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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Luck T/a G Luck Arboricultural & Horticultural v Tower Hamlets [2003] EWCA Civ 52 (30 January 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/52.html Cite as: [2003] 2 CMLR 12, [2003] EWCA Civ 52

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HHJ MacDUFF QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		30 January 2003

Lord Justice Rix: This is the judgment of the court.

1. On 28 October 1996 Mr Gary Luck, trading as G Luck Arboricultural and Horticultural Contractor, returned to the London Borough of Tower Hamlets his application, on a form drawn up by the Borough, to be placed on a list of approved contractors to be invited to tender for a "Measured Term Contract for Arboricultural Work and Tree Maintenance". On 28 May 1997 the Borough sent Mr Luck a letter to tell him that he was not going to be invited to tender for the contract. These proceedings were commenced by Mr Luck to complain that in so acting the Borough was in breach of its obligations under the Public Services Contracts Regulations 1993, SI 1993 no 3328 (the "Regulations").
2. The Regulations implement in English law EC Council Directive 92/50/EEC (the "Directive"), the purpose of which was to open up tendering for public service contracts on a Community wide basis, in support of a single market, in a manner designed to be transparent, non-discriminatory and fair. By controlling the process, the Directive may be said to seek to improve standards of both tendering and selection. The Directive and the Regulations are part of a trilogy of directives and regulations controlling procedures for the procurement of contracts let by public contracting authorities: the other two sets of directives and regulations concern public works contracts and public supply contracts.

The factual background

3. Up to 1989 Mr Luck had worked for some twelve years as an employee of the Borough, doing the job of an arboriculturist, cutting, lopping, pruning and snedding trees. In 1989 he left the Borough's employment in order to start up his own business. At first he worked for a number of different customers, who included the Borough. He used other workers, either as direct employees or as sub-contracted self-employed. From 1992, however, Mr Luck worked almost exclusively for the Borough, which was now contracting out more of its work. Thus Mr Luck was one of four contractors employed by the Borough on an annual contract from July 1992 to June 1993. Mr Luck's turnover from that contract was over £154,000. His contract was renewed for a further two years, and then for a further two years, into 1997. The other contractors also had their contracts renewed. Connick Tree Care was one of the other contractors with a major role.
4. In 1996 the Borough decided to contract out all its tree work to a single contractor. It placed an advertisement in a publication called East End Life to say that it intended "to invite contractors selected from those who respond to this notice to tender" for a one year contract with an option for a second year. Applicants were told they "must have the skill and experience to carry out the full range of arboricultural tasks associated with tree planting, tree maintenance, tree surgery, felling, grubbing, stump removal and emergency services for storm damage and dangerous trees" on highways, housing estates, parks and open spaces and urban woodlands.
5. Mr Luck did not see the advertisement, but he was telephoned by the Borough's compulsory competitive tendering officer, Mrs Blinman, to tell him about it. As a result Mr Luck registered his interest, as the advertisement requested, and he was sent the Borough's application form. This was a lengthy document, with sections asking inter alia for information about the applicant firm and its technical resources, references for work undertaken for the Borough and elsewhere, financial information, insurance cover, health and safety. Among the questions asked was: "Does your firm have a quality assurance policy?", to which Mr Luck answered no. Another question was: "Has your firm acquired Quality Assurance registration to BS EN 150 9002 (formerly BS 5750)?", to which the answer was also no. Mr Luck gave the name of seven Borough employees as referees, including a Mr Thorogood, Mr Smith and Mr Diplock. He named no other referees, stating, "In the last four years we have worked exclusively for Tower Hamlets". In response to a question about the details of his professional indemnity insurance policy, he stated that he had none. He said that he was his firm's own health and safety officer.
6. On the same day as Mr Luck sent in his application form, 28 October 1996, Mr Smith, one of his referees, signing himself as an horticultural/arboricultural officer with the Borough, submitted a reference to the Borough on its own form. On 4 December 1996 Mr Thorogood, another horticultural officer with the Borough, did the same. Both gave satisfactory to excellent references. The forms requested the referee's assessment of Mr Luck's performance under fourteen different headings, ranging from "Quality of labour employed" to "Willingness to make good defects", as being either (1) unacceptable, (2) poor, (3) satisfactory or (4) excellent. Their responses were at the level of either (3) or (4): Mr Smith awarded 6 at the former level and 8 at the latter; Mr Thorogood respectively 12 and 2. They were also asked, "What level of client supervision has been required?" Mr Smith ringed "4. Low", the best mark; Mr Thorogood ringed "3. Moderate". Both said that they would consider employing Mr Luck for similar work in the future, and Mr Smith added, "I have found Mr Luck to be most cooperative and have no problem with his arboricultural standards". It is clear from the speed with which Mr Smith's reference was submitted and its content that Mr Smith represented, as it were, Mr Luck's best referee. Mr Thorogood came a little behind.
7. The other five referees, however, did not respond individually, but a so-called "Corporate Reference" was submitted on the same form by Mr Oscar Ford, who was a project development manager. He stated in the reference that it was written for Mr David Brand, head of the Borough's horticulture and recreation department. In his judgment below, HH Judge MacDuff QC described this reference as "on its face a damning document". It awarded 7 marks at level (2) ("poor") and 7 at (3), none at (4). The seven categories marked at (2) were "Ability to realistically programme works…Ability to maintain programme & to meet deadlines…Quality of labour employed…Co-ordination of labour and plant…Client/Contractor communications… Willingness to make good defects…Compliance with health and safety". It stated that a "high" level of client supervision had been required. "Have any serious defaults or penalties had to be submitted against the Contractor?" Mr Ford wrote: "Yes…Defaults for non-completion of works within specified time scales submitted in May 1993 and April 1996." As for employing Mr Luck in the future, Mr Ford wrote, "See attached information". On a separate typed sheet headed "Additional information", Mr Ford said that Mr Luck had given an inconsistent level of performance; concerns existed in relation to health and safety arrangements and an incident involving the spraying of pesticide resulted in spray drift settling on members of the public and contaminating food; the issuing of the defaults had resulted in "unacceptable verbal threats"; and there had been problems following "unsubstantiated payment claims". In conclusion, although Mr Luck had provided an acceptable standard of work from a technical point of view, there were inconsistencies and an "aggressive response to decreases in the workload…may indicate an unhealthy dependence on the Borough": there were "serious concerns about including this contractor on a select list for future contracts".

The judge's findings on bad faith

8. When this corporate reference emerged on discovery, it became the focus of Mr Luck's complaint against the Borough. It led to or fuelled an allegation that the Borough must have acted in bad faith and with malice. Mr Luck repudiated its contents, saying that there had never been more than one default notice served on him, and that had been a long time before; he had never been abusive, or improperly gone over the head of staff; nor had he ever made an improper application for payment. Mr Luck and Mr Ford both gave evidence at the three day trial. Mr Ford had not only compiled the corporate reference on information supplied to him by all the Borough's officers who had had experience of Mr Luck's work as a contractor including those named by Mr Luck as referees, but he was also one of the Borough's four ultimate decision makers. Mrs Blinman also gave evidence: she alerted Mr Luck to the process in the first place and, together with Mr Ford, had been one of the decision makers. The judge did not make detailed findings on all of these disputed matters, but said:

"107…In my judgment, some of that which is within there may be untrue. But what is clear is that certainly so far as Mr Ford was concerned he genuinely held the view that what was within that document was broadly, indeed probably in significant detail, correct at the time he wrote it. He had no reason to doubt that that which was being said to him by others was true.

108. It is clear that within that document there are matters which are substantially true, and which can be demonstrated to be true and against Mr Luck's interest from contemporaneous documents, for example the spray drift episode, the nature of which is fully recorded by complaints from the public admittedly a significant time earlier…going back to April 1995. Some of the matters which are contained within the corporate records happened a significant time earlier, and indeed before Mr Luck had his earlier contract renewed. That may have some relevance, as Mr Broatch has submitted, on the issue of malice.

109. Be that as it may, for the purpose of the judgment at this stage, I record that that corporate reference was written…as I find in good faith by Mr Ford and it contains matters which are in part true, and in other parts may be true and in other parts may be false. But it was there and put before those who had to make the decision."

9. The judge reverted to the question of bad faith at para 118.6, where he set out the submission on behalf of Mr Luck that bad faith was to be inferred:

"I am asked to infer that they did not act in good faith, because in effect Mr Luck had been difficult, certainly in recent times. I do not think the phrase was used, but it amounts to this: he had been something of a thorn in their side. When a default notice was served on him, one of the matters which was taken into account, certainly in the corporate reference (although incorrectly the corporate reference referred to more than one default notice), he, Mr Luck, sought to get that set aside and correspondence went on for many months, as he sought to show them how unfair the matter had been and to go to arbitration about [it]. There is no doubt that Mr Luck made numerous complaints against the defendants to various different bodies. It is said that towards the end, in effect, the defendants almost manufactured disputes with Mr Luck…

120. The corporate reference referred to matters which, as I have already said, were such ancient history that they had renewed his contract in the mean time. On this basis, I am asked to infer that the defendants must have acted maliciously towards Mr Luck because, so it is suggested, he was very good at his job and those complaints about him were both unfair and untrue…

123…Because his case relies so heavily on inferred malice or bad faith, proof that any decision was a reasonable response, or within the range of reasonable responses available to the authority, defeats the inference. I so hold. This was a reasonable response within a range of responses and made in good faith.

124. It is submitted on behalf of the claimant that the corporate reference, for example, is so set against Mr Luck that it must have been actuated in malice in one of two ways: either Mr Ford has himself deliberately, out of malice, made up or placed undue weight on information he had received, and that he has been malicious for which, acting in the course of his employment, the defendants would be vicariously responsible, and/or those who made the decision in reliance upon it were affected by the same malice.

125. Alternatively, those who gave Mr Ford that information, untrue as it was, must similarly have been actuated by an animus towards the claimant. In my judgment, on the overwhelming balance of probabilities, the claimant fails to demonstrate either by direct evidence or by inference that either of those is correct."

The proceedings

10. Mr Luck's proceedings have had a chequered history. He issued his writ on 27 August 1997, just within one day of the expiry of the three month limitation period contained in reg 32(4)(b) of the Regulations. In the meantime the contract had been let by the Borough on 27 June 1997 to Connick Tree Care, so that by the time of the issue of proceedings Mr Luck's only possible remedy could have been in damages. His original statement of claim was in due course completely superseded by an amended statement of claim dated 28 September 2000. Long before that, however, pursuant to an order of Master Hodgson dated 27 February 1998, the proceedings had been transferred to the Divisional Court apparently for it to consider whether they should proceed as an application for judicial review and therefore require leave. As a result Mr Luck did in fact issue an application for judicial review, which came before Richards J on 30 October 1998.
11. Richards J refused to grant leave and rejected the application. It would seem that at that time Mr Luck's application was essentially based on an alleged breach of reg 21, which requires a contracting authority to award a public services contract to the tenderer who offers the lowest price unless the authority had previously stated the criteria for awarding the contract on the alternative permitted basis of the "offer which is the most economically advantageous". Mr Luck claimed that the Borough had failed to state any such criteria and that it was therefore bound to have awarded the contract to him as the lowest price tenderer. Richards J rejected that claim as hopeless, since reg 21 only applies to an award between rival tenderers who have reached the stage of being invited to bid. Mr Luck, on the other hand, had been eliminated at a pre-tender stage and had not been selected to go forward to the invitation to bid stage. The second ground put forward by Mr Luck at that time was that the Borough had failed in its duty to act fairly with regard to the tendering process, apparently on the basis that Mr Luck's previous contracts with the Borough gave him some kind of vested right with regard to the future. That was also rejected by the judge as hopeless. Neither of those two grounds survive to the present appeal. There is no sign at any rate from Richard J's judgment that Mr Luck had any claim at that stage that the Borough had acted in bad faith.
12. Richards J also rejected Mr Luck's application for leave to bring judicial review proceedings for two other reasons, on issues which remain alive on this appeal. The first was whether Mr Luck could bring himself within the conditions precedent set out in reg 32(4) for bringing proceedings for breach of the Regulations. The second was whether the public service contract concerned was within a category of services, viz "property management services", which would entail the full panoply of the Regulations' protection.
13. However, Mr Luck appealed against Richards J's refusal of leave, and his appeal was heard on 2 March 1999 by a division of this court presided over by Simon Brown LJ. His appeal was allowed on the basis that his claim properly understood was not one for judicial review at all and therefore did not require leave. For the first time, as presented to that court, Mr Luck's claim was understood to be based essentially, at least in part, on bad faith. As Simon Brown LJ said: "He says, in effect, that the decision against him was manifestly insupportable, and, indeed, that it was taken in bad faith" (at 2F). It was also confirmed in the course of that hearing that Mr Luck's complaint, in as much as it was tied down to a breach of the express terms of any of the Regulations, was indeed wrong to focus on reg 21 and should rather be analysed in terms of reg 11(8), which by reference to regs 15 and 16 indeed permitted a contracting authority to exclude a contractor from being eligible to be considered as one of a number of tenderers invited to bid. Simon Brown LJ said (at 9D/E):

"I repeat, the true complaint raised here is not that the scheme (in effect for eliminating certain tenderers by having a preliminary stage in the evaluation process) is unlawful; rather it is that this particular contractor, by virtue of his long and substantially successful association with the council, could not legitimately and in good faith have been excluded at that stage."

14. Simon Brown LJ therefore considered that Mr Luck's case would have to be considered afresh, with the aid, to revert to the original form of these proceedings, of the disclosure available in an ordinary action for damages by way of writ. As Simon Brown said (at 9F/10A):

"Were this matter to proceed by judicial review, it seems to me clear that, on the material before the court, Richards J was absolutely right in saying that the respondents' decision could not possibly have been impugned as irrational. There was no sufficient material to suggest that it was other than a reasonable decision taken in good faith…On discovery one will be in a position, as this court is not, to consider whether the critical letter of 21 June 1997 is (as the applicant maintains) a pure lie, or whether (as of course the council assert) it is based upon a substantial and honest evaluation process)."

15. As for the two more technical grounds upon which Richards J had also refused Mr Luck's application, those relating to the conditions precedent in reg 32(4) and to the scope of "property management services", this court held them to be not unarguable "and therefore any future court will not be bound by Richard J's conclusion" on the points.
16. Some 18 months following that decision by this court, Mr Luck as stated above replaced his statement of claim by a new amended statement of claim dated 28 September 2000. Disclosure had still not taken place. He continued to rely on a breach of reg 21, but added a complaint of breach under reg 11(8), alleging that the Borough had failed to publish "the minimum standards of economic and financial standing, ability and technical capacity which they require of service providers" (para 16) and could exclude a service provider under reg 11(8) only if the service provider had failed to satisfy minimum standards as so published. No particulars were given of what minimum standards the Borough had applied but had not published, but it was alleged that Mr Luck did in fact satisfy minimum standards which would be required "by any reasonable authority". As for bad faith, Mr Luck pleaded that an authority acting under reg 11(8) is bound to act in good faith and that the Borough had failed to do so in excluding him from tendering. The only particulars of bad faith which Mr Luck gave were that by virtue of his long and successful association with the Borough as a service contractor and the fact that, if he had got as far as tender, his would or might have been expected to have been the lowest price bid, as well as because the Borough knew or ought reasonably to have known that he did comply with any minimum standards that could reasonably have been required of him, he could not legitimately and in good faith have been excluded at the pre-tender evaluation stage.
17. Mr Luck also added a new claim wholly outside the Regulations, for damages for misfeasance in public office, alleging malice and bad faith by the Borough and its unnamed officers: either malice and bad faith aimed at Mr Luck directly with the intent of injuring him, or so-called "untargeted malice" ie acting with the knowledge of or reckless indifference to the illegality of its act and with the knowledge of or reckless indifference to the probability of causing loss (see Three Rivers District Council v. Bank of England (No 3)[2000] 2 WLR 1220).
18. At that time, as we understand it, the corporate reference had not yet come forward on discovery. When it did, Mr Luck's pleadings did not change. Nor did Mr Luck identify anyone in the employ of the Borough who he alleged was activated by bad faith or malice. At trial and again on this appeal the corporate reference has become the exclusive focus of Mr Luck's complaint of bad faith and malice. As the judge was to say in his judgment after trial, it was a case of inferred bad faith. On this appeal, it is no longer alleged that Mr Ford or the actual decision makers were activated by bad faith or malice. The sole allegation is that those officers who supplied Mr Ford with the information on the basis of which he compiled his corporate reference, or at least some of them such as Mr Diplock, were in bad faith and malicious.

The Borough's pre-tender evaluation process

19. Discovery and further information requested of the Borough have also cast further light on the Borough's pre-tender evaluation and elimination process. There were no pre-determined "minimum standards" as at the time of the Borough's advertisement, but a set of criteria had been developed at any rate by March 1997 when a document of that date headed "Vetting Contractors for Agricultural Work & Tree Maintenance Contract" was drawn up. Its opening paragraph read as follows:

"Under its fiduciary responsibilities and Standing Orders, the Council has to ascertain the financial, qualitative and technical capabilities of tenderers who may wish to carry out its work under competitive tendering. This assessment must be objective and reasonable and be capable of producing a short-list of contractors which is deemed to be technically, qualitatively and financially sound."

20. A "model" for appraisal was then set out, based on the headings of the application form (also called the "questionnaire"), and taking in "financial appraisal" (bankers references, company accounts and company searches), "technical appraisal" (inter alia credibility of management, service delivery record and references, competence and capacity, stability and quality) and "guarantees" (inter alia insurance cover and quality assurance). Each of these items was then commented on in detail. Certain matters were described as "essential". Under the heading of financial appraisal, it was made clear that a qualified external credit rating agency would be requested to report on each applicant. It would also be essential to consider the turnover of each applicant in relation to the contract value ("to discourage over-trading and to minimise the risk of mid-contract liquidation or other defaults"). Under technical appraisal the following matters were highlighted as essential: acceptable working references and/or past performance record; trained and qualified contract manager, supervisor and operatives; demonstrated awareness and compliance with health and safety policy and a qualified safety representative. Under guarantees, nothing was stated as necessarily essential, but, dependent on the other appraisals, there might well be a need to insist on financial guarantees and/or performance bonds.
21. On the basis of that document a list of some 28 "Pre-Tender Evaluation Matrix Questions" was developed. At trial these were accepted by Mr Luck as being entirely appropriate to the evaluation process. Each applicant was then scored either A, B or C on each question. A was "totally acceptable", B was "may adversely affect the service" and C was "unacceptable". Connick Tree Care scored A on every question. Some other applicants who moved on to the invitation to bid stage did almost as well. However, Mr Luck scored 15 As, 7 Bs but also 6 Cs. He was one of eight applicants who failed at this pre-tender stage. Only six applicants moved on to the invitation to bid stage.
22. The matrix questions on which Mr Luck scored C were as follows:

Give an assessment of the past performance of the firm based on personal knowledge or experience.

Has the firm any record of past failure to perform?

Is the current management structure adequate?

Is there evidence of company stability?

Are the firm's proposals for quality control adequate?

Is the firm financially capable of operating a contract of this size?

23. The stated source for answering these questions in the case of the first two included the corporate reference; but in the cases of the other four did not, where the document instead referred to identified questions in the application form, save for the last, which depended on the independent financial report.
24. We have set out these facts in some detail, because at the end of the day Mr Luck's claim does not stand or fall on his submissions as to the niceties of the points of construction which arise on the Regulations, many of which, and especially those relating to reg 32(4) and the meaning of "property management services" are of a rather technical or at any rate legal-technical nature. If on the other hand there was indeed bad faith or malice on the part of the Borough or those for whom the Borough was responsible for the purpose of the cause of action of misfeasance in public office, then all those niceties are by the way. Nevertheless, it is to those more technical questions that logically it is necessary to proceed first, and not only logically, for Mr Broatch's submissions on behalf of Mr Luck have largely turned on them.

Regulation 32

25. Reg 32 falls under Part VII of the Regulations headed "Applications to the Court". Reg 32(1) states that, with certain irrelevant exceptions, "The obligation on a contracting authority to comply with the provisions of these Regulations…is a duty owed to services providers"; and reg 32(2) states that a breach of that reg 32(1) duty "shall be actionable by any services provider who, in consequence, suffers, or risks suffering, loss or damage". Reg 32(4) then sets out two conditions precedent for bringing proceedings, (a) and (b):

"(4) Proceedings under this regulation may not be brought unless –

(a) the services provider bringing the proceedings has informed the contracting authority of the breach or apprehended breach of the duty owed to him pursuant to paragraph (1) above by the contracting authority and of his intention to bring proceedings under this regulation in respect of it, and

(b) they are brought promptly and in any event within 3 months from the date when grounds for the bringing of the proceedings first arose unless the Court considers that there is good reason for extending the period within which proceedings may be brought."

26. Richards J thought that Mr Luck had failed on both paragraphs of reg 32(4). As to para (b) Richards J said that although Mr Luck's writ had been served just within three months, it had not been brought "promptly"; but Judge MacDuff QC acquitted Mr Luck of that failure and there is no cross-appeal. However, as to para (a) Judge MacDuff agreed with Richards J that on the pre-writ correspondence there had been no so-called letter before action and that therefore Mr Luck had lost any right to make any claim under the Regulations. The first issue on this appeal is therefore whether that is right; but in considering that issue it is necessary to have both paragraphs of reg 32(4) in mind.
27. The pre-writ correspondence is essentially as follows. On 21 July 1997 Mr Luck's solicitors wrote to the Borough to say:

"We have cause to believe that the Council's decision to exclude our client from the tender process was unlawful and we have been instructed to issue proceedings in this regard.

However, before we do so, we invite the council to produce all documentation in support of their decision…"

28. On 25 July 1997 the Borough replied, to say inter alia that –

"First, I fail to understand your use of the word "unlawful" as the actions of the Council in the pre-tender evaluation of interested parties are always guided by its own Financial Regulations and Standing Orders and agreed standard practices approved by the Counsel's own Audit Service and the District Auditor. There is no possibility of legislation being breached in this or any other case."

29. On 28 July 1997 Mr Luck's solicitors wrote in reply –

"In the light of your refusal to provide copies of the documentation requested, we have now been instructed to issue proceedings."

30. It may be observed that neither of the solicitors' letters refers to the Regulations at all, neither expressly nor implicitly. Mr Broatch submits that the Borough's letter referring to "legislation" shows that it was aware of the Regulations as the only possible legislation invoked, and that in such circumstances it was sufficient that Mr Luck had written what could be described as a "letter before action". He submits that Simon Brown LJ, when he glossed the reg 32(4)(a) requirement as "the need for the equivalent of a letter before action" (at 11A), was saying that that was all that was necessary: and that the judge below was wrong to reason that the regulation

"provides specifically that the contracting authority has to be informed of the breach, or the perceived or apprehended breach, and has to be informed of the intention to bring proceedings "under this regulation in respect of it"" (at para 48).

31. We agree however with the judge. It is what reg 32(4)(a) says. There is an identical provision in reg 31(5)(a) of the Public Works Contracts Regulations 1991. In R v. Portsmouth City Council (ex parte Coles) [1997] 1 CMLR 1135 (CA) Keene J at first instance had held that reg 31(5)(a) had required Colwick to identify to Portsmouth the specific breach of duty which it was alleging and had failed to do so: its claim was therefore barred. On appeal Colwick succeeded, but only because this court analysed another breach to be the relevant one, a breach which Keene J had accepted and Portsmouth conceded had been sufficiently identified in the correspondence. In Keymed (Medical and Industrial Equipment) v. Forest Healthcare NHS Trust [1998] EuLR 71 Langley J held that it is not necessary to refer to specific breaches where it is alleged that the procuring entity has completely failed to comply with the relevant regulations, but there had at least been a reference to such regulations as a whole in that case.
32. In the present case the solicitors' letters identified neither the regulation in question ("this regulation", ie reg 32 of the 1993 Regulations), nor "the breach or apprehended breach of the duty owed to him". Therefore, subject to the next issue, any claim under the Regulations is barred.

Is regulation 32(4)(a) valid under European Community law?

33. Mr Broatch had a second string to his bow where reg 32(4)(a) is concerned. There is no similar provision in the Directive. He submitted that reg 32(4)(a) is therefore invalid under the principles of European Community law that domestic procedural rules for claims concerning breaches of Community law must be no less favourable than those governing comparable domestic causes of action (the requirement of "equivalence and non-discrimination": see Rewe v. Landwirtschaftskammer für das Saarland [1976] ECR 1989 (at para 5), Comet v. Productschap voor Siergewassen [1976] ECR 2043 (at paras 12/16) and must not render the exercise of Community law rights virtually impossible or excessively difficult (the requirement of "effectiveness": see Amminstrazione delle Finanze Stato v. SpA San Giorgio [1983] ECR 3595 (at para 14). He submitted that reg 32(4)(a) was inconsistent with both those principles: as to equivalence and non-discrimination, because there was no similar bar requiring a letter before action in respect of other domestic causes of action such as the comparable claim for misfeasance in public office; and as to effectiveness, because a would-be claimant under the Regulations may be unable to identify the correct, or know of any, cause of action within the time limited under para (b) or until after discovery, as in this case it was only discovery which revealed the corporate reference.
34. In this connection Mr Broatch also invoked the Human Rights Act 1998, submitting that reg 32(4)(a) creates an unjustifiable, because disproportionately restrictive, bar to access to the courts in breach of article 6(1) of the European Convention of Human Rights and Fundamental Freedoms.
35. In support of these submissions Mr Broatch pointed out that in all other cases in domestic law a letter before action might affect costs but was not a condition precedent to bringing proceedings. Moreover, whereas the requirements of para (a) might have some usefulness where the contract in question had still to be let, in the present case where the contract had been awarded before proceedings were commenced they could achieve nothing. And where there was no prohibition on commencing proceedings for a specified period after serving the required notice on a contracting authority, with the result that the notice could be served almost immediately before the commencement of proceedings, there was in any event no rationality in what was a purely formal bar on access to the courts.
36. This was a powerful argument, but there were equally powerful counterweights. First, a similar argument had been rejected by this court in respect of para (b) in Matra Communications SAS v. Home Office [1999] 1 WLR 1646. Buxton LJ, giving the leading judgment, cited Palmasani v. Istituto Nationale della Previdenza Sociale (Case C-261/95) [1997] ECR I-4025 and said (at 1658H/1659D):

"Two principles can be drawn from this part of the judgment. First, the principle of "equivalence" really does mean what it says. The domestic court, in applying the principle, must look not merely for a domestic action that is similar to the claim asserting Community rights, but for one that is in juristic structure very close to the Community claim. It does that, in the words of the Court of Justice in Levez v. T.H.Jennings (Harlow Pools) Ltd (Case C-326/96) [1999] ICR 521, 545, para 43, by considering "the purpose and the essential characteristics of allegedly domestic actions."…Second,…if there is no action in the domestic system that fulfils the requirements set out above, then the national system is at liberty (subject always to the further principle of effectiveness) to set whatever limitation period seems best to it for the claim in relation to Community rights."

37. Buxton LJ then rejected "breach of statutory duty" with its (usually) six year limitation period as a comparator, on the basis that it is simply too wide a category to meet the Palmasami requirements of equivalence (at 1659G); and he likewise rejected all other suggested comparators, such as judicial review and sections 17 and 19 of the Local Government Act 1988, concluding that there is no comparator for the claim under the Regulations (at 1662D). He then turned to the principle of effectiveness, describing it as a very limited criterion (at 1662F): the only argument advanced for applying it was that the time limit could expire long before the right accrued upon the suffering of quantifiable damages. However, this argument was rejected on the basis that it was an error to suppose that damage was not suffered until damages were quantifiable or potentially quantifiable.
38. In our judgment there is no reason why the logic of Matra does not apply, at any rate so far as concerns the principle of equivalence, equally to para (a), albeit it was only para (b) that was in issue in that case. Mr Broatch nevertheless submitted that misfeasance in public office was a candidate for a comparator not considered in Matra. It seems to us, however, that that cause of action is no comparator at all. The essence of misfeasance in public office is malice or the conscious or reckless flouting of law by those holding public office. That, however, is not the essence of the Regulations, which, even if they may be broken in bad faith, a question discussed below, rather set out a code of strict liability requiring transparency and equality of treatment. It follows that, without any comparator in domestic law, there can be no objection to a letter before action being a condition precedent of access to the courts. That leaves only the principle of effectiveness to be considered.
39. Secondly, as to the principle of effectiveness, just as it was held in Matra the requirement of para (b) that proceedings be brought promptly and in any event within three months did not make the exercise of the right "virtually impossible or excessively difficult", being a requirement that applies to every application for judicial review, so it seems to us that the requirements of para (a) do not fall foul of the principle either. Provided the notice is given before proceedings are commenced, the proceedings are effective. As for the requirement to cite regulation 32 itself, that is easily accomplished if the complaint is of unfair treatment in the procurement process of letting public contracts. The only difficulty is the element of specificity introduced by the need to identify "the breach or apprehended breach of the duty owed". Where the breach is "apprehended" there would appear to be little difficulty. Where a breach is merely suspected as having occurred, there may be more difficulty, but if the claimant is really prejudiced by that difficulty, he is always entitled to say that "there is good reason for extending the period within which proceedings may be brought" (para (b)): and thus he can effectively gain more than three months for serving the notice, or if necessary an additional notice, required as a condition precedent for commencing proceedings. In any event, in case of uncertainty he can put his complaint in the alternative.
40. Thirdly, in this connection the argument that it may take discovery to show the claimant exactly where his rights have been infringed is undermined not only by the expedient in case of need of extending time for the commencement of proceedings but also by the provisions of reg 23(1), which states –

"A contracting authority shall, within 15 days of the date on which it receives a written request from any services provider who was unsuccessful (whether pursuant to regulation 11(8), 12(4), 12(5), 13(7), 13(8) or 21), inform that services provider of the reasons why he was unsuccessful and, if the services provider was unsuccessful as a result of the evaluation of offers made in accordance with regulation 21, the name of the person awarded the public services contract."

41. So in this case the Borough wrote to Mr Luck a letter dated 21 June 1997 explaining in detail why he had been unsuccessful in going through to the invitation to bid stage. Mr Luck described that letter to this court on his appeal from the judgment of Richards J as a "lie": Simon Brown LJ said that the issue (which would be illuminated by discovery) was whether, as Mr Luck maintained, the letter was a pure lie or whether (as the Borough asserted) it was based on a substantial and honest evaluation process (see para 14 above). That letter is not in the papers before the court nor is it mentioned in the judgment of Judge MacDuff: but its essence can be read in the judgment of Simon Brown LJ (at 7H/8D). In due course discovery provided the documentary background to that letter in the form of the Borough's pre-tender evaluation process documents (described above) and the corporate reference. It seems to us that in as much as Mr Luck's real case was that that letter was a lie (or, as was said at trial, that the corporate reference was written in bad faith and in malice), Mr Luck knew enough to say what his case, at any rate in outline, was by the time he received that letter in June 1997.
42. Fourthly, in as much as it is said on behalf of Mr Luck that para (a) lacks rationality or is a disproportionate restriction on access to justice, in breach of the ECHR, we disagree. The reason for para (a) is obviously twofold. First, to put the contracting authority on notice of the complaint even before any proceedings are commenced, at a time when it may still be possible not only to avoid litigation but actually to remedy the default. That is why it is necessary to draw attention to the duty in reg 32(1) and to the particular breach complained of: so that the contracting authority can take action straightway to remedy the situation if the complaint is recognised as valid. And secondly, to show the seriousness of the complainant. A merely generalised complaint, unless one is justified on the facts because of a complete failure to put in hand the procurement regime mandated by the Regulations, is inadequate because it is apt to demonstrate that the complainant is not serious about his complaint but may merely be trying to muddy the waters in order to put pressure on the contracting authority or on his commercial rivals. As for Mr Broatch's submission that the absence of any separate time regime within para (a) shows that its requirements are simply an empty formality: the answer to our mind is that, subject always to the power to extend time for good reason within para (b) which we regard as an important safeguard, the time regime within para (a) is set by the para (b) requirement that proceedings be brought not only within three months but also "promptly". In a sense, therefore, the para (a) notice must be sent as it were "pre-promptly", in other words as soon as possible: or rather, what amounts to "promptly" under para (b) will reflect the possibilities under para (a).
43. For all these reasons therefore we would hold that para (a) is a valid provision both under Community law and under the ECHR, and that in the absence of a proper notice fulfilling its requirements Mr Luck can have no claim under or for breach of the Regulations. It follows that all that follows, save for what is said with respect to the separate cause of action in misfeasance in public office, is unnecessary to the decision of this court.

"Property management services"

44. Judge MacDuff held that Mr Luck also failed on the technical threshold issue of whether the contract in question was in any event covered by the provisions of the Regulations relied on, which would only be the case if it was a contract for "property management services".
45. The position in this respect is governed by reg 5, headed "Application of the Regulations". This in essence provides that only "Part A" services contracts are governed by the full panoply of the Regulations, whereas "Part B" contracts are governed only by a much more limited regime (regs 8, 22, 27(2), 28 and 29) about which Mr Luck has never made any complaint. Parts A and B are to be found under Schedule 1 to the Regulations. This Schedule is headed "Categories of Services" and is based on a categorisation system (developed by the Department of International Economic and Social Affairs of the United Nations) called "Central Product Classification" ("CPC"). Thus Parts A and B refer to lists of services classified into 27 numbered categories against each of which is listed a CPC reference. A footnote to the Schedule expressly states "CPC stands for the Central Product Classification of the United Nations" and we regard the relevant parts of that Classification as being effectively incorporated into the Regulations. The last numbered category, no 27, is described as "Other services" and is the only one to lack a CPC reference. It falls within Part B. There is no internal logic to either Part A or Part B services to assist with the construction of individual categories.
46. The only Part A category of services upon which Mr Luck now relies is "property management services" which falls within numbered category 14, described as "Building-cleaning services and property management services" with a CPC reference of 874 and 82201 to 82206. CPC 874 is "Building-cleaning services" and includes, for instance, window cleaning and janitorial services. CPC 82201 to 82206 covers the whole of CPC 822 (or 8220) which is headed "Real estate services on a fee or contract basis". CPC 82202 is the only sub-category which could avail Mr Luck: it is described as "Non-residential property management services on a fee or contract basis". It is further defined in CPC as follows:

"Management including renting, leasing or appraising services of industrial and commercial properties: theatres, multiple use buildings which are primarily non-residential on a fee or contract basis. Management services concerning agricultural, forest and other similar properties on a fee or contract basis are included."

47. Judge MacDuff agreed with the view of Richards J that the Borough's contract services in question would not fall within the CPC description as property management services. He gave two reasons. The first was that these were not management services. He said:

"I have been asked to look at the contract…I have looked at it in some detail. What Mr Luck wished to tender for was to provide works of labour involving undoubted skill, but he would be told where and when to go. The management of these works, as it seems to me, was being undertaken not by Mr Luck and his men, but by the defendants themselves."

48. The second was that the services did not in any event concern "agricultural, forest or similar properties" but trees, on the sides of streets, in school playgrounds and housing estates.
49. Our view has fluctuated about this issue, but in the end we do not think that this court is entitled on such a question to differ from the finding of the trial judge without determining some substantial error in his approach, and we can discern none. The structure of Schedule 1 is that if the services to be contracted for do not fall within any of the categories described under Parts A and B, then they fall under category no 27 as "Other services" and thus fall under Part B. In such circumstances we think that a claimant who wishes to say that the Regulations apply in their full rigour to his claim bears the burden of proof or persuasion of bringing himself clearly or substantially within a Part A category. This Mr Luck has failed to do. We agree on balance that the concentration of the relevant CPC heading on management, set against the distribution of discretion under the Borough's contract found by the judge at trial, is not apt to cover the contract's services. We would accept that a property manager, through his employees, is not solely concerned with "managing from a desk" as Mr Bird on behalf of the Borough put it; and we would further accept that such a manager is properly so called even though his discretion is very much confined by his principal's instructions. Nevertheless the context of the CPC classification 822, emphasising as it does matters of "renting, leasing or appraising" even on a non-exhaustive basis, is not apt to apply to what are essentially specialist services which might be contracted in by a property manager but do not amount to property management services in themselves. We think this conclusion is emphasised by contrast with CPC 874 ("building-cleaning services") which do constitute services which might be contracted in by a property manager. If, however, we had come to a different view as to this question of management, then we might not have been deterred from concluding that the areas of the Borough concerned constituted "agricultural, forest and similar properties".
50. It follows that on this issue as well Mr Luck's appeal must fail so far as concerns his reliance on the Regulations.

Minimum standards required

51. In these circumstances we shall deal with this issue more briefly. Mr Broatch submits that the Borough failed to inform Mr Luck of the minimum standards required of him if he was to go forward from the pre-tender stage to the invitation to bid stage.
52. Despite reference in the amended statement of claim to reg 11(8), it emerged in the course of trial that the procedure being applied by the Borough was not the "open procedure" under reg 11, but the "restricted procedure" under reg 12. It follows that the relevant provisions of the regulations are as follows:

"12 (1) A contracting authority using the restricted procedure shall comply with the following paragraphs of this regulation.

(2) The contracting authority shall publicise its intention to seek offers in relation to the public services contract by sending to the Official Journal as soon as possible after forming the intention a notice, in a form substantially corresponding to that set out in Part C of Schedule 2, inviting requests to be selected to tender and containing the information therein specified…

(4) The contracting authority may exclude a services provider from those persons from whom it will make the selection of persons to be invited to tender only if the services provider may be treated as ineligible on a ground specified in regulation 14 or if the services provider fails to satisfy the minimum standards of economic and financial standing, ability and technical capacity required of services providers by the contracting authority; for this purpose the contracting authority shall make its evaluation in accordance with regulations 14, 15, 16 and 17.

(5) The contracting authority shall make the selection of the services providers to be invited to tender in accordance with regulations 14, 15, 16 and 17; and in making the selection and in issuing invitations the contracting authority shall not discriminate between services providers on the grounds of their nationality or the member State in which they are established."

53. It will be observed in the first place that reg 12(2) provides that a notice must be sent to the Official Journal (for publication) in a form "substantially corresponding to that set out in Part C of Schedule C". In the present case no notice at all was sent to the Official Journal: indeed the Borough was not aware that it was or ought to have been applying the Regulations; or, therefore, that on the hypothesis that the contract services had been "property management services" ought to have been applying the Regulations in full. The judge found that, on the hypothesis that the Regulations ought to have been applied, there had been a breach in not notifying the Official Journal as required under reg 12(2): but also that there had been no loss so far as Mr Luck was concerned, since he had been notified by telephone of the Borough's advertisement and had been encouraged to apply. Part C of Schedule 2 states what the notice in the Official Journal must contain under the restricted procedure, eg

"13. The information and formalities necessary for an appraisal of the minimum standards of economic and financial standing, ability and technical capacity required of the services provider."

54. Mr Bird for the Borough submits that all that the notice needs contain is the necessary "information and formalities". Mr Broatch for Mr Luck submits that the notice must also define the "minimum standards…required": his contention is well recorded by the judge (at para 97):

"If a service provider may be excluded for non-compliance with these standards, then it is axiomatic that he should be informed of them in advance and thus have an opportunity of showing that he complies with them."

However, that submission was rejected (at para 98):

"The system is entirely fair, in asking for factual information from the contractor and then determining (provided an equal approach is adopted between applicants) whether the watershed has been passed or not on the information provided."

55. We are tempted to think that Mr Broatch's submission may be well founded, since the word "required" does not seem like an epithet of something which is kept within the breast of the contracting authority in a regulatory process which is dedicated to transparency; and there is not much point in encouraging applicants who cannot be selected for the invitation to bid stage because they fall below some minimum standard. However, we are hesitant to express any opinion, for three reasons: one, it is unnecessary to do so; two, it would be necessary to consider many other provisions of the Regulations which were not considered in the judgment below; and three, it is obscure to us both what minimum standards it is said were applied by the Borough and by reason of what standards Mr Luck is said to have failed to survive the pre-tender stage of the process. We will say just a little further to explain the second and third of these reasons.
56. As to the second, it is not even clear whether Mr Luck's failure is properly to be analysed as an exclusion under reg 12(4) or as a non-selection under reg 12(5). In the amended statement of claim it was pleaded that he was excluded under reg 11(8), which is the equivalent provision to reg 12(4) under the open procedure. Moreover, reg 12(4) was the provision considered by the judge. On this appeal, however, there was debate whether what had really happened was that Mr Luck had merely failed to have been selected under reg 12(5) as one of the applicants who would go on to the invitation to bid stage. Mr Bird submitted that the tests were the same in any event, but we are not sure. Reg 12(4) speaks expressly of failure to satisfy the minimum standards required, but reg 12(5) does not do so. Both refer to regs 14/17: but regs 15(1) and 16(1) maintain the distinction between an assessment as to whether an applicant meets minimum standards under reg 12(4) and a selection under reg 12(5). It is nevertheless true that in either event (assessment or selection) regs 14/16 lay down a code of what a contracting authority may take into account. Thus reg 14 sets out "Criteria for rejection of services providers" (to quote its heading), such as bankruptcy, a criminal record, grave misconduct, or serious misrepresentation. We are not concerned with anything like that in the present case. Reg 15 (headed "Information as to economic and financial standing") says that a contracting authority "shall only take into account any of the following information" (emphasis added) in making its assessment or selection, eg the applicant's bankers' reference. Where a contracting authority requires information to be provided of the kind permitted under reg 15, "it shall specify in the contract notice…the information which the services provider must provide". Similarly, reg 16 (headed "Information as to ability and technical ability") states matters which a contracting authority "may have regard to" (emphasis added), but the provisions which follow (in reg 16(1)) make a distinction between ability and technical capacity. Thus, as to ability, all that is said as to what may be taken into account is –

"(a)…in particular his skills, his efficiency, experience and reliability;"

whereas, as to technical capacity, a long list of matters (subparas (i) to (ix)) may be taken into account, eg educational and professional qualifications, details relating to services of a similar kind provided under contract in the past 3 years, average manpower over the same period, and any relevant certificate of compliance with BS 5750 or any equivalent standard or "any other evidence of conformity to equivalent quality assurance standards". Again, reg 16(2) provides that the contracting authority shall specify in the contract notice "what information…it requires to be provided".

57. It seems clear therefore that, quite apart from reg 12(2) and para 13 of Part C of Schedule 2, the contracting authority must make clear what information it requires for the purpose of making its assessment or selection. That is information coming from the services provider. What is less clear, and is the bone of contention under the present heading, is whether the contracting authority must also make clear to the services provider what minimum standards it requires for the same purpose.
58. The third reason mentioned above ties in with the second, for, on the assumption that the Borough was required to make clear what minimum standards it required, it is nevertheless obscure to us what it is said that the Borough failed to make clear which was relevant to Mr Luck's exclusion, if indeed it was a case of exclusion under reg 12(4) rather than non-selection under reg 12(5). The pleadings do not assist and the judge made no findings. In this connection there was some discussion during submissions, possibly by way of hypothetical example only, of there being a minimum standard required of quality assurance to BS 5750 standard (although that is not stated to be a requirement in the Borough's March 1997 "Vetting of Contractors" document). The application form (questionnaire) merely asked "Has your firm acquired Quality Assurance registration to BS EN 150 9002 (formerly BS 5750)?" to which Mr Luck answered no. This appears to be a request for information such as is contemplated in reg 16(2). If such information is requested, then a contracting authority "may have regard to" it under reg 16(1)(b)(viii). Does it therefore automatically become a minimum standard required? If it is essential, does the contracting authority also have to make clear that it is? If it does, is it necessary that such a matter has to be published in the contract notice itself (sc in this case the advertisement in East End Life), or is it sufficient that it is clarified in the application form or questionnaire to which the advertisement makes reference? In the present case the advertisement said very little. These are the sort of questions which we are reluctant to determine or even opine about in the abstract.

The correct test for court evaluation of an assessment or selection process

59. We are equally reluctant to determine in the abstract, and for much the same reasons, the next question which was debated on this appeal, which was whether the correct test by which a court should evaluate whether a contracting authority's reg 12(4) assessment (or reg 12(5) selection) conformed to the requirements of the Regulations was the test of Wednesbury unreasonableness or a straightforward test of compliance on the basis of objectively established criteria.
60. All we will say is that it seems to us that much may depend on what the critical issue turns out to be. Thus if (1) the question is simply whether an assessment or selection can be questioned in court, without any specific breach of duty under the Regulations being identified and proved: then we are very doubtful that any question of objective criteria arises. Moreover, we are by no means clear in our minds that in such a case it may even be open to complain of Wednesbury unreasonableness, perversity, irrationality, or a decision which no reasonable contracting authority could take: although we note that it appears to have been the view of Richards J that that was the only possible test (he, however, believed himself to be conducting a judicial review inquiry). If it is, then that is because either a duty must be implied as being imposed on a contracting authority not to make any decision which can be so characterised, as we conceive may be the case; or because the law requires that any public contracting authority's decision is susceptible to being reviewed on that basis. If, however, (2) the question is whether a contracting authority has acted in good faith, then we would be inclined to think first, that an obligation not to act in bad faith ought to be implied in a set of Regulations whose essential concern is with transparency of process, and secondly, that if complaint were made that such an obligation had been broken, then bad faith would have to be strictly proved in the normal way. If, on the other hand, (3) the complaint is made of some specific breach of the Regulations, such as failure to give proper notice of a contract to be let, or of a failure to require information to be supplied the absence of which is then taken into account, or of the taking into account of something which the Regulations says can not be taken into account, then we would be inclined to think that the relevant test is not the unreasonableness test, but the ordinary test of whether the alleged breach has been proved. Simon Brown LJ on appeal from Richards J similarly seems to have canvassed all three possibilities, when he said (at 10B/C):

"In the course of a writ action, it may well be that in order to succeed that applicant will have to establish bad faith on the part of the council, but it is not necessary to decide whether the correct approach will be purely Wednesbury, or whether some closer factual examination on the court's part is appropriate than would be generally appropriate in judicial review proceedings. For my part I cannot think that any court would regard itself as required to decide the question entirely afresh, in other words to judge whether, had it been the local authority, it would itself have allowed this tender to proceed to the regulation 21 point, but that is matter that can be safely left over for consideration hereafter."

61. We make it clear that we too are not seeking in any way to resolve such matters. It may be that some light on this issue can be provided by the observations of the advocate general in the case, not cited to this court, before the European Court of Justice of SIAC Construction v. County Council of the County of Mayo [2001] ECR I-7725.

Bad faith and malice

62. In the circumstances, although no complaint of bad faith can arise under the Regulations for the reason that Mr Luck fails to bring himself within reg 32(4), it is necessary to determine the issue of bad faith for the purposes of Mr Luck's alternative claim of misfeasance in public office.
63. Mr Broatch's primary submission is that the judge erred in concluding that since the Borough's decision fell within the range of reasonable responses, that was sufficient to defeat a claim in bad faith. A decision could have been made in bad faith, and yet appear on its face to be within the range of reasonable responses. As for the facts, the judge's findings were inadequate, since he left the truth of the corporate reference in the air with remarks such as "it contains matters which are in part true, and in other parts may be true and in other parts may be false" (at para 109). Therefore, at the least there must be a retrial. Indeed, at one point Mr Broatch offered to take the court through the primary material in order to make good the (albeit narrow) submission with which he was left – since he now accepted the good faith of Mr Ford, who compiled the reference, and the other decision makers – that there was bad faith or targeted or untargeted malice on the part of those who had provided Mr Ford with his information about Mr Luck. However, the court found no need to accept Mr Broatch's offer.
64. In our judgment, the judge was right to conclude that no case of bad faith, and thus no case of misfeasance in public office, was made good. He did not make the false deduction that because the Borough's decision could not be impugned as unreasonable, therefore it could not have been in bad faith. On the contrary, he proceeded on the basis of Mr Luck's own case, that on the basis of what he alleged to have been his own excellent record, and the good references from Mr Smith and Mr Thorogood, as well as his own version of the events discussed in the corporate reference, a case of bad faith was to be inferred. There was in truth no direct case of malice, or at any rate none that survived the cross-examination of Mr Ford and Mrs Blinman. The judge was therefore entitled, and right, to say that in such circumstances "Because his case relies so heavily on inferred malice or bad faith, proof that any decision was a reasonable response, or within the range of reasonable responses available to the authority, defeats the inference" (para 123).
65. The matter goes further than that, however, because, although the judge did not make detailed findings of fact about all Mr Luck's allegations regarding the corporate reference, he was obviously prepared to assume, in coming to his conclusions, that the corporate reference was at least in part untrue or indeed untrue to the full extent of Mr Luck's submissions: see paras 109 and 125 above. He specifically had in mind that the corporate reference "incorrectly…referred to more than one default notice" (para 118.6). Moreover, the judge expressly accepted the truth of certain matters, including the spray drift episode, as having been proved by the contemporaneous documents (para 108). It was in such circumstances that he nevertheless concluded that Mr Luck had failed to demonstrate his inference of bad faith on any alternative. It followed that Mr Luck's case of misfeasance in public office, which not surprisingly was "put on the basis of targeted malice" (para 126) failed as well.
66. The judge said that Mr Luck's case of bad faith and malice failed "on the overwhelming balance of probabilities" (para 125). We are not in the least surprised that he expressed himself in those terms. Once he had heard from Mr Ford and Mrs Blinman, as well as from Mr Luck himself, the judge was in an excellent position to resolve this question of bad faith. As we have already remarked, Mr Luck no longer submits on this appeal that Mr Ford or the other decision makers were in bad faith or activated by malice. There remains only his fall-back submission that the officers whom Mr Ford consulted were in bad faith and malicious. Mr Broatch submits that it was impossible for the judge to reject that fall-back submission, and remains impossible for this court to reject it, in the absence of the Borough's willingness to call those officers as witnesses and to subject them to cross-examination. However, we regard that scenario as far-fetched and unrealistic in the extreme. Mr Luck's pleadings had not identified any particular individuals as those against whom he was alleging bad faith and malice. In the circumstances it was entirely appropriate for the Borough to call Mr Ford, as the compiler of the corporate reference, and Mrs Blinman. It is highly unlikely that Mr Ford, who spoke to all those officers who assisted him with compiling his reference, could have been acquitted of bad faith or could at any rate have avoided implicating the culprit(s), if those officers or any of them had been so motivated. The matter could also be tested against the Borough's own contemporaneous documents. Further than that, it is possible to obtain a good insight into the true situation on the basis of Mr Luck's own case. We refer again to that passage in para 118.6 of his judgment where Judge MacDuff was setting out Mr Broatch's submissions:

"I am asked to infer that they did not act in good faith, because in effect Mr Luck had been difficult, certainly in recent times…When a default notice was served upon him…he, Mr Luck sought to get that set aside and correspondence went on for many months, as he sought to show them how unfair the matter had been and to go to arbitration about it. There is no doubt that Mr Luck made numerous complaints against the defendants to various different bodies. It is said that towards the end, in effect, the defendants almost manufactured disputes with Mr Luck."

67. On this basis on Mr Luck's own case the relationship between him and the Borough at this time had all but broken down. There were recriminations on both sides. It is in the nature of such disputes that one or other or both sides of the divide are led to doubt the motives of the other side. But it is the experience of litigators and the courts that bad faith is rarely the explanation. The judge heard the witnesses and was in an excellent position to make up his own mind about this matter. We have no doubt that his judgment on the issue is a secure one. It follows that Mr Luck's case of misfeasance in public office must fail as well.
68. In sum, Mr Luck's appeal must be dismissed.

Order:

69. Appeal dismissed with costs to be subject to detailed assessment if not agreed.
70. Community Assessment order of appellant's costs.
71. Leave to appeal to the House of Lords refused.
(Order does not form part of the approved judgment)