Challenges to withdrawn contract award decisions
Joseph Barrett analyses High Court guidance on challenges to withdrawn contract award decisions.
In Ambulance Transfers Limited v KCH NHS Foundation Trust [2023] EWHC 1266 (TCC) the High Court has provided useful guidance on the approach public bodies are entitled to take when dealing with legal challenges to a decision or process which they have decided should be withdrawn or abandoned.
The Claimant, ATL, issued proceedings challenging a contract award decision relating to a substantial NHS contract for certain patient transfer services.
The Defendants reviewed the award process and formed the view that there was a concern that a Court might subsequently hold that the audit trail for the process was not detailed enough. Accordingly, the Defendants decided that the contract award decision should be withdrawn, with further consideration to follow as to next steps (eg whether a re-evaluation should be conducted).
In order (inter alia) to seek to avoid substantial costs, the Defendants did not plead detailed responses to ATL’s detailed scoring complaints in the Defence. Instead, the Defence referred to the fact the award decision was withdrawn, averred that this rendered the claim academic or otherwise meant that no relief should be granted, and explained that in the circumstances it was not proportionate or appropriate for the Defendants to plead further.
The Defendants invited ATL to withdraw its claim. ATL refused to do so instead contending that it would pursue a substantial damages claim notwithstanding that the award decision was withdrawn). ATL also asserted that because the Defendants had not pleaded detailed rebuttals to its scoring complaints the Defendants should be taken to have admitted that those allegations of breach of duty were well-founded.
The Defendants explained that they disagreed with these suggestions and in light of ATL’s stated intention to pursue a damages claim applied to amend the Defence to add further responses to the detailed scoring complaints.
Perhaps surprisingly, ATL refused to consent to the amendments arguing that they: (i) constituted an impermissible attempt to retract ‘admissions’, and (ii) should be refused as ‘late’ amendments.
The Court rejected all of ATL’s objections and granted permission for the amendments. Relevantly, the Court held that:
(i) The approach adopted by the Defendants in pleading their Defence was ‘entirely sensible’.
(ii) The Defence could not be construed as admitting any alleged breaches of duty.
(iii) In circumstances where the amendments were proposed near the outset of the proceedings, before even the first CMC, the application could not sensibly be described as ‘late’.
ATL was required to pay the costs of the amendment application.
The Judgment provides useful guidance regarding how a public authority may respond to a legal challenge in circumstances where it is decided a decision or process should be withdrawn or abandoned, and the approach to pleading Defences to legal challenges in this context.
A copy of the Court’s judgment can be found here.
Joseph Barrett of 11KBW was counsel for the successful Defendants (instructed by Ed Williams of DAC Beachcroft LLP). The Claimant was represented by Rodri Williams KC of Keating Chambers (instructed by Hill Dickinson LLP).
