Nicola Sumner, Juli Lau and Beth Edwards look at The Good Law Project's challenge of the direct award by the Secretary of State for Health and Social Care of three contracts for the production and supply of rapid Covid-19 antibody tests (the “Contracts”).
The Contracts were awarded in April, June and August 2020 but were only publicly announced in October 2020. The GLP argues that the Contracts were awarded contrary to the PCR 2015, and the sums paid by SoS under them comprise unlawful state aid.
Prior to the judicial review hearing, the GLP applied for the disclosure of the following, which were contested by SoS:
- The emails sent from the Oxford University email account of Professor Sir John Bell (the “Professor”) – the GLP argued that in his role as an unpaid government adviser, the Professor had been vitally involved in the award of the Contracts.
- The personal email and WhatsApp accounts of Matt Hancock, who was the Secretary of State for Health and Social Care at the time of the Contracts being awarded.
Further, the GLP contested the SoS’s application to use expert evidence to defend the GLP’s claim that the award of the Contracts amounted to unlawful state aid.
Disclosure of the Professor’s university email account
A decision on this matter should not be made without the Professor (and potentially the University of Oxford) in attendance and having the opportunity to contest such an order being made. The application will only be heard after an application for third-party disclosure has been served on the Professor (and the University of Oxford have been given notice of this).
Disclosure of Matt Hancock’s personal emails and WhatsApp messages
The SoS accepted that Matt Hancock used his personal email and WhatsApp accounts during the relevant period when the Contracts were awarded. When deciding whether it is reasonable and proportionate under CPR Part 31.7 to order disclosure, the following should be considered:
- Although the SoS argued that Matt Hancock’s role was “limited”, it was of central importance to the award of the Contracts; already-disclosed emails state that any ministerial submissions had to be approved by him.
- On other devices where data would usually be available and disclosable (for example, the work phones of senior civil servants) the relevant emails had been deleted or erased. Disclosure of Matt Hancock’s personal messages may be the only way to obtain these communications which would not otherwise be available to the court.
In the circumstances, the disclosure of these documents was held to be reasonable and proportionate.
Expert evidence is rarely permitted in judicial review hearings. Under the CPR Part 35, expert evidence should be restricted to that which is reasonably required, and this would not generally be the case in judicial review. However, expert evidence may be brought when the court proceedings require an understanding of technical matters. The economics of state aid is a subject which is of a sufficiently technical nature that expert evidence may be required.
However, in this case the report produced by the SoS’s expert witness failed to comply with the CPR, particularly the fundamental principle that any material relied upon by an expert in reaching relevant conclusions should be made available to both the court and the other side.
The SoS had been advised by the Court of the defects of the report provided and proceeded to provide an amended report, which the Court considered did not remedy the original defects and ignored the rules. Given these circumstances, the SoS would not be provided with a third opportunity to correct the report, and the application to adduce expert evidence was rejected.
One of the most striking aspects of this judgment is the order for disclosure of Matt Hancock’s personal communications. Indeed, when the GLP reported the result on their website, they noted that they believe it to be the first time an order of this kind has been made against a minister or ex-minister. It is important for those making procurement decisions to bear in mind that informal communications on personal accounts may be disclosed in challenges.
The GLP is also bringing another more general challenge against the use of personal accounts to carry out government business, which it considers to be in breach of national security and unlawful. With this in mind, it is unlikely that this will be the last we hear about this issue.
We have expertise in advising contracting authorities on a multitude of issues relating to public procurement, including procurement challenges. As public sector specialists, our experts are on hand to advise contracting authorities on how to comply with the procurement regulations, civil procedure rules and public law obligations.
Nicola Sumner is a Partner and Head of Infrastructure, Juli Lau is a Legal Director and Beth Edwards is a Paralegal at Sharpe Pritchard.
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