In Uniplex (UK) Limited v NHS Business Services Authority (C-406/08, 28 January 2010), the European Court of Justice ('ECJ') provided important guidance on the limitation period established in the UK's Public Contracts Regulations 2006 (the 'Regulations'), implementing Directive 89/665 (the 'Remedies Directive'). The judgment arguably casts doubt on the compatibility with EU law of the procedural time limit for issuing judicial review proceedings.

Key Points

  • The time for bringing proceedings should run from when the claimant knew, or ought to have known of the alleged breach (the date of knowledge) and not from the date on which the infringement occurred.
  • The court's discretion to dismiss proceedings not brought 'promptly', even though within the 3 month time limit, breaches certainty and effectiveness and is not compatible with Article 1(1) of the Remedies Directive.
  • The English court's discretion must be exercised to extend the time limit for bringing proceedings in order to comply with EU law.
  • In light of the House of Lords' decision in R (on the application of Burkett and another) v Hammersmith and Fulham London Borough Council [2002] 3 All ER 97 ('Burkett'), which left the issue open, an analogous analysis may assist claimants against the 'promptness' requirement for judicial review proceedings. However, claimants must continue to act in accordance with the current law, which has not (yet) been declared incompatible.

Context: the Remedies Directive and implementing UK Regulations

Article 1(1) of the Remedies Directive requires Member States to adopt the necessary measures to ensure that decisions taken by contracting authorities under the procurement rules may be reviewed effectively and as rapidly as possible. It does not contain any provisions setting out specific time limits, leaving this to be dealt with at a national level. Regulation 47(7)(b) provides that "[p]roceedings must be brought promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose, unless the Court considers that there is good reason for extending the period within which proceedings may be brought".

Regulation 47(7)(b) mirrors the time limit for commencing judicial review proceedings, in rule 54.5 of the Civil Procedure Rules ('CPR') (subject to CPR 3.1(2)(a), which gives the Court discretion to extend time if there is good reason for doing so).

Background to the case

In 2007 the NHS launched a restricted tendering procedure for the conclusion of a framework agreement for the supply of haemostats and duly issued invitations to tender. Uniplex submitted a tender but was informed, on 22 November 2007, that it would not be awarded the contract as it had obtained the lowest marks of the tenderers. Uniplex requested a debriefing. NHS replied on 13 December 2007, setting out the details of its approach.

On 28 January 2008, Uniplex sent a letter before action to NHS, alleging breach of the Regulations. Uniplex argued that time for bringing proceedings did not start to run until 13 December 2007. It requested a response from NHS by 13 February 2008, or if NHS took the view that time did not run from that date, by 6 February 2008.

NHS responded on 13 February 2008, denying Uniplex's allegations and arguing that the time for bringing an action had started to run on 22 November 2007.

Uniplex commenced proceedings in the High Court on 12 March 2008 seeking a declaration that NHS had breached the applicable procurement rules and claiming damages for breach of the rules. The proceedings were stayed, with a reference to the ECJ on two limitation issues:

  • Issue 1: whether Regulation 47(7)(b) confers an individual and unconditional right upon tenderers against contracting authorities such that time starts to run from the date when they knew or ought to have known of the alleged infringement, or whether time runs from the date of the alleged breach; and
  • Issue 2: either way, how should the English court apply (i) the requirement for proceedings to be brought promptly; and (ii) its discretion to extend the limitation period?

The ECJ's judgment

Issue 1: time runs with knowledge

The ECJ held that the aim of the Remedies Directive (to ensure that effective remedies are available for breach of the procurement rules) can only be achieved if the relevant limitation period starts to run from the date of knowledge. Tenderers are not in a position to establish whether or not there may have been a breach and whether to commence proceedings simply on learning that their applications have been rejected. They can only take an informed view upon being given reasons for the rejection.

Issue 2: the problem with "promptly"

The ECJ held that a national provision under which proceedings "must be brought promptly and in any event within 3 months" gives rise to uncertainty. It lets a national court dismiss an action as out of time even before the expiry of the 3 month period, if the court takes the view that the application has not been made 'promptly'. The 'discretionary' element to this limitation period was viewed as unpredictable in its effects and as such, held not to implement the Remedies Directive correctly.

As regards extending the limitation period beyond 3 months, the ECJ made it clear that national courts should interpret domestic provisions establishing limitation periods so far as possible in a way that gives effect to the Remedies Directive. In the ECJ's view, the discretion to extend time would be compatible if applied where necessary in order to ensure that a claimant has a period equivalent to that it would have had if the limitation period had run from the date of knowledge.

Comment

The ECJ's judgment is important on at least 2 levels.

First, it challenges the familiar test of 'promptness' within 3 months. In Brent London Borough Council v Risk Management Partners Limited [2009] EWCA Civ 490, Pill LJ construed the words in Regulation 47(7)(b) as having the same effect as the test in CPR 54.5. Moore-Bick LJ was more circumspect, considering it necessary to have regard to the differences in the nature and subject matter of judicial review proceedings and proceedings for breach of the Regulations, at least for deciding when time began to run (rather than the interpretation of 'promptness'). Other High Court authorities have treated the provisions as analogous.

The House of Lords' decision in Burkett remains a leading case on the interpretation of CPR 54.5. That decision left open the issue as to whether the 'promptness' test complied with EU law and the European Convention on Human Rights. The ECJ's judgment in Uniplex is a strong indication that it may well not be, although claimants must not take Uniplex as changing the existing law on the application of CPR 54.5 and so must continue to fulfil the test of 'promptness', which is a legal test (not a matter of discretion), albeit one that is heavily fact dependent.

Second, English law on CPR 54.5 deals with the issue of knowledge by treating it as relevant to the question of whether an extension of time should be granted under CPR 3.1(2)(a) and – in line with English limitation law (unless modified by statute) – irrelevant to the issue of when the grounds first arose, which is the trigger for when time starts to run. Uniplex is in this context radical, although if one combines the ECJ's answer to Issue 1 with its decision on how the discretion to extend time should be exercised, the result is the same (albeit that one method involves a departure from established limitation law and analysis and the other, a restriction of the English court's discretion).

Accordingly, Uniplex creates a division between Regulation 47(7)(b) and CPR 54.5; it will be interesting to see whether the analysis remains confined, or if it will spread.