Kenman Holdings Ltd response to Judicial Review

Back in June this year, Kenman made an application for Judicial Review to the Court of Session in respect of the Comhairle’s decision to award the contract for the hospitality operations at Lews Castle in Stornoway to Natural Retreats, contending that the decision was in breach of EU public procurement law and legal principles and in breach of natural justice.

A hearing took place on 16 October at which the Comhairle contended that our petition should be ruled incompetent as we had another legal remedy available to us, namely under the Public Contracts (Scotland) Regulations 2012.

This was rejected by the Court, which found in our favour that the type of contract awarded by the Comhairle did not fall within the scope of these regulations.

The Comhairle also contended that our petition be rejected on grounds of mora (delay) taciturnity and acquiescence.

Our contention was that we did speak out to the Comhairle about the serious failures we identified in their procurement process as supported by the documentary evidence released. We advised the Court that we would have been in a position to bring our action earlier had information requested under Freedom of Information not been delayed, explaining that information requested in September 2014 was not provided by the Comhairle till late March 2015, when we received some 12,500 pages of information.

However, the Court opinion upheld the Comhairle’s contention, finding that we were taciturn in that whilst we advised the Comhairle that we would be making a State Aids complaint, we did not advise that we were taking this action till May 2015, after we had the opportunity of examining the information released by the Comhairle in March 2015.

Naturally, we are disappointed at this opinion as, at present, the substantive merits of our case will not be heard at these proceedings. However, we shall be taking advice on making an appeal or pursuing further Court action in relation to this matter.

In addition to this action, and with the support of over forty local accommodation providers, we have made two complaints to the European Commission in respect of this contract award. Both complaints are currently under consideration.