Top QC joins Community R4C legal appeal in Javelin Park incinerator case

PRESS RELEASE – 2nd August 2020

Top QC joins Community R4C legal appeal in Javelin Park incinerator case


Top QC joins Community R4C legal appeal in Javelin Park incinerator case

Community R4C continues fight to recover £150 million of ‘illegal state aid’ from Urbaser Balfour Beatty

Top London procurement barristers will work on legal appeal because of the potential national impact

Community R4C intends to challenge part of a recent High Court ruling in the Preliminary Issues trial relating to the controversial Javelin Park waste incinerator contract. By Friday 7 August 2020, they will apply for permission from the Court of Appeal to bring an appeal.

The environmental group will continue to be represented by Shakespeare Martineau solicitors as well as specialist procurement law barrister, Duncan Sinclair from 39 Essex Chambers in London.  The team will be bolstered by the addition of Parishil Patel, QC, who is one of the country’s top barristers in this field.

Community R4C say both barristers have agreed to work on the case pro bono due to the importance they attach to the outcome and because a successful appeal would have national as well as local impact.

Sue Oppenheimer, co-chair of Community R4C said: “We are applying to the Court of Appeal on the basis there has been a critical error of law in the approach taken by the High Court. The effect of this is ultimately to deprive potential bidders, Community R4C in this case, of proper access to legal remedy in the event of breaches of procurement law by directly awarding contracts without open, competitive tender.

“If our appeal is eventually upheld, the impact will be nationwide. It would establish new legal precedent which will ensure more open Government tenders. Councils will no longer be able to dismiss community-supported, environment-protecting solutions simply to favour big business.”

Community R4C plans to launch a Crowdfunder campaign soon to raise funds to meet necessary legal expenses. A previous campaign raised more than £100,000 online and from supporters locally and nationally, including celebrities such as renowned actor Jeremy Irons, TV chef and anti-waste campaigner Hugh Fearnley-Whittingstall and veteran environmentalist Jonathon Porritt, CBE.

Community R4C say they brought their legal case because there was no competitive tender for the 2016 contract, despite a price rise of over 30 per cent, and therefore, they claim, Gloucestershire County Council broke procurement law. They assert that, had there been a proper tender process, a recycling focussed solution such as theirs could have been successful and would have created a much cheaper and environmentally beneficial solution. To bring this case to full trial they needed to overcome two technical objections raised by GCC: that they were too late to bring it and that they could not have pre-qualified to bid for the contract anyway.

His Honour Judge Russen QC found against Gloucestershire County Council on the first issue. He ruled CR4C had a right to bring their challenge because the financial details of the second, £613 million, Urbaser Balfour Beatty contract had not been made public since they were signed in 2016. He ruled that they were in time to challenge what he described as “sufficiently clear and apparent factual indication that the Regulations had been breached” (para 279) CR4C claims this is a landmark judgement, given that the evidence and court ruling  showed that the details had been deliberately concealed by the GCC for a record three years.

The judge however ruled that CR4C did not have ‘standing’ ie that it was not an economic operator which could have pre-qualified to bid, had there been a tender process. This is the aspect of the ruling that the community group’s lawyers intend to appeal.

Community R4C says the case has been brought in the public interest in order to expose the breach of procurement law by Gloucestershire County Council. If proven in court at full trial, this would allow legal challenges by GCC itself to recover £150 million in illegal state aid from Javelin Park contractors Urbaser Balfour Beatty. They say it would also lead to other changes in the UBB contract which would incentivise rather than discourage recycling, such as a new price structure and eliminating the current requirement that GCC must pay for a large minimum tonnage each year no matter how much waste it actually sends to the incinerator. CR4C also proposes the introduction of a pre-treatment plant to recover carbon -emitting materials such as plastics and valuable recyclables such as metals rather than burning them.

Sue Oppenheimer said: “A meeting of our members expressed unanimous approval for our appeal and our legal team is very strong and continues to be fantastically supportive. Both Duncan Sinclair and Parishil Patel QC are procurement law experts and the latter has been involved with other precedent-setting cases.  They will be ably supported by specialist solicitors from Shakespeare Martineau. We believe it is right to continue to fight on behalf of the community for the environment and to demand transparency and value for money from the County Council.”

1 Quote in italics taken from the Judge’s ruling