Public Service Contracts Regulations 1993 — Arboriculture — Respondent council seeking tenders for arboricultural work — Appellant’s application rejected — Whether appellant entitled to bring proceedings for breach of 1993 Regulations — Whether arboriculture amounting to property management services within Part A of Schedule 1 to 1993 Regulations — Appeal dismissed
The appellant ran an arboricultural business, and was one of four contractors used by the council for such work. In 1996, the council decided to contract out their arboricultural work to a single contractor. The appellant applied to be invited to tender for the contract, but the council rejected the application.
The appellant brought proceedings against the council, in which he claimed that they had acted in bad faith and had breached the requirements of regulations 11(8) and 21 of the Public Service Contracts Regulations 1993. The judge dismissed the claim after finding that the appellant had not fulfilled the conditions precedent for bringing such proceedings for breach. He further found that the contract in question was not covered by regulations 11(8) and 21, since it was not a contract for “property management services” within the meaning of category 14 in Part A of Schedule 1 to the 1993 Regulations, and was therefore governed by the more limited regime applicable to Part B contracts. The categories in Schedule 1 corresponded with central product classifications (CPCs) developed by the United Nations. Category 14 corresponded to CPC 822, which covered “management including renting, leasing or appraising services” and incorporated “Management services concerning agricultural, forest and other similar properties”. The appellant appealed.
Held: The appeal was dismissed.
The appellant had failed to fulfil the conditions precedent for bringing proceedings under the regulations. Moreover, a claimant who wished to say that the regulations rigorously applied to his claim bore the burden of proof of bringing himself clearly or substantially within a Part A category, and the appellant had failed to do that. The context of CPC 822, emphasising matters of renting, leasing and appraising, was not apt to apply to the contract in question, which concerned essentially specialist services that, while they might be contracted-in by a property manager, did not in themselves amount to property management. It was also questionable whether the areas of the borough concerned constituted “agricultural, forest and similar properties”. The council had not acted in bad faith.
Donald Broatch (instructed by JR Jones Solicitors) appeared for the appellant; Andrew Bird (instructed by the solicitor to Tower Hamlets London Borough Council) appeared for the respondents.
Sally Dobson, barrister