R (Good Law Project Ltd & ors) v Secretary of State for Health and Social Care

Judgment, 19th February 2021; Chamberlain J; [2021] EWHC 346 (Admin)

This is the first in a series of procurement law judicial review (JR) cases relating to Covid-19 brought by the Good Law Project (GLP) to have reached the judgment stage. The case concerned the (non)publication of contract award notices (CANs) within 30 days under regulation 50 Public Contracts Regulations 2015 (PCR) and of other contract notices and materials within 20 or 90 days under relevant transparency policies.

The judgment is noteworthy for findings on standing in procurement JRs, on the potentially binding nature of Government policy statements and on appropriate remedies. The Judge also made an important and novel ruling as to the High Court’s jurisdiction in relation to the recording and televising of video proceedings under the Coronavirus Act 2020.

The Claim

The Claimants were the GLP and a group of MPs. They complained of “a conscious decision to de-prioritise compliance with regulation 50 and with the Transparency Policy and Principles” in relation to Covid-19 related procurement of goods and services by the DHSC since March 2020 and sought declaratory and mandatory relief. The breach of reg 50 (but not of the policies) was admitted by the DHSC, citing the extraordinary circumstances of the pandemic. Any “de-prioritisation policy” was denied. The DHSC also argued that neither the GLP nor the MPs had standing.

Standing

On standing, the Court held that the GLP had standing on the facts of the case but that the four MP Claimants did not. On the GLP, the Court followed and restated the test for standing in procurement law JRs in Chandler [2009] EWCA Civ 1011 and found that an organisation such as the GLP had standing because a challenge alleging breach of the publication obligation of reg 50 and associated policies was not one that an economic operator could realistically be relied upon to bring in Part 7 proceedings under the PCR. The MPs did not have standing however, since where there is already a claimant with standing, there is no reason for standing for additional parties, applying Jones [2020] 1 WLR 519.

Substance and relief

On the substance, the Court found that there was no “de-prioritisation policy” as alleged. In addition to the admitted breach of reg 50, the Court also found a breach of the publication policy, on the basis of its precise terms, according to specific dates. Hence the DHSC had a common law duty to comply with it, absent good reason to depart from it, which departure would however have to have been done contemporaneously, not ex post facto.

On relief, the Court refused mandatory relief in circumstances where the position on publication at the date of the hearing had moved close to complete compliance. It granted declaratory relief on the breaches found.

Rebroadcasting video proceedings

In a postscript the Judge explained his refusal to give permission for a television production company to record and re-broadcast the proceedings, which the Claimants had applied for. Section 41 of the Criminal Justice Act 1925 imposes a general prohibition on photography in court which extends to video recordings: Loveridge [2001] EWCA Crim 973. No exception applies to Administrative Court proceedings and this had not been altered by ss. 85A and 85B of the Coronavirus Act 2020 on “proceedings conducted wholly as video proceedings”. There is accordingly no power to permit proceedings in the Administrative Court to be recorded for the purposes of broadcast, even when the proceedings are conducted wholly as video proceedings.

Philip Moser QC and Ewan West of Monckton Chambers acted for the Secretary of State.

The Administrative Court has handed down judgment this morning in judicial review proceedings concerning the scope of the duty on local authorities and NHS clinical commissioning groups to provide after-care services for patients who have previously been “sectioned” under the Mental Health Act 1983. Michael Armitage acted (unled) for the successful Claimant (AK), a 16-year-old child with post-traumatic stress disorder and a range of associated mental health problems who had for many months been detained for the purposes of treatment in a psychiatric hospital. The Claimant established that the relevant local authority and NHS clinical commissioning group had failed lawfully to assess and plan for AK’s needs for after-care services under section 117 of the 1983 Act following her discharge from hospital, including because of a failure to comply with the applicable Code of Practice. The case is noteworthy because there is no previous reported case on the precise nature of the assessment and planning obligations under section 117. A copy of the judgment is here.

The Claimant was represented throughout the proceedings by Michael Armitage, instructed by Rebekah Carrier of Hopkin Murray Beskine. Michael has developed a specialism in judicial review claims concerning NHS clinical commissioning groups, having also recently acted for the successful Claimant in judicial review proceedings concerning the provision of NHS continuing healthcare (here).

The CMA has withdrawn a record penalty, imposed on JD Sports and its parent Pentland Group, following the lodging of an appeal.

The £300,000 penalty related to an alleged breach of an Initial Enforcement Order addressed to JD Sports and Pentland. Among other things, the CMA found that they had failed to issue adequate guidelines to ensure compliance.

The parties lodged a joint appeal, arguing that there was no breach, and that the CMA had based its decision on fundamental factual errors. In light of the issues raised on the appeal, the CMA withdrew its decision.

No further action by the CMA is now expected.

The CMA’s investigation concerned the market for the provision of platform solutions to investment platforms. Investment platforms enable investors and their advisers to invest in a range of assets, including funds, shares, bonds and other securities. The CMA had found that the merger raised substantial competition concerns in the supply of retail platform solutions to investment platforms in the UK. It ordered FNZ to divest itself of the entire of GBST.

FNZ had challenged the decision before the Competition Appeal Tribunal alleging that there were flaws in the CMA’s counterfactual analysis, market definition, competition analysis and that the remedy was disproportionate.

In response to the Notice of Application, the CMA did not defend its decision before the CAT, but instead asked that it be remitted for reconsideration. The CMA has now published its intended process for the conduct of the remittal, provisionally set to complete by mid-May 2021.

The inquiry page can be found here.

It is believed that this is only the second time that the CAT has quashed a merger decision without a hearing on the basis of the CMA accepting flaws in its decision.

FNZ was represented by Daniel Beard QC and David Gregory.

R (Black) v Secretary of State for Justice

The Administrative Court has refused permission to apply for judicial review to a prisoner seeking to challenge restrictions on child communication placed upon him by his prison.

The Claimant has been identified as a ‘person posing a risk to children’ (‘PPRC’) and is subject to a Sexual Offences Prevention Order (‘SOPO’). The relief he sought was to be permitted to receive photographs showing children and to be able to send greetings cards to child family members.

The Claimant sought to challenge the restrictions on communications with children imposed upon him in application of the Public Protection Manual 2016 (PSI 18/2016) on the basis that they were contrary to s106(3) of the Sexual Offences Act 2003 and that they were contrary to the SOPO.

The Administrative Court has refused permission and accepted the Secretary of State’s submission that the claim ought to be certified as totally without merit. The Court ruled that as the prisoner identified as having PPRC status had not first applied to the prison for child contact in respect of a specified child, a judicial review of the restrictions upon that prisoner was premature.

Imogen Proud acted for the Secretary of State for Justice.

The First Tier Tribunal has ruled that the ICO’s guidance, permitting public bodies to cite the two national security exemptions “in the alternative”, is incorrect as a matter of law. The Tribunal considered that the requirement to “specify” the exemption relied on meant that the public body could not cite an alternative exemption for purely tactical reasons, knowing that it did not apply, in order to mask the actual reasons for its decision.

Alison Berridge appeared for one of the three appellants.

The decision is available here.

Ronit Kreisberger QC, Alison Berridge and Jack Williams have been instructed by the proposed class representative, Justin Le Patourel, in opt-out collective proceedings against BT for alleged excessive pricing in abuse of its dominance position in standalone landline telephone services. The proposed class representative proposes to represent over 2 million consumers and has an estimated value of up to £600m.

The opt-out collective procedure in the Competition Appeals Tribunal has recently been given a significant boost from applicants’ perspectives by the success of Mr Merricks in the Supreme Court, represented by Paul Harris QC.

The counsel team are instructed on behalf of the proposed class representative by Mischon de Reya’s Rob Murray and Natasha Pearman.

Ronit Kreisberger QC is also acting for Mitsubishi Bank of Tokyo in Mr Phillip Evans v Barclays Bank and Othrs and Michael O’Higgins v Barclays Bank and Othrs. Jack Williams was counsel for the (successful) respondent in the first opt-out collective proceedings in the CAT, Dorothy Gibson v Pride Mobility Products Ltd [2017] CAT 9. Monckton Chambers has unparalleled expertise and experience with collective proceedings, having had members appear all actions brought to date, including Merricks, FX, Pride, Train Tickets and Trucks.

Related coverage about the collective proceedings can be found at: The Times, BBC, Mail Online, The Express, The Sun, CityAM, Bloomberg, Legal Week, Metro, Daily Mirror.

In a test case for the education sector, Melanie Hall QC and Elizabeth Kelsey have secured a significant win against HMRC on
the notoriously difficult question of when VAT is payable on Government funding.

Click here for the decision of the Upper Tribunal chaired by Whipple J and here for a case note written by Jack Williams of Monckton Chambers.

Melanie Hall QC and Elizabeth Kelsey represented The Colchester Institute.

Peter Mantle represented HMRC.

Josh Holmes Q.C. and Jack Williams have been instructed by Symphony Environmental Technologies PLC and Symphony Environmental Ltd (the Applicants) in relation a damages action under Article 340 TFEU against the EU Institutions, to be heard before the EU General Court in Luxembourg.

The Applicants allege that the EU institutions are non-contractually liable under Article 340(2) TFEU and Article 41(3) of the Charter of Fundamental Rights in respect of the adoption of Article 5 and Recital 15 (insofar as they apply to oxo-biodegradable plastic) of Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment (OJ L 155, 12.6.2019, p. 1–19) (“the Directive”).

Article 5 of the Directive directs that Member States “shall prohibit the placing on the market of the single-use plastic products listed in Part B of the Annex and of products made from oxo-degradable plastic”.

The Applicants argue that insofar as the restriction imposed by Article 5 of the Directive encompasses, by means of the definition of “oxo-degradable plastic” in Article 3(1) and (3), a total prohibition of the placing of oxo-biodegradable plastics on the market (“the Article 5 Prohibition”), it is unlawful. This is on the basis that the adoption of the Article 5 Prohibition is vitiated by procedural errors, breaches the principle of proportionality, is based on manifest errors of assessment, fails to take into account relevant considerations, is discriminatory and breaches the Applicants’ fundamental rights. Accordingly, they seek damages.

Josh and Jack are representing the Applicants in accordance with their continued rights of privilege and audience before the EU Courts under the arrangements in the Withdrawal Agreement for cases started before the end of the transition period. Both also retain rights of privilege to advise confidentially on any new matters of EU law and represent clients before the EU Courts on account of their being called to the Irish Bar (in addition to the Bar of England and Wales).