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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