The Good Law Project has been prolific in reviewing a lot of the decisions taken by government during the pandemic and has had a number of successes with judicial review challenges of decisions taken. However, they have recently suffered a couple of losses in the Court of Appeal. The Good Law Project vehemently disagree with both decisions and have vowed to seek permission to appeal both from the Supreme Court, so let's a look at the issues.
What is judicial review?
Both claims were brought by way of a judicial review challenge. Judicial review is the procedure by which the courts examine the decisions of public bodies to ensure they act lawfully and fairly. The courts will review the process by which the decision was reached but will not assess the rights and wrongs of the decision (unless there has been an error of law).
R (on the application of Good Law Project) v Minister for the Cabinet Office
In the early stages of the pandemic, the Minister for the Cabinet Office awarded a six month contract for the provision of focus group and communication support services to Public First, a consultancy firm with a specialism in opinion research on complex issues of public policy, as well as policy analysis and communications. Given the urgency of the situation, the contract was awarded without public notice or competition, relying on Regulation 32(2)(c) of the Public Contracts Regulations 2015.
Good Law Project brought a judicial review challenge in July 2020 on the following three grounds:
- i) The direct award of the contract was not strictly necessary, as such there was no basis upon which to make the award under Regulation 32(2)(c);
- ii) The award of the contract for a period of six months was disproportionate;
- iii) The award of the contract to Public First gave rise to apparent bias contrary to the principles of public law.
At first instance, the challenge on grounds (i) and (ii) was dismissed, but was successful on ground (iii). In response, the Minister for the Cabinet Office brought an appeal against the decision on ground (iii), and Good Law Project brought a cross appeal in relation to grounds (i) and (ii).
The Court of Appeal agreed with the High Court’s determination that the award of the contract in these circumstances was strictly necessary in accordance with Regulation 32(2)(c) and dismissed the cross appeal. The court rejected arguments from Good Law Project that there was time to run an accelerated procurement, and also rejected submissions that existing contracts with suppliers could have provided the required services. The court found that it would be wrong to find a contracting authority could only contract with existing suppliers in situations of extreme urgency. The court also ruled that the contract was no longer in duration or wider in scope than was necessary, and any belief otherwise was reliant on the benefit of hindsight. For these reasons Good Law Project’s cross appeal failed.
However, the Court of Appeal did overturn the High Court’s decision on ground (iii), that the award of the contract to Public First gave rise to apparent bias.
The view taken by the High Court was that there was apparent bias, based on the failure of the Minister to consider other agencies and a failure to keep a clear record to show the objective criteria used to select Public First over other agencies. However, the Court of Appeal noted tension between the High Court’s finding that this was a situation of extreme urgency for the purposes of Regulation 32 and its expectation for the Minister to consider multiple research agencies, taking account of experience, expertise, availability and capacity, and to also keep a record of criteria used to select Public First over other agencies. Regulation 32 permitted the Minister to proceed without a competition, effectively dispensing of these requirements. As such, the Minister was not required to consider other agencies and to keep records of objective criteria used, and it did not amount to a finding of apparent bias. Allegations that Dominic Cummings should not have been involved in the decision making due to the relationship between Mr Cummings and the directors and owners of Public First were also not accepted. The Court of Appeal ruled that a fair minded and reasonably informed observer would not have concluded there was the existence of apparent bias and the Minister’s appeal was allowed.
As such, the current position is that the Good Law Project has failed entirely in its judicial review challenge.
R (on the application of The Good Law Project Ltd) v Secretary of State for Health and Social Care
This more recent loss for the Good Law Project arises out of one of many challenges they brought against the decisions of the Secretary of State for Health and Social Care relating to the lawfulness of the public procurement for the supply of personal protective equipment. In this instance, the contract in question was awarded to Pharmaceuticals Direct Limited in the early stages of the pandemic.
Rather than an issue of substance, the failure of this challenge related to a procedural matter; an issue relating to service of the claim form as Good Law Project had failed to validly serve the claim form on the designated electronic service address for the Government Legal Department (“the GLD”) within the seven-day time limit prescribed under the rules governing judicial review.
These rules state that “The claim form must be served on (a) the defendant; and (b) unless the court otherwise directs, any person the claimant considers to be an interested party, within seven days after the date of issue” (Civil Procedure Rules 54.7).
Whilst a copy of the unsealed claim form reached the designated electronic service address for the Treasury Solicitor within time, and a copy of the sealed claim form reached the relevant case officer at the GLD within time, Good Law Project, by its solicitors, failed to serve the sealed claim form on the email address given for service by the GLD.
Good Law Project issued an application for an order to the effect that there had been valid service or, alternatively, for an extension of time for service of the claim form. However, both applications were refused by the courts. In the High Court, the judge held that there had been no valid (as opposed to merely irregular) service of the claim form within the prescribed time limit given that, at the time that the unsealed claim form was sent to the correct service address, the claim form had not yet been issued. The proceedings had therefore not been started and there could not be valid service of non-existent proceedings. The court also refused to extend the time for service on the basis that there was no “good reason” to do so.
The Court of Appeal agreed with this position and refused Good Law Project’s appeal, emphasising the need for promptness in judicial review claims and the importance of valid service. The court noted that “The availability of email communications does not lessen the importance of strict compliance, although it may mean that even greater care when it comes to service formalities needs to be taken”.
The court’s ruling brought an immediate and premature end to the claim, meaning that the court was not required to give any consideration to the merits of Good Law Project’s challenge.
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