You’re unsuccessful in a tendering process run by a UK government authority. Later you learn that the rival organisation that was awarded the contract paid a sizeable bribe to the official responsible for determining the outcome of the process. What can you do?
Although the new Bribery Act offers no new redress to victims of corruption, existing UK laws provide a number of ways in which you might obtain assistance from the Courts. As they say, there’s more than one way to skin a cat.
Judicial review
Commercially, the best option for you may be to force the public authority to make the decision again without being influenced by the bribe, allowing you to gain the contract and the benefits (profit, publicity etc.) you were looking to receive in the first place. Judicial review provides an effective route to challenge the validity of the decision and the usual heads of review are clearly applicable in the context of corruption. The Courts have power to quash a decision that was made:
- in bad faith. As the Courts are keen to stress, “Fraud unravels everything”.
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for an improper purpose. If the decision was made with a view to the personal enrichment of the decision maker, it was obviously made for an improper purpose.
- having regard to irrelevant considerations. The decision maker is supposed to have regard only to relevant considerations to exclude all others from his mind. It’s hopefully a no brainer that lining their own pockets is not a consideration to which a decision maker is entitled to have regard.
- in breach of your legitimate expectations. You’ve hopefully already made out a good case under the points above, but if that wasn’t enough, there’s a pretty strong argument that you had a legitimate expectation that the decision wouldn’t be influenced by bribes.
Although the Court can’t find that you should have been awarded the contract, it can quash the public authority’s decision and order that it be made again – properly this time!
Misfeasance in public office
Alternatively, you could look to sue the corrupt official personally. The tort of misfeasance in public office requires an exercise of power by a public official which causes loss to the claimant in circumstances where the official knows that he has no power to do the act complained of and that the act will probably injure the claimant. These elements are clearly made out where an official grants a government tender to one party instead of another as a result of having been bribed.
In certain circumstances, the public authority can be found vicariously liable for misfeasance by its officials making this an option worth exploring even though the official is unlikely have particularly deep pockets.