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

In mid May 2020 England was still in the first phase of the COVID lockdown, though COVID numbers and deaths were dropping. Discussions were ongoing as to the easing of lockdown measures. But many people were still getting very ill with COVID; and the Department of Health and Social Care (“DHSC”) was looking to maintain supplies of appropriate medical devices – such as sterile gowns, non-sterile (“isolation”) gowns, masks and gloves.

Against this background the Defendant (“Medpro”), a relatively new company which had access to the so-called “VIP lane” of PPE supply, offered to source and supply sterile gowns. After discussion, during the course of which one of the relevant teams in DHSC said that the submission in respect of the gowns was “technically approved”, a draft contract was sent out and was later concluded.

The gowns were delivered ex works in China between July and early September. DHSC paid a few pence less than £122 million for them.

They arrived in tranches between mid August and mid October. They were not inspected until some time after they had arrived in the UK. On inspection it was concluded that the gowns were not appropriately marked and the DHSC was not satisfied that the gowns were contractually compliant. Just before Christmas 2020 DHSC served a notice rejecting the goods and seeking its money back. Still later a selection of gowns was tested, and it was found that a number of them were not sterile.

Overall DHSC claims the following (capped under the contract at £128,099,180):

That claim raises issues of the terms of the contract, representations said to have been made at the time, and (perhaps more interestingly) of the nature of sterility, statistical probability and the significance of organisms isolated from a deep trench in the Pacific. Then there are issues as to the right to reject the goods, and whether DHSC can claim the full value of the gowns in damages.

Those issues and issues as to the extent of the claim are considered further below under broad headings as follows: