Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council
|England & Wales
|LORD JUSTICE BINGHAM,LORD JUSTICE STOCKER,LORD JUSTICE FARQUHARSON
|25 May 1990
|Judgment citation (vLex)
| EWCA Civ J0525-1
|Court of Appeal (Civil Division)
|25 May 1990
 EWCA Civ J0525-1
Lord Justice Stocker
Lord Justice Bingham
Lord Justice Farquharson
1983 B No.5763
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
(HIS HONOUR JUDGE JOLLY, Sitting as a Deputy High Court Judge)
Royal Courts of Justice
MR. ROGER TOULSON Q.C. and MR. HUGH DAVIES (instructed by Mr. John B. Turner, Solicitor, Blackpool, FY1 1NB) appeared on behalf of the Defendants (Appellants).
MR. MICHAEL SHORROCK Q.C. and MR. PAUL SYLVESTER (instructed by Messrs. Berg & Co., Solicitors, Manchester M3 7LP) appeared on behalf of the Plaintiffs (Respondents).
In this action the plaintiffs ("the Club") sued the defendants ("the Council") for damages for breach of contract and common law negligence. It was in issue between the parties whether there was any contract between them and whether the Council owed the Club any duty of care in tort. These issues of liability came before His Honour Judge Jolly sitting as a judge of the Queen's Bench Division and he decided them both in favour of the Club (all questions of quantum being deferred). The Council appeal, contending that the judge was wrong on each point.
The Council own and manage Blackpool Airport. For purposes of raising revenue the Council have made it a practice to grant a concession to an air operator to operate pleasure flights from the airport, no doubt largely for the entertainment of holiday-makers. The Club (one of whose directors was and is a Mr. Bateson) tendered for and were granted this concession in 1975 and again in 1978 and again in 1980.
In 1983 the most recently granted concession was due to expire. The Council accordingly prepared an invitation to tender. This was sent to the Club and to six other parties, all of them in one way or another connected with the airport. This document was headed and began as follows:
"The Council do not bind themselves to accept all or any part of any tender. No tender which is received after the last date and time specified shall be admitted for consideration.
The concession will be for a period of three years commencing on the 1st day of April 1983. Tenderers should note that the concession is NOT to be a sole concession and the Council may accept all or any tenders submitted in respect of each class of aircraft.
Tenderers may tender for both classes of aircraft or one only.
Scucessful tenderers will be required to execute an Agreement prepared by the Town Clerk for the time being of the Council. A specimen form of agreement may be examined on application to the Airport Director and it will be assumed that tenderers are aware of the covenants and conditions contained therein.
I/We the undersigned hereby make the following offers for the privilege of operating pleasure flights from Blackpool Airport for a period of three years from the 1st day of April 1983."
There then followed provision, with blank spaces to be filled in by the tenderer, for alternative offers for different sizes of aircraft and for the naming of willing sureties. The invitation then continued:
"This form of tender, fully completed and enclosed in the envelope provided endorsed 'TENDER FOR PLEASURE FLYING CONCESSION' and not bearing any name or mark indicating the identity of the sender, is to be received by
THE TOWN CLERK
P.O. BOX 11
BLACKPOOL FY1 INS
not later than 12 o'clock noon on Thursday 17th March 1983.
PLEASE NOTE THE ATTACHED NOTICE IN RED"
"The attached notice in red" was an extract from the Council's Standing Orders in these terms:
The Council's Standing Orders with respect to Contracts include the following provisions:—
1. Tenders shall be submitted in a plain, sealed envelope bearing the words 'Tender……….(followed by the subject to which it relates)…….' and shall not bear any name or mark indicating the identity of the sender, and
2. No tender which is received after the last date and time specified shall be admitted for consideration. STRICT COMPLIANCE WITH THESE STANDING ORDERS is REQUESTED
The envelope provided to the selected tenderers was printed and addressed to the Town Clerk at the post office box number given in the invitation. The envelopes also bore the printed words "Tender for" and "Due in" to which the Council's employees had added in manuscript "Pleasure Flying Concession" and "12 noon Thursday 17th March 1983."
Only three of the selected tenderers responded to the Council's invitation. One put in a low bid for the lighter size of aircraft only. The second, Red Rose Helicopters Limited, submtited a larger bid, also for the lighter size of aircraft.
Mr. Bateson for the Club filled in the form of tender, submitting a bid substantially larger (on its face) than the others' for the lighter size of aircraft, and also submitting a bid for the heavier size. He put it in the envelope provided by the Council, took it to the Town Hall and posted it in the Town Hall letter box at about 11.00 am on Thursday 17th March. This was about an hour before the advertised deadline expired. The Town Clerk's staff were supposed to empty the letter box each day at 12 o'clock. They failed to do so. The Club's tender accordingly remained in the letter box until the next morning, 18th March, when the letter box was next opened. The envelope was then taken out and date-stamped 18th March 1983 by the Town Clerk's department. At some time thereafter the word "LATE" was written on the envelope, because that is what the Club's tender was mistakenly thought to be.
On 29th March 1983 the chairman of the Council's relevant committee considered which tender to accept. The Club's tender had been recorded as being late, and was in accordance with the Council's standing orders excluded from consideration when the chairman made his decision. He accordingly made his choice between the two tenders believed to be in time, recommending acceptance of Red Rose Helicopters' tender, no doubt because it was bigger.
An indication that its tender was accepted was given to Red Rose Helicopters. The Town Clerk wrote to the Club to say that its tender was not received until the 18th March and was therefore received too late for consideration. Mr. Bateson replied that the Club's tender had been delivered to the Town Hall before the deadline. "You will appreciate", he wrote, "that this matter is of some considerable importance to our company". The Council evidently made enquiries and established that the Club's tender had been received in time.
On 30th March the Airport Director accordingly wrote to Mr. Bateson saying "Due to an error in the administration of the terms of tender for the above Concession I regret to inform you that the tenders recently received have been declared invalid." Amended tender documents were accordingly sent for a re-scheduled tendering procedure. In a letter of 31st March the Town Clerk wrote to the Club (and, I infer, other potential tenderers) outlining the facts summarised above and concluding
"I trust that you will appreciate that the only course of action open to us is to go through the formalities of seeking tenders for a second time."
It seems that as a result of this second invitation further tenders were submitted. At this stage, however, Red Rose Helicopters, having taken legal advice, contended that its earlier tender had been accepted and that the Council were contractually bound to proceed on that basis. Proceedings were threatened. The Council then decided to disregard the tenders received in response to its second invitation and to honour the contract made with Red Rose Helicopters.
The contractual argument hinges on paragraph 4 of the Club's amended statement of claim in which it was alleged that the Council "warranted that if a tender was returned to the Town Hall, Blackpool before noon on Thursday the 17th March 1983 the same would be considered along with other tenders duly returned when the decision to grant the concession was made." Mr. Shorrock QC for the Club declined to put the contractual term contended for in any other way, save that he accepted that "when" might with advantage be read as "when or if." it was for breach of this warranty that damages in contract were claimed.
Mr. Bateson was the only witness called. His examination in chief included this passage:
"(Q)……when you submitted your tenders before noon on 17th March, did you believe or not that the tender would be considered along with others that had been submitted? (A) We were under no doubt that it would be considered as other tenders had been considered in previous years.
(Q) If you had known or thought that a tender submitted by you would not have been considered, would you have bothered to tender in the first place? (A) It would have been very questionable whether to bother to tender, but we would probably have pursued the matter beforehand."
Mr. Bateson was not cross-examined.
The learned judge resolved the contractual issue in favour of the Club, holding that an express request for a tender might in appropriate circumstances give rise to an implied obligation to perform the service of considering that tender. Here, the Council's stipulation that tenders received after the deadline would not be admitted for consideration gave rise to a contractual obligation (upon acceptance by submission of a timely tender) that such tenders would be admitted for consideration.
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