High Court considers standing of a non-economic operator to challenge procurement decisions

In R (Good Law Project Ltd) v The Secretary of State for Health and Social Care [2022] EWHC 2468 (TCC), the High Court dismissed a judicial review claim brought by the Good Law Project ("GLP") against the Secretary of State for Health and Social Care ("SSHSC") in connection with the awarding of contracts in the Covid-19 pandemic, and in doing so found that GLP did not have standing to bring the challenge.

Key points

• Non-economic operator claimants in judicial reviews in the procurement area may have standing in some limited circumstances.
• The question of standing remains heavily dependent on the facts of the case and the circumstances of the particular claimant.
• Following a number of recent cases, claimants should be mindful that defendants may seek to raise standing arguments more frequently than before.

Background

Over the course of 2020, the SSHSC entered into three contracts with Abingdon Health plc ("Abingdon") to develop and purchase lateral flow tests which could be used by individuals to test for Covid-19 antibodies.

GLP was granted permission to challenge the decisions by the SSHSC to enter into contracts with Abingdon on the following grounds, which rely on both public law principles and the Public Contracts Regulations 2015:

1. The SSHSC's decision to enter into the contracts was irrational.
2. The SSHSC acted with apparent bias, had a conflict of interest and had an unlawful nationality preference when choosing to award Abingdon with the contracts.
3. The SSHSC breached obligations of equal treatment and transparency.
4. The SSHSC unlawfully granted Abingdon State aid.

The SSHC challenged GLP's standing to raise any of the grounds set out above.

The judgment

In a lengthy judgment of over 100 pages, the court (Waksman J) dismissed all of GLP's grounds of challenge, finding that:

1. There was no evidence to suggest that the decisions to enter into any of the three contracts were taken without conducting adequate enquiries (or were otherwise irrational);
2. The allegations of apparent bias, conflict of interest and unlawful nationality preference were not made out on the facts;
3. On the facts, there was also no breach of the principles of equal treatment and transparency and notably, GLP could not identify another company as being "unlawfully treated"; and
4. Neither the grant of the contracts nor any assistance provided by the Government to Abingdon constituted State aid.

Although having dismissed the claim, the point was academic, Waksman J addressed the question of standing fully in his judgment.

The law on standing

Section 31 (3) of the Senior Courts Act 1981 provides that an applicant for judicial review must have "sufficient interest in the matter to which the application relates".  This is often straightforward, on the basis that a claimant will have a direct interest in the decision (for example in the case of an economic operator who has unsuccessfully competed for a contract). However, standing can be a live issue in public interest cases, where decisions affect society generally but there are no particular affected individuals.

Describing the issue of standing as a "multifaceted one", Waksman J identified the following six factors which he considered to be relevant when making a decision on standing:

1. Merits: The merits of the case are relevant to the question of standing, although not a determinative factor because, if the claim fails (as it did in the present case), it does not necessarily mean standing cannot be found.
2. Particular legal context: In this context (which concerned procurement decisions) it was not disputed that the "natural" claimants would be relevant economic operators. However, Waksman J emphasised that this does not mean that a person other than an economic operator can never bring a public law challenge against a procurement decision.
3. Effect on the claimant: The court held that this factor is "clearly relevant" when considering standing. In the present case GLP was not affected by the alleged unlawfulness any more than any other member of the public.
4. Gravity: Waksman J found that the "gravity" of the issue in dispute is a further way of showing a basis for standing (even for a non-economic operator in a procurement dispute), albeit again not a determinative one.
5. Other possible claimants: Waksman J emphasised that, while the absence of claims brought by the "natural" claimants (in this case being the economic operators) "is not wholly irrelevant", the court should not focus too heavily on this but should instead "concentrate more" on the questions of gravity and the effect on the claimant.
6. The position of the claimant: While it is well accepted that, if a claimant is a "busybody" or has an "ulterior motive", this can be enough to disqualify them, this must be assessed in the context of the case as a whole.

While focussing on these six factors, Waksman J also identified a number of other points (including the relevance of a public interest in the decisions in question) which might be relevant and noted that overall, the question of standing is case sensitive.

GLP's standing in this case

Having considered the factors described above, Waksman J found that GLP did not have standing for any of the challenges pursued.

The starting point is that, as a non-economic operator, it could not be said that GLP was affected in any "tangible way" by the award of the contracts. Neither was it "acting as a surrogate for operators". In addition, Waksman J did not consider the claim to be "grave" as it concerned a single operator in contracts worth £15 million (as opposed to the fact pattern in a previous case whereby contracts involving billions of pounds had deliberately not been publicised) and ultimately no findings of unlawfulness had been made.

As to the position of GLP itself, the court found that while it had a "particular interest" in the matters pursued, in the circumstances "very limited weight" could be attached to GLP's "experience and expertise" in procurement-related claims.

Comment

This case, which is the latest in a succession of recent cases involving GLP which have considered standing (see here for our blog on an earlier case), provides some helpful clarity and guidance on the factors which are taken into account by the court when deciding standing, in particular in circumstances where the applicant is not the "natural" claimant in a case.

It also clarifies the question of standing for non-economic operators with no commercial interest in a procurement process, which was described as "ripe for review" in R (Good Law Project) v Minister for the Cabinet Office [2022] EWCA Civ 21.

This case leaves open, however, the question of whether recent decisions reflect a tightening of the law on standing and it will be important for claimants and defendants alike to keep a close eye on developments in this area going forward.