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HT-2020-000292
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
THE HONOURABLE MRS JUSTICE JEFFORD DBE
B E T W E E N:
THE QUEEN
on the application of
(1)THE GOOD LAW PROJECT
(2)EVERYDOCTOR
Claimants
-and- THE SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE
Defendant
-and- AYANDA CAPITAL LIMITED
Interested Party
Notification of the Judge’s decision on the application for
permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the Claimants and the
Acknowledgements of Service and Summary Grounds of Resistance filed by
the Defendant and the Interested Party
ORDER by Mrs Justice Jefford:
1. The Claimant has permission to rely on its Reply.
2. The application for permission to apply for judicial review is granted
on Grounds (2), (3) and (5).
3. The application for permission to apply for judicial review on Grounds
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(1) and (4) is refused.
Reasons
1. Permission is granted for the Claimant’s Reply which largely responds
to new matters in the Defendant’s Summary Grounds of Resistance
including issues of fact and technical issues.
2. The Claimant’s Amended Statement of Facts and Grounds, the
Defendant’s Summary Grounds of Resistance, and the Claimant’s
Reply argue this application at some length. These reasons are, in
consequence, longer than they might commonly be but nonetheless it
is not proportionate to address every issue raised.
3. Standing: It is arguable that both Claimants have standing to bring
these claims. I note that the Administrative Court Guide paragraph
5.3.2.2 indicates that the issue of standing will normally be dealt with
at the permission stage. However, given the interface between the
judicial review claim and the procurement regime, I consider it
appropriate for this issue to be determined at the substantive hearing.
4. Limitation: It is well arguable that the claim is in time. The Defendant’s
argument that time ran from 27 March 2020 being the date of the
launch of the Coronavirus Support From Business” Scheme
presupposes that the claim is a challenge to nature of the scheme and
not to the procurement of a particular contract/ supply.
5. Ground 1: It is, in my view, not arguable that the Defendant was not
entitled to rely on Regulation 32(2)(c) of the Public Contracts
Regulations 2015 and that the letting of this contract did not fall within
the Regulation. The Claimants’ case, in summary, is that the need for
PPE was foreseeable from February 2020 and, therefore, could not
have been unforeseeable when this contract was placed. The
Claimants’ case identifies a factual basis on which the need for PPE
was foreseeable in February but not the extent to which that need
increased and market conditions radically changed and/or any basis on
which a fully competitive tender process ought to have been
commenced at that time or thereafter and been completed so as to
meet the need for PPE. For the same reasons, the Claimants’ case that
the circumstances giving rise to extreme urgency were attributable to
the Defendant is not arguable. Further or alternatively, as the
Defendant submits (paragraph 65), the Claimants’ case, in effect,
seeks an audit of the government’s approach to the procurement of
PPE and a wide-ranging consideration of factual issues which is not
amenable to judicial review.
6. Ground 2:
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(i) Firstly, it is arguable that the principles of transparency and
proportionality at least apply even where there is a negotiated
procedure under Regulation 32. Secondly, it is arguable that the
procedure adopted by the Defendant was not transparent.
(ii) The Defendant argues that the Claimants’ case proceeds on the
basis that the Defendant ought to have carried out a competitive
tender process despite proceeding under Regulations 32.
However, the background to the negotiated procedure was the
open invitation to businesses to offer to supply PPE before
individual entities were approached to tender. In those
circumstances, it seems to me arguable that the Regulations and
general principles relied on by the Claimants require a degree of
transparency as to the criteria by which offers would be assessed
and potential tenderers selected and that the procedure adopted
was not sufficiently transparent.
7. Ground 3: Ground 3 is related to Ground 2 in the sense that, if the
Claimants’ case as to transparency succeeds, it may well follow that
the Defendant has given insufficient reasons for the placing of this
contract with the Interested Party. The Defendant argues that the
authorities relied upon are concerned only with the duty to provide
reasons to another economic operator. However, if the Claimants have
sufficient standing, it seems to me arguable that they can rely on the
same duty.
8. Ground 4: The Claimants argue that the contract was placed for the
supply of masks long after the peak demand for supply had subsided.
That is a post-contract matter and pre-supposes knowledge or
foreseeability of the progress and impact of the pandemic. Such post- contractual events do not support the argument as to proportionality.
9. Ground 5: Firstly, the Interested Party was not the party that offered
its goods and services and it is arguable that it was irrational to place
a contract with a different company, particularly one requiring a
significant pre-payment, on the basis primarily of its banking position.
Secondly, the Claimants identify an arguable case the it was clear that
the FFP2 masks contracted for were not in accordance with
EN149:2001+A1:2009. That is arguably not a purely private law
matter but goes to the rationality of the placing of the contract in whole
or in part. Further, this ground relates to grounds 2 and 3 on which I
have given permission.
10. It follows that it is arguable that the Claimants are entitled to the
declaration sought and that that there is a practical remedy available.
11. The Defendant argues that the fact that a claim has been issued in this
Court by an economic operator is a ground for refusing permission
because of the risk of duplication of proceedings and inconsistent
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decisions. That may be a matter for case management. It is not a
ground for refusing permission.
Case management directions
1. The Defendant and any other person served with the Claim Form who
wishes to contest the claim or support it on additional grounds shall
by 4.00pm on 23 December 2020 file and serve (a) Detailed Grounds
for contesting the claim or supporting it on additional grounds, and
(b) any written evidence that is to be relied on. For the avoidance of
doubt, a party who has filed and served Summary Grounds pursuant
to CPR 54.8 may comply with (a) above by filing and serving a
document which states that those Summary Grounds shall stand as
the Detailed Grounds required by CPR 54.14.
2. Any application by the Claimant to serve evidence in reply shall be
filed and served within 21 days of the date on which the Defendant
serves evidence pursuant to 1(b) above.
3. The parties shall agree the contents of the hearing bundle and must
file it in electronic form with the Court by no later than 4.00pm on 1
February 2021. The parties shall make inquiries with the Court as to
whether a hard copy version is required and, if so, in what format.
4. The Claimant must file and serve a Skeleton Argument by no later
than 4.00pm on 8 February 2020.
5. The Defendant and any Interested Party must file and serve a
Skeleton Argument by no later than 4.00pm on 15 February 2021.
6. The parties shall agree the contents of a bundle containing the
authorities to be referred to at the hearing to be filed in electronic
form and the parties shall make inquiries as to whether a hard copy
is required and, if so, in what format. The electronic version of the
bundle and, if requested, the hard copy version of the bundle, shall
be lodged with the Court not less than 3 days before the date of the
hearing of the judicial review.
7. In accordance with the directions given at the Case Management
Conference on 18 August 2020, a hearing has been fixed for 22
February 2021 with a time estimate of 4 days, the first day to be a
reading day. The hearing is to be the hearing of the judicial reviews
in this action and also in actions nos. HT-2020-000226 and HT-2020-
000291.
8. Liberty to the parties to apply in respect of further directions and/or a
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further case management conference.
Dated: 17th November 2020.