England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th May 2014

 


Mr Justice Akenhead:

1. This is a public procurement case in which issues have arisen as to whether the Brief Details of Claim on the Claim Form issued by Travis Perkins Trading Company Ltd ("TPT") are apt to cover that which emerged in the Particulars of Claim served some 3 months later and if not whether the eventual claim pleaded is therefore time barred.

The Background

2. The following background is based on the evidence filed for these preliminary issues and is not intended to bind the final trial judge. Caerphilly County Borough Council ("the Council") initiated a competitive tender process for building materials supply, in November 2012. The Council indicated that it would use during the tender process an electronic system known as "Proactis Plaza e-Tendering". The anticipated Contract would be for ten years and was worth up to about £70m. The official Contract Notice in the Official Journal of the European Union had indicated that it reserved the right to request from the winning tenderer, as part of the contract conditions, a bond, parent company guarantee or other guarantees of financial liability at the time of the contract and during its term. The Invitation to tender ("ITT"), issued in February 2013, provided for this with Paragraphs 5.1.32 and 5.1.33 stating:

"5.1.32 Tenderers will be required to provide a Parent Company Guarantee ("PCG") from their ultimate parent or holding company (i.e. the entity at the top of their corporate group structure) in the form contained in Appendix 7 of these Tender Documents, except where the Tenderer has no parent company or is unable to provide a PCG in which case a Performance Bond will be required...

Tenderers capable of providing a PCG must submit with their tender a letter from the Parent Company on appropriately headed paper confirming that, if the Tenderer is successful, a PCG in the form contained in this ITT will be provided.

5.1.33 Where a Tenderer is unable to provide a PCG the Tender shall be accompanied by evidence in writing from a recognized insurance bank or bonding company ("Bondsman") (not agents) that, if the Tenderer is successful, a Performance Bond ["PB"] substantially in the form contained in Appendix 8 (with only such reasonable amendments as may be required by the Bondsman) will be made available within 28 days from the issue of the Notification of the Award. Failure to submit such evidence shall cause the Tender to be rejected…"

3. It seems that there were 6 tenderers, including TPT, Robert Price (Builders Merchants) Ltd, Social LandLord Supplies ("SLS"), Jasonic Ltd ("Jasonic") and "CSP". Tenders being due in by 4 April 2013, TPT submitted its tender on 3 April 2013, indicating that it would submit a PCG rather than a PB, stating:

"We will be prepared to consider entering in to a Parent Company guarantee in the event we are successful with our tender, subject to Travis Perkins plc [the parent company] Board approval."

4. It seems that, in respect of a number of the tenderers including TPT, the Council had some concerns as to whether they had done what Paragraph 5.1.32 and 5.1.33 of the ITT called for in relation to PCGs and PBs and it sought clarifications from such tenderers, including to TPT on 10 April 2013 saying that TPT had not submitted a proper form of PCG or PB. The Council warned TPT that failure to submit such a form by 9.00am the following day would result in the tender being automatically disqualified and that the bid would not be evaluated. There followed two telephone conversations between TPT and Council employees with the Council saying that it would not extend this deadline for submissions and that TPT was to communicate through the e-Portal to deal with clarifications. In response TPT sent two email messages, initially at 8.55am on 11 April 2013:

"Please find attached the PCG signed as requested from Travis Perkins Plc"

This email attached a blank copy of the pro forma guarantee (set out in Appendix 7 of the ITT) which named neither TPT's parent company nor TPT; the form did contain two signatures of unnamed individuals, who later turned out to be directors of the parent company. Shortly after the 9.00am deadline, TPT sent another email message at 9.12am stating:

"Please find attached completed PCG".

This enclosed a further executed copy of the PCG form on which appeared the TPT parent company name as guarantor and TPT as contractor.

5. The Council's Project Board met on 15 April to consider the remaining four tenders, TPT's having been excluded. The following day, TPT was informed by the Council that, because it had not provided the requisite documentation by the 9.00am deadline on 10 April 2013, its tender had not been considered. It is said that the following day that someone from TPT called the Council to admit that TPT had made a "schoolboy error".
6. On 18 April 2013, TPT wrote to the Council complaining that the decision to exclude its bid was "disproportionate, a breach of the obligation of transparency and potentially a breach of the requirement of equal treatment". This was on the basis that there was said to be unequal treatment of tenderers offering PCGs rather than PBs, that it was not given enough time to respond to the query on 10 April 2013 and that it was still prepared to provide a PCG; TPT asked for its tender to be considered by the Council. At a Board Meeting on 23 April 2013, the Council decided to maintain its previous stance and it wrote to TPT on 25 April 2013 explaining and justifying its decision. TPT's solicitors responded on 3 May 2013 to the effect that there were breaches of the regulations and other requirements in the request for a full parent company guarantee from TPT, the shortness of the timeframe to respond, the failure not to seek clarification on what was submitted and the exclusion of TPT's tender. This was challenged in detail by the Council's solicitors by letter of 9 May 2013.
7. Matters moved on and on 16 May 2013 TPT's solicitors requested from the Council under the Freedom of Information Act 2000 various items of information and documents about what had happened in relation to the other tenderers' PCG or PB submissions. This was responded to by the Council by letters dated 14 and 28 June 2013, the second of which enclosed actual documents sent to and received from other tenderers. This arguably suggested that there had been a fair amount of "coming and going" between at least three other tenderers and the Council about PCGs or PBs.
8. On 11 July 2013, TPT's solicitors wrote to the Council's solicitors raising the arguably different complaint that three other tenderers should have been excluded or, given that they were allowed to remain in the tendering process albeit with arguable deficiencies in their proposals for PCGs or PBs, TPT should have been allowed to remain in. They sought information and clarifications as to whether these other tenderers had been excluded and on various other matters. There being no effective response despite reminders, on 26 July 2013 TPT issued its Claim Form in these proceedings.
9. The "Brief Details of Claim" on the Claim Form are as follows:

"The Claimant's claim arises out of a procurement process by the Defendant for the award of a contract to become building materials supply partner pursuant to a Contract Notice published in the Official Journal of the EU on 22 November 2012 (ref. 2012/S 225-370683). The procurement was subject to the Public Contracts Regulations 2006 (as amended) (the "Regulations"). The Defendant notified the Claimant on 16th April 2013 that the Claimant was being excluded from the tender process because the information provided with the tender was incomplete.

The Defendant entered into the contract on or around 17 June 2013. On 27 June 2013, the Defendant, in response to a request made by the Claimant under the Freedom of Information Act, provided information which indicated that the Defendant received tenders from a number of other bidders which were incomplete. Despite repeated requests from the Claimant, the Defendant has failed to confirm whether these bidders have also been excluded from the procurement process.

The Claimant seeks a declaration that the Defendant was and is in breach of the Regulations, general EU and/or Treaty obligations and principles and/or implied tendering contract between the Claimant and the Defendant; and/or damages for breaches of the Regulations, general EU and/or Treaty obligations and principles and/or breach of an implied tender contract between the Claimant and the Defendant together with interest thereon and other appropriate relief."

10. On the same day, TPT's solicitors wrote to the TCC, copied to the Council's solicitors, requesting a stay to enable the Council to respond to the requests for information and to enable the parties to resolve matters. The accompanying stay application in the box on the form containing information on which they relied, wrote:

"… the Claimant requested further information from the [Council]…On 27 June 2013, the [Council] provided information to [TPT]…which indicated that the [Council] received tenders from a number of other bidders which were incomplete and, so far as [TPT] has been able to determine, did not exclude those bidders. From this information it appears that the [Council] has not treated bidders equally, in breach of the regulations, general EU and/or Treaty obligations and principles and/or an implied tendering contract between [TPT] and the [Council]."

This application also sought an extension of time for the service of the Particulars of Claim.

11. This was further expanded upon by TPT's solicitors in another letter dated 26 July 2013 to the Council's solicitors which explained amongst other things that:

"…It appears that 3 of the 4 performance bonds were incomplete or non-compliant with the tender specifications…"

12. The stay was consented to promptly by the Council and the consent order dated 2 August 2013 stayed the proceedings until 30 September and extended the time for service of the Particulars of Claim until 14 October 2013. This was revised by agreement and a further consent order dated 2 October extended the stay until 21 October 2013 and the service of the Particulars of Claim until 4 November 2013.
13. The parties did not resolve their disagreement and so the Particulars of Claim were served in early November 2013. This pleading in summary identifies why TPT asserted that the offerings from SLS, CSP and Jasonic in relation to PCGs and PBs were comparably as adequate or inadequate as that of TPT and therefore that TPT should have been left in the tendering process rather than excluded from it. Reliance was placed on Regulations 4 and 47A of the Public Contracts Regulations 2006 as amended as well as general EU and/or Treat obligations to the effect that the Council did not treat the bidders fairly and equally, treating TPT unfairly compared with other bidders and in a discriminatory manner and failing to act transparently and proportionately. Particulars of breach were given in Paragraph 30 which primarily related to the comparative way as between TPT on the one hand and the other bidders who were allowed to stay in the process that they were respectively treated. There are arguably some complaints which go to other matters such as whether TPT should have been excluded regardless of the other bidders.

The Preliminary Issues

14. Preliminary Issues were ordered as follows:

(a) Whether the Claimant had sufficient knowledge, as of 28 June 2013 at the latest, that grounds for starting proceedings in respect of a claim for alleged breach of the Defendant's duty to treat economic operators equally and in a non-discriminatory way had arisen, for the purposes of regulation 47D(2) of the Public Contracts Regulations 2006 (as amended);

(b) Whether the Claimant failed to start proceedings in respect of such a claim by virtue of its Claim Form issued on 26 July 2013;

(c) Whether the Claimant raised such a claim for the first time by virtue of its Particulars of Claim served on 4 November 2013;

(d) Whether, as a consequence, the Claimant's claim as pleaded in paragraphs 29 – 31 of the Particulars of Claim is statute barred by virtue of regulation 47D(2) of the Public Contracts Regulations 2006.

15. It is acknowledged, rightly, that I can not resolve factual issues. Thus, I can not answer an issue raised orally by Mr Williams QC for the Council that TPT must have known enough as at April or May 2013 to commence proceedings; the preliminary issues do not require me to analyse and find that it must have been earlier than 28 June 2013. This is in the context of a 30 day limitation period for bringing proceedings in procurement cases.

The Regulations

16. The relevant parts are:

"4(3) A contracting authority shall (in accordance with Article 2 of the Public Sector Directive) –

(a) treat economic operators equally and in a non-discriminatory way;

(b) act in a transparent way…

47A—(1) This regulation applies to the obligation on—

(a) a contracting authority to comply with—

(i) the provisions of these Regulations, other than regulations 14(2) 30(9), 32(14), 40 and 41(1); and

(ii) any enforceable Community obligation in respect of a contract or design contest (other than one excluded from the application of these Regulations by regulation 6, 8 or 33); and

(b) a concessionaire to comply with the provisions of regulation 37(3).

(2) That obligation is a duty owed to an economic operator…"

Discussion

17. I will address the law and the arguments as raised by the parties. The real underlying issue revolves around whether the "Brief Details of Claim" on the Claim Form are apt or sufficient to cover what was pleaded in the Particulars of Claim. If they are not, the causes of action pleaded in the Particulars of Claim are time barred. This arises from the Regulations themselves and, amongst others, the Court of Appeal decision in Sita UK Ltd v Greater Manchester Waste Disposal Authority [2011] EWCA Civ 156 which decided, broadly, that the limitation period (then 3 months but now 30 days) is by Regulation 47D(2) to begin "with the date when the economic operator first knew or ought to have known that grounds for starting the proceedings had arisen" with the standard being "a knowledge of the facts which apparently clearly indicate, though they need not absolutely prove, an infringement" (per Elias LJ at Paragraphs 26 and 31). Thus, there can be little doubt and indeed there was no material issue in this case that once TPT had the information about how the other tenderers' offerings in relation to PCGs and PBs had been addressed by the Council (by way of the Council's letter dated 28 June 2013) time started running. Therefore, in the context of the main thrust of the eventually pleaded complaints in the Particulars of Claim, the Claim at least was issued within the 30 day period. This still leaves the Council to seek to plead (by way of amendment to its Defence, as it has not yet done so) that any other pleaded complaints arising otherwise than out of the contents of the 28 June 2013 letter are time barred.
18. It is therefore necessary to consider the rules and practice relating to the contents of the Brief Details of Claim. It is not inapposite to have regard to the expression on the standard Claim Form which does only call for "Brief Details" of the claim. It can not be intended that more than that is required, for instance with reference to all the contract terms or each and every particular of negligence to be relied upon. CPR Part 16.2 states:

"(1) The claim form must –

(a) contain a concise statement of the nature of the claim;

(b) specify the remedy which the claimant seeks

(c) where the claimant is making a claim for money, contain a statement of value in accordance with rule 16.3; and

(d) contain any such matters as may be set out in a practice direction."

What is noteworthy is that this rule is not unduly prescriptive, in particular as to what words or sentences to use. One must be able however to discern from whatever wording is used that these basic elements are contained in the Brief Details of Claim part of the prescribed form of Claim.

19. Assistance is provided in a number of cases. In Evans v Cig Mon Cymru Ltd [2008] EWCA Civ 390, a personal injuries claim, the Brief Details of Claim referred to "loss and damage arising out of abuse at work" but the Claim was served with the Particulars of Claim and a medical report. The defendant applied to strike out the Particulars of Claim which were based on the alleged injury on the basis that they did not relate to the subject matter of the Claim. The claimant applied for leave to amend the Claim Form to bring it in line with the Particulars of Claim. The following parts of the judgments are material:

"26. In my view the just approach is to look at the totality of the documents served. These documents together set out the claimant's pleaded case. There was an obvious mismatch, but in asking whether the proposed amendment was, in truth, an amendment to raise a new cause of action or merely to clarify an internal inconsistency in the pleaded case is, it is proper to look at the pleaded case as a whole. When one does so, it is clear, in my judgment, that what was sought to be done by the subsequent application to amend was not, in substance, to raise any new claim at all, but merely to correct an obvious formal error. I reject the argument that an amendment to correct that clerical error was prohibited by Rule 17.4 and, in my judgment, there was nothing to prevent the court from exercising its general discretion to do justice in response to the application to strike out the particulars of claim. [per Toulson LJ)

28. I start by applying the usual rules of interpretation. The claim form is a unilateral document which sets out the cause of action which the claimant claims to have and wants to rely upon. It must be interpreted objectively -- that is, by reference to the words according to their objective meaning. On the other hand, account must be taken of the factual matrix. That matrix would include communication between the parties made before or at the same time as the service of the claim form. As Lord Steyn said in R (Daly) v Secretary of State for the Home Department [2001] 2AC 532 at [28]: "in the law, context is everything".

29. Toulson LJ has gone through the sequence of the communications between the parties, but I attach particular importance to the following documents. On 19 March 2003 there was the letter required by the protocol, setting out the claim of the claimant and referring to the accident to the claimant's hand. Then, in March 2006, the claim form and particulars of claim were served together and then, in May 2006, the solicitors for the claimant wrote to the defendant, and they referred to a further telephone communication which chronologically occurred either at the time of the letter in 2003 or shortly thereafter, which was to the effect that the claimant had dropped the claim for abuse at work and was focusing on the claim for personal injury and that alone. There was, therefore, a telephone communication at an earlier point in time.

30. As Toulson LJ has explained, there is no suggestion that the claimant deliberately referred to abuse at work in the claim form, intending to raise a claim for that. Nor is there any suggestion that the defendant understood the claimant to be doing so. So there is an obvious conflict between the claim form and the particulars of claim. They cannot both be right. In my judgment, on the ordinary rules of interpretation, the court would say that the words "abuse at work" in a claim form are an obvious clerical error which can be corrected, as a matter of interpretative, to accord with their objective meaning in the context or in the light of the factual matrix -- namely, accident at work. The interpreted exercise which is needed is as simple as substituting for the word "abuse" the word "accident". {per Arden LJ]

I agree with both judgments. The decisions below represent a stark surrender of substance to form. We should not allow such a thing unless irresistibly driven to do so. For the reasons given by my Lord and my Lady, we are not so driven." [per Laws LJ]

20. In Nomura International plc v Granada Group Ltd [2007] EWHC 642 (Comm), Cooke J had to deal with a claim which was started by a claimant (faced with proceedings against it by a bank) which then issued a Claim against the defendant against whom it thought that it might have some claim over, its claim saying that it sought damages in contract and tort for loss suffered as a result of its liability to the bank arising from information supplied by the defendant. Relevant extracts from the judgment are as follows:

"27. In Johnson v Gore Wood & Co [2002] 2 AC 1 at page 22, Lord Bingham referred to the "inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people". At page 31 he referred to the need to make a "broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court…". Whilst these comments were in the context of arguments about issue estoppel and the principle enunciated in Henderson v Henderson, the dicta of Lord Bingham carry weight regardless. Regard must be paid to the overriding objective of the CPR.

28. May LJ (obiter) in Steamship Mutual UnderWriting Association Limited v Trollope & Colls Limited (1986) 6 ConLR 11, at page 25, disapproved the course of action which had been adopted by the plaintiff vis à vis the fifth defendants (Jampel) who were structural engineers. The Writ had been issued against four other defendants but also against Jampel though no action was intended to be taken, at any rate for the time being and perhaps never on that particular Writ. The proceedings had been issued against Jampel with no known cause of action against it, in case the other defendants should raise defences which suggested that there was a cause of action against Jampel. At page 27 (obiter) he stated this:-

"In my opinion, to issue a Writ against a party even in connection with a building dispute where cross-claims may subsequently be made, when it is not intended to serve a statement of claim, and where one has no reasonable evidence or grounds on which to serve a statement of claim against that particular party, is an abuse of the process of the court."

29. He went on at page 27 to invite consideration of the position if, in the particular case, Jampel had called for a statement of claim when the Writ was first issued against it. It was entitled to do that and, to that request, the plaintiffs would have had to respond by either declining to serve a statement of claim and having the proceedings struck out for failure to do so or, alternatively, serving a statement of claim which they knew had no foundation. That very dilemma demonstrated that an improper use of the process of the court had taken place.

30. At the following page, page 28, May LJ expressed the matter thus:-

"If there is no arguable case at the time the Writ is issued, and one cannot reasonably be expected, then it is an improper use of the procedure just to issue a Writ, with no present intention whatsoever of following it up, merely ex abundanti cautelae."

37. In my judgment, when regard is had to these authorities the key question must always be whether or not, at the time of issuing a Writ, the claimant was in a position properly to identify the essence of the tort or breach of contract complained of and if given appropriate time to marshall what it knew, to formulate Particulars of Claim. If the claimant was not in a position to do so, then the claimant could have no present intention of prosecuting proceedings, since it had no known basis for doing so. Whilst therefore the absence of present intention to prosecute proceedings is not enough to constitute an abuse of process, without the additional absence of known valid grounds for a claim, the latter carries with it, as a matter of necessity, the former. If a claimant cannot do that which is necessary to prosecute the claim by setting out the basis of it, even in a rudimentary way, a claimant has no business to issue a Claim Form at all "in the hope that something may turn up". The effect of issuing a Writ or Claim Form in such circumstances is, so the plaintiff/claimant hopes, to stop the limitation period running and thus deprive the defendant of a potential limitation defence. The plaintiff/claimant thus, unilaterally, by its own action, seeks to achieve for itself an extension of the time allowed by statute for the commencement of an action, even though it is in no position properly to formulate a claim against the relevant defendant. That must, in my judgment, be an abuse of process and one for which there can be no remedy save that of striking out the proceedings so as to deprive the claimant of its putative advantage. The illegitimate benefit hopefully achieved can only be nullified by this means. Whatever powers may be available to the court for other abuses, if this is an abuse, there is only one suitable sanction.

38. The concept, as exemplified by this line of authority, is further reinforced by the terms of CPR 16.2(1) which provides that "the Claim Form must (a) contain a concise statement of the nature of the claim". CPR 22.1(4) provides that the Claim Form must be verified by a statement of truth being "a statement that...the party putting forward the document…believes the facts stated in the document are true".

39. Because of the similarity of the terms of the rule and because the policy underlying it must be the same as for the equivalent rule in the CPR, there is room for reference to authority relating to RSC Order 6 Rule 2. This rule required a Writ to be endorsed either with a statement of claim, or with "a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby". Court of Appeal authority (Lord Denning MR in Sterman v EW & WJ Moore [1970] 1 QB 596) held that the word "or" in that Rule was conjunctive so that it was necessary to state both the nature of the claim and the relief or remedy required. The relevant commentary in the RSC which was the result of an earlier Court of Appeal decision in Marshall v London Passenger Transport Board [1936] 3 AER 83, provided that "a concise statement of the nature of the claim" meant that, where the claim arose out of a contract, the endorsement should give details of the relevant contract and where the claim arose out of a tort it should give the date and place of the occurrence and the nature of the tort alleged. It is necessary to at least give some idea or indication of the duty which it is alleged the defendant has failed to perform.

40. Although defectively endorsed Writs could be cured by subsequent statements of claim in the ordinary way, such cure depended upon the plaintiff having a known genuine cause of action at the time of the issue of the Writ and the irregularity merely being the failure properly to set it out. As appears from the decisions discussed earlier, that principle is of no application where the plaintiff had no known basis for making the claim at the time when the Writ was issued.

41. In my judgment therefore if Nomura, at the time of issuing its Claim Form, was not in a position to do the minimum necessary to set out the nature of the claim it was making, it would be seeking an illegitimate benefit, namely the prevention of further time running under the Limitation Acts for a claim which it could not properly identify or plead. That would be an abuse of the process of the court. Insofar as it sought to make any claim in contract, it would be necessary for it to be able to identify the particular contract and the alleged breach. In the case of any breach of tortious duty, it would be necessary for it to be in a position to identify the essential acts or omissions which constituted the breach of duty, negligence or negligent misstatement. For the purposes of negligent misstatement, Nomura would have to be able to identify what advice or information was inaccurate and what was given negligently, at least in essence. If Nomura was not in a position to do this, it was not in a position properly to issue a claim, since it could not have proceeded properly to plead Particulars of Claim without the off chance occurring that something would turn up. In such circumstances it could have no present intention to pursue a claim since it had no sufficient idea of the claim it wished to pursue."

21. The case of Marshall v London Passenger Transport Board [1936] 3 All ER 83 referred to by Cooke J in Nomura was a personal injury case involving a collision between the plaintiff and a tram. The particulars of claim pleaded negligent driving of the tram but a proposed amendment sought to add a complaint about poor repair of the tram track and the issue was concerned with a limitation issue relating to the amendment. The general indorsement on the writ related only to "negligent driving". The amendment was disallowed because it was a new case based on statutory duty (see Lord Wright MR at pages 87 and 88). Romer LJ said at page 90:

"…it is apparent, to my mind, although it is not requisite to state the precise nature of the claim made by the plaintiff, that the plaintiff must by the indorsement of his writ…give to the defendants some general idea of the nature of his claim. It is not sufficient for the plaintiff to indorse his writ with a claim for damages…Nor, in my opinion, is it sufficient for a plaintiff to indorse his writ with a claim for damages for breach of contract or damages for negligence without giving the defendant some indication of the contract which he, the plaintiff, alleges has been broken or some idea of the duty which he says the defendant has failed to perform. In the present case…the writ merely claims damages for negligence. That, in my opinion, is insufficient, but the difficulty occasioned by that is at once remedied very shortly afterwards, by the statement of claim being delivered by the plaintiff, in which he made clear that the negligence he was suing on was negligence…in not driving the tramcar with reasonable care…"

22. One can draw these threads together in relation to the requirements for the content of CPR Part 16.2:

(a) Only "brief" details are required to describe "the nature of the claim", although the remedy sought needs to be spelt out; a statement of value (not more than or more than £X) needs to be provided.

(b) Whilst it is open to a claimant to be specific and restrictive in what it, he or she seeks to claim by way of the "Brief Details of Claim", it is not necessary.

(c) The Court should have regard to the wording overall to determine what is covered by the wording of the Brief Details to see whether and to what extent the rule has been fulfilled. The Court should not be prescriptive about what is required in terms of the words used by the claimant; all that is prescriptive is in the wording of the rule.

(d) In construing or understanding what was intended by the wording used, the Court can and where necessary should have regard to the context or "factual matrix" (as per Arden LJ in Evans) in which the Claim has been prepared. It is legitimate to have regard to the Particulars of Claim, particularly if served promptly at or about the time of the issue and/or service of the Claim. It is legitimate to have regard to correspondence and applications sent or served at or about the same time as the Claim. Indeed, it may be legitimate to look further back in time for exchanged communications between the parties, albeit that caution may need to be exercised to limit this exercise only to such communications which clearly demonstrate what was intended to be the subject matter of the proceedings which followed.

23. Whilst the Nomura case is generally helpful on this topic, it is in the result not directly relevant because here there can be and is rightly no suggestion that TPT did not know whether it had an arguable cause of action against the Council, unlike in that case. The real issue is whether the wording of the Claim is wide enough to cover the complaints about the allegedly unfair treatment of other bidders compared with the treatment of TPT.
24. It was argued by Mr Williams QC (albeit that he accepted that it was not his best point) that CPR Part 16.2 is prescriptive in requiring in effect separate sentences or phrases each for the "concise statement of the nature of the claim" and "the remedy" sought by the claimant, within the meaning of this CPR rule. In my judgment, this is a bad point. Whilst these two requirements are clearly called for by the rule, it is not prescriptive how verbally this is to be achieved. It needs to be clear from reading the words used what the nature of the claim and the relief are. Here, although there is no separate sentence setting out the nature of the claim, the relief sought is for a declaration that the Council "was and is in breach of the Regulations", general EU and/or Treaty obligations and principles and/or an implied tendering contract between the Claimant and the Defendant" and for damages for such breaches. That could not leave anyone let alone the Council in any doubt that the nature of the claim was for breach of the Regulations and other specified requirements, because a declaration to that effect was expressly sought. It is also clear in the preceding paragraph in the "Brief Details of Claim" that the claim related to the "information provided" in the Council's response to TPT's Freedom of Information request (the letter dated 28 June having been sent electronically late on 27 June albeit dated 28 June 2013) and the failure of the Council to exclude other tenderers.
25. If one couples that with the letters dated 11 July and 26 July 2013 from TPT's solicitors to the Council as well as the application for the stay issued and served on that day, there really can be no doubt that properly interpreted in that context the Details of Claim were intended to cover TPT's complaint that it had not been treated lawfully in that it was dealt with differently and unequally from other tenderers in relation to their respective treatment for PCGs and PBs.
26. I am therefore satisfied that the Details of Claim did cover adequately the complaints later set out in the Particulars of Claim.
27. There is another aspect of the case which further reinforces TPT's position. The fact that within a few days the parties had, sensibly, agreed the stay and extension of time for the service of the Particulars of Claim meant that the proceedings were suspended. In the light of that agreement, the Court can have regard to the Particulars of Claim as an aid to interpretation because other cases have established that one can do so if the Particulars of Claim are served with or shortly after the service of the proceedings and because the parties agreed unconditionally to an extension of time for service. There is nothing to suggest that the basic complaints of breach contained in the Particulars of Claim were peculiarly informed by the process which took place between the parties during the stay. Of course, the Particulars of Claim are clear.
28. That essentially disposes of the preliminary issues.

Decision

29. The answers to the preliminary issues ordered are:

Issue (a): The Claimant had such knowledge as at 28 June 2013. I leave over the issue (if there is truly any relevant issue) as to whether such knowledge can be considered to have been or should be treated as having been received the day before.

Issue (b): No.

Issue (c): No.

Issue (d): No.

30. It is rightly accepted that, as TPT has "won" on these preliminary issues, the Council should bear its own and pay TPT's costs of and occasioned by the preliminary issues, this should be on the standard basis. TPT seeks summary assessment of its costs in the sum of £69,246. Counsel have exchanged notes about such costs. My first reaction to the size of this bill is that it is disproportionate to what was in issue. The hearing lasted about 3 hours and revolved around what was on any sensible analysis a relatively simple issue, albeit broken down into 4 sub-issues, namely whether the Brief Details of Claim on the Claim Form were in context sufficient to cover what was pleaded by way of breach in the Particulars of Claim served about 3 months later. Once one could answer that everything else fell into place.
31. There are some good and less good points raised by Mr Williams for the Council. The least good point is that the assessment should be based on what it might have cost if TPT had instructed Welsh solicitors and Counsel because it was very much a Welsh dispute. The procurement was for a Welsh council and would have involved supplying materials in Wales. It was however open to tenderers who were not Welsh or wholly Welsh. However, TPT is a national organisation. Public procurement disputes are now almost invariably initiated in the TCC in the High Court in London as it has experience and expertise in this sometimes complex and newly emerging area of law. There is no reason why circuit judges with Section 9 tickets should not deal with such cases but it does not happen much if at all. I can not criticise TPT for starting these proceedings here in the TCC; it was reasonable.
32. TPT's solicitors' bill is challenged because its is said that the rates are too high; I disagree because, although they are somewhat over the standard rates set for London1, this is a specialised area of law and some enhancement for that is justified. Too much time spent on the statement of costs (over 16 hours) is a fair challenge (3-4 hours at most is reasonable). Overall £34,528.45 is claimed for work done on documents (including this costs statement work) which seems to be too unreasonably high for the Council to have to bear in full; for instance too much time is claimed at partner grade (31 hours) and there really was not that much in terms of documents which needed to be examined. The attendance of 3 solicitors at the hearings is too much, one associate for the 3 hours which the main hearing took instead of 6 hours for all three would be reasonable. Leading counsel's fee of £19,500 is challenged as too high compared with the Council's Leading Counsel; I agree that this needs to be adjusted down on a summary assessment.
33. Mr Williams QC accepts that £35,750 would be fair. That is pitching it too low once one takes out the bad point about assessing costs at Welsh levels. In my view, a proper and proportionate summary assessment, taking into account the above matters, would be £45,000. This should be paid in 14 days.