Dukes Bailiffs Ltd v Breckland Council
| Jurisdiction | England & Wales |
| Judge | Tindal |
| Judgment Date | 26 June 2023 |
| Neutral Citation | [2023] EWHC 1569 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case Nos: HT-2023-BHM-00008 and and CO/898/2023 |
[2023] EWHC 1569 (TCC)
HIS HONOUR JUDGE Tindal
(sitting as a Judge of the High Court)
Case Nos: HT-2023-BHM-00008 and and CO/898/2023
HIGH COURT OF JUSTICE
KINGS BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT
AND ADMINISTRATVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Brendan McGurk (instructed by Walker Morris) for the Claimant
Joseph Barrett (instructed by Birketts) for the Defendant
Hearing date: 6 June 2023
Redacted Judgment
REDACTIONS HAVE BEEN MADE TO THIS PUBLIC VERSION OF THIS JUDGMENT TO TAKE ACCOUNT OF PRIVATE MATTERS
I direct that pursuant to CPR PD 39A para. 6.1 no official shorthand note shall be taken of this Judgment and copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Tindal
HHJ
Introduction
This case is about Public Procurement Law and the relationship between the Public Contract Regulations 2015 (‘PCR 15’) and Concession Contracts Regulations 2016 (‘CCR 16’). From the researches of expert Counsel Mr McGurk for the Claimant and Mr Barrett for the Defendant, there is no case on this point yet, (indeed I only found eight cases on the CCR 16 in total). The question is whether a local authority contracting-out enforcement of its debts like Council Tax is governed by the PCR 15 or the CCR 16; or alternatively is amenable to Judicial Review. So, while this is a sequel to JBW Group v MoJ [2012] EWCA Civ 8 and Newlyn v WFLBC [2016] EWHC 771, both pre-dated the CCR 16, so I must consider the matter afresh.
The Claimant, Dukes Bailiffs Ltd, is an Enforcement Agent company which has been on a ‘Dynamic Purchasing System’ (‘DPS 953’) arrangement for public procurement since 2019. At that time, it became the enforcement provider for the Anglia Revenues Partnership (‘ARP’), a consortium of East Anglian local authorities. In December 2022, in a re-tender competition for providers within DPS 953, ARP through its member Breckland Council – the Defendant — issued an Invitation to Tender (‘ITT’) to provide debt enforcement services. The Claimant tendered but on 27 th January 2023, the Defendant told the Claimant that it had lost out by 2.5% on the scoring to a rival bidder ‘Bristow & Sutor’ (‘Bristow’). The Claimant considers it should have been successful rather than Bristow and criticises: the Defendant's tender scoring; the reasons it gave for its decision; and ‘apparent bias’ of one of the Defendant's four tender evaluators (she denies it and I call her Ms H) in favour of Bristow owing to alleged connections with a manager who used to work for the Claimant (Mr J)
The Claimant has made these allegations in two separate claims. Firstly, it has brought a CPR 7 claim issued on 24 th February 2023 in the Technology and Construction Court (‘TCC’) contending the Defendant breached the PCR 15 due to Ms H's apparent bias and its inadequate reasons and erroneous scoring and seeking an order requiring the Defendant to award the contract to the Claimant (‘the TCC Claim’). Secondly it issued a CPR 54 Judicial Review claim on 10 th March 2023 in the Administrative Court to pursue what it called ‘two public law analogue claims’ which did not depend on the PCR 15 applying, namely apparent bias and failure to give reasons (‘the JR Claim’).
However, in the Defendant's Defence to the TCC claim of 30 th March 2023, it contended the PCR 15 did not apply to the contract awarded that was a ‘concession contract’ under the ‘CCR 16’, relying on JBW and Newlyn under the predecessor provisions in the Public Contracts Regulations 2006 (‘the 2006 Regs’). The Defendant contended the Claimant's claim was not actionable under the CCR 16 as the contract value was below the minimum threshold and in the alternative, denied the TCC Claim allegations. Furthermore, in the Defendant's Summary Grounds of Resistance (‘SGR’) to the JR Claim dated 4 th April 2023, it contended the Defendant's tender contract award was not amenable to Judicial Review and in any event was not vitiated by the grounds of challenge in the Claimant's Statement of Facts and Grounds (‘SFG’).
Accordingly, the Defendant invited the Administrative Court to refuse permission to claim Judicial Review and on 6 th April 2023 applied to the TCC to strike out the TCC Claim or alternatively enter reverse summary judgment on it. The TCC Claim was originally issued in London, but on 7 th March 2023 O'Farrell J ordered it be transferred to Birmingham as the JR Claim was issued here. It was clear these issues should be adjudicated urgently (as the Defendant had now awarded the contract to Bristow) and together. Therefore, I decided permission for the JR Claim under CPR 54.4 should be considered not on the papers, but at a hearing at the same time as the Defendant's application in the TCC Claim. So, on 21 st April 2023, I made orders on both the TCC Claim and JR Claim listing a combined hearing on 6 th June (the first date available). However, as the Claimant complained the Defendant had not disputed the applicability of the PCR 15 until its Defence, I granted it permission to amend its Particulars of Claim and to file a Reply in the JR Claim and consequently to the Defendant to amend its Defence and application. Both parties took the opportunity to do so.
In the TCC claim, the Claimant's Amended Particulars of Claim (‘APOC’) dated 20 th April 2023 denies the Defendant's tender contract award was governed by the CCR 16 and maintains it was governed by the PCR 15 (at ps.6A-D, 9A-B, 10A-E and 13) whilst also maintaining the breaches of the PCR 15 previously alleged. However, it also pleads in the alternative (at ps.61A-D) that even if the PCR 15 did not strictly apply, the Defendant had either expressly or impliedly contracted with the Claimant to award the tender contract as if the PCR 15 applied and so breaches of it were breaches of contract. Moreover, at ps.61E-F, the APOC allege the entry of the Defendant into the contract with Bristow on 6 th April 2023 was unlawful for breach of the prohibition on contracting under Reg.95 PCR and so ineffective and void under Reg.99(5) PCR. However, it is not pleaded in the TCC Claim that the labelling of the new contract with Bristow as a ‘services concession’ was a deliberate change by the Defendant to stymie the TCC claim under the PCR 15. The Defendant in its amended Defence dated 2 nd June 2023 maintains its position that the PCR 15 never applied either formally on its own terms or indirectly by contracting that it would be applied as if it did. Nevertheless, in the Defendant's amended application for strike-out and reverse summary judgment it accepts the Claimant's new contract point is arguable and will have to proceed to trial.
In the JR Claim, the Claimant's Reply dated 20 th April 2023 not only contends the PCR 15 not the CCR 16 applied and the Defendant's decision was amenable to Judicial Review, but also added two further grounds. It alleges breach of legitimate expectation that the Defendant's tender (or ‘call off’) contract would be awarded in accordance with the requirements of PCR 15, in substance similar to its contract point in the TCC Claim. However, unlike that claim (as just noted), the Reply in the JR Claim also alleges a ‘breach of the Ermakov principle’ (that a decision-maker cannot defend a decision with reasons it has not relied on at the time). It is alleged the Defendant's contract award to Bristow as a ‘services concession’ contradicted the fact it had run the procurement on the basis the PCR 15 applied and the labelling of the new contract a ‘services concession’ was ‘concocted after the event by lawyers in response to the issue of the current proceedings’. The Defendant disputes that and contends permission should be refused on all grounds: both the original ones and these two new grounds in the Reply.
In the course of the various applications and responses, the Defendant has provided statements from Tracey Mellor its Contracts and Procurement Manager; and Sarah Wolstenholme-Smy its Legal Services Manager; whilst the Claimant has provided two statements from Sarah Naylor its Sales Director. Whilst of course I have not heard live evidence on a strike-out application on the TCC claim and a (contested) hearing of permission on the JR claim, I have carefully considered these witness statements and the documents in the TCC claim bundle prepared by the Defendant and JR claim bundle prepared by the Claimant (which overlap to a significant extent).
I also had the benefit of very helpful Skeleton Arguments and submissions from specialist and skilled Counsel: Mr McGurk for the Claimant and Mr Barrett for the Defendant and an agreed Bundle of Authorities on both claims running to over 30 items, including not only legislation but also many domestic and ECJ/CJEU authorities. However, given the complexity of the issues, I also carried out a little research of my own and referred Counsel to the EU Concessions Directive 2014/23/EU (‘Concessions Directive’ or ‘CDir’) and four other cases to ensure all issues were fully ventilated.
I shall structure this judgment by considering these matters in order:
(i) Firstly, the legal and factual background relevant to the issues (certain parts of which I have redacted due to commercially-sensitive information) (paras 11–35);
(ii) Secondly, the law on ‘public contracts’ and ‘concession contracts’ (paras 36–65);
(iii) Thirdly, the strike-out / summary judgment application in the TCC Claim: especially whether the PCR 15, CCR 16, or neither applied (paras. 66–99);
(iv) Fourthly, given the decision on that issue, a brief discussion of the Claimant's contract point in the TCC Claim (paras.100–104), relevant to the next issue.
(v) Fifthly, whether to give permission for the JR Claim: i.e. whether the...
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