HT-2022-000043 - [2025] EWHC 540 (TCC)

In support of the Application, the Claimants served the first witness statement of Mr Parsons, a director of the Second Claimant and, until 31 March 2024, senior contract manager. This statement explains the background to the Application, the events leading to the commissioning of the Intertek Audit Report by the Defendant and the events immediately following the production of that report. In summary, Mr Parsons explains that the prospect of an independent audit was first discussed in open correspondence between the parties after the QIMA Audit Report owing to the fact that the Defendant would need such an audit in order to enable it to accept the Tests. Mr Parsons confirms that subsequent discussions in 2022 about an audit took place in “a without prejudice setting” and that the prospect of the audit had the potential to assist the parties in resolving their dispute, but he says in terms that “at no stage in my discussions or correspondence with DHSC did I or Santé ever accept or agree that the sole purpose of any further audit would be purely for settlement discussions, nor did we agree that the Intertek Audit Report would be subject to without prejudice privilege”. Mr Parsons says that it was self-evident that the Defendant would need to rely on the outcome of the Intertek Audit Report “within its own public audit trail”. Mr Parsons also says that he never agreed to the scope of the audit and so does not accept that it was generated for an agreed without privilege purpose. He points out that findings from the Intertek Audit Report was shared with Boson and Mr Phan, i.e. with parties outside the scope of the settlement negotiations between the Claimants and the Defendants.

By way of response, the Defendant relies upon the first witness statement of Ms Snook, Commercial Deputy Director, New Testing Technology and Innovation at the United Kingdom Health Security Agency until June 2022. Ms Snook says at the outset that she strongly believes “(and have always believed) that it was at all times the parties’ understanding that the [Intertek Audit Report] would be commissioned on a WP basis and remain subject to the WP Rule at all times”, a point of view that she repeats later on. She sets out the background to the proceedings between the parties and then summarises the settlement discussions with reference to the without prejudice correspondence. She explains that the idea was that DHSC would commission its own audit report at its own expense “for our own purpose of negotiations” without the Claimants’ agreement or involvement. She rejects the suggestion that the report was to be used as part of any public audit trail. She says that the Claimants eventually agreed to the scope of the Intertek Audit Report and she observes that if the Claimants did not agree to the full audit going ahead they could have prevented it from doing so. Ms Snook also says that she was unaware that Intertek held a meeting with Boson at the end of the audit and she has never heard of Mr Phan until recently. She says that she believed Boson and the Claimants to be part of a “single supplier group” and she confirms that in her view the context and purpose of the audit was to aid without prejudice negotiations and to allow the Defendant to consider whether the Claimants’ proposals for settlement of the dispute could be accepted.

Mr Parsons replies to Mr Snook’s statement in his second statement. In this statement he explains the significance of the Intertek Audit Report to the extant proceedings, he disagrees with Ms Snook’s evidence as to the purpose of the Intertek Audit Report and he rejects her evidence as to the Claimants’ belief and understanding at the time. He also contextualises the discussions between the parties against the background of a global pandemic and a general shortage of Tests, both globally and in the UK. He observes that “we were in the middle of a global crisis where finding a way to enable DHSC to take Tests manufactured by Boson…was critical”. He expands upon his evidence about the open discussions between the parties concerning a further audit in the final months of 2021 and he exhibits evidence of the internal deliberations of the Defendant, including the “reactive lines” document and some internal emails to which I have referred above. He observes that “[t]his context is, in my view, key to understanding the real purpose behind the Intertek Audit Report. DHSC had made clear that it would not be able to use Tests manufactured by Boson unless and until there was a further audit undertaken that provided evidence that DHSC could rely upon”. He confirms that at all stages, he and the Claimants’ team “all understood and believed that this was a critical part of the process so as to give DHSC evidence that it could rely upon publicly so as to be able to use the Tests”. Mr Parsons rejects the suggestion that he ever agreed to the scope of the Intertek Audit Report. He also rejects the “single supplier group” argument.

Upon first reading the evidence on both sides, I was concerned at the extent of the factual dispute between the parties. This concern was heightened by a suggestion in Mr Bowsher’s skeleton argument to the effect that “it may be difficult for the court to determine what was agreed orally in the absence of cross examination” and that “if there is any doubt about what was agreed orally, the WP status of the [Intertek Audit Report] should not be determined at this interim stage”.

However, upon hearing further submissions from the parties and on further reflection, I am satisfied that there is no difficulty with my making a decision on the Application without requiring cross examination of the witnesses.

In short, I am in agreement with Ms Hannaford that (i) Ms Snook cannot give evidence about what the Claimants’ understood and believed (at least not evidence to which I can attach any weight); (ii) subjective evidence from Ms Snook and Mr Parsons as to their own understanding and belief is of limited, if any, use in determining the status of the Intertek Audit Report in circumstances where the test to be applied is an objective test (a point to which I return below); (iii) key to my determination, as both sides accept, is my analysis of the without prejudice correspondence passing between the parties, specifically whether that correspondence evidences an express or implied agreement between the parties that the Intertek Audit Report would be covered by without prejudice privilege.

Furthermore, and importantly in my judgment, in light of the fact that Ms Snook has not responded to certain potentially key parts of the evidence of Mr Parsons in his second statement (including as to the open discussions between the parties at the end of 2021, the context for the without prejudice discussions and the internal deliberations of the Defendant which appear consistent with that context - as evidenced in the Defendant’s internal documents exhibited by Mr Parsons to his second statement including the “reactive lines” document), I asked Mr Bowsher during the hearing whether he wished to have the opportunity serve further responsive evidence. Not only did he disavow any intention to rely upon additional evidence, but he also confirmed that it was the Defendant’s wish that the Application be dealt with on the evidence as it currently stands. He confirmed that, notwithstanding the content of his skeleton argument, he was not seeking to invite the court to adjourn the hearing to facilitate cross examination of the witnesses and further that he did not consider cross examination likely to be of any real assistance.

In all the circumstances, it appears to me to be consistent with the requirements of the overriding objective that I determine the Application on the evidence before me. For reasons which will become clear, there is in fact no need whatever to determine which of the witnesses is “right” about disputed issues of fact.

Before turning to the parties’ arguments, I must first set out the (largely uncontroversial) legal principles.