Global menu

Our global pages

Close

Case update: Access for Living v London Borough of Lewisham Extensions to limitation periods in procurement cases

  • United Kingdom
  • Commercial litigation
  • Education
  • Governments and Infrastructure
  • Health and life sciences
  • Industrials
  • Technology, Media and Telecoms

24-01-2022

Summary

The judgment in Access for Living v London Borough of Lewisham (a copy of which can be found here) provides a useful review of relevant cases and confirms that the limitation period for bringing claims under the Public Contracts Regulations 2015 (the “PCR”) will only be extended in very limited circumstances.

This case demonstrates the strict approach to limitation periods in procurement cases adopted by the Courts.  Errors in calculating the applicable limitation period, or an ignorance of the applicable rules, will not be sufficient to justify an extension.  Nor will delays caused by the need to obtain internal approvals before issuing a claim.  For this reason, it is essential to obtain early strategic advice whenever an issue arises in a procurement process in order to avoid losing potentially valuable remedies. 

The case also provides an interesting discussion as to when the limitation period will start to run for claims concerning the correct interpretation of the procurement documents.

Background

Access for Living was notified on 7 February 2020 that it had been unsuccessful in a tender run by the Council to provide services to people with learning disabilities.  During pre-action correspondence the Council agreed to extend the applicable “standstill period” but no reference was made to the 30 day statutory limitation period imposed by Regulation 92 of the PCR.  On 11 March 2020, within the extended standstill period, Access for Living issued proceedings alleging various breaches of the PCR.  The Council sought to have the claims struck out on the basis that (i) they were brought after the expiry of the relevant limitation period and (ii) there was no good reason for the limitation period to be extended. 

Access for Living accepted that the 30 day limitation period for two of its claims expired on 9 March 2020 but argued that the Court should exercise its discretion to grant a short extension of time for issuing proceedings.  It also argued that the limitation period for its third claim, which involved the interpretation of the ITT, did not start to run until the Council had set out its position as to the correct interpretation in pre-action correspondence (i.e. it was argued that the third claim had been made in time).

The Court found that all three claims had been brought out of time and declined to extend the limitation period.

Key Points of Interest

The judgment provides a very helpful review of the key cases regarding when an extension to the limitation period will be allowed.

The Judge confirmed that the overriding principle is that there must be a good reason for extending time (which could include a good reason for the claimant not issuing within the time required, such as an illness or something out of the claimant's control which prevented the claimant from doing so).  In this case, the Judge held that an error on the part of Access for Living’s solicitor in equating the extension of the standstill period with the extension of the limitation period was not a “good reason” for extending time.

The Judge also rejected Access for Living’s argument that because the Council had already agreed not to award the contract before 14 March 2020, granting a short 2 day extension from 9 March to 11 March would not have any impact upon the Council.  The Judge held that lack of prejudice to the Council was not the relevant test. The Judge was clear that the absence of a good reason not to extend was not the same as there being a good reason to extend, nor was the fact that the requested extension was only for a very short period of time.  In any event, the Judge held that even a very short extension to the limitation period in the circumstances of this case could result in real prejudice to the Council.  Extending the standstill period beyond the end of the limitation period gave the Council certainty that once the standstill period expired it would be able to let the new contracts without legal challenge. 

A final point of interest relates to when limitation starts to run for claims relating to the interpretation of procurement documents.  Whilst in the vast majority of cases involving the correct interpretation of procurement documents, the limitation period will start to run when the relevant document is first published, this was not the case here.  In this case, the Judge accepted that it was arguable that grounds for starting the proceedings had not arisen when the ITT was published:  “At the time of tender, the claimant did not know that MS5 could have a different meaning from the one the claimant attributed to it, nor did the claimant have actual knowledge of how the defendant would construe it, the claimant's case being that MS5 unambiguously said something else.”  However, this did not assist Access for Living as the Judge held that it should have been clear that the Council had adopted an alternative interpretation of MS5 when it received its standstill letter on 7 February (there was no need to wait until the Council had confirmed its position in pre-action correspondence).  As a result, the claim brought on 11 March was still out of time.