Azam & Co Solicitors v Legal Services Commission [2010] EWCA 1194

This was an appeal where Azam claimed that its failure to submit a tender before the deadline was itself caused by a failure of the LSC expressly to identify that deadline by any direct communication to the fi rm, and that this constituted a breach of the LSC’s duties of equal treatment and transparency, a breach of its enforceable Community obligation to give eff ect to a legitimate expectation of the fi rm that it would be directly notifi ed and, more generally, breach of the LSC’s enforceable Community obligation to comply with the principles of good administration. Second Azam alleged that the LSC’s refusal of an extension of time constituted a breach of the LSC’s enforceable Community obligation to comply with the principle of proportionality, having regard to the serious commercial damage likely to be caused to the fi rm by a refusal, and the absence of any prejudice which would have been occasioned by the grant of an extension,.

In short what Azam was really alleging was that the reason it missed the tender deadline was itself the result of the LSC’s fault, rather than its own lack of reasonable care and diligence. What had happened was this. Azam became a supplier of publicly funded immigration services in July 2003. On 30 November 2009, LSC published on its website information by way of Invitations to Tender for Immigration contracts from 2010. The deadline was 28 January 2010. By letter dated 23 December 2009, the LSC sent a standard letter to all existing providers giving information about the tender process. This referred to the ITT which had been previously published and included a reference to the website. The letter did not include a reference to the tender deadline. Azam assumed it would receive a further letter giving express details about the deadline. No letter was sent, and Azam failed to submit a tender. At the beginning of February, one week late, when Azam found this out, it immediately applied for an extension of time to submit its tender. That was refused by LSC who referred to its obligation to treat all economic operators equally. The CA agreed with the Judge at fi rst instance who said this:

“ the immigration tender process had been published expressly on the basis that deadlines were there to be complied with, and that no extensions would be given. Secondly, the grant of an extension to the fi rm, occasioned by a failure to submit a tender on time which was by no means beyond its control, would run the grave risk of constituting unequal treatment of other tenderers. In particular, it would be likely to be regarded as unfair by tenderers who would have wished for longer time in which to perfect their tenders, but who nonetheless completed them on time and, in reliance on the warning that extensions would not be granted, sought no further time for themselves. Thirdly, it seems to me that the principles of transparency and good administration weigh very heavily in the balance against an applicant for an extension of time who is unable to point to reasons beyond his control by way of justifi cation.”

The CA noted that the decision not to permit an extension was not, in the circumstances, disproportionate. The LSC had to take care that individual tenderers, or prospective tenderers, were not being given favourable treatment, and here the suggestion could be that it was an existing provider who has the advantage of earlier dealings who was given that advantage. A deadline is a necessary part of a tendering process and here the deadline was plainly stated in readily accessible documents.