Public contract – Service of documents – Claim form – Claimant challenging defendants’ decision to award contract to competitor – Defendant applying to strike out claim – Whether claim form being served within prescribed time limit – Application dismissed
The claimant brought proceedings under the Public Contract Regulations 2006 (SI 2006/5) to challenge the defendants’ decision to award a contract for the construction of the new Flitwick leisure centre to another bidder. On 31 October 2014 the claimant’s agent sent the defendants unsealed copies of the claim form and particulars of claim by recorded delivery. On the same day the claimant’s agent sent copies to the court for sealing. On 3 November the claimant sent the defendant, by e-mail, copies of the unsealed documents. On that same day the court sealed and issued the claim form. However, the court did not post the issued claim and particulars to the claimant for service until 10 November. The claimant claimed to have received the forms from the court on 14 November. The claim and particulars were deemed to have been served on 18 November, which was the second business day after they were posted.
The defendants applied to strike out the claim on the ground that the claim form was not served within the prescribed time limit, namely, within seven days after the date of issue, as required by regulation 47(F)(1) of the 2006 Regulations. Since the regulations made no provision for an extension of time, there was no power to extend time for service and even if there were such a power, its exercise was not justified.
The issues for determination were: (i) whether the unsealed claim form that was sent to the defendant on 3 November 2014 was properly to be regarded as a claim form for the purposes of regulation 47F; (ii) whether the claimant had served the claim form within seven days of starting proceedings as required by regulation 47(F)(1); and (iii) whether, if there was an irregularity, the court should exercise its discretion to cure it.
Held: The application was dismissed.
(1) There was no reason why the copy of the unsealed claim form that was served on the defendant by e-mail on 3 November, together with a copy of the signed particulars of claim with the statement of truth, should not be treated as the claim form that was served within the prescribed time. It was not served in accordance with the rules because it was not a claim form that had been sealed and issued, but that was an irregularity that could be cured: Pomiechowski v District Court of Legnica, Poland [2012] 1 WLR 1604 applied. Cranfield v Bridgegrove Ltd [2003] EWCA Civ 656; [2003] PLSCS 113 distinguished.
(2) Regulation 47F of the 2006 Regulations was to be construed so that “serve in accordance with rules of court” meant that valid service was achieved when the relevant step mentioned in CPR 7.5(1) had been completed. Provided that was done within the seven-day period, the requirement of the regulation would be met. For the purposes of acknowledging service and other steps in the action, the deemed date of service was to be as provided in CPR 6.14. There was nothing intrinsically difficult about serving a claim form within seven days of its issue. The fact that a time limit that could be extended in exceptional circumstances would meet the rare case where, through no fault of a claimant or its agents, it was prevented from serving the claim form in time.
In the present case, the unsealed claim form and particulars of claim had been sent to the defendants under cover of an e-mail dated 3 November 2014. By virtue of CPR 6.14, those documents were deemed to have been served on the second business day after the relevant step had been taken, namely, the sending of the e-mail. Thus, the documents attached to the e-mail of 3 November 2014 were deemed to have been served on 5 November 2014. Since the claim form had been issued on 3 November 2014, those documents had been served within seven days of the start of proceedings. That remained the case even if the documents were to be treated as having been served on 3 November 2014, the day on which the proceedings were started.
(3) The claimant had served the claim for within seven days of starting proceedings as regulation 47F(1) required but had not served it in accordance with the rules of court in that it had not been sealed and did not bear the claim number. That amounted to an irregularity. However, in all the circumstances, it was fair and proportionate, as well as in accordance with the overriding objective of the CPR, to cure the irregularity so that the proceedings could be regarded as having been properly brought. Therefore, the application to strike out the claim failed.
Sarah Hannaford QC (instructed by Quigg Golden Legal Ltd) appeared for the claimant; Jason Coppel QC (instructed by Geldards LLP) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read transcript: Heron Bros Ltd v Central Bedfordshire Council
