Nash v Barnett LBC

This appeal concerned whether judicial review proceedings challenging Barnet Council's programme of outsourcing were brought in time. The Court of Appeal upheld the judge's refusal of permission because the claimant's grounds for challenge (chiefly failure to consult under section 3(2) of the Local Government Act 1999) first arose when the Council made substantive decisions in 2010–2011 to commence competitive procurement. The court treated those decisions as final for the purpose of running time under CPR 54.5 rather than as provisional steps to be tested only at the contract award stage. The court therefore concluded the claim was outside the three-month rule and refused permission; the Master of the Rolls and the other members of the panel agreed.

The court analysed the relationship between staged decision‑making and the House of Lords decision in R (Burkett) v Hammersmith & Fulham LBC [2002] UKHL 23 and distinguished Burkett on the facts of this procurement case. The court noted the Public Contracts Regulations 2006 (competitive dialogue, Regulations 18 and 30) contemplated multi-stage procurement but held that the Council's 2010/2011 resolutions had legal effect and were the point when consultation obligations crystallised. The judge below had also addressed other grounds (public sector equality duty under section 149 Equality Act 2010 and alleged fiduciary duty) and found no breach; those conclusions were not challenged on this appeal.

Background and procedural posture. The claimant, Mrs Nash, issued judicial review proceedings challenging Barnet London Borough Council's decisions to pursue two outsourcing projects (NSCSO and DRS). Permission was refused by Underhill J ([2013] EWHC 1067 (Admin)) on the ground the claim was out of time. The matter was before the Court of Appeal as a rolled‑up permission to appeal hearing.

Nature of the application and relief sought. The claimant sought declaratory relief and quashing of the decision of 6 December 2012 to accept a preferred bidder for the New Support and Customer Services Organisation contract, and challenged the intended award of a Development and Regulatory Services contract. The principal legal bases were: (i) failure to comply with the statutory consultation duty in s.3(2) Local Government Act 1999; (ii) legitimate expectation of consultation; (iii) breach of the public sector equality duty (s.149 Equality Act 2010); (iv) breach of fiduciary duty; and (v) procurement irregularities under Regulations 18 and 30 of the Public Contracts Regulations 2006.

Issues framed by the court. The leading issue on appeal was whether the claim was brought within the time limit in CPR 54.5 (three months from when the grounds first arose) or whether, under the reasoning in Burkett, time could run from the later decision to award a contract. Secondary issues (addressed at first instance but not pressed on appeal) included compliance with the public sector equality duty and alleged fiduciary breaches.

Court’s reasoning and outcome. The court agreed with the judge below that the relevant grounds first arose when the Council resolved in 2010–2011 to commence competitive procurement: those resolutions had immediate legal effect, foreseeable expenditure and consequential administrative commitment. The Court of Appeal distinguished Burkett, holding that Burkett applies where an earlier decision is truly provisional and subject to contingency; it did not apply to the substantive procurement authorisations here. The judge had concluded (had the claim been in time) that the Council had likely breached s.3(2) LGA 1999, but that question was not determinative because of the time bar and the judge's refusal to extend time. The Court of Appeal refused permission to appeal and dismissed the appeal on the ground of delay.

Appeal dismissed. The Court agreed with the judge below that the claimant's challenge was time‑barred under CPR 54.5 because the grounds to make the claim first arose when the Council made substantive decisions in 2010–2011 to commence procurement of the outsourcing projects; Burkett was distinguishable and did not permit restarting the three‑month period at the contract award stage. The judge's discretion to refuse an extension of time was also upheld.

Appeal from the Administrative Court (Underhill J) where permission to apply for judicial review was refused ([2013] EWHC 1067 (Admin)); permission to appeal and appeal heard in the Court of Appeal ([2013] EWCA Civ 1004).