Secretary of State for Health and Social Care v Primer Design Limited & Anor
[2024] EWHC 1071 (TCC)
Mornington 2000 LLP (t/a Sterilab Services) & Anor v The Secretary of State for Health and Social Care
3 July 2024
[2024] EWHC 1708 (TCC)
High Court
Two companies sued the government over a cancelled contract for COVID tests. The government wanted access to documents held by the companies' suppliers. The judge decided the companies had enough control over their suppliers’ documents that they were responsible for providing them to the government as part of the lawsuit.
Key Facts
- •Dispute over a contract for the supply of Covid-19 lateral flow test kits between Claimants (Mornington 2000 LLP and Sante Global LLP) and the Secretary of State for Health and Social Care.
- •Defendant terminated the contract due to alleged labor law, health and safety, and worker payment violations at the manufacturer's (Boson) factory in China.
- •Claimants dispute the breach and claim damages exceeding £100m, plus a procurement claim for further losses.
- •Central issue: whether documents held by sub-contractors (Bio and Boson) are under the control of the second Claimant (Santé) for disclosure purposes.
Legal Principles
Definition of 'control' for disclosure purposes.
PD57AD, Appendix 1, §1.4 and CPR 31.8(2)
Practical or de facto control of a third party's documents is sufficient for disclosure.
Berkeley Square Holdings Limited v Lancer Property Asset Management Limited [2021] EWHC 849 (Ch), §46 (modified by Public Institution for Social Security v Al Wazzan [2024] EWHC 480 (Comm), §28)
A close legal or commercial relationship is insufficient to establish control; a specific and compelling arrangement is needed.
Various Airfinance Leasing Companies v Saudi Arabian Airlines Corporation [2021] EWHC 2904 (Comm), §21 and Loreley Financing (Jersey) No. 30 Ltd v Credit Suisse Securities (Europe) Ltd and others [2023] EWHC 548 (Comm)
On an interim application, the balance of evidence determines whether practical control exists.
Loreley Financing (Jersey) No. 30 Ltd v Credit Suisse Securities (Europe) Ltd and others [2023] EWHC 548 (Comm)
Free and unfettered access is not a necessary precondition for control.
Pipia v BGEO Group Limited [2020] 1 WLR 2582
Outcomes
The court declared that documents within the possession of Bio and Boson that are relevant to the categories of disclosure are within the control of the Claimants.
The balance of evidence showed that Santé had practical control over the relevant documents held by Bio and Boson due to contractual assistance clauses, prior provision of documents, Boson's assistance in the claim (including employee testimony), Santé's direct contact with Boson, and the unfairness of allowing the Claimants to use helpful documents from Boson without obligations regarding potentially detrimental ones.
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