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

This is an application by the Claimants for a declaration that an audit report commissioned by the Defendant and created at a time when the parties were involved in Without Prejudice negotiations, together with various Associated Documents, do not benefit from the protection of the Without Prejudice rule (“the WP Rule”).

The underlying proceedings arise out of a dynamic purchasing system agreement (“the DPS Agreement”) dated 24 May 2021 between the Claimants and the Defendant (referred to in many of the documents as “DHSC”) for the supply of lateral flow testing devices (“Tests” or “LFTs”) intended for the detection of Covid-19 viral antigens. There are three sets of proceedings relating to: (i) breaches of the Public Contracts Regulations 2015 (“the Regulations”) in relation to the allocation of orders and/or direct contracts for the Tests (“the First Claim”); (ii) the alleged wrongful rejection by the Defendant of 68.4 million Tests (“the Second Claim”); and (iii) further breaches of the Regulations in relation to the allocation of orders and/or direct contracts for the Tests and the unequal treatment of bidders in relation to alleged breaches of Chinese labour law (“the Third Claim”).