Good Law Project Ltd v Secretary of State for Health And Social Care

Applications for further information and specific disclosure in judicial review proceedings are exceptional. The court must assess necessity and proportionality, taking account of relevance, likely evidential benefit, cost, available time and the overriding objective. Fishing exercises and disproportionately broad searches should be refused. Limited orders may nevertheless be made where identified material is relevant to a pleaded ground and necessary for a fair resolution. The defendant’s duty of candour requires assistance to the court through a full explanation of relevant facts and the reasons for the decision under challenge. The court may order targeted searches and further information where existing evidence leaves a material issue insufficiently explained.

The claimants sought further information under CPR 18 and specific disclosure under CPR 31.12 in judicial review proceedings concerning contracts awarded for personal protective equipment during April and May 2020.

The judicial review challenges concerned alleged breaches of equal treatment and transparency, inadequate reasons, and irrationality in relation to supplier verification and the operation of a high priority lane. The applications were made shortly before the substantive hearing. The central issues were whether the requested information and documents were relevant, necessary and proportionate for a fair disposal of those challenges, having regard to the available time and the defendant’s duty of candour.

1. Applications partly granted. The court made limited orders for additional searches and information, while refusing or dismissing the remaining requests.
2. Requests for further information in judicial review are exceptional. Under CPR 18.1, the court must consider whether the information is necessary and proportionate. Fishing requests and disproportionate expense are impermissible. The assessment involves a cost-benefit analysis, including the time and resources available.
3. For specific disclosure under CPR 31.12, the court considered relevance, control, necessity for a fair disposal of the issues, the overriding objective and proportionality under CPR 1. The late stage of the proceedings and existing cost caps were relevant factors.
4. Applying those principles, the court ordered targeted searches of specified WhatsApp and text messages concerning the criteria and operation of the high priority lane, limited to specified individuals and the period 25 March to 30 April 2020. It also ordered searches for communications with ministers and the Secretary of State concerning the establishment and selection criteria for that lane.
5. The court refused broader searches concerning government-wide advertising of the lane, further communications about offers to supply, and other categories where the material was too broad, vague, immaterial or already sufficiently disclosed.
6. The defendant’s duty of candour required it to assist the court by providing a full explanation of relevant facts and the reasons for the decisions under challenge. Applying that principle, the court ordered further information and documents concerning advice relied upon in deciding to place orders for FFP2 respirators.
7. Other requests were refused where the existing witness evidence was sufficient, or where the information concerned contractual performance or matters not relevant to the issues for determination.