What happens when you win a Judicial Review against the Government?

The final hearing in the ‘PPE case’ concluded in the High Court this week.  The most common question we have been asked by interested followers of the case is this: What will be the outcome if the case is won and the Judge rules in favour of the Claimants?

To answer this question, we need to look a little closer at the type of claim brought by our clients, the Good Law Project Limited, a not-for-profit campaign organisation, and EveryDoctor, a campaign organisation for doctors.

Background

Last year over 1,000 contracts for Personal Protective Equipment (“PPE”) were awarded by the Government under what it describes as “an entirely new approach to procurement”. These contracts were worth more than £14bn. Nine such contracts have been challenged by our clients, awarded to Pestfix, Clandeboye, and Ayanda, which together totalled more than £700m of public money. It has come to light that two of these companies were placed in the ‘VIP’ Lane’, which was restricted for referrals from “MPs, ministers or senior officials”. The VIP lane’s existence remained a secret until months after the procurement. It also transpired that a substantial proportion of the PPE procured under these nine contracts is not fit to be used by the NHS.

Although the subject matter of the case is about the procurement of PPE during the pandemic, it is a claim for judicial review. Judicial review is a type of claim brought in the High Court to challenge a decision made by a public body. It is the way that individuals or organisations can challenge the lawfulness of actions by the State. There are a wide variety of decisions that can be challenged by judicial review, such as cuts to budgets, closures of public services, or introducing new public policies. In this case, our clients challenged the decisions by the Defendant, the Secretary of State for Health and Social Care Matt Hancock, to enter into these nine contracts with Pestfix, Clandeboye, and Ayanda, arguing that the way that the contracts were entered into was unlawful.

The Claimants argue that the nine contracts were made unlawfully, on the basis that the Government (1) breached its duties of transparency and equality of treatment in the operation of this new approach to procurement, including the creation of the VIP lane (2) there were insufficient reasons for the contract awards, and (3) it was irrational to enter into these contracts when (i) there was no sufficient financial or technical verification of these companies and (ii) the VIP lane was used for two of these three suppliers.

In a claim for judicial review, there are a number of “remedies” a Claimant can ask the Judge for in the event that the case is won. It is up to the Judge’s discretion to decide whether to grant any of the remedies sought by the Claimant. The Claimant can seek just one remedy or a combination of several remedies. Possible remedies in judicial review claims include:

• A “quashing order”. This is where the Judge makes an order which nullifies the decision by the public body. It renders the decision void, as if the decision was never taken. This normally means that the public body has to go back and take a new decision. If a quashing order is granted, the Claimant’s hope is often that the Defendant will either not retake the decision, or take a better and lawful decision the second time around, although if it is not, the new decision could again be challenged by a new claim for judicial review!
• A “prohibiting order”. This is where the Judge makes an order to prevent the public body from doing something, such as implementing a decision which has been found unlawful.
• A “mandatory order”. This is where the Judge makes an order to compel the public body to do something it has failed to do. A failure to carry out the act required by a mandatory order is punishable as contempt of court.
• A “declaration”. A declaration is where the Judge clarifies the respective rights and obligations of the parties to the case. The order by the court will contain a declaration which reflects the judgment against the Defendant. The judgment will set out the detail about how the law applies to the case, such as why the decision taken by the public body was unlawful.
• An “injunction”. This is where the Judge makes an order to stop the public body acting unlawfully, and will only be made where the other remedies above would not be sufficient to protect the Claimant.
• Damages (i.e a payment of money) are also an available remedy, although they are not common in judicial review claims.

Importantly, these are civil, not criminal, proceedings, and so the court will not be considering whether there have been any crimes committed.

In this case, and indeed in many judicial review cases, the only relief our clients have been able to seek is a declaration that the contracts entered into by the Government were unlawful. The reason why no other relief is sought is because the PPE – regardless of whether it is fit for purpose or not – has already been supplied by Pestfix, Clandeboye, and Ayanda and the public money has already been paid. It is too late for a quashing order, prohibiting order, or injunction to have any practical consequences.

However, this does not mean that a win for the Claimants will have no practical consequences. Far from it!

If the Claimants win this case and the Judge makes a declaration, she will be declaring that the Government unlawfully entered into the relevant contracts for PPE. A finding that the Secretary of State for Health and Social Care acted unlawfully is something to be taken very seriously. The Judge will be setting a new precedent, which will be considered or followed by Judges in future cases on public procurement. It also means the Government must comply with the judgment when it takes future decisions on public procurement. It would be unlawful for the Government to run public procurement in the same way again in the future. In this case the Government has forcefully argued that it acted lawfully when it entered into these contracts; a declaration would amount to a powerful message by the court that the Government was wrong and it is unlawful to spend public money in this way.

There may of course be political consequences that flow from a declaration that the Secretary of State acted unlawfully, but that is not a matter for us to comment on.

The Government may also seek to recover some of the money spent from Pestfix, Ayanda or Clandeboye, but that will be a contractual dispute between them, and again is not a matter for us to comment on.

When will we know the outcome?

In most public law cases like this, the Judge will need time to consider and write her Judgment.  We do not expect the Judgment to be published in the next couple of months.

Will the decision/Judgment be made public?

Yes!  We will publish the judgment on our website as soon as it is available.

26 May 2021