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Law360, London (August 18, 2020, 6:05 PM BST ) A London judge refused Tuesday to force the U.K. government's health department to hand over extra information about contracts it entered into with a pest control company to provide COVID-19 personal protective equipment, ruling the details were irrelevant to the underlying dispute.
Judge Nerys Jefford denied a disclosure application from The Good Law Project, a not-for-profit campaign group, as it seeks a judicial review over a tender process that resulted in PestFix scoring a multimillion-pound contract to procure PPE for front-line health staff.
"It seems to me this is a fishing expedition in relation to other contracts not relevant to the current proceedings," the judge said.
The Good Law Project is challenging three contracts that the government entered into over the supply of PPE, arguing that they were awarded without any advertisement or competition between bidders in breach of public procurement regulations.
The contracts were finalized under a new approach that allows for negotiations in times of "exceptional urgency," which the government says it is no longer using.
Earlier Tuesday, Jason Coppel QC, counsel for the Good Law Project, had urged Judge Jefford to require the secretary of state for Health and Social Care to hand over information on any other contracts his department has with PestFix.
He referred her to an announcement in May, which said the government had entered into a £108 million ($142 million) contract with PestFix for gowns, masks and gloves. A month later, however, the government said the contract was worth only £32 million, that it was for the supply of isolation suits only, and that it had entered into "other contracts" with PestFix that it could not publish details on just yet.
Coppel said that the health department was breaching its legal obligations by failing to explain the other contracts, which are understood to be worth the remaining £76 million of public money.
He said his client has questions about whether the isolation suits were properly certified, after the chief executive at PestFix admitted that the face masks his company has provided elsewhere had not complied with regulatory requirements.
"Those are factual grounds that we would use [to argue] that this was not a sensible or lawful process," he said.
Michael Bowsher QC, counsel for the government, had disputed the claim that his client has refused to disclose the information as claimed, arguing that the process of publicizing the correct information was ongoing. He also said there has been a "misapprehension" on what the other contracts relate to.
In addition to the PestFix contract, the Good Law Project is also challenging the government's PPE arrangements with two other companies, including two deals worth £107 million with Clandeboye Agencies Ltd. for 25 million gowns, and one deal worth £252 million with Ayanda Capital Ltd. for masks. According to court documents, the products remain in storage and have not been tested or declared suitable for the NHS.
Coppel told the judge that the health department is thought to have entered over 1,000 contracts for PPE in April and May totaling almost £14 billion under the same new approach that his clients claim is "irrational, disproportionate" and unlawful.
"If we're right, then every contract the defendant has entered into followed the wrong procedure, because it didn't take account of any comparison as far as we know," he said.
The wider action seeks a court ruling that the contract award decisions are illegal, quashing any orders made under the deals.
The parties are expected to come back to court in September, when the Good Law Project will seek permission for their judicial review. If allowed, the court would hear the case over four days next year.
The campaign group is expected to ask for all three of its challenges to be heard together, as well as add another suit over an £840,000 deal between the cabinet office and a company called Public First for "communications support."
The Good Law Project and Every Doctor are represented by Jason Coppel QC of 11 King's Bench Walk and Brendan McGurk of Monckton Chambers, instructed by Rook Irwin Sweeney LLP.
The government is represented by Michael Bowsher QC, Ewan West and Alfred Artley of Monckton Chambers, instructed by the Government Legal Department on behalf of the Secretary of State.
PestFix is represented by Alan Bates of Monckton Chambers, instructed by Osborne Clarke LLP.
Clandeboye is represented by Nick De Mulder of Kingsley Napley LLP.
The cases are The Good Law Project and another v. The Secretary of State for Health and Social Care and Crisp Websites Ltd. (trading as PestFix), and The Good Law Project and another v. The Secretary of State for Health and Social Care and Clandeboye Agencies Ltd., case numbers HT-2020-000226, HT-2020-000290, HT-2020-000291 and HT-2020-000292, in the High Court of Justice of England and Wales.
--Editing by Alyssa Miller.
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