Gardner v Secretary of State for Health and Social Care – Judicial Review Update   

The judicial review of the government’s early response to COVID-19, specifically in respect of discharging COVID-19 positive patients into care homes, commenced yesterday with Lord Justice Bean and Mr Justice Garnham presiding. Permission for the review was granted on all grounds by Justice Linden following an appeal by the bereft claimants Dr Cathy Gardner and Fay Harris. This blog will explore the key issues addressed at the hearing yesterday.

Disclosure of Cabinet Meeting Minutes

The first of the public law challenges to be addressed was the claimants’ application for disclosure of cabinet meeting minutes. The claimants argue these likely detail key and fundamental discussions which shaped the decisions of the Secretary of State for Health in the early stages of the pandemic. The application, rejected originally by Mrs Justice Eady in August, was on the basis the material before the decision makers at the time had not been disclosed, and this was key to understanding the reasoning processes behind the discharge of covid positive patients into care homes. Whilst Sir James Eadie QC and Eleanor Grey QC argued, on behalf of the defendants, that the duty of candour had been fulfilled by disclosure of a witness statement that contained a summary of these discussions, Mr Coppel QC for the claimant described the disclosure to date as being “deeply unsatisfactory”. Following a brief consideration, the justices gave their direction that they and Mr Coppel would be granted access to a redacted version of the four documents referenced in the statement and would come to a decision as to whether these needed to be ventilated in open court.

The evidence of Professor Gordon-factual or opinion evidence?

The hearing then turned on the second issue, namely whether the claimants would be granted permission to introduce a third witness statement from Professor Gordon. Whilst Mr Coppel described the statement as giving evidence of fact, he did concede there were areas of opinion evidence, which led the justices to consider whether this was admissible at a judicial review.

Relisted for 10 days

They further considered the length of the statement and indeed of the submissions thus far, and decided it unwise to try to compress the substantive hearing into a four day window as previously directed. Despite submissions from Mr Coppel that there were areas of common ground between the parties, for example in acknowledging the limited PPE at the onset of the pandemic, the justices advised they were minded to request the review be relisted for next term for a 10 day hearing, with four to five days in advance for reading in. They submitted the rest of the hearing could then deal with matters such as disclosure and admissibility.  

If the substantive hearing is extended over a 10 day period, this will likely put a huge strain on the crowdfunded resources required to finance this claim. At the time of writing the claimants have reached only £133,836 of their original £175,000 target and the crowdfunding is due to end in seven days. Though a significant blow to the claimants financing position, they will likely now have more time to raise funding, particularly if the justices choose to relist this for next term.

Judicial Review

This judicial review is brought on the ground of irrationality and the court will consider a number of factors when deciding whether the defendants acted unlawfully, such as:

  • Whether the defendants, in their discharge of COVID-19 patients into care homes in the early stages of the pandemic, acted so unreasonably that no reasonable decision maker could have come to the same decision;
  • Whether the defendants took into account irrelevant matters, or failed to consider relevant matters; and
  • Whether the defendants acted dishonestly or in bad faith.

At the hearing, the justices considered the ground of irrationality, and submitted they did not consider the claimants would be able to succeed on their articles 8 and 14 ECHR and sections 29 and 149 Equality Act claims if they were unsuccessful on the article 2 right to life and irrationality ground. They advised they failed to understand how, if the claim failed on irrationality and article 2, it would make any difference whether the defendants had any regard to COVID-19 being especially dangerous to those who were elderly and/or disabled.

What was clear at the hearing was that there was a fundamental disagreement between the parties as to the true nature of the judicial review. Sir James Eadie submitted that the claimants were trying to introduce additional evidence so as to simulate a full trial with battles of expert and witness evidence. The justices agreed this was not in line with the spirit of judicial review, and reaffirmed the role of the review to consider the lawfulness of the government’s response to the pandemic in the early months.  Unlike in normal civil court proceedings where expert evidence would play an instrumental part, the justices considered whether the same evidence would have a place in the judicial review process.

Adjournment until 22 October – Directions

A decision was finally taken to adjourn the hearing until Friday 22 October, the following being ordered in the preceding days;

  • For the parties to narrow the issues between them;
  • For the claimants to submit a summary of the issues in a form similar to that of a statement of case;
  • For the claimants to condense their skeleton argument to a short, more succinct document, offering clear explanations of how the defendants failed to protect care homes residents; 
  • For the claimants to highlight the areas of expert opinion in Professor Gordon’s evidence and to explain why these are admissible;
  • For the defendants to raise any objections to the admissibility of Professor Gordon’s evidence; and
  • For the claimants to provide an explanation of how their case could succeed on articles 8 and14 and sections 29 and 149 if it were to fail on article 2 and irrationality.

Directions will be given and a decision will be taken as to the length of the substantive hearing at the reconvened hearing, which as outlined above will likely come as a financial blow to the claimants, who now have to finance not only an extended hearing, but the work of their counsel in advance of and at the hearing.

Matters such as disclosure, the admissibility of evidence and specific breaches will be considered on Friday and a further blog will follow with these updates.


Beth Albuery 
Trainee Solicitor
beth.albuery@blmlaw.com

Michelle Penn
Partner
michelle.penn@blmlaw.com

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