A practical guide to public procurement challenges under the Procurement Act 2023 - Flipbook - Page 8
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Hogan Lovells
Beyond the early stages
of the proceedings
Timetable
A timetable to trial may be set at the first case
management conference. In summary, the key
stages to trial are: pleadings, disclosure, exchange of
witness statements and the trial itself. It is common
practice in procurement claims for the court to
provide for a trial on liability first, with a trial on
the assessment of damages to follow if required.
A normal timetable to trial may be in the order
of 12 to 18 months. If the automatic suspension is
maintained, an expedited trial may be ordered,
which could involve a timetable leading to trial in,
say, three to six months.
Pleadings
The contracting authority must serve a defence
within 28 days after receipt of the particulars of
claim, to which the challenger responds with a
reply 21 days later. Often the contracting authority
may wish to have set out its position in a defence in
advance of the application to lift, although this is not
strictly necessary.
Please see our separate note on “Disclosure in Civil
Proceedings” for further information about the
disclosure process.
Witness statements
The practice in the TCC is for factual evidence to be
provided in advance of trial in the form of written
witness statements. Normally reply statements are
also prepared. Anyone providing a witness statement
may be cross-examined at trial, and witnesses will
therefore need to be available on the dates of the
trial.
Expert evidence is permitted only rarely in
procurement cases. If it appears likely that expert
evidence will be required, approval should be sought
from the court.
Trial
The length of the trial will depend upon the
complexity of the issues involved and the number
of witnesses. A trial is likely to last several days. It
is an intensive period for clients and legal teams,
and therefore an expensive part of the proceedings.
However, the costs are often avoided as a result of
cases settling.
Settlement
Amendments to pleadings are frequently required as
a result of disclosure of additional information and
documents to the challenger. The challenger must
consider documents provided by the contracting
authority and put forward any amendments required
to the pleadings quickly, because of the 30 day
limitation period. Care is required in managing the
time limits, particularly where disclosure is provided
in different tranches.
In practice, most procurement challenges settle
before trial. Either party may propose without
prejudice discussions at any time. Often an
independent facilitator, or mediator, may be engaged
by the parties to help them explore options and
encourage settlement. It may be appropriate to
include sufficient time in the timetable to trial to
allow mediation to take place, or even to programme
for mediation explicitly.
Disclosure
Another means of promoting settlement is the use of
the formal process under the court rules for making
without prejudice offers referred to as “Part 36
offers”. Part 36 offers may be made by defendant or
claimant. If a party refuses to accept a Part 36 offer
and subsequently fails to do as well as the offer at
trial, adverse cost consequences follow. Part 36 offers
therefore create some incentive for the recipient to
accept, or to negotiate.
The parties are each required to disclose documents
to the other with reference to the matters set out in
the pleadings. The extent of disclosure will be subject
to agreement of the parties or order of the court.
Disclosure is a significant exercise and needs careful
consideration well before the disclosure deadline,
including as to the custodians whose documents
(including emails) will be collated, how documents
will be collated, and the search terms or other search
methods to be used.
