Community Care North East v Durham County Council
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr. Justice Ramsey |
| Judgment Date | 29 April 2010 |
| Neutral Citation | [2010] EWHC 959 (QB) |
| Docket Number | Case No: HQ09X01099 |
| Court | Queen's Bench Division |
| Date | 29 April 2010 |
[2010] EWHC 959 (QB)
Before: The Hon. Mr. Justice Ramsey
Case No: HQ09X01099
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Deok Joo Rhee (instructed by Anthony Collins Solicitors LLP) for the Claimant
Michael Bowsher QC, and Ewan West (instructed by Colette Longbottom, Head of Legal and Democratic Services, Durham County Council) for the Defendant
Introduction
By their application Durham County Council (“the Council”) seek to vary the terms of an Order dated 26 March 2009 by which these proceedings by the Claimant, a partnership called Community Care North East (“CCNE”), were stayed. The application raises an issue of the extent to which a Tomlin Order can be varied by the Court and whether such circumstances exist in the current case. At the hearing of the application the Council also raised an alternative contention and sought a declaration as to the effect of the terms of the Tomlin Order.
Background
By a Contract Notice in the Official Journal of the European Union in October 2008, the Council invited tenders in respect of the provision of domiciliary care services for adults, children and young people. The tenders were to provide such services across a number of “zones” in the Council area and a number of care providers would be required for those zones.
The Council sent out a document by way of an Invitation to Tender (“ITT”) setting out the basis of the tender which included a requirement that the tenderers should complete a “Pre-Qualification Questionnaire” (“PQQ”) and provide method statements. In addition there was an interview which formed part of the tendering process. By a notice dated 26 February 2009 the Council informed CCNE that it had not been successful in its tender. During the statutory standstill period CCNE requested information from the Council which was provided by letter dated 6 March 2009.
On the basis of the information provided, CCNE contended that the Council's approach to the interview stage did not comply with the principle of transparency in relation to public procurement under EC Law, in particular, under Regulation 4(3) of the Public Contracts Regulations 2006 (“the 2006 Regulations”). It was anticipated that the Council would enter into contracts with the relevant care providers on or shortly after 16 March 2009. As a result, on 14 March 2009 CCNE applied for an injunction and before the return date for the substantive hearing of the injunction CCNE and the Council compromised the proceedings by an order dated 26 March 2009 (“the March 2009 Order”).
That order was in the form of a Tomlin Order, as suggested by Tomlin J in Practice Note [1927] WN 290, following the decision in Dashwood v Dashwood (1927) 71 SJ 911. The March 2009 Order referred to the fact that the parties had agreed terms attached to the order, referred to as “the terms” and stated that, by consent, it was ordered that: “These proceedings be stayed save for the purpose of giving effect to the terms, for which there be liberty to apply.”
The terms in the Tomlin Order were contained in four paragraphs. The relevant paragraphs being 1, 2 and 4, paragraph 3 providing that the Council would pay CCNE a sum by way of costs. The relevant terms provided as follows:
1 The Defendant will undertake not to enter into any contract or contracts with any tenderer in respect of its tender process for the provision of domiciliary care service for adults, children and young people until the process outlined at point 2 below has been conducted;
2 The Defendant will set aside the results of the interview stage of the said tender process and invite all those who were previously invited to attend those interviews to attend for interview again, the detailed arrangements for which shall be announced in due course. The interview process will be carried out in accordance with all current legislation and any other enforceable Community obligations;
3 …
4 The Defendant confirms that neither Marion Usher nor Louise Lyons, from whom witness statements were served, will be included on the future interviewing panel in respect of this tendering process. The Defendant confirms that the Head of Adult Commissioning and the Director of Adult and Community Services will not be involved in the conduct of the interviews themselves although they may need to remain involved in the oversight of the remainder of the procurement process.
The Council then re-ran the interview stage and by letter dated 21 July 2009 CCNE was informed of the Council's intention to award it contracts in respect of four of the ten zones, being zones 1, 2, 3 and 4.
However on receipt of their letter dated 21 July 2009 three other tenderers who were less successful on the basis of the re-run interview stage sought to challenge the Council's decision and commenced proceedings. Those three sets of proceedings by Croft House Care Limited, Orchard Home Care Limited and Kelly Park Caring Agency Limited were proceeding in the TCC in Newcastle District Registry. Directions were given for a trial for 10 days commencing on 10 May 2010. Because of the importance of the public procurement aspects of the case it was decided, in consultation with the TCC Judges in Newcastle, that the case merited case management and trial by a High Court Judge under paragraph 3.7.5 of the TCC Guide.
Various issues arose in relation to disclosure and inspection of the Council's documents which led to hearings in those cases and to an order and a judgment Croft House Care Limited v Durham County Council [2010] EWHC 909 (TCC) which dealt with those issues.
Following that decision the Council say that it has now become clear that the trial date in May 2010 cannot be maintained and as explained in the witness statement of Claudine Freeman dated 13 April 2010 the Council are concerned that the delay resulting from any adjourned trial date would have an adverse impact on their ability to deliver domiciliary care services. The Council is also concerned about the possibility of being subject to heavy cost liabilities at the end of the trial and, in all the circumstances, they state that it would be appropriate to seek to settle the proceedings in Newcastle District Registry and to undertake a fresh procurement for domiciliary care services. The Council say that, if those proceedings cannot be settled, an application will have to be made to adjourn the trial date.
The Council was also concerned that a potential obstacle to the settlement of those proceedings is the March 2009 Order. They therefore issued this application in this case brought by CCNE in which they seek to vary paragraph 2 of the terms in the schedule to the Tomlin Order by deleting the existing paragraph and substituting it with a paragraph which would read as follows: “The Defendant will commence a new procurement process which will be carried out in accordance with all current legislation and any other enforceable community obligations”. The Council submit that the variation of the terms in this way is a clarification to take account of circumstances which the parties cannot have had in mind when entering into the March 2009 Order.
The Council have also set out in their skeleton argument a contention that the Council have a right to terminate this “tender process”, that they would not be precluded from doing so on the basis of the varied paragraph 2 of the term, alternatively would not be precluded from doing so under the original paragraph 2 of the terms.
CCNE contends that to the extent that the Court has jurisdiction to vary the March 2009 Order, it should not do so in the circumstances of this case. CCNE says that if the Council has complied with paragraph 2 and carried out the re-run interview process in accordance with the obligations in that paragraph, there is no basis for seeking to vary the terms of that paragraph. Conversely, if the Council considers that it has not complied with the process described in paragraph 2 of the terms, CCNE contends that it is incumbent on the Council to carry out that process again before proceeding to award a contract or contracts for domiciliary care services.
Accordingly CCNE contends that it is not open to the Council, on the terms of the March 2009 Order, to exercise any powers they would otherwise have to terminate the current tender process and start afresh. CCNE therefore opposes any variation of the March 2009 Order to alter that position. If the Council does have the power to terminate the current tender process and start afresh, CCNE reserves its position to contend that any decision to do so would be open to challenge on the basis that the Council would not be acting rationally and lawfully but it accepts that this is not an issue which can be dealt with at present but will depend on the decision of the Council to act in this way in the light of all the circumstances.
Whilst there is a degree of overlap, there are, essentially, three issues which have to be determined:
(1) Whether the Court has power to vary the terms of the March 2009 Order and, if so the basis for that power.
(2) If the Court has power to vary the terms of the March 2009 Order, whether it should do so in the circumstances of this case.
(3) Whether in the absence of any variation to the terms of the March 2009 Order the Council is precluded from exercising any powers they would otherwise have to terminate the current tender process and start afresh.
Power to vary the terms of the March 2009 Order
Prior to the introduction of the Civil Procedure Rules, there had been a number of cases where the court had considered the extent of its powers to interfere with consent orders. In Ropac Limited v...
To continue reading
Request your trial
-
Leslie Dacosta Williams v Teleith Evelyn Williams
...a consent agreement or the consent order resulting from it (see also Community Care North East (a partnership) v Durham County Council [2010] EWHC 959; [2010] 4 ALL ER 84 The cases show the various ways in which a consent order may be challenged, such as by an appeal to set it aside, a fre......
-
Sukhbinder Singh Takhar v Lahrie Mohamed
....” 40 As was said in respect of an agreement scheduled to a Tomlin Order in Community Care Northeast (A Partnership) v Durham CC [2010] EWHC 959 (QB) [2012] 1 WLR 338 per Ramsey J at paragraph [24]: “… In general once the parties have entered into an agreement the ability to set aside or ......
-
WWF-UK v Secretary of State for Environment, Food and Rural Affairs
...The helpful commentary in the White Book at CPR 40.6.2 (part of which was approved in Community Care North East v Durham CC [2012] 1 WLR 338) analyses the authorities and draws out the key features of a Tomlin order, as follows: i) When terms of settlement are reached, the proceedings are ......
-
Mionis v Democratic Press SA and Others
...which could only be varied or revoked on grounds such as fraud, undue influence, misrepresentation or mistake: see Community Care North East v Durham County Council [2010] EWHC 959 (QB) [2012] 1 WLR 338; Watson v Sadiq [2013] EWCA Civ. 822 at 49 to 50 and E. V. Phillips & Sons v Clarke [197......
-
Table of cases
...of australia v Barker [2014] hCa 32 I.3.102, I.3.103, I.3.140, III.21.04, III.21.110 Community Care North East v Durham County Council [2010] EWhC 959 (QB) III.26.303 Community Development pty Ltd v Engwirda Construction Co (1969) 120 CLr 455 III.25.82 Community 1st Oldham (Chadderton) Ltd ......
-
Litigation
...limited) in which the court will vary the terms of a consent order or set it aside: Community Care North East v Durham County Council [2010] EWHC 959 (QB); Watson v Sadiq [2013] EWCA Civ 822; Sentosa Building Construction Pte Ltd v DJ Builders & Contractors Pte Ltd [2015] SGHCR 18; A-Tech A......