Secretary of State for Health and Social Care v Primer Design Limited & Anor

Summary judgment should be refused where the evidence, even if apparently agreed by experts, leaves a real issue as to whether the alleged contractual failure was caused by a defect within the warranted goods or by external factors. The court must consider the pleaded contractual scope, competing factual explanations and the evidence as a whole. Case-management directions concerning expert evidence may be varied where they are not intended to be immutable. The court should balance fairness, efficiency, the imminence of trial and each party’s opportunity to respond. Sequential expert reports may be appropriate where fuller evidence would assist the court without requiring an adjournment.

The claimant contracted with Primer Design Limited for the supply of COVID-19 testing kits. Novacyt S.A. guaranteed Primer Design’s performance. The claimant alleged breaches of contractual warranties concerning quality, defects and compliance with the specification, including an alleged lack of robustness shown by invalid test results.

At a pre-trial review, the defendants sought an extension of time to serve a further expert report addressing matters recorded as agreed and disputed in the experts’ joint statement. The claimant sought summary judgment for more than £130 million, contending that the experts’ apparent agreement established breach. The court had to decide whether the robustness issue could be determined summarily and how the expert evidence should proceed before trial.

1. Summary judgment refused. The apparent expert agreement did not establish that the defendants had no real prospect of success on the robustness issue. The parties’ submissions identified arguable questions as to the contractual meaning of the warranties, whether robustness was a contractual requirement, and whether invalid results were caused by defects in the kits or by software, instructions, laboratory practice or other external factors. Those matters required fuller consideration of the defendants’ case, factual and documentary evidence, and the expert evidence at trial. It would be wrong to determine the issue solely from the joint statement at the pre-trial stage [33].
2. Variation of expert directions. The direction that reports be limited to matters not agreed was not immutable. A further report addressing agreed as well as disputed matters could assist the court where the joint statement might rest on challengeable factual assumptions or conclusions [36]-[40].
3. Fairness and efficiency. The court balanced the lateness of the application, the proximity of trial, the risk of prejudice, the need for each expert to have notice and an opportunity to respond, and the overriding objective. Allowing only cross-examination of the claimant’s expert would be less satisfactory and potentially unfair. The proportionate solution was to permit the defendants’ report followed by a response from the claimant’s expert [37]-[45].
4. The defendants were permitted to serve Dr Owens’s report by 3 May 2024, and the claimant was permitted to serve Dr Huggett’s responsive report by 17 May 2024. The experts were to be treated as available for cross-examination unless further agreement made attendance unnecessary. The defendants were also permitted to rely at trial on a short further factual statement concerning the alleged viscosity of the PCR optimiser [46]-[48].