Altiatech Ltd v Birmingham City Council

In a procurement challenge, the 30-day period runs when the claimant has sufficient knowledge of the essential facts to form an informed view that an infringement has occurred and that proceedings are appropriate. Information revealing the contracting authority’s underlying reason for its procurement conduct may be an essential fact, rather than merely supporting evidence. A genuine pre-action letter does not necessarily show that time has started if the claimant remains unable to identify a viable cause of action.

Particulars of claim in a procurement challenge must be served within seven days of issue where the statutory timetable affects CPR 7.4(2). Retrospective extensions are governed by ordinary Denton principles. A bare claim for a declaration of ineffectiveness is generally insufficient. A direct award under a framework is permissible only where the conditions in Regulation 33(8)(a) are satisfied.

Altiatech had supplied Birmingham City Council with SentinelOne cyber-security software under the G-Cloud framework. The Council terminated that agreement under a termination-for-convenience clause and later made a direct award to Softcat under the North of England Framework Agreement for substantially the same product.

Altiatech issued procurement proceedings alleging breaches of the Public Contracts Regulations 2015, including equal treatment, transparency and unfair structuring of the procurement. It sought a declaration of ineffectiveness and a financial penalty. The Council applied to strike out the claim or obtain summary judgment on limitation, late service of the particulars of claim, Regulation 24, and the declaration of ineffectiveness.

The central issues were when Altiatech acquired the knowledge required by Regulation 92(2), when the particulars of claim had to be served, whether relief should be granted for late service, and whether the Regulation 24 and ineffectiveness claims disclosed viable grounds.

1. Limitation. The claim form was issued in time. Under Regulation 92(2), time begins when the claimant knows facts sufficient to constitute a cause of action and to form an informed view both as to infringement and the appropriateness of proceedings. Altiatech’s knowledge before 7 October 2022 showed suspicion and concern, but remained equivocal. It did not know the underlying reason for the Council’s termination and subsequent procurement conduct. That information was an essential fact supporting the alleged unequal treatment and unfair procurement case, not merely further evidence. The limitation application therefore failed.
2. Service of particulars. Regulation 94(1), read with CPR 7.4(2), required the particulars of claim to be served within seven days of issue of the claim form. They were 15 days late. The Court followed the approach in Cemex v Network Rail and Citysprint UK Ltd v Barts Health NHS Trust on the relevant timetable.
3. Relief from sanctions. The ordinary Denton principles applied. The delay was not serious or significant in the circumstances, or was at the lowest end of seriousness. The solicitor’s error was understandable given the difficulty of the interaction between Regulation 94 and CPR 7.4. Refusing relief would be disproportionate because it would destroy a claim of substance. The extension was granted retrospectively. The approach in Viridor Waste Management Ltd v Veolia ES Ltd was applied; Holterman v Electrium did not assist on its materially different facts.
4. Regulation 24. The pleaded apparent-bias or conflict claim disclosed no real prospect of success. The alleged conduct formed part of the same complaint advanced under Regulation 18, and the decision-makers for termination and the later award were not the same person. That part of the claim was struck out.
5. Declaration of ineffectiveness. A bare claim for a declaration of ineffectiveness is generally liable to be struck out unless a particular ground under Regulation 99 is identified and supported. The alleged direct-award breach did not establish a breach of Regulation 33(11), which concerns mini-competitions. In any event, the Council had no real prospect of being shown at trial to have breached Regulation 33(8)(a): the framework terms and objective conditions permitted the direct award to Softcat. The declaration claim was struck out.
6. The claim otherwise continued. The applications were therefore allowed only to the extent of striking out the Regulation 24 and declaration-of-ineffectiveness claims, with retrospective relief for late service of the particulars.

First-instance decision. No prior appellate decision is stated in the judgment.