R the Good Law Project Ltd v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 22 October 2021 |
| Neutral Citation | [2021] EWHC 2783 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2020-000442 and CO/4034/2020 |
[2021] EWHC 2783 (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
and
Joseph Barrett, Rupert Paines and Stephanie David (instructed by Rook Irwin Sweeney LLP) for the Claimant
Philip Moser QC and Niamh Cleary (instructed by the Government Legal Department) for the Defendant
Cliodhna Kelleher (instructed by Bristows LLP) for the Interested Party
Jemima Stratford QC (instructed by Simmons & Simmons LLP) for Professor Bell and the University of Oxford
Judgment (No.2) “Costs of Third Party Disclosure”
Hearing Date: 14 October 2021
In the substantive 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 entered into as 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”). The judicial review proceedings were transferred to the Technology and Construction Court by Swift J in an order dated 5 November 2020. They are therefore being heard by a Judge of the TCC who is also nominated as a Judge of the Administrative Court. One of the grounds for which the Claimant has permission to bring judicial review relates to state aid, said to have been provided to Abingdon by the Defendant both upon the award of the contract, and throughout its life.
Satisfactory performance by Abingdon of its contractual obligations to the Defendant is itself controversial as between those two entities. The Defendant considered that Abingdon's performance was inadequate, and terminated its contracts in 2021
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 Claimant does not have sufficient standing under the PCR 2015 to bring a claim under the regulations themselves as a Part 7 claim. The Defendant was centrally involved in the Government's response to the pandemic, and entered into a number of contracts very urgently in 2020 as part of its response. The three contracts in question in these proceedings were entered into in April, June and August 2020. Their subject matter was the supply to the Government by Abingdon of one million tests for Covid-19.
This judgment concerns the costs of a disclosure application originally brought by the Claimant against the Defendant, but which was broadened somewhat in the circumstances explained below. Part of that disclosure application related to emails both from, and to, Professor Bell in relation to Abingdon's engagement by the Defendant. I have already explained in outline at [6] and [7] in the previous judgment at [2021] EWHC 2595 (TCC) that I considered, as a matter of fairness, that the application on 21 September 2021 could not fully be dealt with in the absence of the Professor (and potentially the University of Oxford, described as his employer), who I considered ought at least to have the opportunity to make submissions. Further, the Defendant had made submissions that even if an order were to be made against the Defendant concerning production of these emails, the Professor would be likely not to provide them in any event, either to the Defendant or to the court. Accordingly, I directed that an application for third-party disclosure should be made against him, this being the procedural mechanism by which his opportunity to make submissions was provided.
Because of the unusual circumstances of certain parts of this case, I reserved my decision on costs of the disclosure applications to be provided in this judgment. Some explanatory narrative is required in order to put the cost decisions in their proper context. Also, some of the issues that have arisen in this case could potentially arise in a number of other cases. It may therefore assist in those other cases if some basic principles are explained or repeated to these parties now. There are a number of other cases on foot with the same main players, and it would be regrettable if this opportunity for them to re-set their approach to litigation was lost.
In my earlier judgment at [7] I explained that “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”.
There is a point at which judicial encouragement to sensible and reasonable behaviour must give way to concrete steps in order to make the same point clear. The Civil Procedure Rules have the overriding objective at CPR Part 1.1(1) of “enabling the court to deal with cases justly and at proportionate cost”. Specific elements of that are identified: at Part 1.2(a) as ensuring that parties are on an equal footing; at Part 1.2(b) of saving expense; and at Part 1.2(c) dealing with the case in ways which are proportionate (iv) to the financial position of each party. Under CPR Part 1.2(a) the court must seek to give effect to the overriding objective when it exercises any power given to it by the Rules.
The power to award costs is a discretionary one and is contained in CPR Part 44.2(1). This means that the court must seek to give effect to the overriding objective when it exercises its power under CPR Part 44. CPR Part 44.2 sets out the general rule, which is that the unsuccessful party will be ordered to pay the costs of the successful party, and also the different considerations to be taken into account when the court is considering the circumstances of the case and the conduct of the parties.
The ability to order third party disclosure is contained in CPR Part 31.17. The requirements for such an order, which is discretionary, are set out at CPR Part 31.17(3) and are, in summary, that the documents sought are likely to support the case of the applicant or adversely affect the case of one of the other parties, and that disclosure is necessary in order fairly to dispose of the claim or to save costs. If those jurisdictional hurdles are surmounted, the court has a discretion whether to make such an order. The unusual nature of this has been referred to in different cases, including by Eady J in Henry v News Group Newspapers Ltd [2011] EWHC 1364 (QB) who described the “exceptional and intrusive nature of this jurisdiction”. In that claim a newspaper organisation sought third party disclosure both from an NHS Trust, and the Commissioner of the Metropolitan Police, to assist its defence to a libel claim brought by a social worker following the death of a child. The learned judge stated at [6]:
“The court will be aware throughout of the exceptional and intrusive nature of this jurisdiction. It should never be regarded as a matter of routine. The conditions for making an order, as identified above, will need to be strictly fulfilled. The court will always need to be wary of categories which are loosely or unnecessarily broadly defined and to be alert for requests which appear to be of a “fishing” nature.”
I respectfully repeat and endorse that passage.
The general rule in respect of orders for disclosure against a person who is not a party is to be found under the heading “costs payable by or to particular persons” at CPR Part 46.1(2). This rule deals with special cases of costs. On applications such as this one against a non-party, the general rule is that the court will award the person against whom the order is sought that person's costs, both of the application and of complying with any order made on the application. However, the court may make a different order under CPR Part 46.1(3), having regard to all the circumstances, including at (a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application.
Having explained that general framework, I shall turn to the detail of the application, but only in sufficient detail that my order in terms of costs can both be seen in context, and also be properly understood.
Professor Bell is a highly distinguished academic at Oxford University, where he is the Regius Professor of Medicine, a post he has occupied since 2002. He also...
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