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

OUTLINE OF THE PARTIES’ POSITIONS

The Defendants rely on Regulation 92(2) of the PCR which reads as follows:

They submit, first, that the Claimant had actual or constructive knowledge within the meaning of Regulation 92(2) to bring the procurement claim by 20 July 2023, and therefore that the 30 day period which is triggered by such knowledge had expired long before the Claim Form was issued on 18 October 2023. They rely in that regard on a letter from the Claimant’s solicitors dated 26 July 2023. I will refer to this as the “July case”.

Alternatively, the Defendants submit that the Claimant had actual or constructive knowledge on 18 September 2023 as a result of the information in a letter emailed to its solicitor, Mr Lobo, by the First Defendant’s solicitors on 18 September 2023 (“the 18 September letter”). Therefore, time expired on 17 October 2023, and the Claim Form was issued one day late.

Critical to that alternative argument is the question whether the 30 days include the 18 September, as the Defendants submit, or whether, as the Claimant contends, time runs from the day after the letter, namely 19 September. If the Claimant is right on that point, then the Claim Form was in time, even if (which the Claimant does not accept) it had sufficient knowledge on 18 September 2023. I will call this the “Day 1 point”, i.e. what day counts as the first of the 30 days.

The Claimant’s primary position, or at least what became its primary position by the time of the hearing, is that the 30 day period never applied or started running at all (and still has not started running), but in any event has not expired, as a result of Regulation 92(3)(c), to which Regulation 92(2) is expressly subject. I set out the terms of Regulation 92(3)(c) at paragraph 47 below.

If that is wrong, and Regulation 92(2) and the 30 day period does apply, it objects to the Defendants seeking to run the July case on this application, on grounds that no or insufficient notice was given of it. But in any event, it would deny that it had the necessary knowledge then.

As regards September 2023, the Claimant submits that there is a real prospect of it showing that it did not have either actual knowledge or constructive knowledge, within the meaning of Regulation 92(2), on 18 September 2023 itself, as opposed to a day or so later. That is largely a factual contention, at least as regards actual knowledge. If that is right, then whether the 30 days would have included or excluded the 18 September itself - the Day 1 point - is moot.

If the Claimant did have sufficient knowledge on 18 September, then on the Day 1 point, it submits that on its true construction, time did not start running under Regulation 92(2) until at the earliest 19 September, such that the Claim Form issued on 18 October was in time. This is on the basis that the 30 days excludes the day on which sufficient knowledge was acquired.