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Search of personal documents of former Health and Social Care Secretary to be carried out, to challenge contract awards to Abingdon Health

Mr Justice Fraser has ordered a search of former Health and Social Care Secretary Matt Hancock’s personal emails and social media apps.

He took this step in what is thought to be the first such order in a judicial review for a search of the personal documents of a former secretary of state.

The case involved an action brought by the Good Law Project against the Secretary of State for Health and Social Care - now Sajid Javid - to challenge contract awards to Abingdon Health as being an unlawful public subsidy.

It argued there had been breaches of procurement law, public law and state aid principles when Abingdon was commissioned to provide rapid Covid-19 antibody tests.

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Fraser J said the three contracts in the proceedings were entered into in April, June and August 2020, but their existence was said to have come to light only in October 2020.

He said disclosure was not routinely ordered in judicial review proceedings, but Mr Hancock had been “centrally involved (as one would expect, given the circumstances) in decisions such as the ones under scrutiny in this case”.

Some data held by others had been erased and so a search of Mr Hancock's email accounts was “more likely to yield documents not otherwise currently available as a result of the disclosure exercise thus far undertaken by the Secretary of State”.

The judge said: “I concluded that all the relevant requirements for such a disclosure order were satisfied. Such an order was reasonable and proportionate in all the circumstances. Nothing untoward should be read into the making of such an order.”

He then turned to a dispute about whether the Secretary of State could call an expert witness on state aid.

Good Law Project claimed sums granted to Abingdon comprised unlawful state aid to conduct research and advance its own commercial business interests, and that these sums were therefore an unlawful public subsidy.

The Secretary of State wished to call Nicole Robins, an expert economist on state aid.

But the judge said that while expert evidence might in principle be needed in such a case, he could not agree to it in this one.

In a commentary on the case, barristers chambers 11 Kings Bench Walk said: “The judgment also contains important guidance on the principles applicable to expert evidence in judicial review, reiterating the importance of full compliance with the CPR and the Civil Justice Council Guidance on the instruction of experts.

“Despite finding that the evidence was ‘reasonably required to resolve the proceedings’, the court refused to permit the evidence of the defendant’s state aid expert to be adduced, as the expert had had conversations with the defendant’s witnesses and with staff of Abingdon Health which had not been explained or evidenced in the defendant’s evidence.” 

Mark Smulian

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