Oracle Security Services Limited v Barts Health NHS Trust & Anor
| Court | Queen's Bench Division (Technology and Construction Court) |
| Judge | Mr |
| Neutral Citation | [2024] EWHC 1201 (TCC) |
| Date | 20 May 2024 |
| Year | 2024 |
| Counsel | Mr Peter Knox K.c.,Mr Joseph Barrett K.c. |
MR ANDREW MITCHELL KC
Approved Judgment
Oracle -v- Barts
Neutral Citation Number: [2024] EWHC 1201 (TCC)
Case No: HT-2023-000379
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Rolls Building, Fetter Lane, London, EC4A 1NL
Date: 20/05/2024
Before :
MR ANDREW MITCHELL KC (sitting as a Judge of the High Court)
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Between :
ORACLE SECURITY SERVICES LIMITED
Claimant
- and –
(1) BARTS HEALTH NHS TRUST
(2) PLACE GROUP LIMITED
Defendants
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Mr Peter Knox K.C. (instructed by St John Legal) for the Claimant
Mr Joseph Barrett K.C. (instructed by Bevan Brittan LLP and Browne Jacobson LLP) for the
Defendants
Hearing dates: 13 March 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 20th May 2024 by circulation to the
parties or their representatives by e-mail and by release to the National Archives.
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JUDGMENT
MR ANDREW MITCHELL KC
Approved Judgment
Oracle -v- Barts
MR ANDREW MITCHELL KC (sitting as a Judge of the High Court) :
A. INTRODUCTION
1. This is the hearing of an application for summary disposal of a statutory procurement
claim on the basis that it is out of time.
2. The action concerns two claims for damages, one for breach of contract at common law
and the other for breach of Regulation 33(7) of the Public Contracts Regulations 2015
(“PCR”). I will refer to the latter as the procurement claim, which is pleaded at
paragraphs 22-24 of the Particulars of Claim. By application notice dated 21 November
2023, the Defendants jointly apply for summary judgment on or strike out of the
procurement claim, on the ground that it is time barred pursuant to Regulation 92 of the
PCR. No such application is made in relation to the breach of contract claim, pleaded at
paragraphs 2-21 of the Particulars of Claim.
3. The Claim Form was issued on 18 October 2023. It was issued in the name of Oracle
Securities Limited. As part of its application notice dated 27 November 2023, the
Claimant applied to amend the Claim Form (and Particulars of Claim) to give its correct
name, Oracle Security Services Limited. The Defendants consented to this amendment,
which I have adopted in the heading to this judgment.
4. I heard argument on 13 March 2024 and gave permission for supplemental written
submissions, which were served by the Claimant and Defendants on 14 March and 26
March 2024 respectively.
5. There is no dispute as to the test to be applied on this summary application, so I can deal
with it shortly. I have in mind the well-known principles summarised in Easyair Ltd v
Opal Telecom Ltd [2009] EWHC 339 (Ch), the essence of which for relevant purposes is
that the Court must consider, without conducting a mini-trial, whether the Claimant has a
realistic, as opposed to fanciful, prospect of defeating the limitation argument. A realistic
defence is one that carries some degree of conviction and is more than merely arguable.
Unless the evidence relied upon by a respondent is implausible, or obviously lacks real
substance, the existence of a dispute of relevant fact is likely to prevent summary
disposal.
6. In the procurement context, Elias LJ in Sita v. GMWDA [2011] 2 CMLR 32 (a limitation
case) approved of the following approach taken by Mann J. at first instance [40]:
“… a claim should not be struck out unless it can be demonstrated sufficiently
clearly that it was bound to fail as a matter of law and/or fact, and that I should
not determine the serious live issue of fact which requires oral evidence, or which
requires a full scrutiny that a trial will bring to bear. …
The real question for me is whether it is clear enough, at this stage, that the claim
is bound to fail on limitation grounds, and that a trial (or a fuller hearing of a
preliminary issue) would not change that situation. Any doubt about it would
have to be resolved in favour of the claimant. When I make any determination in
this matter whether of fact law or discretion, I should be taken to be doing so on
the footing that the point has been clearly established, and that the same result
would clearly be reached at trial.”
MR ANDREW MITCHELL KC
Approved Judgment
Oracle -v- Barts
7. It was not suggested that there is any distinction in approach between striking out and
summary judgment: and I note this was accepted in Siemens Mobility Limited v High
Speed Two (HS2) Limited [2022] EWHC 2451 (TCC) at [67].
B. BACKGROUND
8. This dispute concerns three contracts. First, a Framework Agreement made between the
Defendants. Second, a contract made between the Defendants and the Claimant which
was a call-off contract under that framework. And third, a contract made between the
Defendants and a company known as Assist, which the Defendants say was another call-
off contract under the same framework, but which the Claimant says was purportedly
within but was in fact outside the framework.
The Framework Agreement
9. In August 2020, a Framework Agreement was entered into between East of England
Broadband Network (the Authority) and the Second Defendant. The Framework
Agreement set out the basis upon which the Authority (on behalf of User Bodies, which
include the First Defendant NHS Trust) was able to purchase, and the Second Defendant
was obliged to provide, certain facility management services on a call-off basis. The
Call-Off Contract award procedures, and the terms and conditions of any such Call-Off
Contract, were set out in the Framework Agreement. The Framework Agreement
permitted the Second Defendant to sub-contract, with the consent of the Authority on
terms set out in clause 26. There is no procurement challenge to the Framework
Agreement, which would in any case be far out of time.
Call-Off Contract with the Claimant
10. Pursuant to the Framework Agreement, the First Defendant placed an order dated 21
October 2022 for certain specified Security Services to be provided by the Second
Defendant, via the Claimant as sub-contractor. This gave rise to a Call-Off Contract
directly between the Claimant and the First Defendant, on terms which included the
Call-Off terms and conditions set out in the Framework Agreement (“the Call-off
Contract”).
11. This is the contract, pleaded in paragraphs 2-7 of the Particulars of Claim, which the
Defendants are said to have breached. The Defendants do not seek summary disposal of
the breach of contract claim, and therefore accept, at least at this stage, that it is a claim
with real prospects of success. In those circumstances, it is unnecessary to examine it in
any detail, but it is relevant context to a proper understanding of the procurement claim,
as there is considerable factual overlap between the two causes of action.
The Assist Contract
12. The circumstances leading to this contract are in dispute and are not to be resolved on
this application. The Claimant’s allegations (set out in paragraphs 8-21 of the Particulars
of Claim) can be summarised as follows:
12.1. On or about 5 February 2023, the First Defendant (acting on behalf of both
Defendants) wrongly asked the Claimant to cease providing fire warden security
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