Accessible Orthodontics (O) Ltd v National Health Service Commissioning Board

In procurement proceedings, an amendment is not a new claim merely because it expands the factual enquiry. The question is whether the core breach remains the same, assessed by reference to the nature and extent of the alleged breach and damage. A court has no power under CPR rule 17.4 to permit an amendment which would deprive a defendant of an accrued limitation defence under regulation 92 of the Public Contracts Regulations 2015. Disclosure of commercially sensitive material concerning other bidders should be ordered only where truly necessary in the interests of justice. The information required by regulation 86 and the pleaded issues are important indicators when assessing necessity.

Two related claims challenged NHS procurement awards for orthodontic referral services under the light touch regime. The claims alleged breaches of transparency and equal treatment obligations and manifest errors in scoring. The claimants applied to amend their pleadings after disclosure of evaluator and moderation material. The defendant objected to amendments alleging that feedback for other tenders had been copied, relying on the 30-day limitation regime.

The claimants also sought disclosure of the evaluation and moderation records of tenders scoring higher than theirs. The court had to decide whether the proposed amendments introduced a new, time-barred claim and whether the requested disclosure was necessary, particularly in the commercially sensitive context of competing tenders.

1. Amendments. The court applied the approach in Perinatal Institute v Healthcare Quality Improvement Partnership [2017] EWHC 1867 (TCC) and concluded that CPR rule 17.4 could not be used to permit an amendment which deprived the NHS of an accrued limitation defence under regulation 92. The proposed paragraph 19.5 allegation was nevertheless not a new claim. Applying D&G Cars Limited v Essex Police Authority [2013] EWCA Civ 514, the court held that the core case remained failure to evaluate tenders transparently. The proposed allegations concerning other tenders were additional particulars of that breach. Permission to amend was therefore granted.
2. Disclosure. Disclosure of other bidders’ commercially sensitive evaluation and moderation documents was refused in the first claim. The hurdle was high because disclosure had to be truly necessary in the interests of justice. Regulation 86 indicated the information generally considered appropriate for unsuccessful bidders, although it did not prevent further disclosure. The absence of a pleaded claim directly opening examination of other bidders’ scores, the strong confidentiality objection, and the undeveloped state of the causation case outweighed the present application. The position could be revisited if later disclosure or the causation case justified it. Disclosure in the second claim was conceded.
3. Case management. The proceedings were stayed until October 2020 for alternative dispute resolution. Disclosure was deferred until after the stay. The security-for-costs application was adjourned until then because its timing made that sensible and the financial effects of Covid-19 were uncertain. Decisions on costs budgets were consequential on the disclosure ruling.