Joseph Gleave & Son Ltd v Secretary of State for Defence

Whether to expedite a procurement challenge is a discretionary case-management decision. The court must assess objective urgency, the procedural history, the requirements of other court users, and the practical feasibility of a proper trial. The Remedies Directive and the Public Contracts Regulations 2015 do not create a presumption that a challenge to tender documents must be tried before the tender process ends. Expedition may be appropriate where a focused challenge could correct important tender defects at an early stage, but a court should not impose a truncated investigation whose result might prejudice other bidders. Where the claimant remains in the competition and loss has not crystallised, a short stay until contract award may be appropriate if it accords with the overriding objective and causes little detriment.

The claimant challenged the defendant’s procurement of more than 6,000 lines of hand tools, alleging that references to manufacturers’ part numbers breached the Public Contracts Regulations 2015. The claimant remained involved in the tender process and sought an expedited trial before the proposed contract award in May 2017. The defendant opposed expedition and sought a stay until after the award.

The court considered the effect of the Remedies Directive, the statutory time limits and interim-order provisions, the complexity of the technical challenge, disclosure, the parties’ procedural history, and the impact on other court users. The central issues were whether expedition was objectively urgent and practicable, and whether a short stay was justified.

1. Expedition. The application for an expedited trial was refused. The decision was a matter for the judge’s discretion, informed by the overriding objective. Relevant considerations included objective urgency, the procedural history, the needs of other litigants, and whether the proposed timetable allowed a proper determination.
2. The Remedies Directive required effective and rapid remedies, but did not create a presumption in favour of expedition before completion of a tender process. The Public Contracts Regulations 2015 contained no provision displacing the ordinary case-management principles. The absence of any presumption after completion of the tender process also told against such a presumption at an earlier stage.
3. The proposed trial was impracticable. The claim concerned several procurement exercises, more than 6,000 product lines, technical specifications, possible equivalent products, extensive disclosure and substantial witness and trial preparation. A shortened or truncated investigation was unsuitable because any correction of unlawful tender documents required a proper investigation and could affect other bidders.
4. The claimant’s continuing participation in the tender, the late request for expedition, the likely overlap between the trial and the award process, and the adverse effect on other TCC users further weighed against expedition.
5. Stay. Proceedings were stayed until 10 May 2017. The claimant’s loss was unlikely to crystallise before the award, the stay was short, and its benefits to the parties and other court users outweighed the limited detriment caused by delay. The claimant could return to court if the award was delayed.
6. The court made no determination of any future application concerning automatic suspension of the contract award. It observed, obiter, that an agreed or ordered sampling exercise might provide a cost-effective basis for a future trial and could be relevant to any later suspension application.