Altiatech v Birmingham City Council – Time limits for a claim

Time limits also came under scrutiny In Altiatech v Birmingham City Council. The defendant authority ended a contract with Altiatech for the provision of cyber security software using a termination for convenience clause. No reasons were given, and a direct award was issued to another provider. Altiatech ultimately brought a claim challenging the award. It alleged breach by the authority of its equal treatment and transparency obligations under Regulation 18 of the PCR, in particular its duties not to structure a procurement such that it would favour or disfavour particular economic operators. The authority applied to strike out the claim, including on the basis that the claim form was issued more than 30 days after Altiatech had acquired, or should have acquired, the relevant knowledge about the claim, and so it was time-barred. Having reviewed the pre-action correspondence between the parties, the court decided it was only when the authority disclosed the reason why it had ended the contract (an issue with one of its own staff members which resulted in a reset of the authority’s cyber strategy and associated procurement decisions) that Altiatech was able to come to an informed view as to whether it had a claim and it was appropriate to bring the proceedings. The court said the relevant information was obviously highly material; so material, that the authority had decided effectively to stonewall Altiatech’s request for an explanation until it felt that it had to, in an attempt, as it hoped, to forestall proceedings and bring the matter to a close. The information provided as to reasons wasn’t simply further evidence to support the claim. It contained an essential fact that enabled Altiatech to plead its case. Parties need to keep in mind that the courts will pay close attention to the contents of pre-action correspondence when deciding when the claimant had the requisite knowledge to trigger the 30-day time limit. The authority also argued that the particulars of claim were served out of time. The court confirmed that, for proceedings under the PCR, the combined effect of the relevant Regulation and Civil Procedure Rule was that the particulars must be served within 7 days of issue of the claim form. In this case, the court granted relief from sanction and extended the time for service of the particulars retrospectively. Among other things, it didn’t consider a delay of 15 days to be sufficiently serious or significant, given that the authority didn’t raise the point until almost 2 months after the correct service date. Significantly, the court noted that what might have enabled the whole action to have started much earlier was if the authority had been open at the outset about the underlying reason for its actions. Its reluctance to explain its position led to a delay of much more than 15 days. The fact that if the relief isn’t granted the claimant would lose the entire claim is a point which a claimant can (and did make here) on the question of proportionality. Not to grant relief from sanctions where the court had upheld that the claim form was served in time would be grossly disproportionate because it would deprive Altiatech of a claim of some substance.

Altiatech Ltd v Birmingham City Council [2023] EWHC 1371 (TCC) (16 February 2023) (bailii.org)