Travis Perkins Trading Company Ltd v Caerphilly County Borough Council

JUDGMENT

Mr Justice Akenhead:

The Background

“5.1.32 Tenderers will be required to provide a Parent Company Guarantee (“PCG”) from their ultimate parent or holding company (i.e. the entity at the top of their corporate group structure) in the form contained in Appendix 7 of these Tender Documents, except where the Tenderer has no parent company or is unable to provide a PCG in which case a Performance Bond will be required...

Tenderers capable of providing a PCG must submit with their tender a letter from the Parent Company on appropriately headed paper confirming that, if the Tenderer is successful, a PCG in the form contained in this ITT will be provided.

5.1.33 Where a Tenderer is unable to provide a PCG the Tender shall be accompanied by evidence in writing from a recognized insurance bank or bonding company (“Bondsman”) (not agents) that, if the Tenderer is successful, a Performance Bond [“PB”] substantially in the form contained in Appendix 8 (with only such reasonable amendments as may be required by the Bondsman) will be made available within 28 days from the issue of the Notification of the Award. Failure to submit such evidence shall cause the Tender to be rejected…”

“We will be prepared to consider entering in to a Parent Company guarantee in the event we are successful with our tender, subject to Travis Perkins plc [the parent company] Board approval.”

“Please find attached the PCG signed as requested from Travis Perkins Plc”

This email attached a blank copy of the pro forma guarantee (set out in Appendix 7 of the ITT) which named neither TPT’s parent company nor TPT; the form did contain two signatures of unnamed individuals, who later turned out to be directors of the parent company. Shortly after the 9.00am deadline, TPT sent another email message at 9.12am stating:

“Please find attached completed PCG”.

This enclosed a further executed copy of the PCG form on which appeared the TPT parent company name as guarantor and TPT as contractor.

“The Claimant’s claim arises out of a procurement process by the Defendant for the award of a contract to become building materials supply partner pursuant to a Contract Notice published in the Official Journal of the EU on 22 November 2012 (ref. 2012/S 225-370683). The procurement was subject to the Public Contracts Regulations 2006 (as amended) (the “Regulations”). The Defendant notified the Claimant on 16th April 2013 that the Claimant was being excluded from the tender process because the information provided with the tender was incomplete.

The Defendant entered into the contract on or around 17 June 2013. On 27 June 2013, the Defendant, in response to a request made by the Claimant under the Freedom of Information Act, provided information which indicated that the Defendant received tenders from a number of other bidders which were incomplete. Despite repeated requests from the Claimant, the Defendant has failed to confirm whether these bidders have also been excluded from the procurement process.

The Claimant seeks a declaration that the Defendant was and is in breach of the Regulations, general EU and/or Treaty obligations and principles and/or implied tendering contract between the Claimant and the Defendant; and/or damages for breaches of the Regulations, general EU and/or Treaty obligations and principles and/or breach of an implied tender contract between the Claimant and the Defendant together with interest thereon and other appropriate relief.”

“… the Claimant requested further information from the [Council]…On 27 June 2013, the [Council] provided information to [TPT]…which indicated that the [Council] received tenders from a number of other bidders which were incomplete and, so far as [TPT] has been able to determine, did not exclude those bidders. From this information it appears that the [Council] has not treated bidders equally, in breach of the regulations, general EU and/or Treaty obligations and principles and/or an implied tendering contract between [TPT] and the [Council].”

This application also sought an extension of time for the service of the Particulars of Claim.

“…It appears that 3 of the 4 performance bonds were incomplete or non-compliant with the tender specifications…”

The Preliminary Issues

(a) Whether the Claimant had sufficient knowledge, as of 28 June 2013 at the latest, that grounds for starting proceedings in respect of a claim for alleged breach of the Defendant’s duty to treat economic operators equally and in a non-discriminatory way had arisen, for the purposes of regulation 47D(2) of the Public Contracts Regulations 2006 (as amended);

(b) Whether the Claimant failed to start proceedings in respect of such a claim by virtue of its Claim Form issued on 26 July 2013;

(c) Whether the Claimant raised such a claim for the first time by virtue of its Particulars of Claim served on 4 November 2013;

(d) Whether, as a consequence, the Claimant’s claim as pleaded in paragraphs 29 – 31 of the Particulars of Claim is statute barred by virtue of regulation 47D(2) of the Public Contracts Regulations 2006.

The Regulations

“4(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;

(b) act in a transparent way…

47A—(1) This regulation applies to the obligation on—

(a) a contracting authority to comply with—

(i) the provisions of these Regulations, other than regulations 14(2) 30(9), 32(14), 40 and 41(1); and

(ii) any enforceable Community obligation in respect of a contract or design contest (other than one excluded from the application of these Regulations by regulation 6, 8 or 33); and

(b) a concessionaire to comply with the provisions of regulation 37(3).

(2) That obligation is a duty owed to an economic operator…”

Discussion

“(1) The claim form must –

(a) contain a concise statement of the nature of the claim;

(b) specify the remedy which the claimant seeks

(c) where the claimant is making a claim for money, contain a statement of value in accordance with rule 16.3; and

(d) contain any such matters as may be set out in a practice direction.”

What is noteworthy is that this rule is not unduly prescriptive, in particular as to what words or sentences to use. One must be able however to discern from whatever wording is used that these basic elements are contained in the Brief Details of Claim part of the prescribed form of Claim.

“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. [per Toulson LJ)

28. 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".

29. 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.

30. 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". {per Arden LJ]

I agree with both judgments. The decisions below represent a stark surrender of substance to form. We should not allow such a thing unless irresistibly driven to do so. For the reasons given by my Lord and my Lady, we are not so driven.” [per Laws LJ]

“27. In Johnson v Gore Wood & Co[2002] 2 AC 1 at page 22, Lord Bingham referred to the "inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people". At page 31 he referred to the need to make a "broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court…". Whilst these comments were in the context of arguments about issue estoppel and the principle enunciated in Henderson v Henderson, the dicta of Lord Bingham carry weight regardless. Regard must be paid to the overriding objective of the CPR.

28. May LJ (obiter) in Steamship Mutual UnderWriting Association Limited v Trollope & Colls Limited(1986) 6 ConLR 11, at page 25, disapproved the course of action which had been adopted by the plaintiff vis à vis the fifth defendants (Jampel) who were structural engineers. The Writ had been issued against four other defendants but also against Jampel though no action was intended to be taken, at any rate for the time being and perhaps never on that particular Writ. The proceedings had been issued against Jampel with no known cause of action against it, in case the other defendants should raise defences which suggested that there was a cause of action against Jampel. At page 27 (obiter) he stated this:-

"In my opinion, to issue a Writ against a party even in connection with a building dispute where cross-claims may subsequently be made, when it is not intended to serve a statement of claim, and where one has no reasonable evidence or grounds on which to serve a statement of claim against that particular party, is an abuse of the process of the court."

29. He went on at page 27 to invite consideration of the position if, in the particular case, Jampel had called for a statement of claim when the Writ was first issued against it. It was entitled to do that and, to that request, the plaintiffs would have had to respond by either declining to serve a statement of claim and having the proceedings struck out for failure to do so or, alternatively, serving a statement of claim which they knew had no foundation. That very dilemma demonstrated that an improper use of the process of the court had taken place.

30. At the following page, page 28, May LJ expressed the matter thus:-

"If there is no arguable case at the time the Writ is issued, and one cannot reasonably be expected, then it is an improper use of the procedure just to issue a Writ, with no present intention whatsoever of following it up, merely ex abundanti cautelae."

37. In my judgment, when regard is had to these authorities the key question must always be whether or not, at the time of issuing a Writ, the claimant was in a position properly to identify the essence of the tort or breach of contract complained of and if given appropriate time to marshall what it knew, to formulate Particulars of Claim. If the claimant was not in a position to do so, then the claimant could have no present intention of prosecuting proceedings, since it had no known basis for doing so. Whilst therefore the absence of present intention to prosecute proceedings is not enough to constitute an abuse of process, without the additional absence of known valid grounds for a claim, the latter carries with it, as a matter of necessity, the former. If a claimant cannot do that which is necessary to prosecute the claim by setting out the basis of it, even in a rudimentary way, a claimant has no business to issue a Claim Form at all "in the hope that something may turn up". The effect of issuing a Writ or Claim Form in such circumstances is, so the plaintiff/claimant hopes, to stop the limitation period running and thus deprive the defendant of a potential limitation defence. The plaintiff/claimant thus, unilaterally, by its own action, seeks to achieve for itself an extension of the time allowed by statute for the commencement of an action, even though it is in no position properly to formulate a claim against the relevant defendant. That must, in my judgment, be an abuse of process and one for which there can be no remedy save that of striking out the proceedings so as to deprive the claimant of its putative advantage. The illegitimate benefit hopefully achieved can only be nullified by this means. Whatever powers may be available to the court for other abuses, if this is an abuse, there is only one suitable sanction.

38. The concept, as exemplified by this line of authority, is further reinforced by the terms of CPR 16.2(1) which provides that "the Claim Form must (a) contain a concise statement of the nature of the claim". CPR 22.1(4) provides that the Claim Form must be verified by a statement of truth being "a statement that...the party putting forward the document…believes the facts stated in the document are true".

39. Because of the similarity of the terms of the rule and because the policy underlying it must be the same as for the equivalent rule in the CPR, there is room for reference to authority relating to RSC Order 6 Rule 2. This rule required a Writ to be endorsed either with a statement of claim, or with "a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby". Court of Appeal authority (Lord Denning MR in Sterman v EW & WJ Moore[1970] 1 QB 596) held that the word "or" in that Rule was conjunctive so that it was necessary to state both the nature of the claim and the relief or remedy required. The relevant commentary in the RSC which was the result of an earlier Court of Appeal decision in Marshall v London Passenger Transport Board [1936] 3 AER 83, provided that "a concise statement of the nature of the claim" meant that, where the claim arose out of a contract, the endorsement should give details of the relevant contract and where the claim arose out of a tort it should give the date and place of the occurrence and the nature of the tort alleged. It is necessary to at least give some idea or indication of the duty which it is alleged the defendant has failed to perform.

40. Although defectively endorsed Writs could be cured by subsequent statements of claim in the ordinary way, such cure depended upon the plaintiff having a known genuine cause of action at the time of the issue of the Writ and the irregularity merely being the failure properly to set it out. As appears from the decisions discussed earlier, that principle is of no application where the plaintiff had no known basis for making the claim at the time when the Writ was issued.

41. In my judgment therefore if Nomura, at the time of issuing its Claim Form, was not in a position to do the minimum necessary to set out the nature of the claim it was making, it would be seeking an illegitimate benefit, namely the prevention of further time running under the Limitation Acts for a claim which it could not properly identify or plead. That would be an abuse of the process of the court. Insofar as it sought to make any claim in contract, it would be necessary for it to be able to identify the particular contract and the alleged breach. In the case of any breach of tortious duty, it would be necessary for it to be in a position to identify the essential acts or omissions which constituted the breach of duty, negligence or negligent misstatement. For the purposes of negligent misstatement, Nomura would have to be able to identify what advice or information was inaccurate and what was given negligently, at least in essence. If Nomura was not in a position to do this, it was not in a position properly to issue a claim, since it could not have proceeded properly to plead Particulars of Claim without the off chance occurring that something would turn up. In such circumstances it could have no present intention to pursue a claim since it had no sufficient idea of the claim it wished to pursue.”

“…it is apparent, to my mind, although it is not requisite to state the precise nature of the claim made by the plaintiff, that the plaintiff must by the indorsement of his writ…give to the defendants some general idea of the nature of his claim. It is not sufficient for the plaintiff to indorse his writ with a claim for damages…Nor, in my opinion, is it sufficient for a plaintiff to indorse his writ with a claim for damages for breach of contract or damages for negligence without giving the defendant some indication of the contract which he, the plaintiff, alleges has been broken or some idea of the duty which he says the defendant has failed to perform. In the present case…the writ merely claims damages for negligence. That, in my opinion, is insufficient, but the difficulty occasioned by that is at once remedied very shortly afterwards, by the statement of claim being delivered by the plaintiff, in which he made clear that the negligence he was suing on was negligence…in not driving the tramcar with reasonable care…”

(a) Only “brief” details are required to describe “the nature of the claim”, although the remedy sought needs to be spelt out; a statement of value (not more than or more than £X) needs to be provided.

(b) Whilst it is open to a claimant to be specific and restrictive in what it, he or she seeks to claim by way of the “Brief Details of Claim”, it is not necessary.

(c) The Court should have regard to the wording overall to determine what is covered by the wording of the Brief Details to see whether and to what extent the rule has been fulfilled. The Court should not be prescriptive about what is required in terms of the words used by the claimant; all that is prescriptive is in the wording of the rule.

(d) In construing or understanding what was intended by the wording used, the Court can and where necessary should have regard to the context or “factual matrix” (as per Arden LJ in Evans) in which the Claim has been prepared. It is legitimate to have regard to the Particulars of Claim, particularly if served promptly at or about the time of the issue and/or service of the Claim. It is legitimate to have regard to correspondence and applications sent or served at or about the same time as the Claim. Indeed, it may be legitimate to look further back in time for exchanged communications between the parties, albeit that caution may need to be exercised to limit this exercise only to such communications which clearly demonstrate what was intended to be the subject matter of the proceedings which followed.

Decision

Issue (a): The Claimant had such knowledge as at 28 June 2013. I leave over the issue (if there is truly any relevant issue) as to whether such knowledge can be considered to have been or should be treated as having been received the day before.

Issue (b): No.

Issue (c): No.

Issue (d): No.