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At the beginning of 2008 four councils in the west of England banded together to set up a procurement framework for refurbishment projects worth up to 拢15m. The deal, which was to have come into effect in April of last year, has been delayed by a legal dispute between the two firms bidding for a place on it.

The Providus framework was uncommon, although not unique, in that it was to contain only one supplier. This meant that the contest was for a guaranteed workload of 拢150m over the six-year lifetime of the agreement, and victory or defeat would have a significant effect on the commercial fortunes of the tendering companies.

By December 2008 the procurement team from the four councils involved (Worcestershire, Shropshire, Avon and Somerset) had arrived at a shortlist of two. One was Vinci UK, the national subsidiary of the largest contractor in the world; the other was the Wurzels, a consortium of local firms led by Wilson Construction, a general purpose building concern that consisted of three employees and the owner鈥檚 15-year-old daughter.

After final submissions were made, the client found itself on the horns of a dilemma. Whereas Vinci鈥檚 tender was somewhat cheaper than the Wurzels鈥�, this was principally owing to the sourcing of materials from the Far East; the Wurzels, by contrast, were committed to using local products purchased from B&Q.

Both sides made strong cases under the headings of sustainability and training: Vinci鈥檚 multimillion pound expenditure on research and development being countered by Mr Wilson鈥檚 daughter Rowena, who scored highly in several of the councils鈥� social cohesion and diversity categories, including the rehabilitation of juvenile offenders.

After it became apparent that the two sides were tied, there was a series of supplementary submissions and meetings, after which the client team, led by Mr Graham Spooner, chief executive of Somerset council, decided to invite both candidates to a final interview. Despite several hours鈥� discussion, however, events were no closer to reaching a resolution. At this point a less scrupulous man than

At this point a less scrupulous man may have inquired into Mr Spooner鈥檚 kitchen extension needs

Mr Wilson may have inquired into Mr Spooner鈥檚 kitchen extension needs, but this was not the course of action he followed. Instead he simply said: 鈥淏ags I that job.鈥� The client, perhaps relieved to have arrived at last at a decisive criterion, awarded the contract to Team Wurzel.

Readers familiar with the recent history of public procurement will not be surprised to learn that a legal challenge was not long in coming. Vinci first applied for a summary judgment striking out the award. This being refused, the case came before His Honour Judge Magdalene at the Bristol branch of the Technology and Construction Court. In finding for Wurzel, the judge based himself on the legal principle of qui trouve, qui garde (and its corollary, qui perd, qui pleut). This idea has a long history of employment in jurisdictions founded on the Anglo Saxon traditions, although more often that not in an informal context. Nevertheless, the judge explained that it was contained 鈥渨ithin the codification of civil law that developed out of the customs of the Middle Ages, and became the undisputed rule by which certain rights or obligations were regulated between members of a community鈥�.

In its appeal against this judgment, Vinci鈥檚 legal team executed an abrupt change of tack. Whereas they had based their case in the court below on the obligation of a public authority to act rationally, and the protection afforded by natural justice against arbitrary tribunal, they now claimed that, Mr Perec, Vinci鈥檚 representative at the meeting, had uttered the words 鈥渨hite rabbit, white rabbit, white rabbit鈥� immediately after Mr Wilson had made his 鈥渂ags I鈥� claim.

They further maintained that within the ordinary use and meaning of this area of customary law, that formulation was a full and final rebuttal of any claim of ownership, including 鈥淚 seen it first鈥�, 鈥渙ne potato, two potato鈥�, or 鈥渋bble obble, black bobble鈥�. Wurzels鈥� response was simply 鈥渘o he never鈥�.

In Lord Neuberger鈥檚 judgment, in which the other two appellate judges concurred, the factual question of whether or not the principle of white rabbit had been invoked was not relevant, as it was common ground that the meeting had been held on the first of the month, which meant the defence was a priori void.

This case is now on its way to the House of Lords, where the effect of Mr Wilson鈥檚 failure to append 鈥渘o returns鈥� to his claim will be tested, so it鈥檚 likely that this increasingly important area of law will be developed further. In the meantime, council tenants in the four counties concerned will have to make their own way to B&Q.