HT-2023-000379 - [2024] EWHC 1201 (TCC)

INTRODUCTION

This is the hearing of an application for summary disposal of a statutory procurement claim on the basis that it is out of time.

The action concerns two claims for damages, one for breach of contract at common law and the other for breach of Regulation 33(7) of the Public Contracts Regulations 2015 (“PCR”). I will refer to the latter as the procurement claim, which is pleaded at paragraphs 22-24 of the Particulars of Claim. By application notice dated 21 November 2023, the Defendants jointly apply for summary judgment on or strike out of the procurement claim, on the ground that it is time barred pursuant to Regulation 92 of the PCR. No such application is made in relation to the breach of contract claim, pleaded at paragraphs 2-21 of the Particulars of Claim.

The Claim Form was issued on 18 October 2023. It was issued in the name of Oracle Securities Limited. As part of its application notice dated 27 November 2023, the Claimant applied to amend the Claim Form (and Particulars of Claim) to give its correct name, Oracle Security Services Limited. The Defendants consented to this amendment, which I have adopted in the heading to this judgment.

I heard argument on 13 March 2024 and gave permission for supplemental written submissions, which were served by the Claimant and Defendants on 14 March and 26 March 2024 respectively.

There is no dispute as to the test to be applied on this summary application, so I can deal with it shortly. I have in mind the well-known principles summarised in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), the essence of which for relevant purposes is that the Court must consider, without conducting a mini-trial, whether the Claimant has a realistic, as opposed to fanciful, prospect of defeating the limitation argument. A realistic defence is one that carries some degree of conviction and is more than merely arguable. Unless the evidence relied upon by a respondent is implausible, or obviously lacks real substance, the existence of a dispute of relevant fact is likely to prevent summary disposal.

In the procurement context, Elias LJ in Sita v. GMWDA [2011] 2 CMLR 32 (a limitation case) approved of the following approach taken by Mann J. at first instance [40]:

It was not suggested that there is any distinction in approach between striking out and summary judgment: and I note this was accepted in Siemens Mobility Limited v High Speed Two (HS2) Limited [2022] EWHC 2451 (TCC) at [67].