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Case update 17 February 2022

We’re appealing parts of the PPE VIP lane judgment. Here’s why.

In January, the High Court ruled that the Government had broken the law by running a special VIP lane through which well-connected companies were awarded lucrative PPE contracts. This was important: the institutionalisation of special treatment for the associates of Ministers is an outrage.

However, there were also parts of the ruling where we think, respectfully, the judge was wrong.

Those findings could have serious consequences in the future and it’s important that we have them clarified. So we’ve asked for permission to appeal to the Court of Appeal. There are three main issues we want the Court of Appeal to look at.

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1) The High Court should have ‘declared’ that the VIP lane was unlawful

The Court found that the operation of the VIP lane was unlawful, but it decided not to grant a declaration that the VIP lane itself was unlawful. This is based on its conclusion that, even without the VIP lane, Pestfix and Ayanda were ‘highly likely’ to have won the contracts we had challenged.

However, this sits unhappily with the Court’s findings that the VIP lane did carry advantages, including the speed at which decisions were made and enhanced access, which must have increased the likelihood of getting a successful contract.

For the Court to decide that being in the VIP lane made no difference isn’t in line with its own views on the subject.

2) The Court should have given proper consideration to failings in the Department of Health’s financial due diligence

We think the Court was wrong to conclude that the Government’s approach to financial due diligence on the Ayanda and Pestfix contracts was appropriate and reasonable. There was ample evidence before the Court that the Government repeatedly failed to comply with its own processes for determining a supplier’s level of financial risk before awarding these contracts. These failings had a direct impact on which companies were able to win contracts and we think the judgment needs to recognise this.

3) The judgment could damage the principle of open justice
Before the hearing, the Department of Health demanded that a ‘confidentiality ring’ be placed around some of the information about the contracts. This meant that information could only be seen by a select few people. At the hearing, the judge decided against making that confidential information public. We think her reasoning on this point was wrong, in that it failed to take into account the important presumption that justice should be out in the open. We believe information should not be withheld from public hearings simply to protect the Government’s alleged commercial interests, and we want to challenge the Court’s approach to ensure it does not set a precedent that hamstrings future cases involving Government procurement.

We are appealing because we want an outcome that serves transparency and public accountability. You can read our request for permission to appeal here.

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