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HT-2020-000291

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- CLANDEBOYE AGENCIES 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. Permission to rely on the Claimants’ Reply refused.

2. The application for permission to apply for judicial review is granted

on Grounds (2), and (3).

3. The application to permission to apply for judicial review on Grounds

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(1), (4) and (5) is refused.

Reasons

1. The Claimants’ Reply does not respond to new matters raised in the

Summary Grounds of Resistance and is unnecessary.

2. The Claimants’ Amended Statement of Facts and Grounds and the

Defendant’s Summary Grounds of Resistance argue this application at

some length. These reasons are, in consequence, longer than they

might commonly be but nonetheless are not intended 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 58), 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 is 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 both contract award decisions

were disproportionate because the most critical need for PPE had

passed when the contracts were entered into. That is unarguable in

unprecedented circumstances and where, as the Defendant submits,

pre-existing stocks had been depleted and a risk of a further wave of

infection existed. Further the Claimants rely on the allegation that the

items procured were not put into use. Post-contractual matters do not

support the case that the contract awards were disproportionate.

9. Ground 5: The Interested Party had an associated company that

supplied PPE, it had already contracted to supply PPE too the NHS, and

provided relevant test certificates. It cannot be said that it was

irrational to place a contract with the Interested Party. The matters

relied on by the Claimants at paragraph 80 c. to d. of the Statement of

Facts and Grounds either repeat the case as to proportionality or rely

on post-contractual matters that are either a private law matter or do

not evidence irrationality.

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.

Case management directions