Harry Yearsley Ltd v Secretary of State for Justice

For the purpose of Public Contracts Regulations 2006, proceedings are brought when the court issues the claim form, or potentially when it receives the form for issue under the applicable procedural rules. Service is not required to stop time running.

A procurement challenge must be brought promptly and within three months of the date when the grounds first arose. The period may depend on when the claimant knew, or had the means of knowing, facts which reasonably clearly indicated an infringement. A claim should proceed to trial where factual disputes or causation issues give it a real prospect of success, even though success is not probable.

The claimant, an unsuccessful tenderer for a prison frozen-food contract, challenged the procurement by the defendant contracting authority under the Public Contracts Regulations 2006. The defendant applied for summary judgment or strike-out.

The challenge alleged unlawful criteria and weightings, non-compliance with mandatory Halal requirements, material post-award contractual changes, defects in the electronic auction, and inadequate debriefing. The defendant contended that the proceedings were out of time, that the claimant had suffered no loss, and that the pleaded grounds had no real prospect of success.

The central issues were when the proceedings were brought, whether particular grounds were time-barred, and whether the remaining claims raised triable issues.

1. The court held that proceedings under regulation 47(7)(b) of the Public Contracts Regulations 2006 were brought when the claim form was issued under CPR 7.2(1), not when it was served. Paragraph 5.1 of Practice Direction 7A supported the possibility that the date of receipt for issue may be relevant.

2. The claim issued on 1 April 2010 was therefore brought on that date. The court treated the three-month requirement as requiring prompt action from the time when the grounds first arose. For the electronic-auction complaint, the claimant knew, or at least had the means of knowing, by early October 2009 and in any event by 20 November 2009 that the procedure was allegedly non-compliant. That ground was out of time, and there was no real prospect of obtaining an extension.

3. The court rejected the submission that success at the non-price stage necessarily defeated causation. If non-compliant tenderers should not have reached the electronic auction, and the auction dynamics would thereby have changed, the claimant might establish loss. The issue was triable, although loss would have to be proved as a matter of probability rather than speculation.

4. Detailed allegations concerning the Halal standard raised factual issues unsuitable for summary determination. The claims concerning the alleged material changes to the awarded contract were inadequately particularised but were pleaded by way of example. The claimant was directed to set out all relied-on facts and seek permission to amend.

5. The debriefing claim was not struck out. The court declined to strike out the other pleaded claims, subject to the directions concerning material contractual changes. The electronic-auction claim based on a price-only award after a threshold non-price assessment was struck out as out of time. Costs and the precise form of order were reserved.

First-instance decision. No prior appellate decision is stated in the judgment.