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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