Countryliner Ltd v Surrey County Council

In a public procurement, an authority may require tenderers to provide documentary evidence that all planning permissions and other consents needed for the proposed services exist. Where the invitation to tender makes that requirement clear, evidence of a different permitted use, historic use of premises, or a planning dispute does not satisfy it. A claimant unable to show a serious question to be tried on the only issue advanced cannot obtain interim relief. In a judge-initiated strike-out, the appellate court may consider an arguable point arising from the existing pleading, even if it was not advanced below. New procurement allegations raised after a substantial delay, particularly for the first time on appeal, should not ordinarily be added where they could disrupt the tender process.

Countryliner had tendered for Surrey County Council bus-service contracts. The invitation to tender required evidence of all planning, regulatory and other consents necessary to perform the services. Countryliner supplied operators’ licences and historic planning documents, but no planning permission for operating its premises as a bus depot.

The Council did not award the contracts. Countryliner brought proceedings under the Public Contract Regulations 2006 and sought an injunction. The parties agreed that the interim application should be assessed under the criteria in American Cyanamid Co v Ethicon Ltd [1975] AC 396. HHJ Seymour QC found no serious question to be tried and dismissed the claim of his own motion under the Civil Procedure Rules. The appeal concerned the clarity of the tender requirement, the proposed new grounds, and the propriety of dismissal.

Disposition

1. The appeal was dismissed unanimously. The order dismissing the claim under the Civil Procedure Rules was upheld.
2. The invitation to tender clearly required any necessary planning permission for the proposed services and documentary evidence of that permission. The Council had also given Countryliner a further opportunity to provide the missing evidence. Permission for vehicle maintenance and repair did not establish permission to operate a bus depot.
3. The Council was entitled to require evidence from the relevant planning authority. The fact that the premises had historically been used as a bus depot, that rent had been paid for that use, or that a planning dispute existed did not satisfy the tender requirement. The Council was entitled to conclude that Countryliner had not demonstrated all necessary consents, licences and permissions.
4. The Court of Appeal refused to permit the six additional grounds, which would have required amendment of the Particulars of Claim. Claims alleging breach of the Public Contract Regulations 2006 must be advanced within a short timescale, especially where proceedings may halt the tender process. Adding new allegations more than seven months after issue, and for the first time in the Court of Appeal after a first-instance hearing, was impermissible.
5. Although failure to establish a serious question to be tried on an interim injunction application does not inevitably require strike-out, the court permitted Countryliner to identify any arguable case on the existing pleading because the judge had initiated the strike-out. Paragraph 26 disclosed no arguable ground. There was therefore no reason to allow the action to proceed to trial, and dismissal under CPR Part 3.4(2) was appropriate.

• Court of Appeal (Civil Division): [2011] EWCA Civ 373. The appeal was dismissed.
• High Court of Justice, Queen’s Bench Division: HHJ Seymour QC found no serious question to be tried on the interim injunction application and dismissed the claim of the court’s own motion under Part 3 of the Civil Procedure Rules.