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Form JR 3 Judicial Review. Permission refused. Version September 2020
In the High Court of Justice CO/4055/2020
Queen’s Bench Division
Administrative Court
In the matter of an application for judicial review
THE QUEEN
on the application of
(1) GOOD LAW PROJECT LIMITED
(2) EVERYDOCTOR LIMITED
(3) ECOTRICITY NEW VENTURES LIMITED
(4) Mr DALE VINCE
(5) DIAGNOSTICSAI LIMITED
Claimants
-and-
(1) PRIME MINISTER
(2) SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE
Defendants
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
Acknowledgment of Service filed by the Defendants
ORDER by the Honourable Mr Justice Lavender
1. The application for permission to apply for judicial review is refused.
2. No order for costs.
Reasons
1. The First Defendant: The Defendants say that, consistently with his
ministerial responsibility, the Second Defendant took the decisions
which the Claimants seek to challenge. In those circumstances, a
claim against the First Defendant is unnecessary and inappropriate.
2. If and insofar as the First Defendant contributed to any decisions taken
by the Second Defendant, that could perhaps be relevant to an
assessment of the legality of the decisions taken by the Second
Defendant, although it is difficult to see how a decision which was
lawfully taken by the Second Defendant could be said to be unlawful
because the First Defendant agreed with it.
3. But if the decisions taken by the Second Defendant were unlawful, the
Defendants could not hereafter justify those decisions by contending
that they were in fact lawfully taken by the First Defendant.
4. Ground 1: This ground concerns the way in which contracts were
awarded, not the underlying decisions to enter into the contracts in
question. Those decisions are the subject of grounds 2 and 3. Ground
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Form JR 3 Judicial Review. Permission refused. Version September 2020
1 does not challenge, for instance, a decision to buy a quantity of a
particular type of testing equipment. It can only challenge the manner
in which the purchase contract was awarded.
5. In respect of the relevant contracts, the Claimants have not identified
any specific instance in which they contend that a different contracting
process would have produced a materially different result. They merely
assert in general terms that other economic operators might have
competed for the contracts in question. It is not suggested, however,
that those economic operators have challenged the Second
Defendant’s decisions.
6. The Defendants have identified in the Annex to the Amended Summary
Grounds of Resistance the contracts to which this ground might apply.
The Claimants have submitted a reply, but they have not identified a
single economic operator who would have bid for, let alone won, one
of those contracts. This is not surprising in the context of a world-wide
pandemic which has created a huge demand for certain products which
are in limited supply.
7. Moreover, this ground primarily concerns decisions made by the
Second Defendant as to the award of contracts to which the Public
Contracts Regulations 2015 applied. Those regulations contain an
enforcement mechanism. Judicial review is an exceptional remedy for
breach of those regulations. The Claimants do not have sufficient
interest to invoke judicial review: see R (Wylde et al) v Waverley
Borough Council [2017] PTSR 1245.
8. In particular:
a. The First and Second Claimants are not economic operators and
are not affected by any alleged breach of the regulations:
i. The First Claimant exists for the purpose of bringing
applications such as the present application.
ii. The Second Defendant is a campaigning organisation. It is
active in the health sphere, but it does not represent potential
contractors or others on whom a different outcome of the
contracting process would have had a direct effect.
b. The Third to Fifth Defendants are economic operators, but not in
the relevant market. If they claimed to have suffered, or risk
suffering, any loss or damage as a result of any alleged breach of
the regulations, they could have brought an action pursuant to the
regulations. However, they do not claim to have suffered, or to risk
suffering, any loss or damage. They rely on the mere possibility
that they might in future enter the relevant market. That is not a
sufficient interest.
9. The Claimants have no greater interest insofar as they allege that
contracts were awarded in breach of Article 56 TFEU. They contend
that the relevant contracts, if advertised, would have been of interest to
economic undertakings in other EU member states, but those
undertakings can speak for themselves and, as noted, it is not
suggested that they have challenged the Second Defendant’s
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Form JR 3 Judicial Review. Permission refused. Version September 2020
decisions.
10. In those circumstances, this is not a case where the gravity of the
(alleged) departure from public law obligations justifies the grant of a
public law remedy in any event.
11. It is appropriate to deal with standing at the permission stage in this
case, especially given its size and likely cost. Doing so is also
consistent with section 31(3)(a) of the Senior Courts Act 1981.
12. Ground 2: This is not a case about a failure to consult interested
parties. Rather, the Claimants contend that the Second Defendant
should have sought advice from a particular source before taking the
decisions under challenge. The Second Defendant was not under a
legal obligation to do so. It was for the Second Defendant to decide
what advice to take before making the impugned decisions. Advice
was taken, for example, from Public Health England Porton Down and
from the University of Oxford.
13. If and insofar as it is said that the Claimants had a legitimate
expectation, the Claimants have not relied (and do not even claim to
have relied) in any way on anything said or done by the Second
Defendant.
14. If and insofar as it is said that the National Screening Council had a
legitimate expectation, this is artificial. The Claimants themselves
contend in their reply that there is no scope, legally or factually, for the
National Screening Council to pursue a claim for judicial review against
the Defendants, which indicates that it does not have a legitimate
expectation enforceable against the Second Defendant. It is a scientific
advisory committee, with no legal personality or economic or other
interests.
15. Even if it were possible for a body which is based within Public Health
England (described by the Claimants in their reply as the Second
Defendant’s alter ego) to have a legitimate expectation enforceable
against the Second Defendant, the Claimants do not have a sufficient
interest to seek to enforce a legitimate expectation allegedly held by
the National Screening Council.
16. It is said that it was irrational for the Second Defendant to enter into
certain contracts for the procurement of certain types of testing
equipment without first seeking the advice of the National Screening
Council, but it is clear that specialist advice was sought on different
testing methods and, especially in the context of the pandemic and the
considerable efforts being made to combat it in a fast-moving situation,
it was not irrational for the Second Defendant not to seek the advice of
the National Screening Council.
17. Ground 3: This ground is simply a challenge to the merits of the
impugned policy decisions. The Claimants contend that the decisions
were not justified by the material available to the Second Defendant
and were bad decisions. They are entitled to that view, but it is not a
proper subject for judicial review.
18. Costs: The Defendants did not ask in their Acknowledgment of Service