Court of Appeal finds that JR time limits do not apply to Francovich damages claims


Re: Secretary of State for Transport v Arriva Rail East Ltd & Ors [2019] EWCA Civ 2259

The issue in this appeal was the applicable time limit for the bringing of Francovich damages claims arising out of a public procurement process which is not governed by the Public Contracts (and similar) Regulations. The case raised the stark contrast between the 30 day time limit under the Regulations, the 3-month time limit required for an application for judicial review, and the 6-year limit for a claim for breach of statutory duty provided by the Limitation Act 1980. It also raised an issue as to the correct approach to the 3-month limit where the public law issues arise not from a one-off decision, but an ongoing process.

The Secretary of State for Transport had notified several of the train operating companies that they had been disqualified from the franchise competitions for three different franchises. The train companies commenced judicial review and proceedings under CPR Part 7, seeking to challenge their disqualification and including a claim for Francovich damages.   The Secretary of State sought to strike out the challenges to the terms of the bid on the basis that they had been brought well outside the JR time limit.

The Court of Appeal found that the standard 6 year time limit applied to all of the elements of the challenge on which the damages claim was based, although the 3 month JR time limit would apply if the Claimants were seeking an injunction to set aside the decisions of the Secretary of State. To the extent that the 3-month time limit is applicable at all, the Court held that it will be a matter for the judge to decide at the trial whether and to what extent any part of the decisions fell the wrong side of the line. This argument will not of course arise in relation to the damages claims in any event.

Rhodri Thompson QC was involved in this case.