Alstom Transport UK Ltd v London Underground Ltd and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Technology and Construction Court)
JudgeThe Hon. Mr Justice Coulson
Judgment Date15 June 2017
Neutral Citation[2017] EWHC 1406 (TCC)
Docket NumberCase No: HT-2017-000117
Date15 June 2017

[2017] EWHC 1406 (TCC)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

Royal Courts of Justice

Rolls Building, Fetter Lane, London, EC4A 1NL

Before:

The Hon Mr Justice Coulson

Case No: HT-2017-000117

Between:
Alstom Transport UK Limited
Claimant
and
(1) London Underground Limited
(2) Transport for London
Defendants

Ms Sarah Hannaford QC and Ms Emma Healiss (instructed by Hogan Lovells International LLP) for the Claimant

Mr Jason Coppel QC and Mr Joseph Barrett (instructed by Transport For London) for the Defendants

Hearing date: 26 May 2017

Judgment Approved

The Hon. Mr Justice Coulson
1

INTRODUCTION

1

By proceedings commenced on 11 May 2017, the claimant ("Alstom") seeks to challenge the outcome of a tender process which concluded on 13 March 2017, when the defendants ("LUL") announced an intention to award to Bombardier a contract for the supply of a new traction system for its Central Line fleet. The challenge is made under the Utilities Contracts Regulations 2006.

2

The commencement of the proceedings has operated automatically to suspend LUL's ability to enter into the proposed contract. LUL are seeking to lift that suspension. They wrote to the court on 18 May, urgently seeking a hearing for their application on 26 May, a date that had not been suggested to Alstom. I considered the application on paper and concluded that, since the application was going to be contested, this was an absurdly short timetable. Instead I fixed a two day hearing for 6 and 7 June 2017 which I thought was likely to be the soonest available dates that the parties could be ready for the suspension application. LUL did not make me aware of any other communications between the parties that might be relevant to the timetable.

3

In fact, Alstom had been seeking specific disclosure of various documents for some time and LUL had refused to provide them. Thus, on 19 May 2017, the day after I fixed the hearing of the application to lift the suspension, Alstom made their own application for specific disclosure. A large number of documents were sought. Alstom sought a date for that application to be heard in advance of the hearing on 6/7 June and/or an adjournment of that date to ensure that the application to lift the suspension came after the application for specific disclosure.

4

In making their respective applications to the court, there was no liaison between the parties of the kind that I would have expected. Instead, both parties wrote unilaterally to the TCC Registry and followed that up with numerous telephone calls in which they each sought to do little more than jockey for position. In the end, because of the staff time that was being taken up by this attritional process, I was obliged to fix a hearing on Friday 26 May 2017 to sort out the directions and, in particular, the sequence in which the applications should be heard. This would have been quite unnecessary if the parties had behaved sensibly and discussed between themselves at the outset the appropriate directions.

5

At the hearing on 26 May, the principal issue was whether the court should hear the application for specific disclosure before the application to lift the suspension. Alstom said that they would be unfairly treated if the application to lift the suspension was heard before they had seen all the relevant documents sought in their own application. LUL said that there was no reason to alter the date of 6/7 June for the hearing to lift the suspension and stressed the urgency of this application. Bombardier, who had written to the court helpfully setting out their position as the successful tenderer, also indicated that they wanted the application to lift the suspension to be heard as soon as possible.

6

At the conclusion of the hearing, I ruled that the application for specific disclosure should be heard on 6 June 2017, with the application to lift the suspension following, in front of the same judge, on 15 June. On the material available to me, I concluded that it was appropriate for the application for specific disclosure to be heard in advance of the application to lift the suspension. I gave brief oral reasons for that conclusion but, because the parties had referred to a number of authorities, and because the proper interplay between these two kinds of application regularly recurs in public procurement work, I said I would provide my full reasons in writing. Those are set out in this Judgment.

2

THE RELEVANT AUTHORITIES

7

In Pearson Driving Assessments v DVLA [2013] EWHC 2082 (TCC) Akenhead J concluded that, on the facts of that case, a specific disclosure application did not need to take place before the hearing of the application to lift the suspension. He said:

"27. …Broadly, I form the view that this it is not really fair, just or necessary for there to be this disclosure prior to the Regulation 47(H) hearing. I have formed the view that there is a concern that there may be documents which may well assist the claimant's case ultimately and there is a concern that the court might be bamboozled which I am sure would not be the desire of any party in this case.

28. The court might be bamboozled into deciding the Regulation 47 application on the basis of controversial facts, but if the facts are controversial and they are challenged and it is only through such facts that the threshold as to whether there is a serious issue to be tried can be considered, then in those circumstances the claimants can rest assured that the court will not, and I consider cannot, make a decision on that aspect of the case.

29. Miss McCredie QC argues however, that because there may be such further documents, in effect her client would like to have them, because if they were to show that her client's case was very strong, not just a serious issue to be tried, but was a very strong case, that could be deployed on the balance of convenience. In this respect, I am more persuaded overall by the general submissions put forward by Mr Bowsher QC. The American Cyanimid approach is one that is well understood in the English and Welsh courts and it is based usually on uncontroversial facts or pleaded facts by the claimant or a combination of both. One of the reasons for Regulation 47(H) is to give the employing party the opportunity to come to court as soon as is reasonably necessary to seek to have the suspension lifted. There is a policy consideration here which involves consideration as to whether in effect all the steps necessary for the ultimate hearing of the case need to be gone through virtually, before such an application can be made."

8

I should make plain that I do not agree with Mr Coppel's submission that this passage sets out a principle that, in the usual case, an application for specific disclosure will not be heard in advance of an application to lift the suspension. This was an ex tempore judgment, and it related to the particular facts of the case in question. Moreover, it appears that one of the main reasons for the judge's conclusion that the application for specific disclosure did not need to be listed in advance of the application to lift the suspension was because, again on the facts of that case, the claimant was going to be able to show a serious issue to be tried without the need to see any further documents. Establishing that there is a serious issue to be tried is of course, one of the critical elements of any contractor's resistance to an application to lift the suspension.

9

On this topic, Akenhead J said at paragraph 18:

"18. Now I am not going to decide the Section 47H application now, but it does seem to me that there is more than adequate ammunition and evidence to support the claimant's argument, at least, that there is a serious issue to be tried in relation to this first head of claim. Whether that is the final decision or not, I do not know, because I have not heard all the argument, but there is clearly something there to support the claimant. It is clear just on the face of the pleading, let alone anything else."

It is unsurprising, therefore, that the judge concluded that there was no need for the specific disclosure application to be heard first. That application would generate documents that went only to the aspect of the suspension hearing concerned with whether or not there was a serious issue, so if the contractor was going to be able to establish a serious issue to be tried in any event, the relevance of any other documents fell away. Moreover, at paragraph 34 of his judgment, Akenhead J confirmed that, if justice could not be done on the suspension hearing without sight of the relevant documents, the suspension hearing would have to be adjourned.

10

In Bristol Missing Link Limited v Bristol City Council [2015] EWHC 876 (TCC), I said:

"23. It is a question of balancing the interests of justice against the background facts of the particular case. Contracting authorities have to work out, in fairly short order, whether, having provided the unsuccessful tenderer with the statutory minimum information, they are going to retain all other documents relating to the evaluation and the successful tenderer's bid, and let the unsuccessful tenderer take his own course; or whether they are prepared to be helpful and, providing that the confidentiality of the information is protected, offer to provide as much information about the process as they can. In my view, however, what the authority should not do is to try and have it both ways. It ought not to refuse requests to provide documents relating, say, to the evaluation of the successful tenderer's bid, or the bid itself, but then, on the application to lift the suspension, provide for the first time evidence about the process or the...

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