Hossacks (A Firm of Solicitors), R (on the application of) v The Legal Services Commission [2012] EWCA Civ 1203

Case No C1/2011/2905

[2012] EWCA Civ 1203

IN THE COURT OF APPEAL (CIVIL DIVISION)

[2011] EWHC 2700 (Admin)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

MR JUSTICE BLAKE

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20 September 2012

Before

LORD JUSTICE LLOYD

LORD JUSTICE STANLEY BURNTON

MR JUSTICE MORGAN

The Queen on the application of

Between

HOSSACKSAppellant

THE LEGAL SERVICES COMMISSIONRespondent

Simao Paxi-Cato (instructed by Hossacks) for Appellant

Sarah Hannaford QC and Fiona Scolding (instructed by the Legal Services Commission) for Respondent

Hearing Hearing date: 25 July 2012

Judgment

Lord Justice Stanley Burnton :

Introduction

[1]In his judgment handed down on 27 October 2011, Blake J dismissed the Appellant’s application for judicial review of the decision of the Respondent (to which I shall refer as “the Commission”) rejecting the Appellant’s tender for the provision of legal services in the field of community care following a competitive tendering exercise in 2010. On 25 July 2012 we heard full argument on a rolled-up hearing, to determine whether to grant the Appellant permission to appeal against the order made by Blake J and if so whether to allow her appeal. Having heard the submissions of both sides, we announced our decision to refuse permission to appeal. We said that we would give our reasons subsequently. These are my reasons for concluding that the appeal had no real prospect of success and that therefore permission to appeal should be refused. We received written submissions as to costs after the hearing. At the end of this judgment I set out the reasons for our decision as to costs which were communicated to the parties at the time that we made our order as to costs, shortly after the hearing of the appeal, but have not been handed down as such until now.

[2]Incidentally, although Hossacks is described as a firm in the title to these proceedings, Mrs Hossack is in fact the sole principal, so that Hossacks is in truth her practising name rather than the name of a partnership.

The facts

[3]The essential and undisputed facts are set out in Blake J’s judgment, and I set them out below.(1) The Appellant is a specialist provider of community care services based in Northamptonshire with a small number of staff under Mrs Hossack’s supervision.

(2) The Appellant bid in 2010 in a competitive tender for the award of community care legal services contracts in 125 geographical service areas of England and Wales. These areas were categorised as either A or B service areas.

(3) The Appellant did so even though it was a requirement of the competition that the bidder would at least have a part-time office in each area where services were to be delivered.

(4) For each contract area for which the Appellant made a bid she submitted a pro forma containing identical information.

(5) Each tender was completed using an invitation to tender form specific to Wiltshire which was pre-populated in the Commission’s electronic tendering form with the title Wiltshire, albeit this was not known to the Appellant.

(6) There were different requirements as to whether the need for an authorised litigator was part of the essential or selection criteria under the terms of the Information for Applicants issued by the Commission. This depended upon whether the firm was bidding in service areas A or B.

(7) The Appellant did not complete the part of the form requiring her to identify the location of her office, and this was the case even for the form submitted in respect of Northamptonshire where she did have an office. She marked the form as address unknown.

(8) The Appellant’s office in Northamptonshire was a full-time one, but for the Northampton bid (as indeed for every other) the Appellant stated that she proposed to operate a part-time office. Her intentions were to service claimants throughout the jurisdiction by attending on them as and when necessary. This intention might have been accommodated by a single Northampton bid, which if successful would have enabled her to open cases from outside the county as well if the Appellant had the staff capacity to do so.

(9) The Commission would have been aware that the Appellant maintained a full time office in Northamptonshire from extraneous information, namely previous dealings with her and the fact that the Office Manual was supplied to evidence the SQM which was submitted by Mrs. Hossack as part of her tender.

[4]124 out of the Appellant’s 125 bids were rejected by the Commission because she had not provided the information necessary to establish eligibility for award of a contract. She was offered a contract for Wiltshire on the basis of the inaccurate statement that a part-time office would be maintained there, but this was subsequently cancelled when the true facts were realised. There is no issue as to the cancellation of that contract.

[5]The claim for judicial review was originally directed to all the Commission’s decisions in respect all the Appellant’s bids, on the basis that its bid criteria did not take account of the Appellant’s unique business model that was Northampton based but delivered specialist services to clients in need throughout the jurisdiction. This claim was rejected by both the Administrative Court and on renewal to the Court of Appeal because it was essentially a challenge to the bid criteria themselves which should have been made, if at all, promptly when the criteria were published. Nevertheless, permission was granted in respect of the failed bid for Northamptonshire, on the basis that, on the information actually supplied, the defendant should not have rejected the bid.

[6]Another factor in the grant of permission was information about the extent to which the Commission, in similar competitions for legal services contracts, had contacted bidders pointing out errors, omissions and ambiguities in their bid application forms. The question whether the Commission had been, or should have been, willing to use any powers it had to clarify ambiguities had been the subject of debate in at least four previous decisions of the High Court namely JR Jones v LSC

[2010] EWHC 3671 (Ch)

, Hoole and Co v LSC

[2011] EWHC 886 (Admin)

, Harrow v LSC [2010] EWHC1087 (Admin) and R (All About Rights) v LSC

[2010] EWHC 964 (Admin)

. It emerged that some of the evidence previously relied on by the Commission was or might have been inaccurate or incomplete when describing its practices and the extent to which it had sought clarification from tenderers, and a complete audit of all such occasions was being undertaken. In consequence, the Commission gave extensive disclosure of its communications with tenderers. It gave substantial additional disclosure after Blake J had given judgment, for the purposes of this application for permission to appeal.

The issues

[7]There are essentially three issues:(1) Was any of the Appellant’s applications acceptable without clarification or amendment?

(2) Leaving aside the evidence of the Commission’s communications with other applicants, should the Commission have sought clarification or suggested amendment of any of the applications, and if so should the Commission have accepted the resulting application(s)?

(3) Do the Commission’s communications with other applicants show that by rejecting the Appellant’s applications, it acted in breach of its duty to treat all applicants equally?

[8]The Appellant did not seriously argue that issue (1) should be determined in her favour; the thrust of her submissions was that issue (3) should be determined in her favour. I shall, however, address all three issues.

[9]The Commission submitted that on each of these issues the Appellant’s case had no real prospect of success. Discussion Issue (1): should the Commission have accepted any of the Appellant’s applications without amendment?

Discussion

The judge formulated this issue, correctly in my view, as:

“Was it unreasonable/disproportionate for the defendant to reject the claimant’s tender for Northamptonshire?”

[11]The judge set out the relevant provisions of the tender documents, in a summary the accuracy of which has not been challenged, as follows: “8. Before the competition was opened on the 26 February, 2010 the defendant published a 62 page document called Information for Applicants (IFA) that set out the detail of the invitation to tender to deliver publicly funded services in this field. This document is of central significance in explaining how applicants could bid for such tenders; what electronic tender forms they need to complete in order to apply, what a completed tender consisted of and other material provisions that set out the terms of the bid. 9. The overview of this document indicated that any applicant might submit a tender whether a current contract holder with the LSC or not. There were 135 separate invitations to tender (ITT) each covering a separate procurement area in England and Wales. Successful tenderers automatically had a passport to undertake licensed work if they obtained Matter starts. Applicants would be tendering for allocation of cases known as matter starts and, if applicable a licence to represent clients, in separate geographic areas in England and Wales. 135 ITT’s would be published on the defendants’ e-tendering system and for tenders to be complete a response to the pre-qualification questionnaire (PQQ) must also have been submitted. A completed tender consists of a completed PQQ and a response to the ITT including the mandatory form. 10. Other aspects of the IFA material to the present challenge include the following:-(i) The application process for a specialist quality mark (SQM) is dealt with separately to the tender process as it is a condition of contract award and not part of the PQQ or the ITT response (IFA 6.6 and 10.2).

(ii) An individual bid means the services in a category of law that an applicant has tendered to deliver from a particular office in a procurement area or access point (10.3 IFA).

(iii) The relevant form should be downloaded and completed with details of each supervisor who is currently in post to deliver the services of the applicant that is tendering to deliver in the procurement area (12.6 IFA).

(iv) The bid must provide for information on the number of matters starts the applicant will deliver from each office in the procurement area; each office must tender for at least a minimum number of matter starts meeting the essential criteria; bids could not be for more than the maximum capacity of the applicant calculated by reference to the number of matter starts that could be processed weekly by a full time equivalent (FTE) member of staff delivering the service. One FTE equated to approximately 35 hours per week (12.20 and 13.9 IFA).

(v) Applicants must certify that the declarations they have completed and submitted contain accurate information and are up to date (12.29 IFA). 11. Section 15 of the IFA set out the terms and condition of tender. The following provisions are of relevance to the present application:- (i) Submission of a tender which fails to comply with any terms and conditions of tender, user agreement or other rules [or] conditions shall without affecting the applicant organisation’s liability for non compliance entitle the LSE to reject a tender. In the case of a contract awarded in breach of these terms the defendant is entitled to cancel the contract or not proceed further with it (15.2). (ii) Any conflict between the information given on documents submitted as part of the tender conflict will be resolved by accepting the information answer or document least favourable to the applicant organisation (15.15) (iii) The applicant must reply to all the questions in order to respond to PQQ and ITT even if it has previously provided this information or if it thinks that the LSE is already aware of it (15.19). (iv) The applicant must not submit for tender any information which the applicant knows or has reason to be false or misleading if information is subsequently found to be false or misleading it may lead to the applicant tender being unsuccessful (15.20). (v) A tender will be unsuccessful where following assessment the applicant (a) Does not pass the PQQ; (b) Does not pass the essential criteria; and or (c) Has its tender ranked lower than other tenderers following application of the selection criteria. (15.26). 12. By contrast with the terms and conditions of similar competitions, section 15 of the IFA made no reference to the defendant seeking clarification of ambiguities. The applicant was solely responsible for submitting the information for the tender. The defendant reserved the right to check the accuracy of information submitted.” (i) The application process for a specialist quality mark (SQM) is dealt with separately to the tender process as it is a condition of contract award and not part of the PQQ or the ITT response (IFA 6.6 and 10.2). (ii) An individual bid means the services in a category of law that an applicant has tendered to deliver from a particular office in a procurement area or access point (10.3 IFA). (iii) The relevant form should be downloaded and completed with details of each supervisor who is currently in post to deliver the services of the applicant that is tendering to deliver in the procurement area (12.6 IFA). (iv) The bid must provide for information on the number of matters starts the applicant will deliver from each office in the procurement area; each office must tender for at least a minimum number of matter starts meeting the essential criteria; bids could not be for more than the maximum capacity of the applicant calculated by reference to the number of matter starts that could be processed weekly by a full time equivalent (FTE) member of staff delivering the service. One FTE equated to approximately 35 hours per week (12.20 and 13.9 IFA). (v) Applicants must certify that the declarations they have completed and submitted contain accurate information and are up to date (12.29 IFA). (i) Submission of a tender which fails to comply with any terms and conditions of tender, user agreement or other rules [or] conditions shall without affecting the applicant organisation’s liability for non compliance entitle the LSE to reject a tender. In the case of a contract awarded in breach of these terms the defendant is entitled to cancel the contract or not proceed further with it (15.2). (ii) Any conflict between the information given on documents submitted as part of the tender conflict will be resolved by accepting the information answer or document least favourable to the applicant organisation (15.15) (iii) The applicant must reply to all the questions in order to respond to PQQ and ITT even if it has previously provided this information or if it thinks that the LSE is already aware of it (15.19). (iv) The applicant must not submit for tender any information which the applicant knows or has reason to be false or misleading if information is subsequently found to be false or misleading it may lead to the applicant tender being unsuccessful (15.20). (v) A tender will be unsuccessful where following assessment the applicant (a) Does not pass the PQQ; (b) Does not pass the essential criteria; and or (c) Has its tender ranked lower than other tenderers following application of the selection criteria. (15.26).

The judge set out his conclusions as follows:

“15. The claimant submits that the error in the ITT was both trivial and obvious and could have been corrected without prejudice to other bidders and without the need to restructure the application. Admittedly, the ITT was headed Wiltshire when it was intended for Northamptonshire; it did not contain the address and post code of the claimant’s office in Northamptonshire, and it inaccurately stated that the tender bid would be serviced by a part-time office to be established there. The claimant relies on 15.15 of the IFA that in the event of any conflict of information the conflict would be resolved by accepting the information [least] favourable to the applicant organisation. On that basis the claimant could have been awarded matter starts appropriate to a part-time office even though it maintained a full-time office there. 16. The defendant submits that the error with the claimant’s ITT was fundamental rather than marginal. In particular, the ITT for Northamptonshire cannot be read in isolation from the other ITTs for the other areas bid for. The defendant makes an assessment of the ratio of new matter starts to staff employed based upon the information supplied by the tenderer as a whole. Taking the bids as a whole the claimant was bidding for far too many matter starts than they have staff to service. If alternatively, the number of staff that the claimant proposed to employ (four), was used as the minimum basis for the calculation of the maximum number of new matter starts that could be taken on, then on the basis of the claimant’s application in 125 areas, there would be insufficient new matter starts at each of the regions bid for to qualify for a tender. There was no ambiguity or inconsistency in the application in the tender bid made by the claimant but even ignoring the misleading header Wiltshire on their face and read as a whole the application was incomplete and the information provided insufficient for the claimant to be eligible for a contract under the tender terms. As the Court of Appeal had recognised the defendant could not use information it had about the claimant firm extraneous to the tender itself to benefit them in assessing the bid. 17. In my judgement there is no answer to the submissions of the defendant. The defendant’s approach to accessing eligibility of bids accords with what it said it would do in the IFA. It means that Northamptonshire cannot be separated from the other bids on a stand alone basis. To do so would not be to cure an ambiguity in the application or correct an obvious unintended error but fundamentally to reconstruct the tender bids that the claimant made. 18. It is common ground and if it were not it is in any event clear on the authorities, that making a fresh application after closure of the tender period in April, 2010 is not permitted under the applicable legal principles. Equally, whatever else the defendant may be able to do without offending the principle of equality and transparency in the tender terms, it is not permitted to give a tenderer an opportunity to improve a bid by supplying information in the ITT that it had previously completely omitted. 19. Deleting Wiltshire and substituting Northamptonshire would not have cured the defect in the claimant’s application and rendered it eligible for a contract. It is undoubtedly the case that the claimant failed to provide an office address in Northamptonshire and that part of the ITT was deliberately left blank because she was adopting the same approach for all the areas in which the firm was bidding. The IFA makes plain that information must be supplied even if it is already known to be LSC extraneously. Having premises in the relevant contract area is clearly an important part of the criteria for award of a contract at all. On either of these bases and both of them, therefore, the defendant was entitled and indeed bound to reject the application. 20. In addition, I consider there is substance in the defendant’s further point that as the application form for Northamptonshire contained no ambiguity as to whether a part-time or a full-time office was intended there, it would be wrong for the claimant to be awarded a contract on a fundamentally false premise. It was for the claimant to warrant the accuracy of the information provided, and although it is apparent that the means by which this error came about was an unintended consequence of the claimant’s approach to bidding for all areas by the same form, it is nevertheless unrealistic for the defendant to award a contract on a false basis. I therefore conclude it was reasonable and proportionate for the defendant to reject the claimant’s tender for Northamptonshire made as it was as part of a great many other bids containing in fact the same information.”

[13]I entirely agree with this summary. The fundamental defect in the Appellant’s applications arose from the fact that she misunderstood the basis of the tender. It was geographically based, in that each applicant had to undertake to open an office in each of the service areas (also referred to as procurement areas) for which he sought a contract. If he was awarded a contract for any service area, he could accept clients residing within and outside the service area, up to the number of new matter starts that he was awarded: there was no restriction on the location of clients. However, the Appellant believed that she required a contract for every area of the country in which she might have a client: hence her applications for 125 service areas. This involved her undertaking to open an office in each of these areas, something she did not intend to do (and which I am sure she did not understand that she was undertaking to do), and to cover them with only her very small existing staff. The result was that her applications were fundamentally incompatible with the tender rules.

[14]The judge was clearly right to decide issue (1) in favour of the Commission. Issue (2): having regard to the Appellant’s obvious errors, should the Commission have sought clarification or amendment of any of her applications?

The judge formulated this issue as:

“Was it unreasonable for the defendant not to seek to clarify the claimant’s tender given the nature of the mistake made?”

[16]The jurisprudence shows that a public authority’s power to seek clarification or amendment of a tender is circumscribed. The judgment of the Court of Justice in Antwerpse Bouwwerken NV v European Commission (

Case T-195/08

) contains a classic statement of the law:

“54 It should also be noted that Article 148(3) of the Implementing Regulation empowers the institutions to contact tenderers in the event that some clarification is required in connection with a tender, or if clerical errors contained in the tender must be corrected. It follows that that provision cannot be interpreted as imposing, in the exceptional, limited circumstances which it identifies, a duty on the institutions to contact tenderers (see, by analogy, Case T-19/95 Adia interim v Commission [1996] ECR II-321, paragraphs 43 and 44). 55 It can be otherwise only if, by virtue of the general principles of law, that power has evolved into an obligation on the part of the Commission to contact a tenderer (see, to that effect and by analogy, Adia interim v Commission, paragraph 54 above, paragraph 45). 56 That is the position, inter alia, where a tender has been drafted in ambiguous terms and the circumstances of the case, of which the Commission is aware, suggest that the ambiguity probably has a simple explanation and is capable of being easily resolved. In principle, it would be contrary to the requirements of sound administration for the Commission to reject the tender in such circumstances without exercising its power to seek clarification. It would be contrary to the principle of equal treatment to accept that, in such circumstances, the Commission enjoys an unfettered discretion (see, to that effect, Case T-211/02 Tideland Signal v Commission [2002] ECR II-3781, paragraphs 37 and 38). 57 In addition, the principle of proportionality requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued, it being understood that, where there is a choice between several appropriate measures, recourse must be had to the least onerous and that the disadvantages caused must not be disproportionate to the aims pursued (Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211, paragraph 60). That principle requires that, when the contracting authority is faced with an ambiguous tender and a request for clarification of the terms of the tender would be capable of ensuring legal certainty in the same way as the immediate rejection of that tender, the contracting authority must seek clarification from the tenderer concerned rather than opt purely and simply to reject the tender (see, to that effect, Tideland Signal v Commission, paragraph 56 above, paragraph 43). 58 However, it is also essential, in the interests of legal certainty, that the Commission be able to ascertain precisely what a tender submitted in the course of a procurement procedure means and, in particular, to determine whether the tender complies with the conditions set out in the contract documents. Thus, where a tender is ambiguous and the Commission is not in a position to establish, quickly and efficiently, what it actually means, that institution has no choice but to reject the tender (Tideland Signal v Commission, paragraph 56 above, paragraph 34). 59 Lastly, it is ultimately for the Court to determine whether a tenderer’s replies to requests from the contracting authority for clarification can be regarded as explanations of the terms of the tender or whether those replies go beyond clarification and modify the substantive terms of the tender in relation to the conditions laid down in the contract documents (see to that effect, Esedra v Commission, paragraph 49 above, paragraph 52).”

[17]In the present case, it is clear, as the judge found, that the defects in the Appellant’s applications were not due to any ambiguity in her applications. They were quite clear. Nor was there any conflict between some of the information she provided and other information, which it might have been appropriate for the Commission to seek to resolve. The Appellant needed to withdraw her applications and to submit a new application, for the procurement area in which she had her office. That would have involved a change in the substantive terms of her tender for that area, which would have gone beyond what was permitted by the Court of Justice in the AntwerpseBouwwerken case: see paragraph 59 of the judgment.

[18]I should also refer to the judgment of the Court of

Justice in the SAG ELV Slovensko a.s. case (Case C-599/10):

“An imprecise tender or one which does not meet the technical requirements of the tender specifications 35 In this regard, it must be noted that, in contrast to the situation concerning abnormally low prices, Directive 2004/18 does not contain any provision which expressly sets out the procedure to be followed in the event that the contracting authority finds, in a restricted public procurement procedure, that the tender submitted by a tenderer is imprecise or does not meet the technical requirements of the tender specifications. 36 By its very nature, the restricted public procurement procedure means that, once the tenderers have been selected and once their respective tenders have been submitted, in principle those tenders can no longer be amended either at the request of the contracting authority or at the request of the tenderers. The principle of equal treatment of tenderers and the obligation of transparency resulting therefrom preclude, in that procedure, any negotiation between the contracting authority and one or other of the tenderers. 37 To enable the contracting authority to require a tenderer whose tender it regards as imprecise or as failing to meet the technical requirements of the tender specifications to provide clarification in that regard would be to run the risk of making the contracting authority appear to have negotiated with the tenderer on a confidential basis, in the event that that tenderer was finally successful, to the detriment of the other tenderers and in breach of the principle of equal treatment. 38 In any event, it does not follow from Article 2 or from any other provision of Directive 2004/18, or from the principle of equal treatment or the obligation of transparency, that, in such a situation, the contracting authority is obliged to contact the tenderers concerned. Those tenderers cannot, moreover, complain that there is no such obligation on the contracting authority since the lack of clarity of their tender is attributable solely to their failure to exercise due diligence in the drafting of their tender, to which they, like other tenderers, are subject. 39 Article 2 of Directive 2004/18 does not therefore preclude the absence, in national legislation, of a provision which would oblige the contracting authority to request tenderers, in a restricted public procurement procedure, to clarify their tenders in the light of the technical requirements of the tender specifications before rejecting them because they are imprecise or do not meet those requirements. 40 None the less, Article 2 of that directive does not preclude, in particular, the correction or amplification of details of a tender where appropriate, on an exceptional basis, particularly when it is clear that they require mere clarification, or to correct obvious material errors, provided that such amendment does not in reality lead to the submission of a new tender. Nor does that article preclude a provision of national legislation such as Article 42(2) of Law No 25/2006, according to which, in essence, the contracting authority may ask tenderers in writing to clarify their tender without, however, requesting or accepting any amendment to the tender. 41 In the exercise of the discretion thus enjoyed by the contracting authority, that authority must treat the various tenderers equally and fairly, in such a way that a request for clarification does not appear unduly to have favoured or disadvantaged the tenderer or tenderers to which the request was addressed, once the procedure for selection of tenders has been completed and in the light of its outcome. 42 In order to provide a useful answer to the national court, it must be added that a request for clarification of a tender may be made only after the contracting authority has looked at all the tenders (see, to that effect, Lombardini and Mantovani, paragraphs 51 and 53). 43 Furthermore, that request must be sent in an equivalent manner to all undertakings which are in the same situation, unless there is an objectively verifiable ground capable of justifying different treatment of the tenderers in that regard, in particular where the tender must, in any event, in the light of other factors, be rejected. 44. In addition, that request must relate to all sections of the tender which are imprecise or which do not meet the technical requirements of the tender specifications, without the contracting authority being entitled to reject a tender because of the lack of clarity of a part thereof which was not covered in that request.”

[19]What was required for the Appellant was permission to submit what would have been a new application. The Commission could not lawfully have given that permission: see paragraph 40 of the above judgment.

The judge dealt with issue (2) as follows:

“21. … The problems with the claimant’s tenders were not ambiguities or inconsistencies between two sets of data. The clarification that the claimant submits should have been made goes beyond clarification of an ambiguity and extends to reconstructing the essence of the application made. 22. … If the claimant was seeking an opportunity to withdraw the 124 applications apart from Northamptonshire on the basis of an indication to what the fate of the application would be without withdrawal, this would be something different from clarification of ambiguity.”

As will already be apparent, I agree.

Issue (3): did the Commission act in breach of its duty of equality?

[21]The classic statement of the duty of the public authority in regard to equal treatment is at paragraph 27 of the Court of Justice’s judgment in Fabricom SA v Belgium (Joined Cases C-21/03 and C-34/03):

“… it is settled case-law that the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Case C-434/02 Arnold André [2004] ECR I-0000, paragraph 68 and the case-law cited there, and Case C-210/03 Swedish Match [2004] ECR I-0000, paragraph 70 and the case-law cited there).”

[22]As mentioned above, since Blake J gave judgment, the Commission has made extensive additional disclosure. Before us, Mr Paxi-Cato did not criticise the judge’s findings on the disclosure that had been made before he gave judgment on which the Appellant then relied. I do not therefore propose to do more, so far as that is concerned, than to express my agreement with the judge’s conclusion and his reasons.

[23]In my judgment, in order to succeed on this issue, the Appellant must first point to one or more instances in which an applicant whose application was as fundamentally flawed as were hers was permitted to change its application or applications and whose application or applications was or were then accepted as compliant with the tender rules. It is only if the Appellant can show that there were such instances that the question can arise whether the Commission acted in breach of its duty to treat applicants equally and consistently when it rejected the Appellant’s applications.

[24]In relation to subsequent disclosure, Mr Paxi-Cato relied on only 3 instances in which the Commission had contacted applicants. The first was that of Legal Team Ltd. It appealed the rejection of its application for a contract for the procurement areas of Buckinghamshire, Havering and Waltham Forest. The appeal decision shows that the Commission contacted it. The relevant part of the decision is as follows:

“Having reviewed the original tender response I am satisfied that the tender response completed by the Applicant was correctly refused as the Applicant failed to meet the supervisor requirements in the Essential Criteria for publicly funded legal services, as outlined in Section 7 and the annexes of the Information for Applicants document (IFA). … I note that the Applicant included the same caseworkers and supervisors as full time employees at each of the offices that it was tendering to deliver work from. The IFA expressly prohibits this action, and at paragraph 12.23 states: “Where you are tendering for Matter Starts in a particular Category across more than one Office, you must not duplicate your staff members’ capacity across multiple Offices.”

Rather than reject the tender for non-compliance with the tender rules, the LSC sought to clarify the staffing position with the Applicant, however, no clarification was received. …. I regard the ground on which the appeal is based as an attempt to amend the supervisor details and improve the tender. I do not believe that it would be appropriate to allow an appeal which could have that effect as this would be contrary to procurement law and principles. I consider that the tender rules … are clear that it is the Applicant’s responsibility to submit an accurate tender. The LSC is entitled to assess tenders on the basis of the information directly provided by the Applicant. I consider that allowing the Applicant to amend its tender response at this stage would be allowing it now to improve its tender, and in the context of a competitive tender process, it would not be fair to other Applicants.” “Where you are tendering for Matter Starts in a particular Category across more than one Office, you must not duplicate your staff members’ capacity across multiple Offices.”

[25]These facts do not assist the Appellant. The defects in the applications of Legal Team Ltd. were similar to those of the Appellant’s. True it is that the Commission contacted Legal Team Ltd., but that contact did not result in any application of that applicant succeeding. All that Mr Paxi-Cato could complain of was that the Appellant had been deprived of the opportunity to clarify her applications. However, as is apparent from the decision on the appeal of Legal Team Ltd., that applicant could not properly have been allowed to change its applications.

[26]The second application relied upon by the Appellant was that of Platt Halpern. That firm had submitted an incomplete application. When contacted for information about a caseworker named in the application, the firm stated that it had not intended to tender for a contract in the Community Care category. This case too does not assist the Appellant: no application was accepted in the Community Care category from this firm.

[27]The third application was that of Duncan Lewis & Co. In this case, clarification was sought not in relation to a number of applications for different service areas each of which named the same staff, but two members of staff having been named as working in more than one Category of Law (such as Housing or Community Care). The firm’s response showed that all but two members of staff were to work solely in Housing; two members of staff were to work half time in Housing and half time in another Category (one in Welfare Benefits and one in Community Care). The firm’s response showed that its applications had complied with the tender rules. There was no rule precluding a member of staff acting in more than one area of law. In relation to one of the defects in the Appellant’s applications, however, i.e., spreading staff among different service areas, there was an applicable express provision of the tender conditions, namely paragraph 12.23 of the IFA, cited in the appeal decision in relation to Legal Team Ltd. So this case is not comparable with the Appellant’s and also does not assist her.

[28]It follows that the Appellant has been unable to establish the first requirement of her case that the Commission acted in breach of its duty to treat her application in the same way as it had treated others.

Conclusion

[29]I do not doubt the Appellant’s altruism and belief that her services are of enormous benefit to those for whom she acts, and who could not pay her fees themselves. Sadly, she either did not consider or did not understand the tender rules relating to her applications. The Commission was entitled, and indeed bound, to reject her applications.

[30]The Commission emphasised the size of the tender exercise in which the Appellant was involved. It received some 2000 tenders in the field of Social Welfare Law. This number undoubtedly affected the question whether it would have been proportionate to require the Commission to contact every firm whose application was defective or ambiguous. However, I have decided that this application for permission to appeal must be refused without reference to the extent of the burden that might be imposed on the Commission.

Costs

[31]As I have said already, we received written submissions after the appeal hearing on the issue of costs. The Commission applied for an order that the Appellant pay its costs of the application for permission to appeal. The Appellant resisted that order, and submitted that a much more limited order should be made, if any, against her. We decided in favour of the Commission, and gave our reasons in writing to the parties at the time. What follows is the gist of those reasons.

[32]While we have every sympathy with the Appellant, we see no basis on which the Court could properly reject the Respondent’s application for costs. Her impecuniosity and the fact that her activity both as a solicitor and as a proposed foster parent may be or indeed are in the public interest does not justify depriving the Commission of the normal order. Moreover, the Appellant was clearly warned of the costs risks of pursuing her application for permission to appeal and her application for disclosure, which was liable to be very expensive indeed. The Court directed a rolled up hearing for her benefit, so that her claim could be determined as soon as possible, as she sought.

[33]It follows that the Appellant must pay the Respondent’s costs, to be assessed on the standard basis if not agreed.

[34]We point out that in so far as the Respondent gave disclosure in connection with other applications for judicial review or other appeals, the Appellant in these proceedings cannot be liable for the entirety of the costs of the disclosure. If that is the case, the costs of disclosure must be allocated equitably among the claims and appeals in which it was ordered or given. Mr Justice Morgan

[35]At the end of the argument in this case, I concluded that the proposed appeal against the decision of Blake J had no real prospect of success and that, therefore, permission to appeal should be refused. The reasons for my conclusion accorded with those now set out by Lord Justice Stanley Burnton in his judgment, with which I agree. I also agreed with him as to the order for costs, and in the reasons which he has set out on that point. Lord Justice Lloyd

[36]I too agree with Stanley Burnton LJ’s statement of the reasons for which, at the conclusion of the hearing of the application on 25 July 2012, we refused permission to appeal, and as to the order for costs and the reasons given for it.

[37]The tender exercise conducted by the Commission for work in the relevant area of law was a substantial operation, which was, no doubt, only practicable by the use of online facilities. It was subject to the legal regime as regards public procurement which is based on European legislation. Stanley Burnton LJ has set out relevant quotations from the most material decisions of the Court of Justice of the European Union in this area. These illustrate that one of the fundamental principles of the legislation is equality of treatment of tenderers. The scale of the particular operation could well be relevant in assessing whether, and if so to what extent, the actions of the contracting authority in a given case are reasonable, proportionate and otherwise compliant with the rules laid down. That said, I agree specifically with Stanley Burnton LJ that it is not necessary, in order to decide the present application, to take account of the size and scale of the Commission’s tendering exercise.

[38]Mrs Hossack obtained permission to apply for judicial review from the Court of Appeal, it having been refused in the Administrative Court; she was refused judicial review on the substantive hearing by Blake J. For the reasons given, despite the additional material produced on disclosure by the Commission, it seems to me that Blake J was right, and that there was no reasonable argument to the effect either that he was wrong, or that his decision should be seen as wrong in the light of additional material. It follows that permission to appeal should be refused.