On 27 and 28 February 2019, the High Court (Fraser J) gave judgment on two applications arising in proceedings brought by Serco against the Secretary of State for Defence (“the SSD”) under the Defence and Security Public Contracts Regulations 2011 (“DSPCR 2011”), challenging the outcome of the MoD’s recent £1.1 billion procurement for fire and rescue services.
At an oral hearing on 27 February 2018, the SSD sought to strike out substantial sections of the particulars of breach contained in Serco’s PoC pursuant to regulation 52(3) of the DSPCR 2011 on the basis that (so it was said) Serco had failed to sufficiently notify it of the pleaded particulars of breach of duty prior to issuing its claim form.
Fraser J dismissed the application. Following the judgment of Coulson J in Amarylis Ltd v HMT [2010] EU LR 85, Fraser J held that reg. 52(3) requires that a claimant notify the defendant of the apprehended breach of duty by reference to the relevant regulations. It does not require, however, that a claimant provide full particulars of breach in pre-action correspondence. Following an analysis of the pre-action correspondence, Fraser J held that the reg. 52(3) requirement had been discharged by Serco.
On 28 February 2018, Fraser J gave judgment on an application by Serco for specific disclosure of the contemporaneous evaluation documents. The application was compromised very shortly before the hearing, with the SSD providing disclosure of all or almost all of the documents sought by Serco. However, Fraser J was required to consider the merits of the substantive application, and the reasonableness of the parties’ respective conduct, for the purposes of determining Serco’s application for indemnity costs.
In a judgment that is likely to be much cited by claimants seeking early disclosure in procurement challenges, Fraser J held (at §10) that the SSD: “…if properly advised, should always have realised, that it could not possibly argue before the High Court with any degree of seriousness that Serco is not entitled to these documents”.
Fraser J awarded Serco its costs of the disclosure application on the indemnity basis, concluding that the SSD’s conduct in persisting in the refusal to disclose the contemporaneous evaluation documents was conduct that fell “well outside the norm and [was] entirely suitable for, and [justified], an award of indemnity costs”.
The judgment in respect of the specific disclosure application can be found here.
The judgment in respect of the strike out application, and the reg. 52(3) pre-claim notification requirement, can be found here.
Joseph Barrett and Zac Sammour of 11KBW acted successfully for Serco in all of the applications.
