Gary Paice and Another v MJ Harding (trading as MJ Harding Contractors)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edwards-Stuart,Mr. Justice Edwards-Stuart,The Honourable Mr. Justice Coulson,The Hon. Mr Justice Coulson |
| Judgment Date | 20 March 2015 |
| Neutral Citation | [2015] EWHC 604 (TCC),[2015] EWHC 661 (TCC) |
| Docket Number | Case No: HT-2015-000045,Case No: HT-2014-000183 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2015] EWHC 604 (TCC)
Mr. Justice Edwards-Stuart
Case No: HT-2014-000183
(formerly HT-14393)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
London EC4A 1NL
Ms. Sarah Hannaford QC (instructed by Quigg Golden Legal Ltd) for the Claimant
Jason Coppel Esq, QC (instructed by Geldards LLP) for the Defendant
Hearing dates: 27 th February 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is an application to strike out a claim on the ground that the claim form was not served within the prescribed time limit. The claim is a procurement challenge in which the Claimant claims damages and a declaration of ineffectiveness in respect of the award of a contract by the Defendant for the construction of a leisure centre in its area. The contract has been signed and construction is underway.
By regulation 47F(1) of the Public Contracts Regulations 2006 ("the Regulations") a claim form has to be served within seven days of issue. The Regulations do not make any provision for an extension of this time by the court.
At the hearing the Claimant was represented by Sarah Hannaford QC, instructed by Quigg Golden, and the Defendant was represented by Jason Coppel QC, instructed by Geldards.
The background
The Claimant was notified that the contract had been awarded to another bidder by a letter dated 26 September 201On receipt of that letter it raised some questions with the Defendant and a meeting between the parties took place on 7 October 201Thereafter the following events occurred:
| Date | Event |
| 31 October 2014 | Claimant's agent sends to the Defendant unsealed copies of the claim form and Particulars of Claim by recorded delivery. Claimant's agent sends three copies of the claim form and Particulars of Claim to the Court for sealing. |
| 3 November 2014 | Claimant's agent sends the Defendant by e-mail a copy of its letter of 31 October 2014, together with the enclosures. The Court seals and issues the claim form. |
| 10 November 2014 | The Court posts the issued claim form and Particulars of Claim to the Claimant for service. |
| 14 November 2014 | The Claimant says that it received the Claim Form from the Court (Connelly, para 10). |
| 18 November 2014 | This is the date on which the claim form and Particulars of Claim were deemed to be served, being the second business day after they were posted. |
The Claimant's agent who served the documents on its behalf is a company called Quigg Golden Legal Limited. Although its writing paper says that it practises in the fields of "Procurement Dispute Resolution Construction", it does not say that the company is regulated by the Solicitors' Regulation Authority. Although its precise status has been questioned by the Defendant's solicitors, they have not received an answer. From the correspondence it appears that the person acting in relation to the Claimant was a Mr. Jonathan Parker, who appears to have various legal and other qualifications. Quigg Golden's offices are in Southampton Buildings, off Chancery Lane. It is therefore a few minutes' walk from the TCC and Commercial Registry in the Rolls Building. No-one on behalf of the company has made a witness statement in relation to this application.
Quigg Golden's letter to the Court dated 31 October 2014, a Friday, was in the following terms:
"Please find enclosed 3 copies of the Claim form and Particulars of Claim, together with the appropriate fee. We would be grateful if this could be sealed and returned to us for service upon the Defendant at your earliest convenience."
In Quigg Golden's letter to the Defendant of the same date they said:
"We represent Heron Bros Ltd of 2 St Patrick's Street, Draperstown, Northern Ireland, BT45 7AL in respect of a dispute with Central Bedfordshire Council, relating to the procurement process for a main contractor to construct the new Flitwick Leisure Centre.
As you are aware from our client's previous correspondence, they have grave misgivings over how the procurement process has been conducted and fear that they have suffered prejudice as a result. In view of the limited timeframe for challenging a procurement process we have issued the enclosed Claim Form, Particulars of Claim and relevant fee to the High Court.
Naturally we will serve the sealed copies of forms upon you at our first available opportunity. However, we enclose copies of these forms by way of early warning and notification."
The claim forms (using Form N1, as required) enclosed with the letters of 31 October 2014 were, of course, unsealed and the boxes on Form N1 for the "Claim No." and "Issue date" were left blank. The Particulars of Claim, consisting of eight pages, was signed with a Statement of Truth.
Regulation 47F (as amended in 2011) provides, so far as material:
"(1) Where proceedings are started, the economic operator must serve the claim form on the contracting authority within 7 days after the date of issue.
…
(5) In this regulation, 'serve' means serve in accordance with rules of court, and for the purposes of this regulation a claim form is deemed to be served on the day on which it is deemed by rules of court to be served."
Proceedings are started when a claim form is issued: see regulation 47D(6).
It is common ground that the Regulations contain no power to extend the time for service of the claim form. If there is such a power, it must lie within the discretion of the court.
The submissions of the parties
Mr. Coppel submitted that reading-in or reading across from the CPR an unconstrained power to extend time for service of a claim form would be inconsistent with the tight timetable set by the regulations, not only for starting proceedings but also for the issue of the claim form.
He submitted, correctly in my view, that the power in the CPR to extend time for service of a claim form does not apply to the different time limit for service of a claim form contained in the Regulations.
Although the CPR contain general case management powers to extend time for the taking of any step ( CPR 3.1(2)(a)) and to "… rectify matters where there has been an error of procedure" ( CPR 3.10), Mr. Coppel submits that these powers apply to failures to comply with the CPR rather than with separate legislation such as the Regulations.
In support of this submission Mr. Coppel relied on the following statement by Lord Neuberger in Mucelli v Albania [2009] 1 WLR 276, a decision of the House of Lords in relation to the Extradition Act 2003, at paragraph 74:
"On the face of it, at any rate, there is a clear and unqualified statutory time limit, namely 7 days, and there would therefore seem to be no basis upon which it could be extended. In that connection, viewed from the English and Welsh perspective, I would refer to the CPR, which contain provisions whereby the court can extend time for the taking of any step, under CPR 3.1(2)(a), can make an order remedying any error of procedure, under CPR 3.10, or can make an order dispensing with service of documents, under CPR 6.9. However, these powers cannot be invoked to extend a statutory time limit or to avoid service required by statute, unless of course, the statute so provides. Apart from being correct as a matter of principle, this conclusion follows from CPR 3.2(a) which refers to time limits in 'any rule, practice direction or court order', and from CPR 6.1(a) which states that the rules in CPR 6 apply, 'except where any other enactment … makes a different provision'."
Even if there is a power to extend time for service of the claim form, Mr. Coppel submits that its exercise would not be justified for the following reasons:
i) The fact that the Defendant had received a draft claim form during the relevant period cannot be a good reason for extending time. The Defendant would be prejudiced by having to face a claim which otherwise would be out of time.
ii) Although there would appear to have been a delay in the TCC Registry in sending out the issued claim form, the Claimant's representative, with offices not far from the court, took an extraordinary risk in posting the draft claim form for issue by the court without any indication in the covering letter that service of the issued claim form would have to be undertaken with extreme urgency. It is said that a prudent representative would have taken the claim form to court by hand for issue.
iii) Further, it would appear that the Claimant itself may have taken an unnecessary risk in instructing consultants to conduct the litigation who, it appears, may not be authorised to conduct litigation in this jurisdiction.
In her skeleton argument, Ms. Hannaford relied on two grounds for resisting the application:
i) The court's discretion to extend the time for service which it should exercise in these wholly exceptional circumstances.
ii) Alternatively, if and in so far as the Regulations do not make provision for such discretion, they are not compliant with the principles of equivalence and/or effectiveness and must accordingly be disapplied and/or read in accordance with those principles.
In the course of argument Ms. Hannaford also advanced a further ground, namely that a claim form had been served within seven days after the date of issue. She relied on the fact that the unsealed claim form and Particulars of Claim were sent to the Defendant by recorded delivery...
To continue reading
Request your trial
-
Amey Wye Valley Ltd v The County of Herefordshire District Council
...provided a second adjudicator is not asked to decide again that which the first adjudicator has already decided." 32 In MJ Harding Contractors v Paice and Springall [2015] EWCA Civ 1231 [2016] BLR 85 the Court of Appeal considered an issue arising in one adjudication between the parties, in......
-
Halliburton Company v Chubb Bermuda Insurance Ltd
...the thinking of the observer and may fortify or even lead to an overall conclusion of apparent bias – see, for example, Paice v Harding [2015] EWHC 661, [2015] BLR 345 and Cofely Ltd v Bingham [2016] EWHC 76 Non-disclosure of a fact or circumstance which should have been disclosed, but doe......
-
Cofely Ltd (Claimant) Anthony Bingham (1st Defendant) Knowles Ltd (2nd Defendant)
...700 and Woods Hardwick Ltd v Chiltern Air Conditioning Ltd [2001] BLR 23. In this regard Cofely relies in particular on Paice v Harding [2015] EWHC 661, [2015] BLR 345, per Coulson J at [46]–[51] in which it was held that the explanations given by the adjudicator made apparent bias more ra......
- Matthew Harding (Trading as M J Harding Contractors) v Gary George Leslie Paice and Another
-
The Weekly Roundup: The Alliterative Edition
...was two days late. The Claimant sought to avoid this conclusion by arguing, relying in Heron Bros Ltd v Central Bedfordshire Council [2015] EWHC 604 (TCC) in relation to the 2006 version of the Regulations, that the service of the unsealed Claim Form on 27th July 2021 was sufficient. This a......
-
The Weekly Roundup: The Alliterative Edition
...was two days late. The Claimant sought to avoid this conclusion by arguing, relying in Heron Bros Ltd v Central Bedfordshire Council [2015] EWHC 604 (TCC) in relation to the 2006 version of the Regulations, that the service of the unsealed Claim Form on 27th July 2021 was sufficient. This a......
-
Payment Provisions In Construction Contracts
...contractors alike can manage their risks around the payment provisions of their contracts. Footnotes: 1. [2014] EWHC 4007 (TCC) 2. [2015] EWHC 661 (TCC) 3. [2015] EWHC 412 (TCC) 4. [2015] EWHC 1855 (TCC) 5. [2015] EWHC 2433 (TCC) Please click here to read previous issues of our Reviews The ......
-
Projects And Construction Law Update - April 9, 2015
...will cover it. To view the full text of the decision, please click here. Paice and another v MJ Harding (t/a MJ Harding Contractors) [2015] EWHC 661 (TCC) In this case, there was a rare refusal by the TCC to enforce an adjudicator's decision due to the possibility of The claimant, Paice, ha......
-
Price and payment
...that “everyone in the construction industry knows that contractor’s [sic] claims are usually overstated”: Paice v Harding [2015] eWHc 661 (tcc) at [70], per coulson J. prICE aND paYMENT so that an assessment is required of the quantity and value of the work during that period. he amount tha......
-
Table of cases
...305 (hL(E)) II.6.71 herning v GWS Machinery pty Ltd (No.2) [2005] NSWCa 375 III.26.301 heron Bros Ltd v Central Bedfordshire Council [2015] EWhC 604 (TCC) I.4.75 heron Bros Ltd v Central Bedfordshire Council (No 2) [2015] EWhC 1009 (TCC) III.26.247 heron park pty Ltd v Bob Garner Excavation......
-
Statutory adjudication
...and [12], per Edwards-Stuart J; Arcadis UK Ltd v May and Baker Ltd [2013] BLR 210 at 219 [28], per Akenhead J; Paice v Harding [2015] EWHC 661 (TCC) at [17]–[21], per Coulson J; John Sisk & Son Ltd v Duro Felguera UK Ltd [2016] EWHC 81 (TCC) at [26]–[32], per Edwards-Stuart J; Paice v Hardi......
-
Procurement
...Utilities Contracts Regulations 2016 (SI 2016/274) regulation 109(1) (and see also Heron Bros Ltd v Central Bedfordshire Council [2015] EWHC 604 (TCC)). If the claim form is iled within the 30-day period for doing so, and particulars of claim are served outside of the 30-day period, it will......