The High Court has thrown out a judicial review challenge over the lawfulness of a decision by the Secretary of State for Health and Social Care during the pandemic to award a £102.6m contract to a company for the supply of personal protective equipment (PPE), after finding the claim form was not served validly.
In The Good Law Project, R (On the Application Of) v The Secretary of State for Health and Social Care  EWHC 1782 (TCC), the claimant Good Law Project was seeking to challenge the lawfulness of the award to Pharmaceuticals Direct, the interested party.
A pre-action letter had been sent to the Government Legal Department (GLD) on 8 April 2021. The claim was filed in the Administrative Court on 27 April 2021. The grounds of challenge were:
- breach of the duties of equal treatment and transparency contrary to the Public Contracts Regulations 2015 ("PCR 2015"); and
- breach of the common law duty to act without apparent bias.
After the court issued the claim form on 28 April, the firm representing the Good Law Project sent the sealed claim form to three Government Legal Department individuals. However, the form was not sent to the ‘newproceedings’ email address specified by the GLD. A GLD lawyer confirmed receipt of the claim.
It was common ground that time for service of the claim form expired on 5 May 2021.
By a letter dated 6 May 2021, the GLD raised the issue of validity of service of the claim form with the Good Law Project’s solicitors.
"Your client's claim is required to be served on the Treasury Solicitor.
"We have been unable to locate any record of the sealed claim form issued in respect of this matter being sent to that email address or being served by other means."
The Good Law Project’s solicitors responded by saying they considered that:
(i) the Defendant was validly served with the proceedings in accordance with its instructions – there is no suggestion that all future service/correspondence must be provided to the "newproceedings" address once the initial proceedings had been served at that address; and
(ii) in any event, the Defendant's solicitors received and acknowledged both the original service of the unsealed claim form and associated bundle, as well as the sealed claim form, such that there can be no question of the Defendant not being aware of the claim or of having suffered any prejudice whatsoever.
On 6 May, a copy of the sealed claim form was sent to the ‘newproceedings’ email address.
The claimant issued an application seeking an order that, pursuant to CPR 6.15, the steps already taken to bring the form to the attention of the defendant and interested party had constituted good service. Alternatively, it sought an extension of time to serve the claim form for the defendant and for the interested party.
It was common ground that valid service of the claim form was not effected on Pharmaceuticals Direct by 5 May 2021. The Good Law Project’s solicitors sent the sealed claim form to a solicitor working for the interested party on 28 April 2021. Such service was invalid because that solicitor had not communicated to the claimant that he was authorised to accept service on behalf of the interested party or that service by email was permitted.
On 29 April 2021, the claimant sent the sealed claim form and bundle to the solicitor again, by recorded delivery. Eventually, on 13 May 2021, the claimant sent the sealed claim form and bundle to Pharmaceuticals Direct by recorded delivery. Therefore, the deemed date of service on the interested party was 17 May 2021.
Counsel for Pharmaceuticals Direct accepted that the material issue was whether there was valid service on the defendant, or whether any defect in that service should be rectified. If there was no valid service of the claim on the Defendant, there were no valid proceedings in which the interested party might participate. However, if there were valid proceedings against the defendant, regardless of any failure on the part of the claimant to serve the Interested Party on time, it would wish to have an opportunity to participate in the proceedings.
O’Farrell J concluded that the sending of the unsealed claim form to the defendant on 27 April 2021 did not constitute a step in the proceedings and the court did not have power under CPR 3.10 to correct the irregularity. “It follows that there was no valid service of the claim form on the Defendant within the prescribed time limit.”
She also said the claimant had not established good reason for the court to exercise its power under CPR 6.15 to authorise alternative service of the claim form.
Dismissing the claimant's alternative application for an extension of time to serve the claim form to 10 May 2021, the judge said – applying the guidance in Denton v White – in her judgment it would not be appropriate for the court to extend time for service in this case.
Mrs Justice O’Farrell suggested that the failure to effect valid service within the time specified by CPR 54.7 was “serious and significant”.
She added: "In the absence of service of a valid claim form, the defendant was not subject to the court's jurisdiction. The delay was one day but against the benchmark of seven days. The reason for the failure was a careless mistake made by the solicitors acting for the claimant. Extending time for service of the claim form would deprive the defendant of any accrued limitation defence.
“A material circumstance in this case is the very tight deadline imposed by the PCR 2015 for an economic operator, or other person, to challenge the lawfulness of a decision in respect of a public procurement contract. In those circumstances, it would not be appropriate to grant an extension of time."
The claimant's application was therefore dismissed and the defendant's application to set aside the claim form succeeded.