The King (on the application of the Good Law Project Ltd) v The Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Mr Justice Waksman |
| Judgment Date | 07 October 2022 |
| Neutral Citation | [2022] EWHC 2468 (TCC) |
| Docket Number | Claim No: HT-2020-000442 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Year | 2022 |
[2022] EWHC 2468 (TCC)
Mr Justice Waksman
Claim No: HT-2020-000442
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Joseph Barrett, Rupert Paines and Stephanie David (instructed by Rook Irwin Sweeney LLP, Solicitors) for the Claimant
Philip Moser KC, Ewan West, Khatija Hafesji 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 dates: 3–5 May 2022
.
Table of Contents
| INTRODUCTION | 4 |
| Background | 4 |
| THE ISSUES | 7 |
| Introduction | 7 |
| Ground 5: Rationality | 8 |
| Ground 6 — Apparent BIAS, Conflict of Interest and Unlawful Nationality Preference | 9 |
| Apparent Bias | 9 |
| Conflict of Interest | 10 |
| Unlawful Nationality Discrimination/Preference | 10 |
| Ground 2 — Equal Treatment and Transparency | 11 |
| Ground 7 – State AID | 11 |
| Standing and Relief | 12 |
| THE EVIDENCE – WITNESSES AND DOCUMENTS | 12 |
| THE FACTS | 14 |
| A. Some Organisational and Scientific References | 14 |
| CE Mark | 14 |
| MHRA | 15 |
| PHE | 15 |
| NIHR | 15 |
| NHSTT | 15 |
| OLS | 15 |
| CTT | 16 |
| REACT | 16 |
| ELISA | 16 |
| 16 | |
| IgG | 16 |
| B. Workstreams and Pillars | 16 |
| C. Key parties and individuals | 16 |
| Professor Bell | 16 |
| Ms Berry | 17 |
| Abingdon | 17 |
| D. The Position as at March 2020 | 19 |
| E. April 2020 | 24 |
| F. The Research Contract | 39 |
| G. Matters leading up to the June Contract | 40 |
| H. The June Contract | 45 |
| I. Lead-up to the August Contract | 47 |
| J. Terms of the August Contract | 52 |
| K. The Commercialisation Agreement | 52 |
| L. Events after the making of the August Contract | 53 |
| Evaluation Results | 53 |
| Use of the 1 million tests | 54 |
| Figures and Settlement | 55 |
| M. Some Other Factual Matters | 56 |
| Was Oxford University a member of the Consortium? | 56 |
| The Nature and Extent of any assistance provided by Oxford or Professor Bell to Abingdon | 57 |
| The nature and extent (if any) of Professor Bell's involvement in the development and/or evaluation of the Abingdon LFT | 58 |
| Professor Bell's interest in Abingdon or the Abingdon test | 58 |
| Ms Berry's interest in Abingdon or the Abingdon test | 58 |
| Lord Bethell's interest in Abingdon or the Abingdon test | 58 |
| The Commercialisation Agreement | 59 |
| N. Telephones and records | 59 |
| THE LAW | 60 |
| Relevant PCR and related provisions | 60 |
| GROUND 5 | 65 |
| The Law | 65 |
| Analysis: The Research Contract | 66 |
| False Information | 66 |
| Failure to conduct a rational enquiry | 66 |
| Limitation | 66 |
| Analysis: The June Contract | 66 |
| Analysis: The August Contract | 67 |
| Conclusion | 68 |
| GROUND 6 | 68 |
| Apparent Bias | 68 |
| The Law | 68 |
| Analysis: Professor Bell | 69 |
| Analysis: Ms Berry | 70 |
| Analysis: Lord Bethell | 70 |
| Conflict of Interest | 71 |
| Unlawful Nationality Preference/Discrimination | 71 |
| Conclusion | 74 |
| GROUND 2 | 74 |
| The June Contract | 75 |
| The August Contract | 76 |
| Conclusion on Ground 2 | 78 |
| STATE AID | 78 |
| The Law | 78 |
| The Context Here | 83 |
| Analysis: The Research Contract | 83 |
| Analysis: The June Contract | 84 |
| Analysis: The August Contract | 85 |
| DHSC Assistance to Abingdon | 89 |
| No use for tests | 89 |
| Provision of Components | 90 |
| Provision of Chairman | 90 |
| Approvals Assistance | 90 |
| Studies Assistance | 90 |
| Sales to third parties | 91 |
| Other Points | 91 |
| Conclusion on State aid | 91 |
| STANDING | 91 |
| Introduction | 91 |
| The Law | 92 |
| Introduction | 92 |
| Merits | 92 |
| The Particular Legal Context | 93 |
| Effect on the claimant | 94 |
| Gravity | 95 |
| Other Possible Claimants | 95 |
| The Position of the claimant | 96 |
| Other Points | 96 |
| Ground 2 | 97 |
| Ground 5 | 100 |
| Ground 6 | 100 |
| Ground 7 | 100 |
| OVERALL CONCLUSION | 101 |
INTRODUCTION
This is a claim for judicial review brought by the Claimant, The Good Law Project Ltd (“GLP”) a not-for-profit organisation, against the Defendant, the Secretary of State for Health and Social Care (“SSHSC”). I shall refer to the Defendant by reference to the relevant departmental name, in other words the Department of Health and Social Care (“DHSC”). The claim concerns the award by DHSC in April, June and August 2020 of 3 contracts to the Interested Party, Abingdon Health plc (“Abingdon”) in respect of the development of antibody lateral flow tests (“LFTs”). Such tests are designed to detect certain antibodies in a sample of blood provided by the person tested. If antibodies are detected, it indicates that they have been infected with the COVID-19 virus (“ COVID”).
The instant claim is one of a number that have been brought by GLP in respect of, in broad terms, the government's procurement of various goods and services, all related to the COVID pandemic.
Because they are of considerable relevance to the issues before me (principally on the law) I refer here to some of GLP's claims which have already been determined:
(1) GLP v SSHSC [2021] EWHC 346 (“ Unpublished Contracts”), where Chamberlain J held that the SSHSC had acted unlawfully by failing to follow his own Transparency Policy in relation to a large number of COVID-related contracts made prior to 17 September 2020;
(2) GLP v Minister for the Cabinet Office and Public First Ltd [2021] EWHC 1569 (“ Public First”). This concerned the direct award of contracts for the provision of focus group and communications support services. O'Farrell J rejected all of the claims save for that based on apparent bias. On appeal ( [2022] EWCA 21) the Court of Appeal reversed the finding of apparent bias, and dismissed the cross-appeal with the result that the claim now failed entirely;
(3) GLP and Everydoctor v SSHSC and Crisp Websites and others [2022] EWHC 46 (“ PPE”). Here, the challenge concerned directly-awarded contracts for the supply of personal protective equipment (“PPE”) for use in particular by those treating patients who had COVID. O'Farrell J rejected all the challenges except one;
(4) GLP and Runnymede Trust v The Prime Minister and the SSHSC [2022] EWHC 208 (“ Runnymede”). Here, the Divisional Court held that the SSHSC had failed to comply with his public sector equality duty in relation to the appointment of Baroness Dido Harding as Interim Chair of the National Institute for Health Protection and Mike Coupe as director of NHS Test and Trace (“TT”).
In addition, there is Gardner and Harris v SSHSC and others [2022] EWHC 967. This was a decision of the Divisional Court concerned with the death of the two claimants' fathers in care homes in April and May 2020 i.e. in the first wave of the pandemic. The Court rejected claims that policy documents issued by DHSC and others at the time in relation to residents of care homes, and the policy decisions recorded in those documents, constituted breaches of the rights of the deceased fathers.
Background
As for the general background, I gratefully adopt the account given by O'Farrell J at paragraphs 7–17 of her judgment in Public First. In early 2020 the first wave of the COVID-19 virus surged through Europe. On 11 March 2020 the Director General of the World Health Organisation announced that COVID-19 had been classified as a pandemic. On 13 March 2020 there was widespread cancellation of sporting events, including Premier League football and the London Marathon. On 16 March 2020 the Prime Minister began daily press briefings, urging everyone in the UK to stop non-essential contact and travel to enable the NHS to cope with the pandemic. On 17 March 2020, the European Union closed all its external borders in an attempt to contain the spread of COVID-19. On 18 March 2020 the Government announced that most schools across England would shut from Friday 20 March 2020. The Welsh and Scottish governments also announced that they would close schools. On 20 March 2020 the Government ordered all pubs, restaurants, gyms and other social venues across the country to close. The furlough scheme was announced. On 23 March 2020 the Prime Minister, in a televised address to the nation, imposed the first lockdown, asking the British people to: “Stay at home, protect the NHS and save lives.” On 25 March 2020 the Coronavirus Act 2020 was passed, making emergency provision in connection with COVID and conferring wide powers on the Government to impose restrictions on the freedom of movement of individuals for public health protection. On 9 April 2020 the UK recorded its highest COVID-19 daily death toll in the first wave of 1,073 deaths. On 10 May 2020 the Prime Minister announced limited plans for the easing of the first lockdown. Through June and July 2020 restrictions were relaxed and replaced with social distancing rules pursuant to revised regulations.
By the end of 2020, the first rollout of what was to become the highly successful vaccination programme in the UK (and elsewhere) had commenced. But in early 2020, a vaccine solution to the pandemic was just a distant hope. Instead, the essential response was to seek to contain the virus by the imposition of the restrictions referred to above in order to stop its spread in particular, of course, partial or complete lockdown.
At that time, a major question...
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