Nash, R (on the application of) v Barnet London Borough Council

The claimant, Mrs Nash, is very aggrieved at the decision of Barnet London Borough Council (“the Council”) to outsource to the private sector a significant number of the services provided by the Council. She was not and is not alone in her views. She issued judicial review proceedings on 10^th January 2013. Her application for permission was considered at an oral hearing extending over three days by Underhill LJ (as he has since become). By a reserved judgment dated 29 April 2013 ([2013] EWHC 1067 (Admin)) he refused permission to apply for judicial review. He did so essentially on the ground that the challenge had been brought well out of time.

Mrs Nash now seeks to appeal against that decision. There is and has been, for reasons which will become apparent, some degree of urgency about the matter. The matter was listed before this Court as a “rolled up” hearing (that is, as an application for permission to appeal with appeal to follow if permission is granted).

Mrs Nash was represented before us by Mr Nigel Giffin QC with Mr David Gollancz. The Council was represented before us by Miss Dinah Rose QC with Mr Iain Steele. The arguments presented to us, both written and oral, were of very high standard.

A Respondent’s Notice has been put in by the Council seeking to uphold the judge’s decision on further or alternative grounds, if (contrary to the Council’s primary contention) the challenge to the judge’s decision on delay is reversed.

It should be made clear at the outset that the function of this court is not (any more than was the function of Underhill LJ) to adjudicate on the merits, or lack of them, of the decision to outsource. The legal challenge here necessarily has had to be, and has been, as to the process by which the decision to outsource was made.

For a number of years the Council had been mulling over its future organisation and direction – what became known as its “future shape”. A review to this end was initiated in 2008. An initial report by the Chief Executive was submitted to and considered by the Cabinet of the Council on 3 December 2008. The recommendation in essence was that the role of the Council for the future was that it should “conduct those activities that only the Council can”. In addition, emphasis was placed, among other things, on the need for the Council to ensure that local public services provided value for money.

There was further debate by the Cabinet on the future shape of the Council at a meeting on 6 July 2009, and a further interim report was submitted. On 21 October 2009 this was again considered by the Cabinet. It was clear by now that the proposals being advanced would be radical. There was extensive discussion of issues potentially arising, including (among others) equality and diversity issues and use of resources. The appended Future Shape Final Report included reference to the need for public engagement. Among other things it was stated:

“The scope of the potential changes covered by the Future Shape Programme will require an extensive set of consultation and engagement activities. Clearly the nature and extent of consultation required will change depending on the proposals being considered, the group which will be affected by any proposals and the statutory requirements that may need to be taken into account.”

One of the proposals considered at that meeting was that there be established a Customer Services Organisation. The three options identified for achieving its development were (1) the Council remaining the “main delivery vehicle”; (2) a co-ownership model and (3) Joint Venture/Outsourcing. It was agreed that the decision on which option to pursue in this regard would be undertaken as part of the implementation of the Future Shape Programme.

Matters continued to be debated and considered in the following months. In particular, at a Cabinet meeting on 29 November 2010 a report entitled “One Barnet Programme Framework” was considered and approved. A funding strategy was also approved. In addition, there was considered and approved a report entitled “Development and Regulatory Services Project: Initiation of Procurement”. It was by that report recommended that with regard to a significant number of specified functions a “partnership with the private sector be sought”. After debate the Cabinet resolved that the Commercial Director be authorised:

“…to commence the procurement process to identify a strategic partner for the delivery of the Development and Regulatory Services Project.”

This procurement process came within the ambit of the Public Contracts Regulations 2006 (“the 2006 Regulations”) which I will summarise in the relevant respects below. A notice in the Official Journal of the European Union with regard to a proposed Development and Regulatory Services (“DRS”) contract was duly published on 19 March 2011.

At this time the Council was also still considering proposals relating to the “Customer Services Organisation and New Support Organisation” (the wording was subsequently changed and may be styled “NSCSO”). On 2 March 2011 the Cabinet Resources Committee considered a detailed report on this by way of what was described as an “options appraisal”. The aim, as presaged in 2009, was (in the language used) to “bring together customer-facing staff from across the Council” and also to address the “back office” functions of the Council. The three options previously noted were fully evaluated. The recommendation was that the Director of Commercial Services be authorised to produce a business case for (among other things) “the procurement of a private sector partner/s” to provide a number of identified services and to initiate that procurement. The services in question were Customer Services, Estates, Finance, Human Resources, Information Services, Procurement, Revenue and Benefits. The minutes of that meeting also record a number of public questions and the Council’s answers to them. A number of such questions were from, among others, Mr John Dix and were knowledgeable and penetrating. They raised queries as to the “outsourcing scheme” (as it was described) and among other things asked if the Council were “not prepared to consider an in-house option under any circumstances?”

The recommendation of this report was accepted. In consequence, as the judge found, such proposed procurement of a private sector partner again required publication in the Official Journal of the European Union: which was effected on 21 June 2011.

On 29 June 2011, the Cabinet Resources Committee considered the detailed business case for the NSCSO project. The report was summarised as outlining “the business case for the outsourcing of support and customer services and seeks authority from the Committee to approve the business case for the procurement of a strategic provider”. The business case was approved, with a view to the Council beginning the “competitive dialogue” process in accordance with the 2006 Regulations. It was also resolved that authority to award a contract remained with the Cabinet Resources Committee; and that due regard be given to statutory equality duties and the outcome of the equality impact assessments, referred to in the report.

In the words of the judge, the “applicable public procurement procedures ran their course”. The competitive dialogue procedure was adopted. Significant sums were invested in progressing the procurement projects. There was extensive consideration at various stages by the Council. A shortlist of tenderers was recommended, at stage 2 of the competitive dialogue, on 14 December 2011 (DRS project) and 28 February 2012 (NSCSO project). An evaluation in accordance with the criteria was ultimately in favour of Capita plc as the preferred bidder with regard to the NSCSO project.

On 6 December 2012 a report was presented to the Cabinet with regard to the NSCSO project. It annexed a full Business Case and Equalities Impact Assessment. It recommended acceptance of Capita’s final tender. The Cabinet was specifically reminded of its entitlement to discontinue the procurement process (albeit that was not recommended). A number of public questions, from Mr Dix and others, were raised and answered. The Cabinet, after consideration, resolved to accept Capita’s final tender as the preferred bid and approved the appointment of a recommended reserve bidder. It delegated “contract completion and signature…finalisation and execution” to the appropriate officer.

In the meantime, the DRS project had not completed the procurement process. The competitive dialogue stage had identified as the shortlisted bidders Capita Symonds Ltd and EC Harris LLP. But no decision in that regard had been made at the time these proceedings were commenced on 10 January 2013, albeit such a decision had been due to be made by the end of that month. Understandably the matter has since been essentially on hold in the light of this litigation.

The judge’s findings of fact were that the Cabinet’s decision of 29 November 2010 “constitutes the formal beginning of the process leading to the DRS decision” and that the Cabinet Resources Committee’s decision of 2 March 2011 “constitutes the formal beginning of the process leading to the NSCSO decision”.

It may be added that all relevant meetings were public; and the minutes (and appendices) would have been made available for public inspection in the usual way.

The claim form was, as I have said, issued on 10 January 2013. The decisions sought to be judicially reviewed are described as follows:

“1.

Barnet LBC’s decision to award an [sic] contract (‘the New Support and Customer Service Organisation Contract’) and

2.

Barnet LBC’s intended decision to award a contract (‘the Development and Regulatory Services Contract).”

The dates of the decisions are given as 13 December 2012 and “Expected 31 January 2013” (13 December 2012 was the date of publication of the decision of 6 December 2012, the decision having in the interim been called in and confirmed by the Council’s Overview and Scrutiny Committee). The relief sought was extensive declaratory relief and also an order quashing the decision of 6 December 2012 to award the NSCSO contract.

A number of grounds for the claim were formulated. In summary these were as follows:

By detailed Grounds of Resistance dated 18 February 2013 the Council denied all of these points. But in addition it raised the contention that the proceedings were very significantly out of time.

The matter was directed to be heard, by order of Ms Elisabeth Laing QC sitting as a Deputy High Court judge dated 21 January 2013, by way of “rolled up” hearing. Given the challenge on grounds of delay, and given also the stated urgency of the matter, that was clearly an appropriate order.

Very voluminous evidence was placed before the judge. Among other materials he had witness statements of Mrs Nash. She has lived in Barnet since 1993. She describes herself as disabled and a member of a minority ethnic community. She is in a poor state of health: she eloquently records her concerns and anxieties if the services from which she currently benefits are outsourced. Mrs Nash has, as she explains, been very active in local community matters. She is in no doubt that the NSCSO and DRS projects “represent a radical experiment in local government” and would, in her view, irreversibly render the Council “almost unrecognisable as a traditional council”.

She complains strongly about what she says was the lack of proper, indeed any, consultation across the whole Borough on the proposed outsourcing. She gives examples based on her own experience as being active in local issues and as being a member of a number of local communities and organisations. She says the lack of consultation has had, and will have, considerable impact. She is also highly sceptical about the consequences of outsourcing and the efficiency savings promised.

A number of other statements have been put in in support of the claim. These include a statement from Mr Dix (who had asked the questions at the public Cabinet meetings). He says he is involved in “local activism”. His background is that of a management consultant, with particular expertise in outsourcing matters. He says that he considers that he was not properly consulted about these proposals. He states the view that “there has been an extraordinary failure to appreciate the impact of the transaction”. He is also very critical of the Council’s track record generally on procurement. He makes various suggestions as to how such matters should properly be conducted. Other witness statements also raise strong concerns about the proposals and about the asserted lack of consultation.

Detailed statements were put in by Mr Cooper, the Commercial Director of the Council, rebutting at length the various allegations made and setting out the processes adopted by the Council.

It is not necessary to review the evidence further. The judge described it as helpful in providing the background but ultimately irrelevant to what he had to decide.

It should be added that before this court a further statement has been put in on behalf of the Council (without objection). The statement is of Mr Travers, the Interim Chief Executive Officer of the Council, and is dated 1 July 2013. In it he describes in some detail the prejudicial impact of the delay in implementing the two proposed contracts. He says current quality of service delivery has declined, staff are leaving and morale is low because of the uncertainty. In addition matters such as IT investment have had to be put on hold. He identifies other such problems generated by these proceedings. He says that an interim contract has been arranged with Capita: that is due to expire at the end of September and Capita cannot be expected to wait around indefinitely. The problems with the DRS contract are less acute; nevertheless, he says, anticipated savings and investment are being lost in the interim. He also says that by a decision made on 24 June 2013 the preferred bidder for the DRS contract has now been identified as Capita Symonds Ltd. He points to grave difficulties if the past decisions are quashed.

This statement really reflects and confirms some of the potential difficulties highlighted by the judge, on the evidence then before him, as likely to arise by reason of the claim issued by Mrs Nash.

The judge dealt with the issue of delay first, since (as he observed) it went to whether he should grant permission. I will come on to his reasoning. But he also dealt with the other issues raised.

In the result, he refused permission by reason of delay. He found that the proceedings were (save as to the public sector equality duty issue) well out of time. He also ruled that, in his discretion, it would not be right to grant an extension of time. But he also helpfully set out his views at some length on the other issues.

In doing so, he found that the Council had failed to fulfil its duty under s.3(2) of the 1999 Act (set out in paragraph 35 below). He noted that the Council had more or less accepted in argument that there had been no consultation about outsourcing “as such”. He rejected the Council’s argument that, on the correct meaning and application of s.3 of the 1999 Act, it had nevertheless complied with its statutory duty by consulting about its 2010/11 and 2011/12 budgets. Putting it shortly, he considered that that was far too indirect a way of approaching the matter of outsourcing. He said among other things:

“I do not see how it is possible to consult for the purpose of deciding whether to undertake a major outsourcing programme without inviting views on the proposal to undertake that programme…. It is hard to see why authorities should be entitled to fulfil their duty to consult in a way which avoided seeking views on the central issues raised by the substantive duty.”

He said that consultation generally about “priorities” and expenditure did not suffice. His conclusion (paragraph 76) was that he would have held that the Council had not complied with its obligations under s.3(2) of the 1999 Act had the application for judicial review been made in time. Having so indicated, he went on to say, however, that he would have “wished to give serious consideration” to the argument that, even if the claim had been in time, relief should be withheld under s.31(6) of the Senior Courts Act 1981.

The judge went on to find that there had been no breach of the public sector equality duty by reference to s.149 of the Equality Act 2010. He also found that no breach of fiduciary duty had been established. He noted that other claims raised in the grounds had not been pursued.

It is to be recorded that, on this application to this court, the claimant does not challenge the judge’s refusal, in his discretion, to extend time (if the claim was otherwise out of time). The claimant also does not challenge the judge’s conclusions rejecting the claims based on the equality duty and the fiduciary duty. The challenge now is solely as to the rejection of the claim on the ground of delay. For its part, the Council by Respondent’s Notice seeks (if necessary) to renew its argument that, contrary to the judge’s view, there had been no failure to comply with s.3(2) of the 1999 Act. The Council also seeks (if necessary) to say that relief should in any event have been refused under s.31(6) of the Senior Courts Act 1981.

The 1999 Act by its title is an Act “to make provision imposing on local and certain other authorities requirements relating to economy, efficiency and effectiveness; and to make provision for the regulation of council tax and precepts”. Section 3 is in the following terms:

“3.–The general duty.E+W

(1)

A best value authority must make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness.

(2)

For the purpose of deciding how to fulfil the duty arising under subsection (1) an authority must consult—

(a)

representatives of persons liable to pay any tax, precept or levy to or in respect of the authority,

(b)

representatives of persons liable to pay non-domestic rates in respect of any area within which the authority carries out functions,

(c)

representatives of persons who use or are likely to use services provided by the authority, and

(d)

representatives of persons appearing to the authority to have an interest in any area within which the authority carries out functions.

(3)

For the purposes of subsection (2) “representatives” in relation to a group of persons means persons who appear to the authority to be representative of that group.

(4)

In deciding on—

(a)

the persons to be consulted, and

(b)

the form, content and timing of consultations,

an authority must have regard to any guidance issued by the Secretary of State.”

Guidance has been issued, in September 2011, by the Secretary of State for the purpose of s.3(4). It is very broadly framed. With regard to consultation, it among other things says that authorities should consult with regard to services “at all stages of the commissioning cycle” and that “an authority should actively engage the organisation and service users as early as possible before making a decision”. I record that, for the purposes of the issues before us, neither party in fact was disposed to place reliance on the Guidance.

Turning to the 2006 Regulations, Regulation 5 sets out their application. Regulation 12 provides for selection of contract award procedures. Regulation 18 is, in the relevant respects, in the following terms:

“18.—(1) In this regulation—

‘particularly complex contract’ means a contract where a contracting authority is not objectively able to—

(a)

define the technical means in accordance with regulation 9(7), (8) and (9) capable of satisfying its needs or objectives; or

(b)

specify either the legal or financial make-up of a project or both; and

‘participant’ means an economic operator selected by a contracting authority using the procedure referred to in paragraph (2) to participate in the competitive dialogue procedure.

(2)

Where a contracting authority wishes to award a particularly complex contract and considers that the use of the open or restricted procedure will not allow the award of that contract, the contracting authority may use the competitive dialogue procedure.

(3)

A contracting authority using the competitive dialogue procedure shall comply with the following paragraphs of this regulation.

(4)

The contracting authority shall publicise its intention to seek offers in relation to the public contract by sending to the Official Journal, as soon as possible after forming the intention, a notice in the form of a contract notice in Annex II to Commission Regulation (EC) No 1564/2005 inviting requests to participate and containing the information therein specified.

….

(20)

The contracting authority shall open with the participants selected in accordance with regulations 23, 24, 25 and 26, a dialogue the aim of which shall be to identify and define the means best suited to satisfying its needs.

…

(22)

The contracting authority may provide for the competitive dialogue procedure to take place in successive stages in order to reduce the number of solutions to be discussed during the dialogue stage by applying the award criteria in the contract notice or in the descriptive document.

(23)

Where the contracting authority provides for the competitive dialogue procedure to take place in successive stages in accordance with paragraph (22), it shall ensure that the number of economic operators to be invited to participate at the final stage is sufficient to ensure genuine competition to the extent that there is a sufficient number of economic operators to do so.

(24)

The contracting authority may continue the competitive dialogue procedure until it can identify one or more solutions, if necessary after comparing them, capable of meeting its needs.

…

(27)

The contracting authority shall assess the tenders received on the basis of the award criteria specified in the contract notice or descriptive document and shall award the contract to the participant which submits the most economically advantageous tender in accordance with regulation 30(1)(a).”

Regulation 30 then sets out the criteria for the award of a public contract.

It is to be noted from Regulation 18 that successive stages for a competitive dialogue process are expressly contemplated and sanctioned.

Finally for present purposes – although a necessary starting point on the issue of delay – there are the provisions of CPR Rule 54.5:

“(1)

The claim form must be filed –

(a)

promptly; and

(b)

in any event not later than 3 months after the grounds to make the claim first arose.

(2)

The time limits in this rule may not be extended by agreement between the parties.

(3)

This rule does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review.”

The reasoning and approach of the judge on the issue of delay are set out very fully and, if I may say so, with exemplary lucidity.

On the issue of delay, he first set out his preliminary views, as a matter of principle and of apparent fairness, in the following terms:

“33.

Viewing the question as one of principle, and without reference to authority, I would regard the claim based on failure to consult as out of time. In my view it is clear that if the Council was under the duty relied on by the Claimant it should have consulted prior to the decisions taken in 2010/2011 to proceed with outsourcing and to initiate the procurement procedures accordingly; and if it was in breach of that duty that breach crystallised when those decisions were taken without any consultation having occurred. It seems to me, on an ordinary reading of the words of CPR 54.5, that that was when “the grounds to make the claim first arose”. Mr Giffin says that there was a continuing breach of the duty, in the sense that at any time before it was finally contractually committed the Council could have decided, however belatedly, to institute consultation and could have reconsidered its decision in the light of that consultation. That may be so, but it does not help: time runs from when the grounds first arose.

34.

I accept that, in so far as the decision of 6 December 2012 and the impending decision in relation to the DRS contract might involve distinct questions on which there was an obligation to consult which had not been complied with, the Claimant would be in time to complain of that breach. But it seems clear that they do not involve any such questions: whatever the precise scope of the duty to consult, which I discuss at paras. 61-76 below, it can only be concerned with questions of policy and approach and not with such specific operational matters, important though they may be, as the identity of the outsourcing “partner” or the detailed terms of the contract to be entered into.

35.

That approach also seems plainly right as a matter of fairness and good administration. In the year or more following the 2010/2011 decisions the Council has invested, on the evidence of Mr. Cooper, over £4.5m in developing the NSCSO and DRS projects. It has planned and proceeded on the basis that the functions and services in question would be outsourced from 2013/14. That assumption, which was entirely legitimate on the basis of the decisions taken, was built into the MTFS adopted in 2011 and renewed in 2012. Big savings are anticipated from the outsourcing: Mr Cooper quantifies them for the first year at £12.5m from the NSCSO contract and (a minimum of) £1.5m from the DRS contract. Under both contracts the partners are also committed to making very substantial investments (principally, though not only, in IT provision) of which the Council will get the benefit. If the Claimant is permitted at this stage to challenge the outsourcing decisions, and does so successfully, the least that will happen is that the benefits which are anticipated from entering into the contracts will be deferred during the time taken to conduct a proper consultation, which will inevitably cause significant disruption to the Council’s finances; and if the result were, as I have to assume is a real possibility, that some or indeed all aspects of the outsourcing did not proceed the disruption to the Council in having to re-think its strategy from the start would be enormous, and the sums invested in developing the proposals would be wasted. I was given no evidence about the resources invested by the Interested Parties, but it is plain that these too will have been very substantial. It is in order to avoid precisely this kind of uncertainty and disruption that CPR 54.5 and its predecessor rule were made.”

He went on to record the argument on behalf of Mrs Nash that any such conclusion would be contrary to the authority of the House of Lords decision in R (Burkett) v Hammersmith & Fulham London Borough Council [2002] 1 WLR 1593, [2002] UKHL 23 (to which I will come in paragraphs 47 and following of this judgment). He fully reviewed that authority, as well as other authorities. He concluded that Burkett was distinguishable. The core of his reasoning is contained in paragraph 41 of his judgment in the following terms:

“41.

Mr Giffin developed those points clearly and cogently, but I do not accept them. I do not believe that Burkett is authority for the proposition that in every situation in which a public-law decision is made at the end of a process which involves one or more previous decisions – what I will refer to as “staged decision-making” – time will run from the date of the latest decision, notwithstanding that a challenge on identical grounds could have been made to an earlier decision in the series. In my judgment it is necessary in such a case to analyse carefully the nature of the latest decision and its relationship to the earlier decision(s). I believe the true position to be as follows. If the earlier decision is no more than a preliminary, or provisional, foreshadowing of the later decision, Burkett does indeed apply so that the later, “final”, decision falls to be treated as a new decision, the grounds for challenging which “first arise” only when it is made. But if the earlier and later decisions are distinct, each addressing what are substantially different stages in a process, then it is necessary to decide which decision is in truth being challenged; if it is the earlier, then the making of the second decision does not set time running afresh. I accept that the distinction may in particular cases be subtle, but it is in my view nonetheless real and important.”

He went on to find further support for his approach in other decided cases. Having reviewed such authorities he said at paragraph 49 of his judgment:

“49.

Applying that approach, in my view the 2010/2011 decisions plainly constituted distinct substantive decisions, namely decisions to outsource the functions and services identified, and for that purpose to commence the formal procurement procedure under the 2006 Regulations by the placing of notices in the OJEU. They were not preliminary, provisional or contingent in the sense discussed in Burkett. They were not simply proposals for consultation or declarations of principle: they involved action, and the expenditure of the Council’s resources in preparing for and engaging in the procurement process. They are thus clearly distinguishable from the conditional resolution in Burkett: they had immediate legal effect. No doubt it was possible that the process might prove abortive for some reason; but, as Eady J held in the Unison case, that did not make the decision any the less “final”. The decisions made in December 2012, or impending in January 2013, are, or would be, different decisions, namely decisions to award a particular contract to a particular contractor. On that basis, it is clear that the Claimant’s challenge is in truth to the earlier decisions, on grounds that existed from the moment that they were made.”

Having so concluded, he went on to consider and reject the consequential application for an extension of time. He gave ample reasons for so doing. It may be noted in this regard that the judge, at paragraph 53, concluded, among other things, on the evidence:

“There has been nothing covert about the Council’s proceedings. The 2010/2011 decisions were formally taken and recorded. They have been common knowledge to interested persons in the borough and on the evidence have been controversial since they were first proposed.”

The argument before us, as did the judgment below, proceeded on the footing that the question to be asked was whether the claim form was filed “not later than three months after the grounds to make the claim first arose…”: that is, by reference to Rule 54.5(1)(b). Miss Rose was entitled to emphasise the general importance of compliance with the time limits set for judicial review proceedings, given the various public interests generally involved in public law cases. That, she said, was reflected by the prohibition contained in Rule 54.5(2) on extensions of time being agreed between the parties.

The decisions by reference to s.3 of the 1999 Act

Mr Giffin rightly accepted that there had first to be identified the relevant decision or decisions and the date or dates of it or them: because, as he said, it is by reference to the relevant decision that the time for the performance of the statutory duty to consult, under s.3(2) of the 1999 Act, first arose.

His submission was that the judge simply got it wrong in selecting the relevant decisions as being those made on 29 November 2010 (for the DRS project) and 2 March 2011 or 29 June 2011 (for the NSCSO project). The core of his argument was that in truth nothing had been decided at those times at all: at most, he said, the resolutions passed on those dates initiated a “journey of discovery”, in his phrase. He said that it could not be ascertained what might eventuate until the conclusion of the competitive dialogue; that there was no obligation to contract at all (as, indeed, the Cabinet had been reminded immediately prior to the resolutions of 6 December 2012); and that the whole matter could also have been rejected in the light of the final Equalities Impact Assessment submitted and considered on 6 December 2012. It was accordingly, he submitted, the decision of 6 December 2012 (and prospective decision of 31 January 2013) which were the “real” decisions and it was by reference to those that the grounds to make the claim first arose.

I cannot agree with this, any more than the judge could.

The question to be asked for this purpose is, in my view, not in the abstract when the decision was finally or irrevocably made (although the logic of Mr Giffin’s argument might suggest that would in fact be the date of the actual signing of the relevant contract) but when a decision was taken in respect of which the statutory duty to consult first arose: because it is the alleged failure to consult which is the essence of these proceedings.

This has to be assessed by reference to the terms of s.3 of the 1999 Act. In my view that section is framed in notably broad terms. The duty is to “make arrangements” to secure continuous improvement in “the way” in which a relevant authority’s functions are exercised: s.3(1). The obligation to consult, under s.3(2) then arises for the purposes of deciding “how” to fulfil that duty.

That being so it seems to me an impossibly narrow application of the section to link it to the decision of 6 December 2012. The section is not designed to require consultation about the terms of particular contracts which an authority may be minded to make: indeed considerations of commercial confidentiality would in any event often make that an impossibility. Moreover it seems at first sight most surprising to align the duty to consult with the date of resolving to enter into a particular contract. Rather one might expect – given the width of s.3 – that the duty should be geared to consultation at a much earlier stage, well before the stage at which consideration is given as to whether the relevant officer is to be authorised to sign a particular contract. Those considerations justify the judge’s finding (at paragraph 34 of his judgment) that the duty to consult is concerned with “questions of policy and approach”, not specific operational matters. That indeed accords with the wide language, and underlying purpose, of s.3 of the 1999 Act.

That is reflected by the facts of the present case. The complaint of Mrs Nash is not in truth about – indeed, as I see it, cannot be about – the alleged failure to consult her and others in the borough about entering into a contract with Capita or Capita Symonds or about the terms of any such contract. Rather the complaint is about the alleged failure to consult her, and others in the Borough, about the whole proposal to outsource in principle. As Miss Rose pointed out, had such judicial review proceedings been commenced within three months of the decision on 29 November 2010 and/or 2 March 2011 (if not 29 June 2011) there could have been no possible argument that the proceedings were defective as being premature. As she further submitted, and I agree, there is a “clear lack of connection” between consultation on the policy of outsourcing – the essential ground of complaint – and the decisions sought to be challenged on the face of the claim form.

I think Mr Giffin was inclined to acknowledge this difficulty. He at all events accepted in argument that the Council could lawfully have consulted (and perhaps should have consulted as a matter of “good practice”, as he put it) at a much earlier date than 6 December 2012. He further accepted that the required consultation did not need to be with regard to a particular contract or a particular contractor. Those (necessary) concessions are revealing. They at all events connote that such consultation would have been lawful at an earlier stage under the provisions of the 1999 Act.

As I see it, statutory consultation is ordinarily designed to be needed, and is required, at the formative stage of the relevant process (see for example Coughlan v North and East Devon Health Authority [2001] QB 213). That is consistent here with the width of the language of s.3. The fact that the Council may withdraw from its procurement proposals at any subsequent stage is, in my view, nothing to the point under this head of the argument: on the contrary, one of the whole purposes of consultation is to enable an authority, properly informed through the process of consultation by representations of residents of the Borough and other “stakeholders”, to decide whether or not to pursue or withdraw from a particular policy or strategic decision.

All that is borne out by what has happened here. The decisions of 29 November 2010 and 2 March 2011 were just that: decisions. They were intended to, and would be known to, have both legal effect and significant consequences in terms of prospective time and expense incurred pursuing the competitive dialogue and otherwise. These are precisely the considerations addressed by the judge at paragraph 35, and elsewhere, of his judgment. By way of contrast, the eventual decision of 6 December 2012 to award an outsourcing contract to a particular bidder was not one, as Miss Rose submitted (a submission with which, as will be gathered from what I have said, I agree), which required the Council to consult at all.

To the extent that Mr Giffin argued for a continuing breach of a continuing duty of consultation up until the time the Council was contractually committed, that in itself gets him nowhere: as the judge pointed out, under the Rules time runs when the claim first arose.

The application of the decision in Burkett

I turn then to Mr Giffin’s alternative ground of appeal, by reference to the House of Lords decision in Burkett. In reality, as it seems to me, this is the main point on the application.

The essence of the argument under this head was that even if Mrs Nash could have raised her challenge as to want of consultation at an earlier stage (in 2010/2011) there was no obligation on her, under the Rules, to do so; and that Burkett permits such a claimant to raise the legal challenge at the time of the final decision to do the act. For this purpose, Mr Giffin reiterated the argument to the effect that “all the Council decided to do in 2010 and 2011 was to initiate a procurement process (and thereafter to move on from time to time to the next stage of the process)”. At no time, it was again emphasised, had the Council committed itself to awarding any contract, let alone any particular contract, until the decision of 6 December 2012. Until then, it was said, there was at most a provisional or contingent decision to outsource the relevant services. “But [the argument goes] the whole point of Burkett is that a decision of that nature does not start time running”.

Properly analysed, Burkett, in my view, simply will not bear so open-ended an application. Here too I agree with the reasoning of the judge, most notably as encapsulated in his reasoning at paragraph 41 of his judgment.

I regard it as essential to analyse what Burkett, on its facts, was about and then to analyse what the present case, on its facts, is about.

In Burkett, on 15 September 1999 the local planning authority resolved to grant outline permission for a development subject, among other things, to completion of a s.106 agreement. The claimants were concerned adjoining owners who had already protested about the developers’ environmental statement. In February 2000 the decision was made that the application be not called in. On 6 April 2000 the applicants applied for judicial review of the local authority’s resolution of 15 September 1999. Subsequently, on 12 May 2000, the s.106 agreement was completed and outline planning permission granted. The judges at first instance and on appeal held that the proceedings were out of time, on the footing that the grounds of challenge had first arisen on 15 September 2009. The House of Lords reversed the decision, holding that the grounds of challenge first arose when permission was actually granted: and leave to amend the claim form to substitute the later date could be granted.

The principal judgment was given by Lord Steyn. Although the case had its own planning context, he observed – as Mr Giffin stressed – that the rule of court as to time “applies across the board to judicial review applications” (paragraph 43). He further said that where community interests were involved that “weighs in favour of a clear and straightforward interpretation which will yield a readily ascertainable starting date” (paragraph 45).

Perhaps the key part of his judgment is contained in paragraph 39, which reads as follows:

“39.

As a matter of language it is possible to say in respect of a challenge to an alleged unlawful aspect of the grant of planning permission that "grounds for the application first arose" when the decision was made. The ground for challenging the resolution is that it is a decision to do an unlawful act in the future; the ground for challenging the actual grant is that an unlawful act has taken place. And the fact that the element of unlawfulness was already foreseeable at earlier stages in the planning process does not detract from this natural and obvious meaning. The context supports this interpretation. Until the actual grant of planning permission the resolution has no legal effect. It is unlawful for the developer to commence any works in reliance on the resolution. And a developer expends money on the project before planning permission is granted at his own risk. The resolution may come to nothing because of a change of circumstances. It may fall to the ground because of conditions which are not fulfilled. It may lapse because negotiations for the conclusion of a section 106 agreement break down. After the resolution is adopted the local authority may come under a duty to reconsider its decision if flaws are brought to its attention: R v West Oxfordshire District Council, Ex p C H Pearce Homes Ltd (1986) 26 RVR 156. Moreover, it is not in doubt that a local authority may in its discretion revoke an outline resolution. In the search for the best contextual interpretation these factors tend to suggest that the date of the resolution does not trigger the three-month time limit in respect of a challenge to the actual grant of planning permission.”

He went on to say in the course of paragraph 42 of his judgment:

“The court has jurisdiction to entertain an application by a citizen for judicial review in respect of a resolution before or after its adoption. But it is a jump in legal logic to say that he must apply for such relief in respect of the resolution on pain of losing his right to judicial review of the actual grant of planning permission which does affect his rights. Such a view would also be in tension with the established principle that judicial review is a remedy of last resort.”

He disapproved of the approach of Laws J in R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd [1998] Env LR 415 – and in substance endorsed by the Court of Appeal in Burkett itself – to the effect that a judicial review must move against the decision which is “the real basis of complaint” and should not wait upon something consequential and dependent on it. He thought such an approach could lead to uncertainty. He also noted (paragraph 50) that it was unreasonable to require an applicant to apply for judicial review when a resolution might never take effect.

This decision of course is binding on this court. But it is binding for what it decides; and to my mind it is plainly distinguishable from the present case. In that case, there was a resolution to grant outline permission subject to, among other things, completion of a s.106 agreement: a context quite different from the present. As to his general approach, Lord Steyn gave a striking example, in paragraph 43 of his judgment, of a provisional decision (taken from the field of licensing). He said this:

“43.

At this stage it is necessary to return to the point that the rule of court applies across the board to judicial review applications. If a decision-maker indicates that, subject to hearing further representations, he is provisionally minded to make a decision adverse to a citizen, is it to be said that time runs against the citizen from the moment of the provisional expression of view? That would plainly not be sensible and would involve waste of time and money. Let me give a more concrete example. A licensing authority expresses a provisional view that a licence should be cancelled but indicates a willingness to hear further argument. The citizen contends that the proposed decision would be unlawful. Surely, a court might as a matter of discretion take the view that it would be premature to apply for judicial review as soon as the provisional decision is announced. And it would certainly be contrary to principle to require the citizen to take such premature legal action. In my view the time limit under the rules of court would not run from the date of such preliminary decisions in respect of a challenge of the actual decision. If that is so, one is entitled to ask: what is the qualitative difference in town planning? There is, after all, nothing to indicate that, in regard to RSC Ord 53, r 4(1), town planning is an island on its own.”

That is, in my view, very revealing of his thinking and approach. He clearly regarded the resolution to grant outline planning permission in that case as being of such a kind.

That simply is not the situation here. Here, the Council was not provisionally resolving to enter any outsourcing contract at all, let alone a provisional contract relating to the DRS project or to the NSCSO project. What, as the context and the terms of the relevant decisions in November 2010 and March 2011 show, the Council was doing was actually deciding to enter into a procurement process by way of competitive dialogue. That process then, and in accordance with the 2006 Regulations, proceeded in stages. Thus, in contrast with the initial resolution in Burkett, work here was lawfully and foreseeably done and money was expended precisely because of such decisions. The decisions thus had and were intended to have legal effect: not, of course, in terms of sanctioning a binding contract but in terms of authorising and causing the initiation of the procurement process, with attendant inevitable heavy expenditure and significant use of time and resources. Without such decisions, those things could not and would not have been done. Those decisions are thus, indeed, in my view properly to be regarded as substantive or, if you like, “final” (using Mr Giffin’s word) for that purpose. They are not to be regarded as contingent or provisional, even though there was no guarantee at all that any outsourcing contract or contracts might ultimately result. Mr Giffin did suggest that so to conclude would be tantamount to resurrecting “the real basis of complaint” approach put forward in the Greenpeace case but which was disapproved in Burkett. In my view, however, it does no such thing: rather, as I have sought to say earlier in this judgment, it identifies the actual decision by reference to which the grounds of challenge first arose.

Mr Giffin cited to us, as he had to the judge, a number of authorities which he said supported his argument. Properly read, I do not think they do. Thus in the planning case of Younger Homes (Northern) Ltd v First Secretary of State [2004] JPL 950, [2003] EWHC 3058 Ouseley J took the view (obiter), applying Burkett, that notwithstanding there had been flaws in the prior screening opinion the applicants were not out of time in seeking, as they did, to quash the eventual grant of planning permission. That was a context quite different from the present but altogether closer to Burkett.

The same can be said for the views expressed by Pill LJ in the case – also a planning case – of R (Catt) v Brighton & Hove City Council [2007] EWCA Civ 298, in which he endorsed the approach of Ouseley J in Younger Homes. Pill LJ said (at paragraph 49):

“However the opportunity to challenge [a screening opinion] does not affect the right to challenge by judicial review a subsequent planning decision. The opinion does not create, or inevitably lead, to a planning permission…”

That too is to be contrasted with the present case, where the decisions, while not inevitably leading to the grant of any particular outsourcing contracts, did inevitably lead to – and had the legal effect of authorising – the expensive and time-consuming process of procurement in accordance with the 2006 Regulations.

In R (Risk Management Partners Ltd) v Brent London Borough Council [2010] PTSR 349 [2009] EWCA Civ 490 there were rather special facts, in part based on an alleged breach of Regulation 47 of the 2006 Regulations. There the submission, as recorded, had been (paragraph 144) that “either time runs or it does not” and that a claimant could not, if out of time from the date a breach had been apprehended, improve his position by waiting for the actual breach to occur. It is unsurprising that so generalised an argument was rejected: see, for example, paragraph 148 of the judgment of Pill LJ. Nevertheless, Moore-Bick LJ (at paragraph 250), having emphasised that judicial review is the means of challenging the unlawful exercise of power, went on to say in general terms:

“Moreover, as I have already observed, a failure to comply with the procedure at any stage inevitably undermines the integrity of all that follows. Accordingly, the right of action is complete immediately and cannot be improved by allowing the procedure to continue to a conclusion. Where there has been a failure to comply with the proper procedure the later award of the contract does not constitute a separate breach of duty; it is merely the final step in what has already become a flawed process. For these reasons I do not think that the approach adopted in Burkett can simply be transposed to a claim under the Regulations.”

Those general observations – while made in a somewhat different factual context – have resonance with the present case.

More in point, in my view, were other cases cited to us by Miss Rose (and as had been cited to and considered by the judge below). They included, among others, the decision of Eady J in R (Unison) v NHS Wiltshire Primary Care Trust [2012] EWHC 624 (Admin); and the decision of Burnett J in Allan Rutherford LLP v Legal Services Commission [2010] EWHC 3068 (Admin). It is not necessary to refer to them in detail: all were, however, from a procurement context and so, having such context, are comparable to the present case: albeit of course each had its own facts.

In my view, the most illustrative of such cases is the decision of the Court of Appeal in Jobsin Co. UK plc v Department of Health [2002] 1 CMLR 44, [2001] EWCA Civ 1241. That case also raised various issues relating to public procurement. One of the issues arising was the question of a time bar said to arise under Regulation 34 of the Public Services Contracts Regulations 1993. It had been alleged that there had been a breach of the Regulations by failure to publicise the criteria by which a bid was to be assessed. The question was whether time ran from the date of such breach or from the later date when the claimant was excluded from the tender process. In paragraph 28 of his judgment, Dyson LJ (as he then was) said this:

“28.

That brings me to the second reason. It would be strange if a complaint could not be brought until the process has been completed. It may be too late to challenge the process by then. A contract may have been concluded with the successful bidder. Even if that has not occurred, the longer the delay, the greater the cost of rerunning the process and the greater the overall cost. There is every good reason why Parliament should have intended that challenges to the lawfulness of the process should be made as soon as possible. They can be made as soon as there has occurred a breach which may cause one of the bidders to suffer loss. There was no good reason for postponing the earliest date when proceedings can begin beyond that date. Mr. Lewis suggests that there is such a reason. He points out that if, in a case such as this, the limitation period runs from the date of publication of the tender documents, it will be possible for the contracting authority to rule out any real possibility of a challenge by issuing an invitation in breach of the regulations and then not taking any further steps in relation to tenders until after the three months period has expired. I confess that I find this an unlikely state of affairs, but I can see that it might conceivably happen. If it did, a service provider who wished to bring proceedings might have a good case for an extension of time: it would all depend on the facts. In my view, this cannot affect the plain meaning of regulation 32(2). I would therefore hold that the right of action which Jobsin asserts in the present case first arose on or about 14th August 2000. The essential complaint which lies at the heart of the proceedings is that there was a breach of regulation 21(3), in that the Briefing Document did not identify the criteria by which the DOH would assess the most economically advantageous bid.”

The obvious sense and force of these remarks was reflected in the approach of the judge in the context of the present case and in the approach of other judges in other procurement cases as cited to us.

Thus in my view Burkett should properly be distinguished. Mr Giffin could find no other authoritative support for his arguments, subject to his citation to us of a case on procurement in the form of the decision of Collins J in R (Smith) v North Eastern Derbyshire PCT [2006] EWHC 1338 (Admin). Collins J did there briefly express these views in paragraph 24 of his judgment:

“24.

Delay is relied on by the defendant. Since permission was granted by Davis J on 15 March 2006, delay is only relevant under s.31(6) of the Supreme Court Act 1981 so that detriment to good administration or prejudice to a person must be shown. The claim was lodged on 3 March 2006. The decision under attack is that announced on 23 December 2005. The claimant was unaware of the decision to tender, which took place on 10 November 2005, until Christmas time. In any event, the decision of the House of Lords in R v Hammersmith & Fulham LBC ex p Burkett [2002] 1 W.L.R. 1593 suggests that time would not begin to run until the decision was made to contract with UHE. If another route had been chosen which was acceptable to the claimant, no claim would have been needed. There is always some prejudice arising from the time and resources spent in disputing a claim. Here, the PCT has the added expense of providing the service itself while these proceedings are in being. It is said that to put the matter out to tender again would be unfair to UHE since others would now know how to amend their bids. UHE has not made any observations, and so I cannot assume anything in their favour. In any event, if other better bids result, that will be advantageous for the PCT and the patients.”

But it is not clear if the point was fully argued, and the comments of Collins J in this case were not only by reference to s.31(6) but were both obiter and tentative. Overall the relevant authorities (whilst accepting that all must be read in their own context and on their own facts) are against Mr Giffin’s argument.

Mr Giffin did also – with respect, rather vaguely – talk about the point when there was a final decision to act in a way which would impact on Mrs Nash’s “rights”. I am not sure that it is very helpful, in a context such as the present, to talk of “rights”. Certainly there were here no property rights of the kind held by the claimants in Burkett which stood to be affected. That Mrs Nash, given the obligations in s.3 of the 1999 Act and given that she is a resident of Barnet, had a sufficient interest entitling her to bring proceedings is not in dispute. But to talk further about her “rights” adds nothing to the points identified above and cannot detract from focusing on the time when it was open to her to challenge the Council for breach of its duty to consult: and that was in 2010/2011.

There was also nothing in terms of fairness or certainty here such as to justify the claimant not issuing proceedings until after the decision of 6 December 2012. The prior decisions had been made at public meetings, had been published and (as found by the judge) were widely known. Mr Giffin at one stage suggested that there was uncertainty with regard to the NSCSO project; was the relevant decision, for example, that of 2 March 2011 or 29 June 2011? I incline to think that the relevant decision was that of 2 March 2011, because that constituted the formal beginning of the procurement process. But it matters not: all the judge was saying was that whether it was 2 March 2011 or 29 June 2011, the claimant was, either way, well out of time. In truth, considerations of fairness and certainty in this respect all weigh strongly in favour of the Council. It is inconceivable that the Council (or the potential tenderers) would have gone down the very costly and time-consuming process of procurement and competitive dialogue had it been envisaged that a challenge on the grounds of lack of consultation on the whole strategy of outsourcing might at the very end of the day be made. That is quite different from the inherent and understood risk that the procurement process might not ultimately result in any concluded procurement contract.

The choosing of the decision made on 6 December 2012 as a peg on which to hang this claim in fact seems to me to be almost adventitious. Indeed, I still do not really see why, on Mr Giffin’s argument, the challenge could not have been made yet later, within three months of the actual signing of the contracts. One can, nevertheless, understand why Mr Giffin rather shied away from alighting on the date of the actual signing of the contracts. To do so, of course, would only highlight the very issue of delay: since to allege a failure of consultation (which is designed to be undertaken at the formative stages) becomes even emptier at a stage when a contract has actually been concluded.

I do not propose to say more. In my view the judge’s very full reasoning and his conclusions on all these points on delay were correct. I agree with them.

In the result, my opinion is that these proceedings were properly assessed as out of time and accordingly that this application should be refused.

In such circumstances there is no need to make any observations, which would necessarily be obiter, on the points raised in the Respondent’s Notice; and I, for my part, would prefer not to.

I agree.

I also agree.