A recent Technology & Construction Court’s judgment considers the procedural time limits that apply in procurement litigation.   The question of timing in bringing a claim in procurement challenges is not straightforward, requiring close examination of the interplay between the procurement regulations and the Civil Procedure Rules, by reference to the nature of the claims available. Failure to understand and comply with the requisite timelines can often result in claims being limited or excluded altogether. This case is a timely examination of the rules surrounding time limits.  

Every so often the Court will reaffirm the primacy of express terms while re-stating the rule that implied terms can only be relied on to the extent they are (i) so obvious as to go without saying, or (ii) necessary to give an agreement business efficacy. The latest is Contra Holdings Ltd v Bamford [2023] EWCA Civ 374, handed down by the Court of Appeal last month. This commentary will come as no surprise to practitioners, and yet it serves as an important reminder that implied terms should not be relied upon as a fall-back where express drafting falls short.

On 11 May 2022, the keenly awaited Procurement Bill (announced in the Queen’s Speech) was formally introduced to the House of Lords and received its first reading.  Running to 122 pages (and comprising 116 sections across 13 Parts, and 11 Schedules) in its current form, the Bill is one of the Prime Minister’s so-called “Brexit bonanza” bills focused on further decoupling the UK from the EU. Post-Brexit, the government views this as an opportunity for the UK to develop and implement a procurement regime unburdened by the current complex regime that derives almost entirely from EU law. Indeed, the intention is to repeal the public contracts, defence, utilities and concessions procurement regimes, and replace these with a single piece of procurement legislation that extends to contracting authorities in England, Wales and Northern Ireland (Scotland has opted not to implement the new UK procurement regime). Whilst the Bill reflects many of the proposals outlined by the government’s December 2020 Green Paper and consultation response published in December 2021, some expected changes have not made their way into the Bill.  We make the following initial observations.

COVID-19 has catalysed the re-examination of the traditional operation of the legal sector and, in particular, the technology required to facilitate the conduct and resolution of disputes. Most conspicuously, this has been shown through the move toward virtual hearings before Courts and regulators.

Mr Justice Andrew Baker has dismissed a Norwich Pharmacal claim brought by litigation funder Burford Capital Limited against London Stock Exchange, in which it sought the disclosure of the identities of market participants involved in trading Burford’s shares following a remote trial.  In a judgment handed down on 15 May 2020 (Burford Capital Limited v London Stock Exchange [2020] EWHC 1183 (Comm))the Court rejected claims by Burford that it had a “good arguable case” that its share price had been the subject of unlawful market manipulation on two days in August 2019 and stated that even if it had been, justice would not have demanded that London Stock Exchange disclose to Burford the identities of all market participants trading on the days in question.  The claim was the first of its kind to be brought against a trading venue in the UK and represents a decisive step by the Court to protect public confidence in trading in the UK.