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Rail Franchising procurement litigation: seven Monckton counsel appear in Court of Appeal case

19 Dec 2019

Judgment was handed down this week by the Court of Appeal in the latest turn of the 2019 Rail Franchising litigation. The Secretary of State appealed against the trial judge’s refusal to strike out elements of the Part 7 claims brought by four disqualified bidders in the recent franchise competitions.

The central issue was whether aspects of the claims were now time-barred, having been brought more than three months after the relevant bidding documentation had been issued. At first instance, Stuart-Smith J had held that the claimants’ Francovich damages claims were breaches of statutory duty to which a six-year limitation period applied; moreover, even if the three-month time limit did apply, he would need to hear all the evidence at trial in order to determine the point from which time had run; and finally that it was not necessarily an abuse of process to claim ‘cross-over’ relief in the form of a declaration or injunction in a Part 7 claim that engaged both public and private law rights.

On appeal, the Secretary of State argued that the underlying claim was a public law challenge and consequently a breach of the principle of procedural exclusivity.

Giving the leading judgment, Coulson LJ rejected the Secretary of State’s argument that a damages claim arising out of a public body’s decision should automatically be subject to a three-month time limit, and did not accept that the Part 7 claims were ‘public law challenges’. A claim for damages was not attempting to reverse or alter the public body’s decision, but only to receive compensation for a wrong suffered. As such, there was no condition precedent that a claimant should have brought judicial review proceedings first. Procedural exclusivity did not apply in a private law case when an individual sought to establish private law rights which could not be determined without an examination of the validity of a public law decision. Therefore, where claims for damages were inextricably mixed with public law issues, the judicial review limitation period would not apply. However, it might still be an abuse to seek an injunction aimed at reversing a public law decision where the claim was brought outside the three-month time limit. As to the point from which time ran in the present case for the purpose of the judicial review time limit, while it was possible for a cause of action to arise on the issue of tender documents, if the process was more fluid the claim might only crystallise at a later point, when the tender was rejected. As such, the judge had been correct not to strike out the claims on an interlocutory application. The appeal was accordingly dismissed.

Anneli HowardFiona Banks and Alfred Artley appeared for the Secretary of State (led by Rhodri Thompson QC and Fionnuala McCredie QC).

Philip Moser QC and Jack Williams appeared for Arriva (the first respondent).

Tim Ward QC and Daisy Mackersie appeared for the Stagecoach bidders (the second and fourth respondents).

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