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Ewan West, acting for the Government, sees Judge set aside face mask procurement challenge on basis of procedural irregularity

01 Jul 2021

The High Court has ruled that the latest challenge to the U.K. health department’s process for awarding contracts during the COVID-19 pandemic should not be allowed to go ahead as the claim was not served validly.

The group action, brought by the Good Law Project, alleges breach of the procurement regulations and apparent bias and challenges the lawfulness of two contracts for face masks awarded to Pharmaceuticals Direct Ltd. However, the central issue to this judgment was whether there was valid service of the claim form in these proceedings; if not, whether the court should rectify any deficiency or extend time for service of the claim form.

Contrary to the court procedure rules, this action was not served on the government within the required seven days of the lawsuit being issued in April. The claimant’s argument was that the legal team’s failure to comply was “minor and technical.” The Defendant’s application to set aside the claim was summarised as follows: “This is not a case in which the Claimant should have had any difficulties in effecting valid service. It made a careless mistake in emailing the claim form to the wrong address. If the court were to grant the Claimant’s application, the Defendant would suffer prejudice in that it would be deprived of an accrued limitation defence to the claim.”

The Claimant’s application was dismissed.

This judgment will be of interest to all public law and procurement practitioners, as it is concerned with valid service of the claim form in a judicial review context.

Ewan West, instructed by the Government Legal Department, represented The Secretary of State for Health and Social Care.

Read full judgment here. A detailed case note by Imogen Proud is here.

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