Citysprint UK Ltd v Barts Health NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 01 October 2021 |
| Neutral Citation | [2021] EWHC 2618 (TCC) |
| Docket Number | Case No: HT-2021-000291 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2021] EWHC 2618 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
TECHNOLOGY AND CONSTRUCTION COURT (QB)
Rolls Building
Fetter Lane
London, EC4A 1NL
THE HONOURABLE Mr Justice Fraser
Case No: HT-2021-000291
Ligia Osepciu (instructed by FG Solicitors Ltd) for the Claimant
Ewan West (instructed by Bevan Brittan LLP) for the Defendant
Hearing Date: 27 September 2021
In these proceedings each party advances a number of different applications, but they are all connected to, and aimed at, the same issue or groups of issues. They all concern whether service of the claim form and Particulars of Claim were performed in accordance with the rules, and hence regularly. The Defendant is an NHS trust and wished to award a contract (the “Contract”) for the provision of pathology transport and logistics services to the East South East London Pathology Network (the “Partnership”), which is formed of three NHS Trusts: the Defendant, Homerton University Hospital NHS Foundation Trust (HUH), and Lewisham and Greenwich NHS Trust (LGT). The Claimant is the incumbent provider of pathology transport and logistics services to the Defendant under a contract that is due to expire on 30 September 2021. The Claimant wished to participate in the ongoing provision of these services and accordingly participated in the competitive tender for the Contract. This was governed by the Public Contracts Regulations 2015 (“PCR 2015”). However, by letter of 17 June 2021, the Claimant was informed that its bid had been unsuccessful that the Contract would instead be awarded to a rival, e-Courier.
The Claimant wished to bring a procurement challenge under PCR 2015. It is the way that this was done, or purported to be done, that lies at the heart of these applications. Essentially, the Defendant's case is that the Claimant failed to issue and serve these proceedings within the time, and by the methods, permitted by PCR 2015 and/or the Civil Procedure Rules, and seeks declarations to this effect. Amongst other things, this will have the result that the automatic suspension imposed upon the Contract award to e-Courier will be lifted, and these proceedings will not proceed and will be brought to an end. The Claimant seeks to minimise the non-compliance or failures, and have sufficient extensions granted, or alternative ways of serving proceedings granted or rectified by the court, such that the proceedings can continue as though they were validly issued in time and served in accordance with the rules.
Some factual narration is required in order to put these applications into their proper context. Upon being notified of its lack of success in the Standstill Letter of 17 June 2021, the Claimant notified the Defendant that it was not content with the outcome of the competition. Correspondence ensued, and at that point the Claimant was acting for itself. Bevan Brittan LLP (“BB LLP”) were and are acting for the Defendant, and on 15 July 2021 a Standstill Agreement was entered into between the parties to give them time to consider matters. As those involved in procurement challenges know, the time for issuing proceedings is very short and a Standstill Agreement was no doubt sensible.
Its effect is agreed and by reason of its terms, any claim form had to be issued on or before 27 July 2021. That was the last day this could be done under the terms of the Standstill Agreement. This was five days after a substantive response was received to a particular letter written by the Claimant. That date is agreed as being the last day upon which the Claimant could have issued proceedings under PCR 2015. On that day, the following happened. The Claimant asked BB LLP if it was instructed to accept service of proceedings on behalf of the Defendant, and stated its intention to issue proceedings. The Claimant also must have instructed solicitors, and the Claimant's solicitors (“FGS”) filed the claim form with HMCTS E-Filing Service at 1532 hours on 27 July 2021, and paid the court fee requested of £10,000. The e-filing response received from the court stated “The following electronic filing(s) were successfully submitted.” Under Filing Type on that response, the response states that the electronic filing in question was “Claim Form (Part 7)”. At 1727 hours, an unsealed copy was sent to BB LLP by FGS by email.
As it happens, the claim form actually sought both monetary and non-monetary relief. Accordingly, the fee that was paid electronically by FGS when it lodged the document electronically using the E-Filing Service was £528 too little. FGS had paid the £10,000 fee generated by the system. The actual fee should have been £10,528. The court staff thereafter (on 29 July 2021) sent an email to FGS stating that a further £528 was due, and asking for details of the PBA Account from which this could be taken. This is a type of central account used by solicitors, which permits the court to debit it for fees if the solicitors give that authority, and it is widely used. That email was sent at 1517 hours, so fewer than 24 hours after FGS had submitted the document online and paid the sum of £10,000.
As it happens, FGS does not have a PBA Account. The trainee solicitor acting on the case contacted the court immediately, explained this, and an agreement was reached that the £528 would be paid to HMCTS by cheque. The trainee took a detailed file note of her conversation with the court staff, and checked with the court staff that the non-payment of this part of the overall fee would not invalidate the issue of the claim form. She also explained to the court staff that the claim form had been lodged on the last day for issue. She was assured all was well. After receipt of the £528, the sealed claim form was uploaded by the court to the CE-file system. Although under “Approved Date” the date that appears on CE-file is 29 July 2021, which is the date of the conversation I have referred to at [5] above, the £528 was received by the court on 30 July 2021. The claim form itself has the electronic seal upon it, applied by the E-Filing system the day that the submission was checked by the Issue Team as being in order (which is what generates the e-filing response saying a document has been “successfully submitted”). That electronic seal is clearly dated 27 July 2021.
I pause here to record that one of the many witness statements on these applications is from the trainee solicitor who was involved in filing the claim form originally, and remedying the £528 issue that I have recited in paragraph 6. She was subject to some criticism in a consequential witness statement by Ms Heard for BB LLP, and rather less by Mr West in his oral submissions. I wish to make it clear that I do not consider any of the criticism made of her to be justified. When she used the E-Filing Service to lodge the claim form, the system requested a fee of £10,000. That was what was paid electronically. As she explains in her evidence, and I accept, there was no ability for FGS to pay a higher fee at that point in the process. Although the claim for that fee was generated automatically, and might have been generated in a different amount by the system, had she ticked a different combination of drop-down boxes, I am not persuaded that she did anything wrong, or was at fault. Even if she was — and this is putting it at its very highest for the Defendant — this is exactly the sort of minor mistake which can be corrected administratively, as indeed corrected it was. It does not invalidate the issue of the claim form, a point correctly explained to her by the court staff when she understandably asked that very question of them on 28 July 2021. She made a detailed and careful file note of this conversation and has exhibited it to her evidence. The way this has been seized upon by BB LLP is somewhat regrettable.
On 28 July 2021, BB LLP sent FGS a letter by email which acknowledged receipt of the letter of 27 July 2021, confirmed receipt of the unsealed claim form (which had been sent the evening before), and provided confirmation that BB LLP were instructed to accept service of proceedings. It also stated that service of the sealed claim form and Particulars of Claim were awaited, and provided a general reservation of rights.
FGS then calculated the 7 days within which service of both the claim form and the Particulars of Claim is required, as commencing from 29 July 2021 (which appears under “Approved Date” on the CE-file system) and not the date on the electronic seal itself. FGS therefore calculated that it had until 5 August 2021 to serve the claim form and particulars, rather than the date of 3 August 2021 which a calculation commencing from 27 July 2021 would have provided. FGS therefore served the claim form on 5 August 2021 by serving upon BB LLP (as it was required to do, given BB LLP had stated it would accept service of proceedings) but did so using email. It did not ask the necessary questions under Practice Direction 6A permitting it to do so. Nor do any of the emails from BB LLP state (in the footer, or anywhere) that email service is acceptable to BB LLP. This is not mentioned.
Practice Direction 6A paragraphs 4.1 and 4.2 specify the requirements necessary for service by email. This is set out in CPR Part 6.3(1)(d), which states that a claim form may be served by electronic means provided this is done “in accordance with Practice Direction 6A.” Accordingly, the Defendant maintains that where Practice Direction 6A is not complied with, a claim form may not be served by electronic means.
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