The High Court has ruled in favour of the government after Sacha Lord and Hugh Osmond sought to bring forward the reopening date of indoor hospitality in England.
The case, brought by Osmond, founder of Punch Taverns, and Lord, founder of Parklife and the Warehouse Project, sought to challenge the decision to delay the reopening of indoor hospitality until 17 May, arguing there was no justification or scientific basis for indoor hospitality to remain closed while other businesses such as non-essential retail have been permitted to resume trading.
The judgment came just hours before a SAGE report emerged, indicating that ministers had been advised that "eating out in any food outlet or restaurant was not associated with increased odds" of catching Covid and the risk of "transmission in hospitality, retail and leisure are relatively low" with just 226 outbreaks in hospitality venues since pandemic began.
It was unclear when the SAGE report was written or submitted to ministers but, according to Lord, the report was not disclosed by the defence during the legal proceedings.
The Honourable Mr Justice Julian Knowles dismissed the call for judicial review to bring forward indoor reopening as "academic", noting the necessary hearing would be unlikely to take place before 17 May.
Despite orders to expedite the case, the final judgement was delayed due to a backlog in the court system.
Osmond said: "This case is not 'academic' for an industry that is losing £200m every day it remains closed, for the over three million people who work in our industry, or for the tens of thousands of businesses, suppliers, landlords and contractors forced into bankruptcy by government measures. Our legal action gave them a fighting chance yet once again in 2021, the strong arm of the state has come crushing down on hope and aspiration.
"The judge said that Covid ‘justifies a precautionary or cautious approach on the part of the government'. But when a crucial SAGE report is ignored, this goes far beyond caution, and questions need to be asked about when this advice was sought and why this important evidence was not disclosed.
"I am deeply concerned that the judge's main reason for refusing judicial review was because our claim ‘was not brought promptly', even though we issued our claim days after the roadmap became law on 25 March, with the court taking a month to provide its ruling."
Lord said he was "disappointed" with the outcome but pleased the case "shone a light on the hospitality sector". Previous legal action by Lord forced the government to drop its ‘substantial meal' rule.
He added: "Through our legal action, we have sent a clear, strong message direct to the heart of government. We will continue to advocate for those who have been unfairly impacted throughout this crisis, and despite the outcome, we will continue to hold the government to account and demand evidence-based decisions, rather than those drafted without detailed analysis or based on bias or whim."
Having considered the ruling with their legal team, Osmond and Lord have decided that there is insufficient time to challenge it before 17 May, although Osmond is reviewing other legal options in relation to the matter.