R The Good Law Project Ltd v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 30 September 2021 |
| Neutral Citation | [2021] EWHC 2595 (TCC) |
| Docket Number | Case No: HT-2020-000442 and CO/4034/2020 |
| Year | 2021 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2021] EWHC 2595 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
TECHNOLOGY AND CONSTRUCTION COURT (QB)
Rolls Building
Fetter Lane
London, EC4A 1NL
THE HONOURABLE Mr Justice Fraser
Case No: HT-2020-000442 and CO/4034/2020
and
Joseph Barrett, Rupert Paines and Stephanie David (instructed by Rook Irwin Sweeney LLP) for the Claimant
Philip Moser QC, Ewan West and Niamh Cleary (instructed by the Government Legal Department) for the Defendant
Ligia Osepciu and Cliodhna Kelleher (instructed by Bristows LLP) for the Interested Party
Hearing Date: 21 September 2021
In these proceedings the Claimant, the Good Law Project, seeks judicial review in respect of the award of certain contracts by the Defendant, the Secretary of State for Health and Social Care, to the Interested Party (“Abingdon”) for the manufacture and supply of rapid Covid-19 antibody tests. These contracts were, at the risk of stating the obvious, part of the Government's response to the Covid-19 pandemic. The Claimant challenges these contract awards, inter alia, as being contrary to the Public Contract Regulations 2015 (“PCR 2015”). These judicial review proceedings were transferred to the Technology and Construction Court by Swift J in an order dated 29 October 2020. They are therefore being heard by a Judge of the TCC who is also nominated as a Judge of the Administrative Court.
The Claimant is a not-for-profit campaign organisation that seeks to use the law to protect the interests of the public. They are brought as judicial review proceedings because the Claimant does not have sufficient standing under the PCR 2015 to bring a claim under the regulations themselves as a Part 7 claim. The Claimant is a public interest body, and has come to particular and increasing prominence since the pandemic, as it has challenged the behaviour both of the Government, and also the Cabinet Office, in certain respects concerning the award of a number of contracts. The majority of these were entered into very urgently in 2020 as part of the pandemic response. The three contracts in question in these proceedings were entered into in April, June and August 2020, but their existence is said to have come to light only sometime later in October 2020. A range of criticisms are made concerning the way in which they were awarded. It is not necessary to recite these, or the defences to them, in this judgment on interlocutory matters, and the full scope of the challenges will be determined at the substantive hearing. There are seven grounds of challenge, and permission for these has already been granted by O'Farrell J (on the papers) and Waksman J (at the oral renewal stage).
It would be wrong to characterise the Claimant as only challenging procurement decisions; there are other proceedings before the court in relation to pandemic affairs, the award of contracts in unusual circumstances, and lack of transparency in such matters. It is engaged in litigation against different government departments on matters that are very topical. The highly unusual circumstances of 2020 have given rise to large number of cases of this nature.
Similar judicial review proceedings concerning other matters, have already been the subject of other judgments. One by O'Farrell J is The Good Law Project Ltd v Minister for the Cabinet Office and Public First Ltd [2021] EWHC 1569 (TCC), a reserved judgment handed down on 9 June 2021 (“the Public First judgment”). In the Public First judgment, O'Farrell J found that the Claimant had sufficient standing to bring judicial review proceedings, and also found apparent bias on the part of the Minister in that case. Permission to appeal has been granted in that case, and that appeal will be heard in due course by the Court of Appeal. Other first instant judgments include The Good Law Project Ltd v Minister for the Cabinet Office and Hanbury Strategy and Communications Ltd [2021] EWHC 2091 (TCC), a case concerning the provision of polling and associated services, that judgment being one that concerns admissibility of expert evidence in judicial review proceedings. I will return to that judgment below. In another case, The Good Law Project Ltd v Secretary of State for Health and Social Care and Pharmaceuticals Direct Ltd [2021] EWHC 1782 (TCC)O'Farrell J considered certain aspects of a different claim by the Claimant against the same Defendant as in these proceedings, but one concerning contracts for the supply of Personal Protective Equipment (also called PPE).
These parties – both the Claimant and the Secretary of State – therefore have a greater interest than most in conducting cost-effective and efficient litigation. There are a number of different sets of proceedings between them. The Claimant raises money by way of donation and crowd-funding. The Secretary of State is, by definition, expending public money. Whether the current stance of these two parties on procedural matters is explained simply by the volume of litigation between them presently, or for other reasons, is not entirely clear. However, the hearing on 21 September 2021 is one of four full-day interlocutory hearings that have, or will have, taken place within the short period July to October 2021. I urge greater co-operation upon the parties. Matters that ought to be agreed are being contested, and this can only vastly increase these parties' collective expenditure on legal costs.
The hearing on 21 September 2021 was required in order to decide a number of different matters, some of which were contentious disclosure issues. Disclosure is not routinely ordered in judicial review proceedings generally, as the facts are rarely in dispute. This case is different, and although an approach akin to standard disclosure has been adopted, there was widespread disagreement between the parties about some of the details, such as date ranges, and whose email accounts should be searched. The vast majority of these issues were decided by me in the usual case management way, without reserved or detailed reasons. In respect of some of the disclosure sought by the Claimant, the Secretary of State had already gone some way (prior to, or at, the hearing) to agreeing certain aspects of the application, without going as far as the Claimant wanted. One element could not be fairly dealt with at the hearing. This concerned emails from and to Professor Sir John Bell (“the Professor”) who was at the material time acting as an unpaid special adviser to the Government (his title being the Life Sciences Champion), having been appointed in May 2014. The role was, and is, to provide independent advice and challenge to Ministers on Government policy. The Professor is an eminent academic at the University of Oxford and is alleged by the Claimant to have been instrumental in the award of the contracts to Abingdon. Because of his particular status, he did not have a Government email account and used his University of Oxford email account.
The Claimant seeks disclosure of certain of the Professor's emails, and it is clear that emails between him and Abingdon would not currently be caught by any of the disclosure orders already made. In my judgment, it would not be fair to hear and decide such an application in the absence of the Professor (and/or potentially the University of Oxford), who should be given the opportunity of adducing evidence or making submissions as to why such an order ought not to be made. The submissions made by the Secretary of State on this subject thus far are that the Department has no control over such electronic communications by the Professor (which are undoubtedly documents), regardless that they might have been part of the Department's conduct of its affairs relevant to the award of the contracts. It is also submitted that even if an order were made against the Secretary of State, the Professor would be likely not to provide such documents. The Claimant seeks an order regardless. In all the circumstances, that part of the Claimant's application can only fairly be heard after a proper application for third-party disclosure has been issued and served on the Professor (with notice to the University too), and it will come back before the Court in the first part of October.
On another element of the disclosure application, I ordered that certain repositories (as defined in the draft order) of the former Secretary of State, the Rt Hon Matt Hancock MP, should be subject to search using the agreed search terms and date range. Although I gave brief reasons at the hearing and offered detailed written reasons to follow, I was told by Mr Moser QC that there was no need, on the part of the Secretary of State, to have those latter detailed reasons and so I have not provided any. It is accepted by the Secretary of State that private email accounts and WhatsApp messages were used by Mr Hancock during the relevant period. CPR Part 31.7 sets out the factors relevant to deciding the reasonableness of a such for documents, and these are at Part 31.7(2)(a) to (d). Certain emails already disclosed clearly state that all ministerial submissions had to go through, and be approved, by Mr Hancock. It was submitted that his involvement was “limited” but that does not mean it was not important. He was centrally involved (as one would expect, given the circumstances) in decisions such as the ones under scrutiny in this case. Additionally, the data on other devices which one would normally expect...
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R the Good Law Project Ltd v Secretary of State for Health and Social Care
...and terminated its contracts in 2021 3 Further background to the proceedings as a whole is given in an earlier judgment at [2021] EWHC 2595 (TCC) at [2] to [4]. The Claimant is a not-for-profit campaign organisation and brings these proceedings by way of judicial review because the Claiman......