Chico/Octagon Joint Venture v Roads Authority (HC-MD-CIV-ACT-DEL 3647 of 2018) [2019] NAHCMD 172 (23 April 2019)

Chico/Octagon Joint Venture v Roads Authority (HC-MD-CIV-ACT-DEL 3647 of 2018) [2019] NAHCMD 172 (23 April 2019)

The plaintiff's particulars of claim failed to disclose a proper cause of action for constitutional or delictual damages because they did not plead fraud, dishonesty, exceptional circumstances, wrongfulness, fault, or causation as required by law. Only in exceptional cases, or where dishonest or fraudulent conduct is alleged, can damages be claimed for loss arising from an administrative tender process. The first exception (regarding the necessity to claim damages in the review proceedings) was dismissed, but the remaining exceptions were upheld as the pleadings were deficient.

Citation
[2019] NAHCMD 172
Parties
Plaintiff: CHICO/Octagon Joint Venture; Defendant: Roads Authority
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
23 April 2019
Case Number
HC-MD-CIV-ACT-DEL 3647 of 2018
Procedural Posture
Civil (delict/constitutional Damages) / Ruling on Exception to Particulars of Claim
Outcome
Exceptions partially upheld.
Legal Topics
Tender Process, Judicial Review, Constitutional Damages, Pure Economic Loss, Exception to Pleadings
Source Language
English
Administrative Law Constitutional Law Delict Tender Process Judicial Review Constitutional Damages Pure Economic Loss Exception to Pleadings

Case Brief

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Parties

CHICO/Octagon Joint Venture

Plaintiff

Roads Authority

Defendant

Procedural Posture

Civil (delict/constitutional Damages) / Ruling on Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose a proper cause of action for constitutional or delictual damages arising from an unlawful tender award.
  2. 2 Whether failure to plead fraud, dishonesty, or exceptional circumstances precludes a claim for damages in the procurement context.
  3. 3 Whether the plaintiff must have sought damages in the original review proceedings.

Ratio Decidendi

The plaintiff's particulars of claim failed to disclose a proper cause of action for constitutional or delictual damages because they did not plead fraud, dishonesty, exceptional circumstances, wrongfulness, fault, or causation as required by law. Only in exceptional cases, or where dishonest or fraudulent conduct is alleged, can damages be claimed for loss arising from an administrative tender process. The first exception (regarding the necessity to claim damages in the review proceedings) was dismissed, but the remaining exceptions were upheld as the pleadings were deficient.

Court Disposition

Exceptions partially upheld.

Orders

  • First exception dismissed.
  • Second to eighth exceptions upheld with costs.