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Law360, London (December 3, 2020, 6:20 PM GMT) -- A British campaign group on Thursday sought to amend its lawsuit against the U.K. government for awarding millions of pounds of contracts for pandemic-related work to private companies without competitive bidding, claiming the government had made misleading statements to get the challenge pared down.
The Good Law Project, a not-for-profit campaign group, told London's High Court that new evidence has emerged showing significant aspects of what the government told the court about its decision to award a £32 million ($43.1 million) contract to a tiny pest control company were "at best misleading, at worst untrue."
"There is an obligation on the defendant … to explain fully what they have done, why they have done it … and with all cards face up on the table," said Jason Coppell QC, counsel for the Good Law Project. He added that the government had breached its duty to be candid to the court.
Coppell said the government did not reveal that PestFix, a company with net assets of £18,000, had been awarded a contract to supply protective equipment for health workers after mistakenly being allocated to a high priority lane consisting largely of contacts of ministers and MPs.
Leaked correspondence between the government and the Health and Safety Executive revealed that isolation suits delivered by Pestfix had not been approved, contradicting the government's claim that the fact PPE had not been used did not imply that it was unfit for purpose, Coppell said.
"These are deep waters in terms of the duty of candor, unprecedented in my long experience working for and against the government," Coppell said. "A full account was simply not given. A materially incomplete and in some respects untrue account was given."
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.
Coppell said National Audit Office reports into the government's procurement process found that financial checks on PestFix and Clandeboye were only carried out by the government months after they were signed, which had not been made clear in response to the request for judicial review.
"On any reasonable approach to the duty of candor, not telling the claimants or the court that financial checks on PestFix and Clandeboye were carried out months after the contracts were awarded were a serious omission and indeed that the checks didn't give either company the green light," Coppell said.
Michael Bowsher, representing the government, said the "market was in turmoil" when the government was rushing to secure PPE at the start of the pandemic and that the normal rules of procurement had been turned on their head.
"There was competition between different states to get the right material on the best terms available. Those offers were only available for a matter of hours," Bowsher said.
The hearing comes after Judge Nerys Jefford granted the Good Law Project permission for judicial review against the tree companies on allegations the government gave a lack of reasons for the contracts and for breaching procurement rules, but rejected arguments that the PestFix and Clandeboye claims were irrational, disproportionate and were an unlawful use of procurement regulation.
The contracts represent a tiny proportion of more than 1,000 contracts for PPE valued at almost £14 billion that have been handed out by the government in response to the COVID-19 pandemic.
The three challenges are due to be heard together at a rolled up hearing in February.
The Good Law Project is represented by Jason Coppell QC of 11KBW and Brendan McGurk of Monckton Chambers.
The government is represented by Michael Bowsher QC, Ewan West and Imogen Proud of Monckton Chambers.
The case is The Queen on the application of Good Law Project Ltd. and another v. The Secretary of State for Heath and Social Care, case numbers HT-2020-000226, HT-2020-000291 and HT-2020-000292, in the Administrative Court, Queen's Bench Division of the High Court of Justice of England and Wales.
--Additional reporting by Joanne Faulkner. Editing by Rebecca Flanagan.
For a reprint of this article, please contact reprints@law360.com.
