The Department of Health and Social Care has been publicly censured by the courts for repeatedly failing to comply with civil procedure rules on disclosure protocol in a case brought by a campaign group. 

In Good Law Project Ltd, R v Secretary of State for Health and Social Care The Honourable My Justice Fraser said that the court had ‘little sympathy’ with any litigant who simply ignored the rules, as the defendant had done.

He dismissed an application to admit expert evidence in the government’s defence over contract procurement after refusing to allow what was their third attempt to comply with court rules.

‘Endless opportunities for compliance are not in accordance with the overriding objective,’ said the judge. ‘These requirements are not optional extras, only to be complied with by a litigant and their expert if the court states in a specific case that they are to apply. They apply in all cases.’

The court heard that the claimant, the Good Law Project, had sought judicial review over the award of contracts during the coronavirus pandemic.

Before the substantive hearing, the court was required to grant permission to allow expert evidence – in this case a report from an expert economist who concluded the contracts were awarded on market terms.

She had produced a report in July which the claimant said should not be permitted on various grounds. The judge said it was unnecessary to decide on any point of law because the government had failed to comply with ‘well known’ rules grounded in fairness and equality of arms.

The judge said the requirements to share details of any material relied upon in making the report – namely discussions with the successful contractor – had been ‘wholly ignored’. No details were provided of data from the department, the personnel from whom it came or even a summary of what it was.

Despite having another chance to remedy these deficiencies, the disclosure requirement was then ‘entirely circumvented and avoided’.

The judge said the claimant’s objections were brought to the attention of the secretary of state in July and had not suddenly emerged. No reason was provided for the failure of the latest report to remedy deficiencies, and the claimant would have insufficient time to respond if the report was now allowed.

The judge added: ‘The court has already given the secretary of state one opportunity to put things right… he is represented by professional legal advisers and the GLD, and there is no good reason to grant such a litigant a third opportunity to comply with the rules.’