Heron Bros Ltd v Central Bedfordshire Council

A statutory seven-day period for serving a procurement challenge is satisfied when the step required by the relevant rules of court is completed within that period. The later deemed date of service does not shorten the statutory period.

An unsealed claim form may constitute a claim form for this purpose where it is identical to the form issued by the court and is accompanied by the signed particulars of claim. The resulting irregularity may be cured where the defendant had clear notice of the proceedings and curing it is fair, proportionate and consistent with the overriding objective. An extension of time remains available only in exceptional circumstances, where the claimant and its agents have done all they reasonably could to serve in time.

The claimant brought a procurement challenge concerning the award of a leisure-centre construction contract. It sought damages and a declaration of ineffectiveness under the Public Contracts Regulations 2006.

The claimant sent unsealed copies of the claim form and particulars of claim to the defendant before the claim form was issued. The claim form was issued on 3 November 2014, but the sealed form was not deemed served until 18 November. The defendant applied to strike out the claim for failure to comply with regulation 47F(1).

The issues were whether the unsealed documents constituted service within seven days, whether the court could extend the time for service, and whether any irregularity should be cured.

1. Service within seven days. Regulation 47F(1) requires service within seven days after issue. Read purposively with CPR 7.5(1) and CPR 6.14, valid service is achieved when the relevant step required by CPR 7.5(1) is completed within the seven-day period. CPR 6.14 governs the deemed date of service for subsequent procedural purposes and does not reduce the statutory period.
2. The unsealed claim form sent by email on 3 November 2014 was identical to the form sent for issue and was accompanied by signed particulars of claim. It could therefore be treated as a claim form for regulation 47F purposes. Its lack of sealing, dating and claim number constituted an irregularity, not a failure to serve within time. The reasoning in Pomiechowski v District Council of Legnica, Poland [2012] 1 WLR 1604 supported a generous approach to statutory notice requirements.
3. Extension of time. Although a statutory time limit may be extended in exceptional circumstances to secure compliance with article 6.1, the claimant must personally have done all it could to act timeously. The court-office delay was capable of being exceptional, but the claimant’s agents had failed to mark the matter urgent, attend court, or make prompt enquiries. The jurisdictional threshold for an extension was therefore not met.
4. Curing the irregularity. The court applied a general merits test consistent with the overriding objective. The defendant had known the nature of the claim and that proceedings had been or were about to be issued. It was fair and proportionate to cure the irregularity despite the claimant’s agents having contributed to the problem.
5. The strike-out application failed. Time for service of the defence was extended by 21 days. The court indicated that there should provisionally be no order as to the costs of the application.

Not stated in the judgment. This was a first-instance decision of the High Court (Technology and Construction Court).