AC-2024-LON-0001595 - [2025] EWHC 2182 (Admin)

Mr Litton KC for the Claimant submits that the BSA and the RAS Regulations provide the statutory architecture for the Scheme. The Scheme is given effect by the Contract and the SRTs which are expressly identified in the legislation, and Rydon was effectively compelled to enter into the Contract and the SRTs in order to avoid being placed on the Prohibitions List. This element of effective compulsion arising from the absence of any commercial choice but to accept the SRTs meant that the Contract is plainly not a freely negotiated contract entered into at arm’s length, and acceptance of the SRTs was a condition of being able to continue in business. Mr Litton submits that the Contract was, in these circumstances, not a commercial agreement but rather a means of enforcing statutory objectives in the public interest. The consequence of that is that the policy reasons that led the Courts in other cases involving a contractual context to limit the scope of judicial review are absent here, such that the full panoply of public law remedies ought to be available, notwithstanding the contractual context.

Sir James Eadie KC for the Defendant, submits that the established principle is that in deciding whether or not to enter into a contract, a public authority is not subject to judicial review save where there is an allegation of fraud, corruption or bad faith: see Mercury Ltd v Electricity Corporation of New Zealand Ltd [1994] 1 WLR 521 at 529 B. That principle applies here where the impugned decisions were all made pursuant to contractual powers. Sir James submits that it is not accurate to describe the situation as one of ‘compulsion’ in circumstances where the SRTs were the product of detailed negotiations in which Rydon chose not to participate. In short, whilst the SoS is subject to judicial review, the potential grounds are limited to those set out in Mercury, none of which applies here.