Mixed signals

David Hansom examines the lessons from a recent High Court ruling on the issue of specific disclosure in automatic suspension claims.

The Public Contracts Regulations 2006 provide that the issue and service of a claim form will automatically suspend a contracting authority's award decision. Regulation 47(H) gives a contracting authority the opportunity to apply to the court for an order lifting the suspension.

Given the very strict time limits to challenge, unhappy losing bidders will often be at a disadvantage in terms of the information needed to substantiate claims. Recent case law has confirmed, however, that this does not mean that challengers can omit potential heads of claim and then seek to include them later. Any such 'new' claims will be time barred.

Information is key to the would-be challenger, and the courts have recognised that specific disclosure of key documents may be appropriate in a procurement challenge context. For example, in Roche Diagnostics Ltd v Mid Yorkshire Hospitals NHS Trust, applications for specific and pre-action disclosure of documents were permitted, with the court deciding that the information requested was sufficiently tightly focused and relevant to the challenge.

The recent case of Pearson Driving Assessments Limited v the Minister for the Cabinet (1) and Secretary of State for Transport (2) [2013] EWHC 2082 (TCC) is interesting as it is a case where the court indicated the suspension was likely to be maintained but where specific disclosure was not ordered. Shortly before the hearing of the application to lift the suspension, the challenger made an application for specific disclosure of documents fearing that the automatic suspension would be lifted.

The first hurdle faced by the authority in any application is to satisfy the court that there is no serious issue to be tried. If it succeeds on that count, the matter ends there. If it cannot so satisfy the court, the authority may argue that damages would be an adequate remedy for the challenger and/or that the balance of convenience favours the lifting of the suspension.

The issue for the court here was whether the documents (which would have been disclosable after the 47(H) application) should be disclosed before it.

The court considered the authority's evidence in support of the pending 47H application but found it defective in that it was not supported by documentary evidence of the factual assertions made relied on. In order to succeed in the application, it was not sufficient for the authority to make unsupported factual assertions when addressing controversial facts.  

The court suggested that there would be no good reason to lift the suspension before the trial (due in October) and steps could be taken to avoid prejudice to either side. At the same time, no order for early disclosure was made and, in referring to recent decisions, the judge drew a distinction between cases where a prima facie case had already been made out and documents were needed, as against those where no grounds appeared to exist and which amounted to fishing expeditions.

Practically, this case is a reminder to contracting authorities of the potential difficulties in seeking to lift an automatic suspension. Challengers will note that the court will only make early orders on disclosure in procurement challenges where the information requested is needed to support the specific claim.

David Hansom is a partner and head of Veale Wasbrough Vizards' specialist public sector team. He can be contacted on 0207 665 0808 or This email address is being protected from spambots. You need JavaScript enabled to view it..