Court of Session rejects time-bar argument


On 11 July, Lord Woolman handed down a judgment rejecting Scottish Ministers' arguments that a claim made against them for breach of the EU procurement rules was time-barred. While the claim was brought under the pre-2012 legislation, the judgment addresses the critical question as to when a claimant can be deemed to have sufficient 'knowledge' to start time running on a procurement challenge.


The case concerns a dispute between Nationwide Gritting Services Limited (NGS) and Transport Scotland (TS), an agency of the Scottish Ministers.

Over the course of 2010 and 2011 a sales agent for NGS, a Southampton based company, contacted TS to try and secure business. NGS later became aware that TS had purchased and was storing supplies of de-icing salt and they emailed TS in April 2012 requesting details of any published tender process. NGS followed this up with a reminder later that month, and a formal request for information under FOISA. On 30 May 2012, TS responded explaining that it had purchased quantities of salt between 2009 and 2011 and that a derogation from the Public Contracts (Scotland) Regulations 2006 (the Regulations) was granted to allow the procurement to proceed immediately given the extreme urgency of the situation.

Not satisfied with that response, NGS served a summons on TS on 28 August 2012, seeking orders for declarator that the Scottish Ministers had breached the Regulations and for an award of £980,000 in damages.

Preliminary issue on time-bar

The matter came before Lord Woolman for debate on a preliminary issue of time-bar. The Scottish Ministers sought to have the claim time-barred on the grounds that NGS had the grounds to bring proceedings over three months prior to date it had served proceedings (the relevant period being three months, as opposed to the current 30 days under the 2012 legislation).


Lord Woolman considered the legal tests on time-bar in the English cases of Sita and Mermec and seems to have placed particular weight on Justice Aitkenhead's judgment in the Mermec case that what is needed is 'knowledge of the basic facts which would lead to a reasonable belief that there is a claim' (at paras. 11).

Applying this test to the facts presented to him, Lord Woolman concluded that three circumstances informed the correct answer:

(i) there was no business relationship between NGS and TS and it would have been relatively straightforward for TS to have explained over the course of 2010 and 2011 that it had purchased de-icing salt from elsewhere;
(ii) TS could have acquired the salt in accordance with the Regulations, for example, under an existing contract. There was no reason for NGS to assume that TS had acted in breach of the Regulations; and
TS had failed to publish a contract award notice, and had thereby 'subverted the transparency envisaged by the legislation'. Lord Woolman considered this failure to be 'a significant one'.

Lord Woolman concluded that NGS had 'no hard informationit was only on 30 May 2012 that, in my view, the increasing suspicion on the part of NGS ripened into hard knowledge' until it received the response from TS to its FOISA request: '' (para. 28). Accordingly, the proceedings were not time-barred.


Time-bar is a critical issue in procurement challenges, especially since the reduction from 3 months to 30 days and Lord Woolman's requirement for 'hard knowledge' may assist those looking to bring claims.

For claimants, the case also highlights the interplay between the procurement rules and freedom of information legislation, there often being a risk that information provided in response to formal requests may not assist a claimant if time is already deemed to be running on a particular ground of claim that the information serves to support.

For authorities relying on exemptions from the requirements to conduct a full tender exercise, the judgment highlights the importance of publishing a contract award notice.

Finally, it is worth noting that this case is rather an unusual one in that it involves a damages claim brought by a claimant that had not participated in any formal procurement process. If a breach of the Regulations is established it will raise interesting (and difficult) questions as to causation and loss, in terms of NGS's entitlement to damages.