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High Court judge gives procurement litigants reprieve on claim form timescales

Out-Law News | 27 Mar 2015 | 11:37 am | 2 min. read

Companies that take issue with the way public bodies tender for or award contracts have up to seven days to serve a claim form after it has been issued, a High Court judge has confirmed.

Mr Justice Edwards-Stuart rejected an argument by Central Bedfordshire Council that companies wishing to lodge a public procurement challenge only have five days after a claim form has been issued to serve the form on a defendant public body.

Public procurement regulations place strict time limits on businesses that wish to raise a challenge relating to procurements run by public bodies. They generally give companies just 30 days to raise a legal challenge.

The rules require businesses to issue a claim against a contracting authority within the 30 day deadline and then serve the claim form sealed by the court within seven days of its issue. However, the rules state that a claim form is 'served' only if it can be considered as such under court rules. Court rules deem claim forms to be served two business days after the relevant steps have been taken to deliver the form to a defendant public body.

Mr Justice Edwards-Stuart said that it would "create difficulties" to interpret the rules in the way Central Bedfordshire Council had argued.

"In my view a reading of [the public procurement regulations] that produces such a state of affairs is profoundly unsatisfactory and so … I would construe the regulation so that '… serve in accordance with rules of court' is treated to mean that valid service is achieved when the relevant step [under the court rules] is completed," the judge said. "Provided that is done within the seven-day period the requirement of the regulation is met."

"Further, I consider that to construe the regulation in the manner contended for by [Central Bedfordshire Council] would constitute a breach of the principle of effectiveness. This is because there could be situations … where a claimant simply cannot comply with the time limit for service even though it has taken all possible steps to do so. Accordingly, [the public procurement regulations] must be read so that service within the seven-day period is achieved if completion of the step required to effect service occurs within that period. Whilst seven days is not generous, it does at least provide a small amount of leeway for unanticipated delay," he said.

Public procurement law expert Christopher Murray of Pinsent Masons, the law firm behind Out-Law.com, said that the judgment gave welcome clarity on a procedural issue that recurs often and is important for determining whether a legal challenge brought against a public procurement can be struck out.

"Tight timescales apply to litigants in public procurement cases so the judgment will be welcomed by businesses wishing to bring a challenge as it gives them a little more leeway for service of a claim form than had the judge ruled to shrink the deadline from seven to five days in practice," Murray said.