Search
Contact

Our clerks’ room is open between:

8.30am – 6.30pm

Outside of these hours and in cases of urgency, please contact
Paul Bunting on 07971 843023 or
Darren Madle on 07769 714399.

Clerk contacts

Richard Sheehan

Deputy Senior Clerk

020 7420 9503
Oliver Ventura

First Junior Clerk

020 7420 9505
Aron Hanks

Second Junior Clerk

020 7420 9506
Archie Conners

Third Junior Clerk

020 7420 9507

Our clerks’ room is open between:

8.30am – 6.30pm

Outside of these hours and in cases of urgency, please contact
Paul Bunting on 07971 843023 or
Darren Madle on 07769 714399.

Clerk contacts

Richard Sheehan

Deputy Senior Clerk

020 7420 9503
Oliver Ventura

First Junior Clerk

020 7420 9505
Aron Hanks

Second Junior Clerk

020 7420 9506
Archie Conners

Third Junior Clerk

020 7420 9507

Mornington 2000 LLP (t/a Sterilab Services) and Anr v The Secretary of State for Health and Social Care [2024] EWHC 1708 (TCC)

Introduction

On 3 July 2024, the High Court (Jason Coppel KC, sitting as a Deputy High Court Judge) handed down judgment on the Defendant’s application for a declaration that documents held in the possession of foreign third parties were to be regarded as within the control of the Claimants for the purposes of their disclosure obligations.

Background

The proceedings concerned two related claims arising out of a contract for the supply of Covid-19 lateral flow test kits between the Claimants and the Defendant.  In order to perform the contract, the Second Claimant (Santé Global LLP) had a sub-contract with a supplier based in Germany called MP Biomedicals Germany GmbH (“MP Bio”), and MP Bio in turn had a sub-contract with the manufacturer of the test kits, a Chinese company called Xiamen Boson Biotech Co Ltd (“Boson”). 

The Defendant terminated the contract on account of alleged violations of labour law, health and safety and worker payment obligations in Boson’s factory in China, said to constitute breaches of contract.  The Claimants disputed that there was any breach of contract on their part and claimed for the contract price/damages and interest (in excess of £100 million).  There was also a public procurement claim, alleging that the Defendant breached the Public Contracts Regulations 2015 by placing additional orders with other suppliers after having terminated the contract, and by failing to offer the Claimants the opportunity to compete for further contracts, leading to further loss of profits. 

The application

The Defendant’s application was for a declaration to the effect that, as a result of arrangements between Santé, MP Bio and Boson, documents in the possession of MP Bio and Boson were to be regarded as within the control of Santé for the purposes of its extended disclosure obligations under PD57AD. 

The Court, applying the principles stated by Mr Robin Vos in Berkeley Square Holdings Limited v Lancer Property Asset Management Limited [2021] EWHC 849 (Ch) §49 (as modified in one respect by Jacobs J in Public Institution for Social Security v Al Wazzan [2024] EWHC 480 (Comm) §28), found that Santé did enjoy practical control over documents held by MP Bio and in particular Boson:

1. While accepting that this was an unusual case for there to be practical control, there was no reason in principle why a contractor could not enjoy practical control over certain documents held by a sub-contractor or a sub-sub-contractor.  In this case, the flavour of the relationship was in substance a joint enterprise which had gone beyond a standard, arm’s length contractor/sub-contractor-sub-sub-contractor relationship.

2. The balance of the evidence showed that there was an arrangement or understanding that Boson would search for relevant documents or make documents available to be searched.

3. The Defendant did not suggest that all documents held by MP Bio and Boson were within Santé’s control, but only the documents responsive to categories in the Disclosure Review Document, which had been decided to be necessary for a fair disposal of the claims such that a search for them must be carried out.

4. Certain contractual assistance clauses were the starting point for inferring the said arrangement or understanding, but there were significant other factors which gave rise to that inference, including in particular the evidence of past access to documents being provided by Boson.  Even though such past access had only been provided during a small number of discrete periods, the Claimants did not rely upon any instances where Boson had refused to provide access to documents.

5. Contrary to the Claimants’ submissions, it was not necessary for the Defendant to establish that Santé, or MP Bio, had free and unfettered access to Boson’s documents.  The fact that documents may have been provided previously on request, rather than by Boson permitting direct third-party access to its documents, did not establish that searching of Boson’s documents would not be permitted.

The Court therefore granted the declaration sought by the Defendant (in the modified form proposed at the hearing). 

Lara Kuehl, led by Michael Bowsher KC (Monckton Chambers), appeared for the successful applicant, the Secretary of State for Health and Social Care, instructed by the Government Legal Department.

Please click here for a copy of the judgment, reported as [2024] EWHC 1708 (TCC).