[2014] EWHC 1498 (TCC)

In public procurement claims, because parties have to move promptly there are often issues over whether or not claims have been properly and/or sufficiently pleaded. Under the Procurement Regulations, the limitation period is 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen. Here, the issue was whether the Brief Details of Claim which form part of the Claim Form issued by TPT covered all the claim that emerged in the Particulars of Claim served later, and if not, whether the eventual claim pleaded was therefore time barred.

The Council initiated a competitive tender process for building materials supply. TPT were excluded for being unable to provide a bond in the required form. On 16 May 2013 TPT’s solicitors requested from the Council under the Freedom of Information Act 2000 various information about what had happened in relation to the other tenderers’ submissions. The Council replied on 14 and 28 June 2013. The second letter enclosed actual documents sent to and received from other tenderers. This suggested that there had been a fair amount of “coming and going” between at least three other tenderers and the Council about the bonds.

On 11 July 2013, TPT’s solicitors wrote to the Council’s solicitors raising the arguably different complaint that three other tenderers should have been excluded or, given that they were allowed to remain in the tendering process albeit with arguable deficiencies in their proposals for bonds, TPT should have been allowed to remain in. TPT sought information and clarifications as to whether these other tenderers had been excluded and on various other matters. There being no effective response despite reminders, on 26 July 2013 TPT issued its Claim Form. The Particulars of Claim were by agreement served about four months later.

Amongst other issues, Mr Justice Akenhead had to decide  whether TPT had raised in its Claim Form the issue that there had been a failure to treat economic operators equally and in a non- discriminatory way (i.e the Council had treated the other tenderers in relation to the bond in a different way) for the first time in its Particulars of Claim. TPT’s main complaint related to the way the Council treated its own tender and the way it deal with the bond issue. There was little doubt that this was covered by the Claim Form.

The Judge therefore considered rules and practice relating to the contents of the Brief Details of Claim, which must accompany the Claim Form as required by CPR Part 16.2:

“(a) Only “brief” details are required to describe “the nature of the claim”, although the remedy sought needs to be spelt out; a statement of value (not more than or more than £X) needs to be provided.

(b) Whilst it is open to a claimant to be specific and restrictive in what it, he or she seeks to claim by way of the “Brief Details of Claim”, it is not necessary.

(c) The Court should have regard to the wording overall to determine what is covered by the wording of the Brief Details to see whether and to what extent the rule has been fulfilled. The Court should not be prescriptive about what is required in terms of the words used by the claimant; all that is prescriptive is in the wording of the rule.

(d) In construing or understanding what was intended by the wording used, the Court can and where necessary should have regard to the context or “factual matrix” … in which the Claim has been prepared. It is legitimate to have regard to the Particulars of Claim, particularly if served promptly at or about the time of the issue and/or service of the Claim. It is legitimate to have regard to correspondence and applications sent or served at or about the same time as the Claim. Indeed, it may be legitimate to look further back in time for exchanged communications between the parties, albeit that caution may need  to be exercised to limit this exercise only to such communications which clearly demonstrate what was intended to be the subject matter of the proceedings which followed.

Here, the real issue was whether the wording of the Claim was wide enough to cover the complaints about the allegedly unfair treatment of other bidders compared with the treatment of TPT. Although there was no separate sentence setting out the nature of the claim, the relief sought was for a declaration that the Council “was and is in breach of the Regulations, general EU and/ or Treaty obligations and principles and/or an implied tendering contract between the Claimant and the Defendant” and for damages for such breaches.

That, in the view of the Judge, could not leave anyone, let alone  the Council, in any doubt that the nature of the claim was for breach of the Regulations and other specified requirements. A declaration to that effect was expressly sought. The Judge then said that if one coupled that with the letters dated 11 July and 26 July 2013 from TPT’s solicitors to the Council, there could be no doubt that properly interpreted in that context the Brief Details of Claim were intended to cover TPT’s complaint that it had not been treated lawfully in that it was dealt with differently and unequally from other tenderers in relation to their respective treatment for the bonds and parent company guarantee.