Luck T/a G Luck Arboricultural & Horticultural v Tower Hamlets

A statutory pre-action notice is a condition precedent to a procurement claim where the governing regulation requires it. The notice must identify both the regulatory duty relied upon and the particular actual or apprehended breach. A general assertion that a public authority acted unlawfully, coupled with an intention to issue proceedings, is insufficient.

The requirement in Public Services Contracts Regulations 1993 reg 32(4)(a) was compatible with Community-law principles of equivalence and effectiveness, and with article 6(1). Where malice is alleged only by inference, proof that the authority’s decision was a reasonable response may defeat that inference.

The appellant, a tree-work contractor previously engaged by the respondent borough, applied to be selected to tender for a tree-maintenance contract. The borough excluded him at the pre-tender stage and awarded the contract to another contractor.

He sought damages for alleged breaches of the Public Services Contracts Regulations 1993 and, alternatively, misfeasance in public office. HHJ MacDuff QC rejected the claims in the Central London County Court. The appellant contended that pre-action correspondence met reg 32(4)(a), that the provision was invalid under Community law and article 6(1), and that the borough had acted in bad faith through an adverse corporate reference.

The central issues were the validity and satisfaction of the statutory notice requirement, the applicability of the procurement regime, and whether bad faith or malice had been proved.

1. Appeal dismissed. The appellant had no actionable claim under the Public Services Contracts Regulations 1993. Regulation 32(4)(a) expressly required him, before commencing proceedings, to inform the contracting authority both of the breach or apprehended breach of duty and of his intention to bring proceedings under that regulation. His solicitors’ letters did neither. They referred only in general terms to an allegedly unlawful exclusion and proposed proceedings.

2. Regulation 32(4)(a) was valid. Applying the reasoning in [1999] 1 WLR 1646, there was no sufficiently close domestic comparator for a procurement claim founded on the Regulations. Misfeasance in public office was not comparable because it depends on malice or conscious or reckless illegality, whereas the Regulations establish a strict regime of transparency and equal treatment. The notice requirement did not make enforcement virtually impossible or excessively difficult. A claimant could state an apprehended breach, plead alternatives, seek an extension under reg 32(4)(b), and request reasons under reg 23(1). It also pursued legitimate purposes: enabling a contracting authority to remedy a breach and showing that the complaint was serious. It was not a disproportionate restriction on access to a court under article 6(1).

3. Although unnecessary to the result under reg 32, the court also agreed that the specialist tree-work contract had not been shown to be a Part A contract for property-management services. The appellant bore the burden of bringing himself clearly or substantially within that category. The work was directed by the borough and was essentially specialist labour, rather than property management.

4. The alternative claim for misfeasance in public office also failed. The trial judge had not reasoned that a reasonable decision could never be made in bad faith. Rather, where the allegation of malice depended on inference, he was entitled to find that a decision within the range of reasonable responses defeated the inference. He had considered the adverse reference on the appellant’s own case, accepted that parts might be inaccurate, and nevertheless found no bad faith or malice. That fact-sensitive conclusion was secure. The appeal was dismissed with costs.

• Court of Appeal (Civil Division): The appeal from the Central London County Court was dismissed.

• Central London County Court: HHJ MacDuff QC rejected the claims under the procurement Regulations and for misfeasance in public office.

• Court of Appeal (Civil Division): On an earlier appeal, the court held that the claim was properly pursued by ordinary action rather than judicial review and did not require leave.

• High Court: Richards J had refused leave to pursue judicial review proceedings.