Secretary of State for Health and Social Care vs Primer Design Limited and Novacyt S.A

This case involved a pre-trial review concerning the claim by the Secretary of State for Health and Social Care against Primer Design Limited and Novacyt S.A over the quality and performance of COVID-19 testing kits supplied under a contract.

TLDR:

• Secretary of State claimed breaches of contract and warranty by Primer Design and Novacyt.
• Allegations included issues with the robustness and quality of COVID-19 testing kits.
• Defendants contested the claims, arguing the warranty did not cover performance issues.
• Pre-trial review focused on expert evidence and summary judgment applications.
• Court allowed further expert reports and denied summary judgment.

The Secretary of State for Health and Social Care (Claimant) entered into a contract with Primer Design Limited (First Defendant) for the supply of 6,300 Exsig COVID-19 testing kits per week for an initial period of 14 weeks, valued at £175 million. Novacyt S.A (Second Defendant) provided a guarantee for Primer Design's performance.

The contract included a Limited Warranty that each reagent kit should be of good quality, free of material defects, and function according to the Specification. The Claimant alleged multiple breaches of this warranty, including issues with the sensitivity of the testing kits, their use with oropharyngeal specimens, and use with PBS nasal swabs.

In November 2022, the Claimant amended their Particulars of Claim to include an additional breach, asserting that over half of the Exsig Kits reported invalid results, indicating a lack of robustness and a breach of the warranty and Specification.

The Defendants contested these claims, arguing that the warranty of good quality related only to the condition of the reagent kits, not their performance. They also disputed the robustness requirement, suggesting that the invalid results could be due to external factors, not flaws in the kits themselves.

A case management conference was held on 27th January 2023, directing the experts to meet and produce a joint statement. The experts agreed on many points but disagreed on the robustness of the testing kits. The Defendants later sought to extend the time for serving expert evidence and to include matters agreed upon in the joint statement.

The Claimant responded by seeking summary judgment, arguing that the agreed lack of robustness in the joint statement was sufficient to establish a breach of contract. The Defendants opposed this, highlighting potential external factors affecting the test results and questioning the experts' assumptions.

The court declined to grant summary judgment, finding that the Defendants had a real prospect of success on the issue of robustness. The court also allowed the Defendants to serve a further expert report and granted the Claimant time to respond with their own report, ensuring both experts could address the issues comprehensively.

The court emphasized the importance of a fair trial and the need for both parties to have the opportunity to present their evidence fully. The trial was scheduled to proceed with the experts available for cross-examination, allowing the court to consider all relevant evidence and arguments.

Legal representatives: Mr. Adam Heppinstall KC, Ms. Lucy McCormick, and Mr. George Mallet (instructed by The Government Legal Department) for the Claimant. Mr. Andrew Twigger KC and Mr. Jonathan Allcock (instructed by Stephenson Harwood LLP) for the Defendants.

Judicial Panel: Mrs. Justice Jefford

Case Citation Reference: [2024] EWHC 1071 (TCC)