structure of the tendering procedure? Which decisions should be taken by the governing authorities in order to facilitate the realisation of the project under public law? And, most interesting of all, perhaps: which legal remedies are open to the candidates in the context of the tendering procedure, particularly with respect to awarding decisions?

The morning was taken up with speakers from all over Europe explaining what would happen in their respective countries, some within the EU, some from outside. The way in which remedies were to be pursued was clearly a burning issue.

The British contingent was not invited to speak in the morning. Instead, we were asked to chair the afternoon discussion group on remedies. It was during the course of this session that some real comparison was possible.

EU members are all required to have necessary measures to ensure that public procurement decisions taken by contracting authorities may be reviewed as effectively and as rapidly as possible. This requirement is enshrined in what is known as the Remedies Directive 89/665.

  •  EU member states must have measures to review public procurement decisions
  •  The Danes have a specialist tribunal
  •  The Germans have a similar system
  •  The Dutch have statutory arbitration

All member states have done at least something to comply with this. The Danes have had a specialist tribunal for many years, and the Germans have recently introduced something similar. The Dutch have a statutory arbitration system that seems to work more or less satisfactorily and is certainly well used. The Belgians have an interesting choice to make between French- and Flemish-speaking courts, but seem to be able to make it all work, choosing French if they want the tender procedure suspended and Flemish if they are really hoping to recover damages.

The UK has given contractors the right to bring action in the High Court, with express provision for interim procedures by way of injunctions and the like. This is all set out in the relevant statutory instruments, such as the Public Works Contracts Regulations. There is no real reason why the system should not work reasonably efficiently.

And yet there is a major difference. Elsewhere in Europe, a regular flow of cases is brought by disgruntled contractors that feel they have been discriminated against, and cheated out of a job. Construction lawyers build practices around these cases. Ask a Danish lawyer what has interested him most this year and he will tell you about a public procurement case. Not so in the UK.

Next time you are speaking to your solicitor, ask how many public procurement cases he or she has had in the past year. In fact, make that the past five years. If, on the other hand, you are a lawyer who feels that you are missing out on a healthy source of revenue, ask your major construction clients how many times they have contemplated taking legal advice on the subject over the same period. Unless you are speaking to a fenestration contractor called Harmon or its lawyer, you will begin to see the point.

Our European neighbours have always been a little perplexed by the British. They concluded that, clearly, there were cultural differences between the two sides of the Channel. What proved difficult was working out quite what those differences were. Perhaps authorities in Britain were always scrupulously fair in the way they advertised their projects and dished out contracts. Perhaps the British construction industry was fundamentally non-litigious and reluctant to go anywhere near a court. Neither of these analyses seemed entirely satisfactory.