New Judgment: Nuclear Decommissioning Authority v EnergySolutions EU Ltd (now called ATK Energy EU Ltd)  UKSC 34
11 Tuesday Apr 2017
On appeal from:  EWCA Civ 1262.
The respondent brought a public procurement claim against the appellant NDA, in connection with its unsuccessful bid for a contract for services to decommission sites previously used for nuclear generation. Preliminary issues regarding the circumstances in which damages may be recoverable for breaches of the 2006 Regulations arose for consideration. Held, inter alia, the 2006 Regulations did not go further than EU law requires by conferring a power to award damages in respect of loss or damage suffered by an economic operator in the case of any breach, as opposed to only a “sufficiently serious” breach, of the Regulations, as per the Francovich conditions.
The respondent had also not failed to mitigate its loss by not having taken steps to prevent the NDA from carrying its breach of duty into effect. An economic operator cannot be said to have acted unreasonably in deciding not to pursue a course that exposes it to the risks associated with the possibility of its challenge to the contract award decision failing.