Siemens Mobility Ltd v High Speed Two (Hs2) Ltd [2022] EWHC 2451 (TCC)

Background

On 15^th August 2022, the Claimant, Siemens Mobility Ltd (“Siemens”), issued a claim against the Defendant, High Speed Two (HS2) Ltd (“HS2”), in relation to its procurement process. The successful tenderer was a joint venture, one party of which was Bombardier.

Siemens’ claim was twofold. First, it contended the Defendant was in breach of regulation 42 of The Utilities Contracts Regulations 2016 (the “2016 Regulations”). This alleged conflict of interest breach was in relation to the involvement of individuals in the procurement process who, as former employees of Bombardier, benefitted from Bombardier’s pension scheme. Second, Siemens contended that the Defendant had breached the Tender Opening Evaluation Procedure (“the TOEP”) by failing to appropriately record concerns expressed by an employee.

This judgment related to the Defendant’s application to strike out the claim under regulation 107(2) of the 2016 Regulations which stipulates that proceedings must be commenced within 30 days from when an economic operator knew or ought to have known that grounds for starting the proceedings had arisen.

Issue One: Breach of Regulation 42 of the 2016 Regulations

In October 2021, the Claimant had requested a specific Conflict of Interest Declaration (COID) together with all other conflict of interest documentation. The Defendant provided some, but not all, relevant documentation. The Claimant relied on the Defendant’s representation and did not make further enquiries until receipt of the Defendant’s letter in August 2022.

The Defendant contended that the Claimant had actual knowledge of the conflicted interests in October 2021 because the Claimant knew that the individuals were formerly employed by Bombardier and therefore, it knew or ought to have known that they would be in receipt of a pension. However, the court disagreed.

In his leading judgment, Eyre LJ reinstated the findings of Bromcom United Computers PLC v United Learning Trust & Another [2021] and Sita UK Ltd v Great Manchester Waste Disposal Authority [2021]. It was concluded that what is required is “knowledge of the breach of the particular duty but not of all the particulars of that breach” The court was not satisfied that the Claimant had this level of knowledge in October 2021. It found that at most, the Claimant’s actual knowledge was that the former employees had a pension entitlement while working for Bombardier and that that entitlement may be continuing. The court was equally dissatisfied that the Claimant had even sufficient constructive knowledge in October 2021 because the Claimant had acted reasonably in accepting at face value the documents provided by the Defendant.

Issue Two: Breach of the TOEP

The Claimant accepted that the concerns were disclosed via WhatsApp in April 2022 but argued that it did not have the requisite knowledge to commence a claim until it received further documentation from the Defendant in July 2022. However, the court was satisfied that the WhatsApp messages did provide sufficient information and therefore, it concluded that this aspect of the claim was out of time.

Comments

This judgment highlights the vitality of prompt action upon knowledge of a potential breach and provides valuable guidance on the issue of limitation claims which are frequently the subject of procurement litigation.

This is the seventh challenge in a long-running litigation between the parties. The earlier claims have been consolidated and are the subject of 16-day trial which began on 14^th November 2022.

If you would like any further information or advice on these issues, please contact Lucy Clarke from the Litigation and Dispute Resolution team.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.