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R (Good Law Project and Another) v Secretary of State for Health and Social Care
On Friday 29 April 2022, Lord Justice Coulson refused the Good Law Project permission to appeal against the Order of O’Farrell J dated 15 February 2022 in the group of judicial review challenges often known as ‘PestFix’. This was a ‘family’ of JR challenges, heard together, in respect of the award of various PPE supply contracts by the Secretary of State to PestFix, Clandeboye and Ayanda. In a judgment of 12 January 2022 ([2022] EWHC 46 (TCC)), O’Farrell J rejected the claims. See case news item of 12 January 2022.
The Good Law Project sought to appeal on six grounds. Permission was refused on all grounds. Coulson LJ stated that there was an “overarching reason” why the application must be refused namely that the grounds did not suggest that the judge made any errors of law or principle, but were just “an attempt to reargue the facts”.
The appellants sought to appeal the trial judge’s s.31(2A) SCA 1981 ruling. O’Farrell J found, in respect of the PestFix and Ayanda contracts, that the respondent had acted unlawfully in conferring preferential treatment by allocating them to a ‘High Priority Lane’. However, she went on to find that it was highly likely that, even if they had not been allocated to that Lane, the outcome would not have been substantially different and the contracts would still have been awarded to PestFix and Ayanda. Refusing PTA, Coulson LJ emphasised that the s.31(2A) test is “fact-sensitive and ultimately a matter for the trial judge”.
This brings to an end this high profile and significant litigation, which was named as one of The Lawyer Top Twenty cases of 2021 and described as “one of the most notable cases to emerge from the pandemic”.
Michael Bowsher QC, Ewan West, Imogen Proud, Khatija Hafesji and Alfred Artley acted for the Secretary of State, instructed by GLD.
Alan Bates acted for Pestfix, instructed by Osborne Clarke, and acted for Ayanda, instructed by Lewis Silkin.