Issuing and serving the claim form – pitfalls and potential relief in procurement challenges and beyond
The recent case of CitySprint UK v Barts Health NHS Trust revolved around the procedure and timing for issue and service of the claim form in a challenge made under the Public Contracts Regulations 2015 (PCR 2015). Though particularly relevant for the commencement of procurement disputes, the case will have far reaching implications for litigators in all areas.
The judgment provides guidance on the mechanics of using CE-File and issues around sealing and payment of fees when you are right up against a limitation deadline. The case also examines the rules on service by email, the requirements for doing so, and the availability of relief particularly in procurement cases where limitation is extremely short. The judgment looks at recent cases involving similar issues including Good Law Project v SoS for Health of Social Care (2021) and Tiger Falkirk v Paragon (2021) and manages to distinguish them. A key point which feeds into considerations on relief is the prejudice suffered by the defendant, which they submitted was the imposition of the automatic suspension, but here the judge found little or no prejudice and this was especially compelling. This case follows a practical approach to the errors that were made on issue and service of the claim form and departs from the strict letter of the CPR. Although the judge commented that this case was unusual and does not mean the court is ‘indulgent towards widespread failures’, there is no doubt that this case will be relied upon by many a claimant to come.
What are the practical implications of this case?
In the most part this judgment deals with fairly practical matters, how they relate to the CPR and the scope for relief. The key practical points are as follows:
- we get guidance on using the CE-File system. This case was brought in the Technology and Construction Court (TCC) and so was subject to the Electronic Working Pilot Scheme (CPR PD 51O). The judgment can assist practitioners when faced with using CE-File to issue a claim, and the issues around timescales for procurement challenges pursuant to the PCR 2015
- the judgment deals with the date of issue when using CE-File where sealing is delayed (here for an error leading to fee underpayment) and when the system appears to show conflicting dates of issue. This is crucial for calculating dates for service and particularly important when managing the seven-day limitation for service pursuant to PCR 2015, Reg 94(1)
- method of service: the claimant’s solicitors only served the unsealed claim form at the outset and then served the particulars late. Service was affected by email when no agreement pursuant to CPR PD 6A had been made. It was clear cut that the judge thought this needed to be complied with and was not in this case, but relief or an extension of time for failure to comply can still be available
- CPR 3.10 provides the court with the power to rectify errors of procedure but this can only be used once (i) proceedings have been issued; and (ii) the court is satisfied that the procedural error has not sufficiently prejudiced the defendant
What was the background?
CitySprint was the incumbent provider of pathology transport and logistics services to a partnership of three NHS Trusts, which included the defendant, under a contract which expired on 30 September 2021. The claimant participated in the retender process but was unsuccessful and was notified by a standstill letter on 17 June 2021.
The claimant sought to challenge the decision pursuant to the PCR 2015 and following correspondence with the defendant’s solicitors the parties entered into a Standstill Agreement dated 15 July 2021. A term of that agreement was that any claim form had to be issued on or before 27 July 2021. The claimant instructed solicitors who undertook to issue the claim form on the final day.
The claim form was uploaded to CE-File with the claim seeking both monetary and non-monetary relief. Upon upload the incorrect drop-down options were selected for the relief sought and so a fee of £10,000 was paid as opposed to the correct fee of £10,528. The e-filing response confirmed that the ‘electronic filing(s) were successfully submitted’. Thereafter and on the same day, the claimant’s solicitors sent an unsealed version of the claim form to the defendant’s solicitors by email.
The court contacted the claimant’s solicitors on 29 July 2021 to explain that there was a fee underpayment and so they could not yet seal the claim form. The solicitors confirmed they had no PBA Account by which to make payment but would do so by cheque. The court assured the trainee solicitor dealing with the matter that all was well and they would seal the claim form which was then available for download from CE-File that day. The trainee took a detailed file note which was clearly well received by the judge in this case. The payment was received by the court on 30 July 2021. The system displayed an ‘Approved Date’ of the filing of 29 July 2021, and this was the date that the claimant’s solicitors used to calculate service from. The date on the seal on the face of the document was 27 July 2021.
When the claimant’s solicitors did serve the claim form and particulars on 5 August 2021 (seven days calculated from 29 July 2021) they did so by email. No agreement to do so pursuant to CPR PD 6A was in place, solely a confirmation that the defendant’s solicitors could accept service on behalf of the defendant.
So both parties made applications concerning whether the issue and service of the claim form was done in accordance with the rules.
What did the court decide?
Mr Justice Fraser set out his reasoning in three groups of issues:
- timing and dates
- method of service
The judge decided that the date of issue was 27 July 2021 as stated on the seal on the face of the document. On that date the court staff had checked and approved the document, and a response confirming successful submission of electronic filing was sent. The judge quoted CPR 7.2(2) which provides that: ‘A claim form is issued on the date entered on the form by the court’. The judge also analysed the provisions of Practice Direction 510 at 5.4 and notably that at para 5(4)(5) the date and time for issue ‘will not be delayed by Acceptance, unless the submission fails Acceptance because the filing error is more serious than an error of procedure’. The judge found ‘Acceptance’ in this case to be the notification from court that the filing had been successful, and the underpayment was a minor error of procedure only (therefore not sufficient to fail Acceptance).
The judge concluded that the claim form had been served late but that this was partly due to the confusion of the ‘Approved Date’ listed on the filing of 29 July 2021 despite the date of the seal itself of 27 July 2021. The judge noted CPR 7.6 which makes provision for an extension of time to be granted for service of a claim form, CPR 3.1(2) which sets out the court’s power to extend time for compliance with any rule and CPR 3.10 which gives the court a general power to rectify matters where there has been an error of procedure.
In addition, only an unsealed version of the claim form was served in the first instance. The judgment included the case of Heron Bros Ltd v Central Bedfordshire Council  EWHC 604 (TCC) where reference to the claim form under the Public Contracts Regulations 2006 was found to include either a sealed or unsealed copy. Fraser J found that this did not apply to the PCR 2015 and PCR 2015, Reg 94(5) sought alignment with the CPR, and therefore the principle in Heron did not apply to this case. The unsealed and sealed versions of the claim form sent to the defendant’s solicitors were identical, and ‘relatively comprehensive’. As at the date of issue, the sealed version of the claim form was unavailable, and the judge did not penalise the claimant’s solicitors for not having a PBA Account which likely would have remedied the underpayment almost instantly. A PBA Account is not a strict requirement and the claimant’s solicitors acted promptly to pay via a different method.
Crucially though, when the unsealed claim form was served by email it was done so after a successful submission notification had been sent from court and therefore it was found that proceedings were already on foot. For this reason, R (the Good Law Project) v Secretary of State for Health and Social Care  EWHC 1782 (TCC) was distinguished at the claim form was sent prior to the start of proceedings and therefore CPR 3.10 could not be utilised. Similarly, Dory Acquisitions Designated Activity Company v Ionnis Frangos  EWHC 240 (Comm) was followed as in this case an unsealed claim form was served after the claim was issued and CPR 3.10 was used to rectify this.
As for method of service the claimant only served by email but without complying with the provisions of CPR PD 6A which requires express agreement from the defendant to do so. The judge found this action non-compliant. The defendant’s solicitors at no time gave an indication that they would accept service by email. The claimant’s solicitor sought to rely on the fact that (i) the defendant’s solicitors did not expressly exclude service by email and (ii) that they conducted other correspondence by email and so had established a course of dealing. These arguments were given short shrift by the judge. Ultimately though, in light of the strict time limits in procurement cases, the judge gave relief on this point. The judge found that the defendant’s solicitors had been told that a claim had been submitted to court and had acknowledged receipt of the claim form (albeit unsealed but identical to the sealed version). They had suffered no substantial prejudice. In both R (the Good Law Project) and LSREF 3 Tiger Falkirk v Paragon  EWHC 2063 (TCC) (the latter was also before Fraser J) the loss of a limitation defence was deemed to be prejudicial but those cases did not involve a mistake by the court itself as seen here (i.e. conflicting dates on CE-File).
The defendant submitted that the imposition of the automatic suspension was sufficient prejudice, but the judge disagreed and found that this is a consequence of the proceedings themselves not the errors that were under discussion here.
Fraser J therefore ordered an extension of time for service of the claim form and retrospectively approved electronic service. He did so while emphasising the unusual facts of the case. In his closing remarks he also brought attention to Practice Direction 6A and noted that a number of cases had arisen where electronic service had been attempted without compliance with that Practice Direction. He suggested litigation solicitors ensure they are acquainted with these provisions.
- Title: CitySprint UK Ltd v Barts Health NHS Trust  EWHC 2618 (TCC)
- Court: Technology and Construction Court (QBD), Business and Property Courts of England and Wales, High Court of Justice
- Judge: Mr Justice Fraser
- Date of judgment: 1 October 2021
Rebecca Lawrence, Senior Associate and PSL at Trowers & Hamlins LLP
Originally published on Lexis PSL on 21/10/2021