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IN THE HIGH COURT OF JUSTICE CASE NO: CO/2437/2020
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
AND ADMINISTRATIVE COURT
B E T W E E N : -
THE QUEEN
on the application of
GOOD LAW PROJECT LIMITED Claimant
-and-
THE MINISTER FOR THE CABINET OFFICE Defendant
-and-
PUBLIC FIRST LIMITED Interested Party
_____________________________________________
FIRST WITNESS STATEMENT OF JOLYON TOBY DENNIS MAUGHAM QC
_____________________________________________
I, Jolyon Maugham, of Devereux Chambers, Queen Elizabeth Building, Middle Temple, will say as
follows:
1. I am the founder and Director of Good Law Project Limited , and I make this witness
statement in support of our claim for judicial review of the Defendant s decision of 5 June 2020
to award a contract to the Interested Party for the provision of and
support services.
Standing
2. In its formal response to our letter before claim dated 23 July 2020, the Defendant failed to
address our substantive claim in any way and instead submitted that GLP does not have standing
to bring this claim because (1) this is a procurement challenge and GLP is not an economic
operator and (2) GLP lacks the necessary direct interest. I set out below why GLP has standing to
bring this claim.
3. The Judge will be aware that GLP has applied for this claim to be linked to the Pestfix case (HT- 2020-000226), in which GLP and EveryDoctor have challenged the award without competition of
a valuable contract for the supply of personal protective equipment to Pestfix Limited. I exhibit to
this statement marked JTDM a copy of my witness statement dated 15 July 2020 in Pestfix.
Included is the first exhibit to that statement, which is the GLP annual report, but not the other
exhibits, as they are only relevant to the Pestfix case. At paragraphs 2-6 and 8 of that statement I
explain the status of GLP as a not-for-profit organisation and that we support public interest
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litigation across three main strands of work: (1) the voiceless , (2) the environment, and (3)
governance. I will not repeat again what is set out in that statement, which goes into detail about
what we mean by The facts of the present case seem to us to raise an obvious
governance concern such that it is appropriate for GLP to act as a claimant in this claim.
4. There are also good reasons why potential bidders (or operators ) have not brought a
claim against the Government regarding the Public First contract. The following points are my
synthesis of conversations I have had with a number around ten of prospective claimants in
either this judicial review claim, others GLP has brought against the Cabinet Office or the
Department of Health and Social Care, or others GLP has been urged to bring or is considering
bringing in relation to what might be unlawful procurement decisions in other sectors. Those
conversations include conversations with individuals at successful bidders, at unsuccessful
bidders, at what might be described as trade associations, and at industry participants who did
not bid. For reasons which will become clear, I am unable to name these individuals. There is a
quite striking uniformity in the answers these individuals have given to my questions.
i. There is profound unhappiness about both the substantive, contract award decisions central
Government has taken and the process whereby those decisions were made. More
particularly, concerns have been expressed about the prices that Government has paid a
number of people who I have good reason to understand to be well informed about market
pricing for the work which is the subject of the contract at issue in the present claim have
expressed incredulity about the price paid. One very well informed individual told me that it
appeared although they did not have perfect visibility of the work that had been
commissioned that very substantial sums of money were being paid without any obvious
deliverables.
ii. When I have asked individuals both in this market and in the PPE market and in other
markets where Government has sought to procure whether they would be a co-claimant
alongside us in order to remove any argument the Government might have about standing,
they have refused to do so. They have also refused to give witness evidence or to be publicly
associated with a legal claim. Generally the reason they have given is that they would be
punished by Government for doing so. This is typically put in terms of them understanding
that for them to publicly support litigation like this which is brought very much in the public
interest - would be likely to generate retaliatory commercial action against them and prevent
them from being awarded Government contracts in the future. I was also told by someone I
believe to be well informed that the person they understood to have procured the award of
this contract to PFL has a reputation for making life impossible for anyone who stands against
him and that this meant that they could not be seen publicly to assist in this litigation. I am
not in any position to judge whether these concerns are well-founded, I merely report them
to explain why no economic operator has come forward to challenge the award of the
contract to PFL.
iii. I have been told that civil servants in the Cabinet Office have expressed unhappiness in
relation to the process whereby this contract was awarded. As I understand it, the
unhappiness amongst civil servants centers on the concern that the decision to award this
contract was a political one that, without good reason, bypassed normal procurement
processes. I also understand, reflecting that concern, that there have been discussions
between Cabinet Office and industry participants about the award of this contract.
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iv. When I speak to new potential co-Claimants my of them is now very much whether they
might be able to provide me with intelligence privately. As a matter of form I ask whether they
might be prepared to be a co-Claimant or give a witness statement but I have a very clear
expectation that the answer will be This expectation of mine is conditioned by the
number and consistency of similar conversations I have now had.
5. The witness statement by dated 30 July 2020 also summarises information
provided by market research professionals who did not wish to be identified as they are concerned
about the potential repercussions, both professionally and personally, of giving evidence in a claim
against the Government. The concern I have, arising from all of the above, is that if it were to be
said that GLP did not have standing to bring this challenge then, given the climate that I have
described, there would in practice be no way in which the law securing the public interest in
proper procurement could be enforced.
6. In any event, for the reasons set out above, the issues raised by the claim are more in the nature
of governance issues, within the province of GLP, than issues which one could reasonably expect
an economic operator to pursue. This is particularly the case vis-à-vis the claim that the award of
the contract to PFL is vitiated by apparent bias (with GLP having reserved its position as to whether
there was also actual bias). This is a conventional public law challenge which any private citizen
with a genuine interest in the proper administration of public funds has standing to bring and
which is unaffected by any special approach which might apply to claims of breach of the Public
Contracts Regulations 2015.
7. Finally, I argue that there is a wider public interest in this matter, such that GLP has standing to
bring the claim. This case has caused widespread consternation among the public, as evidenced
by (a) our Crowdfunding campaign, which raised over £120,000 to date,1 and (b) the debate within
the market research industry that this case has triggered. This is explained further in the
statement of dated 30 July 2020.
8. There is evidence that Regulation 32 of the Public Contracts Regulations 2015, which governs the
use of the negotiated procedure without prior publication, has been widely used and abused by
the Government and by the Cabinet Office in particular. By way of example, a contract worth
£10,000,000 was awarded to a company called 23Red on 8 April 2020 for COVID-19 Various
Campaign Services utilising Regulation 32. Another contract, worth £705,000 was awarded to
Kantar UK Ltd on 13 April 2020 for the Provision of COVID-19 Campaign Tracking and Reporting
Services , again utilising Regulation 32. A copy of these award letters is exhibited at JTDM2 . This
is not therefore an isolated case and it is in the public interest that the decision- making in reliance upon Regulation 32 is subject to judicial scrutiny.
Public First Limited
9. On its website PFL describes its work as follows: We help organisations understand and influence
public opinion through research and targeted communications campaigns. And we help businesses
craft policy ideas that Governments can realistically apply to difficult issues Exhibited to this
statement at 3 are screenshots of homepage. I also exhibit as JTDM4 relevant
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https://www.crowdjustice.com/case/a-river-to-my-people/