The King (on the application of the Good Law Project Limited) v The Secretary of State for Health and Social Care v Abingdon Health Plc [2022] EWHC 2468 (TCC) – Part One: Standing

In the first in a two-part series on a recent procurement challenge brought by the Good Law Project, Joe Walker analyses the judge's conclusion as to whether the organisation had standing.

Earlier this month, the High Court handed down its judgment on the latest in the line of ‘Good Law Project’ (‘GLP’) procurement challenges. (The King (on the application of the Good Law Project Limited) v The Secretary of State for Health and Social Care v Abingdon Health Plc [2022] EWHC 2468 (TCC))

This challenge related to the decision by the Department of Health and Social Care (‘DHSC’) during the Covid-19 pandemic to award contracts for the development of antibody lateral flow tests to Abingdon Health.

Notably, addressing a question that the Court of Appeal in GLP v Minister for the Cabinet Office and Public First Ltd [2022] EWCA 21 recently stated was “ripe for review when it next arises”, the Judge found that the GLP did not have standing to bring the judicial review.

This article explores how the judge arrived at this conclusion, and its implications for future procurement cases brought for judicial review.

When does an applicant have standing to bring a judicial review?

Prompted by the observations in Public First, DHSC challenged GLP’s standing to raise any of the substantive grounds for judicial review. Standing in this context requires the applicant to have a ‘sufficient interest’ in the matter – s.31(3) Senior Courts Act 1981.

In his judgment, Waksman J noted that the case law on sufficient interest showed it was a multi-faceted question and acutely fact sensitive. He laid out 6 key factors that must be considered:

• Merits – The relevance of the merits of the underlying claim is shown by the fact that although standing goes to jurisdiction, it is generally determined after the permission stage – at the main hearing or at a preliminary issue hearing. However, merit is not always such a powerful factor that if the underlying claims failed (as was the case here), it necessarily followed that there was no standing.
• Context – In the context of a public law claim alleging unlawfulness under the Public Contract Regulations 2015 (‘PCR’), the “natural” claimants would be the economic operators whose interests are subject to the PCR. However, that does not mean a non-economic operator can never be a public law claimant. For instance, in Chandler v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1011 it was observed that non-economic operators may have a sufficient interest if they can show that compliance with the public procurement regime might have led to a different outcome that would have had a direct impact on them.
• Effect on claimant – Clearly the impact on the claimant is relevant. In this case, it was not suggested that GLP had been affected by the alleged unlawfulness any more than any other member of the public (as distinct from economic operators who may have had such a claim).
• Gravity – The gravity of a departure from public law obligations may justify the grant of a public law remedy in any event, even potentially to non-economic operators in the context of the PCR. This factor would not by itself be determinative however.
• Other possible claimants – Some cases suggested that a factor in favour of standing was that while there were economic operators who could theoretically bring the claim, they were unlikely to do so because the outcome was speculative or it would be too expensive. However, Waksman J found that it cannot be right that just because economic operators who were potential claimants decided, for whatever reason, not to litigate, that would be sufficient to confer standing on someone else who was prepared to, or at least a strong factor in their favour. The Judge found the Court should concentrate more on the effect on the actual claimant or gravity, than on why the natural claimant did not in fact litigate.
• Claimant’s position – The Judge found that it was well accepted that if the claimant is a “busybody” or has some form of ulterior motive in the outcome, this can be enough to disqualify them. Usually, however, the claimant’s own position is not considered in a vacuum and has to be assessed in the context of the case as a whole.

Applying these factors to GLP’s claims, the Judge decided GLP had not established standing. In particular:

• GLP was not affected in any tangible way by the award of the contracts that was the subject of the challenge. The failure to litigate by the economic operators affected by the award was not of substantial weight.
• This was not a “grave” claim. Unlike GLP v SSHSC [2021] EWHC 346, which was a case involving a failure by the SSHSC to comply with its own Transparency Policy in relation to contracts involving billions of pounds, this case concerned a single operator in contracts worth in the region of £15m. Gravity also had to be assessed against the findings of the case and all grounds of challenge failed.
• As to GLP’s own position, whilst GLP may have acquired particular insights into procurement-related claims, only limited weight could be attached to that. GLP could not in effect confer standing upon itself by drafting its objects clause within its Articles of Association “so widely that just about any conceivable public law error by any public authority falls within its remit. That would be tantamount to saying that the GLP has standing to bring judicial review proceedings in any public law case.”

The judgment therefore provides a helpful summary of the main factors relevant to standing, and a practical example of their application to a prominent public interest group in GLP.

In light of the findings in this case, it may be that standing takes a more prominent role in claims involving public interest groups going forward. All potential parties to such claims should be alive to the factors the Court will consider when deciding whether the applicant has a sufficient interest in the matter being challenged.

Underpinning the decision on standing was the judge’s conclusion that the claimant had failed on all the substantive grounds of public procurement principles that it had raised. Juli Lau, Legal Director in our Infrastructure team, will highlight key snippets on procurement principles in the second part of our analysis on this case, to be published on Local Government Lawyer next week.

We advise contracting authorities on all manner of issues relating to public procurement and procurement challenges. We are on hand to guide contracting authorities through the intricacies of running complex procurements and responding to procurement challenges.

Joe Walker is a Senior Associate at Sharpe Pritchard LLP.

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