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

Fecha: 20-May-2024

K. DAY 1 POINT

K. DAY 1 POINT

146.

The Day 1 point does not, then, arise for determination, since there is a triable issue as to whether sufficient knowledge was only acquired after 18 September (or by July), which cannot be summarily determined. However, in deference to the argument of counsel, and because it is said that there is a conflict of authorities at least at first instance, I will deal with the main arguments briefly.

The Submissions

147.

The Defendants submit that:

147.1.

The wording of Regulation 92(2) is clear. Proceedings must be started within 30 days of actual or constructive knowledge, and the Regulation states, in terms, when the 30 days start: proceedings must be started “within 30 days beginning with the date when the economic operator [had the relevant knowledge]”. Day 1 is therefore the date of knowledge, whenever that may be. This is the natural and ordinary meaning of the provision.

147.2.

This construction of Regulation 92(2) was accepted by Fraser J (as he then was) in SRCL Ltd v National Health Service Commissioning Board (also known as NHS England) [2019] P.T.S.R. 383. In that case, knowledge came about on the day of an auction, which was won by an abnormally low bid. Fraser J considered (albeit obiter) that the date of the auction was expressly to be counted as one of the 30 days [144].

147.3.

Regulation 2(4) of the PCR provides that where a time limit expires on a weekend, then expiry takes effect on the next working day. In such a case, it might appear that time expired at a later point than 30 days, but that does not show that Day 1 is excluded. The cases relied upon by the Claimant (see below) to suggest otherwise are all explicable on the basis of Regulation 2(4), which reads:

“In Parts 2 and 3, any reference to a period of time which is expressed otherwise than in hours is to be interpreted subject to the requirement that where the period—

(a)

is to be calculated by counting forwards in time from a given date or event, and

(b)

would (but for this paragraph) have ended on a day which is not a working day,

the period is to end at the end of the next working day.”

147.4.

In construing legislative provisions of this sort, English law recognises a distinction between cases where legislation requires an act to be done within a fixed period of time “beginning with” a specified day, on the one hand, and where an act must be done “from” or “after” a specified day, on the other. In the latter case, the specified day is excluded; but in the former, it is included: see Zoan v Rouamba [2000] 1 WLR 1509 [23-24] (per Chadwick LJ); Wang v University of Keele [2011] ICR 1251 at [21-23; Stevenson v General Optical Council [2015] EWHC 3099 (Admin) at [15-19]; and Trow v. Ind Coope (West Midlands) Ltd. [1967] 2 Q.B. 899, 923.

148.

The Claimant submits:

148.1.

On its true construction, and in its statutory context, and/or as a matter of everyday English, the phrase in Regulation 92(2) “beginning with the date when” means the same as “from the date when” and, therefore, excludes the date itself.

148.2.

The legislative history, in particular the original 2006 Regulations, and their amendment in 2009 and 2011, is instructive. The Claimant submits that when the “beginning with” wording was introduced in 2009, by way of amendment to the PCR 2006, there was no intention to change the start date, which under the PCR 2006 had required proceedings to be brought within 3 months “from” the relevant date. “Beginning with” (in the 2009 and 2011 amendments, and the PCR) therefore was intended to mean the same as “from”; and where time runs “from” a date, that date is to be excluded.

148.3.

As a matter of law, where knowledge occurs in the course of a day (in this case, on the assumed facts at this stage of the argument, upon the reading and consideration of the 18 September letter at some point that day), the rest of the day is ignored, since it is said that the law ignores fractions of a day: see Matthew v Sedman [2002] AC 299 (SC). This is the general rule when a statute provides that time runs “after”, or “from”, or “beginning from”, and the Claimant submits the same should also apply to legislation which uses the phrase “beginning with”.

148.4.

Three judges at first instance have assumed (albeit without argument) that Day 1 is excluded under Regulation 92(2): Stuart-Smith J in Amey Highways Ltd v. West Sussex County Council [2018] PTSR 455 at [37]; HH Judge Eyre Q.C. (as he then was) in Bromcom Computers plc v. United Learning Trust and another [2021] EWHC 18 (TCC) at [11] and [30]; and Waksman J in Bromcom Computers plc v. United Learning Trust and another [2022] EWHC 3262 at [426].

148.5.

A conclusion that Day 1 is to be included produces a bizarre or irrational result, which is that a claimant has one day less for bringing a claim in damages under Regulation 92 than for bringing a claim for a declaration of ineffectiveness under Regulation 93.

148.6.

Such a conclusion would also be inconsistent with the ECJ’s ruling in Uniplex v. NHS Business Services Authority(Case C 406-08), in which the ECJ held that the then current 2006 regulations, which required proceedings to be brought from the date of grounds arising, rather than from the date when the claimant knew or ought to have known that grounds existed, contravened the objective laid down in Article 1(1) of the underlying Directive (no. 89/665) of guaranteeing effective procedures for review of infringements in public procurement. That objective could “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”(emphasis added): see paragraphs [32], [35] and [48].

148.7.

The Day 1 point was recently considered by Mr Justice Constable in Boxxe Limited v. Secretary of State for Justice [2023] EWHC 533 (TCC), when the Secretary of State took the point that the claimant’s claim, complaining about the award to a competitor, was out of time under regulation 92(2) and therefore fell to be struck out, as the award to the competitor was made on 13 December 2022 and the claim was not issued until 12 January 2023. It is said that Mr Justice Constable held that there was a serious issue to be tried on the proper construction of regulation 92(2). In other words, Mr Knox submits that it has been recognised that the issue of construction cannot be summarily determined.

Discussion

149.

As I say, the Day 1 point does not arise at this stage, and since it may do on a later occasion, I will keep my observations as brief as possible.

150.

First, to my mind, the plain and natural meaning of Regulation 92(2) is clear, as the Defendants submit. It provides, in clear and unambiguous terms, the answer to the question as to which date is to be counted as day 1. The 30 days begins with the date of knowledge. That is the answer, provided by the Regulation itself.

151.

The Claimant submitted that a citizen, when considering what the law is, is entitled to look at the relevant words in the context of the statute itself (citing Lord Hodge in R(O) v Secretary of State for the Home Department [2023] AC 255 at [29]). If that test were applied, and giving proper weight to the statutory language, the answer is plain from the wording of Regulation 92(2).

152.

I respectfully therefore agree with Fraser J’s approach in SRCL that the date of knowledge is included. But I note it is unclear what argument was heard on the point.

153.

As to the three first instance decisions relied upon by the Claimant (see paragraph 148.4 above), to alleged contrary effect, these are all explicable as being applications of Regulation 2(4). Mr Knox accepted this, although made the fair point that there is no explicit explanation of that being so. The cases do not therefore support even an assumption, let alone a reasoned conclusion, that day 1 is excluded.

154.

Secondly, such a conclusion is consistent with long-established authority, outside Regulation 92. As held by the Court of Appeal (per Chadwick LJ) in Zoan v Rouamba [2000] 1 WLR 1509 at [23-24]:

“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 The Goldsmith's Company v The West Metropolitan Railway Company [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 re Lympe Investments Ltd [1972] 1 WLR 523 (“the company has for three weeks thereafter neglected to pay”). In Stewart v Chapman [1951] 2 KB 792 (“a person … shall not be convicted unless … within fourteen days of the commission of the offence a summons for the offence was served on him”) Lord Goddard, Chief Justice, observed, at pages 78-9, 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 K.B. 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.’”

155.

Regulation 92(2) is an example of the situation referred to in paragraph 24 of Chadwick LJ’s observations.

156.

Thirdly, as to legislative history, the phrase “beginning with the date” was introduced in 2009 (when the date in question was when grounds for the bringing of the proceedings first arose). The same phrase was maintained in the 2011 amendments (when the date in question was amended to the date of actual or constructive knowledge, in light of Uniplex). Even if it were correct to construe the former “from the date” wording (2006) as meaning the day after the date, it is simply not possible in my judgment, to construe “beginning with the date” (of knowledge), as being the same as “beginning with the day after the date” (of knowledge). That is, if ‘words have any meaning’, as Salmon LJ observed in Trow v Ind Coope (West Midlands) Limited [1967] 2 QB 899, at 924.

157.

The Claimant submitted that no change of start date was intended by the new language, but apart from that being essentially assertion, legislative intention is to be determined primarily from the wording, which I consider is not ambiguous. I would not accept the submission that these very different formulations are used interchangeably. Much was made of the purpose of the 2009 Amendment Regulations being to improve the rights of claimants. But I see no impairment of claimant rights, or anything inconsistent with the Remedies Directive, by a rule that provides that the day of their knowledge is the first day for limitation purposes.

158.

Fourthly, as to whether fractions of day are ignored, Matthew v Sedman was concerned with a limitation period which expired 6 years “from the date” on which the cause of action accrued. The negligence was the failure to bring a claim by a deadline of 2 June. The cause of action accrued at the very end of 2 June, a so-called ‘midnight deadline’ case, with the result that 3 June counted as the first day of the 6 years. The Supreme Court recognised a general rule (to which midnight cases were an exception) that the day of accrual of a cause of action is excluded from the reckoning of time, on the basis that the law rejects a fraction of a day. Time runs from the following complete day. But this is in the context of a limitation period which runs “from the date” of accrual. Although Zoan was not cited, the cases relied upon in support of the general rule included two referred to by Chadwick LJ in his paragraph 23 (The Goldsmiths’ case and Stewart v Chapman).

159.

In Wang v University of Keele [2011] ICR 1251, the issue was when the right to bring an employment claim expired. A claim had to be brought within three months “beginning with the effective date of termination”. Judge Hand QC summarised the authorities, helpfully identifying the following points, including as regards the relevance of fractions of time:

“…

(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;…”

160.

The ‘fractions of a day’ argument does not therefore assist the Claimant in this case, which concerns a provision that states that time begins to run on a date. That date is counted, regardless of when, on that day, knowledge accrued.

161.

Fifthly, as to Boxxe, the case concerned an application to lift the automatic suspension in place pursuant to Regulation 95(1) of the PCR in relation to a competition in which the claimant had been unsuccessful. The test to be applied in that connection was American Cyanamid, the first stage of which is determine whether there is a serious issue to be tried. The defendant submitted there was no serious issue to be tried, because the claim had been brought outside the 30 day limitation period under Regulation 92(2). The defendant had also issued a strike-out application on limitation grounds. The limitation question turned on the Day 1 point.

162.

Despite what he described as a formidable line of authority (that day 1 was included), which I note did not include Fraser J’s judgment in SRCL, Constable J declined to summarily determine the issue in the context of the application to lift the suspension. But that was not because it was incapable of summary disposal in principle; it was rather because the claimant had not had the opportunity to present full argument on the point, and that limitation was best resolved as part of the strike-out application in due course. It was in that context that the Court noted that the matter was not so clear cut at that stage, i.e. to conclude that there was not a serious issue to be tried [31]. Boxxe is therefore not authority for the proposition that the true construction of Regulation 92(2) cannot be determined summarily. It is however a useful decision which summarises some of the arguments which might be developed in this claim on a future occasion.

163.

Sixthly, as to Regulation 93, this provides a special time limit for seeking a declaration of ineffectiveness. That Regulation provides that such proceedings must be brought within 6 months “beginning with the day after the date on which the contract was entered into”, but in some circumstances by an earlier time, namely within 30 days “beginning with the relevant date”. That relevant date is then identified as being either (where a relevant contact award notice has been published) “the day after the date on which the notice was published” or (where the economic operator has been given the specified information by the authority) “the day after the date on which [information was provided]”. It can be seen therefore that the wording of Regulation 93 is quite different. In each of the scenarios referred to, the Regulation is express that time begins with the day after the entry into of the contract, or after the publication, or after the provision of information (as the case may be). I can see no basis for assuming that the draftsperson intended the start date under Regulation 92 and 93 to be the same, when quite different words are used in each regulation. Regulation 93 is far from being an aspect of the general time limit for procurement claims (such as to support an argument that Regulations 92 and 93 are dealing with the same sort of claim and should be interpreted to have the same effect), but on the contrary is a “special time limit”, which applies to a particular type of procurement claim which seeks a remedy affecting third party interests.

164.

Seventhly, as to Uniplex, the ECJ was dealing with the issue whether a regulation that provided that time ran from the date of grounds arising, rather than knowledge, was consistent with the Directive. In the passages relied upon by the Claimant, the ECJ did refer to time running “from” the date of knowledge, but the ECJ was not addressing the Day 1 point at all. I see nothing in its judgment which is inconsistent with Day 1 being included; the key point being made by the ECJ was that time should run from knowledge; and in my judgment counting the date of knowledge, far from being inconsistent with that requirement, would advance that objective. Further, the word “from” is, by itself, ambiguous as to when time starts; but Regulation 92(2) is not. It is express in stating that the start date begins with the date of knowledge.