Hossack, R (on the application of) v Legal Services Commission

Mrs Hossack is the sole principal of a firm of solicitors, Hossacks, which has its only office in Kettering, Northamptonshire. From that office the firm operates nationally in the field of community care, providing legal services for a wide range of people suffering from disabilities. Mrs Hossack is deeply committed to the work. Historically, as she explained to us, she has done what work she could on legal aid and has used the profit from that work to fund other work which she carries out without charge.

In February 2010 the Legal Services Commission (“the LSC”) issued an invitation to tender (“the ITT”) for contracts to deliver publicly funded services in social welfare law, including community care, from 14 October 2010. A contract would permit a firm to undertake certain fixed fee advisory work, allocated annually as “New Matter Starts”, and to be granted public funding certificates to undertake representation in courts or tribunals. The tendering process divided England and Wales into 125 geographical procurement areas and allocated a varying number of New Matter Starts to each area. An applicant had to make a separate bid for each area and had to specify the number of New Matter Starts bid for in that area.

The tendering process and relevant requirements were explained in a document entitled “Information for Applicants” (“the IFA”). The IFA shows that there was a three-stage process for the awarding of tenders, which in broad summary was as follows. First, a tender had to meet the requirements set out in a Pre Qualification Questionnaire (“the PQQ”). This was assessed in substance on a pass/fail basis. Secondly, the tender had to meet a number of “essential criteria” set out in the ITT. This, too, was assessed on a pass/fail basis. One of the essential criteria was that the applicant had to have at least a part-time presence in the area for which the bid was made. Thirdly, tenders passing the first two stages were marked against a number of “selection criteria”, and contracts in respect of each area were offered to those receiving most marks, until the number of New Matter Starts allocated to the area was exhausted.

Mrs Hossack (who can be equated with her firm for this purpose) submitted a tender for each of the 125 areas, bidding in each case for 100 New Matter Starts. Unfortunately she submitted an identical ITT form for each area: the submission was made online but it is convenient, if strictly inaccurate, to talk in terms of a submitted form. The form referred in each case to “Wiltshire” as the procurement area for which the bid was made; boxes were ticked to indicate that the applicant had or would have an office in the area, with a part-time staff presence (though the requested address details of the office were omitted); and the form named a supervisor (Mrs Hossack herself) and three caseworkers as the staff who would deliver the services from the office (they all operate in fact out of the office in Northamptonshire).

By letter dated 5 July 2010 the LSC rejected all of Mrs Hossack’s tenders save that for the Wiltshire area, stating:

“In each of your responses you submitted a Tender Form for Wiltshire. Therefore, whilst we received Tender Forms from you, they did not relate to the applicable ITTs (other than in response to the Wiltshire ITT) and accordingly your tenders were incomplete.

Accordingly, we are unable to take your tenders forward and all apart from that for Wiltshire have been rejected.”

Mrs Hossack brought judicial review proceedings to challenge that decision. Permission to apply for judicial review was refused on the papers. A renewed application was refused by Mitting J after a hearing.

Mummery LJ directed that Mrs Hossack’s application for permission to appeal against Mitting J’s order be adjourned to an inter partes hearing before the full court, with appeal to follow immediately if permission was given. That hearing took place before us on 28 June 2011. Mrs Hossack appeared in person (she was represented by counsel acting pro bono for much of the hearing before Mitting J, though she dispensed with the services of counsel once the judge had indicated the nature of the order he was minded to make). The LSC was represented by Miss Fiona Scolding. The length of the written submissions and the volume of documentation on both sides were excessive but there was a commendable display of economy and focus in the oral submissions at the hearing itself.

There was also a commendable display of economy and focus in the judgment of Mitting J. He referred to the difficulties created for Mrs Hossack by the economic model on which the scheme was based, requiring as it did that an applicant had an office staffed at least part-time in the area for which the tender was submitted. At [4]-[5] he said that no human being reading the totality of the 125 forms submitted by Mrs Hossack could have done anything other than realise that the “Wiltshire” heading of each form was a mistake; nor could any sensible reader have believed that she was representing that she had an office in every area: the written text of the forms made it clear that she was intending to provide legal services by travelling to the people for whom services were to be provided, not by requiring them to attend an office in the geographical area in which they were situated.

The judge dealt at [6] with the position concerning Wiltshire itself. Bizarrely, as he put it, the LSC accepted the tender in respect of Wiltshire and granted Mrs Hossack a contract for the area. It then realised its mistake and terminated the contract. That decision forms no part of the judicial review proceedings. Mrs Hossack had a contractual right of appeal, which she exercised, in relation to the termination of the contract.

The judge observed at [7] that at the root of Mrs Hossack’s challenge was a challenge to the whole scheme: her economic model did not fit in with that upon which the scheme was based. But, as her counsel accepted, it was too late for her to bring such a challenge, and permission to do so was refused.

There was, however, one aspect of the claim towards which the judge displayed a degree of sympathy. He said this:

“8.

There remains, however, buried within the wider claim a claim which might by one route succeed. One of the forms submitted was for Northamptonshire, the place in which Mrs Hossack has her office. Had it been headed ‘Northamptonshire’ instead of ‘Wiltshire’, I have no reason to doubt that the Legal Services Commission would have allocated New Matter Starts to her in Northamptonshire. It would have been but a small part of her practice but it would nonetheless have had some value for her and for those clients that she was able to advise.

9.

If a challenge to the decision not to allocate her New Matter Starts for Northamptonshire could only have been brought by judicial review proceedings, then the question of whether or not I should have permitted it to be brought would be finely balanced. It would not obviously be hopeless.”

The judge went on to accept, however, a submission by Miss Scolding that there existed an appropriate alternative remedy in the form of an application to the court (in fact, to the Chancery Division, to which such applications are allocated) under Part 9 of the Public Contracts Regulations 2006 (“the 2006 Regulations”), by which the tendering process was governed. He indicated a willingness to transfer the claim to the Chancery Division for that purpose. Mrs Hossack declined to pursue that course, maintaining that she should be allowed to bring her challenge by way of judicial review. The existence of an alternative remedy was, however, the basis on which Mitting J refused permission to apply for judicial review in relation to the Northamptonshire area.

Mrs Hossack accepted that it was not open to her to challenge the scheme itself. This echoes the concession made by her counsel before Mitting J. The concession is in my view inevitable. As the judge held, delay alone is a sufficient basis for refusing permission for such a challenge.

In her skeleton argument Mrs Hossack states that her challenge is “to circumstances surrounding under-supply of [New Matter Starts] post the verification procedure” (para 35). What is said in effect is that the outcome of the tendering process was the award of an insufficient number of contracts, or the allocation of insufficient New Matter Starts, to meet the requirements of disabled people for legal advice: for example, no contract was awarded in respect of community care in the area of Northamptonshire. There is very limited factual evidence before the court relevant to that issue. The position of the LSC is that it carried out a further tendering exercise in areas where there was considered to be an unmet need following the original tendering process; but that, for example, it was not considered necessary to invite fresh tenders for community care in Northamptonshire because enough specialist provision for people in that area was available from those awarded contracts in adjoining areas within the East Midlands region. Whatever the precise factual position, however, this line of challenge cannot avail Mrs Hossack. If the existence of unmet demand is put forward as a defect in the terms of the scheme, I have explained already that it is not open to her to challenge the scheme. If her contention is that the LSC ought to have carried out a further tendering exercise, for example in relation to Northamptonshire, because of the existence of unmet demand, the failure to act in that way is not the subject of challenge in the judicial review claim form and no proper basis has been established for advancing such a claim. The subject of challenge is clearly identified as the decision to reject her tenders under the original tendering process; the actual grounds of challenge are directed at that decision; and the existence of unmet demand following the original process cannot conceivably operate to render that decision unlawful.

Mrs Hossack’s skeleton argument raises points under s.4(4) of the Access to Justice Act 1999 which amount, on analysis, to criticisms of the scheme or of the failure to carry out a further tendering exercise and which, for the reasons already given, are not open to her in these proceedings. I would add that I do not consider there to be any substance to the points in any event.

Another point raised in the skeleton argument is a contention, based on s.49A(1) of the Disability Discrimination Act 1995 and the decision in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) 3158, that the LSC acted unlawfully in failing to consider the effect on particularly vulnerable people of having to change solicitor as a result of the outcome of the tendering process. This is an entirely new point, not touched on in the grounds of claim or in argument before Mitting J, though that has not prevented Miss Scolding from putting in a detailed response to it in her own skeleton argument – a response which leads me to the view that there is no substance to the point. Again, however, a sufficient objection to the point is that it amounts to a criticism of the scheme or of the failure to carry out a further tendering exercise and is therefore not open to Mrs Hossack in these proceedings.

Having disposed of those various matters, I can now turn to what I regard as the main issues in the case, which were the proper focus of oral argument at the hearing before us.

First, Mrs Hossack contends that the LSC had a discretion, which it should have exercised in her favour, to accept all her tenders despite the errors and deficiencies in them. The reference to “Wiltshire” was an obvious error. It was open to the LSC to waive the requirement of at least a part-time presence in the area. The office address, although not included in the ITT form, was given in another document submitted with the tender. The LSC has acted to clarify tenders or to make good gaps in them in numerous other cases. It acted disproportionately and unfairly in rejecting 124 of Mrs Hossack’s 125 tenders out of hand.

Secondly, the same broad line of argument is said to apply a fortiori to the tender for Northamptonshire, where, importantly, Mrs Hossack did satisfy the presence requirement. Further, if there is otherwise a sufficient basis for the grant of permission to apply for judicial review in relation to Northamptonshire, then it is submitted that, contrary to the view taken by Mitting J, an application to the court under the 2006 Regulations would not afford (or have afforded) an appropriate alternative remedy justifying the refusal of permission.

Before I look further at those grounds, I will deal briefly with the relevant legal framework and with certain factual matters concerning the LSC’s approach to other tenders.

It is not in dispute that the tendering process was governed by the 2006 Regulations, which implement an EU directive. Regulation 4(3) requires a contracting authority (a) to treat economic operators equally and in a non-discriminatory way, and (b) to act in a transparent way. The LSC points to this obligation as heavily circumscribing its power to allow the clarification of tender documents, the correction of errors or the making good of gaps. Miss Scolding’s skeleton argument refers to a wealth of authority in this area, both at national and at EU level. In the course of oral submissions she took us for illustrative purposes to the decision of the Court of First Instance in Tideland Signals v European Commission [2002] 3 CMLR 33 and to the decision of the Court of Appeal in Azam & Co v Legal Services Commission [2010] EWCA Civ 1194.

Part 9 of the 2006 Regulations concerns applications to the court. By regulation 47A the obligation on a contracting authority to comply with the relevant provisions of the 2006 Regulations is a duty owed to an economic operator. By regulation 47C a breach of that duty is actionable by any economic operator which, in consequence, suffers or is at risk of suffering loss or damage. Proceedings must be started in the High Court and are subject to regulations 47D to 47P.

As I have indicated, a question arises as to whether an application under the 2006 Regulations would afford Mrs Hossack an adequate remedy as compared with the remedies available in judicial review proceedings. Of particular relevance to that question are regulations 47I and 47J, which deal respectively with “remedies where the contract has not been entered into” and “remedies where the contract has been entered into”. Regulation 47I provides:

“(1)

Paragraph (2) applies where –

(a)

the Court is satisfied that a decision or action taken by a contracting authority was in breach of the duty owed in accordance with regulation 47A or 47B; and

(b)

the contract has not yet been entered into.

(2)

In those circumstances, the Court may do one or more of the following –

(a)

order the setting aside of the decision or action concerned;

(b)

order the contracting authority to amend any document;

(c)

award damages to an economic operator which has suffered loss and damage as a consequence of the breach.”

By regulation 47J, where the contract has been entered into, the remedies are limited to (a) a declaration of ineffectiveness (covered by regulation 47K and irrelevant to this case), (b) penalties (covered by regulation 47N and also irrelevant to this case), and (c) damages.

The court has received from Mrs Hossack and from the LSC a large body of material relating to the LSC’s approach to other cases where tenders have required clarification or correction. Although Mrs Hossack has complained about the lateness and adequacy of disclosure by the LSC, I think it more productive to concentrate on the substance of the material now before the court.

There have been a number of decided cases concerning the LSC’s rejection of tenders in circumstances where issues of clarification have arisen: JR Jones v LSC [2010] EWHC 3671 (Ch), R (Hoole & Co) v LSC [2011] EWHC 886 (Admin), R (All About Rights Law Practice) v LSC [2011] EWHC 964 (Admin), and R (Harrow Solicitors and Advocates) v LSC [2011] EWHC 1087 (Admin). There is a further case, R (Hersi & Co) v LSC, where a decision on permission to apply for judicial review is awaited. In yet another case, R (Southall Rights) v LSC, the Court of Appeal has granted permission to apply for judicial review and has directed that the substantive claim be retained in the Court of Appeal for hearing.

Mrs Hossack, having obtained some of the evidence from those cases for the purposes of these proceedings, referred us to various documents showing the nature of the clarification process applicable to the assessment of tenders and the extent to which clarifications have been sought in practice. For example, LSC guidance in relation to the assessment of tenders allowed for the possibility of clarification in respect of a number of matters, including “The office postcode is not recognised as a postcode” and even “Invalid Document”, the latter calling for a referral to the moderator. As to the extent of clarifications in practice, a letter dated 6 April 2011 from the LSC to Hersi & Co stated:

“Across the tenders for Family and Social Welfare Law (i.e. Family, Debt, Housing, Welfare Benefits, Community Care and Employment) we sent 759 requests for clarification with respect to the Pre Qualification Questionnaire and/or Essential Criteria.”

The true extent to which clarifications have been sought and allowed appears to have become appreciated by the LSC itself only over time, as a result of the litigation to which it has been subject. This has led to a review which is still in progress. The position is explained as follows in a supplementary note provided to us by Miss Scolding:

“As a result of the information sought by Mr Hersi, and as a result of the information which has come to light, the Respondent is currently undertaking a full investigation into all aspects of the clarification exercises undertaken during all tenders. As can be understood, this involves examining over 10,000 tenders and considering whether or not there has been inconsistency in approach. The Respondent has not yet finished this process, and would not wish the Court to be provided with information which is incomplete, or which would need to be further amended in the light of the difficulties which have arisen. The Respondent expects to complete this process by the end of July 2011, and to provide a full and comprehensive witness statement to the Court in all outstanding cases indicating what was or was not clarified in line with the duty of candour.”

As I have already indicated, Mrs Hossack’s broad contention is that the LSC had a discretion, which it should have exercised in her favour, to accept all her tenders despite the errors and deficiencies in them. She points to the LSC’s guidance concerning clarifications and to the large number of occasions on which requests for clarification are now known to have been made, and she contrasts this with the rejection of her tenders out of hand because of the heading “Wiltshire”.

So far as concerns the heading “Wiltshire”, her submission plainly has force to it. It is well arguable that the heading was an obvious mistake and that it must have been appreciated, or could easily have been ascertained by a request for clarification, that despite the heading the form related in each case to the area in respect of which the tender was submitted. The arguability of her case in relation to other deficiencies in the form is a matter considered below in the context of the tender for Northamptonshire.

The fundamental difficulty facing Mrs Hossack in relation to the generality of her tenders, however, is the admitted fact that she was unable to meet the essential requirement as to presence in the area, save in the case of Northamptonshire. Her only office was in Northamptonshire and she had no intention of opening an office in any other area: that would be contrary to her basic modus operandi. Her inability to meet the presence requirement made it inevitable, in my view, that her tenders in respect of every area save Northamptonshire would be rejected (or that any contract mistakenly awarded would be terminated, as happened in the case of Wiltshire, once the true position was appreciated).

The essential nature of the presence requirement is made clear in the IFA. Para 7.23, under the heading “Key contract terms (Essential Criteria)”, states:

“The ITTs set out a number of key contract terms (known in the ITTs as the ‘Essential Criteria’) which an Applicant Organisation must demonstrate that it is able to meet in relation to the services that it is tendering for. Detailed wording on each of the Essential Criteria is set out in each ITT and at Annexes A-E.”

Para 7.26 identifies contains a table setting out common requirements. In relation to community care services, the first entry is “Must have at least a Part-time Presence in the Procurement Area”. Later, at paras 13.5-13.6, the IFA states:

“13.5

The Essential Criteria reflect the minimum service requirements that each Provider delivering the Services tendered for must meet at each Office.

13.6

All Essential Criteria will be assessed on the basis of pass or fail and any Applicant Organisation unable to confirm that they meet all our requirements (for each Office and Category of Law) will have their tenders assessed unsuccessful.”

Mrs Hossack submitted that the LSC had a discretion to waive the essential criteria where exceptional circumstances applied. She referred to a passage in the IFA relating to the assessment of answers to the PQQ:

“11.9

Some answers to PQQ questions will be assessed on a pass/fail basis and do no offer an opportunity for Applicant Organisations to give further exceptional circumstances. In relation to these types the requirement to have the required experience is absolute and is a mandatory ground for failing the PQQ.

11.10

Other questions on the PQQ provide an opportunity to set out exceptional circumstances where an Applicant Organisation considers that it cannot meet the requirements but that exceptional circumstances apply which mean that the Applicant Organisation should be considered by us as still meeting the PQQ requirement.”

But that passage related specifically to certain questions in the PQQ, which concerned various minimum standards and regulatory matters. Neither the documentation nor the online screens on which a tender had to be submitted contained any equivalent to para 11.10 in relation to the assessment of the essential criteria. There is nothing in the least bit surprising about that, since presence in the area was a feature at the heart of the scheme as formulated.

In those circumstances I see no scope for waiver by the LSC of the presence requirement. To have waived a requirement the essential nature of which had been spelled out in the tendering information would have been to act clearly contrary to the requirements of equal treatment, non-discrimination and transparency in regulation 4(3) of the 2006 Regulations (see [21] above). There is nothing in the evidence concerning the LSC’s approach to clarification of tenders to suggest that it did in practice waive an essential requirement, and there is no reason to believe that any relevant inconsistency of approach, upon which Mrs Hossack might then be able to rely, will come to light in the review still being conducted by the LSC (see [27] above).

Accordingly, I see no prospect of Mrs Hossack obtaining relief from the court in relation to the LSC’s rejection of the generality of her tenders, and I consider that permission to apply for judicial review was rightly refused by Mitting J in relation to them.

The position in relation to Northamptonshire is different, because Mrs Hossack did in fact meet the presence requirement in that area. This still leaves her with the problem that her tender suffered from substantial errors and deficiencies. At the least, leaving aside the reference to “Wiltshire”, there was a failure in the ITT form to give any address at all for her office and there were erroneous references to a part-time presence rather than a full-time presence in the area. It is true that the address of the “Applicant Organisation” was given on another document, form QM1, submitted as part of the tender, but I am doubtful whether it would have been open to the LSC to carry that information across so as to complete the office details on the form that required them. I am even more doubtful whether it would have been open to the LSC to allow the tender to be corrected so as to refer to full-time presence in the area, or to treat the tender as if it did refer to full-time presence in the area, since that was capable of affecting the marks to be awarded by reference to the selection criteria and could therefore, in principle, affect the position as between competing applicants (albeit there does not appear to have been any competition in practice in respect of community care services in Northamptonshire). There is no obvious reason, however, why the LSC should not have assessed the tender on the basis of the stated part-time presence in the area. Whether a factual under-statement of the extent of presence in the area would have been a proper basis for rejection of the tender is of course another issue for consideration: Miss Scolding relied on the fact that an applicant was required to warrant that the information provided was correct. Miss Scolding also made a number of other criticisms of the tender, but I think it unnecessary to set them out here.

Mitting J took the view that, but for the question of alternative remedy, the decision whether to grant permission to apply for judicial review of the rejection of the tender in respect of Northamptonshire would have been finely balanced. I agree. It seems to me that Mrs Hossack faces an uphill struggle in seeking to persuade the court that the LSC could lawfully have accepted the tender, without breach of the requirements of regulation 4(3) of the 2006 Regulations. But I have come to the conclusion that, subject to the question of alternative remedy, the balance is tilted just sufficiently in favour of arguability to warrant the grant of permission to apply for judicial review. A further merit of a substantive hearing of the claim is that the court would then be able to take into account the outcome of the LSC’s ongoing review of its approach towards clarification of other tenders. (I should make clear, for the avoidance of doubt and since the point was raised in the parties’ skeleton arguments, that I am satisfied that the case has a sufficient public law character to bring it in principle within the scope of judicial review.)

I therefore turn to consider whether judicial review is rendered inappropriate by the existence of an alternative statutory remedy in the form of an application to the court under the 2006 Regulations. Mrs Hossack accepted that all her substantive arguments could be ventilated (or could have been ventilated, if she had applied within time) in such proceedings. Her fundamental objection to that course, at least as expressed in submissions to us, is the existence of uncertainty as to the remedy that the court could grant under the 2006 Regulations. She stressed that her overriding objective is to get a contract, not to recover damages. She wants to be able to carry on with the work to which she is so deeply committed, and a contract for Northamptonshire would not only entitle her to take on publicly funded advisory work up to the allocated number of New Matter Starts but would also open the door to the grant of public funding certificates to undertake representation in courts and tribunals. If she succeeded in proceedings for judicial review, the LSC’s rejection of her tender could be quashed and the LSC could be ordered to reconsider, with the possibility of the award of a contract at the end of the process. In her submission, it is not clear that the same result could be achieved under the 2006 Regulations.

As explained at [23] above, regulations 47I and 47J apply respectively “where the contract has not yet been entered into” and “where the contract has been entered into”. That language seems to be directed primarily at a situation where there are competing tenders for a single contract, where it should be relatively easy to determine whether the contract has yet been entered into at the time when the matter comes before the court. Its application is less clear in a case where, as here, multiple contracts are available, including multiple contracts for a single procurement area, and numerous contracts have in practice been awarded on the completion of the tendering process (though we were told that the LSC has held back a small proportion of New Matter Starts nationally to satisfy applicants who qualify as a result of successful appeals).

The position in relation to Northamptonshire illustrates the problem. On the one hand, having rejected Mrs Hossack’s tender, the LSC did not award any contract for community care services in respect of Northamptonshire itself. On the other hand, it did award contracts in respect of adjoining areas which, on the case communicated to us, have resulted in enough specialist provision being available for people in Northamptonshire, so that it did not think it necessary to carry out any further tendering exercise in respect of Northamptonshire. In those circumstances I am strongly inclined to the view that the contract for which Mrs Hossack tendered and for which her tender was rejected has “not yet been entered into” within the terms of regulation 47I(1), with the consequence that the remedies listed in regulation 47I(2), including the power to order the setting aside of the decision to reject the tender, would have been available in proceedings brought under the 2006 Regulations. The contrary is, however, arguable and it is striking that on this issue Miss Scolding made no clear-cut concession on behalf of the LSC. Thus, if Mrs Hossack had applied under the 2006 Regulations, she would have been at risk of being confined to a remedy in damages even if she had succeeded on the substance of her arguments.

A further concern is that the remedies in Regulation 47I do not on the face of it include a power in the court to order the LSC to reconsider the relevant decision. That may be of limited practical significance, since I would expect the LSC to have an obligation under the general law to reconsider its decision to reject a tender if that decision had been set aside by the court. Again, however, the point was not the subject of any clear-cut concession on behalf of the LSC.

It does not appear that Mitting J was addressed on these uncertainties affecting an application under the 2006 Regulations or on their importance for Mrs Hossack. In the light of the considerations to which I have referred, however, and in the particular circumstances of this case, I am satisfied that an application under the 2006 Regulations should not be regarded as an appropriate alternative remedy, sufficient to justify the exercise of the court’s discretion to refuse permission to apply for judicial review in an otherwise arguable case.

It follows that Mrs Hossack should in my view have permission to apply for judicial review of the rejection of her tender in respect of Northamptonshire, but only in relation to that one matter.

The application before us is for permission to appeal against Mitting J’s refusal of permission. But instead of granting permission to appeal, I would exercise this court’s power under CPR 52.15(3) to grant permission to apply for judicial review. The substantive claim for judicial review should then proceed in the normal way in the Administrative Court in accordance with CPR 52.15(4). Although her case is just arguable, I repeat what I have said about Mrs Hossack facing an uphill struggle. She will appreciate the potential costs implications if she pursues the claim but loses. The decision whether to pursue it is, however, a matter for her.

I agree.

I also agree.