Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
MR JUSTICE AKENHEAD
Between:
CORELOGIC LIMITED | Claimant |
- and - | |
BRISTOL CITY COUNCIL | Defendant |
David Gollancz (instructed by Veale Wasbrough Vizards) for the Claimant
Rhodri Williams QC (instructed by Bristol City Council Legal Services) for the Defendant
Hearing date: 10 July 2013
JUDGMENT
Mr Justice Akenhead:
Introduction
This judgment relates to an application by the Claimant in this public procurement case to amend its Claim. It arises in the context of there being a 30 day limitation period for Claims to be issued and served running from the date when the Claimant first knew or ought to have known that grounds for starting proceedings had arisen. This needs to be correlated with the established rules under the Limitation Act 1980 and CPR Part 17.4 which do not allow amendments which add “new claims” which at the time of the amendment are barred by limitation.
The Background
Corelogic Ltd (“Corelogic”) provides computer based case management systems to public sector customers and was one of two tenderers in a "mini competition" conducted by Bristol City Council ("Bristol") under the terms of a framework agreement which was governed by the Public Contract Regulations 2006 (as amended) with regard to the provision of a computer-based Adult Social Care case management system. The framework agreement had been established by the Office of Government Commerce for the provision of local government software application solutions and Bristol was one of the contracting authorities entitled to award specific contracts for services under the terms of the framework agreement, which permitted such authorities to run a tendering or "mini" competition for specific contracts.
In November 2012 Bristol notified Corelogic that it wished to seek tenders for the provision of a new adult social care management system and associated financial module. Bristol issued the invitation to submit tenders on 21 November 2012 to Corelogic and another company Liquidlogic. This invitation purportedly identified that 90% of the marks for award related to "Statement of Requirements [“SOR”] and Pricing" and 10% to "User Demo". The SOR and Pricing element was broken down into Fitness for Purpose (attracting 45% of the marking), Total Cost of Ownership (42.3%) and Delivery Services (2.7%), all after weighting. There were five different Pricing Schedules including "Software, Maintenance and Support" which set out 12 heads of items which were to be priced by reference to a unit price, quantity and price.
Corelogic submitted a tender on 2013. On 22 March 2013 Bristol wrote to Corelogic in the following terms:
“I am writing to advise you that your tender for the above contract has not been successful.
The award of this contract was concluded and ran as a further competition…and as such is not subject to the full rigour of the EU rules with regard to an Alcatel Standstill Period.
However…the Council intends to follow a standstill period for this particular further competition as it is deemed best practice to demonstrate that a transparent and fair process was followed…The stand-still period will therefore expire 1 April 2013.
The Council has decided to award this contract to Liquid Logic…
The scores for your tender and the successful tenderer are compared as follows:
[Liquidlogic scored 72.09% on the SOR and Pricing and 6.91% on the User Demo against Corelogic’s 64.41% and 6.70% respectively]”
Corelogic emailed Bristol on 25 March 2013 asking for a “debrief/feedback discussion" and also for confirmation of this price which Bristol took into account for its bid and how that was broken down. Following several reminders, Bristol wrote back on 27 March 2013 extending the stand-still period until midnight 8 April 2013, repeating the overall scores for the two tenders and saying:
“This price for your tender was £994,965.00. (The price was for implementation and 7 year on-going costs. The price included the upgrade/fix/patch (managed service), and the discounted “bundle” pricing for 5 interfaces, as these were core requirements as stated in the tender documents. It also included your "goodwill" delay in charging support and maintenance costs.)
The price for the Liquid Logic tender was £868,075.00…”
The document runs on for several more pages explaining why Liquidlogic were stronger on different parts of the bids.
Corelogic e-mailed back that evening asking a variety of questions including:
“1. How many users did you use for the pricing evaluation (750, 1000 or 1,250)?
2. Please can you provide full details of all components of our pricing that you took into account to reach the figure of £994,965.00 as we are unable to.
3 Please can you clarify the statement: “The price included the upgrade/ fix/ patch (managed service)”? Upgrades/ fixes/patches are included as standard under our Maintenance and Support agreement (Appendix V in our submission) and are therefore all covered by the support payment that we quoted (£15,510 pa for 750 users)."
Bristol replied on 3 April 2013:
“Despite your further requests for information, the Council would like to now reiterate it’s position described within the latter sections of this letter, indicating that it feels it has fulfilled it’s obligations under the principles of the standstill period, treated all bidders fairly and transparently and carried out the tender process as stated in the original ITT documentation.
Therefore, the Council will not be restarting the standstill period as a result of the latest email request for feedback from Corelogic and intends to conclude contractual arrangements with the winning bidder as planned (midnight 8th April). As previously indicated, the Council will offer an opportunity for a debrief once the standstill period has expired.”
Corelogic through its then solicitors Morgan Cole LLP wrote back on 5 April 2013:
“1. We have been instructed by Corelogic in relation to the Tender and have been passed copies of your recent correspondence including your letters dated 22 and 27 March 2013 and 3 April 2013…Your letters suggest that you have provided what you consider to be sufficient information to fulfil your obligations to ensure a transparent and fair process.
2…Whilst Corelogic is grateful for the information provided as to why its bid was unsuccessful, we are writing to confirm our advice to Core logic that the information you have, to date, provided it is inadequate and does not comply with the obligations imposed upon the Council by the Public Contracts Regulations, as amended.. and the general EU Treaty principles of transparency, openness and non-discrimination.
3. The purported award decision notice issued on 22 March 2013 is incomplete and does not comply with the requirements of the Regulations. In particular, the Council has failed to provide sufficient information pursuant to Regulation 32 relating to the scores received by either LL or Corelogic, setting out the characteristics and relative advantages of the successful tender to enable Corelogic to understand properly the reasons for the Council’s decision…
Flawed Award Decision Notice
6. The 2006 Regulations…provide as follows:
Regulation 32 - Information about contract award procedures…
7. The purported notice you have served fails to set out sufficient reasons to meet the requirements of Regulation 32 (2) (b).
8. The test as to what constitutes sufficient reasoning for the purposes of a decision notice and to satisfy Regulation 32 (2) (b) comprises two stages and was set out in the cases of Alstom… and the various decisions in the Dynamiki litigation…This requires contracting authorities to provide all information:
8.1 that would be necessary for the unsuccessful bidder to determine whether or not a decision is well founded; and
8.2 to enable that bidder to have sufficient information to be able to assert its rights before the Court.
9. It is simply not possible for Corelogic to do either of these things for the reasons set out below.
9.1 Corelogic has not been provided with the scores for SOR…
9.2 Corelogic does not know how it scored relative to LL…
9.3 Corelogic does not know the basis upon which it was scored in the "Total Cost of Ownership" section
9.3.1 In complete contrast to the detail provided by the Statement of Requirements Document for the "Fitness for Purpose” element of the Tender, the Council has failed entirely to provide any criteria or scoring methodology for the "Total Cost of Ownership" section of the Tender. It is entirely unclear as to how a bidder could receive full marks for this section, something which would affect how tenders are put together.
9.3.2 Corelogic has no idea why it received a weighted score of 37.75% or why LL was given 43.84% in comparison.
9.3.3 Corelogic has also not been provided with any information about the marks either it or LL received for this section.
9.3.4 In the circumstances, without further information from the Council, it appears that this section has been marked using undisclosed sub-criteria. Again, this constitutes a breach of the Regulations, in particular the requirement of openness, fairness and transparency…
9.4 Corelogic does not know what pricing elements of its bid were used by Bristol to arrive at the figure of £994,965 as being the total price of the contract
…9.4.2 Our client’s own analysis of the contract price is set out below, which evidences that the TCO is significantly less than this for 750 users. [There then follows a table which shows this analysis which produces a total of £331,360].
9.4.3 This is highly relevant since, based on the above, and without prejudice to the deficiencies already set out in relation to the lack of scoring methodology for Pricing as set out above, it is highly likely that Corelogic would have been the winning bidder as you have already confirmed that LL’s tender price was significantly higher than this, namely £868,075.00
9.5 The Council has refused to provide further information until the standstill period has expired
9.5.1 Our client has asked you for a de-brief and for further information in relation to pricing specifically. Please confirm that you will provide that in accordance with Regulation 32 (9).
Next Steps
16. Given the unfortunate position in which Corelogic finds itself, Corelogic requires the Council’s confirmation, by 11am on Monday, 8 April 2013, that it will now comply with its statutory obligations and will not enter into a contract with LL but will instead:
16.1 provide a full response to the concerns identified above; and
16.2 confirm that it will extend the standstill period to 10 working days after it has provided the information requested above, so that Corelogic has the opportunity to consider this information and consider its legal position.
17. Given the short limitation periods applicable to procurement challenges, we will require the Council to provide its full response to the concerns set out in this letter by no later than 4pm on Friday, 12 April 2013.
18. If the Council fails to provide the above confirmations, by the deadline given above regrettably we will have to advise Corelogic to protect its position by issuing Court proceedings which will include a claim for ineffectiveness and the effect of which will be to suspend automatically the procurement process…”
On 8 April 2013, Bristol confirmed by e-mail that it would extend the standstill period until 19 April on the basis that Corelogic did not issue proceedings on that day. However, by that time, Corelogic had already issued the current proceedings, sending a copy by e-mail on that day and formerly serving it under cover of a letter dated 10 April 2013. That letter asked for a general extension of time for service of the Particulars of Claim. On 12 April 2013 Bristol agreed to a general extension of time for the service of Particulars of Claim while the Council considered the correspondence; that extension will was terminable on 14 days notice by either party.
On 30 April 2013, Bristol wrote a four-page letter which responded in some detail to Morgan Cole’s letter of 5 April 2013. It denied that there was any fundamental problem and it said that Corelogic had been “provided with all the information it is entitled to and more". At Paragraph 9.4 it said this:
“It is clear that your client has made assumptions about what the Council wanted. The Council wanted your client to provide prices which would enable it to make its own choices. The table you have used does not address the pricing issue sufficiently clearly, it ignores key elements of the package and shows that your client has ignored fundamental parts of its own bid… Appendix G shows the proper interpretation of your client’s bid. The figure of £994,965 is based entirely on your client's tender…
An area where your client was significantly more expensive was the upgrades and releases. The Pricing Schedule…is explicit that the Council required a price for upgrades."
Appendix G was a one-page document which showed 8 "One off" prices and five annual prices based on a multiplier of seven. An annual price of £10,340 was allowed for 6.5 years for "Corelogic support and maintenance". Similarly a sum of £462,000 was allowed for "Managed Service” said to be required to deploy “all releases and patch releases".
Morgan Cole responded in detail to this letter on 9 May 2013 saying that their client had "established clear errors in the evaluation of its bid". It explained that the prices in relation to free upgrades and the like had been quoted at £0.00 and therefore nothing should have been allowed for the so-called Managed Service. It explained that properly evaluated Corelogic’s price should have been £418,755 which would have led to it winning the competition.
Nothing much appears to have happened over the next four weeks. On 5 June 2013 Bristol sent to Morgan Cole witness statements to support its application to have the statutory suspension lifted, albeit that the application was not formally issued until 20 June 2013. On 17 June 2013, Morgan Cole wrote to Bristol with a draft amendment to the Claim Form and inviting its consent. On 18 June 2013 it sent through a somewhat altered draft amendment. On 19 June 2013 Bristol wrote back saying that it objected to the amendments because they would raise new causes of action and was statute barred by virtue of Regulation 47D (2). It also called for the service of the Particulars of Claim.
The Particulars of Claim was served on 21 June 2013. On the same date Corelogic issued its application to amend the Claim Form.
The Application
I set out below the Brief Details of Claim that were set out on the Claim Form with the new amendments in the third and fourth paragraphs underlined:
“The Claimant’s claim arises out of a procurement process conducted by the Defendant for the award of a contract for the provision of an adult social care case management system ("the Contract"). The procurement was subject to the Public Contracts Regulations 2006 (as amended) ("the Regulations"). The Claimant was shortlisted as one of two bidders but was notified by the Defendant on 22 March 2013 that its tender had been unsuccessful and that the other bidder, Liquid Logic, had been successful. To date, despite requests, the Defendant has not provided sufficient reasons for this decision pursuant to Regulations 32 and 32A and has said it will not do so until after the expiry of the purported standstill, which the Defendant says expires at midnight on 8 April 2013.
The failure to provide reasons for the decision is a breach of Regulation 4(3) of the Regulations and/or enforceable EU law obligations, in particular, the principles of equal treatment, transparency and non-discrimination. The Defendant has further breached the terms of an express tender contract between it and the Claimant arising out of the same facts. As a consequence, the Claimant will suffer loss and damage.
In breach of its obligations pursuant to Regulations 4(3) and 19 (9) (d) the Defendant made manifest errors in its assessment of the Claimant’s tender price. If the Defendant had correctly assessed the Claimant’s price in accordance with the Claimant’s tender, the Claimant’s tender would have been evaluated as the best tender on the basis of the award criteria specified in the contract documents.
In breach of its obligations of transparency, the Defendant did not disclose to the Claimant the formula the Defendant used for translating prices into scores, and applied an undisclosed award criterion to the assessment of prices for the provision of upgrades.
The Claimant seeks an order setting aside the Defendant’s decision to award the Contract to Liquid Logic and the suspension of the procurement process; an order restraining the Defendant from awarding the Contract and/or from continuing with the current procurement; a declaration that the Defendant was and is in breach of the Regulations, general Treaty obligations and principles and/or the terms of an express tender contract between the Claimant and the Defendant; alternatively damages for breaches of the Regulations, general Treaty obligations and principles and/or for breach of the terms of an express tender contract between the Claimant and the Defendant, together with interest thereon; such further or other relief as seems just and appropriate; costs."
The application, issued by Morgan Cole on behalf of Corelogic, simply seeks permission to amend saying:
“The Claim Form as issued alleges that the Defendant breached its obligations pursuant to the Public Contracts Regulations 2006 and wider EU public procurement law. The proposed amendment makes specific claims under those Regulations and law that the Defendant made a manifest error in its assessment of the Claimant’s tender price, and failed in its obligations of transparency and equal treatment."
Mr Gollancz suggested that the amendments were simply clarificatory of the existing pleading.
The application was supported by a witness statement from Allan Wilson a partner in Morgan Cole. This statement explained the history which had led to the application. He refers at Paragraph 12 to the assertions in the amendments of "manifest error in calculating their Claimant’s bid price" and the use of "undisclosed criteria to assess the pricing scores" going on to say:
“Whilst it is not accepted that the general wording of the Claim Form issued originally does not cover those points, the Claimant was advised to propose the amendments so that they could be read together with the Particulars of Claim. The amendments clearly arise from the same facts as the matters referred to in the original Claim Form…”
He said that neither amendments added "a new claim" but even if they did they arose "out of the same or substantially similar facts". It was not accepted that even if there were new claims limitation had expired.
For undisclosed reasons, Morgan Cole came off the record in late June 2013 to be replaced by Veale Wasbrough Vizards, a partner of which, David Hansom provided a further statement on 5 July 2013. He said this;
“11… I am of the view that when following the relevant authorities, the grounds of claim should be particularised as far as possible based on the information known by the Claimant given the very short timescales to bring proceedings under Regulation 47(D) of the Regulations. For the avoidance of doubt, had I been instructed to draft the original claim form, I would have included specific reference to manifest error and lack of transparency through undisclosed evaluation criteria in order to give as much certainty and clarity as possible to the claim.
18. As a solicitor specialising in the area of EU public procurement law, I would regard it as best practice to set out these breaches [manifest error in calculating the bid price and the use of undisclosed evaluation criteria] explicitly in the Claim Form. This is the approach that I would take if drafting such a claim. This would of course be entirely consistent with the correspondence that had passed between the Claimant and the Defendant prior to the issue of the Claim Form in which those two breaches had been addressed…"
He went on to say that these two particular breaches had been at the core of the matters in issue between the parties before the Claim was originally issued and that the failure to provide requisite information was inextricably linked with the manifest errors more latterly asserted.
Although Bristol did not put in any evidence in response, it had filed extensive witness evidence on its application to have the suspension lifted.
The Particulars of Claim run to 15 pages. In this pleading, Corelogic does not rely in terms of breach or causation on any complaints relating to the lack of provision of appropriate information prior to the issue of the Claim. It relies on the "manifest error of assessment", "failure to treat tenderers equally or act in a transparent way", "failure to clarify" and the use of "undisclosed criteria".
In essence, Mr Gollancz for Corelogic argues that one can interpret or construe the original Claim Form not only from the words used but also in the context of and taking into account the preceding correspondence particularly Morgan Cole’s letter of 5 April 2013. He argued that there was no new claim to be added therefore by the amendment which was simply a clarification rather than anything else. He did not argue as such that, if it was a new claim, it arose out of the same or substantially the same facts. He argues also that one can and should read the Particulars of Claim together with the Claim Form to interpret its meaning and, even if as here, there was a lapse of time between the service of the Claim Form, that had happened by agreement between the parties.
Mr Williams QC for Bristol argued that the addition of the manifest error and the undisclosed criteria assertions did raise new claims because the Claim Form in its original wording only related to the alleged inadequate provision of information post-tender. He said that, even if one did take into account the preceding correspondence, that was all to do with allegations about the inadequate provision of information.
The Regulations and the CPR
Relevant parts of the Regulations as amended are:
“4(1) In these Regulations, an “economic operator” means a contractor, a supplier or a services provider.
(2) When these Regulations apply, a contracting authority shall not treat a person who is not a national of a relevant State and established in a relevant State more favourably than one who is.
(3) A contracting authority shall (in accordance with Article 2 of the Public Sector Directive)—
(a) treat economic operators equally and in a non-discriminatory way; and
(b) act in a transparent way.
(1) Subject to paragraph (13), a contracting authority shall, as soon as possible after the decision has been made, inform the tenderers and candidates of its decision to—
(a) award the contract; or
(b) conclude the framework agreement,
and shall do so by notice in writing by the most rapid means of communication practicable.
(2) Where it is to be sent to a tenderer, the notice referred to in paragraph (1) shall include—
(a) the criteria for the award of the contract;
(b) the reasons for the decision, including the characteristics and relative advantages of
the successful tender, the score (if any) obtained by—
(i) the economic operator which is to receive the notice; and
(ii) the economic operator—
(aa) to be awarded the contract; or
(bb) to become a party to the framework agreement, and anything required by paragraph (10);
(c) the name of the economic operator—
(i) to be awarded the contract; or
(ii) to become a party to the framework agreement; and
(d) a precise statement of either—
(i) when, in accordance with regulation 32A, the standstill period is expected to
end and, if relevant, how the timing of its ending might be affected by any and, if so what, contingencies; or
(ii) the date before which the contracting authority will not, in conformity with regulation 32A, enter into the contract or conclude the framework agreement.
47D. General time limits for starting proceedings
(1) This regulation limits the time within which proceedings may be started where the proceedings do not seek a declaration of ineffectiveness.
(2) Subject to paragraphs (3) to (5), such proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen…
(4) Subject to paragraph (5), the Court may extend the time limit imposed by paragraph (2) (but not any of the limits imposed by regulation 47E) where the Court considers that there is a good reason for doing so.
(5) The Court must not exercise its power under paragraph (4) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.”
Section 35 of the Limitation Act 1980:
For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced—
in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and
in the case of any other new claim, on the same date as the original action.
In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either—
the addition or substitution of a new cause of action; or…
Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim….
Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.
The conditions referred to in subsection (4) above are the following:
in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action…”
Reliance has been placed on various of the Civil Procedure Rules:
The overriding objective
These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
Dealing with a case justly and at proportionate cost includes, so far as is practicable-
ensuring that the parties are on an equal footing;
saving expense;
dealing with the case in ways which are proportionate-
to the amount of money involved;
to the importance of the case;
to the complexity of the issues; and
to the financial position of each party;
ensuring that it is dealt with expeditiously and fairly;
allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases; and
enforcing compliance with rules, practice directions and orders.
Application by the court of the overriding objective
The court must seek to give effect to the overriding objective when it-
exercises any power given to it by the Rules; or
interprets any rule,
subject to rules 76.2, 79.2 and 80.2.
Duty of the parties
The parties are required to help the court to further the overriding objective.
Contents of the claim form
The claim form must-
contain a concise statement of the nature of the claim;
specify the remedy which the claimant seeks;
If the particulars of claim specified in rule 16.4 are not contained in, or are not served with the claim form, the claimant must state on the claim form that the particulars of claim will follow.
Contents of the particulars of claim
Particulars of claim must include-
a concise statement of the facts on which the claimant relies;
Amendments to statements of case
A party may amend his statement of case at any time before it has been served on any other party.
If his statement of case has been served, a party may amend it only-
with the written consent of all the other parties; or
with the permission of the court…
Amendments to statements of case after the end of a relevant limitation period
17.4(1) This rule applies where—
a party applies to amend his statement of case in one of the ways mentioned in this rule; and
a period of limitation has expired under—
the Limitation Act 1980;or …
any other enactment which allows such an amendment, or under which such an amendment is allowed.
The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.
Substantial reliance is placed by Mr Gollancz on the Court of Appeal decision in Evans v CIG Mon Cymru Ltd [2008] EWCA Civ 390 which related to an application to amend the claim form in a personal injury damages claim. The claimant had an accident at work and had also complained of alleged bullying at work and on 7 December 2005 a claim form was issued together with the Particulars of Claim and a medical report. The Claim form under "Brief details of claim" stated "loss and damage arising out of abuse at work". The Particulars of Claim referred to the accident however. The point was raised that there was a mismatch and the Defendant threatened to strike out the Particulars of Claim and indeed issued an application to do so which was met in part by an application to amend the claim form to delete the word "abuse" and insert the word "an accident". Unsurprisingly perhaps, the Court of Appeal was sympathetic to the Claimant. Toulson LJ said:
“26. In my view the just approach is to look at the totality of the documents served. These documents together set out the claimant's pleaded case. There was an obvious mismatch, but in asking whether the proposed amendment was, in truth, an amendment to raise a new cause of action or merely to clarify an internal inconsistency in the pleaded case is, it is proper to look at the pleaded case as a whole. When one does so, it is clear, in my judgment, that what was sought to be done by the subsequent application to amend was not, in substance, to raise any new claim at all, but merely to correct an obvious formal error. I reject the argument that an amendment to correct that clerical error was prohibited by Rule 17.4 and, in my judgment, there was nothing to prevent the court from exercising its general discretion to do justice in response to the application to strike out the particulars of claim. If the circuit judge had considered that he had such a discretion, it is plain how he would have exercised it and, in my judgment, rightly so. I would therefore allow this appeal and restore the action”.
Lady Justice Arden agreed but went on:
I start by applying the usual rules of interpretation. The claim form is a unilateral document which sets out the cause of action which the claimant claims to have and wants to rely upon. It must be interpreted objectively -- that is, by reference to the words according to their objective meaning. On the other hand, account must be taken of the factual matrix. That matrix would include communication between the parties made before or at the same time as the service of the claim form. As Lord Steyn said in R (Daly) v Secretary of State for the Home Department[2001] 2AC 532 at [28]: "in the law, context is everything".
Toulson LJ has gone through the sequence of the communications between the parties, but I attach particular importance to the following documents. On 19 March 2003 there was the letter required by the protocol, setting out the claim of the claimant and referring to the accident to the claimant's hand. Then, in March 2006, the claim form and particulars of claim were served together and then, in May 2006, the solicitors for the claimant wrote to the defendant, and they referred to a further telephone communication which chronologically occurred either at the time of the letter in 2003 or shortly thereafter, which was to the effect that the claimant had dropped the claim for abuse at work and was focusing on the claim for personal injury and that alone. There was, therefore, a telephone communication at an earlier point in time.
As Toulson LJ has explained, there is no suggestion that the claimant deliberately referred to abuse at work in the claim form, intending to raise a claim for that. Nor is there any suggestion that the defendant understood the claimant to be doing so. So there is an obvious conflict between the claim form and the particulars of claim. They cannot both be right. In my judgment, on the ordinary rules of interpretation, the court would say that the words "abuse at work" in a claim form are an obvious clerical error which can be corrected, as a matter of interpretative, to accord with their objective meaning in the context or in the light of the factual matrix -- namely, accident at work. The interpreted exercise which is needed is as simple as substituting for the word "abuse" the word "accident".
31…The claim form has a very important function in our procedural system. It is the document which commences proceedings. There are special rules about its service, and I need only summarise the most important rules. There are, as I said, special rules about service, and the time for service, and then the extension of time of service. There are special rules about what the claim form must contain. There is a special rule about amendment and there are, importantly, special rules about adding or substituting new parties or claims, or altering a party's capacity after the limitation has expired -- CPR 17.4. But I do not see any basis in any of the rules to which we have been referred for saying that the rules regulate the interpretation or meaning of the claim…Nor do I consider that because the claim form is a public document the court is compelled to interpret the claim form without reference to the other document once it is issued. So far as the parties are concerned, the claim form is intended to be read with the particulars of claim…Of course, the overriding objective applies, but no one suggests that that would require a contrary interpretation in this case.
As I see it, therefore, the court below was in error in striking out the claim form. I consider that the claim form ought to have been amended in order that it properly reflects it true meaning…”
Laws LJ pithily said;
“The decisions below represent a stark surrender of substance to form. We should not allow such a thing unless irresistibly driven to do so”.
There is no real issue between the parties as to the standard of knowledge required to start time running in this type of case. This was addressed by the Court of Appeal in SITA UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156 where it was held that
“…the standard ought to be a knowledge of the facts which apparently clearly indicate, though they need not absolutely prove, an infringement”
So far as extension of time is concerned, there have been various authorities including Jobsin Co UK plc v Department of Health [2001] EWCA Civ 1241. In Mermec UK Ltd v Network Rail Infrastructure Ltd [2011] EWHC 1847 (TCC), the TCC refused an extension of time for various reasons:
“23. The main remaining issue is whether or not there is some good or arguable reason why there should be an extension of time in effect to bring the service of the Claim on 30 December 2010 within time. I do not consider there is any such reason:
(a) There is no explanation from Mermec as to why the Claim could not have been drafted let alone served weeks before it was served.
(b) It is perhaps unhelpful to try to give some exhaustive list of the grounds upon which extensions should be granted but such grounds would include factors which prevent service of the Claim within time which are beyond the control of the claimant; these could include illness or detention of the relevant personnel. There must however be a good reason and none is advanced by the Claimant in this case.
(c) It is said that the delay was only some six or seven days and that there should be an extension for such an insignificant period because it is a relatively short delay. However, there is no point in having a three-month period if what it means is three months plus a further relatively random short period.
(d) The evidence is however that the Particulars of Claim were drafted and ready to be served on 22 December 2010 which of course would, just, have been within the three months period. No explanation has been offered as to why it was not served if necessary by hand on that date or even shortly before . There clearly was no problem preventing Mermec or its advisers from articulating a claim and serving it within a few weeks of 23 September 2010. Even if they hoped to get more information from Network Rail, it was clear from the latter's letter of 28 October 2010 that no further information was provided. Certainly, all the basic facts relied upon in the Particulars of Claim were known well before them.
(e) It was said by Counsel for Network Rail that if, as appears at least possible, the Claim was served late as a result of some error on behalf of Mermec's legal team, Mermec will have a claim for professional negligence against its lawyers and that should militate against the granting of any extension. I would rather not speculate as to whether there was any culpable carelessness on the part of the lawyers. There are several possibilities, one of which is professional negligence on behalf of the lawyers. Another is that there was a lack of urgency on the part of Mermec in the October to December period. As there is no explanation for the delays, that itself is reason enough to undermine any entitlement to an extension of time. Limitation periods are there for a purpose and extensions of limitation periods should be for good reason; there is no obvious good reason which has been floated in this case by Mermec, which is telling.”
Discussion
There are significant differences between the current case and the Evans case. The first is that the Particulars of Claim were not served with the Claim. The second is that no explanation is provided by either solicitor for Corelogic as to whether there was any error (clerical or formal) as such. Although service of the Particulars of Claim was deferred by agreement, it is absolutely clear that this pleading was to a significant degree informed by the contents of Bristol’s letter of 30 April 2013 and the thought process which had gone into the response of 9 May 2013. It is rather difficult, on ordinary interpretation rules, therefore to say that the Claim Form drafted some 10 weeks before can be interpreted by reference to the later document. For instance, statutes and contracts are not interpreted by reference to what was said or done after the contract was entered into or after the statute was enacted and there is no reason to think that a Claim Form can sensibly or properly be interpreted by reference to a later document and particularly one which has been drafted by reference to what has been said or has emerged after the Claim Form was drafted and issued in the first place. There was no doubt in the Evans case that there had obviously been some clerical or formal error in the drafting of the Claim form. However that is not the case here. Indeed, Mr Wilson the partner at Morgan Cole with conduct of the proceedings, accepts that the wording of the Claim Form as issued originally did not cover the manifest error or the undisclosed criteria points but says that his clients were advised "to propose the amendments so that they can be read together with the Particulars of Claim". He does not even try to suggest that he meant the wording of the original Claim Form to cover the manifest error and undisclosed criteria complaints.
There is a pointer to what has gone wrong here in the witness statement of Mr Hansom. He points to "best practice" and as to what he would have done, both of which would have involved specific reference in the Claim Form to these two further complaints. It is not for the Court to “read the runes” or between the lines of what Mr Hansom is really saying. What however he must be saying is either that there has been professional negligence on the part of his predecessor or that a decision was taken to draft the Claim Form as it was drafted which falls short of professional negligence. Put another way, there is no "clerical" error or error in form.
Mr Gollancz accepted, properly and correctly, that if one was just construing the words on the Claim Form, they could and would be taken to be referring only to complaints about failure, post-award, on the part of Bristol to provide the requisite information to the unsuccessful tenderer under or pursuant to Regulation 32. In the absence of any evidence (actual or inferential) that there was some type of obvious clerical or formal error in the drafting, that is probably the end of the matter.
However, even if one can in those circumstances sensibly and properly look at what went before, that does not assist Corelogic either. The e-mail complaints or comments from Corelogic before the Claim Form was issued all relate to the non-provision of information to which it thought it was entitled. The letter of 5 April 2013 from Morgan Cole is entirely predicated on a failure to provide adequate information pursuant to Regulation 32. The five "Specific Concerns regarding the Tender" are all predicated on the expressed basis that Corelogic had not been provided with what it suggested was important information which it asserted that it was entitled to. Although it seeks to explain several of the missing areas of documents by reference to the reasons why they are needed, for instance the possibility of the use of undisclosed criteria, the whole tenor of the letter goes to the lack of adequate information. The Claim Form therefore as drafted is entirely consistent with the previous exchanges. Therefore, read in the context of such earlier exchanges, the Claim Form as originally drafted must be interpreted as relating only to the alleged breaches for failure to provide post-contract award relevant or adequate information. That is a perfectly comprehensible cause of action and it is one which might well lead, if established, to some damages or other relief. Put another way, it was not obviously some hopelessly lightweight complaint as it was drafted.
It follows from this that, in my judgment, the amendments, which add breaches for manifest error in the assessment of the Claimant’s tender price and for the non-disclosure of formulae for translating prices into scores and for applying an undisclosed award criterion to the assessment of prices for the provision of upgrades, raise new claims within the meaning of the Limitation Act and CPR Part 17.4.
As indicated above, Mr Gollancz did not seek to argue that if these were "new claims" they arose out of the same or substantially the same facts. Little evidence or argument was deployed by Mr Wilson and Mr Hansom on this topic although the point is taken in the witness evidence. They do not however arise out of the same facts because the original complaint relates to the period after the tender was rejected and arose in the post-award period whilst the new complaints in fact relate to 22 March and the award of the contract and the period leading up to it. Different types of breach and different Regulations (or parts thereof) are deployed for the original and the new claims; different damages are, so far as one can ascertain, claimed or claimable in relation to the new claims. All in all, I am of the view that the new claims do not arise out of the same or substantially the same facts.
The next question to consider is whether or not judged as at the date of the amendments which for the purposes of this judgment I take as the date of the hearing, 10 July 2013, the new causes of action would be barred by limitation. There can be no real doubt that, at the latest, Corelogic has been aware since 9 May 2013 that the new claims could be pursued. Its letter of that date sets out in sufficient detail the new complaints and no further information was provided to it by Bristol thereafter. It therefore follows inexorably that no later than 9 May 2013 at the absolute latest but more probably on or within a day or two of 30 April 2013 Corelogic had “knowledge of the facts which apparently clearly indicate[d], though they need not absolutely prove, an infringement”, being the test in the SITA case. It is unnecessary for me to find that the date may have been even earlier than this; there is certainly a reasonably good argument that Corelogic’s knowledge actually arose in late March or early April 2013 supported, for instance, by Mr Hansom’s statement at Paragraph 19 when he justifies his view that the two breaches "had been at the core of the matters at issue" by reference to what happened in March and early April 2013".
Given the 30 day time limit set out in Regulation 47D, that time would start running between 30 April and 9 May 2013 (at the latest), which leaves something between 71 and 62 days up to 10 July 2013. Thus, the new causes of action are or would be time-barred judged as at the date of the amendment hearing. Subject to the application of the rules relating to extension, one must then necessarily conclude that permission to amend should not be granted.
So far as extension of time is concerned, Regulation 47D (4) permits an extension if there is a "good reason". However, no reason, let alone a good reason, has been proffered by Corelogic for the delay between 30 April 2013 and even the date when it issued its application to amend. There is no application as such for an extension under this sub-regulation in any event. There is a hint that Mr Wilson was of the view that the Claim Form could be defined or interpreted by reference to the Particulars of Claim whenever served but that would not be a good reason if that view was wrong, which it is (at least in the context of Particulars of Claim served 10 weeks after the Claim). As in the Mermec case, if the delay was the result of professional negligence on the part of solicitors or the result of some deliberate tactical decision, neither of those could begin to amount to a "good reason" within the meaning of Regulation 47 D (4).
Decision
It follows that permission to amend the Claim Form is refused. It will follow probably, although I would hear argument on it if necessary, that the Particulars of Claim will need to be redrafted so as to be in line with the original Claim Form. I would allow a reasonable period of time, say 14 days, for that to be done.