Cemex UK Operations Ltd v Network Rail Infrastructure Ltd Pcm Rail.One AG (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Coulson |
| Judgment Date | 08 September 2017 |
| Neutral Citation | [2017] EWHC 2392 (TCC) |
| Docket Number | No. HT-2017-000189 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 08 September 2017 |
[2017] EWHC 2392 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT
Rolls Building
The Hon Mr Justice Coulson
No. HT-2017-000189
and
Mr M. Bowsher QC and Mr E. West (instructed by Gowling WLG (UK) LLP) appeared on behalf of the Claimant.
Ms S. Hannaford QC and Ms E. Healiss (instructed by Addleshaw Goddard LLP) appeared on behalf of the Defendant.
Ms F. McCredie QC (instructed by Morrison & Foerster (UK) LLP) appeared on behalf of the Interested Party.
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INTRODUCTION
The applications currently before the court arise out of a procurement challenge brought by the claimant, CEMEX UK Operations Limited ('CEMEX'), against the decision dated 27 th June 2017 of the defendant, National Rail Infrastructure Limited ('NR'), to award a major contract concerning the manufacture and supply of railway sleepers to PCM RAIL.ONE AG ('RAIL.ONE').
CEMEX sent a letter before claim on 5 th July to which NR replied on 12 th July. The parties agreed that a contract would not be placed with RAIL.ONE until 4.00 p.m. on 18 th July and, on that day, CEMEX issued its claim form that had the effect of automatically suspending the contract. NR have subsequently applied to lift the suspension.
The applications for determination now are:
(a) The application by RAIL.ONE to be named as an interested party for the purposes of this hearing and the application to lift the suspension currently due to be heard on 22 nd September;
(b) The application by CEMEX dated 25 th July for an extension of time to serve the particulars of claim until a date after the provision of further documents by NR; and
(c) The application by CEMEX dated 28 th July for specific disclosure from NR.
In order to avoid argument about whether the disclosure application should be heard before the application to lift the suspension (see Alstom Transport UK Ltd v London Underground Ltd & Anor [2017] EWHC 1406 TCC), the parties have sensibly agreed that the suspension application will be heard in two weeks' time, so that if there are any documents to be disclosed, that can happen in advance of the suspension hearing.
For reasons which will become apparent below, I shall deal with those three applications in the order that I have set them out above. There is one final point that should be made at the outset. In this procurement exercise, RAIL.ONE won the contract because theirs was the lowest price. In the somewhat convoluted way in which these things are recorded, that gave them a score of 100 percent. The second-place tenderer was not CEMEX. It was another company, X, who was given a score on price of 92 percent. CEMEX came third, so were therefore the last of the three tenderers with whom NR were negotiating. Their score was 82 percent. Thus, as both Ms Hannaford and Ms McCredie pointed out, even if CEMEX's challenge was successful, they would not be awarded this contract. That is highly relevant to causation and therefore the potential arguments that might arise on the suspension hearing. It is only part of the background of the current applications.
THE POSITION OF RAIL.ONE
RAIL.ONE's bid was based on a carousel system of sleeper manufacture. The bids of both X and CEMEX were based on a more conventional long-line system of manufacture.
The documents now sought by CEMEX by way of disclosure comprise significant parts of RAIL.ONE's technical bid. RAIL.ONE says that these documents are highly confidential because they go to their proprietary system of manufacture. They vehemently object to disclosure of the documents into a confidentiality ring which, on CEMEX's case, would include two technical advisors who have so far refused to sign an undertaking in relation to non-participation in future procurements. RAIL.ONE seeks to be formally named as an interested party and to make representations at both this hearing and the forthcoming suspension hearing.
Neither CEMEX nor NR objected to RAIL.ONE making submissions on the applications before me yesterday, although CEMEX has reserved its position in respect of RAIL.ONE's entitlement to be heard at the suspension hearing. CEMEX also says that because this is not a judicial review application, RAIL.ONE cannot technically be joined as an interested party.
The new TCC guide for public procurement disputes makes plain that a party in the position of RAIL.ONE can become an interested party. I consider that on the facts that I have already outlined, RAIL.ONE should be made an interested party for the purposes of this hearing and the hearing of the application to lift the suspension. It seems to me that thereafter, the matter can be reviewed. Depending on the outcome of the applications before me and the application to lift the suspension, RAIL.ONE may have no wish to be further involved in these proceedings.
THE APPLICATION FOR AN EXTENSION OF TIME TO SERVE THE PARTICULARS OF CLAIM
Background
The claim form was issued and served on 19 th July. Pursuant to the CPR, the particulars of claim had to be served within seven days; that is to say by 25 th July. Having earlier indicated that it would be serving the particulars of claim as required by the CPR (see CEMEX's solicitor's letter of 19 th July) CEMEX changed its mind at the last minute and on 25 th July, it issued an application for an extension of time. The application alleged that until NR "provides specific disclosure of evidence relating to its alleged breaches and/or manifest errors of assessment" CEMEX could not plead full and proper particulars of its claim.
It is extremely unusual for a claimant in the position of CEMEX to refuse to provide its particulars of claim until after the provision of "evidence" by the utility or contracting authority. Although Mr Bowsher suggested that Eurostar v Alstom was such a case, the position there was that Alstom had provided its particulars of claim at the appropriate time and before the injunction hearing. The issue as to documents went to Alstom's desire to plead a fuller case. That is not uncommon and is a very different situation to the present case, where there are no particulars at all.
I consider that CEMEX's application raises an important point of principle and practice in procurement cases and it therefore needs to be considered independently of the precise nature and scope of the documents which are sought in the specific disclosure application. In addition, the application for specific disclosure was issued on 28 th July, namely after the date for the service of the particulars of claim, and there remains at least the theoretical possibility that, if time was not extended in relation to the particulars of claim, the application for specific disclosure itself could become redundant because the action would have been struck out for non-compliance with the CPR. For all these reasons, therefore, it seems to me appropriate to take the application for an extension of time first.
The Applicable Principles
The application is made pursuant to CPR 3.1(2)(a). The court's power to extend the time for compliance with CPR 7.4(2) requires a claimant to serve its particulars of claim "no later than the latest time for serving a claim form." In this case, the claim form was issued on 18 th July. So the latest date for service of the particulars of claim was 25 th July.
The notes in the White Book at paragraph 7.4.3 make plain that:
"An application for an extension may be made either before or after the expiry of the relevant time limit. For commentary on such applications, see paragraph 7.6.8 below."
That paragraph at 431 states that:
"A court considering whether on such an application it should exercise its general discretionary power … to extend time for compliance with any rule (in this case Rule 7.4) should adopt the Rule 3.9 (relief from sanctions) framework ( Price v Price [2003] EWCA Civ 888)."
That is, of course, because if the application to extend time fails, the particulars of claim will be out of time.
It is, of course, right that the fact that an application to extend time is made before the expiry of the relevant time limit is a highly material consideration when the court decides what to do if the extension application is unsuccessful. However, that cannot be a complete answer in every case, otherwise the extension regime could be abused by those seeking more time, whether justified or not.
It should be noted that, in the context of procurement challenges, everything has to be done in accordance with a very tight timetable from first to last. Support for that proposition, if it was in doubt, can be found in the decision of the Court of Appeal in Jobsin Co UK PLC (t/a Internet Recruitment Solutions) v Department Of Health [2001] EWCA Civ...
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Table of cases
...Ltd v Commercial Union Insurance Co plc (1994) 47 Con LR 14 III.17.04 Cemex UK Operations Ltd v Network Rail Infrastructure Ltd [2017] EWHC 2392 (TCC) I.4.58, I.4.69, I.4.75, I.4.80 Cenric Group Pty Ltd v TWT Property Group Pty Ltd [2018] NSWSC 1570 III.7.65, II.9.96, II.13.151 Cenric Group......
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Procurement
...the tender, the contracting authority or utility acted in manifest error: Cemex UK Operations Ltd v Network Rail Infrastructure Ltd [2017] EWHC 2392 (TCC) at [23], per Coulson J. See also NP Aerospace Ltd v Ministry of Defence [2014] EWHC 2741 (TCC); Groupm UK Ltd v Cabinet Oice [2014] EWHC......