Perinatal Institute v Healthcare Quality Improvement Partnership

Where a procurement claim is subject to the time limits in regulation 92 of the Public Contracts Regulations 2015, the court may extend time by up to three months where there is good reason. In an amendment application, the court may determine summarily whether a limitation defence is reasonably arguable. It may grant an amendment where the fresh claim is not time-barred after the extension. Once the procurement contract has been entered into, regulation 98(2)(d) excludes remedies other than those permitted by regulation 98. A claim seeking only declaratory relief therefore has no useful remedy and may be struck out, although the court may preserve parts relevant to an amended claim.

The claimant challenged a procurement decision concerning software for standardised perinatal mortality reviews. After the contract was entered into, the claimant sought permission to amend its existing claim to allege that the contract or specification had been unlawfully amended. The defendant opposed the amendment on limitation and merits grounds and applied to strike out the original claim, which sought no damages and included a claim for declaratory relief.

The court considered when the fresh claim arose, whether an application to amend constituted the commencement of proceedings, whether time should be extended under regulation 92 of the Public Contracts Regulations 2015, and whether regulation 98 excluded declaratory relief after contract award.

1. The application to amend did not itself commence proceedings. Regulation 92(6) provides that proceedings are started when the claim form is issued, and an amendment application remains subject to the court’s permission. For present purposes, commencement by amendment occurred when the application was heard.
2. The relevant date was 13 March 2017. There was no arguable evidential basis for concluding that the claimant knew or ought to have known earlier that grounds for proceedings had arisen. The defendant’s suggestion of earlier knowledge was speculative.
3. The court could address the limitation issue interlocutorily. Applying the approach in Chandra v Brooke North [2013] EWCA Civ 1559, the court considered whether there was a reasonably arguable limitation defence. There was none if the maximum extension under regulation 92 was granted.
4. There was good reason to extend time by the maximum three months. The claimant had prepared and provided its proposed fresh claim within the original period. The delay resulted principally from listing arrangements and the decision to deal with the applications together. The test was “good reason”, not exceptional circumstances. Mermec UK Ltd v Network Rail Infrastructure Ltd [2011] EWHC 1847 (TCC) did not require a different conclusion.
5. The amendment was therefore allowed. It was procedurally convenient and consistent with the overriding objective to incorporate the fresh claim into the existing pleading, notwithstanding that it arose from different facts.
6. Regulation 98(2)(d) excluded any remedy other than those specified in regulation 98 once the contract had been entered into. Unlike the provision considered in Pyx Granite Co Ltd v Ministry of Housing [1960] AC 260, the Regulations expressly stated that the court must not grant any other remedy. The original claim, which sought no damages, could not result in relief in the claimant’s favour and was struck out under CPR Part 3.4(2)(b), save for matters material to the amended claim.