Pearson Driving Assessments Ltd v The Minister for the Cabinet and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 08 July 2013 |
| Neutral Citation | [2013] EWHC 2082 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 08 July 2013 |
| Docket Number | Case No: HT-13159 |
[2013] EWHC 2082 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY & CONSTRUCTION COURT
Commercial Court
Rolls Building
Fetter Lane
London
EC4A 1NL
The Honourable Mr Justice Akenhead
Case No: HT-13159
This is the judgment on the claimant's application for specific disclosure. It was issued on the 1 st July 2013 and attached to that application was a draft order which identified an extensive list of further documents that were required, and not only were required as a matter of ordinary disclosure, but were required, it was at that stage argued, for disclosure documents to be made before the hearing of the defendants' Section 47(H) application.
Section 47(H)(1)(a) of the Public Contractions Regulations of 2006 as amended, enables the defendant, a public authority which has conducted a tendering exercise, to apply to the court to have the statutory suspension lifted. Authorities have already established that the appropriate approach is based on Cyanamid, at least one case which decided that being the case of Exel Europe Limited v University Hospitals Coventry and Warwickshire NHS Trust [2010] EWHC 3332 (TCC).
Now so far as I can recall (as I was the judge in that case), although there were a substantial amount of documents before the court, having so far as I recall primarily being put there as attachments or exhibits to witness statements, there had been no issue that there had to be disclosure of documents to enable and facilitate the hearing of the application under Section 47(h).
So far as that case was concerned, it decided that the appropriate criteria, to be established by a public authority seeking to have the suspension lifted, was the application of the principles laid down in American Cyanamid Co v. Ethicon Ltd [1975] AC 396. Broadly, that involves two or three steps or hurdles to be overcome before the court can in such a case grant an interim injunction. Before lifting any statutory suspension, the first question to answer is whether there is a serious question to be tried and the second step involves considering whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. Insofar as balance of convenience is concerned, it is sometimes a moot point as to whether the balance of convenience covers consideration of whether the claimant will be adequately compensated by an award of damages. That is certainly, either as part of the balance of convenience exercise or as a separate exercise, another hurdle to be overcome.
In this case, the claimant, very sensibly and following at least a hint from the bench at the last hearing for directions last week, has substantially curtailed its application for disclosure before the hearing of the application which is listed in about two weeks' time. That is set out in paragraph 20 of Mr Caldwell's witness statement and also in the claimant solicitor's letter of the 3 rd July 2013. It is a substantially reduced application as such and I will come back to the particular documents that are sought.
Another authority relied on is the case of Roche Diagnostics Ltd v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC), [2013] All ER (D) 133, a decision of Mr Justice Coulson on the 19 th April 2013. This was not a case which involved pre-application disclosure, but it related to disclosure to be provided at a very early stage in the proceedings. It does not seem to have featured in His Lordship's judgment that there was to be any application such as the application today. His Lordship, having reviewed a number of authorities, set out some broad principles to apply to applications for early specific disclosure in procurement cases at paragraph 20 of his judgment:
"In my view, the following broad principles apply to applications for early specific disclosure in procurement cases:
(a) An unsuccessful tenderer who wishes to challenge the evaluation process is in a uniquely difficult position. He knows that he has lost, but the reasons for his failure are within the peculiar knowledge of the public authority. In general terms, therefore, and always subject to issues of proportionality and confidentiality, the challenger ought to be provided promptly with the essential information and documentation relating to the evaluation process actually carried out, so that an informed view can be taken of its fairness and legality.
(b) That this should be the general approach is confirmed by the short time limits imposed by the Regulations on those who wish to challenge the award of public contracts. The start of the relevant period is triggered by the knowledge which the claimant has (or should have) of the potential infringement. As Ramsey J said in Mears Ltd v Leeds City Council [2011] EWHC 40 (QB), "the requirement of knowledge is based on the principle that a tenderer should be in a position to make an informed view as to whether there has been an infringement for which it is appropriate to bring proceedings".
(c) However, notwithstanding that general approach, the court must always consider applications for specific disclosure in procurement cases on their individual merits. In particular, a clear distinction may often be made between those cases where a prima facie case has been made out by the claimant (but further information or documentation is required), and those cases where the unsuccessful tenderer is aggrieved at the result but appears to have little or no grounds for disputing it.
(d) In addition, any request for specific disclosure must be tightly drawn and properly focused. The information/documentation likely to be the subject of a successful application for early specific disclosure in procurement cases is that which demonstrates how the evaluation was actually performed, and therefore why the claiming party lost. Other material, even if caught by the test of standard disclosure, is unlikely to be so fundamental that it should form the subject of a separate and early disclosure exercise.
(e) Ultimately, applications such as this must be decided by balancing, on the one hand, the claiming party's lack of knowledge of what actually happened (and thus the importance of the prompt provision of all relevant information and documentation relating to that process) with, on the other, the need to guard against such an application being used simply as a fishing exercise, designed to shore up a weak claim, which will put the defendant to needless and unnecessary cost."
It does seem to me that one needs to consider, in a case like this, whether it is fair and just for disclosure to be made prior to the application under Section 47(h) by the defendant. It is quite clear that there is some concern on the part of the claimant that there is not a level playing field between the claimant and the defendants as Miss McCredie QC has pointed out emphatically. It is the defendant who has got all the documents which tell it how it went about the process which it did, which involves the selection of another tenderer as the successful tenderer and the rejection of the claimant. It seems clear that the claimant has received little or no contemporaneous documentation, indicating how the process was handled and what was involved in the process on the defendant's side.
As a matter of timetabling, it has already been agreed and indeed ordered that the defendants will have to provide standard disclosure some two days after the hearing of the Section 47 application. There are no arguments particularly about relevance here, or whether the types of documents which are sought by the claimant are documents which fall within the standard disclosure requirements. I am therefore going to assume that all the documents which are sought fall within the standard disclosure requirements.
The real question is whether they should be provided before the hearing as opposed to several days after it and the claimants as I said are concerned, because they feel that there may be and probably are documents, they think, which would support not only their case, but their response to the application under Section 47(H) that has been made.
At first blush at least, there is some support for that view. When one looks at the primary witness statement of Mr Nicholas David Carter of the Driving Standards Agency, whose statement has been submitted as the primary evidence in support of the defendants' application under Regulation 47(h) 1(a), Mr Carter has identified why the four primary grounds of complaint pursued by Pearson are unsustainable. He sets out his evidence and to some extent his views on the four grounds at paragraphs 42 to 54 of his statement. I will just take by way of example the first ground, which he addresses, which relates to the successful tenderers' financial standing. Since it has been agreed that there can be permission to amend the particulars of claim, I will take the points from the amended particulars of claim.
Complaint is made that there was a requirement in the tendering process as it turned out, for the successful tenderer's parent company to give an appropriate guarantee. There has been expressed concern as to whether the parent company of LD, the successful tenderer, was of appropriate economic and financial standing. It is argued that some requirements in the tender documentation were the sort of factors that were to be taken into account. Thus it is said that various factors in relation to companies should have been taken into account and so it is the claimant feels in effect that not all the criteria were applied in relation to LD's guarantor and...
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