HT-2024-000378 - [2025] EWHC 354 (TCC)

The “test is whether the Court is satisfied that the claim is not frivolous or vexatious” (Robert Heath Heating Ltd v Orbit Group Ltd[2024] EWHC 3039 (TCC) at paragraph 40). As Coulson J (as he then was) said in Sysmex (UK) Ltd v Imperial College Healthcare NHS Trust[2017] EWHC 1824(at paragraph 21), save in exceptional circumstances, it is not appropriate as a matter of principle for the Court to conduct a mini-trial or to endeavour to reach any conclusions as to the strength or weakness of one or both parties’ cases.

There is no dispute that in the DHL Proceedings, there is a serious issue to be tried.

There is, however, an issue with regard to the Second Unipart Proceedings. Ms Sloane KC, for the Defendant, argues that the First Unipart Proceedings makes numerous wide-ranging allegations in respect of the conduct of the procurement process and is targeted at its exclusion from the ISIT stage of the Procurement. These proceedings did not trigger the automatic suspension, and Unipart did not seek injunctive relief at that point. She contends that the only new allegation of breach in the Second Unipart Proceedings is an allegation against SCCL of breach of the principle of transparency and/or of regulation 86 PCR by failing to provide any information in the Contract Award Notice in relation to the reasons for the decision, the characteristics of GXO’s bid or its scores. SCCL’s defence is that it was entitled to rely upon the exemption provided at reg.86(6) PCR. Since the Second Unipart Proceedings were issued SCCL has in any event provided the missing information to Unipart (as a result, it says, of commercial information being revealed by another bidder in its pleading). Ms Sloane KC therefore contends that the Second Unipart Proceedings are entirely academic and a waste of court time, and they are being used solely as a mechanism to remedy Unipart’s failure to apply for injunctive relief. Ms Sloane KC says in terms that it is not now open to Unipart to challenge the Contract Award, as opposed to claiming damages.

In response, Ms Hannaford KC, for Unipart, argues that Unipart are entitled to challenge the Contract Award in circumstances where, pursuant to the PCR, Unipart has not been ‘definitively excluded’. Regulation 86(1) of the PCR provides that a contracting authority shall send to each candidate and tenderer a notice communicating its decision to award the contract. Paragraph 7(b) defines “tenderer” as that term is defined in regulation 2(1), which has not been definitively excluded. Unipart clearly satisfies the definition of “tenderer” for the purposes of Section 2(1), being an economic operator that has submitted a tender. For the purposes of paragraph (7)(b), an exclusion is definitive only if the tenderer has been notified of the exclusion and either (a) the exclusion has been held to be lawful in proceedings under Chapter 6; or (b) the time limit for starting such proceedings has expired even on the assumption that the Court would have granted the maximum extension permitted by regulation 92(4) and (5). Proceedings under Chapter 6 have started and the exclusion has not been held to be lawful. It follows that, as Ms Hannaford KC says, Unipart were entitled to be served with the Contract Award notice. Ms Hannaford KC then relies upon Randstad Italia SpA v Umana SPA(Case C-497/20), a Judgment of the Grand Chamber of the CJEU. Randstad had been excluded at a preliminary stage in the evaluation, which proceeded then in its absence. After the contract was awarded to another bidder, Randstad disputed both its exclusion from the tendering procedure and its action concerned not just its exclusion but the award of the contract. At paragraphs [72] and [74], the Judgment stated:

“In the case of tenderers which have been excluded from the tendering procedure, Article 2a of Directive 89/665 makes clear that these are no longer to be deemed to be concerned and the contract award decision must not therefore be communicated to them if their exclusion has become definitive. However, where those tenderers have not yet been definitively excluded, the contract award decision, accompanied by a summary of the relevant reasons and a statement of the standstill period for conclusion of the contract following that decision, must be communicated to them. It is apparent from reading paragraphs 1 and 2 of that article together that compliance with those minimum conditions is intended to enable such tenderers to seek an effective review of that decision.

74      The fact that the exclusion decision is not yet definitive thus determines, for those tenderers, their standing to challenge the contract award decision […].”

Ms Hannaford KC is therefore correct that, at least in principle, Unipart remains entitled to challenge the Contract Award.

However, the fact of this legal entitlement does not automatically translate into the conclusion that there is a serious issue to be tried as to whether the remedy of setting aside the award is one to which Unipart would be entitled at trial. Ms Sloane KC referred the Court to CSC Computer Sciences Limited v Business Services Organisation [2019] NIQB 18 in relation to the fact that, in this regard, Unipart did not seek an interim injunction suspending the procurement immediately following its exclusion. CSC concerns a claimant that was excluded from the second phase of a particular procurement exercise. A claim was issued within the limitation period required by the PCR, but the plaintiff waited 3 months from this point before seeking an injunction. The Court held that:

“the delay of the plaintiff severely impedes the court in the practical act of doing justice on this application.  In a procurement case such as this, delay will mean that substantial benefits are denied to the public for a period of time, 6 months at a minimum, which will have adverse public interest consequences, which I have discussed above.  The court is entitled to take this delay into account, and who is responsible for that delay in determining whether to grant an interim injunction.  In this case the court has concluded that the majority of the delay was occasioned by the plaintiff and that the consequences for this delay must be borne by the plaintiff.  In the court’s view the public interest is the decisive factor in considering “the balance of doing an injustice”.  There is considerable public interest in ensuring the procurement process is completed as soon as possible so that the citizens of Northern Ireland can enjoy the benefits that the EHCR will bring.  In this case the effect on the public interest has been magnified by the time the plaintiff has taken to bring this application to the court’s attention.”

Ms Hannaford KC realistically conceded that were Unipart to be the only party seeking to set the Contract Award aside (or where, for example, DHL fails to establish damages were not an adequate remedy, and so cannot seek injunctive relief), persuading the Court that, in due course, setting aside the Contract would be appropriate where it had not, many months earlier, sought to stop the procurement process, would be ‘more challenging’. It is at least possible in such circumstances that a Court could determine on an application such as this that the prospect of doing so was sufficiently remote that no serious issue arose. That said, it is generally more likely to be appropriate to consider the question of this delay in the balance of convenience rather than at the ‘serious issue to be tried’ stage. For present purposes, Unipart is not the only challenger to the Contract Award, and it plainly has standing to advance the complaints it does. The underlying allegations further to which Unipart seeks relief give rise to serious issues to be tried. On the facts of this case, it is appropriate to proceed to consider the adequacy of damages in respect of the Unipart claim, too.