Good Law Project’s antibody testing challenge dismissed

R (Good Law Project) v Secretary of State for Health and Social Care (“Abingdon”) [2022] EWHC 2468 (TCC)

Judgment, 7 October 2022 (link to judgment here)

In these judicial review proceedings, the Good Law Project (GLP) had challenged DHSC’s decisions at the height of the pandemic to enter into three contracts with a company called Abingdon Health for Covid antibody testing.

The Court (Waksman J) dismissed GLP’s claim in its entirety and went on to find that GLP lacked standing to bring such claims. Having referred to the remarks of the Court of Appeal in Public First (2022) (see report here), the Judge held that GLP, a stranger with no commercial interest, lacked standing: it was not affected in any tangible way by the award of the public contracts; the alleged breach was not ‘grave’, and very limited weight was to be attached to GLP’s ‘experience and expertise’ in procurement litigation; finally, that no economic operator had brought a claim was not a determinative factor either way.

The facts of the case were that in 2020 in response to the Covid-19 pandemic, DHSC entered into public contracts with Abingdon to develop and potentially supply a lateral flow test which could be used by individuals at home to identify Covid-19 antibodies. It was thought at the time that if a link could be shown between the presence of antibodies and immunity to Covid-19, such tests could support the return to normal life, although, in the end, such a link was not found.

GLP’s challenge was on the following grounds: (i) rationality; (ii) apparent bias, conflict of interest, unlawful nationality preference; (iii) breach of the equal treatment and transparency obligations and (iv) unlawful State aid.

The Court dismissed each of these grounds, holding:

(i) Rationality:

• There was no basis to suggest that the decision to enter into the first contract (a research contract) was made on the basis of false information or that there was a failure to make rational enquiries.
• In relation to the second and third contracts, in the unparalleled circumstances of the Covid-19 pandemic, advance purchasing of tests/ components which were plainly in short supply was not irrational even if there was a risk that the tests would not be suitable or the link between immunity and Covid-19 antibodies would not be established. Moreover, there were appropriate contractual safeguards in place.

(ii) The allegations of apparent bias, conflict of interest and/or unlawful nationality preference were not made out on the facts.

(iii) The allegation that the equal treatment obligation under Regulation 18 had been breached was baseless in circumstances where: DHSC had made it clear that it was open to dealing with any economic operator; a competition was not required; GLP could not identify an economic operator which had been “unequally treated” as compared to Abingdon, and even if Regulation 18 were engaged and had been violated, the derogation was objectively justified in the exceptional circumstances of the Covid-19 pandemic. On the choice of Abingdon as the single contractor, on the facts the relevant supply contract was a “very good deal” for DHSC, it was not at all clear that any other operator would have contracted on that basis and there was an absence of evidence of other available tests.

(iv) State aid: applying the well-recognised principles in British Academy of Songwriters, Composers and Authors (2015), Waksman J found that there had been no State aid on the facts. In so finding, he determined that DHSC was plainly acting qua economic operator, so that in applying the MEOP test the burden of showing that the finance provided did not accord with ordinary market conditions was on the Claimant (Commission v EDF C-124/10 applied). There was plainly value given by Abingdon and no evidence adduced by GLP that the figure paid by DHSC was excessive. The relevant policy context was the urgent need for the research as the precursor to obtaining a speedy supply of possibly millions of tests.

It is also of significance that Waksman J determined that a debate about whether the Government Legal Department had adequately searched the mobile phones of key witnesses had “got quite out of hand”. The Judge found that GLP’s allegations of foul play were made without a proper basis and did not assist the Court.

A detailed case note by Imogen Proud is here

Philip Moser KC, Ewan West and Khatija Hafesji represented the Department of Health and Social Care, successfully defending the claim brought by the Good Law Project.

Ligia Osepciu and Cliodhna Kelleher represented Abingdon Health, the Interested Party.