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

REGULATION 92(2) - THE JULY CASE

The Defendants say that the Claimant had the relevant knowledge by 20 July 2023, relying on a letter which was written by the Claimant’s solicitors dated 26 July 2023, which included the following statement:

The following aspects of this letter are noteworthy.

First, the letter informed the First Defendant’s solicitors that conduct of the matter had now been passed to Mr Lobo in the litigation team. This was no doubt intended to communicate an escalation of matters from the previous communications between the firms. That prior correspondence is not in evidence. It may however be fairly said that litigation of some sort was in contemplation by this point.

Secondly, as can be seen, the letter made express reference to Assist, the June date and the backdating to February, and there being no “due or proper” process as required or at all. The source of this information is not explained or identified, nor does it otherwise appear from the evidence before the Court at this stage. The Claimant does say that the source of its knowledge as at 20/26 July was not the 3 July publication, which indeed did not refer to Assist at all and which the Claimant says it had not read at this stage. And it is the Claimant’s case that the Defendants had not told them about the contract award to Assist; all it knew was that in February and March 2023 the Claimant’s services had been dispensed with (in the circumstances pleaded in the Particulars of Claim). So then, what was the source for the information set out in the letter of 26 July?

It was in answer to that enquiry that Mr Knox told the Court that there had been a whistle-blower (and that the Defendants were aware of this). I take the point that the Defendants’ Application is brought on the basis of the letter’s contents on its face, and they are no doubt indifferent as to the source of the information, but given the way the arguments have developed, it is perhaps unfortunate, bearing in mind the importance of what the Claimant knew, and when (and the question of how it knew might well cast light on both those questions), that none of this is in evidence, if the Defendants are relying on knowledge in the period up to and by July 2023. Neither is the prior correspondence referred to the letter of 26 July before the Court. This may well be because, as I explain below, the Defendants’ Application was issued on the basis that the relevant date of knowledge was September, not July 2023, and that had provided the focus for the evidence.

The Claimant indeed objects to the Defendants running the July case on this summary application. Mr Knox says that the Claimant has been taken by surprise and has not had the opportunity or a proper opportunity of addressing a July case through the necessary investigations and evidence.

If the July case was open to the Defendants, then Mr Knox submitted that the letter does not prove that the Claimant had the necessary knowledge. In that connection, he sought to rely on the discussion at Sita at [32]-[33], where Elias LJ acknowledged that a letter written by a claimant might not be a genuine reflection of its true belief, might exaggerate a threatened claim, or be written on a mistaken basis. There is no evidence of this before the Court, but as I understood the submission, that was rather Mr Knox’s point: he was seeking to illustrate the importance of having evidence of the context and circumstances of that letter, which was not available. He said that the Claimant would have served further evidence had they appreciated the July case was in issue.

As to the content of the letter, and without the benefit of evidence, Mr Knox submits that the letter did not refer to the PCR at all and as at July 2023 no letter or other communication had been sent to the Claimant from the Defendants saying that there had been a direct award. He points out that, in correspondence following the letter of 26 July, the Claimant was asking certain questions, which were only answered by the 18 September letter. He submits that the fact that questions (particularly question 4) were being asked shows that the Claimant did not know the necessary information until September, and not in July. He submits that, although the Claimant had some information, it would not have been possible to issue proceedings in July with the necessary statement of truth.

I remind myself that this is a summary application where form and proper process are important, and I think it is a fair observation from Mr Knox that the Defendants moved the goalposts through the course of the application. The Claimant’s excuse for not dealing with the new pitch layout is however somewhat thin, although it is a fair observation that the July case was only initially advanced as part of the rather distracting arguments concerning Regulation 92(3). I am sceptical as to whether the Claimant was really taken by surprise, as it claims.

That said, standing back, I am not confident that I have the full story as to the Claimant’s knowledge in July, in order to be able to evaluate its submission that it did not in fact have sufficient knowledge to bring the statutory claim under Regulation 37, despite the terms of its letter. A letter, particularly one sent as part of a continuum of correspondence, needs to be seen in its context. There is plainly further material leading up to the July letter which may be relevant, which may well show, for example, that a statutory claim was in contemplation and/or that despite the form of subsequent correspondence being expressed in terms of questions, the Claimant already had sufficient knowledge to bring the procurement claim (remembering that this is not the same as having assembled the evidence necessary to prove the case: Sita [22]). Whilst it may be true that the Claimant was not informed by the Defendants about the Assist Contract until September, the Claimant plainly had learned of this from external, unidentified sources.

I have reached this conclusion with some reluctance because on the face of the letter of 26 July, the Defendants have a compelling case of limitation, despite the absence of an express reference therein to the PCR, or to the Framework Agreement and its alleged application, and despite the fact that the Claimant seemingly felt it necessary to seek further information in subsequent correspondence. But the question whether a claimant had sufficient actual or constructive knowledge (of the facts apparently clearly indicating an infringement) is an intensely factual question, to be considered in context, and the Claimant has done just enough to persuade me that further enquiry is required.

Accordingly, despite my strong suspicion at this stage that the Claimant had the necessary knowledge, for the purposes of Regulation 92(2) by 20 July 2023, possibly well before, I am not prepared to determine that issue summarily.

There is a further reason for this conclusion. Had I found in the Defendants’ favour on the July case, then I would have wanted at least to consider an application for an extension of time, albeit one seeking an extension of two months. No doubt Mr Barrett would say that it is the Claimant’s fault that it has made no application on that basis, and it might well be fairly said that such an application would have very formidable, or even insuperable, difficulties in its way. But the fact remains that there has been no evidence or submissions made on that basis, and given this is a summary application, in my judgment it would not be fair to shut the Claimant out.

It follows that the Defendants’ Application must fail, unless I am satisfied that the time started to run solely as a result of the 18 September letter.