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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hampshire County Council v Supportways Community Services Ltd  EWCA Civ 1035 (18 July 2006)
Cite as:  EWCA Civ 1035
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION, ADMINISTRATIVE COURT
The Honourable Mr Justice Mitting
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE NEUBERGER
LORD JUSTICE WILSON
| HAMPSHIRE COUNTY COUNCIL
|- and -
|SUPPORTWAYS COMMUNITY SERVICES LTD
Mr Stephen Knafler (instructed by Messrs Sternberg Reed Taylor & Gill) for the Respondent
Hearing date : 8th June 2006
Crown Copyright ©
Lord Justice Neuberger :
The relevant background and facts
"A. From 1 April 2003 changes will be made to funding for the provision of housing related support services…
B. So as to minimise the disruption to the support services which you are currently providing, it has been agreed that we will enter into this Agreement with you under which you will continue to provide support services…
C. …[T]his Agreement is therefore an interim arrangement and that as set out in the Agreement, we will carry out a review of the way in which you provide support services.
D. Depending on the outcome of that review, we may or may not ask you to provide the support services. If we do, and you agree, we will enter into a new agreement. If we don't…then this Agreement will terminate, as set out below."
"11.1 We will begin a Support Services Review of each of the Support Services during the three month period starting on the relevant Support Services Review Date concerned…
11.3 Each Support Services Review must be carried out in accordance with any guidelines and directions issued by the Deputy Prime Minister under section 93...".
The course of these proceedings
Was the Company contractually entitled to a fresh review under clause 11?
Can the Company seek a public law remedy?
"If a public function is being performed, and contract law does not provide an aggrieved person with an appropriate remedy, then action taken under or in pursuance of a contract should be subject to control by judicial review principles. Where a public body enters into a contract with a supplier, a dispute about the rights and duties arising out of the contract will often be determined by private law. However, the decision of a public body to enter, or not [to] enter, into a contract may be subject to judicial review."
"It does not seem to me likely that a decision by a state enterprise to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith."
That statement is plainly unhelpful to the Company's case: the only basis on which its claim is founded is breach of contract. Later, at 529G, Lord Templeman made the following observation, which also seems to apply to the present case:
"The causes of action based on breach of statutory duty, abuse of monopoly position and administrative impropriety are only relevant if the causes of action based on contract are rejected. If the causes of action based on contract are rejected, the other causes of action will only constitute attempts to obtain, by the declaration sought, specific performance of a non-existing contract. The exploitation and extension of remedies such as judicial review beyond their proper sphere should not be encouraged."
Lord Justice Wilson
Lord Justice Mummery