The limitations of acting quickly

All procurement practitioners know that you only have 30 days from the date of knowledge of a potential breach to bring a claim under the Public Contract Regulations (the Regulations) and now also for judicial review. To protect the position it has become common practice to issue a short Claim Form within the 30 day period leaving the claim to be set out in detail in the Particulars of Claim. Indeed this is often the only way to proceed as the information needed to fully plead the claim has not necessarily been disclosed.

However the High Court has recently given a very stark warning that causes of action not included in the basic Claim Form may not be brought outside the 30 day limitation period potentially depriving bidders with only half the story when they issue the proceedings of their strongest claim.

To understand this point it is important to understand that the court will not allow 'new' causes of action brought after the expiry of the basic limitation period unless the party can show that the new cause of action arises out of the same facts or substantially the same facts as those already in issue in the proceedings. The basic limitation period for procurement claims is 30 days.

In Corelogic Ltd v Bristol City Council [2013] EWHC 2088 (TCC) Corelogic issued a Claim Form alleging inadequate provision of post-tender (my emphasis) information. However several weeks after issuing Corelogic sought to amend the Claim Form to allege manifest errors in the assessment of the tender and the use of undisclosed award criteria. Both of these allegations related to matters which took place during the tender process.

The High Court held that these allegations were new claims as they related to the conduct of the tender and not to the failures post tender which had been the original source of complaint. Accordingly they were outside the primary limitation period and unless Corelogic could persuade the court that they arose out of the same or substantially the same facts as the matters alleged in the original Claim Form the amendment to include them would not be allowed. Unfortunately for Corelogic the court considered that as the existing claim related to matters post tender and the amended claim related to matters during the tender they did not arise out of substantially the same facts.

The amendment was not allowed and as a result Corelogice were deprived of what may have been a better and much stronger claim albeit they might seek redress by way of a claim for professional negligence against their lawyers.

The case is a warning that the need for haste in issuing proceedings for breach of the Regulations should not compromise the drafting of the Claim Form to ensure that it covers not just known claims but potential claims which might come to light as more information inevitably emerges.

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