Time Limits

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Jurisdiction: England and Wales

Extension of time to bring procurement proceedings not justified

“33. I am in no doubt that the judge was wrong to exercise his discretion to extend time in the circumstances of this case. First, I do not accept that it was unreasonable to expect Jobsin to start proceedings before they were excluded from the tender process. On or about 14th August they were aware of all the facts that they needed to know in order to start proceedings. The judge seems to have been influenced by two factors in deciding that there was a reasonable objective excuse for Jobsin’s failure to start proceedings before they were excluded from the short list. These were that (a) they had no reason to believe that there had been any breach of the regulations and therefore no reason to consult solicitors to obtain advice as to the true legal position, and (b) even if they had known that there was a breach of the regulations, there were strong commercial reasons why it would have been reasonable for them to decide not to start proceedings until the tender process had been completed. I do not accept that either of these was a sufficient reason to extend time. As regards (a), in my view the lack of knowledge of the legal significance of facts of which a bidder is aware will not usually be a good reason for extending time. Although the maxim “ignorance of the law is no excuse” is not a universal truth, it should not in my view be lightly brushed aside. Regulation 32(4) specifies a short limitation period. That is no doubt for the good policy reason that it is in the public interest that challenges to the tender process of a public service contract should be made promptly so as to cause as little disruption and delay as possible. It is not merely because the interests of all those who have participated in the tender process have to be taken into account. It is also because there is a wider public interest in ensuring that tenders which public authorities have invited for a public project should be processed as quickly as possible. A balance has to be struck between two competing interests: the need to allow challenges to be made to an unlawful tender process, and the need to ensure that any such challenges are made expeditiously. Regulation 32(4)(b) is the result of that balancing exercise. It may often be the case that a service provider is not aware of the intricacies of regulations such as the 1992 regulations, and has little or no understanding of how they should be interpreted. If ignorance of such matters were routinely to be regarded as a good reason for extending the time for starting proceedings, the clear intent of regulation 32(4)(b), that proceedings should normally be started promptly and in any event not later than three months after the right of action first arose, would be frustrated. “

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Jurisdiction: England and Wales

The claim was time-barred because time ran from receipt of the standstill letter (when the claimant knew/ought to have known the basic facts) and proceedings were only commenced on service outside the 3‑month period, with no good reason to extend time. The Court held that a “good reason” for extending time will usually be something outside the claimant’s control that prevented timely issue or service, but no exhaustive or closed test was imposed. The Court also noted that the mere shortness of the delay is not, by itself, a good reason for an extension, because otherwise the statutory time limit would become the prescribed period plus some further random short period.

“22… (f) The question then arises as to when the three months period for the purposes of Regulation 45D (2), as now interpreted, started to run. Undoubtedly, the grounds for starting proceedings had crystallised on or by 23 September 2010 in that the marking was completed and the decision had been taken not to place the contract with Mermec but with Omnicom; any errors which occurred had occurred on or by that date. There is no doubt that the letter was received on that date by Mermec. There is no evidence and no suggestion that it was not seen and read on that date. The date of 23 September 2010 was a Thursday and neither that day nor the following day were public holidays. There is indeed no evidence that anything, like illness of critical personnel, intervened to prevent the relevant people considering the letter, its contents and its ramifications.

(g) I can see no reason why I should conclude anything other than that on 23 September 2010 or possibly within one or two days at the outside thereafter Mermec as a company had a knowledge of the basic facts which would indicate, objectively, that it had any arguable claim. By saying this, I do not necessarily accept that there was or is an arguable claim but the basic facts to support the claim which Mermec wishes to pursue were ascertainable at that time. There is nothing obvious which had happened between then and the time at which it formulated its claim in writing as put forward in the Particulars of Claim as would have made the Particulars of Claim incapable of articulation in their current from from on or about 23 September 2010. The test articulated by Mr Justice Mann in the Sita case is met as at 23 September 2010 or within one or two days at the outside. The basic facts which currently are deployed to support the Particulars of Claim were known at that time. If the relevant personnel at Mermec did not bother to look at the letter, which is inherently unlikely, that can not assist in deferring the time when the three-month period starts. It matters not that Mermec did not seek legal advice until 30 September 2010 although, interestingly Mr Whitlock does not actually say that legal advice was not sought before; he merely says (at Paragraph 7 of his second statement) only that the matter was not referred to him until 30 September.

…

(i) The fact that Mermec could not be certain about all the facts or that it definitely had an unchallengeable case does not mean that time does not start running. All that is needed is a knowledge of the basic facts which would lead to a reasonable belief that there is a claim. There is not one fact pleaded in the Particulars of Claim that was not ascertainable upon a reading of the 23 September 2010 letter. It might be said that the letter did not spell out, if indeed it was the case, that the accepted Omnicom bid was in relation to a “variant” but it is of interest that Mr Tracy’s note of the later 14 October 2010, although referring to the fact that Omnicom was proposing a “body mount” for the equipment as opposed to the “bogey mount” proposed by Mermec, does not suggest that this was information provided at the meeting. Be that as it may, the basic fact ascertainable on receipt of the 23 September letter must have been that, as Mermec itself must have known or believed (if indeed it is correct), its technical bid wholly met the Technical Requirements and should have been marked accordingly.

(k) Thus, if time started running as it must have done before 30 September 2010, that is more than three months before the date on which Mermec now accepts its Claim was served, its claim is barred by the three-month limitation period imposed by the Regulations as properly interpreted in the light of the relevant Directive.

23. The main remaining issue is whether or not there is some good or arguable reason why there should be an extension of time in effect to bring the service of the Claim on 30 December 2010 within time. I do not consider there is any such reason:

(a) There is no explanation from Mermec as to why the Claim could not have been drafted let alone served weeks before it was served.

(b) It is perhaps unhelpful to try to give some exhaustive list of the grounds upon which extensions should be granted but such grounds would include factors which prevent service of the Claim within time which are beyond the control of the claimant; these could include illness or detention of the relevant personnel. There must however be a good reason and none is advanced by the Claimant in this case.

(c) It is said that the delay was only some six or seven days and that there should be an extension for such an insignificant period because it is a relatively short delay. However, there is no point in having a three-month period if what it means is three months plus a further relatively random short period.

(d) The evidence is however that the Particulars of Claim were drafted and ready to be served on 22 December 2010 which of course would, just, have been within the three months period. No explanation has been offered as to why it was not served if necessary by hand on that date or even shortly before . There clearly was no problem preventing Mermec or its advisers from articulating a claim and serving it within a few weeks of 23 September 2010. Even if they hoped to get more information from Network Rail, it was clear from the latter’s letter of 28 October 2010 that no further information was provided. Certainly, all the basic facts relied upon in the Particulars of Claim were known well before them.

(e) It was said by Counsel for Network Rail that if, as appears at least possible, the Claim was served late as a result of some error on behalf of Mermec’s legal team, Mermec will have a claim for professional negligence against its lawyers and that should militate against the granting of any extension. I would rather not speculate as to whether there was any culpable carelessness on the part of the lawyers. There are several possibilities, one of which is professional negligence on behalf of the lawyers. Another is that there was a lack of urgency on the part of Mermec in the October to December period. As there is no explanation for the delays, that itself is reason enough to undermine any entitlement to an extension of time. Limitation periods are there for a purpose and extensions of limitation periods should be for good reason; there is no obvious good reason which has been floated in this case by Mermec, which is telling.

24. The final point taken by Mermec is that the three-month period does not begin to run until 10 days after (in this case) the e-mail communication of the 23 September 2010 letter. This is based on an interpretation of Regulation 45D. However, in my judgement, this simply does not work on the wording. Regulation 45D (2) talks about proceedings being started “within 3 months” and Regulation 45D (3) then talks about Paragraph (2) not requiring “proceedings to be started before the end of…10 days beginning with…the day after the date on which the decision is sent…”. One needs to remember that the 2009 Amendment Regulations which brought in Regulation 45D came into effect on 20 December 2009 before the first instance decision in Sita at a time when there was still an obligation to start proceedings “promptly and in any event within 3 months”; it is obvious that Regulation 45D (3) was primarily supposed to qualify the requirement for prompt commencement and it was that requirement to which that part of the Regulation was intended to relate. In any event, Regulation 45D (3) simply operates to confirm that proceedings do not have to be started; that is not inconsistent with starting within three months. If it had been the intention of the legislature or if there was anything in European legislation or directives which suggested that one always had to add on 10 or 11 days to whatever period one selected for proceedings to be commenced within, the wording would and could have clearly said so. It was said that some assistance might be provided by the formal Explanatory Note (expressed as being “not part of the Regulations”) or the Explanatory Memorandum to the Regulations but I do not consider that they materially assist.”

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Jurisdiction: England and Wales

Applying Uniplex, the claim was time‑barred because the 3‑month period runs from when the claimant knew or ought to have known the essential facts indicating a procurement infringement. Sita issued proceedings too late and later-disclosed information was merely further evidence/particulars that did not restart time.

“16. It is pertinent to note that there was no adverse comment in Uniplex on the fact that the period is limited to three months. Indeed the court emphasised the importance in cases of this kind of proceedings being initiated rapidly. The court’s judgment therefore strikes a balance between the principle of rapidity and the well-established EU principles of certainty and effective remedy.

17. Mann J sought to give effect to this analysis by the ECJ by disapplying the promptness requirement and exercising the discretion conferred by the regulation to secure that time would run from the date of actual or constructive knowledge, as the ECJ had suggested. Mr Bowsher submitted before us, as he did below, that this was not a legitimate way to give effect to EU law; he claimed that it contravened the principle of certainty. The court should simply have disapplied the whole regulation and applied a different limitation period, namely that applicable to claims for breach of statutory duty.

18. I do not accept that argument. The judge’s analysis was in my view wholly in line with EU law principles: it applies the three month period adopted in the national rules and fixes the point from which time runs as the date of actual or constructive knowledge. It does not contravene the principle of certainty because there is a duty, and not merely a discretion, to apply that principle in all cases. Furthermore, this approach preserves the principle of rapidity which is a central feature of the Directive and would be seriously undermined if the appellant’s argument were correct.

…

81. I have no doubt that Sita’s primary case fails, essentially for the reasons given by the judge. Sita was aware that the price of the contract had increased very significantly; that the capital costs had also risen; that the number of employees had risen, and that in all these respects its own tender came in lower than VL’s. It also knew, because the letter of 9 May 2008 made it abundantly clear (see para 53 above), that the facility being developed at Runcorn with Ineos Chlor involved a significant change in its original primary proposal for dealing with refuse derived fuel, resulting in a far greater capital expenditure than had been envisaged in its original proposal.

…

85. I have no doubt that Sita was aware that it had a prospective claim; it was right to say that on the material it had there was a “clear indication”, to use the judge’s language, that GMWDA was in breach of its procurement obligations. I do not accept that the further information referred to in paragraph 73(b) and (c) of the pleading materially altered the situation. These matters constituted further evidence of the same breach which could be deployed in making good the claim, but in my judgment these were merely particulars of an existing claim which reinforced the view that a cause of action existed. They were not necessary building blocks in establishing that cause of action.

…

89. … I am satisfied, as was the judge below, that time does not start afresh where what is being relied upon to start time running again is a further breach of the same duty, whether it in fact occurred before or after the breaches already known. The position may be different if a number of distinct duties can be spelt out of the procurement obligations; it may be said that time runs separately with respect to each duty. But Mr Bowsher properly did not contend that these further breaches could be said to relate to a different duty. They all went to the failure to reopen the bidding process. As I have said, in my judgment the matters being relied on as constituting the fresh breaches are simply further particulars of the infringement which could already be pursued. They do not constitute separate causes of action in their own right.“

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Jurisdiction: England and Wales

The claim was struck out because Turning Point knew, before submitting its tender, the essential facts underlying any complaint about inadequate TUPE/pensions information. The Court held that a short extension is not, by itself, a good reason to extend time because, otherwise, the statutory 30-day limit would effectively become 30 days plus some further discretionary period. A 'good reason' will usually be something beyond the claimant’s control but there is no exhaustive or exclusive test.

“36. I have formed the clear view that the allegations relating to breaches of the Regulations or Community law obligations generally as to the inadequacy or incompleteness of information provided to tenderers are barred by the 30 day statutory limitation period. My reasons are as follows:

(a) I proceed on the basis of the evidence which Turning Point itself puts forward. I therefore assume for the purposes of the application that the information provided relating to TUPE and pension provision was inadequate, although I make no finding about that.

(b) Turning Point itself through responsible staff knew and believed that the information was inadequate and incomplete and indeed, without it, it would have difficulty in tendering.

(c) It knew and believed this when it submitted the questions which it did between 21 December 2011 and 16 January 2012, when it received the answers to its and the other tenderers’ questions and, indeed, when it submitted its tender. The Note itself refers to “a lack of full and complete TUPE information”. Its witness evidence fully bears this out.

(d) Thus, Turning Point must have had knowledge of the basic facts which clearly indicated an infringement of the Regulations with regard to the basic inadequacy or incompleteness of the information provided by no later than the date upon which it submitted its tender (9 February 2012).

(e) The allegations made in Paragraph 43(1) to (4) of the Particulars of Claim are barred by the 30 day limitation period. The first three of these allegations relate to complaints about inadequate information being provided up to 19 January 2012, which is some 10 weeks before proceedings were served. The fourth allegation is a compendious allegation relating the failure to provide the information identified in the first three allegations to discrimination in favour of the incumbent service providers.

(f) The only way in which Turning Point can seek to get around this problem is to say that there was a continuing duty on the Council to provide information up until the time that it made a decision on the tenders and communicated that to Turning Point. There is no expressed obligation on the part of the Council to provide such information. There was no concomitant implied obligation either; such implication does not arise as a matter of statute or of contract (even assuming there was an implied contract) because it is not necessary to imply such an obligation, at the very least in the period after the submission of the tender. The mutual expectation contractually or legally can have only been that no such further information would be provided because the period after submission of the tenders would be taken up by the Council in evaluating the tenders. If further material information could be provided in this latter period, it would or at least could realistically inevitably lead to the revision of tenders and the re-commencement of a tendering exercise which was never envisaged within the ITT.

(g) Mr Williams QC argued that the answer to Question 38 suggested only an inability to provide information “at this stage” and that this left the door open to the Council to provide further information to tenderers up to the award of the contract. That answer cannot be read in that way by any stretch of the imagination. The overall answers and indeed the ITT itself makes it clear that full information will only be provided to the “successful bidder” and that entity would only emerge after the selection and award process had taken place.

37. The answer to the first issue is therefore “Yes”. One then has to consider whether Turning Point should be entitled to an extension of time. I do not consider that there is a good reason within the meaning of the Regulations to extend time. The reality is that Turning Point and its responsible officers were aware from January
2012 of the inadequacy and incompleteness of the TUPE and pensions information (as they saw and believed it to be). They knew that by the time of tender submission those complaints had not been remedied. The grounds relied upon are that the duty to provide such further information was a continuing one (which it was not). It is more than likely that Turning Point did not consider that it was a continuing duty which ran beyond the tender submission date at the latest; a continuing duty of that sort is not pleaded and is not even incipiently supported in its evidence. The final argument for an extension is that only a short period (put at 14 days) is sought and that it would be reasonable and proportionate for it to be allowed. That can not in itself be a good reason because the 30 day period is clearly defined and, if statutorily what was intended was 30 days plus a reasonable proportionate and short period, that is what the legislators would have written. A good reason will usually be something which was beyond the control of the given Claimant; it could include significant illness or detention of relevant members of the tendering team. Accordingly it follows that the answer to the second issue is “No”.”

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Jurisdiction: England and Wales

Time extended where an application to amend (but not new proceedings) had been brought within the time limit that applied to the bringing of proceedings

“38 It follows that the next question I have to consider is whether I should grant an extension of time, and if so, of what length. If I were not to grant such an extension, the Fresh Claim would be time-barred.

39 Plainly, at the time that PI sought permission to amend (well within 30 days of 13 March 2017), they could equally have commenced new proceedings and that might well have been a wise course of action. However, there was at the time no application to strike out the Original Claim and I can equally well see why it appeared more sensible and cost-effective to amend an existing pleading which set out the background in some degree of detail. There was some suggestion that that approach might have been taken to avoid the payment of an issue fee but I do not consider that that is borne out.

40 At the time the application was made, a Case Management Conference had been listed on 24 March 2017. Although PI had sought to change that date, they had subsequently said that they were prepared to go ahead on that date. By letter dated 31 March 2017, PI asked the Court to determine its application to amend on paper. By letter dated 3 April, HQIP’s solicitors set out its objections to the amendments and said that the matter required an oral hearing. A further letter from HQIP’s solicitors dated 11 April referred to a CMC now listed for 5 May 2017 for 1 hour but said that it did not think that adequate for the CMC and both parties’ applications, that is PI’s application for permission to amend and HQIP’s application to strike out which had been issued on 5 April 2017. The letter said: “There is a clear advantage in dealing with the above matters at one hearing, hence our suggestion that it be listed for half a day”. Following some further exchanges the matter was listed for half a day’s hearing on 8 June 2017.

41 The net effect was that PI had drafted its Fresh Claim and provided that draft to HQIP well within the 30 day period. PI was also in a position where it could have reasonably expected its application to amend to have been dealt with within the 30 day period but, as a consequence of correspondence about listing and hearing lengths, it was not. From the outset, HQIP’s argument was that the claim was time-barred yet at the same time HQIP wanted all the applications dealt with at once. Once the 30 day period had expired there was little to be gained from issuing a further Claim Form because an extension of time would still have been required. The only criticism that could be made of PI was that, as the expiry of the 30 day period approached, it did not, out of caution, issue a Claim Form. In the context of the procedural history, there seems to me to be a good reason to allow the extension, reflecting the fact that there was, in reality, no delay on PI’s part in advancing its claim, and that time passed simply in bringing the matter before the Court for an adequate hearing.

42 HQIP argues that I should not do so because there is a high threshold to overcome before an extension will be granted, relying on Mermec UK Limited v Network Rail Infrastructure Limited [2011] EWHC 1847 (TCC). In that case, Akenhead J concluded that Mermec had the relevant knowledge by 23 September 2010 when they were notified of the outcome of the bid process. They did not issue proceedings until 22 December 2010 or serve them until 30 December 2010. The Judge held that there was no good reason for the delay and that none was advanced by the Claimant:

“23 The main remaining issue is whether or not there is some good or arguable reason why there should be an extension of time in effect to bring the service of the Claim on 30 December 2010 within time. I do not consider there is any such reason:

(a) There is no explanation from Mermec as to why the Claim should not have been drafted let alone served weeks before it was served.

(b) It is perhaps unhelpful to try to give some exhaustive list of the grounds upon which extension should be granted but such grounds would include factors which prevent the served of the Claim within time which are beyond the control of the Claimant; these could include illness or detention of the relevant personnel. There must however be a good reason and none is advanced by the Claimant in this case ...”

43 I note first that the Regulations do not in terms impose a particularly onerous test. It is framed in terms of “good reason” not exceptional circumstances or some other such test and it does not seem to me that Akenhead J in Mermec set the bar any higher. Further he expressly did not set out any exhaustive list of relevant factors: the factors that he indicated I would regard as strong and obvious ones militating in favour of an extension but not as characterising the only sorts of factors that might be taken into account. The procedural history of this case is, in any case, wholly different from that in Mermec and I am not persuaded by reference to this authority to depart from my view that the extension should be granted.

44 I would add the following. If I am concerned only with the time limit in Regulation 92 and not the Limitation Act, then the only issue before me is whether I can and should grant an extension to commence proceedings by way of amendment. The Regulation contemplates that the Court may grant an extension to commence proceedings. Whilst it does not specify when that extension may be granted, it must at the least envisage that the extension is granted before the proceedings are commenced or retrospectively in proceedings that have been commenced without permission. Mr Coppel QC’s submissions were to the effect that, where the defendant has an arguable time-bar defence based on the “start date” for calculating time, the Court should not deal with the issue of extension on an interlocutory basis: the claimant must take its chances in issuing a claim and await, on a final basis, the court’s decision on the start date and any following decision on an extension of time. By analogy to the position where a Limitation Act defence is relied upon, that may be an appropriate way to proceed where there is an arguable defence but it seems to me to follow that the court must, therefore, first consider whether there is such an arguable case as to the start date and time bar. That is what the Court did in Mermec, deciding on an interlocutory basis (in that case in the defendant’s favour) what the start date was and then considering whether to grant the extension of time sought by the claimant.

Conclusion on amendment

45 My conclusions are therefore as follows: (i) there is no arguable case that PI knew or ought to have known that the grounds for starting proceedings had arisen earlier than 13 March 2017; (ii) although proceedings in respect of the fresh claim were not commenced within 30 days of that date, there is good reason to extend time to do so and to extend time by the maximum permitted period of 3 months from knowledge; (iii) the application to amend is, therefore, not made in respect of a claim that is time-barred and is one in respect of which I should exercise my discretion in the usual way; (iv) doing so, I allow the amendment – at this stage, I cannot conclude that the Claimant’s case is wholly without merit.

46 Although in the light of the Defendant’s application it will be necessary to further amend the Particulars of Claim, it is still convenient, and in accordance with the overriding objective, to incorporate this claim within the existing pleading with its background narrative and there is no prejudice to the Defendant in doing so.”

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Jurisdiction: England and Wales

On applications for an expedited trial and a stay, the Court noted that where the complaint is that the tender documents themselves are unlawful, the claim accrues when those defective documents are published, not when the contract is later awarded. The challenger must start proceedings within 30 days from when it first knew or ought to have known of the grounds.

Procurement of hand tools for essential military needs

Claimant’s application for an expedited trial; defendant’s application for a stay

The Court noted that this was a claim concerning the lawfulness of tender documents and noted in passing as follows (while a limitation defence was raised, there was no determination, on these applications, as to whether the claim had been brought in our out of time):  

“13. The vast majority of procurement disputes arise either from a challenge to the legality of the tender documents, or a challenge to the award of a contract following the tender process. If there is a challenge to the legality of the tender documents, then the challenger must commence proceedings within 30 days. Indeed, it is vital that such a challenge is made in that time because the challenger’s cause of action accrues when the defective tender documentation is published, not when a contract is awarded on the basis of that unlawful documentation: see Jobsin Co UK PLC v Department of Health [2001] EWCA Civ 1241. In that case, Dyson LJ said:

“27. Mr Lewis submits that neither the loss nor the risk of loss was caused by the breach of regulation 21(3) until Jobsin was excluded from the tender process on 17th November. I reject that submission for the following reasons. First, it gives no meaning to the words “risks of suffering loss or damage” in regulation 32(2). It seems to me that those words are of crucial significance. They make it clear that it is sufficient to found a claim for breach of the regulations that there has been a breach and that the service provider may suffer damage as a result of the breach. It is implicit in this that the right of action may and usually will arise before the tender process has been completed.

28. That brings me to the second reason. It would be strange if a complaint could not be brought until the process has been completed. It may be too late to challenge the process by then. A contract may have been concluded with the successful bidder. Even if that has not occurred, the longer the delay, the greater the cost of re-running the process and the greater the overall cost. There is every good reason why Parliament should have intended that challenges to the lawfulness of the process should be made as soon as possible. They can be made as soon as there has occurred a breach which may cause one of the bidders to suffer loss. There was no good reason for postponing the earliest date when proceedings can begin beyond that date. Mr. Lewis suggests that there is such a reason. He points out that if, in a case such as this, the limitation period runs from the date of publication of the tender documents, it will be possible for the contracting authority to rule out any real possibility of a challenge by issuing an invitation in breach of the regulations and then not taking any further steps in relation to tenders until after the three months period has expired. I confess that I find this an unlikely state of affairs, but I can see that it might conceivably happen. If it did, a service provider who wished to bring proceedings might have a good case for an extension of time: it would all depend on the facts. In my view, this cannot affect the plain meaning of regulation 32(2). I would therefore hold that the right of action which Jobsin asserts in the present case first arose on or about 14th August 2000. The essential complaint which lies at the heart of the proceedings is that there was a breach of regulation 21(3), in that the Briefing Document did not identify the criteria by which the DOH would assess the most economically advantageous bid.”

14. The need for speed where the challenge is to the tender documents was also explained by Cooke J in M Holleran Limited v Severn Trent Water Limited [2004] EWHC 2508 (Comm) when he said:

“41. In the case of the Regulations, there is undoubtedly a public interest purpose in the requirement for promptness as is shown by the European Directives, pursuant to which the Regulations were made. It is self-evident and also appears from other decisions on comparable regulations that, in the procurement context, the need for speed in raising complaints and dealing with them is vital, since the whole process of procurement is otherwise rendered uncertain and hopelessly disrupted. The need for a rapid and effective review and enforcement is predicated on the need for prompt complaint. Without prompt complaint and review, lists of contractors may be drawn up and the tendering process progressed or even completed, with alteration of position by other contractors, as well as the utility company…

53. As to prejudice to STW, the Court of Appeal decisions in Jobsin (ibid) at paragraph 40 and Matra v Home Office [1999] 3 AER 562 (per Buxton LJ at page 1663) make it plain that it is not necessary to adduce particular evidence of prejudice to third parties. As Dyson LJ says, it is inherent in the process itself that delay may well cause prejudice to third parties as well as detriment to good administration. One of the major purposes of proceedings is to enable procurement procedures to be corrected and for the Court to review and enforce any remedy required. Although Holleran’s claim is now limited to damages and the claim for any other relief has been abandoned, the effect of a damages claim on a complex contracts process and its unsettling disruption of it is prejudice enough.”

15. Of course, from a procedural point of view, a party seeking to challenge the lawfulness of the tender documentation may have a difficult decision to make. Assuming its court proceedings challenging the tender documents are up and running within the 30 days, the challenger then has to decide whether or not to seek an injunction to prevent the process from continuing on the basis of documents which it contends are unlawful. In my experience, applications for interlocutory injunctions at that early stage are relatively rare. That may be because the challenger will often remain involved in the tender process and is content to await the outcome of that process before seeking urgent relief from the court, or it may be because the challenger has accepted that the alleged illegality has excluded him from the contract award process and is content to seek damages as a remedy.

16. The infrequency of applications for interim injunctions at the tender stage may also be explained by a more pragmatic factor. It is only in the more straightforward cases that a challenger will be able to demonstrate, on an interlocutory basis, the unlawfulness of the tender documentation and that very often, an interim challenge may face something of an uphill struggle.”

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Jurisdiction: England and Wales

The Court refused to strike out Amey’s procurement challenge because certain claims, alleged to be out of time, were either in time or appropriately extended under Regulation 92 in light of a standstill agreement covering 10 days, the absence of prejudice or practical consequence from a short delay and the fact that other claims would proceed. Lack of prejudice was an important factor in respect of claims where the delay was not fully covered by the standstill agreement

Background

• Challenge to award decision in procurement for  a contract known as “Highways Term Service Contract 2018-2028”
• One of the claims was that instructions given by the Council on 19 January and/or 2 February 2018 to Amey about how it should structure its presentation of certain staff costs were unlawful (the “Instructions Claim”)
• Amey said its tender would have been the most competitive in the absence of adjustments made as a result of instructions given on 19 January and 2 February 2018 (the judgment refers to the these claims by reference to the paragraph numbers in the Particulars of Claim, [33.1] and [33.2])
• Amey notified it was unsuccessful on 14 February 2018
• Proceedings issued on 15 March 2018

Standstill Agreement

“27. During pre-action correspondence the parties discussed a standstill on time running for the bringing of any claim. On 1 March 2018 Amey’s solicitors asked the Council not to take any limitation point in respect of the period starting that day and ending at midnight on the third working day after receipt of the Council’s substantive response. The Council’s initial response was that “even on the most conservative view, [Amey] could not have acquired the requisite knowledge of a potential claim until it received the Council’s standstill notice on 14 February 2018” and that, by the Council’s calculations, Amey had until 15 March 2018 to issue proceedings. Amey maintained its request for a standstill agreement. On 5 March 2018 the Council confirmed that it would not take any limitation point for the period starting that day and ending at midnight on the third working day after the date of the issue of the Council’s substantive response to Amey’s letter of claim. That substantive response was issued on 12 March 2018, so that the standstill period ended at midnight on 15 March 2018. At the hearing, Mr Coppel QC confirmed on behalf of the Council that the standstill was agreed to start on and from 2 March 2018.”

Legal Principles on Time

“33. Two points are now established:

i) The degree of knowledge or constructive knowledge that is required to start time running is “knowledge of the facts which apparently clearly indicate, though they may not absolutely prove, an infringement”: see SITA v GMWDA [2011] 2 CMLR 32 at [26] and [31];

ii) It is not open to a bidder that detects an illegality during the course of the tender process to wait until the outcome of the process is announced before bringing a challenge: see Jobsin at [28], [38]. The policy that underlies this approach is of general importance in procurement cases and is that complaints should be brought promptly both in the interests of those directly concerned in the procurement in question and also in the wider public interest that tenders for public projects should be processed as quickly as possible: see Jobsin at [33].

34. The Court may extend time limits under Regulation 92(4) (up to a maximum of 3 months after time started to run) “where the Court considers that there is a good reason for doing so.” The policy considerations to which I have just referred reinforce the conclusion that the power to extend time limits will be exercised strictly: see Matrix-SCM Limited v LB Newham [2011]
EWHC 2414 at [14].

35. A number of authorities have considered what may be good reason for extending time limits, either in principle or on the facts of a particular case. Many have said that it would be unwise to try to provide a definitive list of what the Court will or will not take into account in assessing what may be good reason for extending time limits. I agree, for the simple reason that the Regulation does not impose any fetter or limitation upon what may be brought into account. For that reason I would not accept that the Claimant must show good reason for not issuing in time as a necessary pre-requisite to the exercise of the Court’s discretion under Regulation 92(4), although the absence of good reason for not issuing in time is always likely to be an important consideration. And when considering what other factors may be brought into account if appropriate in a given case, I note the summary in Matrix-SCM at [16] of the views of the Divisional Court (Moses LJ and Beatson J) in Law Society of England and Wales v LSC [2010] 2555 (Admin): relevant considerations will include (a) the importance of the issues in question (b) the strength of the claim (c) whether a challenge at an earlier stage would have been premature, the extent to which the impact of the infringement is unclear and the claimant’s knowledge of the infringement, and (d) the existence of prejudice to the defendant, third parties and good administration. For the reasons I have already given, I do not think that this should be regarded as an exhaustive catechism, even in general terms.

36. Although the strength of the claim may be a material consideration, it will often be hard to judge strength or weakness reliably when time-bars and possible extensions of time are decided at an early stage. As in other areas of the law where a discretion is to be exercised and the material considerations may include the strength of the claim, I would exercise considerable restraint and caution before concluding that the strength (or weakness) of a claim is so strong as to exercise a determinative influence. In many (if not most) cases the Court will only be in a position to conclude that the claim is not obviously hopeless or fanciful. I agree that, at least in a case where it is cannot be said that the merits are overwhelmingly strong (or weak), the fact that a claim is prima facie good and big “is not a particularly good reason for overriding the time bar”; and that while “one can imagine circumstances in which weakness or small size of a claim tells against the exercise of a discretion, … as factors in favour of it the size of a claim and its merits are weak.”: see SITA at first instance, per Mann J, [2010]
EWHC 680 Ch at [176]

Application

41. The claim for an extension of time for the [33.2] claim is straightforward. Time began to run on 2 February
2018 and expired on 2 March
2018. The period from 5 March to 15 March
2018 when proceedings were issued, is covered by the standstill agreement. The Council has not attempted to go behind that agreement and it would have been quite unconscionable for it to have done so. In my judgment the existence of that agreement is good reason to extend time to 15 March
2018 even allowing for the strictness of approach to which the authorities refer. I order that time be extended accordingly.

42. The claim for an extension of time for the [33.1] claim is obviously different. Time expired on 19 February
2018 and had therefore expired before the standstill agreement came into force. No reason (good or otherwise) has been advanced to explain why proceedings were not issued in time. Two points are taken. The first is that the delay between 19 February and 2 March
2018 did not cause any prejudice, and the period from 2 to 15 March is covered by the standstill agreement. The second is that the claim is not merely strong but unassailable because no substantive defence has been pleaded. I take the points in that order.

43. I accept that the delay between 19 February and 2 March
2018 is the critical delay because there is good reason thereafter provided by the standstill agreement. In relation to the period between 19 February and 2 March
2018 I also accept that no prejudice has been suffered by the Council. I would go further and accept that there has been no material prejudice to the wider public interest. That is because, even if Amey had issued proceedings in respect of the claim now included in [33.1] of the Particulars of Claim within time [it] is overwhelmingly probable that it would have made little or no progress until the claims under [33.2] and the Manifest Error Claims were issued at a later date. It is inconceivable that the Court would have permitted the parties to litigate the [33.1] claim separately from the other complaints that Amey raised on and from the date of its letter of claim on 21 February
2018. Accordingly, this is a case where not merely can it be said that there is no prejudice, but the delay in relation to [33.1] has been of no practical consequence at all.

44. Turning to Amey’s second submission, it is unrealistic and procedurally impossible to ignore the fact that the Council has very recently submitted a draft Amended Defence which seeks to raise a substantive defence to the Instruction Claims. The Council says, and I accept, that it initially decided to raise its pre-emptive arguments on time-bar and to leave its substantive defence to the Instruction Claims unpleaded. In the experience of the Court this is by no means a unique procedural approach, though it carries risks if the pre-emptive arguments fail. Furthermore, it is relatively common for a defendant, when confronted (as the Council is) by a claim for summary judgment, to seek to bolster its position by amending its Defence.

45. The proposed amendments raise issues of fact, law and mixed fact and law. In answer to a direct question from the Court, Mr Coppel QC confirmed that, as pleader, he has evidence to support and justify the allegations of fact that he now wishes to add by amendment. I accept his assurance. Though the proposed substantive Defence (both legal and factual) is likely to prove contentious, it cannot be said, on present information and submissions, to be fanciful or so insubstantial that it can safely be dismissed.

46. In these circumstances, and applying the strict test to which I have referred above, I would exercise my discretion in favour of extending Amey’s time for bringing the claim under [33.1] of the Particulars of Claim. To my mind, it would be sterile and potentially unjust not to extend time when, as here, it can be seen that the short delay has made no difference at all because of the existence of the other claims that would necessarily have slowed the progress of the [33.1] claims even if issued in time.”

View Case

Jurisdiction: England and Wales

No good reason to extend time for proceedings issued outside the 30-day time limit; the contracting authority's correspondence disputing the claim and calling on the tenderer not to issue proceedings, did not constitute a good reason for an extension

Following correspondence from SRCL, in a letter of 19 May, the contracting authority agreed to perform an investigation. The contracting authority asked SRCL in that letter not to issue proceedings. The results of the investigation were delivered on 13 June, with the contacting authority rejecting the claim that the winning bid was abnormally low. Proceedings were issued on 30 June 2017.

“137. [Even] though SRCL knew that the winning bid was £310,000 on 26 April 2017, and SRCL had formed the view that this was abnormally low, proceedings were not issued within the required period of 30 days from that date…

154. In my judgment, the following principles apply where an extension of time is sought under Regulation 92(4):

(1) There must be a good reason for extending time.

(2) One of the matters that the court will consider is whether there was a good reason for the claimant not issuing within the time required, such as an illness or something out of the claimant’s control which prevented the claimant from doing so.

(3) It would be unwise to list or seek to limit in advance what factors should be considered to have relative weight to one another in that exercise.

(4) The court will take a broad approach in all the circumstances of the particular case.

(5) The categories are not closed or exhaustively listed in the cases. Lack of prejudice to the defendant is not a determinative factor.

155. I do not consider lack of prejudice to the contracting authority to be relevant at all in this particular case. Firstly, prejudice can take many different forms, and delay alone can constitute prejudice. Further, there are other features relevant to public policy which are integral to these strict time limits, which apply in any procurement case. They are the ones identified in Jobsin v Department of Health, and constitute the wider public interest. Turning to all the circumstances of this particular case, rapidity is particularly important. NHSE was attempting to reduce the cost to it of supplying these services, and the bidding in this case (even the sole bid submitted in the auction by SRCL) shows quite how high the gross profit margin was on the provision of these services by the incumbent. I consider that to be a relevant factor of this case which makes it particularly important that challenges to this procurement exercise be brought within the strict time limits. In my judgment, this militates against an extension of time. However, even were I to perform the exercise of considering whether there was a good reason for SRCL’s failure to issue within time, and entirely ignore the subject matter of the procurement and the reasons for it being required, I would in any event conclude that there is no good reason to extend time in this case.

…

161. I have carefully analysed the inter-solicitor correspondence in the period from the auction being held to the issue of proceedings over two months later on 30 June 2017. There is nothing in that correspondence that constitutes a good reason, in my judgment, nor is there anything in it to justify SRCL deciding it need not issue a claim form. The NHSE, through its solicitors, were adamant that there had been no breach of the regulations, and that the winning tender was not abnormally low. This approach was consistent, and was entirely justified, and as Mr Johnston said, the winning bid was “of the same order” as those which had been obtained in the other auctions for Waves 1 to 5, including winning bids from SRCL itself. I do not consider that the fact that the NHSE, in order to avoid having to face expensive and pointless litigation, agreed to perform an investigation in any event re-sets the clock for the purposes of Regulation 92(2) nor does it constitute a good reason for an extension. Even if it did, and even after the results of the investigation were provided to SRCL, it still waited until 30 June 2017 to issue. That was not even done promptly or swiftly.”

View Case

Jurisdiction: England and Wales

Engagement in pre-action investigations or correspondence was not a good reason to extend time. Claim struck out.

“23.  However, and taking all necessary account of the appropriate caution with which a court should approach striking out and summary judgment applications, it seems to me clear that the claimant in this case knew or ought to have known of the CHKS requirement not later than 23rd January 2018.

24. In that context I would refer to the following matters:

(1)  The OJEU Notice of 30th November 2017, page 38 of the bundle;

(2)  Mr. Ellis’s e-mail of that date (which I have already referred to);

(3)  The conversation between Mr. Ellis and Mr. Walker on 1st December. Although that is referred to in an e-mail there is no controversy as to what was said on that occasion as is apparent in the evidence served on behalf of the claimant;

(4)  The letter from the claimant of 23rd January 2018 which, as I have already mentioned, contains an express challenge to the CHKS requirement.

25. I accept that, as Mr. Bowsher submits on behalf of the claimant, the invitation to tender issued on 11th April expressed the CHKS requirement in a somewhat opaque fashion but that seems to me irrelevant in circumstances where Regulation 92(2) had already been satisfied.

26. I do not think that the claimant can escape that conclusion by pointing to the MoD’s refusal in May to amend the tender documents. That is the case advanced at paragraph 19(ii) of the particulars of claim. It seems to me that, for the reasons already explained, the claimant had grounds to proceed by not later than January 2018. The claimant cannot, so to speak, evade the requirements of Regulation 92(2) by inviting the MoD subsequently to amend the tender documents. By that time, that is to say the date of the request for amendment to the tender documents, time was running if it had not already expired. I have considerable doubt as to whether a complaint that a contracting authority will not amend tender documents comes within the Regulations in any event, but it is not necessary for me to decide that point.

Extension of time

27. Regulation 92 further provides that:

“(4)  Subject to paragraph (5), the Court may extend the time limits imposed by this regulation (but not any of the limits imposed by regulation 93) where the Court considers that there is a good reason for doing so.

(5)  The Court must not exercise its power under paragraph (4) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.”

28. Given my conclusion that the claimant’s right of action had arisen not later than 23rd January 2018, I have no power to extend time to 8th June 2018 in any event because that is more than three months after 23rd January.

29. In those circumstances it is not necessary for me to say very much about the extension application. However, I note that in SRCL (which I have already referred to) Fraser J gave guidance at paragraphs 149, 153 and 154 as to how one might approach an extension of time under Regulation 92(4) . I note in particular that he observed at paragraph 149:

‘”Good reason’ should, ordinarily, relate to some factor that has an effect upon the ability of a claimant to issue.”

29. It does not seem to me that, applying that approach, there would be a good reason here for an extension of time. It has not been suggested – and I have seen no evidence to show – that the claimant was in any way disabled from issuing proceedings at any particular time. The claimant may have either decided not to pursue proceedings or may have misunderstood the position or thought that it could persuade the MoD to take a different line. Those are all possible scenarios, but none of those, as it seems to me, would come close to constituting a good reason as envisaged by the Regulation.”

Permission to appeal to the Court of Appeal was was refused

View Case

Jurisdiction: England and Wales

Claims brought out of time; no good reason for an extension of time; the fact that claimant discovered later than its exclusion the price of the winner and at that point considered it would have won but for the exclusion, did not set time running again; none of the reasons put forward were good reasons for extending time ((i) holiday period; (ii) time spent exploring alternatives to litigation; (iii) claim it did not have all the information to formulate a claim until it knew the winning tender's price).

Background

• Procurement for a contract for the supply and maintenance of fleets of tractor cabs and trailers.
• 29 November 2019: Claimant told its tender was rejected for failing to comply with the terms of the ITT
• 24 January 2020: Two claims were issued, one under the Procurement Regulations and the other by way of Judicial Review

“40. It follows that a breach which causes loss or a risk of loss is actionable from the date of the breach. The risk does not have to come to fruition and the loss of which there is a risk does not have to be suffered before proceedings can be commenced. An economic operator who knows or ought to know of a breach which has caused a risk of loss has 30 days from the time of that knowledge to commence proceedings. As Fraser J explained in SRCL Ltd v NHSE [2018] EWHC 1985 (TCC), [2019] PTSR 383 this means that time can start running before the conclusion of a procurement exercise and that there can, and potentially should, be multiple proceedings in relation to the same procurement exercise. Fraser J put matters thus:

“140 Time starts running from the date when a party has all the necessary information to know that it has a claim. This may even predate the result of the procurement competition, which is the earliest that an aggrieved tenderer will know it has been unsuccessful in the procurement. This is again different to the relevant starting date for time running under the Limitation Acts, as that is usually the accrual of a cause of action.

…

“158 …. It is not unusual in procurement cases to have more than one claim form issued in respect of the same procurement competition. Often there will be three different claim forms, sometimes four, and very occasionally more than that. This is a well-known and practised approach in procurement cases. Sometimes new information (for example on how an evaluation was performed) becomes available to a claimant on disclosure, and another claim form is issued on the basis of that new information. The only disadvantage to a claim is the incurring of the fee charged to issue a claim, which most litigants would usually wish to avoid. However, the wish to avoid incurring an issue fee is not a good reason within the terms of regulation 92(4). The same approach of issuing a protective claim form can be adopted if a litigant feels it has the necessary knowledge in advance of the procurement exercise being completed, or here, in advance of the auction being conducted. …”

41. Where an economic operator has a number of different grounds of complaint and asserts a number of different deficiencies in a procurement exercise there can be different dates for the start of the 30 day period under regulation 92(2) in relation to the different grounds of complaint– see again per Fraser J in SRCL Ltd v NHSE at [141].

42. Thus a breach is actionable once it has caused a risk of loss to an economic operator. The proceedings must be commenced within 30 days of the date when the economic operator first knows or ought to have known that grounds for starting proceedings had arisen. In Sita UK v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156, [2012] PTSR 645 the Court of Appeal explained what constitutes knowledge for these purposes. Elias and Rimer LJJ (at [26] and [91] respectively) adopted the test which had been applied by Mann J at first instance namely that:

“The standard ought to be a knowledge of the facts which apparently clearly indicate, though they need not absolutely prove, an infringement.”

43. In the context of the current case it is also relevant to note that at [32] and [33] Elias LJ addressed the question of whether the issuing of a letter of claim (as was required under the regulations then in force) necessarily indicated that the proposed claimant had sufficient knowledge to start time running. He explained that this might not be the case where the writer of the letter was deliberately exaggerating his perception of the facts or was mistaken as to the circumstances or as to the correct test but then said:

“On any view, a claimant who issues a statutory letter intending it to be a genuine statement of his belief that there has been a breach of the Regulations and that he is proposing to commence proceedings, will find it difficult to deny that he had sufficient knowledge to start time running, at least as regards the breach or breaches identified in the letter.”

44. When considering questions of the correct interpretation of the Regulations the court is to have regard to the policy considerations underlying the Regulations and in particular the time limits which they contain. As Fraser J said in SRCL Ltd v NHSE at [139]:

“Procurement cases have their own separate time limits, and these are imposed by the PCR 2015, which implement the Directive. They are very short, and deliberately so. There are good policy grounds for such an approach. In Jobsin Co UK plc (trading as Internet Recruitment Solutions) v Department of Health [2002] 1 CMLR 44 Dyson LJ said, in relation to an earlier version of the Regulations, at para 33:

`Regulation 32(4) specifies a short limitation period. That is no doubt for the good policy reason that it is in the public interest that challenges to the tender process of a public service contract should be made promptly so as to cause as little disruption and delay as possible. It is not merely because the interests of all those who have participated in the tender process have to be taken into account. It is also because there is a wider public interest in ensuring that tenders which public authorities have invited for a public project should be processed as quickly as possible. A balance has to be struck between two competing interests: the need to allow challenges to be made to an unlawful tender process, and the need to ensure that any such challenges are made expeditiously. Regulation 32(4)(b) is the result of that balancing exercise.'”

Is the Procurement Claim out of Time?

45. The Claimant, through Mr. Chaisty QC, contends that time for the Procurement Claim did not begin to run until 10^th January 2020 because it was only then that the Claimant learnt the amount of Monks’ tender. It was only then, the Claimant says, that it learnt that but for its exclusion from the evaluation process it would have been the Most Economically Advantageous Tenderer and as such entitled to be awarded the contract. The Claimant’s position is that until then it did not know that it had suffered loss as opposed to having suffered the loss of a chance. Alternatively it characterises the proceedings as a challenge to the decision to award the contract to Monks when the Claimant had submitted a better price and says that it was only aware of this on 10^th January 2020.

…

61. My understanding of the effect of those authorities is that:

i) There can be multiple challenges in respect of a single procurement process. That is because there can be multiple decisions which are in breach of the contracting authority’s duty and which cause loss or the risk of loss to the economic operator.

ii) Time can begin to run at different dates in respect of different breaches.

iii) It is not correct to say that the date of the contracting authority’s entry into a contract with a competing economic operator is typically the date when time begins to run for a claim by an economic operator (as opposed to an individual or body bringing a public law challenge). Indeed, the converse is the case and typically time will have begun to run at a stage rather earlier than the entry into the contract because it is at that earlier stage that the authority’s breach of duty causing loss or a risk of loss is likely to have occurred.

iv) The court has to consider what decision is in truth being challenged or is being said to be the relevant breach of duty. If the claim is in reality founded on an earlier decision of the authority then a later decision giving effect to it does not set time running again.

v) Where there are a series of breaches time runs from the date of knowledge of each breach and not from the end of the series.

…

81. The first matter relied on in Mr. Whittingslow’s statement is the intervention of the Christmas and New Year holiday period. He says that this shortened the time available for bringing proceedings meaning that the claim would have been needed to have been filed by 20^th December 2019 to meet the 29^th December 2019 and he says that this was “impossible in all the circumstances”. For the Defendant Mr. Watt has pointed out that the court offices were open for business on 23^rd, 24^th, and 30^th December 2019. I conclude that the intervention of the holiday period is not a good reason for extending time in the circumstances of this case. It was or should have been readily apparent to the Claimant that there would be a period of time when the court offices would be closed and that should have prompted greater urgency on its part. The contention that the holiday period provided a good reason for extending time would carry considerably greater weight if the proceedings had been commenced immediately after the break period. If the Claimant had issued its claim form in the first week of January 2020 then it may well be that the closure of the court offices and the taking of leave by those involved in preparing the claim might well have operated as a good reason for extending time but it cannot assist in respect of proceedings which were not started till 24^th January.

82. The next contention is that the Claimant acted reasonably in spending the first week of the 30 day period in seeking to explore alternatives to litigation by asking the Defendant to reopen the tender process. It is, of course, reasonable and proper for parties to seek to avoid litigation. However, in the context here the correspondence in that regard cannot be seen as a good reason for extending time for the commencement of proceedings. The Claimant had challenged the exclusion of its tender by the letter of 2^ndDecember 2019 and had stated that there would be a “legal challenge” if this was not done. The Defendant replied in detail on 6^th December 2019 maintaining its stance and explaining its position. That was well within the time limit for commencing proceedings. In those circumstances the fact that the Claimant did not issue proceedings immediately after receiving the Rejection Decision but instead gave the Defendant an opportunity to reopen the process is not a good reason for the extension of time now sought.

83. The third matter put forward is the contention that until it knew the amount of Monks’ tender which it learnt on 10^th January 2020 the Claimant “did not have all the information that enabled it to fully formulate” its claims because until then it did not know that if it had not been disqualified it would have won the contract. I have already explained why the Claimant’s argument that it did not have the requisite knowledge to bring the claim until this date is unsustainable. The knowledge that Monks’ tender was at a higher price than the Claimant’s was relevant to the potential value of the Claimant’s claim. It was relevant to the question of whether it was commercially worthwhile for the Claimant to bring proceedings. However, that does not mean that the fact that the Claimant only learnt of this in January 2020 is a good reason for extending time. To the extent that the Claimant delayed starting proceedings until after it knew that its claim might have a substantial value then it was choosing to delay because it wanted to avoid the expense of proceedings from which there might be little to be gained. That was not a factor having any impact on the Claimant’s ability to commence proceedings as opposed to the very different question of whether it was worthwhile for the Claimant to do so. Accordingly, this does not amount to a good reason for extending time.

87. The Claimant says that the Defendant should have realised that the Claimant was mistaken as to the appropriate proceedings (namely referring to judicial review proceedings rather than a claim under the Regulations) and as to the relevant time limit (namely three months rather than thirty days). It says that the Defendant should have responded promptly telling the Claimant of the error and pointing out that the time limit for bringing a claim under the Regulations was fast approaching. This contention cannot be sustained. R (ex p Huddleston) v Lancashire CC is authority for the proposition that when a public law challenge is put to the decision of a local authority or other public body then that authority or body should respond in a non-partisan manner and should “put its cards on the table” so as to enable a proper assessment to be made of the lawfulness of its decision. The argument advanced by the Claimant goes considerably further than that. That argument involves the Defendant being criticised for failing to point out the true position in response to a letter of claim in circumstances where the Claimant was represented and where the Claimant’s lawyers were asserting a claim on a particular basis. It amounts to saying that the Defendant should have responded with unsolicited advice saying that instead of considering a judicial review claim the Claimant should consider a claim under the Regulations and pointing out the time limit for doing so. In essence it is being said that the Defendant should have advised the Claimant as to the best way in which to bring a claim against the Defendant. There was no obligation on the Defendant to act in that way and its failure to point out the errors of the Claimant’s lawyers was not a breach of its obligation of candour or of any other duty. The Defendant is not to be criticised for its response to the letter of 18^th December 2019 and there is nothing in its response or in its failure to respond in the way which the Claimant contends it should have done which can be a good reason for extending time.

…

89. Although public interest can be relevant when a court is considering whether to extend time for judicial review proceedings it is not a relevant factor when considering whether there is a good reason for extending time in a procurement claim. Such a claim is not a public law remedy. It is a private claim by an economic operator seeking redress for the alleged breach of a duty owed to that operator and which has caused the operator loss or the risk of loss. There is a general public interest in ensuring that those who suffer loss through the breach of legal duties owed to them are able to obtain redress through the courts. In my judgement the relevance of public interest goes no further than that in these circumstances. Moreover, that general public interest in the provision of redress for legal wrongs is to be balanced against the public interest in the rapid processing of tenders for public projects and in the speedy resolution of disputes arising out of the tendering process (see per Dyson LJ in Jobsin v Department of Health at [33]). The strict time limits laid down in the Regulations show where Parliament has drawn the balance between those competing public interests.

…

91. The Claimant says that there would be no prejudice to the Defendant or to any third party if the court were to grant an extension of time. The Claimant accepts that this is not determinative of the question but says that it is a relevant factor when the court is taking a broad approach. I will deal with the competing contentions as to whether prejudice has been suffered when I consider the potential extension of time for the Judicial Review Claim. It will be seen that the Defendant and Monks challenge the Claimant’s contention that an extension of time will not cause prejudice. It suffices here to say that the absence of prejudice even if it were to be shown by the Claimant would not be a good reason for extending time. In SRCL Ltd v NHSE Fraser J did not expressly say that prejudice or its absence could be never be relevant to the question of an extension of time for proceedings under the Regulations. However, it is of note that, at [153], he included the existence of prejudice in his summary of the factors to be taken into account when considering whether to extend time for judicial review proceedings and omitted it from the immediately following list of the principles governing the extension of time under the Regulations. In addition he said that he did not regard the absence of prejudice as of any relevance in that case. In my judgement the fact that prejudice would be caused by an extension of time is capable of being a factor against the grant of an extension. However, care will be required before it can be said that there is prejudice which should operate as a factor against the grant of an extension in a particular case. The relevance of prejudice as a factor militating against an extension and the matters which constitute prejudice are likely to be very different in cases where an economic operator seeks damages under the Regulations and no other remedy and in those where the quashing of a decision is sought by way of judicial review. However, it does not follow from the proposition that the existence of prejudice can be a factor against the grant of an extension that the absence of prejudice amounts to a good reason for granting an extension. The position is akin to that which I have described above in relation to the promptness of the application. Just as delay would operate as a factor against granting an extension so would the presence of prejudice and just as promptness in applying does not amount to a good reason for granting an extension similarly the absence of prejudice is also not a good reason.

92. Finally, Mr. Chaisty urged me to have regard to the merits of the claim as a factor in favour of the extension of time. There has been no application to strike out the Procurement Claim and so I will proceed on the basis that it is a claim which is reasonably arguable. I am not, however, in a position to assess the merits in any more depth than that and it is apparent that the claim is strongly resisted by the Defendant. I do not regard the merits of the claim here as being a good reason for extending time.

93. None of the matters set out by the Claimant amounts of itself to a good reason for extending time. I have also considered them as a combination of factors taking a broad approach to see whether in the circumstances seen as a whole there is a good reason for extending time. In that exercise it is relevant that the Claimant was not pointing to matters outside its control as having prevented it from commencing proceedings in time. The reality is that the Claimant failed to start the Procurement Claim in time because it adopted a mistaken view of the appropriate line of challenge and of the applicable time limits and because it was not minded to commence proceedings until it knew whether or not it would have been the successful tenderer if it had not been excluded because until then there was a prospect that the proceedings would not be worthwhile commercially. None of that amounts to a good reason for an extension and I have concluded that even when the matter is viewed in the round there is no good reason for an extension and so the application for an extension must fail.

…

98. It follows that the application for the extension of time of the Judicial Review Claim is to be considered in the light of the principles governing the extension of time for judicial review claims generally albeit doing so in the context of a procurement process where there is a particular public interest in the speedy resolution of disputes.

…

101. The potentially relevant considerations for current purposes are:

i) Whether there is a reasonable objective excuse for the claim having been commenced out of time.

ii) The presence or absence of prejudice to the Defendant and/or third parties.

iii) Whether the public interest requires that the claim be allowed to proceed. This was a potent consideration in R (ex p Greenpeace) v Secretary of State for Trade and Industry [2000] 2 CMLR 94 and is a factor on which the Claimant places reliance in the current case. In considering the public interest account is to be taken of the merits (see per Maurice Kay J at [76]). However, it is to be noted that Greenpeace was a particularly strong case. There the judge had heard full argument on the merits and had come to the clear conclusion that the regulations in question were unlawful. That conclusion related to the lawfulness of regulations of general application and Maurice Kay J explained that his finding as to their lawfulness was a “matter of substantial public importance.” In addition when considering the impact of public interest and whether it calls for an extension of time account must be taken of the counterbalancing strong public interest in the speedy resolution of disputes relating to public procurement exercises

…

113. It follows that at the very lowest there is a real risk of prejudice to Monks by reason of the delay in the commencement of the proceedings. That is a factor operating against the grant of an extension. Even if the position had been that the risk of prejudice was not present the absence of prejudice caused by the delay would not of itself justify an extension of time.

114. In those circumstances there is no basis on which it would be appropriate to extend time for the commencement of the Judicial Review Claim.”

View Case

Jurisdiction: England and Wales

No “good reason” to extend the 30-day time limit where the failure to issue in time arose from a mistaken conflation of the standstill period with an extension of the limitation period; unavailability of lawyers was not a good reason to extend time

Background

• Mini-competitions for lots of contract for adult learning supported living services
• 7 February 2020: Claimant informed it is unsuccessful
• 11 March 2020: Proceedings were issued
• Three claims: one was that the ITT breached the principle of transparency because it was not capable of being understood in the same way by all reasonably informed tenderers; the other two challenged the evaluation
• Common ground that the time limit on the grounds challenging the evaluation expired on 9 March 2020
• Defendant argued that time on the ITT claim ran from its publication and time could not be extended as that was more than 3 months before
• Regulation 92 provided:

“(1) This regulation limits the time within which proceedings may be started where the proceedings do not seek a declaration of ineffectiveness.

(2) Subject to paragraphs (3) to (5), such proceedings must be started within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.

…

(4) Subject to paragraph (5), the Court may extend the time limits imposed by this regulation (but not any of the limits imposed by regulation 93) where the Court considers that there is a good reason for doing so.

(5) The Court must not exercise its power under paragraph (4) so as to permit proceedings to be started more than 3 months after the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen.”

• On the basis of correspondence, the Council agreed to extend the standstill period and said it would give the claimant “10 days advance notice in writing of any intention to proceed to award these contracts.” The Council issued its substantive response to the claims made in the pre-action correspondence on 3 March 2020, rejecting the basis of the claims and stating that the standstill would end at the end of 13 March 2020.

“25. Ms Spowart’s [the claimant’s solicitor] evidence is that she thereafter tried urgently to arrange a conference with counsel. The first day on which counsel was available was 9 March 2020 and the trustees took the decision to issue proceedings on 10 March 2020. Proceedings were issued the following day. Both Mr Harris and Ms Moorey, chair of the board of trustees, explain that the claimant had never been involved in litigation before and that, as a charity, the decision to commence proceedings was a serious one.

26. In the event, the proceedings themselves were subject to a stay and no new contracts were placed, as the Council recognised the merits of continuity in provision during the pandemic. The stay was without prejudice to any limitation point the Council might take.”

66. I start with the two matters where it is common ground that the 30 day limit expired on 9 March 2020, that is the claims in paragraphs 15(6) and (8).

67. There is no reason why the claimant could not have commenced proceedings by that date. There was nothing to prevent the claimant from doing so and nothing that was outside the claimant’s control. The claimant accepts this. In reality, the reason the claim was not commenced sooner was that Ms Spowart equated the standstill for the purposes of contract award with a standstill for the purposes of limitation. She apologises whole-heartedly for the error.

68. As I have observed, with the benefit of hindsight, one might be able to see some indication of the error in the correspondence but, it is not suggested, and it could not be, that the defendant was aware of this and sought to take advantage of it.

69. I recognise that the claimant is a charity and that the strictures applying to it in terms of decision making are significant and important but there was nothing to stop it preparing to issue proceedings, if so advised, within the time limit. The unavailability of counsel is not and could not be relied upon other than in exceptional circumstances.

70. Mr Burton QC’s submissions addressed the merits of the claimant’s claim and Mr Harris’ evidence speaks to the devastating impact that losing these contracts will have on the claimant’s ability to provide services or even to survive. But I do not see that the merits of the claim are a relevant factor – if they were, in every case of this nature, the court would have to embark on a preliminary assessment of the merits which cannot have been the intention of the regulation. There may be exceptionally strong or weak cases where the merits would be a factor respectively for or against the grant of an extension of time but this is not such a case.

71. The fact that the delay was short is similarly not, in my view, a sufficient reason to extend time. Mr Burton makes the point that in none of the authorities cited where an extension was refused was the delay only a couple of days. But if there is a time limit, it has to be observed unless there is some good reason otherwise. In Mermec, Akenhead J referred to a short extension as some “random” period and Mr Burton submitted that the present case was distinguishable because the period was not random but reflected the standstill agreement. That is not, to my mind, the point Akenhead J was making. Rather it was that if a short delay of a day or two would be a reason to grant an extension of time, then why not 3 days, and then why not 4 days and so on. That is the point that Akenhead J made in Mermec and Turning Point and I agree.”

…

“73. It is accepted that an error was made in conflating the extension of a stay on the letting of the contract with a stay of proceedings and corresponding extension of the limitation, and that was not in itself a good reason to extend time. But Mr Burton submitted that since the purpose of the short time scale for issuing proceedings is to prevent or mitigate delay to the letting of any contract, it made no difference to the Council whether the proceedings were issued within the limitation period or before the end of the stay on entering into any contract. There was therefore a good reason to grant the extension of time as it made no practical difference to the position of the Council and caused no prejudice to the Council. That submission reflected the reasons given by Stuart-Smith J for granting an extension of time in the Amey case.

74. Attractive though that submission may seem, I am unable to accept it. The claimant’s argument is in reality one as to why there is no good reason not to extend time rather than why there is a good reason to do so. If I were to accept that approach, I would, in effect, treat lack of prejudice to the defendant as the determinative factor and that would be wrong in principle and not accord with the decided cases.

75.In any event, it seems to me that there is a real prejudice to the Council and the administration of its business in the grant of an extension of time. Normally the standstill period expires before the limitation period. That provides an incentive to the claimant to issue proceedings if it wishes to effect a suspension of the authority’s ability to enter into a contract and have the decision set aside. The extension of the standstill period, therefore, gave the claimant a significant benefit, firstly, in that there was no risk of a contract being entered into during the period between the end of the statutory standstill period and the expiry of the limitation period and, secondly, providing a longer period or potentially longer period in which the claimant’s provision of services was unaffected by the letting of new contracts. But the corresponding benefit for the defendant was the knowledge that as soon as the standstill period expired, which was after the expiry of the limitation period, it would be able to let the new contracts free of any risk that the claimant would issue proceedings and cause that process to be suspended and the Council could plan accordingly. The grant of an extension of time would have disrupted that process. The fact that there is no direct evidence of that effect is immaterial because the concern is with the wider public interest and the purpose of the time limits. Further it is not relevant that, because of the Covid-19 pandemic, what actually happened was entirely different and it was agreed that the stay on proceedings was without prejudice to the Council’s case on limitation.”

…

“81. The last matter that Mr Burton relies on is the argument that the claim in paragraph 15(7) is not, in any event, time-barred and will proceed in any event, so that the other elements of the claim should be permitted to proceed with it. The contention that the claim is not time-barred turns on the assertion that it was not until receipt of the pre-action protocol response dated 3 March 2020 that the claimant became aware of the meaning the defendant gives to MS5.

82. That brings me to the issue on paragraph 15(7). The complaint made in this paragraph, as set out above, is that the terms of MS5 breached the transparency principle. That is on its face a complaint about the tender documents and Mr Paines submits, relying on Jobsin and the decision of Coulson J in Joseph Gleave & Son Ltd. v Secretary of State for Defence[2017] EWHC 238 (TCC) at [13], that the date when the cause of action accrued in relation to a challenge to tender documents was the date of the tender documents. The invitation to tender was published on 21 October 2019, so the defendant therefore contends that the 30 day period expired on 19 November 2019. The proceedings were, therefore, commenced not merely outside the 30 day period but also outside the 3 month period which is the maximum extension of time permitted.

83. Whilst that statement would be right in the vast majority of cases, the position here is different. The claimant’s primary case was, and is, that MS5 was unambiguous in what it asked for. When the defendant provided its reasons for not marking the claimant above a score of 6, it was apparent, on the claimant’s case, that the defendant had applied different criteria. That is the basis of the claimant’s case. But the claimant says in the alternative that, if MS5 could bear the meaning that the defendant gives to it, then it was unclear and could be interpreted by different tenderers in different ways. That is the basis of the alternative case in paragraph 15(7).

84. The issue on limitation is when the claimant knew or ought to have known that of the grounds for making a claim. At least for the purposes of these applications, it seems to me arguable that grounds for starting the proceedings had not arisen at the time of the invitation to tender. At the time of tender, the claimant did not know that MS5 could have a different meaning from the one the claimant attributed to it, nor did the claimant have actual knowledge of how the defendant would construe it, the claimant’s case being that MS5 unambiguously said something else. As to whether the claimant ought to have known that MS5 was not capable of being read the same way by all tenderers, that raises the very issues raised by the other aspects of the claimant’s claim and is not an issue which, in my view, would be capable of resolution on an interlocutory basis.

85. However, the claimant must, in my view, have had the requisite actual or constructive knowledge by 7 February when the reasons for rejecting the claimant’s bid were given. If those were proper reasons, then the defendant’s interpretation of what was sought in MS5 must have been different from the claimant’s understanding. By 7 February, the claimant could sensibly discern from the reasons given, that the defendant’s position was that MS5 required something more than the “process driven” response the claimant had provided. It followed that the claimant ought to have known of the facts that found the alternative case in paragraph 15(7). It was unnecessary for the defendant to further set out its position, as it did on 3 March 2020.

86. In my judgment, therefore, this claim is caught by the same time period for the commencement of proceedings and the argument Mr Burton advances is not sustainable.”

View Case

Jurisdiction: England and Wales

The High Court was asked to interpret the regulation 92 time-limit issue (namely whether the 30-day period “beginning with” the date when the operator first knew or ought to have known of the grounds for challenge included the notification date). Constable J declined the invitation to decide the interpretation point, leaving the matter for trial (which ultimately never took place), despite acknowledging the formidable line of authority supporting counting the date of knowledge as day 1.

Background

• Application to lift the automatic suspension (with suspension lifted)
• Regulation 92 PCR provided:

• Decision notice issued on the afternoon of 13 December 2022
• Proceedings issued on 12 January 2023
• If 13 December was counted in the calculation of the 30 days, the time limit expired on 11 January 2023 and the claim would have been out of time

“[15] SoSJ contends that a period ‘beginning with the date when’, in ordinary parlance, means that the day upon which the trigger event occurs is included. Courts do not count in fractions of a day, and in the present case Boxxe knew or ought to have known about its claim when it was notified on 13 December 2023. SoSJ rely upon a line of authority which Mr Paine contended was applicable to ‘issue of proceedings’ cases such as the present one. Central to his submission was the dicta of Chadwick LJ in Zoan v Rouamba [2000] 1 WLR 1509. At paragraphs 23 and 24, the following observations were made:

23. Where, under some legislative provision, an act is required to be done within a fixed period of time “beginning with” or “from” a specified day it is a question of construction whether the specified day itself is to be included in, or excluded from, that period. Where the period within which the act is to be done is expressed to be a number of days, months or years from or after a specified day, the courts have held, consistently since Young v. Higgon (1840) 6 M. & W. 49 , that the specified day is excluded from the period; that is to say, that the period commences on the day after the specified day. Examples of such an “exclusive” construction are found in Goldsmith’s Co. v. West Metropolitan Railway Co. [1904] 1 KB 1 (“the powers of the company for the compulsory purchase of lands for the purposes of this Act shall cease after the expiration of three years from the passing of this Act”) and in In re Lympe Investments Ltd. [1972] 1 W.L.R. 523 (“the company has for three weeks thereafter neglected to pay”). In Stewart v. Chapman [1951] 2 K.B. 792 (“a person shall not be convicted unless within 14 days of the commission of the offence a summons for the offence was served on him”) Lord Goddard C.J. observed, at pp. 798–799, that it was well established that “whatever the expression used” the day from which the period of time was to be reckoned was to be excluded.

24. Where, however, the period within which the act is to be done is expressed to be a period beginning with a specified day, then it has been held, with equal consistency over the past 40 years or thereabouts, that the legislature (or the relevant rule making body, as the case may be) has shown a clear intention that the specified day must be included in the period. Examples of an “inclusive” construction are to be found in Hare v. Gocher [1962] 2 Q.B. 641 (“if within [the period of two months beginning with the commencement of this Act] the occupier of an existing site duly makes an application for a site licence”) and in Trow v. Ind Coope (West Midlands) Ltd. [1967] 2 Q.B. 899 (“a writ is valid for 12 months beginning with the date of its issue”). As Salmon L.J. pointed out in Trow v. Ind Coope (West Midlands) Ltd. , at p. 923, the approach adopted in the Goldsmith’s Co. case [1904] 1 KB 1 and Stewart v. Chapman [1951] 2 K.B. 792 can have no application in a case where the period is expressed to begin on the specified date. He observed, at p. 924, that “I cannot accept that, if words have any meaning, ‘beginning with the date of its issue’ can be construed to mean the same as ‘beginning with the day after the date of its issue.'”

[16] In Trow v. Ind Coope (West Midlands) Ltd. [1967] 2 Q.B. 899, referred to by Chadwick LJ in the passage above, writs were issued at 3.05pm on September 10, 1965. They were served on the defendants on September 10, 1966, at 11.59 a.m. and 12.49 respectively. The Rules stated that ‘a writ is valid for 12 months beginning with the date of its issue‘. The first question related to whether account could be taken of the time of day on which the writs were served. The Court of Appeal unanimously determined that this was not the case. As Lord Denning MR put it,

‘When we speak of the date on which anything is done, we mean the date by the calendar, such as: “The date today is May 2, 1967.” We do not divide the date up into hours and minutes. We take no account of fractions of a date.’

Thus, the relevant date was simply September 10, 1966. In the present case, therefore, the time that the Decision Notice was received is not relevant. The relevant date is simply 13 December 2022. The key question is whether that date (as a whole) should be included, or excluded from the calculation of time. The second issue in Trow was a similar point. With Lord Denning MR dissenting, the Court of Appeal held that ‘beginning with‘ means that the date is included in the 12 month period, and concluded that the service of the writ was therefore out of time. Salmon LJ concluded,

‘I cannot, however, accept that, if words have any meaning, “beginning with the date of its issue” can be construed to mean the same as “beginning with the day after the date of its issue.”

[17] In Wang v University of Keele [2011] ICR 1251, the issue was when the right to bring an employment claim expired. The relevant legislation provided that the complaint was required to be presented ‘before the end of the period of three months beginning with the effective date of termination‘. After a comprehensive review of the case law, including the two cases referred to above, Judge Hand QC sought to summarise the position, which usefully included the following points:

(d) in computing any period within which something must be done or by which something is to take effect a start date must be identified;

(e) where that start date is relative to the happening of an event, the fundamental question is likely to be whether the period starts on the day of the event or the day after the event;

(f) that will depend, in the context of a statutory provision, on the interpretation of the language in that provision and, in the context of a contract, lease, will or other legal document, on the construction of the language of the document; difficulties can arise if either the written material is completely silent on the point or there is no writing;

‘(g) where the statutory or contractual language means that the day of the event is to be included in the computation of the period, then time starts to run at the start of that day, irrespective as to the time of day that the event took place; the law takes no account of fractions of a day;

(h) where the statutory or contractual language means that the day of the event is not to be included, then time starts to run at the start of the following day, irrespective as to the time of day that the event took place, because, in this context also, the law takes no account of fractions of a day;’

[18] The principal issue in dispute was when the notice of termination was effectively given, and thus when the termination became effective for the purposes of calculating the time in which the complaint had to be brought. Having found that the termination was effective on 3 February 2009, Judge Hand QC concluded that ‘the period of three months beginning with the effective date of termination’ ended on 2^nd May 2009. It is clear that, although not saying so in terms, his interpretation of the wording of the statute was that the date on which the termination was effective was to be included in the calculated period of three months.

[19] In Stevenson v General Optical Council [2015] EWHC 3099, the period for bringing an appeal under the relevant provisions of the Opticians Act 1989 was considered (a case in which, it is fair to point out, the claimant was not legally represented). The relevant section required the appeal to be brought, ‘within the period of 28 days beginning on the day on which the decision was served on you‘. HHJ Dight, sitting as a Judge of the High Court, concluded that the day on which the decision was handed to the prospective appellant optician was to be included within the calculation, relying upon paragraphs 23 and 24 of Zoan, set out above. He also noted that the editors of the White Book in relation to CPR Rule 2.8 (on ‘Time’ within the broader Rule 2 dealing with ‘Application and Interpretation of the Rules‘), refer to Zoan and stated that:

‘When a step has to be taken within a period described as “beginning with” a specified day, then that day is included in the period; but if the period is described as running “from” or “after” a specified day, then that day is not included in the [period]’

[20] That note remains in the present edition of the White Book.

[21] Finally, in Access for Living v London Borough of Lewisham [2021] EWHC 3498 (TCC), in which Mr Paines acted for the Defendant, and Mr Burton KC acted for the Claimant, it was common ground between counsel that the time for calculating the 30 day expiry under Regulation 92 was inclusive of the day on which the economic operator first knew or ought to have known that grounds for starting the proceedings, as recorded (by implication) in paragraph 13 of Jefford J’s judgment.

[22] In the face of these authorities, Mr Tankel points out, rightly, that the question is one of construction. In the context of that exercise of construction, he argues that the Court should bear in mind the distinction which appears to exist in the authorities between the approach to the issue of a claim and to the service of a claim. Mr Tankel points out that it was the latter and not the former being considered in Zoan. In support of this distinction, he relies upon McGee on Limitation, 9^th Edn (2022), the well known practitioner textbook. Chapter 2 deals with ‘The Running and Expiry of Time’. At 2.005, the text states:

‘Perhaps the most satisfactory of the authorities on this point is Marren v Dawson Bentley & Co.21 The claimant was injured in an accident at 13.30 on 8 November 1954, and the writ was issued on 8 November 1957. The question was whether time had expired at the end of 7 November 1957, and Havers J held that it had not. The day on which the cause of action accrues is to be disregarded in calculating the running of time. It therefore followed that time began to run at the first moment of 9 November 1954 and expired at the end of 8 November 1957.‘

[23] The position in relation to issue is then contrasted with the textbooks’ approach to service, in which reference to at least part of the line of authority relied upon by Mr Paines is made:

‘The preceding paragraphs have dealt with calculation of time in connection with the issuing of process. In Trow v Ind Coope (West Midlands) Ltd the Court of Appeal had to resolve similar problems in connection with the service of a writ. The writ in this case was issued on 10 September 1965 and was served on 10 September 1966. The majority of the Court of Appeal, Lord Denning MR dissenting, held that the service was out of time. For the purpose of calculating the duration of a writ, the day on which the writ is issued is included. This is obviously in direct contradiction to the rule for the issuing of a writ and it is easy to sympathise with Lord Denning’s view that there is no rational justification for the distinction. It nevertheless appears still to be good law.’

[24] No reference is made to Zoan or the line of other cases relied upon by Mr Paines which, Mr Tankel argues, suggests their inapplicability to the issue of proceedings.

[25] Mr Tankel also points out that several of the provisions within the Limitation Act 1980 use similar language to Regulation 92 of the 2015 Regulations. Regulation 92 refers to the period expiring “within 30 days beginning with the date when…” Sections 10B(2)(b) and 10B(3)(b) of the Limitation Act 1980 refer to the expiration of a period “15 years beginning with the date on which…”. It is right to note that these provisions have been recently inserted into the Limitation Act by the Building Safety Act 2022. It is instructive to look at the entirety of Section 10B, in this context:

‘(1) An action under section 148 of the Building Safety Act 2022 shall not be brought after the expiration of 15 years from the date on which the right of action accrued.

(2) An action under section 149 of the Building Safety Act 2022 shall not be brought after—

(a)if the right of action accrued before the commencement date, the expiration of the period of 30 years from the date on which it accrued, and

(b)if the right of action accrued on or after the commencement date, the expiration of the period of 15 years beginning with the date on which it accrued.

(3) In a case where—

(a)a right of action under section 149 of the Building Safety Act 2022 accrued before the commencement date, and

(b)the expiration of the period of 30 years beginning with the date on which the right of action accrued falls in the year beginning with the commencement date,

subsection (2)(a) has effect as if it referred to the expiration of that year.

(5) No other period of limitation prescribed by Part 1 of this Act applies in relation to an action referred to in subsections (1) and (2).‘

(emphasis added)

[26] The new section of the Limitation Act, which faithfully reproduces the language of section 150 of the Building Safety Act 2022, uses both the language of ‘from’ and ‘beginning with’. Did the drafters intend the distinction drawn by Zoan? Or are the concepts being used interchangeably? If the former, it is not immediately obvious what purpose was sought to be achieved by requiring the 30 year period to be calculated excluding the date of accrual of the cause of action and requiring the 15 year period to be calculated inclusive of that date. Irrespective of the confusion potentially caused by this very recent inclusion within the Limitation Act 2022, it should be noted that the general language of the pre-existing Limitation Act 1980 is generally that actions shall not be brought after the expiration of a certain period ‘from‘ the date on which the cause of action accrued.

[27] Mr Tankel also relies upon European Council Regulation 1182/71, which governs the calculation of time periods in certain EU instruments, including Directive 2014/24/EU. Article 3 of Regulation 1182/71 provides that:

“Where a period expressed in days, weeks, months or years is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place shall not be considered as falling within the period in question.“

[28] This is, unsurprisingly, then reflected in the PCR. As set out in Regulation 2(3), this method of calculation is the prescribed method of interpretation for any reference to a period of time in Part 2 of the PCR (containing the substantive requirements). Mr Paines points out, and Mr Tankel fairly accepts, that this does not apply to Part 3, in which Regulation 92 sits, but Mr Tankel maintains that as a matter of construction, it remains relevant. In this context, he emphasises the requirement to promote certainty, as identified in Uniplex (UK) Ltd v NHS Business Services Authority [2010] PTSR 1377, in which it was stated:

’39 The objective of rapidity pursued by Directive 89/665 must be achieved in national law in compliance with the requirements of legal certainty. To that end, member states have an obligation to establish a system of limitation periods that is sufficiently precise, clear and foreseeable to enable individuals to ascertain their rights and obligations: see, to that effect, Commission of the European Communities v Federal Republic of Germany (Case C-361/88) [1991] ECR I-2567, para 24 and Commission of the European Communities v Grand Duchy of Luxembourg (Case C-221/94) [1996] ECR I-5669, para 22.’

[29] Finally, recognising it as a point which is no more than forensic, Mr Tankel points out that on 20 December, in its letter before action, Boxxe sought an extension to the standstill period until midnight on 10 January 2023. In its substantive response, the SoSJ voluntarily extended the standstill date to 23.59 on 12 January 2023, which is the expiry of the limitation period when calculated in the manner Boxxe contend is correct. There is some force in the suggestion that the date was probably put forward on the basis that, at least at that time, SoSJ had themselves calculated the limitation period by excluding the date the Decision Notice was issued.

[30] The proper construction of Regulation 92 is an important issue of law, and in the context of the very short 30 day period in which to bring a claim, the inclusion or exclusion of a day may be a matter of significance. Indeed, given that the law clearly requires fractions of a day to be ignored, the effect of sending a decision notification at the end of a business day, may in practice mean that the 30 day period becomes 29 days.

[31] Notwithstanding what appears to be a formidable line of authority, as presented by Mr Paines, I consider that it is inappropriate for me to give in to the temptation to decide the matter finally in the context of this application for the lifting of the suspension. The matter is not so clear cut as to conclude that there is not a serious issue to be tried. The overall time for Mr Tankel to have made detailed submissions on the point, given the need to address the other factors, was short and in fairness to him, he did not attempt to cram the proverbial (and imperial) quart into the pintpot. I consider that it is appropriate that the ultimate determination of the issue should follow fuller argument and submission, which will take place no doubt relatively shortly in any event in the context of the strike out application which has already been issued.

[32] In these circumstances, it is not necessary for me to consider whether it would have been appropriate for me to take into account the fact that there is an extension of time application in the background, even though it was not before the Court. However, had it been necessary for me to do so, I would have concluded that it would not have been appropriate for me to do so. The consequences for Boxxe had I acceded to SoSJ’s arguments on limitation and determined there was no serious issue to be tried would merely have been the consequences caused by the timing of its extremely late decision to apply for an extension.

[33] It is also not necessary for me to consider whether the date on which Boxxe knew or ought to have known grounds 5 and 6 is later than 13 December 2022, and it is appropriate to leave that question to the strike out application.”

View Case

Jurisdiction: EU - CJEU

In procurement claims, the limitation period runs from when the claimant knew or ought to have known of the alleged breach, and a national rule allowing claims to be struck out for not being brought “promptly” is incompatible with EU law if it operates discretionarily and unpredictably.

“30. However, the fact that a candidate or tenderer learns that its application or tender has been rejected does not place it in a position effectively to bring proceedings. Such information is insufficient to enable the candidate or tenderer to establish whether there has been any illegality which might form the subject-matter of proceedings.

31. It is only once a concerned candidate or tenderer has been informed of the reasons for its elimination from the public procurement procedure that it may come to an informed view as to whether there has been an infringement of the applicable provisions and as to the appropriateness of bringing proceedings.

32. It follows that the objective laid down in Article 1(1) of Directive 89/665 of guaranteeing effective procedures for review of infringements of the provisions applicable in the field of public procurement can be realised only if the periods laid down for bringing such proceedings start to run only from the date on which the claimant knew, or ought to have known, of the alleged infringement of those provisions (see, to that effect, Universale-Bau and Others, paragraph 78).

…

41. A national provision such as Regulation 47(7)(b) of the 2006 Regulations, under which proceedings must not be brought ‘unless … those proceedings are brought promptly and in any event within three months’, gives rise to uncertainty. The possibility cannot be ruled out that such a provision empowers national courts to dismiss an action as being out of time even before the expiry of the three-month period if those courts take the view that the application was not made ‘promptly’ within the terms of that provision.

42. As the Advocate General observed in point 69 of her Opinion, a limitation period, the duration of which is placed at the discretion of the competent court, is not predictable in its effects. Consequently, a national provision providing for such a period does not ensure effective transposition of Directive 89/665.

43. It follows that the answer to the first part of the second question is that Article 1(1) of Directive 89/665 precludes a national provision, such as that at issue in the main proceedings, which allows a national court to dismiss, as being out of time, proceedings seeking to have an infringement of the public procurement rules established or to obtain damages for the infringement of those rules on the basis of the criterion, appraised in a discretionary manner, that such proceedings must be brought promptly.

….

47. In order to satisfy the requirements in the answer given to the first question, the national court dealing with the case must, as far as is at all possible, interpret the national provisions governing the limitation period in such a way as to ensure that that period begins to run only from the date on which the claimant knew, or ought to have known, of the infringement of the rules applicable to the public procurement procedure in question.

48 If the national provisions at issue do not lend themselves to such an interpretation, that court is bound, in exercise of the discretion conferred on it, to extend the period for bringing proceedings in such a manner as to ensure that the claimant has a period equivalent to that which it would have had if the period provided for by the applicable national legislation had run from the date on which the claimant knew, or ought to have known, of the infringement of the public procurement rules.

49 In any event, if the national provisions do not lend themselves to an interpretation which accords with Directive 89/665, the national court must refrain from applying those provisions, in order to apply Community law fully and to protect the rights conferred thereby on individuals (see, to that effect, Santex, paragraph 64, and Lämmerzahl, paragraph 63). “

View Case

Jurisdiction: EU - CJEU

EU law, in particular the principle of effectiveness, precludes a national rule which makes a claim for procurement damages dependent on first obtaining a declaration of unlawfulness that must be sought within six months from contract award, regardless of whether the claimant knew or could have known of the alleged unlawfulness.

“35. As regards actions for damages, it must be noted that Directive 89/665 provides, in Article 2(6), that Member States may provide that where damages are claimed, the contested decision must first be set aside ‘by a body having the necessary powers’ without, however, laying down a rule as regards the time-limits for bringing actions or other conditions for the admissibility of such actions.

36. In the present case it appears, in principle, that Article 2(6) of Directive 89/665 does not preclude a provision of national law such as Paragraph 341(2) of the BVergG 2006 under which a claim for damages is admissible only if there has been a prior finding of an infringement of procurement law. However, the combined application of Paragraph 341(2) of the BVergG 2006 and Paragraph 332(3) of the same law has the effect that an action for damages is inadmissible in the absence of a prior decision finding that the public procurement procedure for the contract in question was unlawful, where the action for a declaration of unlawfulness is subject to a six-month limitation period which starts to run on the day after the date of the award of the public contract in question, irrespective of whether or not the applicant was in a position to know of the unlawfulness affecting that award decision.

37. Having regard to the considerations in paragraphs 32 and 35 of the present judgment, it is for the Member States to lay down the detailed procedural rules governing actions for damages. Those detailed procedural rules must, however, be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (see, to that effect, judgments in eVigilo, C‑538/13, EU:C:2015:166, paragraph 39, and Orizzonte Salute, C‑61/14, EU:C:2015:655, paragraph 46).

38. In consequence, it is necessary to examine whether the principles of effectiveness and equivalence preclude a national rule such as that set out in paragraph 36 of the present judgment.

39. As regards the principle of effectiveness, it is appropriate to point out that the degree of necessity for legal certainty concerning the conditions for the admissibility of actions is not identical for actions for damages and actions seeking to have a contract declared ineffective.

40. Rendering a contract concluded following a public procurement procedure ineffective puts an end to the existence and possibly the performance of that contract, which constitutes a significant intervention by the administrative or judicial authority in the contractual relations between individuals and State bodies. Such a decision can thus cause considerable upset and financial losses not only to the successful tenderer for the public contract in question, but also to the awarding authority and, consequently, to the public, the end beneficiary of the supply of work or services under the public contract in question. As is apparent from recitals 25 and 27 in the preamble to Directive 2007/66, the EU legislature placed greater importance on the requirement for legal certainty as regards actions for a declaration that a contract is ineffective than as regards actions for damages.

41. Making the admissibility of actions for damages subject to a prior finding that the public procurement procedure for the contract in question was unlawful because of the lack of prior publication of a contract notice, where the action for a declaration of unlawfulness is subject to a six-month limitation period, irrespective of whether or not the person harmed knew that there had been an infringement of a rule of law, is likely to render impossible in practice or excessively difficult the exercise of the right to bring an action for damages.

42. Where there has been no prior publication of a contract notice, such a limitation period of six months is likely not to enable a person harmed to gather the necessary information with a view to a possible action, thus preventing that action from being brought.

43. Awarding damages to persons harmed by an infringement of the public procurement rules constitutes one of the remedies guaranteed under EU law. Thus, in circumstances such as those at issue in the main proceedings, the person harmed is deprived not only of the possibility of having the awarding authority’s decision annulled, but also of all the remedies provided for in Article 2(1) of Directive 89/665.

44. Consequently, the principle of effectiveness precludes a system such as that at issue in the main proceedings.

…

46. Having regard to the foregoing considerations, the answer to the question referred is that EU law and in particular the principle of effectiveness preclude national legislation which makes bringing an action for damages in respect of the infringement of a rule of public procurement law subject to a prior finding that the public procurement procedure for the contract in question was unlawful because of the lack of prior publication of a contract notice, where the action for a declaration of unlawfulness is subject to a six-month limitation period which starts to run on the day after the date of the award of the public contract in question, irrespective of whether or not the applicant in that action was in a position to know of the unlawfulness affecting the decision of the awarding authority.”

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Jurisdiction: EU - CJEU

EU law does not preclude a national rule requiring challenges to decisions admitting or excluding tenderers to be brought within 30 days of communication, provided that the communicated decision contains sufficient reasons so that the person concerned knew or ought to have known of the alleged infringement. EU law also does not preclude a rule barring that same illegality from being raised later against subsequent decisions, including the award decision, but only on the same condition that the time limit can be relied on only if the tenderer knew or ought to have known of the alleged illegality from the earlier notification.

“24. It must be recalled, first of all, that in accordance with Article 2c of Directive 89/665, Member States may lay down time limits within which an action may be brought against a decision of a contracting authority taken in the context of an award procedure for a contract falling within the scope of Directive 2014/24.

25. That provision states that that time limit is to be at least 10 calendar days with effect from the day following the date on which the contracting authority’s decision is sent to the tenderer or candidate if fax or electronic means are used or, if other means of communication are used, this period shall be either at least 15 calendar days with effect from the day following the date on which the contracting authority’s decision is sent to the tenderer or candidate or at least 10 calendar days with effect from the day following the date of the receipt of the contracting authority’s decision. The same provision also states that the contracting authority’s decision is to be sent to each tenderer or candidate, accompanied by a summary of the relevant reasons.

26. Thus it is clear from the very wording of Article 2c of Directive 89/665 that a time limit, such as that at issue in the main proceedings, within which actions against decisions of contracting authorities to admit or exclude tenderers from participation in public procurement procedures falling within the scope of Directive 2014/24 must be brought within 30 days from the time that the decisions are sent to the parties concerned, failing which those actions will be time-barred is, in principle, compatible with EU law, provided that those decisions contain a summary of the relevant reasons.

27. Furthermore, Article 1(1) of Directive 89/665 requires the Member States to ensure that decisions taken by contracting authorities may be reviewed as effectively and as rapidly as possible. The Court has already had occasion to point out that the imposition of time limits for bringing actions which will be time-barred if those time limits are not complied with, enables the objective of rapidity pursued by Directive 89/665, which requires operators to challenge promptly preliminary measures or interim decisions taken in public procurement procedures, to be attained (see, to that effect, judgment of 28 January 2010, Commission v Ireland, C-456/08, EU:C:2010:46, paragraph 60 and the case-law cited).

28. The Court also held that setting reasonable time limits for bringing proceedings must be regarded, in principle, as satisfying the requirement of effectiveness under Directive 89/665, since it is an application of the fundamental principle of legal certainty (judgments of 12 December 2002, Universale-Bau and Others, C-470/99, EU:C:2002:746, paragraph 76, and of 21 January 2010, Commission v Germany, C-17/09, not published, EU:C:2010:33, paragraph 22), and is compatible with the fundamental right to effective legal protection (see, to that effect, judgment of 11 September 2014, Fastweb, C-19/13, EU:C:2014:2194, paragraph 58).

29. The objective of rapidity pursued by Directive 89/665 must, however, be achieved in national law in compliance with the requirements of legal certainty. Thus, Member States have the obligation to put in place rules on time limits which are sufficiently precise, clear and transparent so as to enable individuals to ascertain their rights and obligations (see, to that effect, judgments of 30 May 1991, Commission v Germany, C-361/88, EU:C:1991:224, paragraph 24, and of 7 November 1996, Commission v Luxembourg, C-221/94, EU:C:1996:424, paragraph 22).

30. In that connection, when defining the detailed procedural rules governing the remedies intended to protect rights conferred by EU law on candidates and tenderers harmed by decisions of contracting authorities, the Member States must not compromise the effectiveness of Directive 89/665 or the rights conferred on individuals by EU law, in particular, the right to an effective remedy and to a fair hearing enshrined in Article 47 of the Charter (see, that effect, judgment of 15 September 2016, Star Storage and Others, C-439/14 and C-488/14, EU:C:2016:688, paragraphs 43 to 45).

31. The objective laid down in Article 1(1) of Directive 89/665 of guaranteeing effective procedures for review of infringements of the provisions applicable in the field of public procurement can be realised only if the periods laid down for bringing such proceedings start to run only from the date on which the claimant knew, or ought to have known, of the alleged infringement of those provisions (judgments of 28 January 2010, Uniplex (UK), C-406/08, EU:C:2010:45, paragraph 32; of 12 March 2015, eVigilo, C-538/13, EU:C:2015:166, paragraph 52; and of 8 May 2014, Idrodinamica Spurgo Velox and Others, C-161/13, EU:C:2014:307 paragraph 37).

32. It follows that a national law, such as that at issue in the main proceedings, which provides that actions against the decisions of contracting authorities admitting or excluding tenderers from participating in public procurement procedures must be brought within 30 days from their communication to the parties concerned, failing which they will be time-barred, is compatible with Directive 89/665 only if the decisions sent contain a summary of the relevant reasons ensuring that the parties concerned knew or ought to have known of the infringements of EU law alleged.

…

40. … [T]he Court has repeatedly held that Directive 89/665 must be interpreted as not, in principle, precluding national legislation which provides that any application for review of a contracting authority’s decision must be commenced within a time limit laid down to that effect and that any irregularity in the award procedure relied upon in support of such application must be raised within the same period, if it is not to be out of time, with the result that, when that period has passed, it is no longer possible to challenge such a decision or to raise such an irregularity, provided that the time limit in question is reasonable (judgments of 12 December 2002, Universale-Bau and Others, C-470/99, EU:C:2002:746, paragraph 79; of 27 February 2003, Santex, C-327/00, EU:C:2003:109, paragraph 50; and of 11 October 2007, Lämmerzahl, C-241/06, EU:C:2007:597, paragraph 50).

41. That case-law is based on the consideration that full implementation of the objective sought by Directive 89/665 would be undermined if candidates and tenderers were allowed to invoke, at any stage of the award procedure, infringements of the rules of public procurement, thus obliging the contracting authority to restart the entire procedure in order to correct such infringements (judgments of 12 December 2002, Universale-Bau and Others, C-470/99, EU:C:2002:746, paragraph 75; of 11 October 2007, Lämmerzahl, C-241/06, EU:C:2007:597, paragraph 51; and of 28 January 2010, Commission v Ireland, C-456/08, EU:C:2010:46, paragraph 52). Such conduct, in so far as it may delay, without any objective reason, the commencement of the review procedures which Member States were required to institute by Directive 89/665 impairs the effective implementation of the EU directives on the award of public contracts (judgment of 12 February 2004, Grossmann Air Service, C-230/02, EU:C:2004:93, paragraph 38).

42. In the present case, it follows from the case-law of the Court that Directive 89/665, in particular, Article 2c thereof, must be interpreted as meaning that, in principle, it does not preclude the provisions of Italian law under which there is no possibility for a tenderer to rely on the unlawfulness of the decision in the context of an action brought against a subsequent act where no action is brought against the decision of a contracting authority within 30 days.

43.However, although national rules on limitation periods are not in themselves contrary to the requirements of Article 2c of Directive 89/665, it cannot be excluded that, in the context of the particular circumstances, or having regard to some of their rules, their application may entail a breach of the rights conferred on individuals by EU law, in particular, the right to an effective remedy and the right to a fair trial, enshrined in Article 47 of the Charter (see, to that effect, judgments of 27 February 2003, Santex, C-327/00, EU:C:2003:109, paragraph 57, and of 11 October 2007, Lämmerzahl, C-241/06, EU:C:2007:597, paragraphs 55 and 56).

44. Thus, the Court has already had the occasion to rule that Directive 89/665 was to be interpreted as preluding rules on limitation periods laid down by national law from being applied in such a way that a tenderer is refused access to a review of an unlawful decision even though he became aware of that illegality only after the expiry of the time limit (see, to that effect, judgments of 27 February 2003, Santex, C-327/00, EU:C:2003:109, paragraph 60, and of 11 October 2007, Lämmerzahl, C-241/06, EU:C:2007:597, paragraphs 59 to 61 and 64). It must also be pointed out, as set out in paragraph 31 of the present order, that the Court also held that effective procedures for review of infringements of the provisions applicable in the field of public procurement can be realised only if the time limits within which to bring proceedings start to run from the date on which the claimant knew, or ought to have known, of the alleged infringement of those provisions (see, to that effect, judgment of 12 March 2015, eVigilo, C-538/13, EU:C:2015:166, paragraph 52 and the case-law cited). Therefore, it is for the referring court to determine whether, in the circumstances of the case in the main proceedings, the Cooperativa Animazione Valdocco did in fact know or ought to have known from the notification by the contracting authority of the decision to allow the ad hoc consortium to participate in the tender procedure, in accordance with Article 29 of the Public Procurement Code, of the grounds for the unlawfulness of that decision that it alleges, based on the failure to lodge a provisional security in the amount required or to prove that the conditions for participation were satisfied and, therefore, whether it was in fact in a position to bring an action within the time limit of 30 days laid down in Article 120(2-bis) of the Administrative Procedure Code. In particular, it is for the referring court to ensure that, in the circumstances of the case in the main proceedings, the combined application of the provisions of Article 29 and Article 53(2) and (3) of the Public Procurement Code, which regulate access to the tender documents and their dissemination, did not exclude all possibilities for the Cooperativa Animazione Valdocco to learn of the illegality of the decision to allow the ad hoc consortium to participate that it alleges or to bring an action from the time at which it knew of that decision, within the time limit laid down in Article 120(2-bis) of the Administrative Procedure Code. It must be added that it is for the referring court interpret the national law in a way which accords with the objective of Directive 89/665. Where an interpretation in accordance with the objective of Directive 89/665 is not possible, the national court must refrain from applying provisions of national law which are at variance with that directive (see, to that effect, judgment of 11 October 2007, Lämmerzahl, C-241/06, EU:C:2007:597, paragraphs 62 and 63), since Article 1(1) thereof is unconditional and sufficiently precise to be relied on against the contracting authority (judgments of 2 June 2005, Koppensteiner, C-15/04, EU:C:2005:345, paragraph 38, and of 11 October 2007, Lämmerzahl, C-241/06, EU:C:2007:597, paragraph 63).

49. Having regard to the foregoing, the answer to the second question is that Directive 89/665, and in particular Articles 1 and 2c thereof, read in the light of Article 47 of the Charter, must be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, which provides that, in the absence of an action against the decisions of contracting authorities allowing tenderers to participate in public procurement procedures within 30 days from the communication of those decisions, it is no longer possible for the persons concerned to plead the illegality of the decisions in an action against subsequent decisions and, in particular, against award decisions, subject to the proviso that such a time limit may be relied on only if the persons concerned knew or ought to have known from that notification of the illegality they allege.”

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Jurisdiction: Ireland

Where no explanation or justification for bringing proceedings one month outside a three month time limit, no extension of time would be granted

The applicable time limit was, “at the earliest opportunity and in any event within three months” of the grounds arising (note: this time limit no longer applies in Ireland: see, now, Regulation 7 of SI 130/2010)

(Denham J)

“In this specialist area of judicial review there is a clear policy underlying the law. The policy includes the requirement that an application for review of a decision to award a public contract shall be made at the earliest opportunity. There is a degree of urgency required in such applications. The applicant should move rapidly. The requirement of a speedy application is partially based on the prejudice to the parties and the State in delayed proceedings. Also, there is the concept that the common good is best served by rapid proceedings. The necessary balance to protect fair procedures is met in the saver that the court may extend time for such application for good reason.

Thus the court has a discretion to extend time within which an application may be brought for judicial review of public contracts.

There was an onus on the applicant to explain the delay and to give good reason to extend the time within which the application may be brought. The applicant did not explain the whole delay. It explained part of the delay. In addition, no good reason was afforded as to why time should be extended.

On the facts of this case not only is there no explanation for a considerable part of the delay but also there is no reason, good or otherwise, rendered for part of the delay or for an extension of time. On the facts, there is a gap from the 5th January, to the 24th February, 1999.

The term “good reason” in O 84, r 21 of the Rules of the Superior Courts 1986, was considered by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301. He stated at p 315:-

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O 84, r 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that this explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (The State (Cussen) v Brennan [1981] IR 181).

Or again, the delay may unfairly prejudice the rights and interests of the public authority which had made the ultra vires decision in which event there would not be a good reason for extending the time, or a plaintiff may acquiesce in the situation arising from the ultra vires decision he later challenges or the delay may have amounted to a waiver of his right to challenge it and so the court could not conclude that there were good reasons for excusing the delay in initiating the proceedings.”

I am satisfied that this analysis is applicable to the term “good reason” in O 84A, r 4. I apply the test to this case. Thus, the applicant had to show that there were reasons which both explained the delay and offered a justifiable excuse. The public contract in issue involved significant liabilities, obligations and expenditure which may raise important factors for a court. The justice of the situation may raise issues such as prejudice to the notice party arising from the expenditure and other undertakings in the contract.

Also, I am satisfied, concepts of the public good may be relevant as being prejudiced by protracted and delayed judicial review. The common good could have a heavy weighting in reviews of this type, reflecting the requirement on any applicant to move rapidly.”

(Fennelly J)

“The court must always have regard to the circumstances of the particular case and to the fact that the power to extend the time is there in the interests of permitting the courts to do justice between the parties. This was explained in the judgment of this court, delivered by Keane CJ in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360 at p 394. Dealing with the fourteen day period permitted by the legislation under consideration for challenge to certain decisions and the power to extend that time for “good and sufficient reason,” he said:-

“The court is satisfied that the discretion of the High Court to extend the fourteen day period is sufficiently wide to enable persons who, having regard to all the circumstances of the case including language difficulties, communication difficulties, difficulties with regard to legal advice or otherwise, have shown reasonable diligence, to have sufficient access to the courts for the purpose of seeking judicial review in accordance with their constitutional rights.”

…

The strictness with which the courts approach the question of an extension of time will vary with the circumstances. However, public procurement decisions are peculiarly appropriate subject matter for a comparatively strict approach to time limits. They relate to decisions in a commercial field, where there should be very little excuse for delay. I agree with the trial judge that no more favourable consideration should be given to the applicant’s application for an extension of time by reason of the fact that it limited its claim to damages.”

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Jurisdiction: Ireland

An argument that the successful tenderer was impermissibly admitted to the competition on the basis that it satisfied the minimum entry requirements was dismissed as being out of time. The applicant had been advised that the successful tenderer had been admitted to the competition before final tenders were sought. The Court concluded that the time within which a challenge must be brought may commence before a final decision to award a contract and parties are not entitled to sit back and await a final decision before challenging a tender process on the basis of an error which has arisen during the competition

Referring to the decision of the CJEU in Case C-406/08, Uniplex (UK), the court explained the position as follows:

“[77] Uniplex does not of course provide any assistance as to what level of knowledge is required by an applicant before the clock starts to run against it for the purpose of the applicable time limit. That will be a matter for the national court to decide on the facts of any particular case. But it provides guidance in the sense that it emphasises the objective of an effective remedy, and therefore this Court must decide at what point did the present applicant possess sufficient knowledge of facts to enable it to consider that it had reasonable grounds to challenge the decision that Beacon Dialysis Services Limited had qualified in the competition. As soon as it had sufficient facts at its disposal to commence its challenge, an effective remedy was available to it, and therefore the clock started to run against it. From that point on, it could not sit on its hands and hold the point over until it saw the final decision on the award of the contract. It was obliged at act immediately.”

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Jurisdiction: Ireland

Supreme Court allowed an amendment of the statement of grounds even though a time bar issue was raised; the point had been raised in pre-action correspondence

The case had been instituted in March 2013 and the application to add new grounds was made in November 2013. The amendment was allowed in circumstances where the failure to plead the ground (concerning capacity) arose through a simple error made by the lawyers in drafting the notice of application. The ground was, however, clearly notified to the Respondent in the initial letter of 15 March 2013, prior to the commencement of proceedings. The Supreme Court disallowed an application to add a claim for damages, which had not been raised in the pre-action correspondence.

“13. The decision in Dekra was interpreted by Ó Néill J in the High Court in a restrictive manner. It limits the relief which can be given where a discretion is given to add a ground or to commence proceedings outside the time limits in a way that is not reflected in the broad discretion conferred on the High Court under the Ó Néill J stated his view at the end of his judgement:

23. The problem here is that these judicial review proceedings relate to public procurement matters, and it is well settled, since the judgements of the Supreme Court in the Dekra case, that in this specialised area of judicial review, a strict or stringent approach must be adapted to applications for relief outside of the prescribed time Whilst there is, undoubtedly, a jurisdiction to extend the time limit in question, this can only be done if it is demonstrated that there is good and sufficient reason for so doing. In other areas of judicial review, mere oversight or error on the part of legal representatives could, as mentioned in the judgement of Finlay Geoghegan J. in the Muresan case, be a ground for extending time in an appropriate case. In my opinion, in a procurement case, the stricter approach to compliance with the prescribed time limits required would exclude mere oversight as a good and sufficient reason for permitting an extension of the time limit. It would seem to me, that in order to reach the necessarily high threshold which “good and sufficient reason” requires in these cases, it must be shown that the factor which brings about the application to extend time or to seek relief outside the time limit, was either not in existence within the time limit or was unknown to the applicant within that time limit. In effect, an applicant must be able to demonstrate that insofar as the ground sought to be added to the proceedings is concerned, he was effectively inhibited or prevented from raising that ground within the prescribed time limit.

24. In this case, all the information necessary to plead the “capacity” ground was amply available to the applicants within the time That being so, I feel bound to follow the reasoning of the Supreme Court in the Dekra case and applying the strict approach described in the judgements in that case, inevitably results in a conclusion that the applicants have not demonstrated a good and sufficient reason for extending the time limit prescribed so as to permit the amendment sought.

14. This view is over It is not necessary to demonstrate a factor unknown to an applicant or one which was not in existence for time to be extended. Instead, a late application or a late amendment to include a new ground not previously pleaded requires “good reason”. That must take into account the factors listed by the learned trial judge, but these are not the only factors. One of the most important factors is the public interest and another is the conduct of the parties. As to the first, there is a clear public interest in the disposal of controversies involving multiple suppliers of goods to the State within a prompt time-frame. There is also, however, an interest in ensuring that such points as can be argued and which are applicable to other similar situations are considered and ruled on by the High Court. As to the conduct of the parties, there has already been a contest in the first set of proceedings on the issue of capacity. That point has already been argued in those separate proceedings and an amendment to include it will not come as a surprise to the respondents. Furthermore, by that argument in the first set of proceedings, it was made clear to the respondents that the applicants/appellants regarded capacity as point of real substance, whether they were right or wrong. That point was notified to the respondents in the initial letter in the instant judicial review application. A mere oversight led it to be dropped but that was in the context of what this Court has been told is a cross-appeal, or notice to vary judgment, in the other case which seeks to reargue the capacity point before the Supreme Court. Thus, no matter how the question is looked at, it is a point notified at the earliest opportunity, which is essential to the disposal of the controversy between the parties and which is not raised unfairly, which otherwise it might be were the respondents to be notified of the point after the time limit had elapsed. Adding the point to these proceedings will assist in the final disposal and it will not cause any delay and it has not caused any prejudice.

15. In contrast, the applicants/appellants seek also to claim damages on the basis that they have been wrongly shut out of profits from the contracts under the multi-supplier framework agreement for the purchase of monochrome and colour printers and other multifunction This is effectively a new point. It was not part of the first set of proceedings. It was not notified to the respondents in an initial letter. It does not in any way arise naturally or by implication out of the existing pleadings. No reason has been advanced as to why this point was not included in the statement to ground the application for judicial review, as opposed to the originating notice of motion, as initially drafted. The award of damages is not essential to the disposal of the aspect of the case which would be in the public interest. The capacity of bodies such as the respondents to set up tender procedures and to limit the range of suppliers is, in contrast, a matter that ought to be decided so as to ensure that the law is clarified.”

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Jurisdiction: Ireland

Challenge brought to structure of competition after applicant had participated in tender and lost was out of time and there was no good reason to extend time; High Court ruling overturned by Court of Appeal

• Decision of 30 September 2014 by contracting authority to appoint a single provider to distribute funds aimed at tackling poverty
• Forum Connemara participated in and lost the tender, being informed on 2 March 2015
• Proceedings commenced on 23 March 2015, with Forum Connemara seeking to challenge the resolution of 30 September 2014 and seeking an order quashing the award decision of 2 March 2015

The contract was subject to the Remedies Regulations (SI 130/2010) to which a 30-day time limit applied

High Court held there was good reason to extend time

Court of Appeal overturned the High Court finding that the trial judge was wrong in principle in various factors he took into account to extend time

“43 Further guidance concerning the Court’s approach to delay in public procurement contracts is to be found in the decision of Kelly in SIAC Construction Ltd. v. The National Roads Authority [2004] IEHC 262. In that case, the applicant was seeking an extension of time to bring proceedings under the then prevailing O. 84A which has been set out earlier. In concluding that O. 84A had to be interpreted as applying not merely to a decision to award a contract or the award of a contract but also to decisions taken by contracting authorities regarding contract award procedures he stated as follows at p.29:-

“Such being so, it follows that complaints of the type which are sought to be advanced here concerning the procedures followed must be brought at the earliest opportunity and, in any event, within three months from the date when grounds for complaint first arose. Proceedings cannot, and ought not to be postponed until the decision to award, or the award of, the public contract has been made. If that were so the complaint concerning, for example, the negotiated procedure where grounds first arose in August, 2001 would not be the subject of proceedings until 2004. Such a result in light of the authorities cited would be absurd.”

44 Earlier in his judgment Kelly referred to the consequences of delay by reference to the decision of the Court of Appeal in England in Jobsin Co. UK plc v. The Department of Health [2002] 1 C.M.L.R. 44 where Dyson L.J. emphasised that challenges to the lawfulness of any contracting process of this nature should be made as soon as possible. This is what he said at p.1274:-

“[I]t is a fairly startling proposition that, even where a tenderer knows that he has grounds for starting proceedings, he has a good excuse for not doing so because such proceedings may imperil his relationship with the contracting authority and may jeopardise his prospects of securing the contract. It seems to me that a tenderer who finds himself in such a situation faces a stark choice. He must either make his challenge or accept the validity of the process and take his chance on being successful, knowing that the other tenderers are in the same boat. In my view, it is unreasonable that he should sit on his rights and wait to see the results of the bidding process on the basis that, if he is successful he will remain quiet, but otherwise he will start proceedings. I do not believe that a tenderer who deliberately delays proceedings in an attempt to have his cake and eat it has good reason for an extension of time if the outcome of the process is not to his liking”.

45 Having set out the appropriate principles to be applied by the Court when faced with an application to extend time under 84A, I will now address the conclusions of the trial judge. I intend to deal in turn with the factors which he relied upon in coming to his conclusion that there were good reasons for exercising his discretion to extend time.

46 Insofar as it is to be inferred from the judgement of Barrett J. that he considered the fact that Forum Connemara was not an “IFSC based commercial venture stuffed to the gills with legal whizz kids” was good reason for not maintaining its challenge within the 30 day time limit, I fear that his conclusion cannot be accepted. Forum Connemara is a large commercial entity. It employs 200 people. Apart from the fact that Mr. Keenan clearly makes the case that Forum Connemara is a formidable organisation, its size, strength and commercial capability is readily apparent from its 109 page tender for the role of programme implementer for the County of Galway. Furthermore, it had already prior to September, 2014 been the successful applicant for a number of public contracts including that of programme implementer for one of County Galway’s two geographic lots. One could not, I think, reasonably infer that an organisation of such a nature could be forgiven for not seeking whatever legal advice it felt was necessary to put right the wrong which it maintains was so obviously perpetrated by the respondent on 30th September, 2014.

…

48 As to the trial judge’s reliance upon an assurance allegedly given to Forum Connemara by a Dalton of the Department of the Environment on 10th September, 2014, to the effect that SICAP funds would likely be dispersed in a manner different to that ultimately settled upon at the meeting of 30th September such that might give grounds to Forum Connemara to raise an argument based on the doctrine of legitimate expectation, that assurance, if it was made, was not good reason to extend the time to permit the lawfulness of that decision to be challenged. First, Forum Connemara is not advancing a claim based upon the doctrine of legitimate expectation. It is seeking to have the decision of 30th September, 2014, declared invalid on the basis that the decision making process was flawed. Second, even if Mr. Dalton had made such a representation, which he denies, the same was clearly overtaken by the later decision of the contracting authority to contract only one programme implementer for the SICAP for the whole of County Galway. That decision was clearly in conflict with any representation allegedly made by Mr. Dalton. It was the respondent as the contracting authority and not the department that had the power to make the decision as to whether there would be one or more programme implementers for the County of Galway. Thus, I can see no basis upon which Forum Connemara might reasonably have continued to rely upon an informal assurance given three weeks earlier.

49 Insofar as the trial judge considered that Forum Connemara’s fear of incurring legal costs was a good reason to justify its delay in challenging the decision of 30th September, I regret to say I do not agree. The position of Forum Connemara in this case was, in my view, no different from that of any other interested party aggrieved as to the manner in which a particular decision contrary to its interests was made in the context of a procurement contract. If such a party wants to challenge such a decision they are obliged to do so within the time permitted. The quid pro quo for the entitlement to challenge a decision or the award of a contract in a public procurement process, given that the effect of such a challenge is that any contract on foot of that decision is stayed pending the conclusion of the proceedings; is that they must move to have that dispute determined with immediate effect. The fact that such a challenge may result in the interested party having to incur legal costs, is simply a fact of life. For an organisation such as Forum Connemara, which has 200 employees and manages a very substantial annual budget, the potential costs of litigation can provide no justification for taking this case into any different category from any other procurement challenge.

50 Insofar as the trial judge concluded that the abuse alleged to have taken place on 30th September, 2014, went to the heart of good government to the extent that it was in the public interest that time would be extended to permit that decision to be challenged, I fear the conclusions of the trial judge were not reasonable. It cannot be denied that at every stage of the public procurement process there is the possibility of abuse and/or illegality. It is the occurrence of such abuse and/or illegality that is at the heart of almost every challenge brought under O. 84A. In each such instance good government is called into question and invariably there is a public interest that the court scrutinise the actions complained of, given that large sums of public money are usually involved. In this regard Forum Connemara’s intended challenge to the decision of 30th September is no different in terms of public interest to any other challenge in an alternative public procurement process.

…

52 I am also satisfied that it was entirely artificial for the trial judge to classify the contract the subject matter of the decision of 30th September, 2014, as being different from any other type of procurement contract, such as one to build a road or  bridge…

53 Leaving to one side for a moment the findings of the trial judge, I have to say that I find the reasons advanced by Keenan in his affidavit to explain why the proceedings did not issue within the permitted timeframe to be entirely without merit. For example, he maintains that regardless of the decision of 30th September, 2014, which he clearly considered to have been a reprehensible abuse of process, that he nonetheless believed that negotiations subsequent thereto would result in a tender issuing for two programme implementers in respect of two separate areas of County Galway. That contention, to me, is entirely lacking in credibility when considered against the backdrop of the invitation to tender issued on 20th October, 2014, which made clear that the proposed contract was in respect of one lot only and that the contract was for one programme implementer only. He simply chose to ignore the detail of the tender documents and the map appended thereto which clearly identified the designated area to be covered by the contract.

54 Nor can I accept Keenan’s statement that he believed that the invitation to tender was “all but irrelevant” and that the Department, as the final arbiter, would not allow a single lot decision to be implemented. That assertion is one that flies in the face of the 109 page detailed tender which Forum Connemara lodged in response to the aforementioned invitation. Objectively assessed, anyone reading that document would be driven to the conclusion that Forum Connemara considered the invitation to tender highly relevant and evidenced its determination to secure the contract on offer even though it now protests about the underlying decision which determined that the contract was in respect of one lot and for the benefit of one programme implementer only.

55 Insofar as the High Court judge relied upon the decision of Costello J. in O’Donnell v Dun Laoghaire Corporation [1991] I.L.R.M. 301 as a basis for granting the extension of time sought, I am satisfied that the trial judge erred in law in doing so…

61 I am satisfied that the trial judge erred in principle and in law when he concluded there were good reasons within the meaning of 84A to extend the time to permit Forum Connemara challenge the decision of 30th September, 2014. In addition there were other factors which sounded strongly against the granting of such relief. Not only did Forum Connemara not institute its proceedings within the prescribed time limit but it approbated the decision which it maintains was invalid and did so for its own commercial benefit. It was only when it was notified that the contract had been awarded to a third party that it decided to challenge the validity of the earlier decision made on 30th September, 2014. In so delaying it obtained the benefit of the status quo pre dating that decision and has caused significant detriment to the successful candidate, Galway Rural Development Company Limited.

62 Having considered all of the evidence I am quite satisfied that for the High Court to extend time under 84A in the circumstances of the present case would result in a gross impairment of the effectiveness of the implementation of the Community Directives on the award of public contracts. There are and were no good reasons entitling the trial judge to grant the reliefs sought. In such circumstances I would allow the appeal.”

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Jurisdiction: Ireland

In personal insolvency legislation, with a somewhat similarly phrased time limit to the procuremnt rules, with time running from "after" a creditors' meeting, the day of the meeting was reckoned in the time limit

• Section 115A of the Personal Insolvency Acts 2012 – 2015 provided for an appeal to be brought as follows:
• • “(2) An application under this section shall be made not later than 14 days after the creditors’ meeting referred to in subsection (16) (a) or, as the case may be, receipt by the personal insolvency practitioner of the notice of the creditor concerned under section 111A (6) (inserted by section 17 of the Personal Insolvency (Amendment) Act 2015), shall be on notice to the Insolvency Service, each creditor concerned and the debtor. …”
• The meeting was on 9 September 2016
• The application were brought on 23 September 2016
• If the day of tghe creditors’ meeting was reckoned in the time limit, the application was brought outside the 14-day period
• Reliance placed on section 18 of the Interpetation Act 2005:
  • “(h) Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period“
• Baker J held that the day of the meeting was counted and so the proceedings were brought out of time
• There was no provision in the rules to extend time

“27. [S. 18(h)] is clear that a reckoning either beginning with or reckoned from a particular date was to include that day…

28. The purpose of the interpretative tool contained in 18 of the Interpretation Act, 2005 is to create uniformity and clarity in the interpretation of statutes. The long title suggests that its purpose was to guide in the “interpretation and application” of legislation and statutory instruments. Section 13 requires that the Act be “judicially noticed”. I consider that the Oireachtas intended that the interpretative tools relating to the construction of periods of time were intended to govern the interpretation of any and all statutory expressions that related to or provided for the calculation of time. It is not therefore the case that in order for s. 18(h) to govern the interpretation of a time phrase in an Act that the expression “begin on”, “be reckoned from” or “to end on”, “be reckoned to” be the only time clauses governed by the legislation. It would be unsatisfactory if a materially different consequence arose from the use of phrases other than those expressly identified in s. 18(h), and the Act would have failed to perform its objective of providing a sufficient degree of certainty and clarity in the interpretation of statutory provisions. It is of course central to the operation of a statutory time limit that the calculation of that time limit is clear and certain and I do not consider that the Oireachtas intended to limit the scope of time related prepositions to those expressly identified in s. 18(h). This means that prepositions such as “from”, “since”, “beginning on”, “before” etc. would all be read in a manner consistent with the interpretation created by the Act.

29. Fennelly recognised the importance of consistency in the interpretation of different time phrases within a particular statute in Walsh v. An Garda Síochána Complaints Board [2010] 1 I.R. 514 where at para. 16 he said “it makes no sense to interpret the two provisions so as to contradict each other.” He made this observation in the context of the question before him whether the Oireachtas intended to produce a different result in regard to two different time limits. Fennelly J. also describes s. 18(h) as a “considered legislative choice”, and also noted the approach in common parlance to the question of time limits and gave the example of an anniversary date as being one which is commonly considered to happen within the year or relevant time frame.

30. The debtor argues that the personal insolvency legislation identifies 17 different time limits in various subsections and that the only subsections that use the word “after” are s. 119A and 115A, all of the other time limits using an expression which counsel says is more readily consistent with the language of s. 18(h), the word “within”.

31. It is argued in those circumstances that this different use within the same statute was intentional and rational primarily because in practice a meeting of creditors will often be lengthy and finish well outside normal business I do not consider that this approach is consisted with the decision of Fennelly J. in Walsh v. An Garda Síochána Complaints Board, which is authoritative on the matter.

32. It is argued also that to reckon the day of the meeting of creditors within the time limit in the Act would fail to recognise the practical factual context in which a meeting of creditors is conducted. I consider that this argument fails to have regard to the requirement of legal certainty in statutory time limits, the precise mischief which was intended to be dealt with by the Interpretation Act, 2005, and earlier It could not be said that the reckoning of a time period would depend on the time of day when an event happened or concluded.

Conclusion

33. I conclude that the debtor was out of time for the lodging of an application by way of appeal under 115A (9) of the Act of 2012. There was no argument advanced that I have a power to enlarge the time for the making of appeal and counsel for the debtor accepts that the law has been authoritatively decided by the Court of Appeal in Law Society of Ireland v. Tobin & Anor. [2016] IECA 26 and that as Finlay Geoghegan J. said giving the judgment of the Court in reference to statutory time limits:—

“Such statutory provisions are true limitation sections in that they expressly or clearly and unambiguously preclude the bringing of an action after the specified period.”

34. The statutory time limit is I consider therefore that the application must fail.”

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Jurisdiction: Ireland

Plaintiff could not bring a public procurement claim as a plenary action seeking damages for breach of contract (they were outside the time limit for a procurement claim)

The application was the determination of a preliminary issue: “Whether the plaintiffs were required to pursue the claims they make in the within plenary proceedings by way of proceedings initiated pursuant to O.84A of the Rules of the Superior Courts and/or in accordance with the time limits applicable to proceedings regulated by O.84A of the Rules of the Superior Courts and/or within a timely fashion”

“Strict time limits irrespective of remedy sought

30. In Dekra Éireann Teoranta Minister for Environment and Local Government [2003] IESC 25, [2003] 2 I.R. 270 the Supreme Court was considering the then relevant provisions of Order 84, rule 4. The principles engaged by the court are substantially similar to those in issue in the present case. In particular Denham J. at page 283 of the judgment describes the nature of the judicial review conducted in a procurement matter to be a “specialist area” which “reflects a policy that such reviews be taken effectively and rapidly as possible”.

31. In his judgment in SIAC Construction Limited National Roads Authority [2004] IEHC 128 Kelly J. put beyond doubt that the then relevant O.84A applied “not merely to the decision to award a contract or the award of a contract, but also to decisions taken by contracting authorities regarding contract award procedures”.

32. That judgment was given in regards to the time limits for commencing a claim but explains the policy behind the adoption of strict time limits in domestic The purpose of the strictness of the time limits had been considered by the Supreme Court in Dekra Éireann Teoranta v. Minister for the Environment and Local Government that O.84, r.4 “reflect a policy that such reviews be taken effectively and as rapidly as possible” (per Denham J. at p. 283), and that there was “a degree of urgency required in applications of this type” (p.285). Kelly J. adopted this approach.

33. In Matra Communications SAS Home Office [1999] 1 W.L.R. 1646 Buxton L.J. pointed to the obvious fact that a continuing damage claim was likely to have an unsettling and disruptive effect on contractual relations established by the award decision. Kelly J. noted this and quoted with approval the statement of Buxton L.J. that no distinction is to be made between damages and other remedies. At p. 22 Kelly J. stated the following:

“Accordingly, it follows that because the only claim which is made here is one of damages, it is not to be treated differently from a time limitation point of view to any of the other remedies that are provided for in the directive.”

34. The plaintiffs argue that the proceedings commenced by them are not ones that seek to dispute the contract and accordingly no concern arises that the damages claim might have an “unsettling effect”. That argument seems to me to misconstrue the purpose of the Regulation and fails to have regard to the overriding intention that there would be a harmonious interpretation of the nature of the remedies, and that the remedies for which provision is made are remedies to be construed in accordance with Community

35. This is clear from the judgment in SIAC Construction Limited National Roads Authority where Kelly J. said:

“It is clear that national authorities are obliged to ensure that the Remedies Directive in full is implemented. Such implementation cannot be confined to decisions to award a contract, or the award of a contract, but must extend to other decisions taken in respect of contract award procedures. It follows, therefore, that O.84(A) in order to be in accord with applicable Community law, must be interpreted as applying not merely to a decision to award a contract, or award of a contract, but also to decisions taken by contracting authorities regarding contract award procedures.” (p. 28)

36. The point regarding the nature of the remedy cannot be answered therefore by reference to the type of relief sought and does not require that an applicant has challenged a decision to award a With that proposition in mind, I turn to examine the nature of the claim.

…

80. The approach of the Supreme Court in Shell E&P Ireland Ltd McGrath & Ors. is the correct approach in the circumstances, and means that a court must look to the substance of the claim and the source of the rights, breach of which is alleged to give rise to remedy. It would in my view be inconsistent with European law and with the approach identified in the Irish authorities for a plaintiff to be permitted to bring a claim by plenary proceedings in respect of the breach of the terms and conditions expressed in the tender process, and said to be implied therefrom. To permit the plaintiffs to do this would be to ignore the State’s obligations under European law to create a self contained and complete system for the award of public contracts and for remedies to those dissatisfied either with the process, interim measures, or the ultimate award of the contract.

81. That this is the correct approach is mandated also by the fact that many of the persons who will take part in the competition will not be Irish citizens or bodies registered in Ireland, and the principles of the free movement of services and open competition between Member States are best fostered by a uniform provision for the granting of public contracts and remedies for failure of process and

82. Accordingly, I consider that the fact that the plaintiffs seek damages for breach of contract at common law cannot of itself indicate the correct characterisation of the proceedings. Damages are a remedy contemplated by the Remedies Regulations and by 84A, and the fact that damages are sought does not make this a wholly domestic claim. Further, the claim of the plaintiffs for damages is predicated on an argument that the disclosure of the information was an unlawful step taken by the defendant in the course of the process by which the contract was awarded. It is pleaded that absent the disclosure, the winning bid would not have succeeded, and the plaintiffs had at the very least, a realistic or good prospect of success in the process, and this also involves a direct challenge to the decision to award the contract, again a matter in which a court will examine the engagement in the process and how it evolved. As thus understood, it is a challenge to the way in which the decision of the defendant was taken

…

105. The question before me is not one of the source of the remedy or the source of the legal obligations and rights, but the manner in which those rights may be protected and the obligations enforced. Irish procedural rules require that this be done by judicial review under 84A.

106. The obligations may be ones familiar in common law jurisdictions, but they derive from Community law, and while the concepts are similar and may indeed be identical, the remedy is one governed by European That this is so derives itself from nature of the competitive process envisaged and supported by the Community procurement law. A disappointed tenderer is not deprived of a remedy, but must seek the remedy within the framework as established under Community law. This necessarily, in my view, precludes the bringing of a claim other than by the mechanism provided by O.84A, and even if the claim be one for breach of contract as understood in domestic law, the procedure is one governed by Community law.

Conclusion

107. For these reasons, I conclude that the claim of the plaintiffs is not one that may be maintained by plenary action, and accordingly, I answer the preliminary question as follows:

108. The plaintiffs were required to pursue the claim in the within proceedings by way of proceedings initiated pursuant to O.84A of the Rules of the Superior Courts.”

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Jurisdiction: Ireland

30-day time limit did not run from regret letter, but only following a later letter which included specific details about the status of the winning tenderer's certificate of registration

Tender for towing and garaging services of vehicles recovered, seized, or retained by the police

• Proceedings issued more than 30 days after the applicant was informed of the result
• Exchange of correspondence between the applicant and contracting authority ensued
• Regret Letter: 27 October 2017
• Applicant sends letter asking about successful tenderer’s capacity: 27 October 2017
• Contracting Authority replies: 8 November 2017
• Applicant raises further questions/concerns: 16 November 2017
• Contracting Authority replies noting details of winning tenderer’s certificate of registration, which provided for storage below the requirements, but CA said it was satisfied the winner would have the necessary permits in place for the duration of the contract: 23 November 2017
• Further exchanges on 23 Nov, 30 Nov, 1 Dec
• Proceedings issued: 8 December 2017

Application brought by the Respondent to strike out for being out of time

“38 I am persuaded … that the test is to ascertain the point at which the applicant might have taken a reasonable view that the preferred bidder had not met the qualifying criteria.

43 The time limit provided in the Remedies Regulations, for the reasons explained by Peart J. in Baxter and having regard to the principle of effectiveness, contemplates a start date which is linked to the date of knowledge or presumed knowledge having regard to the fact that the basis of the challenge may not be one readily ascertainable from the known facts, as the date of communication of the identity of the preferred bidder. The identification of Corcoran as the preferred bidder in this case, taken alone, did not give Newbridge sufficient knowledge of the pleaded irregularities.

44 The general purpose of effectiveness and certainty and that litigation in the procurement area be resolved with expedition may, on occasion, require to be reconciled. Litigation efficiency is not to be achieved by the commencement of proceedings before a proper evaluation is carried out as to whether they are justified or reasonably likely to succeed. Litigation chaos, the commencement of poorly pleaded, unjustifiable, or unstateable proceedings are not desirable in the interests of the proper administration of justice, and while procedures exist for the bringing of an application to strike out proceedings which do not meet the necessary standard, such applications engage court time and are costly for the parties. It is in general not desirable that proceedings be instituted in circumstances where an applicant or plaintiff has not sufficiently assessed the nature of the claim or the prospects of success, or does not have requisite information to adequately plead.”

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Jurisdiction: Ireland

High Court denies application for extension of time where applicant brought proceedings more than 30 days after its exclusion from the competition

Construction contract for social housing

• Glenman was excluded by decision of 22 December 2022 for poor prior performance of a public contract
• This related to the previous contract in respect of the same social housing project
• A dispute arose concerning that termination, it had been referred to a conciliator who recommended (on 20 December 2022) the decision of the Council to terminate be upheld but Glenman had then filed a Notice of Dissatisfaction
• An argument was made that the exclusion decision of 22 December wrongly referred to the conciliation (which it was said was confidential and without prejudice)
• Detailed correspondence flowed between the parties following the exclusion decision, and Glenman sought to have the Council issue a new exclusion decision that did not make reference to the conciliation
• Proceedings issued on 23 March 2023

“44 [This] Court believes that the Supreme Court decision in Dekra, which dealt with the late issue of proceedings in a public procurement case, carries much greater weight in these proceedings than the Supreme Court decision in Copymoore, which dealt with the late amendment of proceedings in a public procurement case.

45 In particular, it can be seen from the analysis in Arthropharm that the approach of the courts to the late issue of proceedings in judicial review cases generally has been to enforce very strictly the time-limits, with a delay of 1 to 5 days being held to be sufficient to justify the denial of permission to bring the proceedings.

46 It seems to this Court that when dealing with the sub-category of judicial review cases involving public procurement, where the powerful weapon of the automatic suspension of a public contract is available in effect, ‘for the asking’ (i.e. by the simple expedient of issuing proceedings), there is an even greater reason for a court to be ‘strict’ and to very carefully ‘scrutinise’ the reasons put forward for extending the deadline. Accordingly, this is the approach which is taken by the Court in this case.”

The Court then engages on a detailed analysis of the facts, going through the inter partes correspondence that followed the exclusion decision and concluding that there was no good reason for an extension of time

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Jurisdiction: Ireland

Proceedings were issued 48 days after the standstill letter and were therefore arguably out of time. The Court rejected arguments that the applicant was time barred; while the applicant had sufficient information to assert that the tender was abnormally low, it had only later become aware that no Regulation 69 investigation had been undertaken. The Court also considered that allowing the application to proceed would not prejudice the Council. This was because the procedure had already been suspended due to another separate challenge, (which was subsequently resolve)

“[166] Although the Applicant when writing its letter of 31 March 2023 had sufficient information to assert that the successful tenderer’s pricing was “abnormally low” the critical fact about which it complains in these proceedings, and which I find to be of central importance, namely the infringement of failure to perform an Regulation 69 Inquiry, only became known on 05 April 2023 when the Respondent stated that no Regulation 69 Inquiry had been undertaken. That is the date when time began to run, and the proceedings were commenced within 30 days thereafter.

[167] If I am incorrect in this conclusion, these proceedings were commenced 18 days after the date the Respondent says they became barred. The Le Chéile proceedings had commenced and had the effect of suspending the award of the contract pending their determination. Those proceedings were listed for hearing at the same time as these proceedings. Therefore, the delay of 18 days did not cause prejudice to the Respondent or other parties.

[168] For all these reasons the proceedings are not barred by the operation of Regulation 7(7) of the Remedies Regulation.”

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Jurisdiction: Ireland

Although advanced as a claim in conspiracy, the substance of the case was a claim for breach of the public procurement rules and was therefore brought years out of time and would be struck out

The Court of Appeal  upheld the High Court dismissed the appeal against the High Court judgment of Barret J – [2023] IEHC 752

“45. The 2010 Regulations provide a remedy for a person who has an interest in obtaining a reviewable public contract – which the appellant did – and who alleges that he has been harmed by an infringement of the law of the European Communities or European Union in the field of public procurement – which the appellant did. Regulation 7(2) requires that any application must be made within 30 calendar days after the applicant knows or ought to have known of the alleged infringement – which the appellant did not.

…

52. Assuming for the sake of argument that the appellant could make out the alleged irregularity, the height of the case it would make is that as of June, 2018 the appellant was a person who had previously had an interest in obtaining a reviewable public contract and only then learned of what it would now contend was an alleged infringement of the law of the European Communities or European Union in the field of public procurement. Regulation 7(2) of the 2010 Regulations requires that any application must be made within 30 calendar days after the applicant knows or ought to have known of the alleged infringement: but no such application was made.

…

86. It was submitted that the relief claimed by the appellant – leaving aside, I suppose, the injunctive relief – was not Remedies Regulations relief. That is simply not so. One of the powers available to the High Court on an application made pursuant to the 2010 Regulations is the power – in art. 9(6) – to award damages as compensation for loss resulting from a decision which was an infringement of Community law, or of the law of the State transposing Community law. Of course the Regulations do not contemplate an award of damages for conspiracy. But it is trite that a civil conspiracy is not actionable unless acted upon to the detriment of the plaintiff. If – for the sake of argument – it were to be assumed that the appellant could establish that the respondents agreed to do what they are alleged to have done, and did what they are alleged to have done, the outcome – on the appellant’s case – was that Capita was awarded the contract for the national postcode system and the claim is a claim for damages arising out of that award.

87. The time limits prescribed by the Regulations and by O. 84A are strict. It is impermissible to seek to circumvent those time limits by – as counsel for the appellant put it– rebadging a claim for an infringement of the Regulations as a conspiracy claim. As Baker J. observed in BAM PPP Ireland Ltd.:-

“To permit the plaintiffs to do this would be to ignore the State’s obligations under European law to create a self-contained and complete system for the award of public contracts and for remedies for those dissatisfied either with the process, interim measures, or the ultimate award of the contract.”

91. It is perfectly clear from the pleadings – and from the replying affidavit of Mr. Delaney, for that matter – that the foundation of the appellant’s claim is for damages arising out of the public procurement process conducted in 2011 for the award of the contract for the national postcode system, and the award of that contract to Capita in 2013.

92. It is quite properly – and necessarily – conceded by the appellant that if the substance of the action is a claim for breach of public procurement rules, it is impermissible and out of time.

93. For the reasons given, I am satisfied that the High Court judge’s conclusion as to the substance of the action was not only correct but inescapable.”

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Jurisdiction: Ireland

This procurement challenge concerned a management service for sustainable upgrades to homes run by the SEAI. The central issue was whether you could combine a pre-BER assessment and a survey during the same visit. KSN primarily argued that the tender documents did not allow this and, as a fall-back, that there was ambiguity in the tender documents. The Court held that the latest the claim about ambiguity could have been brought was 30 days from the date of the clarification.  

“[199] KSN refers to the decision in White Mountain, in which the High Court (Quinn J) held that the claim that there had been a failure to carry out a Regulation 69 inquiry (into whether the successful tender was abnormally low) was not time-barred. In that case, the court concluded that although the applicant had sufficient information to complain that the tender was abnormally low at an earlier stage, it only became aware of “the critical fact” of which it complained, that there was no investigation, some time later, and the proceedings were issued within 30 days of obtaining that information.

[200] What then are the objectively knowable facts upon which KSN relies for its argument in the alternative, that the tender documents breach the principle of transparency because,  in effect, it was not clear that combining of services was permitted. It seems to me that this purported lack of clarity could arise in one of two ways. First, the tender documents were never clear, and Clarification 90 did not resolve any ambiguity. Or second, the tender documents appeared to clearly show that combining was not permitted, but that Clarification 90 cast doubt on this interpretation. In this regard, as noted above, KSN initially argued the case on the basis that SEAI had impermissibly sought to change the SoR, whether by the clarifications or otherwise. KSN pointed out, by reference to Case C-368/10, Commission v Netherlands, that this was impermissible. This was not disputed. As a consequence, the clarification must be capable of being read consistently with the SoR. If the SoR could only be read as rendering combining impermissible, and the clarification could only be read as combining being permissible, this would have created an ambiguity potentially breaching the requirement for transparency.

[201] In the first of those scenarios, time must have run from the date that the tender documents issued. If the latter, it ran from the date that Clarification 90 issued to the prospective tenderers, including KSN, i.e. 25 March 2024. Proceedings issued on 9 July 2024.

[202] In either event, proceedings issued well outside the time limit in Regulation 7(2). Indeed, the first amended Statement of Grounds, in which KSN raised the lack of transparency plea for the first time was not delivered until October 2024. Given KSN’s interpretation of the tender documents, it may not have actually known that there was an alternative interpretation until it realised that Abtran had been awarded the contract having proposed to combine services, but in light of my conclusions on Clarification 90, it ought to have known, at least, that it had a claim regarding lack of transparency.

[203] KSN complain that given the timing of Clarification 90, even had they interpreted it as introducing ambiguity into the tender requirements, it was too late for them to do anything about it. This is not correct. First, it could have, as required by the ISFT at §27.1, brought it to the Contracting Authority’s attention. It may have been too late to seek a clarification, but there was nothing to prevent it alerting SEAI to what it considered to be an ambiguity in the documentation, affording SEAI an opportunity to take steps to address it. Second, it could have brought an application to the court within the meaning of Regulation 8(1)(a) for an interlocutory order to correct an error in the process. It did neither.

[204] The importance of adherence to time limits in public procurement proceedings is well-established (see Dekra Eireann Teo v Minister for the Environment [2003] 2 IR 270, [2003] IESC 25). Accordingly, it is not open to KSN to pursue a complaint regarding lack of transparency for the first time in October 2024 when the facts relevant to that claim were or ought to have been known to it in March 2024.

[205] To be clear, I have concluded that there was no lack of transparency in the tender documents, and I have addressed the foregoing only against the risk that I am wrong about my interpretation of the SoR. Even if I had concluded differently in relation to my interpretation of the SoR (without clarifications), and a RWIND tenderer would have interpreted the SoR as rendering the combining of services impermissible, KSN’s case that there was a lack of transparency in the tender requirements, insofar as it is pleaded, would have been statute-barred.“

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Jurisdiction: Northern Ireland

The claim was not statute-barred; a five-day delay beyond the three-month limit would “inevitably” be extended because of the ongoing correspondence and the extension of the standstill period.

“30. There have been a number of important decisions on this issue since the hearing before the learned trial judge. First Risk Management [2009] EWCA Civ 490 was itself appealed. The Court of Appeal drew a distinction between the anticipation of a breach and an actual breach. It is only the latter that gave rise to a cause of action. On the facts of that case that led them to conclude that the breach occurred on the date found by Stanley Burnton LJ. Both Moore-Bick LJ and Pill LJ went on, however, to indicate their view that the cause of action arose when there was any failure by the contracting authority to comply with any step in the procedure which involved a breach of duty. The risk of loss or damage was sufficient.

31. The ECJ then gave judgment in Uniplex (UK) Ltd v NHS Business Services Authority. It is unnecessary to rehearse the factual background in that case but the court held that the principle of effectiveness meant that the period for bringing proceedings seeking to establish an infringement of the public procurement rules or to obtain damages should start to run from the date on which the claimant knew or ought to have known of that infringement. It further held that the requirement to act promptly was unpredictable and did not ensure effective transposition of the relevant Directive.

32. The effect of that ruling was considered by the English Court of Appeal in Sita UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156. It was noted that the ECJ did not make adverse comment about the fact that the period for issuing proceedings was limited to three months and approved an approach to the Regulations which applied the three month time limit from the date of knowledge. We agree that this is the correct approach which we should apply in this case. There was then some debate between the judges about the formulation of the degree of knowledge required before time began to run. For the reasons given below we do not consider that we have to resolve that debate.

33. From these authorities we consider that we can draw three propositions which are material to this case.

(i) The cause of action only arises where a breach of the Regulations is alleged. Anticipation of a breach is not sufficient (see Risk Management [2009] EWCA Civ 490).

(ii) The breach can consist of any infringement of the Regulations which gives rise to the risk of loss or damage (see Risk Management supra at paragraphs 242 and 255, Uniplex at paragraph 29-31 and Sita at paragraph 22).

(iii) Time runs from the date on which the claimant has the requisite knowledge that a breach of sufficient magnitude to justify proceedings has occurred (see Uniplex paragraphs 30-31).

…

35. The manifest error found by the learned trial judge in this case consisted of the application by the appellant of a criterion on fee percentage in the assessment process on the basis that it was a significant reliable indicator of price competitiveness at the primary competition stage whereas the use of fee percentage alone was inadequate and unreliable for assessing price competitiveness. That assessment necessarily commenced after the receipt of the tenders. They were not due for submission until 7 August 2007. We consider, therefore, that the earliest date on which the appellant could argue for an infringement in this case is 7 August 2007. If that is correct the time limit expired on 7 November 2007. In those circumstances the claim was 5 days late. We note, however, that the claim was lodged on the last day of the extension of the standstill period on 12 November 2007. The original standstill period would have expired within the three month limitation period and was extended because of ongoing correspondence and exchange of information between the appellant and the respondents. If the respondents had the requisite knowledge on 7 August 2007 so that time runs from that date we consider that in view of the fact that the respondent is only 5 days outside the limitation period and that this is contributed to by the ongoing correspondence and extension of the standstill period the limitation period would inevitably have been extended in those circumstances.

36. The respondents argue that the infringement did not take place until 17 October 2007 at the earliest or that they did not have the requisite knowledge until sometime after 12 August. If they are right in that submission they were within the primary limitation period. Whichever view of the date of the infringement or the date of knowledge one takes we consider that the respondent’s claim is not barred by reason of the provisions of Regulation 47(7)(b) of the 2006 Regulations.”

View Case

Jurisdiction: Scotland

Pursuer's claim was barred as it was brought after the 30-day time limit

The pursuer nursery claimed a breached of the Public Contracts (Scotland) Regulations 2015 arising from the council entering into new Early Learning and Childcare Agreements (ECLAs) with other childcare providers, with the pursuer excluded from the new ECLAs

• The summons was seed on 31 July 2025
• Letter on 18 February 2025 telling the pursuer that the existing ECLA would not be renewed and would end on 12 August 2025
• Report of the Council’s committee of 25 March 2025 (that new ECLAs would not be offered to providers not meeting certain standards)
• Report considered by the committee on 1 May 2025
• Letter to the pursuer from the Council received on 5 May 2025 (made aware there was going to be a new procurement and that existing providers not meeting the national standards – including the pursuer – would not be admitted to the new partnership)

“9 Regulation 88 requires that they are raised, “within 30 days beginning with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen”. The 30-day period can be extended by up to 3 months and that issue is considered below. The courts have considered what is meant by “known” in this regulation and others based on EU Directives. In SITA UK, Elias LJ said that it required knowledge of facts which clearly indicated, though need not absolutely prove, an infringement and went on to say,

“Once the prospective claimant has sufficient knowledge to put him in a position to take an informed view as to whether there has been an infringement in the way the process has been conducted, and concludes that there has, time starts to run”. (paragraph 22)

Although this appears to require that a claimant has actually reached a conclusion that the Regulations have been breached, in Mermec UK Limited v Network Rail Infrastructure Limited [2011] EWHC 1847 (TCC) Akenhead J noted that, “All that is needed is a knowledge of the basic facts which would lead to a reasonable belief that there is a claim.” Both cases were considered in Scotland in the Opinion of Lord Woolman in Nationwide Gritting Services Limited v The Scottish Ministers [2013] CSOH 119. He noted that in paragraph 37 of his decision in SITA, Elias LJ had gone on to refer to the issue as being whether the tenderer has sufficient information to commence proceedings. I have applied this approach to consider to what extent the pursuer had knowledge of the relevant facts.

10 By reference to the decision of Coulson LJ in Brookhouse Group Ltd v Lancashire County Council [2024] EWCA Civ 717, [2024] PTSR 1513, the pursuer contends that the 30-day period does not start to run until the contracting authority has communicated the reasons for their decision to the unsuccessful party. The provision of information by the contracting authority may be relevant to the time limit for seeking an ineffectiveness order but the judgments in that case do not support the proposition that was advanced. It may be that until there is such communication, the disappointed party is in ignorance of the position. It may be that a communication from the contracting authority is what imparts the “sufficient knowledge” referred to by Elias LJ or knowledge of the basic facts as referred to by Akenhead J. When considering the time limit for remedies other than an ineffectiveness order, however, the focus should be on whether there is that knowledge from any source and not whether the contracting authority has communicated information.

16 This issue is rendered rather academic, however, when regard is had to the fourth document referred to by the defender – the council letter dated 2 May 2025 which was received by the pursuer on 5 May 2025. I have already noted I do not attach any weight to the defender’s submission that this did not set out the view of the council as to the applicability of the procurement regime. It referred to an Early Years Commissioning Team and explained that it had “made the necessary arrangements for the procurement of a new ELC partnership”. It noted that it was a requirement of this that existing providers that were not meeting certain of the National Standards – including the pursuer – would not be admitted to the new partnership. It was apparent that by this time the pursuer clearly had an interest in what would be done in future by the council and a wished to object to the decision. They had been made aware in this letter that there was to be procurement of a new partnership. Obtaining information about what was proposed by the council and the contents of the Report and Minute would have been straightforward and would have entailed little effort or expenditure.

17 It was not necessary that the pursuer have sight of the template ECLA for the period to start running. The nature of the challenge does not depend on the terms of the template. Although the analysis of the application of the 2015 Regulations to the ECLAs in the light of the decision in Faraday outlined above requires that there is the potential for the Partner Provider to be bound to provide services if a place was taken up, in this regard there is no material difference between the existing ECLA to which the pursuer was a party and the template new one. There could not therefore be said to be any reason to wait for sight of the new one before having awareness that a situation might come about in which a Partner Provider would become bound to provide a service.

18 In view of the above factors I conclude as a result of the Report, the Minute of the meeting on 1 May 2025 and the 2 May letter taken together mean that the test under Regulation 88 would be met. To allow some time for the pursuer to make the inquiries after having received the letter and to obtain and consider the Minute, I conclude that the pursuer ought to have been aware of the position by the end of May 2025. As the facts are clear and I have allowed a margin of time for the pursuer to acquire knowledge, I do not consider that there is any doubt that has to be resolved in the pursuer’s favour as they submitted.

19 On this analysis the 30-day period started running by latest at the end of May 2025 and this means that the proceedings were not brought within the 30-day period. The issue that then arises is whether an extension of the 30-day period should be granted. The pursuer submits that the court should take a “pragmatic approach” to the question of extension of time having regard to the requirement for a letter before action. However, having regard to the dates when the pursuer had the necessary awareness and the 30-day period started running, it cannot be said that the requirement for a letter played a determinative role in the failure to meet the time limit. The pursuer submitted that it is significant that the claim for an ineffectiveness order was made within the time limit specified for that and the court should ensure that it has the lesser remedy of damages and declarator rather than just the more drastic remedy of an ineffectiveness order. In response, the defender notes that in Faraday, Lindblom LJ states that the 30-day time limit is not disapplied when a declarator of ineffectiveness is sought (paragraph 97). That being the position, the existence of the remedy with the longer time bar period does not justify an extension of the shorter period. The pursuer has not identified other grounds on which it would be appropriate to extend the 30-day period. In that situation, the 30-day time limit remains, the proceedings were not raised timeously and, as a result, they are barred in terms of Regulation 88.”