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HT-2020-000226

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- CRISP WEBSITES LIMITED (trading as PESTFIX)

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 application for permission to apply for judicial review is granted

on Grounds (2) and (3).

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

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

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Reasons

1. The Claimants’ 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.

2. 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.

3. 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.

4. 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 57), 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.

5. Ground 2:

(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.

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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.

6. 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.

7. Ground 4: The Claimants argue that a contract of 12 months duration

was disproportionate. The Claimants rely on factual matters post- contract as to the extent to which PPE procured under this contract has

been supplied to the NHS “frontline”. Post-contractual events do not

support the argument as to proportionality and presuppose what could

have been foreseen. In any event, the goods contracted for have

already been supplied and the ground is academic.

8. Ground 5: The Interested Party describes itself as a supplier of tools,

chemicals, PPE and other goods with expertise in sourcing PPE for use

in the pest control industry (where hazardous chemicals are used). It

cannot, in my view, have been irrational to place a contract with a

company offering to source PPE and with such experience simply

because it had itself no manufacturing capability. Relevant test

certificates were provided for the goods to be supplied. The fact that

good have not been, or were not immediately, distributed to the

“frontline” does not evidence deficiency or irrationality in placing of

the contract.

9. It follows that it is arguable that the Claimants are entitled to the

declaration sought and that that there is a practical remedy available.

10. For the avoidance of doubt, the Claimants have, by e-mail dated 13

November 2020, drawn to my attention press reporting of alleged

deficiencies in the PPE supplied by the Interested Party. I have not

taken these matters into account. The press reporting is not evidence

and, in any event, the Defendant is, in my view, right to submit that

the quality of goods supplied is a private law matter and not material

to the public law claim.

Case management directions

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1. The Defendant and any other person served with the Claim Form who

wishes to contest the claim or support it on additional grounds shall

by 4.00pm on 23 December 2020 file and serve (a) Detailed Grounds

for contesting the claim or supporting it on additional grounds, and

(b) any written evidence that is to be relied on. For the avoidance of

doubt, a party who has filed and served Summary Grounds pursuant

to CPR 54.8 may comply with (a) above by filing and serving a

document which states that those Summary Grounds shall stand as

the Detailed Grounds required by CPR 54.14.

2. Any application by the Claimant to serve evidence in reply shall be

filed and served within 21 days of the date on which the Defendant

serves evidence pursuant to 1(b) above.

3. The parties shall agree the contents of the hearing bundle and must

file it in electronic form with the Court by no later than 4.00pm on 1

February 2021. The parties shall make inquiries with the Court as to

whether a hard copy version is required and, if so, in what format.

4. The Claimant must file and serve a Skeleton Argument by no later

than 4.00pm on 8 February 2020.

5. The Defendant and any Interested Party must file and serve a

Skeleton Argument by no later than 4.00pm on 15 February 2021.

6. The parties shall agree the contents of a bundle containing the

authorities to be referred to at the hearing to be filed in electronic

form and the parties shall make inquiries as to whether a hard copy

is required and, if so, in what format. The electronic version of the

bundle and, if requested, the hard copy version of the bundle, shall

be lodged with the Court not less than 3 days before the date of the

hearing of the judicial review.

7. In accordance with the directions given at the Case Management

Conference on 18 August 2020, a hearing has been fixed for 22

February 2021 with a time estimate of 4 days, the first day to be a

reading day. The hearing is to be the hearing of the judicial reviews

in this action and also in actions nos. HT-2020-000292 and HT-2020-

000291.

8. Liberty to the parties to apply in respect of further directions and/or a

further case management conference.

Dated: 17th November 2020.

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