Readers will probably recall that a ruling of the European Court in the Uniplex case last year held that the current limitation periods in The Public Contracts Regulations 2006 (Regulations) do not comply with EU law.
The text of the Regulations currently states that claimants must bring proceedings for damages "promptly and in any event within three months", but also gives the court a discretion to extend the period beyond three months if it judges fit.
The Uniplex ruling decided that this wording was too vague - and that it offended against the principles of legal certainty. It was not clear what was meant by "promptly" nor from what point the time period started to run. The Regulations thus require amendment, and, in the interim while new wording is drafted, the courts are now interpreting the text in accordance with the Uniplex ruling, that is, as if it states a full three months is permitted to claimants in which to bring a challenge.
The process of making this amendment to the law has now started, with the Cabinet Office announcing a consultation which will close on 19 January 2011. Broadly speaking, the three options the Cabinet Office suggests are:
- shortening the current time period to 10/15 days from the date the claimant obtained knowledge of the alleged breach; or
- choosing a longer time period of, for example, 30 days, from the date the claimant obtained knowledge of the alleged breach; or
- having a short 10/15 day time period but giving the court discretion to extend the time period to three months or less.