Lancashire County Council v Brookhouse Group Limited
[2024] EWCA Civ 717
Brookhouse Group Limited v Lancashire County Council
17 November 2023
[2023] EWHC 2921 (TCC)
High Court
A company sued a council for awarding a big building contract without a fair competition. The council said the company waited too long to complain. The judge ruled the company's complaint was on time because the special, shorter time limit for complaints only applies if there *was* a competition and the losing company was given reasons why they lost. There wasn't one here, so the longer time limit applied.
Key Facts
- •Brookhouse Group Limited (Claimant) and Lancashire County Council (Defendant) dispute a development contract awarded by the Defendant to Maple Grove Developments Limited (MGD).
- •The Claimant challenges the contract's validity under the Public Contract Regulations 2015 (PCRs), arguing it was awarded without a competitive tendering process.
- •The Defendant argues the contract falls under a pre-existing framework agreement, eliminating the need for further tendering and that the claim is statute-barred due to the Claimant exceeding the 30-day limitation period.
- •Both parties filed applications to strike out parts or all of the other party's claims under Civil Procedure Rules (CPR).
Legal Principles
Test for strike-out application concerning limitation: A claim should not be struck out unless it can be demonstrated sufficiently clearly that it is bound to fail, as a matter of law and/or fact.
Sita UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA 156, Tesco Stores Ltd v. Mastercard Incorporated [2015] EWHC 1145 (Ch), Arcadia Group Brands Ltd & Ors v Visa Inc [2014] EWHC 3561 (Comm), Easy Air Limited v Opal Telecom Limited [2009] EWHC 339 (Ch)
Interpretation of Regulation 93(5) PCRs: The 30-day limitation period applies only where a competition has been carried out, and reasons for rejection are provided to an unsuccessful tenderer or candidate.
Alstom Transport v. Eurostar International [2011] EWHC 1828 (Ch)
Statutory interpretation: The primary source of meaning is the statutory text itself. External aids play a secondary role and do not displace a clear and unambiguous meaning.
R(O) v. SSHD [2023] AC 255
Public Contract Regulations 2015 (PCRs) – Regulations 2, 26, 49, 51, 55, 86, 87, 88, 91, 92, 93, 97, 98, 99, 101
Public Contract Regulations 2015
Outcomes
The Defendant's Limitation Defence (paragraphs 21-25 of the Defence) was struck out.
The court found that the Defendant's reliance on Regulation 93(5) of the PCRs was misplaced because no competitive tendering process had taken place. The information provided to the Claimant did not constitute 'relevant reasons' under Regulation 55(2). The claim was not statute-barred.
The Defendant's counter-application for strike-out and summary judgment was dismissed.
The court found the Limitation Defence lacked realistic grounds for defeating the claim.
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