Equal treatment – Legal Services Commission – Legitimate expectation – Tender period

Azam & Co Solicitors v Legal Services Commission (2010) CA (Civ Div) (Lords Justices Pill, Rimer, Sullivan): 10 September 2010

The appellant firm of solicitors (S) appealed against a decision ([2010] EWHC 960 (Ch)) refusing its claim that the respondent commission had breached its duties in respect of the tendering process for publicly funded immigration work. S had supplied publicly funded immigration work for six years under a series of civil contracts with the commission.

In November 2009, the commission published an invitation to tender for immigration contracts for 2010. The deadline for submission of tenders was given in a press release on the commission's website and in an advertisement in the Law Society’s Gazette. The commission also wrote to all existing suppliers indicating that if they wished to continue publicly funded work after the end of the current contracts a tender had to be submitted by the applicable deadline, and that full information about the tender process was on its website.

S submitted its tender seven days late, and the commission refused its request for an extension of time. The judge rejected S’s claim for relief. S argued that (1) the commission was in breach of duty by failing to give S direct notification of the deadline, and as a result of the history of their existing relationship S had a legitimate expectation that it would be expressly notified of the deadline; (2) the commission had failed to exercise its discretion to allow an extension of time and had failed to have regard to the proportionality of refusing an extention when the tender was submitted so soon after the deadline.

Held: (1) The letter sent to all existing suppliers was plain: it informed suppliers that a tender had to be submitted and where the details of the tender process could be found. That was sufficient notification allowing for the previous relationship. S had no legitimate expectation that further information would be given to them.

(2) The commission had not denied that it had a power to waive the deadline if the effect would have been disproportionate, and it had considered S's request. The decision to refuse an extension had not been disproportionate, JB Leadbitter & Co Ltd v Devon CC [2009] EWHC 930 (Ch), 124 Con LR 135 applied.

Deadlines were a necessary part of the tender process, the deadline had been plainly stated in readily accessible documents, there was no fault of the commission, the commission was aware of its duty to treat tenderees equally and to avoid favouritism and S’s failure to take action after receipt of the letter could not be attributed to any factor out of S’s control. There had been no error of law in the commission's approach or decision. S were not in any worse position than other potential tenderees by the deadline not being mentioned in the letter.

Appeal dismissed.

Michael Bowsher QC, Abdurahman Jafar for the appellant; Paul Nicholls for the respondent.