Gardner v Secretary of State for Health and Social Care – Judicial Review Update
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The public challenge brought by claimants Dr Cathy Gardner and Fay Harris in respect of the government’s COVID-19 hospital discharge policy reconvened on Friday, 22 October.
The days’ submissions followed from the adjourned hearing on Tuesday, 19 October, reported here. This blog will explore the key issues addressed at the hearing, and consider the way forward for the claimants’ case.
The first of the issues of principle before justices Lord Justice Bean and Mr Justice Garnham was in respect of the admissibility of evidence put forward by the claimants in the statements of Professor Gordon and Professor Costello.
A determination on this issue will be pivotal to the claimants’ case. This is because their evidence is key to understanding the actual or constructive knowledge the decision-makers had of the risks of asymptomatic transmission of COVID-19 in the early months of the pandemic, and whether the actions taken, for example in respect of the March discharge policy, were within the realm of reasonable responses.
At the hearing on Tuesday, the introduction of a third statement of Professor Gordon was opposed by the defendants on the basis this was expert evidence, and permission had not been granted by the court to rely on it. The cross-application before the court on Friday, described as an “ambush” by Mr Coppel went even further to challenge all expressions of opinion contained in statements of Professors Gordon and Costello already adduced in evidence.
The distinction between expert and opinion evidence was considered at the hearing, with Mr Coppel arguing this evidence was in the “grey area” between fact and opinion evidence, where a person with relevant expertise giving factual evidence would be entitled to give statements of opinion. In respect of Professor Gordon, Mr Coppel stated his clinical and epidemic knowledge and day to day experience of being in care homes granted him the ability to state opinions reasonably related to facts within his knowledge, and make comments based on facts within his own experience, the same being admissible. In any event, Mr Coppel contended there were expressions of opinion contained in the defendants’ evidence, and if these were immune to challenge, the procedure would be unfair.
The interpretation of CPR 35 was considered at the hearing as the defendants sought to exclude the claimants’ evidence on the basis permission had not been granted pursuant to CPR 35, an “exhaustive and comprehensive code regulating all expert evidence”. Mr Coppel however described the evidence of the professors as factual evidence which does not fall within the definition of expert evidence as laid down in CPR 35.2, and as a result, permission would not be required to rely upon it in these proceedings.
Though commenting that the claimants’ interpretation of the evidence would revolutionise what was meant by expert evidence, the justices reserved their judgement on the issue until the substantive hearing. If expressions of opinion are excluded from the claimants’ evidence, they will have to consider whether these are so central to their case that they will require permission to rely on them through CPR 35, but as indicated by Mr Coppel, this would come as a further blow to the claimants’ funding position.
The justices also reserved judgement in respect of the claimants’ application for disclosure of parliamentary minutes. This will be considered further and a determination made at the substantive hearing.
The justices did however make a decision to reject a further disclosure application made by the claimants. This concerned the advice the defendants received that informed their decision not to mandate the isolation of new admissions into care homes.
The grounds for rejecting the application were twofold. Firstly, the justices held the wide-ranging request for disclosure had been dealt with previously by Justice Eady in August. Secondly, they held disclosure of this advice would be of no assistance to the court. They argued it was plainly obvious that there would be extreme difficulty in enforcing isolation in care homes, and that there was already a substantial amount of evidence to suggest the isolation of asymptomatic residents was not recommended at the time.
A discrete point dealt with at the hearing was whether the claimants had committed a breach by providing documents relevant to the case to an interested NGO. This was a new challenge brought by the defendants in their updated skeleton and the justices were swift to dismiss it, arguing they would not be making any findings or order in respect of it.
The fundamental function of the review and the grounds on which it is brought seemed again to be in dispute on Friday. The claimants’ argued this was not a “standard” judicial review. They sought to move away from the irrationality challenge, asserting this was an article 2 and article 8 challenge on a proper analysis of the claim and that the court could not adopt the same approach as they would with a standard irrationality challenge.
Sir James Eadie QC however disputed this, arguing the basis of the review was institutional competence within the context of irrationality. He contended there was no difference in principle just because the claimants purported to “dress up a substantial challenge in ECHR clothing”.
The justices required the parties to further narrow and clarify the issues between them. Of significance, they required the claimants to respond to the allegation that nine separate complaints had been abandoned in the updated skeleton, so that there was clarity around what remained in issue in the case.
The justices indicated the substantive hearing would take place between 7 February and 1 April 2022, with a length somewhere in the range of 6-8 days.
The claimants responded to the delay and lengthening of the hearing following the adjournment on Tuesday, remarking it would help justice be done. The impact of the court’s decision at the substantive hearing may however be of less significance now it has been relisted for next year. This is because it will come after the Scottish public inquiry has launched and will run concurrently with the UK public inquiry, set to be launched in Spring 2022. The exact aims and remit –known as the terms of reference will be announced closer to the start of the inquiry next year. However whatever the terms of reference these inquiries will shine a spotlight on the decision-making processes of the government during the pandemic in the same way these claimants have sought to do so through this review,
It remains to be seen what the next steps will be for the claimants, particularly in light of their already stretched funding, and for other potential claimants contemplating legal action.
We will follow with further commentary and updates as these events unfold.
*This content was written by BLM prior to its merger with Clyde & Co*