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Dear Sirs
Re: Claim No. HT-2020-000226 / HT-2020-000291 / HT-2020-000292
The Queen on the application of (1)The Good Law Project (2)EveryDoctor Limited v Secretary of State
for Health and Social Care
We write in respect of your letter, dated 11 January 2021, which sets out your intention to seek a cost-capping
order (“CCO”) in respect of these proceedings and your letter, dated 18 January 2021, which provides an
estimate of your clients’ actual costs if they are successful in these proceedings.
Our client does not agree that the above mentioned proceedings are appropriate for a CCO because they do
not meet the criteria set out in Section 88 of the Criminal Justice and Courts Act 2015 (“CJCA 2015”) for such
an order to be granted. In particular our client does not agree that the proceedings are “public interest
proceedings”.
Your client brought various overlapping and largely duplicative proceedings concerning the procurement of
PPE. The claims were brought with an excessively broad scope and invited the Court to carry out a far- reaching inquiry. You now seek to avoid the cost implications of your actions.
The proceedings are not public interest proceedings,
Your client has provided no basis whatsoever for your claim that these are public interest proceedings, save for
a reference to our client’s evidence which cannot reasonably be construed as an acceptance of the same. In
your letter dated 11 January 2020, you have incorrectly inferred that our client considers that the proceedings
are public interest proceedings. Whilst we agree that sections of the public are interested in the procurement of
PPE, we do not accept that this means the proceedings fall within the statutory definition of “public interest
proceedings”.
Your clients may consider what the public are interested in to automatically be public interest proceedings; we
note that your challenges are broad in nature and driven primarily by issues which generate the most publicity
and therefore the most crowdfunds, rather than the merits of the underlying legal case. This is no basis for
suggesting that these are public interest proceedings.
Rook Irwin Sweeney LLP
107 - 111 Fleet Street
London
EC4A 2AB
Commercial Law Group
102 Petty France
Westminster
London
SW1H 9GL
DX 123243, Westminster 12 www.gov.uk/gld
Your ref:
Our ref:
22 January 2021
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The matters to which the court must have regard when determining whether proceedings are public
interest proceedings
Section 88(8) CJCA 2015 sets out matters which the court must have regard when determining whether
proceedings are public interest proceedings which, inter alia, includes:
a) the number of people likely to be directly affected if relief is granted to the applicant for judicial review,
and
b) how significant the effect on those people is likely to be, and
c) whether the proceedings involve consideration of a point of law of general public importance.
As we have previously explained, the Contracts upon which these proceedings are based will have been
delivered and paid for and the Contracts performed. As a result there is no practical remedy which would be
granted and any declaratory relief would only directly impact a very small number of people.
It should also be noted that the impact that any declaratory relief will be minimal as the Secretary of State is no
longer seeking offers for PPE via the online portal, and it is highly unlikely this will be necessary in future.
Given that the minimal direct impact of the relief sought, it cannot be said that these proceedings are “public
interest proceedings”.
Alternatively, the reciprocal cap is too high
In any event, without prejudice to the position above, should the court be minded to grant a CCO, we would
dispute the size of the reciprocal cap your client proposes. If our understanding is correct, it would essentially
allow your client to recover 100% of their costs charged at Treasury Rates. Whereas if our client wins, he would
not recover 100% of his costs charged at Treasury Rates, but only a fraction of those. This is unequitable and
means that your clients’ carry far less cost risk in the proceedings compared to our client. Furthermore, we
understand from your correspondence that if your client succeeds in these proceedings and is awarded
£250,000 in costs, your client will essentially accrue a profit of £350,000 (your costs effectively being £250,000,
which you have already fundraised). This is excessive. Whilst the case law states that judicial review
proceedings should be sustainable for those involved, the CCO regime cannot be used in a way which allows
your client to generate a healthy profit with no risk whatsoever.
Accordingly, a cap of £250,000 exceeds what would be necessary to sustain your client. Setting the cap at
£100,000 would be equitable should the Court be minded to grant a CCO.
Yours faithfully
For the Treasury Solicitor