The Queen (on the application of The Good Law Project) v Minister for the Cabinet Office
Jurisdiction | England & Wales |
Judge | The Lord Burnett of Maldon CJ |
Judgment Date | 18 January 2022 |
Neutral Citation | [2022] EWCA Civ 21 |
Court | Court of Appeal (Civil Division) |
Docket Number | Case No: A1/2021/1153 |
and
[2022] EWCA Civ 21
The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
Lord Justice Coulson
and
Lady Justice Carr
Case No: A1/2021/1153
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE TECHNOLOGY AND CONSTRUCTION COURT
Mrs Justice O'Farrell
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Eadie QC, Michael Bowsher QC, Ewan West and Anneliese Blackwood (instructed by The Treasury Solicitor) for the Appellant
Jason Coppel QC and Patrick Halliday (instructed by Rook Irwin Sweeney LLP) for the Respondent
Hearing date: 25 November 2021
Approved Judgment
Introduction
This is the judgment of the court to which we have all contributed.
The Minister for the Cabinet Office appeals against the decision of O'Farrell J to allow (in part) a claim for judicial review of his decision to award a contract to Public First Limited without public notice or competition, relying on Regulation 32(2)(c) of the Public Contracts Regulations 2015.
The decision was made in late February/early March 2020 as the Covid-19 pandemic took its grip on the nation. The Director General of the World Health Organisation formally classified the disease as a pandemic on 11 March 2020 and on 23 March 2020 the Prime Minister announced the first “lockdown” with the slogan:
“Stay at home, Protect the NHS and Save lives”.
The contractual services were the provision of focus group and communications support services designed to inform government public messaging and communications strategy for the pandemic crisis. Among other things, Public First was responsible for testing the slogan launched at the beginning of the first national lockdown. There is no suggestion that Public First provided its services with anything other than expert skill and care; on the contrary Public First has been described as having been “very insightful”, having done “an excellent job”, “a brilliant job” and having provided “work of a very high standard” that met deadlines. Its services helped to inform government decisions of “vital life-saving importance”. Against a maximum value of £840,000 payable under the contract, a total of £564,393.67 was paid.
The Good Law Project Limited (“Good Law”), a not-for-profit organisation with a stated aim of using the law to protect the interests of the public, commenced proceedings for judicial review on 10 July 2020 on the following grounds:
i) There was no basis for making a direct award under Regulation 32(2)(c), as the direct award of the contract to Public First was not strictly necessary;
ii) The award of the contract for a period of six months was disproportionate. Even if Regulation 32 was applicable, the contract should have been restricted to the Minister's immediate, short-term needs, pending a competitive process to procure a longer-term supply of the services;
iii) The decision to award the contract to Public First gave rise to apparent bias contrary to principles of public law. The fair minded and informed observer would conclude that there was a real possibility of bias having regard to the personal connections between the decision-makers and the directors of Public First.
No challenge or complaint was ever raised to the award of the contract by any potential competitor of Public First. The judge held that Good Law had sufficient standing to bring proceedings for the purpose of section 31(3) of the Senior Courts Act 1981 and rely upon the Regulations, as might a commercial entity which considered that it had been deprived unlawfully of the opportunity to bid for the contract. She also concluded that Good Law had standing to mount the public law challenge based on apparent bias despite having no interest in the letting of the contract. The Minister has not appealed that part of the judge's decision. It was based, so far as concerns the Regulations, on the obiter dicta of this court in R (Chandler) v. Secretary of State for Children, Schools and Families [2009] EWCA Civ 1011 at [77] and [78]. They were summarised in R (The Good Law Project Limited and others) v. Secretary of State for Health and Social Care [2021] EWHC 346 (Admin) by Chamberlain J at [99]. The arguments on standing below did not distinguish between the claim based on the Regulations and the public law challenge based on apparent bias. The question of standing for complete strangers to the procurement process with no commercial interest both under the Regulations and on public law grounds is a question ripe for review when it next arises.
The judge dismissed Good Law's challenge under Regulation 32 and on the basis that the six-month period of the contract was disproportionate. She allowed the claim that the decision to award the contract to Public First gave rise to apparent bias contrary to common public law principles. This finding was based on a combination of the personal association between Dominic Cummings, the then Chief Adviser to the Prime Minister, and the directors and owners of Public First (which she found did not in itself to give rise to any apparent bias) and the Minister's failure to consider any other research agency or to keep a record evidencing that objective criteria were used to select Public First over other research agencies.
This is an unprecedented outcome: a party with no potential interest in a contract has not hitherto obtained a declaration of unlawfulness on the basis of apparent bias in respect of a decision by a public body to grant a private law contract.
The Minister appeals against the finding of apparent bias. Good Law cross-appeals against the dismissal of its claim under Regulation 32 and that the six-month duration of the contract was disproportionate.
A Procedural Issue
Good Law submits that the Appellant's Notice was filed one day late. That is because, although it was filed electronically on the last day allowed by CPR 52.12(2)(b) (30 June 2021) it was not sent by email until 23.47 which was too late. Good Law says that, in accordance with CPR 5.5 and Practice Direction 5B a document sent by email after 16.00 is deemed to have been received the following day: PD5B, paragraph 4.2. The Minister says that the notice was not sent in accordance with Practice Direction 5B but, instead, pursuant to the “Court of Appeal Civil Division urgent business priorities coronavirus update” of 17 May 2021 and in force at the time. This required all documents to be filed with the court electronically and made no mention of any deeming provision. The notice was therefore filed on the last available day, 30 June.
CPR 5.5 and Practice Direction 5B govern the sending and filing of documents by email. Although, pre-pandemic, only some documents could be sent or filed by email, the update made clear that those restrictions had been removed because of the pandemic. Instead, all documents, including the Appellant's Notice, could be filed by email. But nothing in the update abrogated or modified the rule as to deemed receipt after 16.00 set out in PD5B. Furthermore, the general application of that rule is reiterated by CPR 2.8(5) and the note in the 2021 White Book at para 2.8.5. The Appellant's Notice was thus filed one day late.
That said, we grant relief from sanctions in accordance with the principles set out in Denton v. TH White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926. The deemed delay of a day was not serious or significant; the Minister's late change of mind about appealing provides at least some explanation for the delay; and a consideration of all the circumstances of the case, and in particular the important issues that have been raised by the appeal, makes it just to grant the necessary extension of time.
The Facts
The factual background is set out in detail at [7] to [61] of the judgment below: [2021] EWHC 1569 (TCC). We shall provide only a summary.
Appointment of Public First
Public First is a consultancy firm specialising in opinion research on complex issues of public policy, as well as policy analysis and communications. It was established by Rachel Wolf and James Frayne, its directors. In 2011 Mr Frayne was appointed to work as Director of Communications for the Department of Education, where he worked alongside Mr Cummings, who was then a special adviser to the Rt Hon. Michael Gove MP. Ms Wolf formerly worked as an adviser to Mr Gove and by 2020 had worked previously for Mr Cummings as well. Through these work connections, Mr Cummings had become a personal friend of Ms Wolf and Mr Frayne, although he had not met Mr Frayne since 2016.
In early February 2020, Public First was engaged by the Minister for the discrete task of providing focus group services to test public opinion and policies in preparation for the Prime Minister's speech planned for later that month, ahead of the budget. Neither Mr Cummings nor Mr Gove had any involvement in this appointment.
By late February 2020 the growing crisis arising out of the Covid-19 pandemic had become apparent; the public health crisis had developed quickly. The Minister needed an accurate understanding, amongst other things, of what the public knew or understood about Covid-19 and safety information, what was the most vital information and how best to convey it, how the public was behaving, and to check the effect of visual displays. Urgent external help was required to communicate essential health messages to the...
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