Sergei Bakeshin commented for DP on the transport company’s attempt to recover lost profits from the Mariinsky Theatre

The Gatchina-based company “Markatek” LLC took part in an public tender for the provision of transport services for the Mariinsky Theatre. After losing half a point to the winner, the company initiated a lawsuit to challenge the results. The appeal recognised that the tender had been conducted with violations, but the claim was not satisfied because the services for which the public auction had been held had already been provided. In the course of the case, it was discovered that the organisation selected by the Mariinsky Theatre did not have a sufficient number of buses and, therefore, its bid did not comply with the terms of the tender documentation. In this connection, “Markatek” LLC again appealed to the court, claiming damages. The Commercial Court of St. Petersburg and the Leningrad Region ruled to reject the plaintiff’s claims, citing the fact that the case materials did not show that the Gatchina-based firm would have won the open auction, since along with the defendant, it did not possess the necessary equipment.

As Sergei Bakeshin, Counsel, Head of Dispute Resolution and Bankruptcy Practice at Maxima Legal, explained to Delovoy Petersburg, “losses are divided into two types: real damage (losses, i.e. loss or damage to property or costs of restoring the violated right) and lost profit (lost income that would have been received if the right had not been violated). Claims for recovery of lost profit are rarely satisfied by the courts due to the difficulty of proving both the amount of lost income and the fact that the income should have been received”.

The expert clarified that in the dispute at hand, the plaintiff asked to recover lost profits. The court concluded that neither the real possibility of obtaining income (as the requirements of the tender documentation did not meet not only the defendant, but also the plaintiff himself), nor its amount (as two experts commissioned by the court to determine the amount of income, came to different conclusions) have not been proved. According to Sergei, the first circumstance is key, as the second could have been eliminated by questioning the experts or appointing a second expert examination (neither of which, according to the text of the judgement, were requested by the parties).

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