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

REGULATION 92(2) - Introduction

In Sita, the Court of Appeal was considering a limitation challenge under predecessor regulations (regulation 32(4)(b) of the Public Service Contracts Regulations 1993), which sought to implement Directive 89/665. Under that regulation, as properly construed in a manner consistent with EU law, time ran from the date on which the claimant knew or ought to have known of the infringement of the procurement rules.

The Court of Appeal approved of a distinction between knowing sufficiently that grounds for a claim had arisen and having the evidence available necessary to prove such a claim. The former is key: once a claimant has sufficient knowledge to put him in a position to take an informed view as to whether there has been an infringement, and concludes that there has, time starts to run [22].

The Court of Appeal also held that the degree of knowledge or constructive knowledge required to start time running was “knowledge of the facts which apparently clearly indicate, though they need not absolutely prove, an infringement” ([26], [31]).

The Sita test has recently been expressed in these terms by Eyre J as follows:

It was not disputed before me that this was the test to be applied as regards actual or constructive knowledge of there being grounds for starting proceedings under Regulation 92(2) of the PCR.

As was also recognised in Sita, and as was common ground, underpinning the relevant limitation rules in procurement, is the principle of rapidity (see paragraph 32 above). Claims must be brought promptly and time limits must be strictly applied.