QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
|- and -
|NHS WILTSHIRE PRIMARY CARE TRUST
and nine others
- and -
(1) NHS SHARED BUSINESS SERVICES LTD
(2) THE SECRETARY OF STATE FOR HEALTH
Charles Béar QC (instructed by DAC Beachcroft LLP) for the Defendants
Michael Bowsher QC and Valentina Sloane (instructed by Bird & Bird LLP) for the
First Interested Party
Kassie Smith (instructed by DWP/DH Legal Services) for the Second Interested Party
Hearing dates: 7 and 8 March 2012
Crown Copyright ©
Mr Justice Eady :
"The judge accepted the submission that a failure to comply with any of the regulations gives rise only to a private law claim (see  LGR 417 at -). Such a conclusion has potentially far-reaching implications. It means that a person who is not an economic operator entitled to a specific remedy under reg 47 can never bring judicial review proceedings in respect of that failure unless he can bring himself within the exceptional type of claimant in R (on the application of the Law Society) v Legal Services Commission. We consider that the judge's proposition goes too far. The failure to comply with the regulations is an unlawful act, whether or not there is no economic operator who wishes to bring proceedings under reg 47, and thus a paradigm situation in which a public body should be subject to review by the court. We incline to the view that an individual who has a sufficient interest in compliance with the public procurement regime in the sense that he is affected in some identifiable way, but is not himself an economic operator who could pursue remedies under reg 47, can bring judicial review proceedings to prevent non-compliance with the regulations or the obligations derived from the Treaty, especially before any infringement takes place (see generally Mass Energy v Birmingham City Council  Env LR 298 at 306, cf Kathro's case  4 PLR 83, where Richards J held that that the claimants were not affected in any way by the choice of tendering procedure). He may have such an interest if he can show that performance of the competitive tendering procedure in the directive or of the obligation under the Treaty might have led to a different outcome that would have had a direct impact on him. We can also envisage cases where the gravity of a departure from public law obligations may justify the grant of a public law remedy in any event. … "
"In a case where, as here, the Regulations are not observed from the outset, the authority will inevitably have committed substantive breaches some time prior to the actual award of the contract, and in this case Keymed was aware or at least apprehended that it had done so on 11 January 1996 or shortly thereafter. The overriding duty on a contracting authority is 'to comply with the provisions of these Regulations' generally, and in my judgment grounds will first arise for the bringing of proceedings once it could be shown that they were not complied with from the outset of the award procedure. If it were otherwise and a supplier could select the last breach available to him, apart from obvious problems of proving causation, it would mean that he could sit back and do nothing even in respect of breaches of which he was aware or which he apprehended. That would again be contrary to much of the purpose of reg 29. I think Mr Barling is right in his submission that in a case where the whole procedure is conducted in breach of the Regulations (as Keymed alleges in this case) the failure to comply with them first arises and is established by failure to give the requisite notices to the [Official Journal]. Thereafter the regulatory procedures cannot effectively be complied with."
"The preferred provider is NHS SBS as their bid gave the required degree of detail to provide assurance to the PCT on the services to be delivered and the standards to be achieved. The PCT will now enter contract discussions with NHS SBS and enter into a contract with NHS SBS once discussions have been concluded."
That is significant because the Board in July had delegated to the Chief Executive and Director of Finance the authority to select the preferred proposal for FHS.
"It has been agreed to go forward on FHS which is currently hosted by NHS Wiltshire. Contract discussions are being held on how to take this forward."
"26. From September the PCTs proceeded with due diligence to confirm that SBS would be able to provide FHS in accordance with the SW PCTs requirements and to establish the details and full implications of the new operating model that SBS would implement. Those discussions proceeded satisfactorily and so between 27 October and 2 November 2011 all of the SW PCTs felt able to sign the Instructions to Proceed documents. These set out the basis on which SBS would be able to take the necessary practical steps to implement the contract on the agreed date of 1 December 2011, i.e. to prepare for transfer of staff and delivery of services from the existing PCT premises under SBS management from that date.
27. This decision making process beginning in early 2011 and continuing until September 2011 may appear protracted. In my experience it is not unusual in PCTs, where decision making can be an iterative process of narrowing alternatives, testing options, and proceeding to greater level of detail. So for example the decision not to hold an open procurement can be located no later than March 2011. At that point the options were SBS or in house only. When the in house bid was tested and found wanting SBS became the only viable option. Once that was the case and given the financial situation I have referred to the reality is that PCTs would have had little option but to pursue the SBS contract. At that point the course was set. That decision was formally taken no later than September 2011 (Gloucestershire being an exception). The fact that the detail of the contract remained to be worked out can in no way detract from the finality of that decision. There was simply no other option. It might have been that if some radical change took place, then the decision making process could have been taken back to an earlier stage. I and I think the PCT boards would be very surprised if it was suggested that this possibility, which did not in fact happen, means that the PCTs had not decided on their course of action no later than September 2011."
"It is also necessary to draw attention to section 31(6) of the Supreme Court Act 1981. It provides:
'Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant – (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.'
… Pertinent to the present context is the fact that section 31(6) contains no date from which time runs and accordingly no specific time limit. It is, however, a useful reserve power in some cases, such as where an application made well within the three month period would cause immense practical difficulties … "