A question of timing

The High Court has recently rejected a council’s bid to have a procurement challenge thrown out over time limits. Claire Booth reports.

In Heron Bros Ltd v Central Bedfordshire Council [2015] EWHC 604 the council applied to strike out HB's procurement challenge on the ground that the claim form was not served within the prescribed time limit.

HB was claiming damages and a declaration of ineffectiveness in respect of the award of a contract by the council for the construction of a leisure centre. HB was notified that the contract had been awarded to another bidder on 26 September 2014.

On 31 October 2014 its agent sent the council unsealed copies of its claim form and Particulars of Claim by recorded delivery at the same time as it sent the claim form and Particulars of Claim to the court for sealing. The court issued the claim on 3 November and posted it to HB for service on 10 November. The claim form and Particulars of Claim were deemed to be served on 18 November 2014, being the second business day after they were posted.

Reg.47F of the Public Contracts Regulations 2006 provides that the claim form must be served on the contracting authority within seven days after the date of issue, and there is no power to extend the time for service of the claim form.

The court held, refusing the application, that there was a potential conflict between sub-paras.(1) and (5) of Reg.47F that was profoundly unsatisfactory and so, adopting a purposive approach, the court would construe the regulation as meaning that valid service was achieved when the relevant step mentioned in CPR 7.5 (1) was completed. Provided that was done within the seven-day period, the requirement of the regulation was met.

HB did serve the claim form within seven days of starting proceedings as reg.47F(1) required, but it did not serve it in accordance with the rules of court in that it had not been sealed and did not bear the claim number, which amounted to an irregularity.

However, neither of these shortcomings deprived the defendant of any knowledge of the nature of the claim against it or of the fact that proceedings had been or were about to be started.

The purpose of the tight time limits in the Regulations was to enable the parties to procurement disputes to know exactly where they stood at the earliest opportunity. Since there was a clear failure by the TCC Registry to return the documents promptly, it would not be right for the court to decline to cure the irregularity notwithstanding the fact that the problem was brought about in perhaps equal measure by the failures of the agent.

In all the circumstances, it was fair and proportionate, as well as being in accordance with the overriding objective of the CPR, to cure the irregularity so that these proceedings could be regarded as having been properly brought. The application to strike out the claim failed.

Claire Booth is an Associate – Professional Support Lawyer at Bevan Brittan. She can be contacted on 0870 194 1705 or This email address is being protected from spambots. You need JavaScript enabled to view it..