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SPOTLIGHT |
SPOTLIGHT |
A High Court judge has given her reasons for making a costs capping order of £250,000 in respect of both the claimants, the Good Law Project and EveryDoctor, and the defendant, the Secretary of State for Health and Social Care, in the procurement challenge over the award of contracts for the supply of personal protective equipment (PPE).
In Good Law Project & Anor v Secretary of State for Health and Social Care [2021] EWHC 997 (TCC) – published this week – Mrs Justice O’Farrell noted that the contracts were of high value with estimates ranging between £400m and £700m.
The claimants’ challenge is based on the following grounds:
There are nine contracts that form the subject matter of the legal challenge in relation to three interested parties.
Mrs Justice O’Farrell said she was satisfied that the public interest proceedings test was satisfied for the following reasons:
Mrs Justice O’Farrell emphasised that the point of law she had identified was of general public importance and could be of significant effect. “If regulation 32 is used in the future, perhaps in very different circumstances, then it will be of value for everyone to have the court's guidance on the appropriate steps, if any, that need to be taken in order to ensure compliance with the obligations of transparency and equal treatment.”
Counsel for the Secretary of State made the point that no useful relief had been sought in the sense that there was no order to quash the decision and declare ineffectiveness or to undo the contracts that had in fact been ordered and in large part performed.
“That is clearly correct but there is still value to be had through a declaration,” the judge said. She added that it was simply unrealistic to have waited for an economic operator, as opposed to the claimants, to mount a challenge.
Mrs Justice O’Farrell said this would not be an appropriate case in which to have different caps applicable to different parties.
“The reason for that is really the matters that I have already identified which is that the costs are already very substantial,” she explained. “They are likely to be very substantial at the end of the case. That is partly the nature of the challenge but also includes the number of contracts that the court will be required to investigate.”
The claimants had estimated that their costs would be at least £250,000 with the possibility of an uplift if they are successful. The defendant’s costs were estimated to be £1m.
Mrs Justice O’Farrell considered that it would be appropriate to make a costs capping order in respect of the claimants and the defendant in the sum of £250,000.
She declined to make any order in relation to the interested parties, saying that their involvement would be limited. “The issue of costs is something that the court will concern itself with at the end of the case in general, and it certainly does not take this opportunity to tie its hands at this stage.”