Does the ‘no substantial difference’ test have to be pleaded?
The ‘no substantial difference’ test (“NSD Test”) has been a friend to every defendant, and the thorn in the side of every claimant, for seven years now.
Readers will be well aware that it empowers the court to refuse permission / relief where the outcome for the claimant would not have been substantially different absent the alleged unlawful conduct.
Does the NSD test need to be pleaded in order for the court to find that it applies?
The Short Answer
At the permission stage: no, but it’s a good idea for defendants to plead it where it applies.
In relation to relief: sometimes. If not pleaded, it will be relevant whether the evidence and submissions nonetheless addressed the issues relevant to the NSD Test. However, it is always a good idea for defendants to plead it where it applies.
The Long Answer
The NSD test was introduced into s.31 of the Senior Courts Act 1981 by s.84 of the Criminal Justice and Courts Act 2015.
Subsections (3C) and (3D) deal with the permission stage. They provide:
(3C) When considering whether to grant leave to make an application for judicial review, the High Court—
• (a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and
• (b) must consider that question if the defendant asks it to do so.
(3D) If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave.
It is express that the court may consider the NSD test when it is unpleaded. Having said that, defendants are strongly incentivised to plead it in their Summary Grounds to ensure that the Court “must” rather than “may” consider it.
Subsection (2A) deals with relief. It provides:
(2A) The High Court—
• (a) must refuse to grant relief on an application for judicial review, and
• (b) may not make an award under subsection (4) on such an application,
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
The statute does not make express, as it does in relation to the permission stage, whether or not it need be pleaded. The language, in particular “if it appears to the court”, may have been thought to suggest it need not be.
The Court of Appeal considered this last month in its decision refusing permission to appeal in the case of R (Good Law Project) v Secretary of State for Health and Social Care  EWHC 346. This was a cluster of judicial reviews, heard together, which challenged the award of contracts for the supply of PPE at the start of the Covid-19 pandemic. The Good Law Project challenged, amongst other things, the Secretary of State’s use of a ‘High Priority Lane’ for triaging the high numbers of offers of PPE that were made. Offers were allocated to the ‘High Priority Lane’ if suppliers were referred by Ministers, MPs and senior officials including in the NHS.
Mrs Justice O’Farrell ruled that the High Priority Lane did breach applicable procurement law obligations of equal treatment and transparency. However, she held that the NSD Test applied because the impugned contracts were for offers of PPE which were in such high volumes and for items which were in such urgent demand that it was highly likely the contracts would have been awarded even absent allocation to the High Priority Lane.
The Good Law Project sought permission to appeal on several grounds, one of which included the argument that the NSD Test had not been pleaded in relation to the High Priority Lane. Nor was it argued by the Defendant orally or in his skeleton in relation to this point.
Lord Justice Coulson refused permission to appeal on 29 April 2022 (CA/2022/000414). In relation to the NSD pleading point, he reasoned:
“The first argument […] is that reliance on s.31(2A) was not pleaded by the respondent. I accept that, in other circumstances, that might have given rise to a major difficulty for the respondent. But on a proper analysis of the material, it does not do so here.
[…] [R]egardless of the pleading, the evidence and the submissions made during the trial addressed the issue as to whether the High Priority Lane made any difference to the outcome. In other words, the issue was regarded by both sides as important, and treated by them as such. There is no suggestion that there was or could have been any prejudice as a result of the respondent’s failure to plead s. 31(2A) expressly.”
It is also clear from Coulson LJ’s Order that where the complaint is that the defendant relied upon s.31(2A) without pleading it, the proper time to take the pleading point is before the trial judge; “it is too late to raise such a point for the first time on an application for PTA”.
Conclusion: Tips and Tricks
- plead the NSD Test, both at the Summary Grounds and Detailed Grounds stage, whenever it has application to a case.
- where the NSD Test is pleaded in Summary Grounds, consider answering it in a Reply; and
- where the NSD Test is not pleaded, but a defendant later seeks to rely upon it, consider whether a pleading point could be taken on the facts of the case. This may be the case where prejudice was caused to the claimant because it was not pleaded. Further, where the NSD Test is not pleaded, claimants should pay careful attention to whether sufficient material addressing the test is nonetheless before the court.
Imogen Proud is a barrister specialising in public law. She was instructed by the Secretary of State for Health and Social Care in R (Good Law Project) v Secretary of State for Health and Social Care  EWHC 346.