Thursday, 7 October 2021

Good Law Project Ltd, R (On the Application Of) v Secretary of State for Health and Social Care Action

[2021] EWHC 2595 (TCC)

Here, the GLP was seeking judicial review in respect of the award of certain contracts by the Secretary of State for Health and Social Care (HSC), to Abingdon for the manufacture and supply of rapid Covid-19 antibody tests. HSC wanted to rely upon expert evidence. The economist relied upon by the HSC prepared a report in July 2021 which the GLP objected to. The expert then prepared a further report in August, which again was objected to by the GLP. 

Mr Justice Fraser was not prepared to allow the HSC to rely upon either expert report because they both failed to comply with the Civil Procedure Rules and with the principles that the Judge said: “underpin the deployment of expert evidence in court proceedings”, namely fairness and equality of arms. In particular, the Judge noted that this had been drawn to HSC’s attention in July and part of the purpose of the interval between that hearing and this one was to give time to cure the defects. In fact, the defects became more pronounced. 

In Dispatch 252, we referred to the case of Dana UK AXLE Ltd v Freudenberg FST GmbH where the court refused to allow FST to adduce expert evidence noting that an expert: “should be focussed on the need to ensure that information received by them has also been made available to their opposite numbers.” The same point was made here: 

“experts for both parties must have access to the same material. Expert evidence cannot fairly be considered by the court if one expert has an unfair advantage, or access to material to which an opposite number has no comparable access. Equally, in order to properly consider expert evidence, the court ought to be able to consider the material upon which the expert’s conclusions are based, and an opposing expert is entitled to consider that same material.”

Further, the principle of identifying material relied upon by one expert, and making it available to the other party, was expressly brought to the attention of the HSC at a hearing in July. In the July report, the expert referred extensively to “discussions” they had had with Abingdon and unnamed personnel within the HSC. The expert used phrases such as: “I understand from discussions with”, “based on my discussions with” and “I understand that”. The August report, however, included exactly the same conclusions as those reached in the July report from the discussions referred to, but with any reference to those discussions having taken place at all being deleted.  There was no reason in the view of the Judge why those discussions could not have been identified properly. In fact, there was: “every reason to have done so”. 

The Judge was not prepared to allow the HSC to have a third go to remedy the breaches. The objection was not new and had been expressly identified. No reason for the failure to remedy was provided. Further, the substantive hearing was fast approaching. If there was a “third report”, GLP would be entitled to have time to consider it, and to instruct and adduce their own expert evidence. There was  insufficient time available to do this. The Judge commented that:

“the court has little sympathy with any litigant who simply ignores the rules in this way. Endless opportunities for compliance are not in accordance with the overriding objective. These requirements are not optional extras, only to be complied with by a litigant and their expert if the court states in a specific case that they are to apply. They apply in all cases.”

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