R Hossacks (a firm of solicitors) v The Legal Services Commission
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Mr Justice Morgan,Lord Justice Lloyd |
| Judgment Date | 20 September 2012 |
| Neutral Citation | [2012] EWCA Civ 1203 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2011/2905 |
| Date | 20 September 2012 |
[2012] EWCA Civ 1203
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE BLAKE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd
Lord Justice Stanley Burnton
and
Mr Justice Morgan
Case No: C1/2011/2905
Simao Paxi-Cato (instructed by Hossacks) for the Appellant
Sarah Hannaford QC and Fiona Scolding (instructed by the Legal Services Commission) for the Respondent
Hearing date: 25 July 2012
Introduction
In his judgment handed down on 27 October 2011, Blake J dismissed the Appellant's application for judicial review of the decision of the Respondent (to which I shall refer as "the Commission") rejecting the Appellant's tender for the provision of legal services in the field of community care following a competitive tendering exercise in 2010. On 25 July 2012 we heard full argument on a rolled-up hearing, to determine whether to grant the Appellant permission to appeal against the order made by Blake J and if so whether to allow her appeal. Having heard the submissions of both sides, we announced our decision to refuse permission to appeal. We said that we would give our reasons subsequently. These are my reasons for concluding that the appeal had no real prospect of success and that therefore permission to appeal should be refused. We received written submissions as to costs after the hearing. At the end of this judgment I set out the reasons for our decision as to costs which were communicated to the parties at the time that we made our order as to costs, shortly after the hearing of the appeal, but have not been handed down as such until now.
Incidentally, although Hossacks is described as a firm in the title to these proceedings, Mrs Hossack is in fact the sole principal, so that Hossacks is in truth her practising name rather than the name of a partnership.
The facts
The essential and undisputed facts are set out in Blake J's judgment, and I set them out below.
(1) The Appellant is a specialist provider of community care services based in Northamptonshire with a small number of staff under Mrs Hossack's supervision.
(2) The Appellant bid in 2010 in a competitive tender for the award of community care legal services contracts in 125 geographical service areas of England and Wales. These areas were categorised as either A or B service areas.
(3) The Appellant did so even though it was a requirement of the competition that the bidder would at least have a part-time office in each area where services were to be delivered.
(4) For each contract area for which the Appellant made a bid she submitted a pro forma containing identical information.
(5) Each tender was completed using an invitation to tender form specific to Wiltshire which was pre-populated in the Commission's electronic tendering form with the title Wiltshire, albeit this was not known to the Appellant.
(6) There were different requirements as to whether the need for an authorised litigator was part of the essential or selection criteria under the terms of the Information for Applicants issued by the Commission. This depended upon whether the firm was bidding in service areas A or B.
(7) The Appellant did not complete the part of the form requiring her to identify the location of her office, and this was the case even for the form submitted in respect of Northamptonshire where she did have an office. She marked the form as address unknown.
(8) The Appellant's office in Northamptonshire was a full-time one, but for the Northampton bid (as indeed for every other) the Appellant stated that she proposed to operate a part-time office. Her intentions were to service claimants throughout the jurisdiction by attending on them as and when necessary. This intention might have been accommodated by a single Northampton bid, which if successful would have enabled her to open cases from outside the county as well if the Appellant had the staff capacity to do so.
(9) The Commission would have been aware that the Appellant maintained a full time office in Northamptonshire from extraneous information, namely previous dealings with her and the fact that the Office Manual was supplied to evidence the SQM which was submitted by Mrs. Hossack as part of her tender.
124 out of the Appellant's 125 bids were rejected by the Commission because she had not provided the information necessary to establish eligibility for award of a contract. She was offered a contract for Wiltshire on the basis of the inaccurate statement that a part-time office would be maintained there, but this was subsequently cancelled when the true facts were realised. There is no issue as to the cancellation of that contract.
The claim for judicial review was originally directed to all the Commission's decisions in respect all the Appellant's bids, on the basis that its bid criteria did not take account of the Appellant's unique business model that was Northampton based but delivered specialist services to clients in need throughout the jurisdiction. This claim was rejected by both the Administrative Court and on renewal to the Court of Appeal because it was essentially a challenge to the bid criteria themselves which should have been made, if at all, promptly when the criteria were published. Nevertheless, permission was granted in respect of the failed bid for Northamptonshire, on the basis that, on the information actually supplied, the defendant should not have rejected the bid.
Another factor in the grant of permission was information about the extent to which the Commission, in similar competitions for legal services contracts, had contacted bidders pointing out errors, omissions and ambiguities in their bid application forms. The question whether the Commission had been, or should have been, willing to use any powers it had to clarify ambiguities had been the subject of debate in at least four previous decisions of the High Court namely JR Jones v LSC [2010] EWHC 3671 (Ch), Hoole and Co v LSC [2011] EWHC 886 (Admin), Harrow v LSC [2010] EWHC1087 (Admin) and R (All About Rights) v LSC [2010] EWHC 964 (Admin). It emerged that some of the evidence previously relied on by the Commission was or might have been inaccurate or incomplete when describing its practices and the extent to which it had sought clarification from tenderers, and a complete audit of all such occasions was being undertaken. In consequence, the Commission gave extensive disclosure of its communications with tenderers. It gave substantial additional disclosure after Blake J had given judgment, for the purposes of this application for permission to appeal.
The issues
There are essentially three issues:
(1) Was any of the Appellant's applications acceptable without clarification or amendment?
(2) Leaving aside the evidence of the Commission's communications with other applicants, should the Commission have sought clarification or suggested amendment of any of the applications, and if so should the Commission have accepted the resulting application(s)?
(3) Do the Commission's communications with other applicants show that by rejecting the Appellant's applications, it acted in breach of its duty to treat all applicants equally?
The Appellant did not seriously argue that issue (1) should be determined in her favour; the thrust of her submissions was that issue (3) should be determined in her favour. I shall, however, address all three issues.
The Commission submitted that on each of these issues the Appellant's case had no real prospect of success.
Discussion
Issue (1): should the Commission have accepted any of the Appellant's applications without amendment?
The judge formulated this issue, correctly in my view, as: "Was it unreasonable/disproportionate for the defendant to reject the claimant's tender for Northamptonshire?"
The judge set out the relevant provisions of the tender documents, in a summary the accuracy of which has not been challenged, as follows:
"8. Before the competition was opened on the 26 February, 2010 the defendant published a 62 page document called Information for Applicants (IFA) that set out the detail of the invitation to tender to deliver publicly funded services in this field. This document is of central significance in explaining how applicants could bid for such tenders; what electronic tender forms they need to complete in order to apply, what a completed tender consisted of and other material provisions that set out the terms of the bid.
9. The overview of this document indicated that any applicant might submit a tender whether a current contract holder with the LSC or not. There were 135 separate invitations to tender (ITT) each covering a separate procurement area in England and Wales. Successful tenderers automatically had a passport to undertake licensed work if they obtained Matter starts. Applicants would be tendering for allocation of cases known as matter starts and, if applicable a licence to represent clients, in separate geographic areas in England and Wales. 135 ITT's would be published on the defendants' e-tendering system and for tenders to be complete a response to the pre-qualification questionnaire (PQQ) must also have been submitted. A completed tender consists of a completed PQQ and a response to the ITT including the mandatory form.
10. Other aspects of the IFA material to the present challenge include the following:—
(i) The application process for a...
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