R (Hersi & Co Solicitors) v The Lord Chancellor (as Successor to the Legal Services Commission)
Citation: [2017] EWHC 2667 (TCC)
Judgment was handed down today by Mr Justice Coulson in R (Hersi & Co Solicitors) v The Lord Chancellor (as successor to the Legal Services Commission). This was the last in a series of claims brought against the LSC relating to the 2010 round of tenders for legal services contracts.
The claimant had bid for an immigration services contract in London along with over 400 other firms. However, it did not provide an answer to 4 out of 7 scored questions and failed to score enough marks to gain a contract. It later claimed that the defendant should have allowed it to clarify its tender by filling in the missing answers and rescored its response. The claimant argued that a duty to clarify arose under Tideland Signal v Commission [2002] ECR II-3781 and that the defendant breached the equal treatment principle in its treatment of other tenderers. Proceedings were issued in the Administrative Court in November 2010 and only reached trial (in the TCC) in October 2017. There was no oral testimony. The Judge assessed the extensive disclosure, submissions and evidence in reaching his conclusions.
The claimant lost completely. The Judge found that the defendant was not obliged to do anything more than take the claimant’s failure to answer the relevant questions at face value and that it treated other tenderers in the same situation in precisely the same way. The claimant tried to show that clarifications made by the defendant in relation to other parts of the procurement were comparable and gave rise to a breach of the equal treatment principle. It failed on the basis that these were not ‘comparators’ and that to treat them as comparable would bring the procurement process to a grinding halt. It would require the defendant to provide disclosure to every aggrieved tenderer of its treatment of every other tenderer on every aspect of the procurement process. In the Judge’s words, “the claimant’s comparison marathon became an exercise in futility.”
The Judge addressed the absence of any evidence to support a damages claim, the “abysmally slow and haphazard fashion” in which the claim had been conducted and the disregard shown by the claimant to orders of the court and CPR. When considering costs, the Judge also took into account the evidence of unjustified personal attacks made by the claimant against various employees of the defendant by way of actual and threatened complaints to the BSB and SRA and the application to bring contempt of court proceedings a month prior to trial which was later withdrawn.
The claim was dismissed and the claimant was ordered to pay the defendant’s costs of the action, with costs after March 2013 assessed on an indemnity basis.
Simon Taylor acted for the successful defendant, instructed by Government Legal Department.
