The Good Law Project Ltd v Minister for the Cabinet Office

JurisdictionEngland & Wales
JudgeMr Justice Fraser
Judgment Date27 July 2021
Neutral Citation[2021] EWHC 2091 (TCC)
Docket NumberCase No: HT-2020-000457 (CO/3564/2020)
CourtQueen's Bench Division (Technology and Construction Court)

[2021] EWHC 2091 (TCC)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS

TECHNOLOGY AND CONSTRUCTION COURT (QB)

Rolls Building

Fetter Lane

London, EC4A 1NL

Before:

THE HONOURABLE Mr Justice Fraser

Case No: HT-2020-000457 (CO/3564/2020)

The Queen on the application of

Between:
The Good Law Project Limited
Claimant
and
Minister for the Cabinet Office
Defendant

and

Hanbury Strategy and Communications Limited
Interested Party

Robert Palmer QC and Brendan McGurk (instructed by Rook Irwin Sweeney LLP) for the Claimant

Philip Moser QC, Ewan West and Anneliese Blackwood (instructed by the Government Legal Department) for the Defendant

The Interested Party did not appear on the application

Hearing Date: 23 July 2021

Mr Justice Fraser
1

In these proceedings the Claimant, the Good Law Project, seeks judicial review in respect of an award of a contract by the Defendant, the Minister for the Cabinet Office, to the Interested Party (“Hanbury”) for the supply of services. These services were to assist the Government in terms of policy development, and emergency messaging to the public, as part of the response to the Covid-19 pandemic. The Claimant challenges the award of that contract 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.

2

I have already handed down a judgment on an application by the Minister for a stay of the substantive proceedings, for the reasons explained therein at [2021] EWHC (TCC) 1937. I granted the stay sought by the Minister. That judgment was handed down on 9 July 2021, and its effect included vacating the substantive hearing that was then fixed for 26 July 2021.

3

There were however some outstanding matters which I anticipated could and should be agreed, if possible, prior to the stay coming into force. These matters concerned evidence that had been served by the Claimant, whose admissibility was challenged by the Minister. If these matters could not be agreed, then I explained at [16] and [17] of that judgment, they would be resolved after a short hearing before the court. This was to take place during the week of 19 July 2021. It was, with hindsight, somewhat naïve of me to anticipate agreement, and perhaps inevitably, that hearing was required. It may also have been somewhat optimistic of me to have expected only a short hearing. Regardless of this, it seemed both sensible and proportionate for the outstanding matters concerning admissibility of evidence, to be resolved before the stay came into effect. This is my judgment on that application.

4

By the time of the hearing one of the matters, concerning the evidence of Mr Jolyon Maugham QC, had resolved itself because the Minister had conceded the locus standi of the Claimant to bring these proceedings. The outstanding matter therefore concerned evidence adduced by the Clamant which the Minister maintained was expert evidence and for which permission of the court was required under CPR Part 35. I explain this further below.

5

The Claimant is a not-for-profit campaign organisation that seeks to use the law to protect the interests of the public. It is a public interest body, and has come to particular prominence since the pandemic, as it has challenged the behaviour of the Government, and the Cabinet Office, in certain respects concerning the award of a number of contracts which were entered into very urgently in March/April 2020 as part of the pandemic response. It not only challenges 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.

6

Similar judicial review proceedings of this nature, concerning other matters, have already been the subject of a judgment by O'Farrell J in 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 proceedings, the Minister challenged whether the Claimant had sufficient standing to bring the challenge by way of judicial review. O'Farrell J found that it did. She also found apparent bias on the part of the Minister in that case. It is because of the appeal against that finding in those proceedings that I issued a stay of the instant proceedings, at the application of the Minister.

7

Given the concession to which I refer at [4] above, the matters for resolution now only concern two pieces of evidence upon which the Claimant wishes to rely. The first is a witness statement of Jean Frost dated 18 June 2021, and the second is the evidence of Nick Moon. That latter evidence was originally contained in a witness statement, also dated 18 June 2021. To meet (and potentially one imagines, to satisfy) the objections of the Minister that Mr Moon's evidence was expert evidence, the same evidence was re-served by the Claimant in a different form, namely in a document headed “Expert Report of Nick Moon” which is dated 13 July 2021. The contents of Mr Moon's witness statement, and his later report, are the same, although the latter includes a declaration pursuant to CPR Part 35 and Practice Direction PD35 reciting his awareness of, and compliance with, an expert's duties under Part 35. Mr Moon is the Director of Moonlight Research Ltd, and also the Secretary of the British Polling Council (“BPC”), an association of polling organisations that publish polls and are committed to what is called promoting transparency in polling.

8

Within Mr Moon's expert's report, which is 33 paragraphs long, there are nine paragraphs which the Claimant accepts contain opinion evidence. The remainder are said by the Claimant to be factual evidence. Of the nine paragraphs — which I shall refer to as the blue paragraphs, as they were highlighted blue in the report used for the application — either the whole of some of the paragraphs (such as paragraph 11), or parts of paragraphs only (such as in paragraph 8) are accepted by the Claimant as containing expert evidence and therefore requiring permission, due to the terms of CPR Part 35 where a party seeks to rely upon the evidence of an expert.

9

The Minister submits that all of the evidence of both Ms Frost and Mr Moon constitutes expert evidence, therefore both require permission under CPR 35, which the Minister maintains ought not to be given. Strictly speaking, even if the evidence (apart from the blue paragraphs of Mr Moon) is evidence of fact, it requires permission as there is no current general permission for reply evidence by the Claimant in any event. But different considerations apply if the evidence is expert evidence, as the court has a duty under CPR Part 35 to restrict expert evidence to that reasonably required to resolve the proceedings.

10

I shall consider the specific evidence under challenge in this application, and then deal with the principles that govern expert evidence in judicial review generally. I will also consider some of the evidence adduced by the Minister to which the Claimant's evidence is said to be responsive. Mr Palmer QC for the Claimant draws my attention to the evidence of Mr Alex Aiken, the Executive Director for Government Communications at the Cabinet Office, and Mr Dominic Cummins, the Prime Minister's main political adviser at the time and to whom all special advisers reported, in order to make good his submission that the bulk of this evidence is factual evidence in reply. I have considered all of the evidence adduced by the parties in considering this application, even if I do not specifically refer to it all.

11

In the judgment where I granted the stay referred to at [2] above, I drew the parties' attention to two potentially relevant decisions in respect of expert evidence in procurement proceedings, in order to guide and hopefully assist them when considering how to agree these matters, in order hopefully to avoid a contested application. These were Bop-Me Ltd v Secretary of State for Health and Social Care [2021] EWHC 1817 (TCC) and BY Development Ltd v Covent Garden Market Authority [2012] EWHC 2546 (TCC). However, due to the nature of the submissions made at the hearing on 23 July 2021, and in order (one hopes) to assist in other procurement challenge cases between these parties that are already before the court, I will approach this more from first principles than might otherwise be expected.

12

Firstly, it is necessary to consider the evidence itself. I will not repeat the whole of the statement, but some of the evidence of Ms Frost that is challenged is of the following nature. I shall give a selection by way of example:

“7. I note paragraphs 9–13 of the DGR which explain why, “in summary, the former Chief Adviser (Dominic Cummings) considered that Hanbury was the only organisation that could (a) deliver the services that were needed (b) start immediately and (c) devote their maximum effort and resources and provide the requisite frank advice. No other firm could meet all three of those requirements even if they might have met one of them.”

8. There is nothing unique or even unusual about the services supplied by Hanbury. They are conventional opinion polling services (ie quantitative research) which any reputable opinion polling organisation would be able to supply e.g....

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