The court of appeal has overturned a ruling that found that a government contract given to a polling company with links to Dominic Cummings was unlawful.
The lord chief justice reversed a ruling made last year after he found the original judgment to be “unprecedented”, and questioned how it perceived an alleged bias.
Last June, a high court judge ruled that the Cabinet Office’s decision to award a contract to the market research firm Public First “gave rise to apparent bias and was unlawful”.
Public First is run by policy specialists James Frayne and Rachel Wolf, both of whom previously worked with Cummings when he worked for Michael Gove.
The company was given a contract for more than £550,000 in June 2020 for focus groups and other research – including testing public health slogans such as “Stay at home, protect the NHS, save lives”.
The campaigning organisation the Good Law Project (GLP), which brought the case, plans to appeal to the supreme court.
June’s ruling was the first in a series of judicial review legal challenges brought by the GLP against government Covid-19 contracts awarded with no competitive tenders under emergency regulations
Mrs Justice O’Farrell found that the “apparent bias” was not due to the existing relationships between Cummings and Public First, but because of a failure to consider any other research agency or record the objective criteria used in the selection.
However, in a judgment on Tuesday, the court of appeal overturned her ruling.
The lord chief justice, Lord Burnett, sitting with Lord Justice Coulson and Lady Justice Carr, found that the original judgment was an “unprecedented outcome”.
Burnett concluded: “The fair-minded and reasonably informed observer would not have concluded that a failure to carry out a comparative exercise of the type identified by the judge created a real possibility that the decision-maker was biased.”
In response, the GLP said: “We don’t think the court of appeal is right. And so we plan to ask the supreme court to hear an appeal.”
In a statement, it added: “We believe there is proper and widespread public interest in the extent to which the law restrains public servants from awarding valuable public contracts to their friends without adequate safeguards to protect against the risk of bias.”
In a document setting out its grounds for appeal, GLP lawyers said: “Mr Cummings should not have been permitted to determine that the contract should be awarded to his personal friends without safeguards to mitigate the risk of bias.”
Cummings said the court of appeal ruling was “total vindication for my decisions on moving super speedy on procurement to save lives”.
He added: “Remember all the ignorant nonsense from pundits/minor social scientists/remainiacs?”
In a reference to the Good Law Project chief, Jolyon Maugham, he said: “Lord chief justice crushes kimono-fox-killer.”
Frayne, founding partner of Public First said: “Our research team worked unbelievably hard for seven days a week – from early morning till late at night – during the height of the pandemic, helping refine messages that prevented many casualties. Today’s judgment rightly pays tribute to the team’s efforts and they should be proud of their work.”
A Cabinet Office spokesperson said: “We welcome the court of appeal’s ruling that this contract was awarded entirely lawfully. This includes the court’s firm rejection of the allegation of apparent bias, overturning the previous judgment.
“Throughout the pandemic our priority has always been to save lives and the work by Public First helped to improve vitally important health messages.”
