In its recent decision in the case of SRCL Ltd v The National Health Service Commissioning Board (NHS) [2018] EWHC 1985 (TCC) the High Court decided that Professor Sue Arrowsmith’s book The Law of Public and Utilities Procurement (Sweet & Maxwell, and currently in its third edition) was “highly persuasive” for the courts in making decisions on public procurement. Fraser J commented that Professor Arrowsmith was a “noted academic” with a “high reputation” and that this book was “the leading academic authority” in the field, and thus relevant to be considered and taken account of by judges in the High Court.
The case concerned, among other things, the extent and nature of the legal duties of public bodies in dealing with tenders for public contracts that appear too low to be sustainable. Such tenders might seem to create a risk that the contractor will not deliver at the price offered, giving rise to the possibility of contract failure or at least of price rises that could undermine the tendering process. However, there can also be good reasons for such bids that can provide value for money – for example, where a contractor is offering a low price in order to keep its workforce engaged during a time of recession. The law on this topic is complex and tricky to apply, with some unclear legislation and conflicting legal decisions. To resolve the case, Fraser J quoted at length the analysis in Professor Arrowsmith’s books, and relied on her reasoning in reaching conclusions on what the law requires here.
The extent to which the views of living academics are relevant to judicial-decision-making is an important point of principle that has not been carefully addressed in previous cases. As Fraser J explained in the judgment:
“The historic common law convention was that academic views could only be cited as authority in courts if the author was dead, and if the work in question had achieved a level of respectability in any event. There was also, perhaps, a third requirement (although it could be seen as a subset of the second) that the author themselves had to have been either a judge or practitioner. Professor Arrowsmith is very much alive, and has a high reputation as an academic in the field of procurement law.” After referring to the text of a lecture given by Lord Neuberger, "Judges and Professors – Ships passing in the night?", which discussed the issue in more detail, Fraser J noted that one reason for the historic rules was that: “A dead author cannot change their mind.”
However, like Lord Neuberger, Fraser J concluded that “the convention has now been eroded, and there is a dialogue between judges and academics to the benefit of all” and noted that “Textbooks of living authors are regularly cited in court – they do not have the same status as judgments under the doctrine of stare decisis, but they are persuasive and the views of an academic such as Professor Arrowsmith do have weight in this arena”.
Posted on Tuesday 28th August 2018