We're talking about substantial seven-figure sums for legal costs if this goes to trial
Dinah Rose QC, on behalf of the GMWDA
Heading up SITA's legal challenge on the second day of a hearing at London's High Court, Michael Bowsher QC argued that the company's claim for damages should not be subject to the three-month limitation period which the GMWDA had earlier claimed meant that it was submitted too late to proceed (see letsrecycle.com story).
He told the court that, instead of being dealt with in a similar way to a judicial review, where the three-month limit applies to claims, the case should instead be dealt with as private law proceedings, where a six year limit applies to bringing damages.
“This is a private law claim and to be looked at in according with the principles that apply with private law,” he said.
Mr Bowsher also detailed examples of case law – both at European and domestic level – and how this proved that SITA's claim should not be subject to the three-month limit, and that the courts should exercise discretion in allowing the limit to be extended in this case.
SITA maintains that it did not submit its claim for damages over the procurement of the contract until August 27 2009 – more than four months after the GMWDA formally signed the PFI deal on April 8 2009 – because it did not have the information it needed to base its claim on.
Mr Bowsher said that SITA had been both “trying to understand” whether there had been a breach of the UK's procurement regulations in the tendering process, and, if so what the “nature” of that breach was.
He explained that this was why SITA had requested to see the Best and Final Offer (BAFO) submitted by Viridor-Laing.
And, he added: “A party such as SITA is not going to make a challenge until it can show that there has been an infringement that does infringe procurement rules, that it does risk affecting the outcome of the process so that the bidder has suffered damage and therefore is the cause of action, and that it has a chance of winning substantial damages.”
Earlier in the day, the court heard from the GMWDA's lawyer Dinah Rose QC about what the potential impact of SITA's legal claim moving to a full trial could be.
Ms Rose said that there would be “very significant legal costs” in defending the case if it went to full trial, which could last up to four weeks, claiming that: “We're talking about substantial seven-figure sums for legal costs if this goes to trial.”
The case continues.