The Queen (on the application of The Good Law Project) v The Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell,Mrs Justice O'Farrell DBE |
| Judgment Date | 29 June 2021 |
| Neutral Citation | [2021] EWHC 1782 (TCC) |
| Docket Number | Case No: HT-2021-000192 |
| Court | Queen's Bench Division (Technology and Construction Court) |
and
[2021] EWHC 1782 (TCC)
Mrs Justice O'Farrell DBE
Case No: HT-2021-000192
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Royal Courts of Justice
Rolls Building
London, EC4Y 1NL
Jason Coppel QC (instructed by Bindmans LLP) for the Claimant
Ewan West and Jonathan Lewis (instructed by Government Legal Department) for the Defendant
Louis Browne QC and Anja Lansbergen-Mills (instructed by Brabners LLP) for the Interested Party
Hearing date: 16 th June 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This matter arises out of a claim for judicial review, whereby the Claimant seeks to challenge the lawfulness of the Defendant's decisions to award contracts for the supply of personal protective equipment (“PPE”) to the Interested Party.
There are four applications before the court:
i) the Claimant's application for permission to serve an amended Statement of Facts and Grounds;
ii) the Claimant's application for an order under CPR 6.15 that would render valid any late service of its claim form; alternatively, an extension of time for such service;
iii) the Defendant's application for an order that the claim form be set aside for want of jurisdiction by reason of the late service of the claim form;
iv) the Defendant's application for the claim to be stayed until resolution of other claims in which the Claimant has challenged the award of PPE contract.
The applications are opposed. It is agreed that the court should determine the Defendant's jurisdiction challenge and the Claimant's application for relief under CPR 6.15 or an extension of time (“the Jurisdiction Applications”) before considering the other matters.
The central issue is whether there was valid service of the claim form in these proceedings; if not, whether the court should rectify any deficiency or extend time for service of the claim form.
Background facts
On 4 July 2020, the Defendant entered into a contract with the Interested Party for the supply of PPE, namely, FFP3 Meixin 2016V respirators, with a value of £102.6 million (“the Contract”). The Contract was awarded under the negotiated procedure without prior publication pursuant to regulation 32(2)(c) of the Public Contracts Regulations 2015 (“the PCR 2015”).
On 29 March 2021 the Contract was published on the Contracts Finder service.
On Thursday 8 April 2021, the Claimant's solicitors (“Bindmans”) sent a pre-action letter to the Government Legal Department (“the GLD”). The letter was sent by email to the following addresses:
i) TheTreasurySolicitor@governmentlegal.gov.uk; and
ii) newproceedings@governmentlegal.gov.uk.
The Claimant was aware that any challenge by way of judicial review would have to be made promptly, stating in the letter:
“Pursuant to CPR r. 54.5(6), where an application for judicial review relates to a decision governed by the PCR 2015, the claim form must be filed within the time required by reg. 92(2) of those Regulations, that being within 30 days beginning with the date when the Claimant “first knew or ought to have known that grounds for starting the proceedings had arisen.”. The Claimant notes, pending the Defendant's response to this letter, that this may require action by the Claimant to issue proceedings on a protective basis at short notice. The Claimant very much hopes this can be avoided by the Defendant responding to this letter in a prompt, reasonable, candid and transparent manner …”
On 12 April 2021, Mr Olsen of the GLD replied:
“We refer to your letter before action, dated 8 April 2021, and confirm that we are instructed to act for the proposed Defendant in relation to this matter.
We ask that in future all correspondence in this matter is sent by email to the Government Legal Department marked for the attention of Warrick Olsen… copying the GLD individuals included in the email attaching this letter.
You have requested a response to your letter by 4pm on 15 April 2021. We do not consider the aims of the protocol will be achieved by stipulating such a restrictive deadline for the proposed Defendant to respond.
As you are aware the protocol provides that a Defendant should normally respond to a letter before action within 14 days. We anticipate that we will require 14 days to investigate the matter and provide our client's response.
We anticipate providing our client's substantive response on or before 22 April 2021 …”
That letter was sent by email from Mr Olsen's GLD address. The email footer notified recipients that GLD accepts service by email and directed them to a Government webpage giving further details. The webpage is entitled: “Serve the Treasury Solicitor with legal proceedings” and states:
“New Legal Proceedings which are required to be served upon The Treasury Solicitor can be served as follows:
By email at: newproceedings@govermentlegal.gov.uk for all new legal proceedings issued in the UK except for new immigration proceedings.
…
The email addresses above are for the service of new proceedings only: any other correspondence addressed to it will be deleted unread. For all proceedings (including in the Supreme Court) once a GLD case officer has been allocated the case all subsequent service, save for formal costs claims in Immigration proceedings (see above), should be effected on their, or any nominated successor's, GLD email address).”
On 13 April 2021 Bindmans sent an email to Mr Olsen, stating:
“We write further to your letter of 12 April 2021 indicating that you expect to be able to respond to our pre-action letter of 8 April 2021 by 22 April. This is 14 days after our letter in respect of a case that, as you are aware, has to be filed within 30 days. It is also just three working days before the court deadline.
In these circumstances, we consider that it may well be necessary for our client to file a protective claim ahead of the limitation date, along with a consent order for an immediate stay to allow us to properly consider any response and engage in further pre-action correspondence if appropriate, with a timetable for filing full grounds and evidence, and summary grounds of response, if the claim cannot be resolved through correspondence.
Please confirm that, in light of the delay to the response to the pre-action letter, your client would be willing to agree to such a consent order, in the event that our client does choose to pursue this claim following receipt of the response.”
On 15 April 2021 Mr Olsen of the GLD replied, reiterating the need for fourteen days to respond to the pre-action letter and suggesting that an agreed stay was premature pending that response.
On 22 April 2021, the GLD provided its substantive response to the pre-action letter, stating:
“We ask that in future all correspondence in this matter is sent by email to the Government Legal Department marked for the attention of Warrick Olsen… copying the GLD individuals included in the email attaching this letter.
New legal proceedings in England which are required to be served on the Treasury Solicitor may be served electronically via email to the following email address: newproceedings@governmentlegal.gov.uk. We request that any new legal proceedings served in relation to this matter via that email address are also copied to the individuals included in the email attaching this letter…”
By letter dated 23 April 2021 Bindmans again raised the suggestion that the claim, when issued, should be stayed with an agreed timetable for the filing of full pleadings and evidence by the parties. The issue of a potential limitation issue was addressed as follows:
“For completeness, we note that you have suggested, for the first time, in your letter of 22 April, that time somehow started to run upon your receipt of a letter from this firm dated 18 March 2021 referring to “contracts awarded to PDL”. This is clearly unsustainable. Our letter of 18 March 2021 dealt with “any contracts which were awarded and then subsequently cancelled, and include, but are not limited to, any contracts awarded to Pharmaceuticals Direct Limited.” It is accordingly clear that we were referring to the contracts (or contract negotiations) referred to in paragraphs 17 and 18. Our client had no knowledge of the contracts subsequently awarded to PDL until the CAN of 29 March 2021. We would therefore invite you to accept that limitation expires on 27 April 2021. Even if your client maintains its position, this is a matter which can be dealt with within the litigation once issued. It does not affect the desirability of the stay referred to above”
By letter dated 27 April 2021 the GLD agreed to a stay of any proceedings but on the basis that such stay would remain in place, pending the outcome of other ongoing PPE challenges brought by the Claimant against the Defendant.
On 27 April 2021, the Claimant filed the claim in the Administrative Court, challenging the lawfulness of the Contract. The grounds of challenge were identified as:
i) breach of the duties of equal treatment and transparency contrary to the PCR 2015;
ii) breach of the common law duty to act without apparent bias.
Also on 27 April 2021, Bindmans emailed the unsealed claim form to the ‘newproceedings’...
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