Government suing PPE Medpro because of ‘buyer's remorse', court told
It began legal action after it said the company, linked to Tory peer Michelle Mone, breached a contract made during the coronavirus pandemic by failing to follow a validated sterilisation process.
The Department of Health and Social Care (DHSC) wants more than £121 million back from PPE Medpro, plus storage costs of over £8 million.
PPE Medpro is also accused of supplying the gowns without CE markings, which shows if a product meets certain medical standards.
Following a month-long trial at the High Court in London, lawyers for PPE Medpro said in closing that the Government had ordered 10 years' worth of excess gowns by December 2020.
Charles Samek KC, for PPE Medpro, said in written submissions: 'That simple fact explains why, once the PPEM gowns landed in the UK, they were no longer needed or wanted.'
He described the Government's assessment at the time as 'wildly and hopelessly wrong', adding: 'DHSC's obvious buyer's remorse was channelled into looking for ways to escape from a contract it wished it had never made.'
PPE Medpro has issued a counterclaim saying DHSC owed a duty of care to the company to advise it on compliance with the contract.
Mr Samek said DHSC approved the gowns without seeing a valid CE mark because they did not need one, adding that it is 'obvious' that PPE Medpro 'did not have and did not pretend to have a valid CE mark'.
Testing of 140 gowns after delivery showed that 103 failed to meet the sterilisation standard, the court was previously told.
Mr Samek said that after delivery to the UK, the gowns were kept in shipping containers for 'at least three months'.
Contamination therefore likely happened 'subsequent to delivery, most probably during the subsequent transportation, storage and handling of the tested gowns', he added.
Paul Stanley KC, for DHSC, said PPE Medpro did not follow a validated sterilisation process and did not keep sufficient records.
He said the bioburden, or level of microbial contamination prior to sterilisation, was not properly assessed and that PPE Medpro has been unable to show evidence of this assessment.
In written submissions, he said: 'The absence of such documentation is compelling evidence that the assessment of bioburden did not take place.'
He continued: 'DHSC invites the court to find as a matter of fact that this fundamental step in a validated process for sterilisation was not done.'
The barrister also referenced photographs that he said showed how the gowns were not manufactured in a way that would reduce microbial contamination.
These included workers wearing short sleeves, gowns trailing on the floor and personnel wearing street shoes and working without hair protection, he said.
Mr Stanley denied that DHSC owed a duty of care to PPE Medpro and said DHSC 'is entitled to repayment of the price, and to recover damages for storage costs'.
He added: 'The gowns were not sterilised using a properly validated process and were not, as a result, compliant with the contractual standard or (in the true commercial sense) 'sterile' gowns at all.'
Closing submissions are expected to conclude on Thursday with a written judgment given at a later date.
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