CL-2022-000676 - [2025] EWHC 2486 (Comm)

DHSC has also claimed the costs which it says it incurred in having to store and dispose of the gowns that it could not use or sell. The claim for cost of disposal was abandoned, but the storage claim (£8,648,691) remained. It was advanced on the basis of a spreadsheet, entitled the Storage Costs Spreadsheet. The document was introduced by a sole witness, Mr Johnathan Bates. From October 2020 Mr Bates was the head of PPE analysis and data at the DHSC.

There is no issue that contractually storage costs would be recoverable. That is clear from Schedule 2 clauses 4.3, 4.5 and 7.3. There would also be no reason why such costs could not be recovered as damages.

Nor was there really an issue with the calculation within the spreadsheet. That was clearly explained by Mr Sampson and effectively agreed by Mr Cukier.

The issue here was proof of the quantum: the combination of the lack of underpinning of the spreadsheet, combined with Mr Bates’ own lack of personal knowledge of the spreadsheet. As the relevant section leader, he was sent to court to verify and defend a document produced by others within his group, who it was not considered fair to expose to cross examination. While this was a kind and worthy approach, it was not, in probative terms, helpful.

The net result was that this claim rested on a spreadsheet of which Mr Bates was not the author and he had no direct involvement in its creation or development as a living document. He had first discussed it only a week before giving his evidence, for the purpose of ensuring he understood it well enough to give evidence on it. While in broad terms he had direct knowledge of the underlying data sources used to compile it, it did not seem (and would not have been likely) that he had seen, considered or grappled with the underlying data. He had not, for example, seen the underlying stock model data that was a key basis for the spreadsheet. He had no information as to where the costs in the spreadsheet had come from and had not inspected any storage cost invoices.

Ultimately while it was Mr Bates’ evidence that the figures presented should err on the side of caution (“we have deliberately built in underestimates throughout this is inevitably at a low side estimate of the costs. Every single decision point where we could take A or B, we have taken the route that gives us the lowest cost.”) the net result was that the Court was effectively being asked to take on trust the figures set out in the spreadsheet. While not in any way denigrating the diligence or the abilities of those who compiled and worked on the spreadsheet, that is simply not an adequate way of advancing a claim for over £8 million.

That is the more so when the claim is not entirely vanilla. A simple example can be given. Here the way the claim was advanced was by reference to the overall costs of storage – the underlying invoices were for storage costs in general – they were not specific to the Medpro items because that was not the way in which billings to DHSC were done. It was not possible to interrogate the invoices themselves because, although disclosed documents, they were not included in the bundles for trial (DHSC having resisted their inclusion). There were other points which might profitably have been explored with a witness who had handled the raw data: an example was the approach to gap filling and “smoothing” of data (one tab of the spreadsheet related to “smoothed data”) where underlying documents were massing or anomalous.

Mr Sampson, to whom the unattractive task of presenting this portion of the case fell, did the very best that he could with the materials available. He may be right that even if the spreadsheet’s author had been the witness, and the witness statement had been properly supported by the underlying documents so that the quantum could be effectively audited, investigated and challenged, there would have been problems in establishing precise costs prevailing at particular points of time so as to verify or adjust parts of the claim. However, the court and Medpro were not given that opportunity. The result is that while doubtless there were storage costs which would have been recoverable, DHSC has failed to prove this element of the claim. The storage costs claim is dismissed.