Automatic Suspension

• EU
  • Directive 89/665/EEC

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    • Article 2 Requirements for review procedures
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      Articles 2.3, 2.4, 2.5

      3.  When a body of first instance, which is independent of the contracting authority, reviews a contract award decision, Member States shall ensure that the contracting authority cannot conclude the contract before the review body has made a decision on the application either for interim measures or for review. The suspension shall end no earlier than the expiry of the standstill period referred to in Article 2a(2) and Article 2d(4) and (5).

      4.  Except where provided for in paragraph 3 and Article 1(5), review procedures need not necessarily have an automatic suspensive effect on the contract award procedures to which they relate.

      5.  Member States may provide that the body responsible for review procedures may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such measures when their negative consequences could exceed their benefits.
    • Article 2a Standstill period
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      1. The Member States shall ensure that the persons referred to in Article 1(3) have sufficient time for effective review of the contract award decisions taken by contracting authorities, by adopting the necessary provisions respecting the minimum conditions set out in paragraph 2 of this Article and in Article 2c.

      2. A contract may not be concluded following the decision to award a contract falling within the scope of Directive 2014/24/EU or Directive 2014/23/EU before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.

      …

    • Article 2c Time limits for applying for review
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      Where a Member State provides that any application for review of a contracting authority’s decision taken in the context of, or in relation to, a contract award procedure falling within the scope of  Directive 2014/24/EU or Directive 2014/23/EU must be made before the expiry of a specified period, this period shall be at least 10 calendar days with effect from the day following the date on which the contracting authority’s decision is sent to the tenderer or candidate if fax or electronic means are used or, if other means of communication are used, this period shall be either at least 15 calendar days with effect from the day following the date on which the contracting authority’s decision is sent to the tenderer or candidate or at least 10 calendar days with effect from the day following the date of the receipt of the contracting authority’s decision. The communication of the contracting authority’s decision to each tenderer or candidate shall be accompanied by a summary of the relevant reasons. In the case of an application for review concerning decisions referred to in Article 2(1)(b) of this Directive that are not subject to a specific notification, the time period shall be at least 10 calendar days from the date of the publication of the decision concerned.

• Ireland
  • S.I. No. 130/2010 European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010

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    • Consolidated Version of S.I. No. 130/2010 (Remedies Regulations)

      See also S.I. No. 192/2015 – European Communities (Public Authorities’ Contracts) (Review Procedures) (Amendment) Regulations 2015 and S.I. No. 327/2017 – European Communities (Public Authorities’ Contracts) (Review Procedures) (Amendment) Regulations 2017, which amend SI 130/2010.

      The following is an unofficial consolidated version of S.I. No. 130/2010:

      ARRANGEMENT OF REGULATIONS

      1. Citation.
      2. Interpretation—general.
      3. Application of these Regulations to contracts and decisions.
      4. Persons to whom review procedures are available.
      5. Standstill period.
      6. Notices to unsuccessful tenderers and candidates.
      7. Time limits for applications to Court.
      8. Application to Court.
      9. Powers of Court.
      10. Rules of court.
      11. Declaration by Court that a contract is ineffective.
      12. Effect of declaration that a contract is ineffective.
      13. Alternative penalties.
      14. Non-exclusion of other remedies.
      15. Revocation.

      EUROPEAN COMMUNITIES (PUBLIC AUTHORITIES’ CONTRACTS) (REVIEW PROCEDURES) REGULATIONS 2010

      Notice of the making of this Statutory Instrument was published in

      “Iris Oifigiúil” of 30th March, 2010.

      I, BRIAN LENIHAN, Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive 89/665/EEC (1 ), as amended by Directive 2007/66/EC (2 ), hereby make the following regulations:

      Citation

      1.—These Regulations may be cited as the European Communities (Public Authorities’ Contracts) (Review Procedures) Regulations 2010.

      Interpretation—general

      2.—(1) In these Regulations—

      “contracting authority” has the same meaning as in the Public Authorities’ Contracts Regulations;

      “Court” means the High Court;

      “eligible person” has the meaning given by Regulation 4;

      “Official Journal” means the Official Journal of the European Union;

      “Public Authorities’ Contracts Regulations” means means the European Union (Award of Public Authority Contracts) Regulations 2016 (S.I. No. 284 of 2016);

      “reviewable public contract” means a contract (including a framework agreement and a dynamic purchasing system) referred to in the Public Authorities’ Contracts Regulations, the awarding of which is governed by one or more of the Parts (or a Chapter or Chapters of those Parts) of those Regulations;

      “Revised Remedies Directive” means Council Directive 89/665/EEC 1 of 21 December 1989, as amended by Directive 2007/66/EC 2 of the European Parliament and of the Council of 11 December 2007 and Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014;

      “standstill period” has the meaning given by Regulation 5.

      (2) For the purposes of these Regulations, a contract has been concluded when it has been entered into and is legally binding.

      (3) For the purposes of these Regulations—

      (a) a tenderer is concerned if he or she has not been definitively excluded from a contract award procedure, and

      (b) a candidate is concerned if the contracting authority has not made information available to him or her about the rejection of his or her application before the notification of the contract award decision to the tenderers concerned.

      (4) For the purposes of paragraph (3)(a), the exclusion of a tenderer is definitive if it has been notified to the tenderer in accordance with Regulation 6 and—

      (a) has been declared lawful by the Court, or

      (b) is not, or can no longer be, subject to a review procedure.

      (5) A word or expression used in both these Regulations and the Public Authorities’ Contracts Regulations has, unless the contrary intention appears, the same meaning in these Regulations as in the Public Authorities’ Contracts Regulations.

      Application of these Regulations to contracts and decisions

      3.—These Regulations apply to decisions taken, after the coming into operation of these Regulations, by contracting authorities in relation to the award of reviewable public contracts, regardless of when the relevant contract award procedure commenced.

      Persons to whom review procedures are available

      4.—For the purposes of these Regulations, a person is an eligible person in relation to a reviewable public contract if the person—

      (a) has, or has had, an interest in obtaining the reviewable public contract, and

      (b) alleges that he or she has been harmed, or is at risk of being harmed, by an infringement, in relation to that reviewable public contract, of the law of the European Communities or the European Union in the field of public procurement, or of a law of the State transposing that law.

      Standstill period

      5.—(1) A contracting authority shall not conclude a reviewable public contract to which a standstill period applies under these Regulations within the standstill period for the contract.

      (2) There is no standstill period for—

      (a) a contract where the Public Authorities’ Contracts Regulations do not require prior publication of a contract notice in the Official Journal,

      (b) a contract where the only tenderer concerned is the one who is awarded the contract and there are no candidates concerned,

      (c) a contract entered into or awarded on the basis of a framework agreement in accordance with Regulation 33 of the Public Authorities’ Contracts Regulations, or

      (d) a specific contract entered into on the basis of a dynamic purchasing system in accordance with Regulation 34 of the Public Authorities’ Contracts Regulations.

      (3) The standstill period for a contract begins on the day after the day on which each tenderer and candidate concerned is sent a notice, in accordance with paragraphs (2) and (3) of Regulation 6, of the outcome of his or her tender or application.

      (4) The duration of the standstill period must be at least—

      (a) if the notice under Regulation 6 is sent by fax or electronic means, 14 calendar days, or

      (b) if the notice is sent by any other means, 16 calendar days

      (5) For the avoidance of doubt, nothing in the subsequent provisions of these Regulations enables a Court to make an order permitting a reviewable public contract to be concluded during the period specified in paragraph (1).

      Regulation 55 of Public Authorities’ Contracts Regulations not affected

      5A. Nothing in the preceding Regulation or Regulation 6 affects Regulation 55 (and, in particular, paragraph (2) of it) of the Public Authorities’ Contracts Regulations.

      Notices to unsuccessful tenderers and candidates

      6.—(1) The notice referred to in Regulation 5(3), or a notice to an unsuccessful tenderer for a contract based on a framework agreement or dynamic purchasing system, shall be as set out in this Regulation.

      (2) Such a notice—

      (a) shall inform the candidates and tenderers concerned of the decisions reached concerning the award of the contract, the conclusion of a framework agreement or admittance to a dynamic purchasing system, including the grounds for any decision not to award a contract for which there has been a call for competition, conclude a framework agreement, recommence the procedure or implement a dynamic purchasing system,

      (b) shall state the exact standstill period applicable to the contract, and

      (c) for each unsuccessful tenderer or candidate, shall include—

      (i) in the case of an unsuccessful candidate, a summary of the reasons for the rejection of his or her application,

      (ii) in the case of an unsuccessful tenderer, a summary of the reasons for the rejection of his or her tender.

      (3) In the case of a tenderer who has submitted an admissible tender (that is, a tender that qualifies for evaluation under the rules of the relevant tender process), the summary required by paragraph (2)(c)(ii) shall comprise—

      (a) the characteristics and relative advantages of the tender selected,

      (b) the name of the successful tenderer, or, in the case of a framework agreement, the names of the parties to it, and

      (c) in the cases referred to in Regulation 42(10) and (11) of the Public Authorities’ Contracts Regulations, the reasons for the contracting authority’s decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements.

      (4) In the case of an unsuccessful candidate, the information to be provided under paragraph (2)(c)(i)may be provided by setting out—

      (a) the score obtained by the candidate concerned, and

      (b) the score achieved by the lowest-scoring candidate who was considered to meet the per-qualification requirements, in respect of each criterion assessed by the contracting authority.

      (5) In the case of an unsuccessful tenderer, the information to be provided under paragraph (2)(c)(ii) and subparagraphs (a) and (b) of paragraph (3) may be provided by setting out—

      (a) the score obtained by the unsuccessful tenderer concerned, and

      (b) the score obtained by the successful tenderer in respect of each criterion assessed by the contracting authority.

      (6) In the case of a framework agreement to which more than one tenderer has been admitted, the information to be provided to each unsuccessful tenderer under paragraph (2)(c)(ii) may be provided by setting out—

      (a) the scores obtained by the tenderer concerned in respect of each criterion assessed by the contracting authority, and

      (b) the scores obtained in respect of each criterion assessed by the contracting authority by the lowest scoring tenderer who was admitted to the framework.

      (7) However, a contracting authority may decide to withhold any information referred to in paragraph (2)(c) regarding the award of a contract, the conclusion of a framework agreement or admittance to a dynamic purchasing system if the release of such information—

      (a) would impede law enforcement,

      (b) would otherwise be contrary to the public interest,

      (c) would prejudice the legitimate commercial interests of a particular economic operator, whether public or private, or

      (d) might prejudice fair competition between economic operators.

      Time limits for applications to Court

      7.—(1) Subject to any order of the Court made under a rule referred to in Regulation 10(2), an application to the Court shall be made within the relevant period determined in accordance with this Regulation.

      (2) An application referred to in subparagraph (a) or (b) of Regulation 8(1) shall be made within 30 calendar days after the applicant was notified of the decision, or knew or ought to have known of the infringement alleged in the application.

      (3) An application for a declaration that a contract is ineffective shall be made within 30 calendar days (commencing on the appropriate date determined in accordance with paragraph (4) or (5), as the case requires), in the following cases—

      (a) where the contracting authority published a contract award notice in accordance with Regulations 50 and 51 of the Public Authorities’ Contracts Regulations, and, in the case of a contract awarded without prior publication of a contract notice in the Official Journal, on condition that the contract award notice sets out the justification of the contracting authority’s decision not to publish a contract notice;

      (b) where the contracting authority notified each tenderer or candidate concerned of the outcome of his or her tender or application, and that notice contained a summary of the relevant reasons that complied with Regulation 6(2);

      (c) the cases of a contract based on a framework agreement, and of a specific contract based on a dynamic purchasing system, where the contracting authority has given notice in accordance with Regulation 6(2).

      (4) In the case mentioned in paragraph (3)(a), the period begins on the day after the notice is published in the Official Journal.

      (5) In the cases mentioned in subparagraphs (b) and (c) of paragraph (3), the period begins on the day after the contracting authority gives the notice referred to in the relevant subparagraph.

      (6) In any other case an application for a declaration that a contract is ineffective shall be made within 6 months after the conclusion of the relevant contract.

      Application to Court

      8.—(1) An eligible person may apply to the Court—

      (a) for interlocutory orders with the aim of correcting an alleged infringement or preventing further damage to the eligible person’s interests, including measures to suspend or to ensure the suspension of the procedure for the award of the public contract concerned or the implementation of any decision taken by the contracting authority, or

      (b) for review of the contracting authority’s decision to award the contract to a particular tenderer or candidate.

      (2) If a person applies to the Court under paragraph (1), the contracting authority shall not conclude the contract until—

      (a) the Court has determined the matter, or

      (b) the Court gives leave to lift any suspension of a procedure, or

      (c) the proceedings are discontinued or otherwise disposed of,

      but this is subject to paragraph (2A).

      (2A) Notwithstanding that—

      (a) an application has been made under paragraph (1), and

      (b) the matter concerned has not been determined by the Court,

      the contracting authority may conclude the contract if, on application to the Court under Regulation 8A, the Court so orders.

      (3) A person who is an eligible person in relation to a reviewable public contract that has been concluded may apply to the Court for a declaration that the contract is ineffective.

      (4) A person intending to make an application to the Court in accordance with this Regulation shall first notify the contracting authority in writing of—

      (a) the alleged infringement,

      (b) his or her intention to make an application to the Court, and

      (c) the matters that in his or her opinion constitute the infringement.

      (5) A person who has applied to the Court under paragraph (1), (2) or (3) shall give the contracting authority concerned notice of the application by serving a copy of the originating motion on the authority as soon as reasonably practicable.

      (6) Nothing in this Regulation prevents an eligible person or the contracting authority from applying to the Court for any other remedy that may be available in the particular circumstances.

      Exception to prohibition in Regulation 8(2)

      8A.(1) On application made to it under this Regulation by the contracting authority, the Court may, notwithstanding the matters referred to in Regulation 8(2A)(a) and (b), make an order permitting the contracting authority to conclude the contract referred to in Regulation 8(1).

      (2) When deciding whether to make an order under this Regulation—

      (a) the Court shall consider whether, if Regulation 8(2)(a) were not applicable, it would be appropriate to grant an injunction restraining the contracting authority from entering into the contract, and

      (b) only if the Court considers that it would not be appropriate to grant such an injunction may it make an order under this Regulation.

      (3) The Court may, if it considers just to do so, specify in the order it makes under this Regulation that the order shall operate subject to there being satisfied one, or more than one, condition that it determines to be appropriate and specifies in the order.

      (4) A person who has applied to the Court under this Regulation shall give the eligible person concerned notice of the application by serving a copy of the originating motion on the eligible person as soon as reasonably practicable.

      Powers of Court

      9.—(1) The Court—

      (a) may set aside, vary or affirm a decision to which these Regulations apply,

      (b) may declare a reviewable public contract ineffective, and

      (c) may impose alternative penalties on a contracting authority, and may make any necessary consequential order.

      (2) The Court may make interlocutory orders with the aim of correcting an alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of a decision of the contracting authority.

      (3) The Court may set aside any discriminatory technical, economic or financial specification in an invitation to tender, contract document or other document relating to a contract award procedure.

      (4) When considering whether to make an interim or interlocutory order, the Court may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to make such an order when its negative consequences could exceed its benefits.

      (5) The Court may by order suspend the operation of a decision or a contract.

      (6) The Court may award damages as compensation for loss resulting from a decision that is an infringement of the law of the European Communities or the European Union, or of a law of the State transposing such law.

      Rules of court

      10.—(1) The rules of court may provide for a preliminary procedure to decide whether an applicant under Regulation 8 is an eligible person in relation to a particular reviewable public contract.

      (2) The rules of court may provide for the Court to grant leave, if the Court considers that there is good reason to do so, to make an application under Regulation 8 after the latest time permitted by Regulation 7(2).

      Declaration by Court that a contract is ineffective

      11.—(1) For the purposes of this Regulation—

      (a) a Regulation 5(1) infringement is an infringement where—

      (i) the relevant contract is one to which a standstill period applies, and

      (ii) the contracting authority has concluded the contract during the standstill period, and

      (b) a Regulation 8(2) infringement is an infringement where—

      (i) a tenderer or candidate has applied to the Court in accordance with Regulation 8 for review of a contract award decision in relation to a reviewable public contract, and

      (ii) the contracting authority has concluded the contract before the Court has made its decision.

      (1A) The reference in paragraph (1)(b)(ii) to the contracting authority having concluded the contract (the ‘relevant act’) before the Court has made its decision does not include a reference to either of the following cases—

      (a) a case in which the Court has made an order under Regulation 8A permitting the relevant act, or

      (b) if such an order has been made but is specified to operate subject to one, or more than one, condition being satisfied, a case in which the relevant act complies with that condition or those conditions.

      (2) Subject to paragraphs (3), (4) and (5), the Court shall declare a reviewable public contract ineffective in the following cases:

      (a) the case where the contracting authority has concluded the contract without first publishing a contract notice in the Official Journal and concluding the contract without publishing such a notice is not permitted by the Public Authorities’ Contracts Regulations;

      (b) the cases of a Regulation 5(1) infringement or a Regulation 8(2) infringement where the infringement—

      (i) has deprived the tenderer or candidate applying for review of the possibility of pursuing pre-contractual remedies, and

      (ii) was combined with an infringement of the Public Authorities’ Contracts Regulations that has affected the chances of the tenderer applying for a review to obtain the contract;

      (c) a case referred to in subparagraph (c) or (d) of Regulation 5(2) where—

      (i) there has been an infringement of Regulation 33(8)(c) or of any of Regulation 34(20) to (23) of the Public Authorities’ Contracts Regulations, and

      (ii) the value of the contract concerned equals or exceeds the relevant value threshold set out for the time being in Regulation 5 of the Public Authorities’ Contracts Regulations.

      (3) Paragraph (2)(a) does not apply where—

      (a) the contracting authority considered that the award of a contract without prior publication of a contract notice in the Official Journal was permitted by the Public Authorities’ Contracts Regulations,

      (b) the contracting authority published, in the Official Journal, a notice complying with paragraph (8) stating that it intended to conclude the contract, and

      (c) the contract was not concluded before the end of the period of 14 calendar days beginning on the day after the day of publication of that notice.

      (4) Paragraph (2)(c) does not apply where—

      (a) the contracting authority considered that the award of the contract was in accordance with Regulation 33(8)(c) or Regulation 34(20) to (23), of the Public Authorities’ Contracts Regulations,

      (b) the contracting authority sent a notice of the contract award decision, together with a summary of reasons complying with Regulation 6(2)(c) and, if applicable, Regulation 6(3), to the tenderers concerned, and

      (c) the contract was not concluded before the end of the period of—

      (i) 14 days beginning on the day following the day on which notice of the contract award decision is sent to the tenderers concerned if fax or electronic means are used, or

      (ii) 16 days beginning on the day following the day on which notice of the contract award decision is sent to the tenderers concerned if another means of communication is used.

      (5) Despite paragraph (2), the Court may decline to declare a contract ineffective if it finds, after having examined all aspects of the matter that it considers relevant, that overriding reasons relating to a general interest require that the effects of the contract should be maintained.

      (6) Economic interests in the effectiveness of the contract may only be considered as overriding reasons if in exceptional circumstances ineffectiveness would lead to disproportionate consequences. For the purposes of this Regulation, economic interests directly linked to the contract are not overriding reasons relating to a general interest. “Economic interests directly linked to the contract” includes (but is not limited to)—

      (a) the costs resulting from the delay in the execution of the contract,

      (b) the costs resulting from the launching of a new procurement procedure,

      (c) the costs resulting from the change of the economic operator performing the contract, and

      (d) the costs of legal obligations resulting from the ineffectiveness.

      (7) In the case of a Regulation 5(1) infringement or a Regulation 8(2) infringement, (being, in each case, an infringement not covered by paragraph (2)(b)), the Court may, after having assessed all aspects that it considers relevant, declare the relevant contract ineffective.

      (8) A notice referred to in paragraph (3)(b)—

      (a) shall be in the format set out in Commission Regulation 1150/2009[3],

      (b) shall include—

      (i) the name and contact details of the contracting authority,

      (ii) a description of the object of the contract,

      (iii) a justification of the decision of the contracting authority to award the contract without prior publication of a contract notice in the Official Journal, and

      (iv) the name and contact details of the economic operator in favour of whom a contract award decision has been taken, and

      (c) may include any other information that the contracting authority considers useful.

      (9) The Court may make any order necessary in the interests of justice to ensure that proper payment is made for any work done, or goods or services provided, in good faith in reliance on a contract that has been declared ineffective.

      Effect of declaration that a contract is ineffective

      12.—(1) If the Court declares a contract ineffective, any contractual obligations not already performed are cancelled. Contractual obligations already performed are not affected.

      (2) Paragraph (1) does not prevent the exercise of any power under which an order or decision of the Court may be stayed, but, if a declaration of ineffectiveness is stayed, then, at the end of the period during which the declaration is stayed, the contract shall be taken to have been ineffective from the making of the declaration.

      Alternative penalties

      13.—(1) The Court shall impose an alternative penalty if—

      (a) under Regulation 11(5), it declines to declare a contract ineffective, or

      (b) in the case of an alleged infringement referred to in Regulation 11(7), it finds that the infringement occurred but declines to declare the contract ineffective.

      (2) The alternative penalty shall be either or both of the following:

      (a) the imposition on the contracting authority of a civil financial penalty of up to 10 per cent of the value of the contract;

      (b) the termination, or shortening of the duration, of the contract.

      (3) The Court may take into account all the relevant factors, including the seriousness of the infringement, the behaviour of the contracting authority and any extent to which the contract remains in force. For that purpose, the Court needs to be satisfied of the relevant facts only on the balance of probabilities.

      (4) A civil financial penalty payable pursuant to an order under paragraph (2)(a) shall be paid into the Central Fund.

      (5) If the Court orders the payment of a civil financial penalty under paragraph (2)(a), the amount of the penalty may be recovered as a debt in any court of competent jurisdiction. For the purposes of such recovery, the order of the Court is conclusive that the amount of the penalty is due and payable by the contracting authority ordered to pay it.

      (6) The award of damages is not an appropriate alternative penalty for the purposes of this Regulation.

      Non-exclusion of other remedies

      14.—Nothing in these Regulations affects any power of the Court to grant any other remedy in relation to a contract.

      Revocation

      15.—(1) The European Communities (Review Procedures for the Award of Public Supply, Public Works and Public Services Contracts) (No.2) Regulations 1994 ( S.I.No.309 of 1994) are revoked.

      (2) Paragraphs (3) to (6) of Regulation 49 of the Public Authorities’ Contracts Regulations are revoked.

    • Regulation 8 Application to Court
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      (1) An eligible person may apply to the Court—

      (a) for interlocutory orders with the aim of correcting an alleged infringement or preventing further damage to the eligible person’s interests, including measures to suspend or to ensure the suspension of the procedure for the award of the public contract concerned or the implementation of any decision taken by the contracting authority, or

      (b) for review of the contracting authority’s decision to award the contract to a particular tenderer or candidate.

      (2) If a person applies to the Court under paragraph (1), the contracting authority shall not conclude the contract until—

      (a) the Court has determined the matter, or

      (b) the Court gives leave to lift any suspension of a procedure, or

      (c) the proceedings are discontinued or otherwise disposed of,

      but this is subject to paragraph (2A).

      (2A) Notwithstanding that—

      (a) an application has been made under paragraph (1), and

      (b) the matter concerned has not been determined by the Court,

      the contracting authority may conclude the contract if, on application to the Court under Regulation 8A, the Court so orders.

      …

    • Regulation 8A Exception to prohibition in Regulation 8(2)
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      (1) On application made to it under this Regulation by the contracting authority, the Court may, notwithstanding the matters referred to in Regulation 8(2A)(a) and (b), make an order permitting the contracting authority to conclude the contract referred to in Regulation 8(1).

      (2) When deciding whether to make an order under this Regulation—

      (a) the Court shall consider whether, if Regulation 8(2)(a) were not applicable, it would be appropriate to grant an injunction restraining the contracting authority from entering into the contract, and

      (b) only if the Court considers that it would not be appropriate to grant such an injunction may it make an order under this Regulation.

      (3) The Court may, if it considers just to do so, specify in the order it makes under this Regulation that the order shall operate subject to there being satisfied one, or more than one, condition that it determines to be appropriate and specifies in the order.

      (4) A person who has applied to the Court under this Regulation shall give the eligible person concerned notice of the application by serving a copy of the originating motion on the eligible person as soon as reasonably practicable.

    • Regulation 9 Powers of Court
      View section / regulation
      

      (4) When considering whether to make an interim or interlocutory order, the Court may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to make such an order when its negative consequences could exceed its benefits.

• UK
  • Procurement Act 2023

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    • 101 Automatic suspension of the entry into or modification of contracts
      View section / regulation
      

      (1) A contracting authority may not enter into a public contract, or modify a public contract or a convertible contract, if during any applicable standstill period—

      (a) proceedings under this Part are commenced in relation to the contract, and

      (b) the contracting authority is notified of that fact.

      (2) The court may lift or modify the restriction in subsection (1) by order under section 102.

      (3) The restriction in subsection (1) does not apply if—

      (a) the proceedings at first instance have been determined, discontinued or otherwise disposed of, and

      (b) the court has not made an order to extend the restriction.

      (4) In this section “convertible contract” has the meaning given in section 74.

      (5) See sections 51 and 76 for provision about standstill periods.

    • 102 Interim remedies
      View section / regulation
      

      (1) In proceedings under this Part, the court may make one or more of the following orders—

      (a) an order lifting or modifying the restriction in section 101(1);

      (b) an order extending the restriction or imposing a similar restriction;

      (c) an order suspending the effect of any decision made or action taken by the contracting authority in carrying out the procurement;

      (d) an order suspending the procurement or any part of it;

      (e) an order suspending the entry into or performance of a contract;

      (f) an order suspending the making of a modification of a contract or performance of a contract as modified.

      (2) In considering whether to make an order under subsection (1), the court must have regard to—

      (a) the public interest in, among other things—

      (i) upholding the principle that public contracts should be awarded, and contracts should be modified, in accordance with the law;

      (ii) avoiding delay in the supply of the goods, services or works provided for in the contract or modification (for example, in respect of defence or security interests or the continuing provision of public services);

      (b) the interests of suppliers, including whether damages are an adequate remedy for the claimant;

      (c) any other matters that the court considers appropriate.

      (3) An order under subsection (1) may not permit a contract to be entered into or modified before the end of any applicable standstill period (see sections 51 and 76).

      (4) An order under subsection (1) may provide for undertakings or conditions.

• England and Wales
  • Alstom Transport v Eurostar International Ltd & Anor [2010] EWHC 2747 (Vos J)

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    Region: England and Wales

    Suspension Lifted? No automatic suspension regime applied at the time of this case. High Court refused Alstom's application for an interim injunction to restrain Eurostar from entering into a contract with Siemens for the design, supply and maintenance of high speed trains.

    (Vos J)

    Key Factors:

    • There was a serious issue to be tried (it was at least arguable that some financial evaluation criteria should have been disclosed and could have affected bid preparation)
    • Damages was not an adequate remedy for either side; ALSTOM would not be properly compensated given the contract’s prestige and the difficulty of valuing reputational/market-position losses and Eurostar would suffer significant, hard-to-compensate harm through further delay to a strategically important project, with knock-on effects for competitiveness and the manufacturing process.
    • Eurostar would suffer greater non-compensable prejudice if the procurement was frozen in light of the relative size and impact of this project for them.
    • ALSTOM was unlikely to obtain a set-aside at trial
    • Public interest favoured refusal of relief; delay would be costly, affect Eurostar’s competitive position, and delay new trains affecting the travelling public.
    • Balance of convenience did not lie in favour of granting interim relief and it would be unjust/inappropriate to freeze the procurement process pending trial.

     

    On the Adequacy of Damages:

    “[129] In my judgment, damages could not properly compensate ALSTOM for the loss of this contract. It is a highly prestigious contract which would undoubtedly enhance ALSTOM’s international reputation. Whilst it is only 10 trains (or 23 if the option is exercised) the Eurostar service is well known internationally and runs ALSTOM’s trains (or trains in which ALSTOM participated in a consortium) at the moment. I accept that, looked at from a non-UK perspective, the Tunnel train service is just one more service operating through a long tunnel. But nonetheless, it seems to me that ALSTOM as the leading French train manufacturer, would obtain specific and uncompensatable benefits from the award of the Agreement. I accept that it could, in Mr Bowsher’s words “get over it“, but that does not mean that damages would be an adequate remedy. ALSTOM may well have made mistakes in the bidding process, as its internal audit highlights. But that does not mean that the loss of the contract can be compensated adequately by an award of damages. I also accept that the assessment of ALSTOM’s loss would be a complex process requiring the valuation of a lost chance which is always a somewhat difficult process. The evaluation of its reputational and market position losses would be very difficult indeed.

    [130] I take no account of the advantages ALSTOM would gain by undertaking its homologation exercises for the Eurostar project, since it seems to me that such an exercise can and will be undertaken within the contexts of other projects anyway – true it may set ALSTOM back a little, but ultimately that set back would not by itself make damages an inadequate remedy. I take into account here the public interest in not requiring Eurostar to pay twice for this procurement, but it does not seem to me to be a feature that much affects whether damages would adequately compensate ALSTOM for its failure to obtain the Agreement. That factor comes into play more, in my judgment, under the balance of convenience.

     

    ….

    [132]In my judgment, what is sauce for the goose is sauce for the gander. Eurostar is entering a brave new world of competition for Tunnel rail services. It needs to compete with other operators keen to enter the market as soon as the necessary procedures have been completed. Once there is competition for Tunnel services, the quality of the rolling stock will be crucial. Eurostar, as Mr Bowsher pointed out, is a small company (relative to ALSTOM) with a turnover of only some £600 million per annum. It could be disastrous for its business model if it were to be delayed still further in procuring its new trains. I accept that IGC rules may take a while to change, but change in some respect they will. And once the Agreement is signed, Eurostar and Siemens will be able to work together to start the process according to the agreed risk allocation procedures I have already mentioned, to bring the trains forward as soon as possible. The delay caused by even a speedy trial of this action would likely be very damaging to the manufacturing process. Siemens cannot be expected to proceed without profit-making remuneration for any extended period.

    [133]I have considered when a speedy trial of this action might occur, and I accept Mr Bowsher’s submission that it would not be realistic to expect such a trial to be concluded before Easter 2011. Judging by the 4 days of argument which I have heard, every point will be taken. Undoubtedly, many witnesses and experts on 3 sides will be likely to be called, and there will be confidentiality difficulties that will undoubtedly slow things down. I doubt that the trial of this case could be justly concluded in less than 3 weeks of court time.

    [134]My conclusion, therefore, is that damages would not be an adequate remedy either for ALSTOM or for Eurostar, and I must move to decide where the balance of convenience or the balance of injustice lies. Before doing so, I should say that the adequacy of damages for Siemens was not the subject of any substantial argument, but if damages is not adequate for Eurostar, that is probably enough for the purposes of the application of the American Cyanamid test. Even if damages were adequate for Siemens, as they might well be, that cannot outweigh the problems that I have identified that interim relief would create for Eurostar.

     

    On the Balance of Convenience

    “[136] I should first consider the balance of uncompensatable disadvantage between the parties. I have already considered the adequacy of damages on both sides, but need now to weigh whether one side would be more disadvantaged than the other by the grant of an injunction. Here it seems to me, the balance lies in Eurostar’s favour. It is the smaller concern, and whilst ALSTOM would like to have won the contract, it will not be as serious for ALSTOM to be prevented from having it as it would be for Eurostar to have its entire future business programme set back by what may amount to nearly a year, by the time a trial and even possibly an appeal have taken place. This is Eurostar’s entire business. ALSTOM has many other business activities, and this is a relatively small project for ALSTOM. Moreover, I bear in mind here ALSTOM’s own internal audit that indicates at least that ALSTOM was, to a significant extent, the author of its own misfortune in failing to take the bid adequately seriously and according other projects higher priority.

    …

    [138] Despite the fact that I have not seen the actual decision-making documents, I have formed the view that ALSTOM is unlikely to obtain an order setting aside Eurostar’s decision at trial. There are several reasons for this:-

    i) First, the alleged breach in relation to the inconsistent specification is undoubtedly a difficult one to identify and succeed upon. On one analysis, there was no reason why Eurostar should not have procured trains, whether or not they would be able to use them, on the basis of assumptions. The question here is whether those assumptions were sufficiently transparent and non-discriminatory to enable Eurostar to decide on which bid was most economically advantageous to it. I have grave doubts about whether ALSTOM will ultimately succeed in doing so. ALSTOM seems to have been a willing participant in the process and never complained effectively that the process was flawed. All it did was to caveat its bid in a way that it later withdrew once the IGC consultation was reported on 31^st March 2010.ii) Secondly, whilst I think that some of the alleged process breaches were significant, in that Eurostar would have done far better to disclose its 5 point banding system, that it was using NPV criteria and that it was awarding nearly 10% of the marks to the lowest bidder, I harbour grave doubts about whether any of these breaches would in fact have made any difference to the outcome. Siemens was scored way ahead of ALSTOM. Even adding 10% to ALSTOM’s score of 74 leaves it well behind Siemen’s 97.6. None of the other allegations will obviously result in a major difference to ALSTOM’s score, and looking at the matter generally, the evidence leaves me with the impression that Siemens took the bidding process far more seriously than ALSTOM, placed it at the front of its list of priorities, and perhaps most importantly paid greater attention to what Eurostar was telling bidders and to what was contained in the ITN and BAFO documents. If, as I think, ALSTOM stands only a quite small chance of demonstrating that all its alleged arguable breaches, taken together, would have made any difference to the outcome, ALSTOM will be unlikely to obtain an order setting aside Eurostar’s decision at trial.

    iii) I take into account that, in one sense, the status quo would be better preserved by the grant of the injunction than by its refusal, but as it seems to me this is not a large factor in this case, because of the damage to Eurostar’s business if its procurement process is frozen for a significant period whilst the litigation process proceeds.

    iv) The public interest, which I have held is relevant to the balance of convenience militates also in favour of the refusal of interim relief. First, the delay for Eurostar will be costly and will affect its competitive position. The travelling public will be affected by having new trains delayed, and probably by the additional costs of the delay. It is no answer to say that Eurostar can refurbish its existing fleet – that is a very different exercise from bringing forward an entire new fleet of rolling stock. The public interest will be served by the introduction of timely and effective competition for Tunnel train services. To prevent Eurostar commissioning its new fleet as quickly as the regulatory procedures will allow would damage that competition. I accept that there is a possibility that Eurostar would have to pay twice, but that possibility seems unlikely, and therefore not sufficient to outweigh the factors I have already mentioned.

    [139] For the reasons I have sought to give, whilst I find that ALSTOM has a serious case to be tried in some areas of its complaint that Eurostar has breached the 2006 Regulations in the process of procuring its 10 new train sets, I do not think that the balance of convenience lies in favour of granting any interim relief. In my view, it would be unjust and inappropriate to freeze the tendering process to allow a trial to take place, and thereby prevent Eurostar progressing its contract with Siemens and bringing forward its new rolling stock as quickly as possible. As I have said, I regard it as unlikely that ALSTOM will demonstrate at trial that it would have secured the contract, even absent the alleged breaches. In the result, therefore, it will probably not achieve an order setting aside the award of the Agreement to Siemens.”

  • Indigo Services Ltd v Colchester Institute Corporation [2010] EWHC 3237 (Donaldson QC)

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    Region: England and Wales

    Suspension Lifted? YES. High Court lifts automatic suspension on contracts for cleaning services at two education facilities

    (Donaldson QC)

    Key factors:

    • The current contract, which was with the challenger, was due to expire and a further extension of that contract was not provided for and would amount to a new contract
    • An ad hoc procurement could not be run in time to ensure service continuity
    • It was more likely than not that the Respondent would succeed at trial on issues of causation and any loss of chance would not be much more than fanciful

     

    “[40] Subsequent to the hearing Counsel for Indigo sent me a witness statement and further submission suggesting that the existing contract contained a power to extend again until 31 March 2011. This is said to be the effect of Condition 1.1.5, which reads

    ” “Contract period” means the period from 7th April 2006 to 31st March 2009. Subject to satisfactory performance the Corporation and the Contractor may agree to extend the contract … for a 12 month period, or for a maximum of 24 month period.”

    In the event the extension agreed was for 21 months expiring on 31 December 2010. It is in my view clear that the contract provided only for one extension, which could have been – but was not – for a full 2 years. It does not provide for a further extension.

    [41] Indigo’s alternative submission, and that advanced at the hearing, is that an extension, even if not provided for in the contract, does not call for a public procurement process. That suggestion appeared to me counter- intuitive, since agreement of an extension, even if termed an amendment, would involve a contract for services to be rendered during a new period, and would therefore be a contract for new services. Counsel for Indigo argued however that his submission was supported by the decision of the ECJ in Pressetext Nachrichtenagentur GmbH v Austria, Case C-454/06. In that case, the court responded to three questions asking “in which circumstances amendments to an existing agreement between a contracting authority and a service provider may be regarded as constituting a new award of a public services contract“. None of them concerned a temporal extension to a contract. The Court did however make general observations which offer some assistance in approaching that question:

    “34. ….amendments to the provisions of a public contract during the currency of the contract constitute a new award of a contract … when they are materially different in character from the original contract and, therefore, such as to demonstrate the intention of the parties to renegotiate the essential terms of that contract …

    35. An amendment to a public contract during its currency may be regarded as being material when it introduces conditions which, had they been part of the initial award procedure, would have allowed for the … acceptance of a tender other than the one initially accepted.

    36. Likewise, an amendment to the initial contract may be regarded as being material when it extends the scope of the contract considerably to encompass services not initially covered.”

    Far from supporting Indigo’s submission, the Court’s remarks in my view point to the contrary position. An extension of the contract into a new period of necessity “encompasses” services not previously covered by the contract, when the extension is not foreseen in the contract.

    [42] In a yet further argument, it was suggested that the Regulations would permit an ad hoc extension in a case of urgency. Reference to regulations 14 and 17 reveals however that, though in a case of extreme urgency an authority can dispense with publication of a contract notice and use a reduced version of the negotiated procedure, it must still comply with regulation 16(9) and (10), which import regulations 23, 24, 25, 26 and 30. It is not therefore possible to avoid a competitive procurement process, which might not be won by Indigo. Nor does it appear possible to complete any such process in time to meet the imminent deadlines to ensure the provision of cleaning facilities from 3 January 2010.”

  • Exel Europe Ltd v University Hospitals Coventry and Warwickshire NHS Trust [2010] EWHC 3332 (TCC) (Akenhead J)

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    Region: England and Wales

    Suspension Lifted? Yes. High Court lifts suspension on single operator framework contract for managing NHS procurement.

    (Akenhead J)

    Background

    • Following an exchange of correspondence, Exel withdrew from the tender process: 28 May 2010
    • Following further correspondence, Defendant informs Exel of the winning tenderer: 13 September 2010
    • Claim issued: 28 September 2010
    • Particulars of Claim served: 14 October 2010
    • Application to the Lift the Suspension issued: 29 October 2010
    • Hearing: 1-2 December 2010
    • Judgment: 21 December 2010

     

    Key Factors

    • Only one of 6 grounds raised a serious issue to be tried (remaining grounds were weak and some likely time-barred)
    • Public interest in efficient running of the NHS
    • Urgency, as current arrangement was expiring
    • Delay – a substantive judgment would take more than a year
    • Damages were adequate for the Claimant

     

    “46 In my judgement, the Defendant has clearly established an urgency for this procurement exercise to go ahead. The agreements between the subscribing bodies and HPC expired in March of this year and it is only being kept alive on a temporary stopgap basis. There is clearly likely to be a significant feeling of insecurity amongst the staff of HPC at the continuing uncertainty of what is to happen to HPC. There must be a very real risk that subscribers will drop out and that will either lead to the demise of HPC or to the intolerance of unaffordable expense by the remaining subscribers, expense which they may well not be able to afford given the current round of financial cuts. The continuing uncertainty engendered by a continuing suspension of the award of the Framework Agreement will necessarily impact upon the Defendant’s plans and desire to become a Foundation Trust hospital; it seems to be accepted, rightly, that the achievement of Foundation status is regarded as good for the hospital in question as well as for the patients.

    47 If the suspension is not lifted, the earliest realistic time at which a full trial can take place following an exchange of disclosure, witness statements and possibly expert evidence would be in the Spring of next year with a considered judgement not being produced much before May or June 2011. This timing may well be optimistic. If Exel fails ultimately at trial, 8-9 months of time or more would have been wasted. If it succeeds, they would have to be a new tender process which could well take another 6 to 8 months up to award of contract. Thus, well over a year of delay will have occurred.

    48 I am wholly satisfied that the damages would be an adequate remedy in this case. It is now fairly well established that a claimant who successfully challenges a procurement exercise will be entitled to damages, usually calculable on a lost opportunity or chance basis, not dissimilar to that referred to in Alllied Maples v Simmons & Simmons [1995] 1 WLR 1602, albeit that case is related to solicitor’s negligence. It is immaterial in considering whether damages would be an adequate remedy that the damages may not be in a substantial amount. The damages will be whatever they will be. On the matter which gives rise to the serious issue to be tried, what Exel will have to do is to demonstrate on the evidence that it would have behaved or would at least have had the opportunity to behave differently. Thus, if HCA was excluded from the tender process, one needs to determine whether Exel would have done any differently to what it did do, namely drop out. The answer might be in the affirmative in which case the Court will have to determine the percentage chance which it would have had in securing the contract. That may be anything between, say, 10% and 90%. One then applies the percentage to whatever would have been earned by way of profit over either the 5 or 10 year period which this agreement would or may have run for. There may have to be some credits to be given, for instance to reflect, the additional work Exel has taken on or is likely to take on because it has not succeeded in securing this particular contract and a financing credit to reflect the receipt of damages for loss of profit earlier than the profit would have been earned. However, this is all readily assessable by forensic accounting experts. If the position is found to be that Exel would still have dropped out even if HCA was excluded from the tender, then Exel would probably be entitled at least to its wasted costs of tendering on the allegedly unequal playing field.”

  • The Halo Trust v Secretary of State for International Development [2011] EWHC 87 (TCC) (Akenhead J)

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    Region: England and Wales

    Suspension Lifted? Yes. High Courts lifts suspension on £3.5m contract for demining in Cambodia

    (Akenhead J)

    Key Factors

    • No serious issue to be tried
    • Damages would be adequate for Claimant
    • Public interest in avoiding uncertainty and disruption to mine clearance in Cambodia
    • Minimum 5-7 month delay before trial and judgment
    • Whichever tenderer lost the contract would face substantial redundancies 
    • Delay in clearing mines could result in injury/death
    • Disproportionate to delay contract given the relative weakness of the Claimant’s case on liability
    • No suggestion of loss of reputation

     

    Serious issue to be tried threshold

    [54] The first issue really relates to the contents of the e-mail dated 1 October 2010 from DFID to the tenderers to the effect that mine action funding could “be used to fund activities supplemental and clearly linked to mine action which contribute to realising development benefits for mine affected communities”. One example given was of digging a well on land cleared of mines where it is necessary to allow meaningful use of the land. It is fair to say that the strategy, the Framework Agreement documentation and the Cambodia Terms of Reference did not as such expressly spell that out but it is also fair to say that those documents did not specifically exclude it. It is certainly strongly arguable that, with the emphasis on releasing “mine affected land to make a measurable contribution to the socio-economic development of mine affected communities”, “putting land back into productive use” and improving or providing “value for money”, it was implicit that some elements of the funding might be used for such directly related activities. Reference to or reliance by Halo upon what was or was not said at the meeting in October 2009 before the strategy and the various contract documents were published seems to be misplaced. The strategy said what it did and it is not as such a contractual document or a document which has to be construed as if it was.

    [55] It is difficult to say the tenderers were not treated equally or in a transparent way. The e-mail of 1 October 2010 went to all tenderers and the wording in the letter is, however palatable its contents, clear in what it says. It is not obviously a fundamental departure from the earlier documentation. Although there was no explanation as to how much of the budget could be spent on this related development work, that was the same for all tenderers and there was no specific limit. That does not seem to involve an obvious breach of the Regulations.

    [56] The second issue relates to the increase in budget from £2.5 million to £3.5 million. All tenderers were treated the same in the sense that each was told about the increase and what in terms of tendering to do about it. It is not obvious how it can be said that there was a breach of the “transparency principle”, in that the increase was there for all tenderers to see and to apply their minds as to how to spend it. It should be borne in mind that the strategy had been in place since March 2010 and the Framework Agreement tendering and contract placement had been in mid-summer 2010. It was known that Cambodia was one of the countries where mine action would be required, that the current funding was due to expire in October 2010 and that there was to be a much greater concentration on linking actual mine clearance to development. Halo had been in Cambodia for many years and indeed was employing about 1000 people on mine clearance or related work. One probably needs therefore to review what happened in relation to the increase in budget in that context.

    [57] What is very surprising, in the light of the current complaint, is that Halo, which had never been slow to register concerns and complaints before, said absolutely nothing about any concerns in relation to timing or otherwise when it, together with the other tenderers, was told of the increase and the need to submit a tender addendum within about a week. Indeed, the complaint seems only to have been formulated in the Particulars of Claim for the first time. An immediate thought for most charities such as Halo with particular experience in a particular country like Cambodia would presumably have been to welcome an increase in the available funds of 40%. Halo’s argument is partly based on assertions that, because it operated to a large extent in areas of Cambodia where there was less development potential and interest, it was particularly prejudiced, compared with MAG, in being able to relate the extra £1 million funding to development. However, it is still surprising that if that was the case it did not ask DFID for some extra time; there is no particular reason to think DFID would not have granted some more time, as it had already granted some extra time and it would presumably have been in its interest to allow, say, another week or so for the tenderers’ further considered positions.”

    Balance of Convenience

    [61] Even if I had concluded that there was a serious issue to be tried, I would have found that the balance of convenience was such that DFID should no longer be restrained from entering into its proposed contract with MAG. My reasons, not in any order of importance, are as follows:

    (a) There is a public interest in DFID being permitted to pursue its policy, which is a lawful one and not one which is in practice capable of judicial review. The policy, judged objectively, is a worthy one, even if there are alternative views as to that policy or to the priorities to be applied. The policy involves providing funds which not only go to clearing mines and other ordnance (and thus saving lives) but also to assist and encourage development of the areas affected by landmines which before clearance can not safely be used.

    (b) Whilst there will always be a judgement to be made in any given case, formal and recognised procurement procedures which are designed to achieve value for money can be considered preferable to handing, albeit with strings attached, grants to institutions. It is a paradox that Halo in essence would prefer non-competitively tendered grant funding to be continued at least in the short term.

    (c) It is almost inevitable that, if the suspension is continued until trial of the substantive matters in this case, there will be a minimum delay of 5 to 7 months before trial and judgement. There will therefore be continuing uncertainty not only for Halo and DFID but also for MAG as to what is going to happen. There is no certainty and, on the evidence, no probability that grant funding will be extended beyond 31 January 2011 to enable Halo and MAG to continue their current operations, either at all or at the same level as currently or necessarily to both of them. Such a period of uncertainty can only be bad for the people of Cambodia as well as the two charities. It is accepted on all sides that at the very least mine clearance is vitally important and it is undoubtedly also important that cleared areas are capable of being put to good use. Halo and MAG would, so far as their undertaking in Cambodia is concerned, both face real problems the longer this uncertainty continues. What will or may well be created by continuing uncertainty is that mine and land clearance may well be delayed or disrupted and people who might not have been injured and killed will be. In this context, the certainty created by the lifting of the statutory suspension significantly outweighs the uncertainty involved in continuing it. It needs to be borne in mind that all parties agreed in the Framework Agreement that time should be of the essence in relation to the Calldown Contracts.

    (d) Whichever of MAG or Halo had “won” the Cambodian project, the other would have faced some real problems such as redundancies and the like. Both are currently operating there with funds from a number of sources but with key grant funding from DFID. What one would hope and indeed anticipate is that staff from the “losing” organisation would at least in part be able to transfer to the “winning” organisation.

    (e) There is evidence from both sides in this case that there will be substantial redundancies faced by the losing tenderer. Unfortunately the evidence is not directly comparable. Halo produce evidence to show redundancies which they face if they failed to secure the Cambodia contract (over 440 staff) whilst there is evidence from MAG of the more limited effect of a continuing suspension for five months (over 70 staff). I assume that MAG’s losses would be greater if it ultimately lost or had lost the contract.

    (f) Halo has, it says, some $55 million of funds annually with funds coming from some 13 countries, three institutional donors, some 13 private foundations as well as donations from members of the public. There is little if any reliable evidence from Halo that at least some further replacement funding from other sources could not be made available to enable it to continue its good work in Cambodia.

    (g) Given the views which I have expressed as to the relative weakness of Halo’s case on liability, it would be disproportionate to delay a decision on this for 5 to 7 months.

    (h) I am wholly satisfied that damages would be an adequate remedy even if ultimately Halo succeeded in these proceedings. Halo has pointed to redundancies and redundancy costs. Those are eminently quantifiable and provable together with other management and overhead losses. As Halo is a charity and non-profit-making institution, there would in any event not to be a loss of profits claim. There is no suggestion that Halo’s reputation, which appears to be good, would suffer or that charitable donations would go down from other sources as a result.”

  • Newcastle Upon Tyne Hospital NHS Foundation Trust v Newcastle Primary Care Trust [2012] EWHC 2093 (QB) (Tugendhat J)

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    Region: England and Wales

    Suspension Lifted? Yes. High Court lifts suspension on contract for diabetic retinopathy screening services

    (Tugendhat J)

    Key Factors

    • Damages would be adequate for the Claimant
    • Damages would not be adequate for the Defendants
    • Offer of Claimant to continue service and take over from other provider who could not continue was not a solution
    • Effects on prospective patients and those providing the service
    • The case would require disclosure and experts and therefore delay in a trial

     

    “[42] The Defendants submit that the continuation of the suspension would have an effect not only upon prospective patients, but also upon those who are providing and will provide the service. For example, optometrists’ contracts require a 3 month period of notice, and notice was due to be served on 30 June. A number of concerns about current arrangements were raised by the External Quality Assessment Process operated by NHS Diabetic Eye Screening Programme.

    [43] The Claimant’s proposal that it should provide an interim service would in effect put the Defendants in the position of awarding to the unsuccessful bidder the contract which it had chosen to award to MIUK. This is not just either to the Defendants or to MIUK. I cannot decide on this application where the best interests of the diabetic population lie. The Defendants do not have a choice whether to provide the service or not. So it would not be just for the court to put the Defendants in the position where they had in practice no choice but to enter into a short term contract with the Claimant when they assert that they do not consider that that would be the proper course.

    [44] The Claimant submits that what the Defendants should have done is to obtain an early date for a trial, when the matter can be resolved on the merits, and not on the Cyanamid principles.

    [45] There are cases in which issues under the Regulations might be capable of resolution at a speedy trial. In the present case I am not convinced that that is so, having regard to the way that the Claimant advances its case. Disclosure of documents is required, but has not yet taken place. The parties have not delayed unduly in the exchange of statements of case, but the long vacation is nearly upon us. The issues raised require the court to investigate statistics with the assistance of experts in the field on both sides. It would be a serious matter for the court to conclude that the Defendants’ witnesses have misunderstood the statistics as Professor Taylor alleges that they have. These are matters which can require prolonged consideration if the court is properly to understand them.

    [46] The case advanced by the Claimant seems to me to involve novel issues of law. It is not unreasonable for Mr Williams to submit, as he does, that there could be delays in the form of possible amendments of case or even appeals.

    [47] The prospect of the merits of the dispute being resolved before the end of the year is not good. A delay of a year or more in the commencement of a contract which was due to commence on 1 October 2012, and to run for three years, is a very significant delay.”

  • Covanta Energy Limited v Merseyside Waste Disposal Authority (No 2) [2013] EWHC 2922 (TCC) (Coulson J)

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    Region: England and Wales

    Suspension Lifted? No automatic suspension applied at the time of this case. Injunction was granted preventing conclusion of a waste processing contract pending determination of the substantive case

    (Coulson J)

    Key Factors

    • Damages would not be adequate for the Claimant; they would be virtually impossible to ascertain given the underlying claims, which included that the competitive dialogue procedure was not followed
    • Damages would also be inadequate for the contracting authority due to environmental impact of using landfill rather than transforming waste into energy
    • On balance of convenience, factors favouring an injunction: (i) ensuring compliance with procurement rules; (ii) damages not adequate for Claimant; (iii) Claimant would otherwise be deprived of a remedy prescribed by EU law; (iv) if damages awarded, taxpayers would be paying twice.
    • A further delay of 9 months would be modest in the overall context, of 6 years of delay and a contract due to last 30-35 years

     

    Damages not Adequate for Claimant 

    “[50] The first question is whether damages would be an adequate remedy if Covanta do not obtain the injunction that they seek and then went on to be successful at trial. In my judgment, for the reasons noted below, damages would not be an adequate remedy.

    [51] Taking first Covanta’s case based on manifest errors in the tender evaluation, I accept that the court may be able to attempt to ascertain the loss thereby caused. But I consider that such a process would be difficult and imprecise. That is partly because of the number of errors alleged: in contrast to Exel, European Dynamics and the Lettings case when it came to trial ([2008] EWHC 1583 (QB)), where the errors were few in number and their effect was readily ascertainable, or thought to be so, the present case involves a large number of alleged errors. Thus, the effect of each of which would need to be evaluated before any assessment could be made as to the value (if any) of the loss of a chance. Moreover, for a contract such as this, it would be difficult to work out what Covanta’s actual rate of return might have been, because it would depend on so many variables. There is also a scaling factor to which Mr Giffin referred, and which I accept would also add another layer of difficulty. I therefore consider that the authorities noted in paragraph 44 above, which stress the difficulties of ascertaining the quantum of the loss of a chance claim in this sort of situation, and the relevance of those difficulties to the issue of adequacy of damages as a remedy, are directly in point here.

    [52] However, I am in no doubt at all that that conclusion is even more applicable in relation to the other element of the Covanta claim, namely the allegations that the competitive dialogue procedure was not followed by MWDA.

    [53] I consider that the ascertainment of damages arising from this part of the claim would be, to use Arnold J’s words in Morrisons, “virtually impossible”. That is because the court will have to look at each relevant exchange between MWDA and Covanta, which may run to hundreds or even thousands, to see if Covanta were materially misled by MWDA or whether, conversely, MWDA were making it plain what they wanted and how they expected Covanta to react. Each relevant potential miscommunication would need to be identified and analysed. Then, in order to calculate loss in respect of each such exchange or miscommunication, the court would have to ask itself whether, if either party had taken a different position, that would have made a difference to Covanta’s bid strategy and/or bid. In addition, it may also be relevant, where there was any lack of clarity from, or change of position by, MWDA, to consider whether, if they had taken a different course, that would have made a difference to SITA’s bid as well. This is because, sometimes, it is only possible to look at causation in an exercise like this by reference to the likely impact on each of the competing bids. The court would then have to decide whether, if there were such miscommunications or areas of confusion, a different approach by either MWDA or Covanta might have led to a different result or, at the very least, might have been part of a cluster of such miscommunications which could have led to a different result. Finally, the court would have to ascertain how the loss of chance could fairly be expressed and how it could be quantified, all by reference to a hypothetical tender that had never in fact been submitted.

    [54] It is also inherent in Covanta’s claim that important matters were never made clear to them by MWDA. In my view, that is very similar to those procurement cases where the complaints concern undisclosed tender evaluation criteria (although, for the reasons that I have given, the exercise is going to be much more complex and fact-specific here). Cases involving undisclosed criteria are always difficult to ascertain by way of damages: indeed it was just such a claim that Arnold J described in Morrisons as virtually impossible to calculate. Moreover, although I consider it to be of less significance here, there is also a possible issue of reputational damage, which was a factor which Vos J took into account in Alstom in reaching the same conclusion.

    [55] Accordingly, for those reasons, I conclude that damages would not be an adequate remedy for Covanta if MWDA entered into a contract with SITA before the court had reviewed the tender process and it turned out that Covanta’s criticisms were justified.

    Effect of Further Delay

    “[71] As to any further delay, if the injunction is granted, the parties estimate that the trial of this case will take fifteen days. It can either be heard in the TCC in Leeds in March 2014, or I can hear it in Rolls Building in London in late April/May 2014. As I indicated during argument, I consider that the former is unrealistically tight, but I consider that the latter is achievable. A trial in April/May would lead to a judgment about the end of June. Therefore, the delay between now and the final result of the trial is something like nine months.

    [72] In my judgment, simply as a measurement of time, a further delay of nine months is a modest delay when set against the delays thus far of six years, and the fact that the RRC itself is due to last 30-35 years. That analysis means that, subject to the environmental impact of the further delay, I consider that this is a further factor in favour of granting the injunction until the review can be carried out. Does the environmental impact of the further delay change that?

    [73] The anticipated amount of waste for the purposes of the RRC is around 400,000 tonnes per annum. This estimate may be on the high side because similar waste tonnages across the United Kingdom are reducing, in part because of the economic conditions.

    [74] In 2012, MWDA put in place interim measures to try and ensure that, until the RRC is up and running, as much waste as possible is not sent for landfill. These interim measures were taken not because of these proceedings, because they pre-date the April 2013 contract notification. I can only assume that they were taken because MWDA were properly concerned about the extended procurement process and wished to put interim measures in place. At present, those measures mean that about 100,000 tonnes per annum of waste is being diverted away from landfill. It is plain that there is the capacity within those interim measures for greater tonnages than that to be diverted. Accordingly, a delay of nine months would equate to, at most, an additional 225,000 tonnes of waste not being diverted away from landfill. I calculate that in this way: 400,000 tonnes per annum, less 100,000 tonnes by way of interim measures, equals 300,000 tonnes waste going to landfill for a year. The period of further delay here is nine months or three-quarters of that, which produces a figure of 225,000 tonnes. That is, as I have stressed, a maximum likely figure, for the reasons that I have given.

    [75] The 225,000 tonnes of waste which would not go to EfW during the nine months has to be set in the context of the many millions of tonnes of waste which, every year, local authorities in the United Kingdom send to landfill. It has also to be seen in the context of the extended procurement process, so far six years and counting from the PQQ, and the delays from the estimated completion dates of three years, if one takes the estimated date of 2010, or five years if one takes the estimated completion date of 2008. Even if one takes the estimated start date of 2010, we are three years on from that. The three year delay equates, on these figures, to 900,000 extra tonnes of waste going to landfill. That 900,000 tonnes of waste must, on MWDA’s case, be waste which, if the procurement process had been concluded in accordance with their own estimates, would have been diverted to EfW.

    [76] Accordingly, for those reasons, I consider that, whilst the environmental impact is plainly a factor to be taken into account in the balance of convenience, it does not alter my view that, in the round, a delay of nine months in the context of all the circumstances of this case does not support the refusal of the interim injunction and is, in the round, a further factor in favour of granting the injunction.”

  • DWF LLP v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 900 (Jacob, Sir Robin)

    View Case

    Region: England and Wales

    Suspension Lifted? No. Court of Appeal overturns High Court judgment and leaves suspension in place on contract for legal services for the Insolvency Service

    (Jacob, Sir Robin)

    Key Factors

    • An early trial could take place
    • The suspension was lifted in respect of certain contractors
    • Impossible to fairly quantify damages for the Claimant
    • Claimant would suffer loss of reputation
    • Damages to the Defendant would be much easier to quantify and the Claimant had given a cross-undertaking in damages
    • Wholly improbable that Defendant would have difficulty sourcing services up to trial

     

    “50. Having passed the first hurdle the next question is to ask how long a period the suspension might be and to what extent it should be in force. You cannot assess the later Cyanamid questions without this essential background. We were told that there could be a trial in early August or September. Miss Hannaford, surprisingly, suggested that early August was too soon – that the case could not be ready. I do not accept that. It seems to me clear that all the documents and witnesses must be readily available. Competent lawyers could easily do the job in time. But there is not a great difference between the two dates anyway.

    51. As to the extent of suspension, in the end it was agreed that the suspension could be lifted now in respect of the Scottish bids and the “top” bidders for England and Wales. The fight is really only between DWF, Shepherd and Wedderburn and another firm for the last place.

    52. Next there is the question of whether an award of damages to be assessed would be an adequate remedy for DWF if it won. I am firmly of the opinion that it would not. The court would be involved in a host of speculative questions. What chance would DWF have had in winning its bid, given that it, Shepherd and Wedderburn and another firm originally tied? Moreover there would be the loss to the firm of general damage to its insolvency department, not only loss of or damage to an established team but also loss of reputation. This is quite impossible to quantify fairly.”

     

  • NP Aerospace Ltd v Ministry of Defence [2014] EWHC 2741 (TCC) (Akenhead J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes High Court lifts suspension on the award of a contract for the conversion of armoured vehicles.

    (Akenhead J)

    Key Factors:

    • There was a serious issue to be tried (whether the MOD breached the Defence and Security Public Contracts Regulations 2011 by accepting an allegedly abnormally low and predatory-priced tender without proper regulatory scrutiny or disqualification, and by making alleged errors in the evaluation and marking process)
    • Damages would be an adequate remedy for the claimant where the loss of profit was quantifiable and there was no strong evidence of reputational damage
    • The balance of convenience lay in favour of lifting the automatic suspension as it would be contrary to the public interest to further delay the contract as this could have a serious impact on the training and operational capability of the Army.

     

    On the Balance of Convenience

    “[32]I am constrained by the Regulations to consider the public interest and, in this particular case, the national defence interests of the United Kingdom. Given the confidential nature of much of the information, it will suffice to say that I am wholly satisfied from the evidence particularly of Major General Jaques that the suspension on the placing of the contract needs to be lifted immediately to avoid serious impact to the training and operational capability of the Army. I can address several of the arguments put forward by Morgan. It is clear that MOD plans to have this contract completed by March 2016 and, taking into account army planning, there is no good reason to believe that it will be acceptable and in the national interest if this contract is not completed within as short time as is possible. It is the case that the placing of the contract has already been delayed by 2½ months. Assuming a 4-6 day trial starting on 10 November 2014, the judgment (which will have to address, I anticipate, some complex issues on pricing as well as on the market and competition) can be expected to follow possibly one month later. There will therefore have been a seven-month delay in a project which, militarily and for military training purposes, is, on the evidence, a very important one. The project will be even further delayed by about 4-6 months if Morgan is successful and secures a re-run of the tender competition. That it seems to me and on the evidence is contrary to the national interest.

    [33] There are some tangential arguments put forward by Morgan. The first is that there has already been some delay and slippage on the contract and the second is that MOD (it is asserted) has not got a good record of delivering projects on time. Even if that is all true, the Court should not contribute to yet further delay on a project which is being pursued in the national defence interest. It is argued in similar vein that some of the delay, at least since proceedings were brought on 19 May 2014, is attributable to the delay on the part of MOD in issuing its application to lift the suspension. MOD says, with some justification, that it wished to see the precise basis on which (in the light of further disclosure provided in late May and throughout June 2014) Morgan was going to put its case. I have formed and retain the view that the delay was as much and probably more due to Morgan’s failure to serve Particulars of Claim at least several weeks before the time that it did. Part of the problem was that Morgan wished to pursue an application for specific disclosure before the application to lift the suspension was heard and this had to be dealt with first. This is at best a neutral point and at worst one against Morgan. In any event, I doubt that more than two or three weeks have been lost as a result of anything which could conceivably be put down to MOD.

    …

    [35] Another factor which I can and do take into account is the impact on FPE, the “winning” tenderer. Because much of what it has argued and produced evidence about is confidential, I will not set it out. Suffice it to say, much of the prejudice which it says that it will suffer is the mirror image of what Morgan says, for instance in relation to the impact on staffing. There are other even more serious consequences referred to in its evidence than those matters put forward by Morgan.

    [36] Finally I do take into account that, if the injunction lifting the suspension was granted, Morgan would be deprived of a remedy provided for under EU law but it is common ground that this is only one (albeit important) factor which should be taken into account and it can be balanced by other factors.

    [37] Looking at matters overall and all the above factors, I am satisfied that the balance of convenience is firmly in favour of the lifting of the suspension. Morgan will have an adequate remedy in damages if it succeeds in establishing any case on the facts, merits and the law; if it fails to do so, the lifting of the suspension will have proved prescient and limited the continuing prejudice occasioned overall as a result of the suspension being and continuing to be in place.”

  • NATS (Services) Ltd v Gatwick Airport Ltd [2014] EWHC 3133 (TCC) (Ramsey J)

    View Case

    Region: England and Wales

    Suspension Lifted? No High Court maintains suspension of 10 year contract for air traffic control services at Gatwick Airport.

    (Ramsey J)

    Background:

    • OJEU notice published: 2 October 2013
    • Award decision: 18 July 2014
    • Proceedings issued after 18 August 2014
    • Particulars of Claim served: 28 August 2014
    • NATS disclosure application issued: 3 September 2014
    • GAL application to lift any automatic suspension: 3 September 2014
    • Disclosure hearing: 5 September 2014
    • Hearing of the suspension and injunction applications: 10 and 12 September 2014
    • Judgment: 2 October 2014

     

    Key Factors: 

    • There was a serious issue to be tried, namely that GAL (the airport operator at Gatwick Airport) was a ‘utility’ under the Utilities Contracts Regulations 2006 on the basis that it exploited Gatwick Airport further to special and exclusive rights granted by a competent authority by way of legislative, regulatory or administrative provisions.
    • There was a further serious issue to be tried as to the existence of an implied tender contract under which the 2006 Regulations or equivalent principles applied.
    • Damages would not be an adequate remedy for NATS given, in particular, the difficulty in assessing damages for loss of chance and the reputational loss that could be suffered if it were to lose the Gatwick Airport contract.
    • The balance of convenience favoured maintaining the suspension given that NATS’ interest in the new 10 year contract weighed heavily and that a further delay of 6 to 12 months should be viewed in the context that there had already been a delay of two and a half years in the procurement process.

    On the Adequacy of Damages

    “[82] It is evident that the question of adequacy of damages does not depend solely on whether or not the court could and would do its best in difficult circumstances to assess damages. As Sachs LJ said in Evans Marshall v Bertola at 380 C to D:

    “The courts have repeatedly recognised that there can be claims under contracts in which, as here, it is unjust to confine a plaintiff to his damages for their breach. Great difficulty in estimating these damages is one factor that can be and has been taken into account. Another factor is the creation of certain areas of damage which cannot be taken into monetary account in a common law action for breach of contract: loss of goodwill and trade reputation are examples…“

    [83] The present case I consider that there would be great difficulty in estimating the damages which would have to be assessed if the breach in terms of undisclosed, irrational and inappropriate criteria were to be proved. The court would have to assess what would be the impact if those criteria had been disclosed to the tenderers and what would be the impact if rational and appropriate criteria had been applied. Even with two tenderers the court will be left to speculate on a range of possibilities and, whilst it would do its best to come to a conclusion, the difficulty in estimating the damages is, as Sachs LJ said a factor to be taken into account in determining whether it would be unjust to confine a claimant to damages for breach.

    On the Balance of Convenience

    “[98] have come to the conclusion that the balance of convenience falls in favour of not lifting the suspension, or in favour of granting an injunction so that the claim made by NATS can be determined in an expedited trial. I consider that NATS’ interests in this 10 year contract for air navigation services in the unique circumstances of Gatwick Airport weighs heavily in the balance. There has already been a substantial delay in the procurement process of some two and a half years and a further delay of six months or at most a year has to be viewed in that context. Whilst I accept that that would mean that DFS would be in a position of uncertainty and would have to maintain its tender for that period, which is a matter which must be taken into account, I do not see that as being a determinative or major factor in the balance.

    [99] Equally, whilst a delay in achieving the efficiencies at Gatwick Airport is a major factor in the balance, I bear in mind that NATS have offered cross- undertakings in damages not only for GAL but also for DFS. I consider that the public interest is also an important factor as reflected in the Remedies Directive and the strong public interest that complex and significant procurements should be carried out in a proper and lawful manner.

    [100] In so far as necessary to consider the preservation of the status quo, there are existing air navigation services which are in place and which have been the subject of extension during the existing delay in the procurement process and preserving the status quo in this way for a further short period whilst there is an expedited trial would, in any event, not be disproportionate.”

  • R (Edenred (UK Group) Limited) v HM Treasury [2014] EWHC 3555 (Leggatt J)

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    Region: England and Wales

    Suspension Lifted? No High Court maintained suspension on the proposed arrangements for the administration of the Tax Free Childcare scheme.

    (Leggatt J)

    Key Factors: 

    • It was common ground that there was a serious issue to be tried.
    • Damages would not be an adequate remedy for Edenred if it succeeded as no tender had taken place and damages would require reconstructing a purely hypothetical procurement exercise. The requirement for such a speculative assessment weighed heavily against lifting the suspension.
    • The public interest in promoting competition and fairness in the use of public resources was a significant consideration where the proposed services were worth approximately £160 million. If Edenred’s contentions were correct, a major public services contract would be awarded without a lawful tender process and the public interest would be irreparably damaged.
    • There was a public interest in avoiding delay of the implementation of the childcare scheme and financial benefits to up to 1.9 million families. However, where the delay could be relatively short and the trial was to be expedited, the detriment did not outweigh the public interest in compliance with the law and the benefits that implementing the scheme in a lawful way may be expected to bring.

     

    On the Adequacy of Damages

    “[16]Against that background, I must look first at whether damages would, in principle, be an adequate remedy if the claimant is correct in its case that the proposed arrangements are unlawful. I accept that, in that event, damages would not be an adequate remedy because of the difficulty of quantifying the opportunity which Edenred will have lost if there has been no tender. To assess damages, the court would have to attempt to evaluate the outcome of a purely hypothetical tender exercise not corresponding in any shape or form to any tender process which had actually taken place. The court would have to attempt to estimate or make assumptions about a number of matters which are highly conjectural, including whether the Government would have decided to hold a tender process at all or would have made an arrangement, for example, for HMRC to provide the relevant services which would not have required a tender, and, if there was a tender, who the tenderers would have been, and what their respective bids might have been, with a view to attempting to estimate the claimant’s prospects of being a successful bidder. I agree with the description given by Mr Langlois in a witness statement made on behalf of Edenred that such an assessment would be “entirely speculative”.

    [17] It seems to me that the same point, however, does to a significant extent undermine Edenred’s claims about the damage to their business that they will potentially suffer if no trial takes place. If they are successful at trial, the only outcome which they can hope to achieve is an opportunity to take part in a tender process, in the event that the Government arranges matters in a way which requires it to hold one in the light of the court’s judgment. I accept that a real opportunity to take part in a tender process is different from a claim for damages based on estimating the outcome of a hypothetical tender. Nevertheless, in considering what weight should be given to the potential existence of such an opportunity, it is necessary to form some view about its worth. It seems to me that the weight which should be accorded to that potential opportunity is necessarily diminished by the fact that it is, as I have indicated, entirely speculative.

    [18] Of much greater significance, in my view, than any speculative private interest of the claimant is a wider public interest at stake which counts in the claimant’s favour. If Edenred’s contentions are correct and the currently proposed arrangements are unlawful, the result of lifting the suspension would be that a public contract for services worth some £160 million would be awarded without the tender process which the law requires. The Public Services Regulations are designed to serve important public interests of promoting competition and fairness in the use of public resources. It is clear that those interests would be damaged in an irreparable way if the suspension is lifted and the claimant is correct in its case as to the legality of the process.

    On the Balance of Convenience

    “[30] I accept that the court can and should take account of the reality that, barring something untoward occurring, the TFC scheme will be enacted into law. I do, however, consider that there is a material point underlying the argument made by Mr Coppell, which is that if the TFC scheme were not to be introduced or were not to be introduced so speedily, there is no question of public money being wasted. What would be lost or delayed is the use of public money in the manner which the Government considers to be in the best interests of the public. That is by no means an insignificant consideration – far from it; but I think it right to bear in mind that, to the extent that there is delay in commencing payments to families who would otherwise receive money earlier, it can be presumed that that money will be put to other beneficial public uses.

    [31] Looking at the matter overall, I accept the defendants’ contention that there is a public interest in the avoidance of delay and that there will be a detriment to that interest if it is necessary to wait a further six weeks before the TFC scheme can be launched. I do not, however, consider that detriment to be sufficient to outweigh the strong public interest in compliance with the law and the benefits that implementing the scheme in a lawful way may be expected to bring. That is particularly so given the arrangements that have been made for an expedited trial and the fact that, as I have assumed for the purpose of this judgment, a decision on the question of legality can be expected within a relatively short time.

    [32] In circumstances where there is a serious argument, on which the court will very soon be able to adjudicate, that the proposed arrangements for administering the TFC scheme are unlawful because of the failure to hold a tender, such detriment to the public interest as will result from the delay involved in resolving this issue cannot in my view justify bypassing the question of legality and allowing the scheme to be introduced in a potentially unlawful way.”

  • Group M UK Ltd v Cabinet Office [2014] EWHC 3659 (TCC) (Akenhead J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes High Court lifts suspension on the Cabinet Office's award of a single-supplier framework agreement for media planning and buying services

    (Akenhead J)

    Background: 

    • OJEU notice published: 11 March 2014.
    • Award decision: 3 September 2014
    • Proceedings issued; 12 September 2014
    • Particulars of Claim served: 19 September 2014
    • Defence served: 17 October 2014
    • Hearing: 4 November 2014
    • Judgment on 5 November 2014

     

    Key Factors:

    • There was no serious issue to be tried
    • In any event, damages would be an adequate remedy for the claimant
    • Any risk of reputational harm could still be addressed by proceeding with the claim and did not make damages inadequate
    • It was not in the public interest to maintain the suspension as it risked delaying important public information campaigns. A cross-undertaking was not an adequate answer to that prejudice.
    • The balance of convenience strongly favoured lifting the suspension.

     

    On the Adequacy of Damages

    “[33] It is suggested that damages would not be an adequate remedy because M4C, the sub-group with Group M, would have to close down if the suspension was lifted. However, that group was set up specifically to service the incumbent framework contract and there was always going to be a risk that if Group M did not succeed on this latest contract that sub-group would have to fold. It is unlikely that employees within the M4C team (said to number somewhere between 34 and 40) would individually suffer because either they would have the benefit of TUPE transfer to Carat or, as likely, redeployment within Group M or the wider WPP group (which is very large). This is in any event not a case in which it can be said that Group M will close down and indeed it has not been suggested that the team could not be deployed on to other profitable work within the group.

    [34] It is argued that there will be a reputational loss if Group M failed to secure this contract. I find that very difficult to see. The fact of it not securing one of many contracts would, in logic, simply tell the market that someone bid lower than it did. Mr Theakstone says that its billings from September 2013 to August 2014 were £2.9 billion in the UK; the framework contract would amount to a relatively small proportion of this sort of figure. Mr Theakstone suggests that this framework contract would be a “trophy” contract that would bring “with its significant prestige to the incumbent supplier”, going on to say that there would be damage to its reputation if it could not challenge the decision to award the contract to Carat. However, even if the suspension is lifted, it can still challenge the procurement decision if it is peculiarly concerned about this reputational aspect. It is clear from his evidence in any event that Group M and its parent work with and have relationships with the UK government and “with nearly every Whitehall department”. That would suggest that Group M has the opportunity and facilities to maintain and even build upon its reputation.”

     

    On the Balance of Convenience

    “[36] When one comes on to consider the balance of convenience, I would in any event have taken into account the weakness of Group M’s claim, even if it had established that there was a serious issue to be tried. That factor would have pointed in favour of the suspension being lifted.

    [37] Another material factor, related to the last point, is the fact that the tender prices of all tenderers are only to be held until about Christmas Eve 2014. In practice, the trial could not fairly take place until about March 2015 (Mr Bowsher QC suggested February 2015); certainly, on the TCC lists, an obvious trial slot is not available until March 2015. That would mean in all probability that, win or lose, there could well have to be a completely new tender process which could take the 5 to 6 months which the current process under review took. That could well mean that the Government had no framework contract for what is mutually accepted as being the nationally important purpose of disseminating what used to be called public service information. That is bound to cost very much more than has been negotiated; it has been said by Ms Lisett that the government would lose very substantial discounts (possibly up to £25 million) and some £2 million of additional costs would be incurred as a result of late booking fees. There would also be a very real risk that important information would not be disseminated when it should be. If campaigns which are designed to limit or prevent accidents, injuries or illness do not go ahead, there is obviously a risk that avoidable problems will arise. All these sort of factors point in the public interest to the suspension being lifted.

    [38] Of course, I do bear in mind the public interest in ensuring that public procurements carried out lawfully but that is one factor which, when weighed in the balance with all the other factors which support the lifting of the suspension, I have no doubt that the balance of convenience and the availability of the damages remedy to Group M point very strongly indeed towards lifting the suspension in this case.”

  • Advanced Business Software and Solutions Ltd v The Pirbright Institute [2014] EWHC 4651 (TCC) (Akenhead J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes. High Court lifts suspension on contract for an integrated software system

    (Akenhead J)

    Key Factors

    • Damages were adequate for the Claimant – claims of importance of contract in getting foothold in the market, rejected
    • Balance of convenience favoured lifting
    • Urgency to replace outdated IT systems
    • Significant delay if to await trial

     

    “[16] I find it very difficult to see that there is or is necessarily or obviously a serious or significant problem for ABS. I do not disagree that there is a perception that there may well be by representatives of ABS but ABS is a substantial organisation; it has on its own publicity a very wide-ranging series of contracts with public bodies; it has as I have indicated at least one contract with one of the 19 Research Councils listed; and it is said that by reason of not succeeding on this project they will lose the opportunity of being able to build on that by securing other contracts with these Research Councils. It is nebulous and speculative as to whether that is the case. Of course I cannot begin at this stage to know whether or not ABS would succeed or would have succeeded in relation to this procurement. If it is successful in this case and there is a re-run, it may still not be successful what might be called the third time round in this case. So it seems to me that that is not really a counterbalancing weight in respect of the ease at which its truly recoverable damages claim could be readily quantified. So if adequacy of damages alone was the test I would have little or no doubt that damages would be an adequate remedy.

    [17] But I go on to consider the balance of convenience as well. There has been a long and detailed discussion between the court as to whether or not in effect Pirbright could make do with its current systems whilst there was an expedited trial say in late February or early March 2015 as such. If the stay is lifted however it can get on and place the contract with Access and expedite very substantially the introduction of its new integrated system. I am persuaded on the evidence, particularly because Pirbright is a charity, that the balance of convenience favours the lifting of the suspension. What I am concerned about – and there is evidence before the court in effect – that currently scientists, researchers, have to use the current system; they are both – particularly the Protrack – are old systems; there are risks or perceived risks at least in them perhaps not surviving well and effectively through much of 2015. If the procurement, the placing of the contract, is delayed these researchers and scientists who do important work in general but for the public interest in this country will have to work with machines, with software, which is clearly old-fashioned and inefficient, and the longer that goes on the less use their work will be. Put another way, they will have to spend more time working with an old and outdated pair of systems which will mean that their time will be wasted dealing with that rather than the benefits of the new system which both ABS and doubtless Access have put forward as a good solution to the problems of the existing systems which Pirbright currently has. The detailed discussion about whether it would be appropriate to maintain the stay also partly depends upon an analysis of when it is likely that a new tendering process would be successful and a new system be implemented. If there was an expedited trial on liability in early March, and if ABS was successful, it would doubtless want a re-tendering process. That would take doubtless about the same time, if not more than the first tendering process, so that is from May to the end of July, so round about three months – maybe a bit more than that, unlikely to be less – so that assuming the judge who tries this is able to produce a reserved judgment say by the end of March it would be unlikely that any new tendering process would be completed much before the end of July, possibly going into August. Then the successful contractor would have to be mobilised to start installing, and I can see on that basis that Pirbright would be left with its old systems until well into 2016.

    [18] One of the systems, the Oracle system, is one which at the moment the Pirbright in effect has three through the SBS but there has been evidence before me there is certainly a risk that by December 2015 the current system will no longer be available through SBS, there will be a new system and the Pirbright would have to secure – possibly direct from Oracle – a licence to continue with the old system; alternatively it would have to go on to the new system available through SBS. Either way that would cost money and although that would be theoretically recoverable under a counter indemnity, it is money coming out of the charity’s cash flow in the short term which it should not be required in practice to have to forego. So far as the Protrack is concerned, the impression one gets is that if it has not got to the end of its useful life it is not that far away. I have no doubt that there is a chance that it might be capable of being adequately supported beyond the Spring of 2015 but whether supported or not there is little doubt that it is a system which on its own is nowhere near as efficient as the proposed combined integrated system, and the Pirbright would be left with that system for possibly the best part of 12 months longer than it would otherwise be with the inconvenience, difficulty, and loss of research and scientists’ time dealing with the old systems. Although there is always a balance to be weighed, I am satisfied here that the balance of convenience does fall with the adequacy of damages as an appropriate remedy for one which should lift the suspension. So the Pirbright’s application will be allowed.”

  • OpenView Security Solutions Ltd v Merton London Borough Council [2015] EWHC 2694 (TCC) (Stuart-Smith J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes High Court lifts suspension on award of contract for integrated CCTV and automatic number plate recognition system.

    (Stuart-Smith J)

    Background: 

    • OJEU notice published: 18 November 2014
    • Award decision notified: 1 July 2015
    • Proceedings issued: 21 July 2015
    • Particulars of Claim filed and served: 27 July 2015
    • Application to lift the automatic suspension issued: 19 August 2015
    • Defence filed and served: 24 August 2015
    • Cross-undertaking in damages given by OpenView: 25 August 2015
    • Hearing: 18 September 2015
    • Decision notified to the parties: 21 September 2015 (application successful, reasons to follow)
    • Judgment (reasons): 28 September 2015

     

    Key Factors: 

    • Damages were an adequate remedy for both the claimant and the defendant
    • The availability of a speedy review by the Court was not a relevant factor in considering the adequacy of damages
    • The fact that quantification is difficult or involves ‘loss-of-chance’ does not of itself make damages inadequate. The inquiry is not confined to pre-set categories. If it would be unjust to confine the claimant to damages, then damages are, by definition, inadequate.
    • There was no sufficient, irrecoverable reputational or competitive harm. Any reputational effect was likely transient and speculative.
    • There were competing public interests but the Court was not prepared to treat them as dominant at this interim stage or as decisively favouring maintaining the suspension.
    • The balance of convenience favoured lifting the suspension.

     

    On the Role of the Public Interest

    “[15] Drawing these strands together, when considering an application for removal of the automatic suspension the Court must take into account the fact that these are not merely private law disputes and that there is an ever-present element of public interest in the outcome of public procurements. That said, there is no reason why (and no binding authority to suggest that) the American Cyanamid principles themselves are changed by the public interest element. The real question, which I turn to below, is how the public interest element should be taken into account when applying American Cyanamid principles.

    ….

    [25] I respectfully question whether it is right in principle to elevate “the importance of the remedy of review” into a separate step or consideration before weighing the advantages and disadvantages to the parties of either lifting or not lifting the suspension. It is also unclear precisely what is meant to be included in this step. As applied in BMLL, it is consistent with the factor that always has to be taken into account when considering whether or on what terms to impose interim injunctive relief, namely the duration of the interim relief and what its effects will be during that time. That is conventional in a case where it has been concluded that damages would not be an adequate remedy; but normal application of American Cyanamid principles does not suggest that it can as a matter of course be a substitute reason for imposing interim relief in a case where damages would be an adequate remedy. On the contrary, if damages will be an adequate remedy the period to trial should generally not be an influential factor, though special cases might arise such as if the Court were persuaded that one party was using the period to trial as an instrument of financial oppression or the delay to trial might put the continued existence of a party (for whom damages would in theory be an adequate remedy) at risk.

    …

    [27] The second reason why the Court should be slow to look to the final trial as a solution is that the Regulations have established a procedure which does not in any way suggest that suspending the contracting authority’s right to contract should be regarded as the norm or general approach to be adopted. The Regulations have established the proper balance between private and public interests by defining and circumscribing the remedies that will be available at trial and endorsing the application of American Cyanamid principles in the meantime. If proper application of American Cyanamid principles leads to the conclusion that damages would be an adequate remedy for the aggrieved tenderer, I see no justification in binding authority or in the framework created by the regulations for treating the prospect of a prompt final decision as being of itself a justification for maintaining the automatic suspension. To my mind there is a real danger that the Court may arrogate unwarranted powers of interference in matters of local or national politics if it treats the nature of the remedy that might be available in certain circumstances at a final trial as a justification for imposing (or maintaining) highly disruptive interim suspension of a contracting authority’s intended contracting processes. The suggestion that compliance with the law and the benefits of implementing the public procurement scheme are compromised by setting aside the automatic suspension where proper application of American Cyanamid does not justify its continuation seems to me to be very questionable. I therefore respectfully suggest that Leggatt J’s observation in Edenred should not be adopted as a statement of general principle providing a free-standing reason for maintaining automatic suspensions in all cases.

    On the Adequacy of Damages

    “[28] There are now a number of examples of public procurement challenges where the Courts have concluded that damages would not be an adequate remedy for the aggrieved contractor. Counsel were unable to identify (and I have not found) any statements of general principle about what uncompensatable disadvantages should or should not be regarded as rendering damages an inadequate remedy. However, the Claimant suggested that three categories of case may be identified, namely:

    i) Cases where the assessment of damages is difficult because it is speculative e.g. where the contract concerned is a framework contract and there can be no certainty about what level of call-off will eventuate, with the result that the Claimant cannot predict what amount of potentially profitable work may be lost;ii) Cases where assessing the value of a loss of a chance may be difficult or unsatisfactory because of the number of unknowns and variables; and

    iii) Cases where it is unjust to leave the aggrieved party to his remedy in damages even if damages would be an adequate remedy.

    [29] This categorisation is neither satisfactory or justified. First, in principle, there need be no pre-ordained limit upon when and in what circumstances damages may be regarded as an inadequate remedy: the categories of inadequacy need not be closed. Second, difficulty of assessment does not of itself demonstrate that the damages once assessed will be inadequate. Third, I am not convinced that a framework contract gives rise to particular difficulties. Normal principles suggest (for good reason) that damages should be awarded on the basis of the contracting authority’s minimum or least onerous obligation. Fourth, the Claimants’ third suggested sub-category is self-contradictory: if it would be unjust to leave a party to his remedy in damages, the damages are by definition an inadequate remedy.

    …

    [32] Counsel in the present case were not in a position to address the question whether the lost chance in a case of unpublished criteria is properly to be assessed on the basis that the contract assessment would have been on the basis of the published criteria or on the basis of the published and the unpublished criteria. In the absence of full submissions on the point, my tentative conclusion is that there may be two different categories of case: the first could be where the criteria to be applied were fully pre-determined but inadequately publicised (as in Emm G Lanakis AE v Dimos Alexandroupoulis (C-542/06)); the second could be where the intended criteria are properly advertised but the contracting party deliberately or otherwise relies on additional unpublished criteria when it comes to assess the bids. While flagging that question for possible future resolution, I accept for present purposes that there may be circumstances where the number of uncertainties or variables that have to be brought into the calculation of the aggrieved tenderer’s lost chance may persuade the Court that damages would not be an adequate remedy. However, the mere fact that the damages will be for loss of a chance and will be assessed as such is not of itself evidence that the damages are an inadequate remedy. The reverse is likely to be true in many or most cases because the principles that have been developed have been designed to reflect the true commercial value of the chance that has been lost.

    ….

    [39] What then are the criteria to be applied before a court accepts that “loss of reputation” is a good reason for holding that damages which would otherwise be adequate are an inadequate remedy for American Cyanamid purposes? In the absence of prior authority directly in point (none having been cited by the parties) but with an eye to the approach adopted by the Court in Alstom, DWF and NATS I suggest the following:

    i) Loss of reputation is unlikely to be of consequence when considering the adequacy of damages unless the Court is left with a reasonable degree of confidence that a failure to impose interim relief will lead to financial losses that would be significant and irrecoverable as damages;ii) It follows that the burden of proof lies upon the party supporting the continuance of the automatic suspension and the standard of proof is that there is (at least) a real prospect of loss that would retrospectively be identifiable as being attributable to the loss of the contract at issue but not recoverable in damages;

    iii) The relevant person who must generally be shown to be affected by the loss of reputation is the future provider of profitable work.

    On the Balance of Convenience

    [69] Standing back, I take into account the fact that OpenView has an established place in the market but has not committed resources to carrying out the work on the Merton contract. It is therefore not being deprived of existing market presence but of the chance of increasing it in the future. That disadvantage is relative, transient and minor when compared with the consequences to either party on the facts of American Cyanamid itself.

  • Counted4 Community Interest Company v Sunderland City Council [2015] EWHC 3898 (TCC) (Carr J)

    View Case

    Region: England and Wales

    Suspension Lifted? No High Court maintains suspension on local authority's award of a contract for the provision of substance misuse treatment and harm reduction services.

    (Carr J)

    Background: 

    • OJEU notice published: 20 June 2015
    • Award decision notified: 19 October 2015
    • Proceedings issued: 17 November 2015
    • Particulars of Claim served: 26 November 2015
    • Defence served: on eve of hearing
    • Judgment: 18 December 2015

     

    Key Factors: 

    • The claim was not frivolous or vexatious, there was a serious issue to be tried.
    • Damages were not an adequate remedy for the Claimant because lifting the suspension would likely trigger TUPE transfer and loss of the Claimant’s uniquely trained workforce such that it would be unable to proceed with its claim.
    • No evidence of specific financial loss to the Defendant if the suspension was kept in place.
    • Considering the public interest of risks to vulnerable users, there was insufficient evidence that an immediate safety risk required the suspension to be lifted.
    • The balance of convenience favoured maintaining the suspension, primarily because of the irreparable prejudice to the Claimant if lifted and the public interest being unprotected in the interim.
    • The suspension was maintained on the basis of a cross-undertaking limited to certain identified costs.

     

    On the Adequacy of Damages

    “[40] But that is not the gravamen of the Claimant’s position, which is as follows. On Mr. Devitt’s evidence, if the suspension is lifted, the Claimant will lose its highly and uniquely trained workforce under TUPE regulations, that workforce being predominantly engaged on the existing contract. It is a team that has taken years to develop; its skills are not available on the wider market. The Defendant ripostes by stating that in such circumstances the highly trained team would not be lost to the general public. But that ignores the irremedial harm to the Claimant which is the issue under consideration here. Even with income over the mobilisation period, the Claimant states that it would not be in a position to continue with this claim. This prejudice, it is said, should not be surprising given that the Claimant was set up for the very purpose of providing services to the Defendant.”

    On the Public Interest

    “[46] I turn next to the important question of public interest and the quality of the services being provided (and to be provided) to the vulnerable substance misusers of Sunderland. I add at the outset that it should not be forgotten that there is, of course, a public interest in local authorities complying with EU legislation: see, for example, paragraph 59 of the judgment of Coulson J. in Covanta Energy Limited v Merseyside Waste Disposal Authority [2013] EWHC 2922 (TCC).

    [47] But as to the public interest in terms of safety to the public, I ask myself whether there is such a pressing need for NTW to take over the services on safety grounds that the suspension should be lifted set against the above findings. There is self-evidently a dispute on the facts as to how well the current service is operating. However, what is not in dispute is that there is an existing service operating whilst the suspension is in place. Miss Gibson, at paragraph 87 of her first witness statement, said:

    “In summary, the existing arrangements provide a service to the people of Sunderland which attempts to address as best it can the issue of substance misuse. I do not want anyone who is contemplating using the service to think that it cannot help. Most of the staff on the ground continue to do their best in the difficult circumstances. However, it can be much improved and the new contract will ensure that the current risks associated with having a number of providers in place are addressed.“

    …

    [54] In the result, I have reached the clear conclusion that the service as it is currently operating does not create such risk to the lives of substance misusers in Sunderland that the public interest can be said to outweigh the considerations set out above, in particular the prejudice to the Claimant if the suspension is lifted….

    [56] The availability of an expedited trial is also an important consideration in this context, particularly when set against the overall time line. The Defendant’s concerns have apparently existed for some two years. A further delay of some two or three months or so, based on a trial in spring 2016, cannot sensibly be said to be critical.”

    On the Balance of Convenience

    “[60] Weighing all these factors together, particularly the prejudice to the Claimant were the suspension to be lifted, the availability of an expedited trial date and the fact that the public interest is not unprotected at present, the balance of convenience lies in favour of maintaining the suspension and it is my judgment that the suspension should not be lifted. This is the course that seems likely to cause the least irremediable prejudice to one party or the other.”

  • Solent NHS Trust v Hampshire County Council [2015] EWHC 457 (TCC) (Akenhead J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes High Court lifts suspension on the award of a contract by Hampshire County Council for adult substance misuse recovery services.

    (Akenhead J)

    Background: 

    • OJEU notice published: 25 June 2014
    • Award decision notified: 2 December 2014
    • Proceedings issued: 31 December 2014
    • Particulars of Claim served: 7 January 2015
    • Defence served: 4 February 2015
    • Application to lift the suspension issued: 10 February 2015
    • Hearing: 23 February 2015
    • Judgment: 26 February 2015

     

    Key Factors:

    • It was accepted that there was a serious issue to be tried
    • Damages would be an adequate remedy for Solent (the Court was not convinced by the claim that TUPE transfer would seriously undermine Solent’s other contracts or that the in-patient detoxification treatment residential unity would have to close, considering it likely to remain in demand at least in the short term)
    • Lifting the suspension would not materially harm Solent’s reputation and, thus, reputational damage did not make damages inadequate on these facts
    • Balance of convenience and public interest strongly favoured lifting the suspension. This would ensure that vulnerable service users would benefit sooner from the more fully integrated and improved services envisaged by the new contract.
    • Maintaining the suspension would inevitably delay the integrated and improved services the new contract was to deliver, even with an expedited trial

     

    On the Adequacy of Damages 

    “[19]It is suggested that there is some realistic prospect of there being a loss of reputation if Solent is not in effect given the chance not only to fight the case but to win it so that there can be a re-tendering process through which, if it succeeds in that process, it will secure the new contract with the enhanced reputation which might be brought to it. It is certainly true that in some cases the potential loss of reputation has been taken into account as supporting an argument that damages would be an inadequate remedy (see for example DWF LLP v Secretary of State for Business Innovation and Skills[2014] EWCA Civ 900, at paragraph 52 and Alstom Transport v Eurostar International Ltd [2010] EWHC 2747 (Ch)at paragraph 129). I do not see however that the current case and a lifting of the suspension would materially impact upon the reputation of Solent. There is a mass of evidence from Ms Austin that over the past three or four years it has done very well in terms of the Key Performance Indicators on the current project and so there is no obvious implication that it failed to secure the project because it had performed the current contract badly; indeed, the fact that it pre-qualified to tender for the new contract is itself evidence that it was considered sufficiently qualified and experienced. In any event, even if the suspension was lifted, it remains open to Solent to pursue its case on liability and establish if it can that it should have won the new contract, which would restore any reputation which it thinks it might lose.”

     

    On the Balance of Convenience

    “[38] I am very concerned, on the evidence, about the “”service users”” and the impact of a delayed contract on the services to be provided for their benefit. Whilst, decently, Solent has agreed in principle to continue to provide the current level of services for as long as is reasonably necessary, what is not going to be provided is the new, improved and integrated service which this proposed contract was intended to provide. Although I detect an inferential argument from Ms Austin that the proposed improvements are either not important or will not provide a significantly better service than is currently being provided, the whole tendering process for the new contract has been predicated on there being substantial and important improvements in the county wide provision of services for the unfortunate “”service users””. At 3,200 people, this is not a small and insignificant number of people. The effect of a significantly delayed contract which plans to bring greater integration and improvements to the services for these people will, I assess, be harmful and detrimental to them. On one scenario, there will be a delay of over some 10 months and on the other scenario a delay of five months. It would be unfortunate not to say tragic if even one person died or suffered unavoidable serious physical or mental deterioration as a result of unavoidable delays in the provision of the improvements planned by the new contract. The introduction of the improvements will be delayed and services in the interim continue to be provided from those premises which had been considered unfit for purpose and which need to be replaced. I have no reason to doubt Mr Down’’s assessment in his first statement in this regard (e.g. at Paragraph 33). I do not think that the Court should take risks with people”s lives and health; by this I do not infer that Solent, if it continued under the existing regime would put “”service users’’”” lives at risk but I do infer that the integrated and improved service to be provided under the new contract has a better chance of better outcomes and it would be wrong to risk “”service users”” not having the benefit of those improvements as soon as possible.

    ….

    [43] Taking into account all the arguments and evidence in this case, and in particular the factors set out above, I am satisfied that the balance of convenience rests firmly in favour of the suspension being lifted immediately. That provides the best or at least better opportunity for the “”service users””, namely the not insignificant number of drug and alcohol addicts with particular medical and mental problems in Hampshire, to have the more fully integrated and improved services provided sooner than if the suspension remains in place. Damages, are, I assess, an adequate remedy in any event and the two primary grounds advanced by Solent as the basis as to why damages would not be an adequate remedy are, at the very least, unconvincing.

    [44] I allow the application by HCC to have the statutory suspension lifted. I do consider however that, if the parties or either of them wish, an expedited trial in June 2015 will overcome any lingering feelings on the part of Solent that its reputation might suffer. Such a trial is certainly manageable, although both parties might wish seriously to consider settling their remaining differences, through mediation or otherwise, sooner rather than later.”

  • Bristol Missing Link Ltd v Bristol City Council [2015] EWHC 876 (TCC) (Coulson J)

    View Case

    Region: England and Wales

    Suspension Lifted? No. High Court maintains suspension on contract for domestic violence and abuse support services in Bristol

    Background

    • Proceedings commenced: 5 February 2015
    • Particulars of Claim: 12 February 2015
    • Application to Lift issued: 27 February 2015
    • Defence: 4 March 2015
    • Hearing: 26 March 2015
    • Judgment: Decision announced at the end of the hearing; written judgment on 1 April 2015

     

    Key Factors

    • There was clearly a serious issue to be tried, including in respect of individual scores (which the authority had sought to portray as hopeless)
    • Adequacy of damages was dealt with as part of the balance of convenience
    • Damages would not be an adequate remedy for the Claimant, where it was a not-for-profit organisation, and included no amount of profit in the tender; and where, without this contract, the rest of the organsiation would suffer catastrophic harm and where there would be reputational harm from the Claimant’s inability to do their core work in their only market
    • Damages were adequate for the contracting authority where any loss from a 6-month delay could readily be calculated and there was no prejudice to users of the service
    • There was a significant public interest in ensuring compliance with the law
    • An expedited trial could take place (in June; suspension judgment of 1 April) and the total delay in entering the new contract would only be 6 months
    • Council could not rely on alleged advantages of successful tender when that tender was not disclosed
    • Evidence did not show that new contract would provide significantly better services to users

     

    “[55] I respectfully agree with that. Whilst Mr Williams QC was right to say that that was a situation where there was an ongoing contract, which is obviously not this case (as things stand), that does not seem to me to detract from the principle to be applied. In my view, a non-profit making organisation, which has bid for a contract making no allowance for profit at all, and a minimal amount for overheads, is entitled to say that, in such circumstances, damages would not be an adequate remedy.”

    ….

    “[60] By contrast, I consider that damages are an adequate remedy for the Council if the suspension is not lifted and it turns out that BMLL’s claim is ill-founded. I say that for two reasons. First, if that happens, then (for the reasons explored in Section 7.2 below) that will lead to a six month delay in Refuge starting work. The costs savings to the Council (if any) which they will have been deprived of, because of that six months delay, can easily be calculated. So too can any administrative costs referable to the delay. What is more, the evidence from Mr Kandola shows that BMLL’s cross-undertaking in respect of such damages would be met.

    [61] The Council say that the prejudice caused to the service users by this six month delay is not something which can be compensated for in damages. If there were any prejudice to the service users then I would accept that submission. However, for the reasons explored in Section 8 below, I have concluded that no such prejudice has been demonstrated.

    ….

    “[65] In my view, the public interest in ensuring compliance with the law is particularly significant in the present case because, for the reasons that I have explained, if the suspension is lifted, that is effectively the end of BMML’s claim. Thus, if BMLL are right and this procurement process was not properly operated, they will have been deprived for all time of a significant legal right.

    [66] Of course, in all cases where this issue arises for consideration, what matters is whether or not the trial can be heard in a reasonably short time in order for the issues to be finally determined. In some procurement disputes, the issues raised are so complicated, and require such preparation prior to trial, that the delay before the issues can be properly determined is too long, and the suspension has to be lifted. However, that is not this case. As I have demonstrated, the issues which are raised here are straightforward. Some documents have already been disclosed. The major work before trial will be the preparation of witness statements but that, in itself, is not an overly onerous task.”

  • Perinatal Institute v Healthcare Quality Improvement Partnership [2016] EWHC 2626 (TCC) (Jefford J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes High Court lifts suspension on award of contract to implement standardised perinatal mortality reviews across the NHS

    (Jefford J)

    Background: 

    • ITT issued: 29 March 2016
    • Notification of contract award decision: 30 June 2016
    • HQIP solicitors’ letter stating they were preparing an application to lift: 18 August 2016
    • Defence served on 30 August 2016
    • Application to lift the automatic suspension made: 21 September 2016
    • Hearing of the application: 5 October 2016
    • Judgment: 26 October 2016

     

    Key Factors:

    • There was a serious issue to be tried, including on the s.251/parental input evaluation concern and the panel-expertise complaint. The time-bar arguments could not be resolved summarily.
    • Damages were an adequate remedy/it was just to confine Perinatal Institute (PI) to damages. PI. could recover tender costs and a financial contribution to overheads reflected in bid costing. This was unlike the ‘catastrophic’ scenario in Bristol Missing Link.
    • Strong public interest in the project proceeding without delay. Earlier implementation of standardised perinatal mortality reviews was likely to save babies’ lives over time, and even an expedited trial would still cause months of delay.
    • The Court lifted the suspension and held that, on the balance of convenience, it would have lifted the suspension even if a different conclusion had been reached on the adequacy of damages.

     

    Adequacy of Damages

    “[45] I do not read what Coulson J said at paragraph 55 of the judgment, quoted above, as setting out an absolute rule or principle that a non-profit organisation can never be adequately compensated in damages. Rather, in my view, he identifies that this is an argument open to a non-profit organisation against which background he then considered the consequences for BMLL of the lifting of the suspension in order to answer the question of whether it would be just to confine BMLL to recovering its minimal financial loss. The fact that an organisation is non-profit may make it more likely that it cannot be adequately compensated in damages and the BMLL case itself provides an example where that was the case because the project in question was at the heart of its activities, there would be a significant knock on effect to its other activities, and it would suffer significant reputational damage.”

    ….

    “[51] Accordingly, leaving aside the matter of tender costs, there is, in my judgment, a financial loss which can be compensated in damages. Is it then just, in all the circumstances that PI should be confined to that remedy? In my judgment the answer to that question is yes. PI’’s position is in no way similar to that of BMLL. There is no existing service provision which PI will be deprived of if the suspension is lifted and there is no suggestion or evidence that failure to obtain this contract will have any negative, let alone, catastrophic impact on PI’’s activities. PI may feel strongly that their bid was a better bid; they may have grave concerns about the NPEU bid; and these may be of far greater importance to them than any potential claim for damages, but that does not mean that it would be unjust to confine PI to its remedy in damages.

    [52] It follows that I would lift the suspension on the award of this contract.”

     

    Balance of Convenience

    “[56] On the one hand and in the context of the application of the Public Contracts Regulations, I take into account the strength of PI’’s case. Whilst I have found that there is a serious issue to be tried, this does not seem to me to be particularly strong case. To refer back to one point only as HQIP point out, even if PI are right in their complaint about the evaluation of item 5.2, that would not affect the scores sufficiently to mean that PI would have been the winning bidder. To reach that point, PI would also need to succeed on a number of its other complaints. So the hill PI has to climb to establish that the Regulations have been breached in any way that impacts on the outcome of this bid process is that much higher.

    [57] On the other hand, there is a clear public interest in this project proceeding as soon as possible. It is a data collection and review project aimed at the reduction of perinatal mortality rates. Prof Gardosi’’s evidence is that this is a project that PI has for some years been advocating should be undertaken. PI (or perhaps more accurately its predecessor) produced a report in 2010 emphasising the need to standardise the review process, also setting up a stakeholder group with clinical and patient representatives to develop an electronic tool for standardised review which was then piloted in England and Wales. Further, the apparent success of PI’’s SCOR tool, about which Prof Gardosi gives evidence, demonstrates that the standardised collection and review of data can have significant benefits.”

    …

    [62] Firstly, PI argued that there had been undue delay by HQIP in making this application and that that should weigh in the balance against lifting the suspension. I do not consider that there was any undue delay. After the decision was made, the parties engaged in correspondence to explain their positions to each other and see if they could resolve their differences. In a letter dated 18 August 2016, HQIP’’s solicitors stated that they were preparing an application to lift the suspension; HQIP’’s Defence was served on 30 August 2016; and this application was made on 21 September. Given the need to have the support of the Department of Health and the devolved governments for this application and that much of these events took place over the holiday period, I cannot see that there was any undue delay, and even if there were it would not be enough to tip the balance.

    [63] Secondly, PI also relied on the argument that there would be an expedited trial of the issues. Their estimate for such a trial was 2 weeks although HQIP suggested that 3 to 4 weeks was a more realistic estimate. No specific dates for a hearing were identified but, with disclosure and statements, there could not be a trial before next year. PI suggested that there could be a trial within 4-6 months, with judgment to follow. Even on this best case scenario, there would be months of delay in the implementation of the project. If there were an appeal or a re-run of the tender process the delay would be greater. The public interest that I have identified above weighs heavily in favour of avoiding this further delay.

    [64] As I have said, it follows that, even if I had reached a different view about the adequacy of damages, I would have found that the balance of convenience favoured the lifting of the suspension. The view that I have formed about the adequacy of damages also weighs in the balance of convenience in favour of lifting the suspension.”

  • Alstom Transport Limited v London Underground [2017] EWHC 1521 (Stuart-Smith J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes High Court lifts suspension on award of a contract for the provision of AC traction motors for the Defendant's fleet of Central Line trains on the London Underground.

    (Stuart-Smith J)

    Background: 

    • OJEU contract notice published: 28 January 2015
    • ITT issued: 18 December 2015
    • Revised ITT issued: 4 January 2016
    • Bids submitted: 8 April 2016
    • Award decision letters issued: 13 March 2017 (standstill to 24 March 2017)
    • Alstom raised threshold concerns from: 14 March 2017.
    • Proceedings issued: 11 May 2017
    • Draft Amended Particulars of Claim served: 14 June 2017
    • Defendants’ Defence served: 15 June 2017 (day of hearing)
    • Hearing of lift application: 15 June 2017
    • Judgment: 27 June 2017

     

    Key Factors: 

    • That there was a serious issue to be tried was conceded but there was no decisive merits tilt.
    • Damages were adequate/it was just to confine Alstom to damages. Lost profits and bid costs were readily quantifiable and this was not an ‘undisclosed criteria’ or highly speculative loss case.
    • There was no evidence of irremediable business harm, especially in light of the tender resourcing, timing and Alstom’s group-wide expertise and market strength.
    • The public interest and balance of convenience favoured lifting the suspension and proceeding with the award of the contract. The public interest in lawful procurement did not itself justify maintaining the stay, particularly where further delay was significant given the Central Line reliability issues and uncertain litigation timescales.

     

    On the Adequacy of Damages

    “[36] I accept that, in principle, the loss of a uniquely qualified workforce could in appropriate circumstances support a finding that damages would be an inadequate remedy and that it would be unjust to confine a claimant to its remedy in damages: see Counted4Community Interest Company at [40]. However, the facts of the present case could hardly be further from the facts of that one. For the reasons I have outlined above, Alstom has come nowhere near satisfying me that there is a real prospect that it will suffer irremediable and uncompensatable loss in the way suggested by Mr Wood if it is confined to its remedy in damages.

    [37] The second major plank of Alstom’s submission is that damages will not compensate the Claimant for the loss of competitive edge it would suffer if it loses this contract. In my judgment, Alstom has not shown that there is any significant risk that it will lose competitive edge if it loses this contract. First, I do not accept that loss of this contract would mean that it lacked expertise, for the reasons already given (including, in particular, the fact that it has access to another Alstom Group European centre of excellence for traction). Second, there is no reasonable basis for doubting that it will continue to tender for such contracts as and when they arise and that it will continue to do so as a national market leader with the additional muscle and expertise inherent in being part of a group that is a global market leader. Third, there is no reason to suppose that a future tender outcome would be determined by the fact that Alstom had won the LUL contract; nor is there any reason to suppose that a future tender outcome would be determined by the fact that it had not. I reject outright the suggestion that loss of the LUL contract would mean that Alstom was excluded from the United Kingdom traction system market altogether, as suggested by Mr Wood at [73] of his first statement.”

    On the Public Interest 

    “[39] Ms Hannaford advanced two submissions in relation to the public interest. Her first was that there is a public interest in procurements being carried out properly. I agree. However, for the reasons that I gave at [27] of Openview, which I repeat and adopt, I do not accept that the undoubted public interest in procurements being carried out properly tends of itself to support the maintenance of the automatic suspension. Ms Hannaford made the point that the Regulations provide more than one possible remedy. I agree; and, in my judgment, that supports the conclusion that the appropriate remedy should be identified without preconception or prejudice as to which one may be appropriate. Despite Ms Hannaford’s submissions to the contrary, I remain of the view that the appropriate course is for the Court to apply established principles and that it will only be in an exceptional case that it can be said that the application of American Cyanamid principles fails to give adequate support to the public interest in procurements being carried out properly. Of course, setting aside the automatic suspension at a time when the Court does not know what the final outcome of the Claimants’ allegations will be gives rise to the possibility that the Defendant will end up paying a contract sum to the successful tenderer and damages to the aggrieved Claimant. However, that possibility is not a reason for maintaining the automatic suspension if it is otherwise inappropriate to do so. On the contrary, the prospect of paying damages as well as a contract price if it breaches its obligations is an integral part of the scheme under the Regulations for encouraging proper and principled procurements since it is to be assumed that contracting authorities will (in general) wish to avoid double payment. If there were even a whiff of corruption in a given case (e.g. that the procurement had deliberately been conducted in breach of the regulations to achieve a given end irrespective of the risk of double payment), I have no doubt that any Court would regard that as a feature tending to support the maintenance of the automatic stay. However, I make plain that there is no evidence to give rise to even a whiff of that sort in the present case.

    [40] Under the general heading of public interest, Ms Hannaford also submitted that there have been delays in the procurement process that should persuade the court to take the view that a further delay is insignificant. I do not agree. Without rehearsing the evidence in detail, the slippage in the timetable upon which Alstom relies is to a considerable extent explained by LUL’s evidence and does not demonstrate that the passage of further time is to be regarded as insignificant. To the contrary, LUL’s evidence establishes that the current traction systems on the Central Line are unreliable and should be changed sooner rather than later.

    [41] I have referred elsewhere to the difficulties in predicting how long it may take for procurement litigation to be brought to a conclusion, despite the fact that the TCC will make resources available quickly: see Kent Community Health HHS Foundation Trust at [34]-[38]. Alstom has not shown any basis upon which it may be assumed that final resolution will be achieved within a timeframe that does not involve a significant and material delay in implementing the works. In other words, Alstom has not shown that the speed of the court process supports the maintenance of the automatic suspension.”

  • Sysmex (UK) Ltd v Imperial College Healthcare NHS Trust [2017] EWHC 1824 (TCC) (Coulson J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes High Court lifts suspension on award of a Managed Services Contract in respect of pathology services

    (Coulson J)

    Background 

    • OJEU notice published: 4 November 2015
    • Notification of award decision: 27 January 2017
    • Proceedings commenced (triggering automatic suspension): 24 February 2017
    • Particulars of Claim served: 31 March 2017
    • ADR stay by consent for 4 weeks: 24 May 2017
    • Settlement discussions ended: 12 June 2017
    • Application to lift the automatic suspension made: 16 June 2017
    • Defence served: 26 June 2017
    • Lift application heard: 19 July 2017
    • Judgment delivered: 21 July 2017

     

    Key Factors

    • That there was a serious issue to be tried was conceded and the Court refused to treat merits as tipping the balance.
    • Damages were an adequate remedy for Sysmex (loss (lost profit/wasted costs) was capable of calculation, Sysmex was a profit-making organisation and the additional ‘prestige/reputation/wider impact’ points were either unproven, too speculative, or in any event financially quantifiable.
    • Damages were not an adequate remedy for the Trust, because continuing the suspension risked real harm to patient/clinical care (not measurable/compensable in damages).
    • The balance of convenience overwhelmingly favoured lifting, principally due to patient-care risk and also the financial savings of the new MSC.
    • The Court rejected Sysmex’s proposed ‘partial suspension’/variation as unworkable (commercially and potentially legally) and inconsistent with the single-provider objective of the MSC, and it would not address the risk posed by continuing to use equipment beyond its design life.

     

    Adequacy of Damages

    “[62] The consequences of not lifting the suspension for the Trust are best dealt with in the next section, in which I consider the balance of convenience. Some elements of the Trust’s losses if the suspension is continued, such as the savings represented by the MSC, could be calculated as damages. In addition, I am not persuaded that the Trust could suffer reputational damage, so I leave that out of account. But I consider that there is overwhelming evidence that, if the suspension is not lifted, it would have a significant and detrimental effect on patient and clinical care. That is emphatically not something which is capable of being compensated for by way of damages. I deal with that in detail in Section 6 below.”

     

    Balance of Convenience

    “[72] Standing back from the individual matters that are disputed by Sysmex (for example, whether a particular machine had a good or bad record for breakdowns), it seems to me that, realistically, in a case where there is credible evidence that patient care will suffer if the suspension is not lifted, it will usually be the case that the least risk of injustice will favour the lifting of the suspension. Sir Stephen Bloom is responsible for the service to the Trust’s patients, and I accept what he says. In that result, therefore, this case is very similar to Perinatal.

    [73] On the second point, relating to savings, there is clear evidence that the Abbott bid would save the Trust £250,000 per month on pathology tests alone. There are also the sums due to the Trust as a result of Abbott’s agreement to pay the Trust for the existing equipment, as well as costs savings on staff costs, out-sourcing and VAT. In addition, Mr Bubb has calculated that a ten week period of delay might cost the Trust £1.5 million or more. This in turn could have an effect on the Trust’s ability to meet its financial targets which could lead to an NHS intervention.”

     

    Varying the Automatic Suspension

    “[88] The next matter on which Sysmex relied was their early suggestion that the automatic suspension could be varied, such that it was only the haematology and coagulation elements of the MSC that remained suspended. On the face of it, that argument appears rather attractive, particularly as Sysmex are delivering those services to the Trust at the moment in any event. But on analysis, I do not consider that the offer was ever workable.”

     

    Public Interest

    “[98] There is some force in that point: I regard that public interest as being always a factor in cases of this sort. It is also important to avoid a situation where the authority (here an NHS Trust) has to pay twice, once for the services and again by way of damages to the unsuccessful bidder. But there are two reasons why I regard the point as ultimately unpersuasive on the balance of convenience in this case. The first is that I respectfully agree with Stuart-Smith J’s comments noted at paragraphs 26 and 27 above. The second is that it butts up against another obvious public interest, namely that the NHS should provide the best possible service to the public without disruption and with minimal risk to its patients. Public interest in proper procurement does not become irrelevant, but it has to be seen in its proper context.”

  • Lancashire Care NHS Foundation Trust & Anor v Lancashire County Council [2018] EWHC 200 (TCC) (Fraser J)

    View Case

    Region: England and Wales

    Suspension Lifted? No High Court maintains suspension on award of the 0–19 Healthy Child Programme (Lot 1) public health nursing services NHS contract.

    (Fraser J)

    Background

    • Tender process commenced / ITT published: 29 September 2017
    • Tender decision / outcome notified: 27 November 2017
    • Proceedings issued (triggering automatic suspension): 14 December 2017
    • Claimants’ disclosure application issued: 29 December 2017
    • Defendant’s lift application issued: 9 January 2018
    • Hearing of lift application (and disclosure application, but disclosure compromised and time used for lift): 25 January 2018
    • Oral decision given (refusing to lift suspension): 25 January 2018
    • Judgment handed down (written reasons): 8 February 2018

     

    Key Factors

    • Damages not an adequate remedy for the claimant Trusts (incumbent NHS providers providing children’s public health/nursing services). Losing the contract would trigger major service reorganisation and restructuring of “pathways” (not just normal commercial disruption), with consequential effects on the Trusts’ wider provision of children’s health services.
    • Lifting the suspension would lead to the loss of skilled and senior staff managing children’s services across contracts, reducing the Trusts’ ability to maintain other children’s health contracts (losses not compensable in damages)
    • Damages would be an adequate remedy for the defendant Council; the financial differential between the Trusts’ and Virgin’s bids was very small (“almost identical”), and in any event services would continue uninterrupted pending trial so the Council’s loss would be a largely accountancy-type calculation after the event.
    • Balance of convenience overwhelmingly favoured maintaining the suspension given the importance of the services and the short time since the procurement began.
    • Expedited trial availability supported maintaining the suspension.

     

    Adequacy of Damages 

    “[39] In my judgment, the fact that the incumbent providers of the Services are NHS Trusts is an important factor. Any incumbent provider of any service who is then unsuccessful in a procurement competition for those services will face inevitable reorganisation of its business as a result of that lack of success. Such reorganisation will (very often but not invariably) involve redundancies. However, here, the reorganisation is not just to the staff, or even in relation to the provision of Services to children. The evidence served for the Trusts makes it clear that the Trusts only recently restructured their operations to deliver these Services, and if they lose the procurement the Trusts will have significantly to restructure their operations a second time. This is a restructuring of delivery of healthcare across the population, and what are called “pathways” which are delivery routes through which healthcare is supplied. In addition to the cost and disruption that will cause – which I find would be considerable — the loss of the Contract will make it more difficult for the Trusts to deliver other similar public services which they are contracted to deliver, and these will require new pathways to care to be developed. All of this reorganisation is different to the staff situation, which in a sense is inevitable (or to put it another way, is an inevitable consequence for any incumbent bidder of having lost the bid). The impact upon the provision of healthcare as a whole to those in the catchment areas of the two Trusts is said to be considerable and I accept that.

    [40] A financial cost has been placed by the Trusts on some of these effects – indeed, a specific figure of £2.085 million is given by Ms Giles as lost funding for sustainability and transformation. However, that is not the entirety of the consequences and it is clear to me, on the evidence, that the effect upon both the Trusts goes far wider than simply those aspects to which a money figure can be attributed. For example, Ms Tschobotko states that the loss of skilled staff -which she estimates at 160 people – will result in a reduction in the ability of her employer, the Second Claimant, to maintain other contracts for other children’s health services in addition to the ones the subject of the procurement challenge. It is undoubtedly the case that lifting the automatic suspension would also result in the loss of senior staff who currently manage the full range of children’s services provided across all contracts. These are precisely the sort of effects, in my judgment, that cannot be compensated for by damages. There will be a significant impact upon the operational activities of the two Trusts, and as a result, upon the quality of healthcare generally which they provide.

    ….

    [41] On the other hand, damages would be an adequate remedy to the Council. Given the very slim difference in the costs of provision of the Services by the Council compared to Virgin, the successful bidder, the financial differential would in any event either be small or non-existent. But even if that were not the case, the actual services would remain uninterrupted up to the date of the judgment in the proceedings, and there would be essentially an accountancy-type exercise to compare and compute the financial loss after a trial. That is an entirely different matter, and of a different nature, to the damage that would be caused to the Trusts were the suspension to be lifted and the Trusts succeed at trial.”

     

    Balance of Convenience

    “[42] I consider the inadequacy of damages to the Trusts to be conclusive on this application. However, in case I am wrong about that, I will also provide my short conclusions on the issue of balance of convenience. Mr Williams for the Trusts also argues what he calls “proportionality” in considering that balance. Whichever way it is expressed, the balance is overwhelmingly in the Trusts’ favour on this point too, when taking account of all the evidence. The only point in the Council’s favour is its stated intention and preference to bring Virgin on board as soon as possible, together with the mobilisation period required by that provider. However, the whole procurement exercise itself was only initiated in September 2017. This procurement exercise has been conducted to a very brisk timetable indeed. Given the nature of the Services, their subject matter, and the sector of the population for which they are provided (the children and young people of Lancashire) and the importance to the public interest of these Services, a desire by the Council to get on with the new contract (although entirely understandable) does not weigh much in the balance. That may appear a disparaging summary of the Council’s case, but in essence that is what their evidence amounts to. On all the material before me, the balance of convenience is overwhelmingly in the Trusts’ favour. To adopt a phrase used by Chadwick J (as he then was) in Nottingham Building Society v Eurodynamics Systems [1993] FSR 468, maintaining the suspension is a course that has “the least risk of injustice”. That dicta was adopted and approved by Coulson J at [14] in Sysmex. There will be no break at all in the provision of the Services as the Trusts will continue to provide them, and has undertaken to do so. In my judgment, the least risk of injustice is clearly to maintain the automatic suspension.

    [43] There is a further factor that is available to be put in the balance in the Trusts’ favour as well, which was not known to the parties before the hearing of the application. That is that the court is able to offer the parties an expedited trial. Such an approach should not be used by the court as an easy way out, and is not being used as such on this application. Other litigants in other cases have a legitimate expectation that their trials will be heard without undue delay, and an expedited trial will sometimes have an effect upon the other business of the court. However, procurement challenges do occasionally throw up disputes of considerable public importance in terms of their subject matter, where urgency is justified. In my judgment, this is one of those cases and this trial can be brought on in a very few months – indeed, almost as soon as the parties themselves can be ready to conduct such a trial. That too is a point in favour of refusing to lift the automatic suspension.”
  • DHL Supply Chain Ltd v Secretary of State for Health [2018] EWHC 2213 (O'Farrell J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes. High Court lifts suspension on £730m NHS contract for logistical services

    (O’Farrell J)

    Background 

    • Procurement published in OJEU: 29 August 2017
    • Award decision notified: 4 June 2018
    • Proceedings issued by DHL (triggering automatic suspension): 26 June 2018
    • Particulars of Claim served: 2 July 2018 (and amended 13 July 2018)
    • DHL summary judgment application issued: 3 July 2018
    • Lift application issued: 10 July 2018
    • Defence served: 27 July 2018
    • Reply served: 1 August 2018
    • Hearing of the applications (lift + summary judgment): 7 August 2018
    • Judgment handed down: 17 August 2018

     

    Key Factors

    • Damages not adequate for the Claimant (significant reputational effect)
    • Damages not adequate for the Defendant (disruption to the NHS’s future operating model (“FOM”), which sought to save £600m a year)
    • A very speedy trial was unlikely to be possible
    • Strong public interest in favour of lifting:
      • savings;
      • all other components of FOM in place;
      • necessary to start transition to new contract;
      • contracting authority not at fault for 5-month delay in procurement timetable;
      • while public interest in avoiding having the contracting authority pay twice, it would still make significant savings;
      • ensuring compliance with EU law was to be decided at trial and was not a factor in the balance of convenience

     

    On the Adequacy of Damages 

    [47] I also accept Mr Jones’ evidence that DHL will lose a skilled workforce that is a valuable resource and the product of DHL’s investment and training. Those employees will have been engaged on the MSA but they will be lost to DHL through TUPE transfers. DHL will not benefit from their productivity on the new logistics contract and will no longer have them at its disposal to work on other projects. Although DHL will be able to go out into the market and recruit a new workforce, it will be at a disadvantage in the short term in bidding for other work. The damage suffered by the loss of this human resource will be very difficult to quantify and prove.

    …

    [52] DHL contends that damages would be an adequate remedy for DHSC. I accept Mr Leiper’s submission that any lost economic efficiencies and additional costs could be compensated for in damages. Although the issue of cross-undertakings was not dealt with in DHL’s witness evidence, DHL is a large, global company with considerable financial strength. Mr Leiper stated in his skeleton and confirmed in open court that appropriate undertakings could be provided by DHL.

     

    On the Balance of Convenience (possibility of an early trial)

    “55. The starting point in assessing the balance of convenience is to consider how long the suspension might have to be kept in force: DWF (above) at [50]. Mr Leiper seeks to persuade the Court that the parties could be ready for an expedited trial with a 1-2 day estimate in September or October 2018. This would reduce any prejudice to DHSC in maintaining the suspension pending resolution of the dispute. However, the position of Ms Hannaford and Ms McCredie is that a reasonable estimate would be 3 days and that it is unlikely that the parties would be ready for trial before October or November 2018. I note that an application for an expedited hearing was made by DHL and rejected by the Court at the hearing on 12 July 2018. I consider that it is unlikely that the parties could be ready for a trial before October/November 2018, particularly as I understand that disclosure will be required but has not started and there are material issues of factual evidence that will need to be addressed, as identified in respect of the summary judgment application. Even if the Court could give a judgment shortly after the hearing, realistically, it would not allow the current FOM implementation deadlines to be met.”

     

    On the Public Interest 

    [57] Firstly, the public interest would be served by the timely introduction of the FOM reforms. The date for the introduction of “buy price equals sell price” and elimination of a “cost plus margin” approach for all Category Towers is 1 April 2019. That reform will provide greater transparency and value for DHSC throughout the service. The anticipated savings will free up scarce resources from the supply chain and release funds for patient care. The planned expansions of the logistics services will enable DHSC to meet the increased supply demand and the challenges of Brexit. 

    [58] Secondly, all components necessary for the FOM are in place save for the logistics contract. DHL contends that the other contracts could go ahead but that ignores the inter-dependency explained by Mr Sahota in his evidence. The new procedures need to be introduced across all components. The new IT system needs to be installed and integrated between the SCCL and each contractor. The new HDS centre and other warehouses need to be connected to the new IT system. Without all parts of the system in place, the FOM will not function as an integrated and effective supply chain, and the ability to deliver the anticipated savings and efficiencies will be impeded. 

    [59] Thirdly, the ITT documents provided for a transition period of 6 months for handover to the new logistics contractor. The tasks involved in the transition are set out by Mr Sahota in his first witness statement. They include the TUPE consultation and transfer of staff, recruiting and training staff, and setting up the HDS warehouse management system. Claire Walters, Chief Commercial Officer of Unipart Logistics, provides further details in her first witness statement as to the nature and extent of the work required by Unipart during the transition period. Unipart indicated that it could reduce the transition period to 5 months but only if it undertook some of the required activities before contract commencement. DHL indicated that it could reduce the transition period to 5 months but only at the expense of meeting the specification. Thus, the consensus is that the transition period must start in September 2018 if it is to be complete and in accordance with the requirements of the specification when the MSA expires at the end of February 2019.  

    [60] Fourthly, there has been some delay to the procurement timetable but there is no evidence that DHSC was at fault in permitting the slippage. The procurement exercise covered 13 separate contracts with a collective value of £1.2 billion. In those circumstances, it is not surprising that some elements of the exercise took longer than planned. The delay of 5 months to date does not indicate that there is no urgency to meet the deadline for the FOM to be in place by the end of March 2019. 

    [61] Fifthly, there is a risk that if the suspension is lifted and DHSC is found to be in breach, the taxpayer will have to pay twice. However, the evidence of Helen Prandy, solicitor of Mills & Reeve, shows that, even if DHSC was required to pay Unipart for the logistics services and DHL for lost profits, it would still make significant savings over the existing arrangements. 

    [62] Finally, there is a public interest in ensuring compliance with EU procurement law. However, compliance is the very issue that the Court will have to determine at trial. Having rejected DHL’s case that it could be disposed of by way of summary judgment, this factor does not assist in assessing the balance of convenience pending such determination. 

  • Bombardier Transportation UK Ltd v Hitachi Rail Europe Ltd [2018] EWHC 2926 (TCC) (O'Farrell J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes High Court lifts suspension on award of £2.5 billion contracts for the manufacture and supply of 94 new Piccadilly Line trains and related equipment.

    (O’Farrell J)

    Background 

    • OJEU notice / procurement published: 4 March 2014
    • Outcome letters issued: 15 June 2018
    • Proceedings issued by the JV (Bombardier/Hitachi): 13 July 2018
    • Particulars of Claim served (JV): 27 July 2018
    • Proceedings issued by Alstom: 27 July 2018
    • Particulars of Claim served (Alstom): 3 August 2018
    • Applications to lift the automatic suspension issued by LUL: 5 September 2018
    • Defence served (JV): 7 September 2018
    • Defence served (Alstom): 14 September 2018
    • Application for expedited trial issued (Hitachi): 27 September 2018
    • Hearing of lift / expedition applications: 17–18 October 2018
    • Judgment delivered: 2 November 2018

     

    Key Factors 

    • That there was a serious issue to be tried was conceded; the Court would not conduct a mini-trial to weigh the merits at this interlocutory stage.
    • Damages likely not adequate for the claimants (reputation/prestige + quantification difficulties), though this did not decide the application.
    • Damages also likely not adequate for LUL (non-financial/public-benefit detriment), and for Siemens (mobilisation/supply-chain disruption)
    • Expedition was refused; the suspension would last a long time and therefore cause major delay
    • Public interest and service impact strongly favoured lifting. There was a strong public interest in introducing the new trains as soon as possible and further delay was not justified.
    • Overall balance of convenience favoured lifting

     

    Adequacy of Damages 

    “[58]Each case must be considered on its own facts. In most cases, unsuccessful bids are part of the normal commercial risks taken by a business and will not have any adverse impact apart from potential wasted costs of the tender and lost profits. Not every failed bid will result in damage to reputation causing uncompensatable loss. There must be cogent evidence showing that the loss of reputation alleged would lead to financial losses that would be significant and irrecoverable as damages or very difficult to quantify fairly:Alstom Transport v Eurostar International Ltd[2010] EWHC 2747per Vos J at [129];NATS(above) at [84]-[85];DWF(above) at [52];Openview(above) at [33]-[40];DHL v Secretary of State for Health and Social Care[2018] EWHC 2213at [45] & [46].”

    …

    “[75] I consider that the claimants’ suggestions for re-programming are unrealistic.  LUL and Siemens are entitled to decide not to carry out full mobilisation activities, if the suspension is maintained pending a determination by the Court as to the lawfulness of the contract award. It is fanciful for the claimants to suggest that a project of this scale can be re-sequenced to fit around their legal challenge. The project has taken years to plan, the manufacturing and supply lines have been integrated to meet the timetable and there are limited facilities to accept delivery of trains out of sequence. It would be reckless to remove contingency from the outset of a project of this scale and complexity. Even more wishful is the suggestion that the testing of new trains which incorporate innovative designs could be curtailed. Such measures would introduce unnecessary risks into a vast, expensive public infrastructure undertaking.

    [76] Having rejected the suggestion that delay in implementation of the project could be avoided if the suspension were not lifted, it follows that LUL would suffer non-financial losses as explained by Mr Hughes.

    [77] On that basis, it is likely that damages would not be an adequate remedy for LUL if it were to succeed at trial.

     

    Balance of Convenience

    “[87] I reject that submission as wrong in principle and on the facts. The balance of convenience test in American Cyanamid is intended to identify the course of action that should be taken by the Court at an interlocutory stage that will cause the least risk of injustice if it proves to be wrong. The balancing exercise is required because at the interim stage the Court does not know what the final outcome will be. In this case, if the procurement had to be re-run at the end of the trial, it would be in circumstances where the Court found that LUL had acted unlawfully and the appropriate remedy for such unlawfulness required the award of the contracts to be set aside (as opposed to limiting the claimants to a remedy of damages). In those circumstances, an interlocutory decision to maintain the suspension would be proved to be correct. It would be wrong in principle for the Court to grant on an interim basis a remedy that it would not be prepared to grant on a final determination of the dispute.”

    …

    “[96] The evidence produced by LUL establishes that there is a strong public interest in introducing the new trains as soon as possible and decommissioning the old stock. Maintaining the suspension is likely to cause years of delay to the works. The public benefit has already been deferred as a result of the collapse of the PPP. Further delay is not justified in this case.“

     

     

  • Central Surrey Health Limited v NHS Surrey Downs CCG [2018] EWHC 3499 (TCC) (Waksman QC)

    Region: England and Wales

    Suspension Lifted? No. High Court maintains suspension on NHS contract for adult community services

    (Waksman QC)

    Background

    • TT date: 1 October 2017
    • Consortium bid submitted: 27 November 2017
    • Bid accepted (subject to pre-conditions): 6 February 2018
    • Epsom notified CCG the joint venture would not proceed (CSH could not agree terms with others): 5 July 2018
    • Claim form issued: 10 August 2018
    • CCG proposed the suspension be lifted (by correspondence): 16 August 2018
    • CCG’s application to lift the suspension made: 14 September 2018
    • CSH’s application for an expedited trial issued: 2 October 2018
    • Applications heard and judgment delivered: 17 October 2018

     

    Key Factors

    • There was only one bidder, a consortium
    • The claimant, CCG, had initially been part of the consortium, but was not ultimately part of it and it claimed that due to its exit from the consortium, there was a material change to the successful bid
    • Held, after detailed analysis, that there was a serious issue to be tried
    • Damages would not be adequate for the Claimant: difficult to quantify; knock-on effect on other projects; other contracts affected due to model of pooling staff
    • Inadequacy of damages much more significant for the Claimant than the Defendant
    • Balance of convenience favoured maintaining the suspension; expedited trial to take place
    • Cross-undertaking in damages required from the Claimant to cover Defendant and successful tenderer

     

    Serious issue to be tried

    “[55]  Therefore, in relation to serious issue, I conclude that there is clearly a serious issue to be tried, which includes a real prospect of success so far as CSH’s claims are concerned in respect of (1) whether under Regulation 76(2) or by reference to the general principle of equal treatment, an economic operator in the position of CSH can claim to be a beneficiary of that principle; (2) whether there has been a material change, not merely of the original tenderer but in the tender as a result of CSH’s departure; and (3) what CCG in those circumstances should have done was to commit CSH to compete with the Reduced Consortium by giving it the opportunity either to make representations as to why it should have the contract or, more likely in my view, run a fresh procurement exercise so that CSH, among others, could have an opportunity to bid in the changed circumstances resulting from its earlier exclusion. Nor do I consider that this is a case where the claim is so obviously weak, albeit one that discloses a serious issue, that it infects its position on the other American Cyanamid principles, as it were. You cannot say here that the strength of one party is disproportionate compared to the other, which was how the matter had been put in the authorities. It is not the case here that there is disproportionate strength.”

     

    Adequacy of damages

    [57] The short point is that there could be a real and disruptive effect upon CSH’s remaining businesses and operating finances but which it will be very difficult, if impossible, not to quantify and, in addition to that, unquantifiable losses to the community in which it has actively served over the last 12 years, in some of which respects I have referred to above. One answer to this point proffered by CCG is to say that if this form of argument was accepted, it would or could apply to most procurement claims where they are made by an incumbent provider of the relevant services, such that the suspension would never be lifted because damages would always be an inadequate remedy. With respect, that point seeks to prove far too much. In any given case, the impact of the loss of the relevant contract for an incumbent or not is highly fact-sensitive. If it is one of a large array of contracts operated by the relevant claimant, especially if it is a commercial venture, then the issue of damages may be relatively straightforward. But where there are far fewer contracts, where they are all connected because of the way in which resources and staff are deployed across them, the position may be radically different. Again, each case here must turn on its own facts. That is especially so, given the need for CSH to restructure and find new contracts while simultaneously having to manage a migration of some of its staff to the Reduced Consortium, if that happens, and would need to find staff to replace them. These are all real losses and calls on its time and money, but very hard to quantify….”

    “[58]…. So far as reputation is concerned, I accept that this is not a case where CSH will be shown to have been “sacked” from its incumbent contract because of defects in performance, but it still could be perceived as a party which did not obtain the new contract and any explanation of that is not straightforward because it turns on why it did not bid for the contract in the first place and why, on this hypothesis, the suspension was– and why, because the suspension was lifted, it did not obtain it later on. Despite its range of paid and unpaid activities, CSH is still a relatively small organisation which will have to rely upon its track record of contracts to date in order to obtain further contracts. Indeed, Mr Caplan argued that this was the position when it had sought and obtained the children’s services contract on the back of its record of the two adult services contracts. So I do consider that there is a valid loss of reputation at point in this case which will be difficult, if not impossible, to quantify”

    …

    “[61] I then turn to the adequacy of damages for CCG. This was originally put on three bases: (1) lack of any or any adequate cross-undertaking from CSH; (2) unquantifiable loss due to delay in the introduction of patient benefits planned in the new contract; and (3) delay to promised investment. As to the lack of sufficient cross-undertaking, this has now been resolved. CSH is in the financial position to offer a suitable undertaking, especially as the time to trial is now a little over three months. As to delay in the expected patient benefits, I accept that, taking the view that the new contract would confer patient benefits over and above those which exist under the current system – and CSH accept that there may be such benefits – there could well be an unquantifiable loss resulting from the fact that if the suspension remains, but CCG wins at trial, the introduction of the new scheme will be delayed. I am less persuaded by the somewhat alarmist suggestions that a particular effect of this delay in the hoped-for reduction of hospital admissions because patients would be cared for or treated in the community is that there may be, as a result, a number of patient illnesses or deaths which would not otherwise have occurred. This is on the basis of the risks, particularly to the elderly, from infections which may be acquired during a stay in hospital. Certainly at that stage I would not regard such– I regard such outcomes over a three-month period as very speculative. But I accept that in general terms there may be an unquantifiable loss for the delay in introducing the new scheme by reference to expected patient benefits generally.”

     

    Balance of convenience

    “[68] Accordingly, I am of the clear view that on the facts of this case, the balance of convenience clearly favours the maintenance of the suspension until trial. I mentioned a cross-undertaking in damages. This means that, as part of a condition of continuation of the suspension, CSH must give a cross-undertaking to CCG. I will discuss with counsel hereafter the form of any cross-undertaking. As to the position of Epsom itself and whether it should be specifically included as a beneficiary of the cross-undertaking, I agree that it is a third party who may very well be affected by the suspension and under normal principles it would be entitled to be indemnified by CSH as to any losses it had incurred by reason of the operation of the suspension. As a matter of general principle, CSH accepts this but contends that this case is different because Epsom is not an innocent third party who has simply found itself caught up in these proceedings and, with them, the suspension. Instead, it was and remains a protagonist as against CSH and was responsible for CSH’s ejection from the Consortium in the first place. CSH prays in aid the very late notice of Epsom’s application in this regard as a reason why it did not have the time to develop, by evidence if necessary, its opposition to Epsom’s inclusion within the cross-undertaking on that basis.

    [69] I see all of that, but in my judgment, there is enough in Epsom’s case here for me to decide that it should have a degree of protection. This can be easily done because it projects its monthly losses in terms of costs, which it will inevitably incur while waiting for the outcome, at about £30,000 per month. I consider that Epsom should, therefore, be protected by the cross-undertaking but up to a maximum of £100,000. That can be the subject of variation if the circumstances materially change thereafter. That amendment is well within CSH’s financial resources.”
  • Circle Nottingham Ltd v NHS Rushcliffe Clinical Commissioning Group [2019] EWHC 1315 (TCC) (Edwards-Stuart J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes High Court lifts suspension on award of a £320m medical services contract for the Nottingham Treatment Centre.

    (Edwards-Stuart J)

    Background 

    • Contract Notice published in OJEU: 2 October 2018
    • Notification of decision: 4 December 2018
    • Claim form issued, triggering the automatic suspension: 10 January 2019
    • NUH Trust notified the Defendant of a material change in its financial circumstances: 16 January 2019
    • Fresh standstill letters issued following the financial/sustainability re-evaluations: 5 March 2019
    • Amended Particulars of Claim served: 27 March 2019
    • Defendant sought agreement to lift the suspension: 28 March 2019
    • Defendant’s application to lift the suspension: 9 April 2019
    • Hearing of the lift application: 15 May 2019
    • Judgment delivered: 17 June 2019

     

    Key Factors

    • That there was a serious issue to be tried was conceded.
    • Damages were an adequate remedy for the Claimant (no credible link between any reputational damage to the Claimant and future commercial repercussions and TUPE/reundancy-type consequences were treated as quantifiable as part of a damages claim).
    • ‘Sufficiently serious breach’ risk was neutralised by a concession; ‘No damages remedy’ was not a reason to maintain the suspension.
    • Balance of convenience could not be resolved on the evidence (conflicting patient-safety/transition evidence)
    • If the suspension was maintained, it could be 18 months before satisfactory arrangements could be made for NUH to take over; practical reality reinforced lifting the suspension.
    • Least irremediable prejudice lay in preserving the status quo i.e letting the existing contract run to its expiry.

     

    Adequacy of damages 

    “[40] It seems to me that these observations are pertinent to the present application and they reinforce my view that if a commercial undertaking chooses to carry out its operations through a series of special purpose vehicles, it cannot really complain if that carries disadvantages as well as advantages. Further, to answer Mr Coppel’s threshold question, in my judgment it is the position of the Claimant that must be considered on this application, and not the position of the Circle Group or the Circle brand. No other Circle Group company is a party to this litigation. Ms McCredie did not really have a direct answer to this point: what she said was that “the world doesn’t just look at the Claimant – it associates it with the group as a whole“. I am prepared to accept in principle that this may be so, but it still requires the court to assess how this might affect the Claimant in the circumstances of this case and whether it will do so in a manner that cannot be compensated by damages.

    [41] What is missing from the Claimant’s evidence on this application is any link between damage to the reputation of the Claimant itself (to the extent that the evidence establishes that there is any) and its effect on the Claimant’s future commercial operations. For example, there is no evidence that, had the Contract been renewed, the Claimant would – on the back of it – have sought additional opportunities to provide medical facilities at sites other than the NTC – for example, by establishing additional similar treatment centres in other parts of the country. This is quite different from the position in some of the cases mentioned below in which the loss of reputation allegedly suffered by a company resulting from the failure to secure a valuable contract was said to matter because it was regarded as likely to have an adverse effect on the ability of that company to win future business.”

    ….

    “[56] Having considered all the evidence and the arguments advanced by each party, my conclusion is that no head of loss has been identified by the Claimant that could be attributed to the loss of the Contract and for which the Claimant would not be properly compensated by an award of damages. As I have mentioned, the Claimant will, I assume, suffer a loss of profit as a result of not winning the renewal of the Contract and may possibly, in addition, suffer other losses such as expenditure thrown away or the value of equipment that has to be discarded and which cannot be sold. However, there has been no suggestion that there might be any insuperable difficulty about calculating that loss of profit or any other losses of the type I have mentioned and I cannot see any reason why a claim for damages should not be adequately and fairly assessed by the court.”

     

    Balance of Convenience

    “[87] In my judgment, the Court is in a not dissimilar position here. Although I have the concerns that I have already set out, I am not in a position to conclude which party’s evidence is more likely to be right or where the balance of convenience really lies. I think that I must assume that the witnesses putting forward the Claimant’s case genuinely believe that the patients’ interests are paramount and are reflected in the views that they have expressed, and that the witnesses for the Defendant and the NUH Trust have done the same. There are no obvious flaws in either side’s approach, even though I do have some reservations about the feasibility and robustness of the NUH Trust’s mobilisation plan.

    [88] I must assume, in the absence of any agreement to the contrary, that if the suspension were to be lifted the Contract will come to an end on 28 July 2019. Although there have been proposals and counter proposals, I cannot assume that arrangements will be put in place to extend the Contract for a few months in order to ensure that there is an orderly changeover.

    ….

    [90] I accept that it is not in the public interest for the taxpayer to pay twice over for the same service. However, in any case where the breach is sufficiently serious to justify an award of damages this is, at least to some extent, an ordinary consequence of the operation of the PCR^[1]. Since this duplication is potentially built in to the legislative scheme (if there is a serious breach), I consider that it must have been considered to be a price worth paying in order to achieve proper compliance with procurement legislation. But I accept that there will be cases, such as Covanta, where the price may be unduly high, in which case I would accept that it can become a factor which can properly be taken into account. However, there is no evidence which persuades me that this point should carry any significant weight in this case.”

  • Neology UK Ltd v Newcastle-upon-Tyne City Council [2020] EWHC 2958 (TCC) (Kerr J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes High Court lifts suspension on award of contract for the provision and maintenance of an automatic number plate recognition (ANPR) system to enforce the Tyneside Clean Air Zone.

    (Kerr J) 

    Background 

    • Invitation to Tender issued: February 2020
    • Award letters issued: 24 June 2020
    • Claim issued (Neology): 26 June 2020
    • Particulars of Claim filed (triggering the automatic suspension): 3 July 2020
    • Newcastle’s application to lift the automatic stay: 24 August 2020
    • Neology’s summary judgment application issued: 28 August 2020
    • Hearing of the applications: 21–22 October 2020
    • Judgment handed down: 6 November 2020

     

    Key Factors

    • Damages were an adequate remedy for Neology; evidence that losing this one contract would drive Neology out of the CAZ market was unconvincing and unsupported by financial documents. The contract/sums at stake were modest and not comparable to ‘prestige/colossal value’ procurement cases.

    • Public interest in implementing the mandatory CAZ was the decisive factor; more likely than not that leaving the stay in place would delay the CAZ, and that earlier implementation was in the public interest because it would mean cleaner air sooner

    • Keeping the stay risked delay because trial/judgment/appeal timing was uncertain

    • Merits were not strong enough to justify summary disposal; the claim had serious issues to be tried but did not come close to the “knock‑out” threshold, and the merits appeared “quite weak” at that stage.

     

    “[132] I accept that it is not easy for the court to quantify Neology’s damages claim; though Neology itself has managed to put a figure on it, slightly in excess of £1 million. It is often difficult to assess the quantum of a damages claim for loss of a business opportunity or lost future profits. That difficulty does not absolve the court from quantifying the claim as best it can, if liability is established. Nor does the difficulty, alone, mean that damages are inadequate as a remedy.

    [133] I accept Mr Barrett’s contention that the amount of business at issue here is modest, as are the sums involved and the quantum of the claim. I agree with him that those sums and this contract are in no way comparable to the business that stood to be lost in cases such as Alstom Transport, NATS (Services) Ltd and Bombardier.

    [134] I accept that there is some loss of respect in the marketplace where a tender is unsuccessful. Not winning a tender is always a setback for a business. But this is not a case where this contract is the only CAZ contract which Neology could, potentially, obtain. If at trial it transpires that it was wrongly shut out from this contract, it will be able to point to that fact within a year or so, will have been vindicated by the court’s judgment and will be compensated in damages.

    [135] I conclude without any great difficulty that this case falls the other side of the line from the cases where the procurement is prestigious and internationally famous and involves vast sums of money on a different scale from the sums at stake in the present case. In my judgment, and essentially for the reasons submitted by Mr Barrett, Neology does not persuade me that it is unjust to confine it to its remedy in damages.

    [136] That is sufficient to dispose of the application to lift the automatic stay. If it were necessary to do so, I would also accept Newcastle’s arguments in support of its proposition that damages would not be an adequate remedy for it, Newcastle; and that if the balance of convenience and justice is considered, the public interest in achieving implementation of the mandatory CAZ on Tyneside is the decisive factor supporting the lifting of the stay.”

    ….

    “[138] I think it is more likely than not that leaving the stay in place would delay the CAZ, i.e. that it will be implemented more quickly if the stay is lifted. I think that is in the public interest for a very obvious reason; the sooner the CAZ is implemented, the cleaner the air will be in the Tyneside area, even if some of the nitrogen dioxide is relocated rather than eliminated altogether.

    [139] I am not impressed, on the facts as they appear to me at this stage, by the argument that Newcastle is likely to have to pay twice over in respect of this procurement. That will only be so if the damages claim succeeds at trial. I have already decided that the merits do not come close to the threshold required for summary judgment. At this stage, the merits appear quite weak.

    [140] For those reasons, again substantially reflecting Newcastle’s arguments, I would not be willing to leave the automatic stay in place even if I had been of the view that damages were not adequate as a remedy for Neology. In several of the cases where that latter conclusion has been reached, the court has still refused to leave the stay in place because of a public interest in the procurement proceeding and the services being provided timeously. This is also such a case.”

     

  • Aquila Heywood Ltd v Local Pensions Partnership Administration Ltd [2021] EWHC 114 (TCC) (Pepperall J)

    View Case

    Region: England and Wales

    Suspension Lifted? NA High Court held that, in Aquila’s challenge to LPPA's award of a single core pensions administration IT system, the automatic suspension only restrained LPPA from contracting pursuant to the original challenged award decision. Once LPPA withdrew that decision and made a fresh award decision, the suspension fell away and did not continue to prevent contracting.

    (Pepperall J)

    Background

    •  LPPA issued the invitation to tender for a single core pensions administration system (max 10 years): 10 July 2020
    • Aquila submitted its bid: 14 August 2020
    • LPPA issued its first award decision (Civica successful): 14 September 2020 (standstill to expire 15 September 2020)
    • LPPA extended the standstill period to 25 September 2020: 15 September 2020
    • Aquila issued proceedings challenging the September award decision: 2 October 2020
    • LPPA conceded evaluation/record-keeping errors and “rewound” the procurement, withdrawing the first award decision and re-evaluating tenders: 14 October 2020
    • LPPA filed and served its Defence: 6 November 2020
    • LPPA issued its second award decision (Civica again successful); 8 December 2020 (standstill to 18 December 2020)
    • LPPA sought Aquila’s consent to lift any automatic suspension: 10 December 2020
    • Aquila offered to discontinue if LPPA paid its costs: 14 December 2020
    • LPPA issued application to lift/bring to an end any automatic suspension (costs then became the live issue): 18 December 2020
    • Hearing: 19 January 2021
    • Judgment delivered: 25 January 2021

     

    Key Points

    • Although primarily a costs decision, there are a number of important takeaways with regards to the automatic suspension regime
    • Automatic suspension is triggered when the 3 conditions in Regulation 95(1) are met (claim form issued re a decision to award, the authority is aware, and the contract has not been entered).
    • Even if the procurement falls within a Regulation 86(5) exemption (e.g award under a framework agreement, so no mandatory standstill notice/period), Regulation 95 is still engaged if its own conditions are met.
    • The ‘scope’ of the automatic suspension: it restrains contracting only ‘pursuant to the challenged decision’. This construction of Regulation 95 balances contractual freedom with protection for challengers.
    • If the authority withdraws the challenged award decision and re-evaluates, the automatic suspension (properly construed) ‘serves no further purpose’
    • A second (fresh) award decision must be challenged to trigger a new suspension

     

    Practical consequences for litigants

    • A claimant who wants to stop contracting after a “rewind” must plead a challenge to the new/second decision in time (fresh claim or amendment), otherwise the original Regulation 95 suspension will not prevent contracting.
    • Costs/strategy: even though Aquila was treated as the successful party (because the lift application was unnecessary on the court’s construction), the court reduced its costs because Aquila’s conduct included inconsistent positions about whether the suspension prevented contracting.

     

    On the interpretation of regulation 95

    “[19] Mr Suterwalla argues that regulation 95 should be construed in the overall context of the statutory scheme and that the purpose of the automatic suspension under regulation 95 is to afford economic operators an additional interim remedy beyond the expiry of the standstill period. Accordingly, he argues that regulation 95 is simply not engaged in a case such as the present which falls within the exemption under regulation 86(5). Thus, he submits that there never was a suspension in this case following the issue of proceedings in October. I did not call upon Ms Sloane to respond to this argument which, in my judgment, is obviously untenable:

    19.1 First, there is nothing in regulation 95(1) to limit the automatic suspension to cases not falling within one of the exemptions to regulation 86(1).

    19.2 Secondly, the automatic suspension plainly arises where the three conditions enumerated in regulation 95(1) are met. There is no doubt that those conditions were met upon LPPA’s becoming aware of the issue of Aquila’s claim, and it is impossible to read into the regulation some further requirement that the case did not fall within an exemption to regulation 86(1).

    19.3 Thirdly, even if I am wrong as to the first and second points, regulation 86(5) does not prevent a contracting authority from giving notice pursuant to regulation 86(1). Indeed, in this case LPPA elected to do so and specified a standstill period.

    19.4 Fourthly, there is in any event no reason of principle or policy why regulation 95(1) should not apply in a case that is exempt from the obligation under regulation 86. Of course, if no standstill period is allowed because the case falls within such an exemption, it is axiomatic that it will be less likely that the unsuccessful bidder will be able to move quickly enough to issue and give notice of a claim before the award of the contract. That is not, however, a reason for reading into regulation 95(1) some additional requirement beyond those expressly identified by the draftsman.”

    …

    “[22] In my judgment, the natural reading of regulation 95(1) is that it prevents the contracting authority from entering into the contract pursuant to the challenged decision. Such construction is supported by the terms of regulation 95(2) since there is no need for the third category of case postulated by Ms Sloane if the authority is only required to refrain from contracting pursuant to the challenged decision.

    [23] I consider that my preferred construction sits well with the scheme of the regulations. On such construction, the automatic suspension under regulation 95 is limited so that it prevents the authority from contracting on the basis of the challenged decision. I consider that a construction of the regulation which does not limit the authority’s freedom to enter into a contract where no other party has pleaded a claim challenging the decision to award such contract is entirely consistent with the underlying policy of the regulations, namely to strike a fair and sensible balance between the authority’s contractual freedom and the need to protect economic operators seeking to challenge the lawfulness of the procurement exercise. Should wider protection be necessary, the court has jurisdiction under regulation 96 to make some alternative order.”

    …

    “[25] Accordingly, I conclude that upon the proper construction of the 2015 regulations, the suspension in this case only prevented LPPA from awarding the contract to Civica pursuant to the September decision. Once that decision had been withdrawn and the bids re-evaluated, it served no further purpose. Where, as here, no challenge was pleaded to the second decision to award the contract either by way of a fresh claim form or amendment to the initial proceedings, the contracting authority was not required to refrain from entering into a contract pursuant to such second decision. This was therefore an unnecessary application pursuant to regulation 96(1)(a).”

     

    On costs

    “[27] Aquila was therefore the successful party. Rather than, however, simply assert that LPPA was free to enter into a contract with Civica, Aquila initially sought to withhold its agreement to such course as a bargaining counter in its attempt to achieve a satisfactory settlement of the issue of costs upon its intended discontinuance of the underlying claim. It failed either to agree from the outset that LPPA was free now to contract with Civica or sign a simple consent order to that effect. It inconsistently and inaccurately asserted that the suspension prevented LPPA from contracting before subsequently, when it then suited Aquila after the application had been issued, arguing that the application had in fact been unnecessary. That is, in my judgment, conduct that the court should take into account pursuant to rule 44.2(4) of the Civil Procedure Rules 1998. I therefore award Aquila half of its costs.”

     

  • Vodafone Limited v Secretary of State for Foreign Commonwealth and Development Affairs [2021] EWHC 2793 (TCC) (Kerr J)

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    Region: England and Wales

    Suspension Lifted? No High Court maintains suspension on award of £184m framework agreement for network integration services (ECHO 2)

    (Kerr J)

    Background 

    • Procurement commenced (OJEU notice): 3 June 2020
    • Invitation to Submit Initial Tenders issued: 3 September 2020
    • Contract award decision notified: 22 July 2021 (standstill to 2 August 2021)
    • Challenge brought: 3 August 2021
    • Particulars of claim dated: 16 August 2021
    • Defendants’ application to lift the automatic suspension: 9 September 2021
    • Defence served: 13 September 2021
    • Vodafone preliminary issue + expedition application issued: 28 September 2021
    • Hearing of the applications: 6 October 2021
    • Judgment handed down: 20 October 2021

     

    Key Factors 

    • Damages were not an adequate remedy for Vodafone (unquantifiable ‘loss of opportunity’ / reputational-commercial leverage). 
    •  ‘In the real world”, the availability of a January 2022 preliminary issue trial window was important; that possibility strengthened the conclusion that it would not be just to confine Vodafone to damages
    • Defendants’ “extreme urgency” case (security/transition) was overstated on the evidence (e.g., no specific threat linked to ECHO 1 obsolescence; the decision-making timetable did not look like one driven by acute security urgency).

    • Balance of convenience favoured maintaining the automatic suspension until a preliminary issue (on the lawfulness of an award on the basis of initial tenders, without further negotiation) had been tried on an expedited basis. While not perfect, it was a viable solution that caused the least irremediable prejudice, justifying keeping the stay in place pending trial.

    • The Court “modified” the stay to permit a conditional contract pending the preliminary issue outcome.

     

    Adequacy of damages 

    “[87] In the end, what helps to persuade me that it would not be just to confine Vodafone to its remedy in damages is the unquantifiable loss of opportunities to bid for and win other contracts on the back of this one. I do not accept that the evidence of this was vague and speculative, as the defendants suggested.

    …

    [90] Finally, I do not find it possible to ignore, in the real world, the availability of a preliminary issue trial window in January 2022, any more than O’Farrell J in the Draeger case ignored the availability of an early trial window. I will consider separately below the viability of the preliminary issue solution proposed by Vodafone. In considering the present issue, the possibility that it may be adopted strengthens the proposition that it would not be just to confine Vodafone to its remedy in damages.”

    …

    [109] I accept as a broad general and common sense proposition that the sooner ECHO 2 is implemented, the safer we in this country are likely to be because ECHO 2 is by its nature likely to protect against cyber attacks or erroneous disclosures more effectively than ECHO 1. I cannot make any detailed and nuanced appraisal of the extent to which that is so, but I accept it as a generality.

    [110] It follows that I accept, again as a broad general proposition but without being able to engage in any detailed technical comparison between the two systems, the logic that better protection of the defendants’ secure communications must equate to better protection of this country’s global reputation. The second proposition flows naturally from the first.

    [111] Other things being equal, I would therefore incline to the conclusion that damages are not an adequate remedy for the defendants if the automatic stay is kept in place, despite the undertaking in damages. It goes without saying that the security and reputation of the UK cannot be measured in money terms.

    [112] However, that is not the end of the matter. Again, the evidence of perceived threat levels and on timing must be taken into account. On the first point, it is striking that there is no evidence that any specific threat to security has been linked to obsolescence of ECHO 1. The evidence about threats of cyber warfare, such as it is, is generic and not linked to this procurement.

    …

    [117] I conclude that the extreme urgency asserted by the defendants is, on the evidence, not made out. The adequacy of damages for the defendants therefore comes back, again, to a question of timing. For a delay of a year or more in limbo, I would without difficulty find the undertaking in damages of little assistance. A delay of only four months or so may be a different matter.

     

    On the balance of convenience

    “[137] I come to my reasoning and conclusions on this issue. For reasons already touched upon, I am firmly of the view that which side the balance comes down depends on the viability of the preliminary issue solution proposed; if it is viable, in Vodafone’s favour; if it is not, in the defendants’ favour.

    …

    [186] I conclude that the defendants’ concerns are overstated and, while not a perfect solution, the preliminary issue is a viable solution and the one causing the least irremediable prejudice. I am satisfied that the matter is fit for expedition, applying the four tests in the WL Gore and Associates case. It follows that the balance of convenience and justice comes down in favour of maintaining the automatic stay until the preliminary issue has been tried.

    [187] However, I have also considered the court’s powers under regulation 96(1)(b) of the PCR 2015. It provides that, instead of bringing to an end the requirement (imposed under regulation 95) not to enter into a contract, the court may “… where relevant, make an interim order … (b) … modifying that requirement”. In the present case, I propose to make an order modifying the requirement to the extent that the defendants are permitted, in advance of the preliminary issue trial, to enter into a conditional contract with Fujitsu.”

  • Draeger Safety UK Ltd v London Fire Commissioner [2021] EWHC 2221 (TCC) (O'Farrell J)

    View Case

    Region: England and Wales

    Suspension Lifted? No. High Court maintains suspension on contract for respiratory protective equipment for London Fire Brigade

    (O’Farrell J)

    Background

    • Proceedings issued: 23 April 2021
    • Particulars of Claim: 10 June 2021
    • Application to Lift issued: 11 June 2021
    • Defence: 8 July 2021
    • Hearing of Lift Application: 14 July 2021
    • Judgment: 4 August 2021

     

    Key Factors

    • Damages not an adequate remedy for the Claimant
    • Though not unique or high value, contract being closely watched as setting the standard
    • Expedited trial available
    • Balance of convenience therefore favoured maintaining the suspension

     

    “[41] The evidence before the Court does not indicate that this procurement is unique or high value. However, it is being closely watched by a number of other fire and rescue services and is likely to be perceived as setting the standard for improved protective equipment in this sector. On that basis, it is arguable that, if the automatic suspension is lifted and Draeger is ousted from its position as the incumbent provider of breathing apparatus for LFB, it will suffer a loss for which damages are not an adequate remedy.”

    ….

    “[49] The public interest in the timely introduction of new protective equipment to implement operational improvements would be a very strong factor in favour of lifting the suspension. However, in this case, a significant factor is that the Court is able to offer the parties an expedited trial. When the matter was before the Court at the hearing on 14 July 2021, the Court could not accommodate a trial in October 2021, although it could have heard the case in December 2021. However, since the hearing, there have been settlements of other cases in the list and the Court can now offer a trial in October 2021 with the agreed estimate of 5 days.

    [50] It is recognised that this will cause some delay to the proposed procurement but the impact on LFB’s overall strategy will be limited.”

  • Kellogg Brown & Root Ltd v Mayor’s Office for Policing and Crime [2021] EWHC 3321 (TCC) (Smith J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes High Court lifts suspension on award of Mayor’s Office for Policing and Crime (MOPAC) £400m property services “integrator” framework and call-off contract

    (Smith J)

    Background 

    • Contract notice published (OJEU): 4 November 2020
    • Award Decision Notice issued: 3 August 2021
    • Claim Form issued (triggering automatic suspension): 27 August 2021
    • Particulars of Claim dated: 3 September 2021
    • Defence dated: 1 October 2021
    • MOPAC letter seeking consent to lift suspension: 7 October 2021
    • KBR refusal to agree to lift (response): 14 October 2021
    • MOPAC formal lift application dated: 20 October 2021
    • KBR expedited trial application dated: 8 November 2021
    • Hearing of lift/expedition applications: 18 November 2021
    • Judgment date: 9 December 2021

     

    Key Factors

    • That there was a serious issue to be tried was conceded; inappropriate to run a ‘mini-trial’ on the merits of the case at this interim stage.
    • Damages were an adequate remedy for KBR. In particular, the Court rejected KBR’s reliance on:
      • redundancies/TUPE-type impacts as making damages inadequate (treated as quantifiable/normal incidents)
      • portfolio/overheads/competitiveness impacts as too speculative and/or quantifiable
      • “reference contract” / future tender disadvantage as unsupported and not showing a real risk of uncompensatable future loss
      • reputational damage as not meeting the Openview criteria (no evidence of significant irrecoverable financial losses flowing from reputation)
      • The Court also rejected the argument that a speedy trial window could justify maintaining the suspension where damages are adequate
    • There was a serious risk damages would be inadequate for MOPAC; delay in implementing the technological/operational advances of the new system would likely cause non-financial prejudice that would be difficult to quantify
    • Expedition was refused, so maintaining the suspension would likely cause significant delay
    • Public interest and balance of convenience favoured lifting; significant delay would prevent MOPAC achieving the intended benefits/savings

     

    Adequacy of damages 

    “[84] As an overarching submission, Ms Hannaford sought to characterise MOPAC’s argument at this hearing as depending upon the proposition that KBR is a substantial company which seeks to make a profit and that accordingly damages must be an adequate remedy. She pointed out that this could not possibly be correct as its logical effect would be that (i) no substantial profit making company could maintain an automatic suspension and (ii) the automatic suspension would not be continued in any large procurement, as bidders taking part in such procurements are inevitably large companies which seek to make a profit.

    [85] However, as I have explained in the earlier paragraphs of this judgment, MOPAC’s argument was rather more nuanced. Ultimately, as I have already said, the outcome of every case will depend on its own facts, including (importantly) the strength of the evidence. Whilst it may be more difficult in cases involving very substantial commercial enterprises to establish that damages will not be an adequate remedy, it is always open to unsuccessful bidders to serve evidence which supports, say, a loss of reputation (as was the case in Bombardier); a case-specific reason (such as the procurement that was being closely watched by other fire and rescue services in Draeger and so was likely to be perceived as setting the standard for improved protective equipment); or “unquantifiable loss of opportunities” to bid for and win other contracts on the back of the lost contract (as was the case in Vodafone). In this case, however, KBR’s evidence fell short of what is required.”

    …

    [103] Ultimately, and for these purposes setting to one side the possibility of an expedited trial which I shall address in the context of balance of convenience, in my judgment the position is as follows:

    i) There is no real urgency in putting the Proposed Contract in place. It was always envisaged that the Current Contract could be extended;

    ii) If the suspension is not lifted, there will be a delay to the implementation of the services under the Proposed Contract. Notwithstanding that the parties have each expressed a desire to resolve their differences over performance of the Current Contract, MOPAC does not intend to grant an extension to that contract at the end of April 2022. Instead it intends to take on the existing services in-house and/or by the retention of other suppliers. There is no suggestion that MOPAC considers it will be in any way prejudiced by this solution, but nor will it benefit from the technological and operational advances provided for under the Proposed Contract. Even if MOPAC and KBR resolve their differences and MOPAC decides (contrary to Mr Joel’s evidence) to extend the Current Contract, MOPAC will still be deprived of those technological and operational advances. If a trial of the action does not take place until October 2022 and mobilisation then takes up to 6 months, the benefits and financial savings envisaged by MOPAC as arising out of the Proposed Contract will not be achieved until, at the earliest, April 2023. Allowing time for judgment and for a possible appeal, the delay may be many months longer than this.

    iii) Whilst lost financial savings ought to be capable of assessment, any harm that MOPAC may suffer by reason of a significant delay in the introduction of enhanced services and the benefits they will bring with them would be difficult to quantify in damages.

    iv) If the suspension is lifted, MOPAC intends immediately to activate the implementation and mobilisation of the Proposed Contract with a view to commencing service provision under that contract by the end of April 2022 and thereby seeking to ensure a relatively seamless transition from the Current Contract to the Proposed Contract. Whilst there is little evidence to support the proposition that this can now be achieved by the end of April, there is no reason to suppose that it could not be achieved within a relatively short time frame after that date, thereby limiting any harm that may be suffered by MOPAC.

    [104] In all the circumstances, I conclude that there is a serious risk that in the event that the suspension is continued and MOPAC ultimately succeeds at trial, damages will be an inadequate remedy.”

     

    Balance of Convenience

    “[121] In the circumstances, and given that Openview, Kent and Alstom have been decided more recently, should it be necessary, I prefer the decisions of Stuart-Smith J. I also note that in Sysmex at [98], Coulson J revisited the “pay twice” argument, but dismissed it for two reasons on the facts of that case: first that he agreed with the remarks made by Stuart-Smith J in Kent at [38] and in Alstom at [39], and second that the point “butts up against another obvious public interest, namely that the NHS should provide the best possible service to the public without disruption and with minimal risk to its patients. Public interest in proper procurement does not become irrelevant, but it has to be seen in its proper context”. Whilst back office services are unlikely to involve issues of risk and disruption to the public of the type intrinsic to services provided by the NHS, nevertheless, I accept Mr Barrett’s submission that there is a public interest in MOPAC putting in place an up to date contract to ensure the efficient and effective management of those services.“

    …

    “[125] In conclusion, in my judgment, the balance of convenience clearly favours the lifting of the suspension. This is not a case in which an expedited trial is appropriate and the potential delay if the suspension is not lifted is likely to be significant. There is a public interest in MOPAC achieving the benefits and financial savings it envisages from the Proposed Contract without the period of substantial delay that would otherwise ensue.”

  • Camelot UK Lotteries v The Gambling Commission [2022] EWHC 1664 (O'Farrell J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes

  • Medequip Assistive Technology Ltd v Kensington and Chelsea [2022] EWHC 3293 (TCC) (Eyre J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes High Court lifts suspension on award of London Community Equipment Consortium's framework agreement for Community Equipment Services (CES) to be issued to Nottingham Rehab Centre Ltd (trading as NRS Healthcare).

    (Eyre J)

    Background: 

    • Award decision notification: 5 September 2022
    • Proceedings issued (triggering the automatic suspension): 23 September 2022
    • Defendant’s application to lift the automatic suspension: 8 November 2022
    • Claimant’s application for an expedited trial: 21 November 2022
    • Hearing of lift / expedition applications: 15 December 2022
    • Judgment handed down (suspension lifted; expedition refused): 21 December 2022

     

    Key Factors: 

    • That there was a serious issue to be tried was accepted by the Defendant.
    • Medequip only narrowly established an arguable difficulty about quantifying damages if it succeeded on the ‘unpublished criteria’ allegation i.e that, in evaluating the tenders, the Defendant took into account evaluation criteria (or applied a scoring methodology) that were not disclosed to tenderers in advance, contrary to the transparency requirements).
    • Damages were not an adequate remedy for the Defendant; if the suspension continued, the the defendant (and the other members of the Consortium) would be unable for a substantial period to deliver CES ‘in the form and on the terms it wishes‘, even though there would be no gap in service (because Medequip would continue). That loss was not adequately compensable in damages.

    • Long likely duration of the suspension, with significant delay to mobilisation and service change. If lifted, services under the new Agreement would start 1 April 2023 or shortly after; if not lifted, commencement would be delayed until July 2024 at the earliest.
    • Real prejudice to the successful tenderer if the suspension was maintained. A long suspension would require at least six months after lifting to mobilise, with additional expense and disruption if mobilisation had to be restarted in 2024.
    • No merits ’tilt’ taken into account at this stage; this was not an exceptional case where relative strength should influence the balance of convenience.
    • Balance of convenience clearly favoured lifting the suspension, weighing the modest risk of irremediable harm to Medequip against the Defendant’s inability to implement desired service terms for over a year and the disruption/cost to the successful tenderer.

     

    “[62] The arguments advanced by both Mr Barrett and Mr Suterwala were cogent and plausible by way of analysis of the picture disclosed by the pleadings. They demonstrate why it is not possible at this stage to form anything approaching a concluded view as to the strength or weakness of the claim. The force of the arguments and the strength or weakness of the underlying claim will have to be determined after a trial in the light of consideration of the evidence and of the documentary background. This is not a case where it can be said at this stage that the strength of either the claim or the defence is disproportionate to that of the other. In those circumstances to the extent that I have to consider the balance of convenience I will take no account in that exercise of the alleged strength or weakness of the claim.”

     

    On the Adequacy of Damages

    “[105] Most of the matters on which the Claimant has relied as indicating the inadequacy of damages are misconceived, speculative, or overstated and I have no hesitation that damages would be an adequate remedy for most of the consequences which the Claimant says will follow from the loss of the Agreement. That conclusion comes even more readily if the test is expressed as being one of considering whether it is just to confine the Claimant to the remedy of damages. However, as I have just explained the Claimant has narrowly succeeded in raising sufficient question on the point of whether it will be possible properly to quantify damages if the unpublished criteria allegation succeeds to surmount this hurdle. I turn, therefore, to the next stages in the American Cyanamid process.”

    ….

    “[110] Almost inevitably there will be scope for debate as to the extent to which the changes which it is said are being made are in truth changes from the current arrangements and also as to the extent to which the changes are an improvement. It may well be that the differences in terms of the practical operation of the system are not as great as the Defendant perceives them to be and also that different persons will have different views as to whether the new arrangements are an improvement. However, I come back to the point that the Consortium has decided that it is beneficial for the CES to be delivered in a particular way and on particular terms. If the suspension is maintained the Consortium will not be able to implement that decision for the period of the suspension and for such time thereafter as is necessary to enable the new arrangements to be put into effect. Provision of services will continue in the interim. The Claimant is willing to continue to supply the services and this is not a case where there will be a gap in provision. Nonetheless the fact remains that the Defendant will not be able to provide the services in the form and on the terms it wishes. That is a loss which cannot adequately be compensated in damages. “

     

    On the Balance of Convenience

    “[112] I have already explained that the Claimant has only surmounted the hurdle of showing that damages will not provide it with an adequate remedy by the narrowest of margins. There is a risk that damages will not be an adequate remedy for the Claimant and that it will suffer irremediable harm if the suspension is lifted and it succeeds at trial but that risk is modest. There will be an impact on the Claimant of losing the contract but other than in terms of the loss of the profit which would have been made from the Agreement that impact will be markedly less than is asserted by the Claimant. The Claimant will remain a significant participant in this growing market; it will be working alongside Medux and will derive the benefits of that cooperation; it will retain a significant number of contracts for the provision of CES; and it will retain a cadre of specialist staff.

    [113] If the suspension is maintained the Defendant and the other members of the Consortium will be precluded from providing services to those for whom they are responsible on the terms and in the way in which they wish to do so. They will be prevented from doing so for a period of more than a year and potentially longer. The services will continue to be provided but on the basis of the current arrangements which the Defendant wishes to change and, as the Defendant sees matters, improve.

    [114] There will be a real impact on the Interested Party. It will be prevented from providing services pursuant to the Agreement for the period of time I have already noted. At the very least there will be real disruption to the Interested Party in not being able to implement the arrangements when it intended to do so and this will be reflected in a cost to the Interested Party. I also accept that if the suspension is maintained but the result of the procurement process is upheld at trial then the Interested Party will incur additional expense in having to start mobilisation afresh (or substantially so) in 2024. There is a further factor which is that the Interested Party will be subjected to a delay before it obtains the benefits of increased scale which would flow from being the contractor under the Agreement and the other benefits which the Claimant says will come from operating the Agreement. I have not been convinced that the benefits of operating the Agreement are as great as the Claimant asserts but if the Claimant is right about the extent of those benefits then it follows that the Interested Party will suffer the detriment of being deprived of those benefits for the period of the suspension.

    …

    [116] The Claimant says that the new arrangements are likely to break down if the Agreement is awarded to the Interested Party. The Claimant criticises the Interested Party’s proposals for performance of the Agreement and the preparations which have been made. It says that the fact that the Interested Party is prepared to provide the services at a lower figure than the Claimant shows that the Interested Party has not priced the project adequately and that there is a risk that the Interested Party will not be able to sustain the performance of the Agreement. I reject that contention. The Interested Party is a substantial business with considerable experience in this field being a sizeable participant in the CES market. It has produced a tender which the Defendant is satisfied meets the requirements of the procurement process. I have no doubt that the Claimant genuinely believes that the Interested Party will not perform the Agreement as well as the Claimant would have done but there is simply no basis for concluding that the arrangements will break down if the services are provided by the Interested Party rather than by the Claimant.”

  • Boxxe v Secretary of State for Justice [2023] EWHC 533 (TCC) (Constable J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes High Court lifts suspension on award of contract for the provision of digital and audiovisual (‘AV’) equipment for use by the Courts and Tribunals Service.

    (Constable J)

    Key Factors: 

    • There  was a serious issue to be tried (although the SoSJ argued the claims were out of time, it was not sufficiently clear-cut to make a final decision at this interim application stage).
    • Damages were an adequate remedy for Boxxe (its own loss was relatively modest in the context of its business).
    • Reliance on losses suffered by Boxxe’s subcontractor (Involve) did not assist on the adequacy of damages claim.
    • SoSJ offered an undertaking that it would not argue that any proven breach was ‘not sufficiently serious’ for Francovich damages if it were ultimately found that, but for the breach, Boxxe would have won. With that safeguard in place, damages were an adequate remedy for Box.
    • Damages were not an adequate remedy for SoSJ; the delay would have real-world impact on the Courts and Tribunals Service through avoidable failures and delayed functionality improvements that would not be adequately compensable in damages.
    • Funding was a key factor; if the suspension continued, SoSJ would lose the first year’s funding (£7.4m inc VAT) and would not be able to buy the first tranche of equipment. Furthermore, price rises might force abandonment of the competition, jeopardising or significantly delaying benefits to the court service, again not compensable in damages.
    • It was ‘obvious’ that the balance of convenience favoured lifting where, if lifted, Boxxe would have an adequate damages remedy (particularly with the Francovich undertaking), whereas, if not lifted, SoSJ would suffer real delay-related losses not compensable in damages.
    • Public interest factors pointed both ways (rapid implementation vs avoiding overpayment if the procurement were flawed) but overall the balance favoured lifting.

    “[31] Notwithstanding what appears to be a formidable line of authority, as presented by Mr Paines, I consider that it is inappropriate for me to give in to the temptation to decide the matter finally in the context of this application for the lifting of the suspension. The matter is not so clear cut as to conclude that there is not a serious issue to be tried. The overall time for Mr Tankel to have made detailed submissions on the point, given the need to address the other factors, was short and in fairness to him, he did not attempt to cram the proverbial (and imperial) quart into the pintpot. I consider that it is appropriate that the ultimate determination of the issue should follow fuller argument and submission, which will take place no doubt relatively shortly in any event in the context of the strike out application which has already been issued.”

     

    On the Adequacy of Damages 

    “[37] Whilst Mr Tankel urges upon me that the impact upon the interests of third parties, who do not have a reliable remedy in damages in their own right, is a materially relevant factor that the Court both can and should take into account in its overall assessment, that is not a submission which assists him on the question of the adequacy of damages. On that question, it is clear that the position of Involve is irrelevant and should not be taken into account regarding the adequacy of damages. This conclusion is consistent with the view taken by Sir Antony Edwards-Stuart in Circle Nottingham Limited v NHS Rushcliffe Clinical Commissioning Group [2019] EWHC 1315 (TCC) in which the Court had to consider whether to take account of the losses which may have been suffered by the group within which the unsuccessful tenderer company (an SVP) sat.”

    …

    “[44]  Mr Tankel argues that the assessment of damages will be difficult in this case

    because:

    (1) There were a range of lawful options open to SoSJ and it may be unclear which one SoSJ would have taken. SoSJ might seek to argue that some of these might not have resulted in an award of the contract to the Claimant. If so, then it is said that it is likely to be very difficult to quantify the likelihood of SoSJ awarding the contract to Boxxe, and doing so would be an inherently speculative task, and may require extensive evidence about essentially counter-factual matters.

    (2) The ITT set out indicative quantities but provided that “HMCTS does not commit to ordering those quantities and no minimum volumes will be included in the Contract.” It is said that, given the absence of any minimum volume guarantee whatsoever, there is no concrete yardstick by which to measure the losses that Boxxe will suffer.

    [45] Neither of these points are good. As to the first, the ‘range of options’ forms no part of Boxxe’s pleaded case. In any event, even if it did, courts deal every day with counter-factuals. It is a matter of assessing the evidence and coming to a conclusion on balance of probability. Once the counter-factual outcome is determined, the entitlement either follows or it does not. The need for such an assessment and judgment does not mean that damages (if an entitlement is established) would be an inadequate remedy. As to the second, it is clear from the evidence of Mr Edgerton, which I accept, that HMCTS has every intention of spending its allocated budget. Moreover, by the time of the ultimate trial, there will be good evidence of what HMCTS has in fact spent and a clear basis will exist to determine what profit Boxxe would have made had it been successful (should that arise).”

    …

    [52] There are four bases upon which SoSJ contend that damages would not be an adequate remedy for them. These can be summarised as failure, functionality, funding and increases in price. Mr Edgerton’s evidence is that the purpose of the Competition was to upgrade and replace existing, end of life, AV equipment, and that the new equipment would be both more reliable, and have greater functionality, than the existing equipment. There is debate between the parties as to the precise anticipated failure rate, and the impact of failure on the Court service. However, whatever the precise extent of failure, there is no doubt that a delay of 6 months (assuming a July expedited trial was accommodated) to the implementation of the project would be likely to have a real life impact in avoidable failures and delay to the improvement of functionality on the Courts Service which would not adequately be compensated for in damages. However, even were this not the case, of acute concern to HMCTS, as explained by Mr Edgerton and which I accept, in the present case is the fact that if the suspension is continued, SoSJ will lose the first year’s funding (£7.4m inc VAT) and so simply will not be able to buy the first year’s tranche of equipment under the Contract. Further negotiation with HM Treasury might be possible, but it would be novel and uncertain and would itself cause substantial delays. I also accept that if there were to be a rise in prices (which have not been held open beyond 31 March 2023), there is a possibility that the Competition itself may have to be abandoned. The effect of this would be to jeopardise, and at the very least, significantly delay the realisation of the benefits in terms of reliability, functionality and enhanced quality, and this impact on the Court service would not be compensatable in damages.”

     

    On the Balance of Convenience

    [54] Given my findings above, it is obvious that the course of action which is likely to carry the least risk of injustice is to lift the automatic suspension:

    (1) If the suspension is lifted, damages will an adequate remedy for Boxxe if it succeeds at trial, especially so given the undertaking offered by SoSJ in relation to the Francovich issue, and which I consider ought be provided;

    (2) If the suspension is not lifted, with or without an expedited trial, SoSJ will sustain losses caused by the ongoing delays which are real and which cannot be compensated for by damages, as I have found above.

    (3) it is correct that the public interest points, as it often does, in both directions – both for the implementation of the Competition as planned and as soon as possible, but also for SoSJ not overpaying for those services by reason (if Boxxe is right) of a flawed procurement process;

    (4) SSC will be impacted adversely.

  • Teleperformance Contact Ltd v Secretary of State for the Home Department [2023] EWHC 2481 (TCC) (Constable J)

    View Case

    Region: England and Wales

    Suspension Lifted? YES. High Court lifts automatic suspension on contracts for the provision of visa and citizenship application services

    (Constable J)

    Key factors

    • Losses of companies in the same group as the claimant company, which was an SPV, were not relevant
    • Damages would be adequate for the claimant
    • Damages would not adequately compensate the Defendant
    • A further delay in the award of the contracts created a very significant risk of a gap in services
    • While the claimant offered to extend service provision, the new contracts were intended to bring benefits (including enhanced security measures and improved technology)
    • It was not necessary to determine the timetable with precision to determine that there was likely to be at least some real delay to the implementation of the benefits to be brought by the new contracts if matters awaited the outcome of the most efficient expedited trial
    • Therefore, damages would not be adequate for the defendant

     

    On whether losses to other entities can be taken into account

    “41. I distil from the foregoing the following principles:

    (1) at the most fundamental level, the jurisdiction to grant injunctive relief is subject to a broad discretion which permits the Court to grant it where it is just and convenient to do so;

    (2) in most cases, the injury or prospective injury to consider, when asking in accordance with American Cyanamid whether damages would be an adequate remedy if an injunction is not granted and the right is or continues to be violated, is the injury suffered or to be suffered by the party whose is entitled to claim for the violation of the right;

    (3) given the broad discretion, however, there may exceptionally be circumstances in which injury to third parties caused the violation of rights may be considered relevant, particularly where there is a nexus between such injury and intangible and reputational losses suffered by the claiming party, for which damages would be inadequate, as happened in Bath v Mowlem;

    (4) when considering whether it is just in all the circumstances to confine the claiming party to their remedy in damages, the Court may look to the objective expectations created within the relevant relationship between the parties (whether by a contract, or by the regulatory regime giving rise to the obligations and available remedies, or otherwise).

    42. In the circumstances of the present case, I do not consider it appropriate to consider losses suffered by TLScontact or the wider Teleperformance group as relevant to the question of adequacy of damages.”

  • Robert Heath Heating Limited v Orbit Group Limited [2024] EWHC 3039 (TCC) (ter Haar KC)

    View Case

    Region: England and Wales

    Suspension Lifted: Yes High Court lift suspension on contract for domestic heating services on the basis that damages would be an adequate remedy for the Claimant

    (ter Haar KC)

    Background: 

    • Initial contract decision notices: 23 July 2024
    • New contract decision notices issued: 7 August 2024
    • Claim Form served (triggering automatic suspension): 16 August 2024
    • Particulars of Claim served: 22 August 2024
    • Defendant request to lift suspension by consent: 9 September 2024
    • Claimant refusal to consent to lifting: 17 September 2024
    • Application to lift the automatic suspension: 15 October 2024
    • Hearing of the applications: 12–13 November 2024
    • Judgment re lifting suspension: 27 November 2024

     

    Key Factors

    • Damages were adequate for the Claimant
    • No arguable case for loss of reputation

     

    “[75] In my judgment, contrary to those submissions, damages would be an adequate remedy for RHH if its challenges succeed.

    [76] This is not a case like the Bristol Missing Link case, where the claimant was a non-profit organisation. I have set out at paragraph 4 above the undisputed facts as to RHH’s financial situation: it is a moderately substantial company and is a subsidiary of a substantial group with a worldwide reach. The potential contracts with OGL were substantial, but if awarded would not have been a dominating part of RHH’s turnover.

    [77] Given the size of RHH and of the group of which it is part, I do not accept that even an arguable case for damages for loss of reputation is made out.

    [78] I accept that these would have been substantial contracts, and a useful base for RHH to expand its business: these are relevant matters in an assessment of damages. However, these are the sorts of issues with which the courts are used to dealing when assessing damages.

    [79] I also accept that assessment of damages may not be entirely straightforward, but that in itself is not sufficient to establish that damages would not be an adequate remedy, see the passages from the judgments of Stuart-Smith and Eyre JJ set out above. In my judgment this is not a case in which the number of uncertainties or variables that have to be brought into the calculation of the RHH’s lost chance mean that damages would not be an adequate remedy.”

  • Involve Visual Collaboration Ltd v Secretary of State for Work and Pensions [2025] EWHC 2664 (Waksman J)

    View Case

    Region: England and Wales

    Suspension Lifted? No. High Court refuses to lift automatic suspension on contract for audio-visual facilities

    (Waksman J)

    The Claimant was the incumbent; it was excluded from the competition for failing the technical element

    Background: 

    • Procurement commenced: 25 June 2024
    • Contract Award Notice : 7 April 2025
    • Claim issued (and particulars served): 1 May 2025
    • Amended Particulars of Claim served: 14 May 2025
    • Defence filed: 10 June 2025
    • Reply filed: 1 July 2025
    • Application to lift automatic suspension issued: 17 July 2025
    • Expedition application: 8 September 2025
    • Hearing (lift + expedition applications): 9 October 2025
    • Judgment handed down: 17 October 2025

     

    Key factors

    • Damages would not be an adequate remedy for the Claimant
    • Damages would not be adequate for the Defendant
    • An expedited trial could be held commencing on 13 January 2026; the existing contract was due to expire on 28 February 2026 but could, if necessary, be extended by up to a year
    • Defendant’s delay in issuing the Application to Lift was taken into account but in any event, a trial could be ready for 13 January 2026
    • The only potential prejudice to the Defendant was the delay in implementing the benefits the new contract would deliver.

     

    [49] Overall, and having regard to the particular facts of this case, I do not consider that the evidence provided by Mr Pasqualino can be dismissed as “mere assertion”. In my judgment it is plausible, and sufficient to support the contention made by Involve that being deprived of the New Contract would indeed expose it to serious losses of opportunity to develop its business in specific ways which could not be compensated by an award of damages. That being so, it is now necessary to consider whether damages would be an adequate remedy for DWP if the suspension is not lifted.

    …

    [61] Accordingly, damages would not be an adequate remedy for DWP here although I accept that it is not as if the position would be catastrophic for it, if it had to maintain the present video-conferencing service under the Existing Contract as opposed to moving now to the New Contract. After all, the Existing Solution was used in 373,000 Health Assessments between August 2021 and July 2025 according to Mr Pasqualino at paragraph 22.5 of his WS.

    …

    [69] Given all of that, I consider that it can safely be said that insofar as is necessary, the Existing Contract will indeed be extended beyond 28 February 2026. To the extent that no New Contract was awarded before 28 February 2026 and it was therefore necessary to run a fresh procurement, there should be ample time to do so before the extension expired on 28 February 2027. The period of extension should also be sufficient to allow for the transition period from the Existing Solution to the New Solution which is now put at 4.5 months – see JE3. What all of this means is that there is now no risk that the maintaining of any suspension to trial will mean that DWP will lose its ability to provide any video-conferencing. The prejudice to it consists simply in the delay to bringing in the New Solution with the various benefits which that will entail.“

  • Millbrook Healthcare Limited v Devon County Council and Nottingham Rehab Limited [2025] EWHC 744 (TCC) (Howard KC)

    View Case

    Region: England and Wales

    Suspension Lifted? YES. High Court lifts automatic suspension for £46m home care services contract.

    (Howard KC)

    Background 

    • First notification of contract award decision: 9 October 2024
    • Letter confirming contract award: 24 October 2024
    • First standstill agreement entered into: 22 November 2024
    • Second standstill agreement entered into: 20 December 2024
    • Standstill agreements terminated: 23 January 2025
    • Claim issued (triggering the automatic suspension): 23 January 2025
    • DCC application to lift the automatic suspension issued: 6 February 2025
    • Millbrook application for expedition issued: 5 March 2025
    • Hearing of lift/expedition applications together: 12 March 2025
    • Judgment handed down: 28 March 2025

     

    Key factors

    • Damages were adequate for the Claimant
    • Claims of inadequacy of damages not substantiated
    • Contract was not unique or prestigious
    • Fact that no undertaking given by Respondent that any breaches would be sufficiently serious did not mean damages were inadequate at this interlocutory stage

     

    Adequacy of Damages

    “[13] As a starting point, most of the points raised by the Claimant to establish prejudice are made by mere general assertions, without supporting evidence. Where the claimant makes significant claims about its future prospects and ability to win contracts, as a result of losing one particular contract, the Court will be cautious in accepting such claims without detailed evidence, such as management accounts, detailed financial information, details of other contracts that Millbrook has in place and other potential bids that it might apply for in future: Alstom Transport Uk Ltd v London Underground Ltd [2017] EWHC 1521 (TCC) (“Alstom v LUL”) §§29-30 and 37 and TES Group v Northern Ireland Water Limited [2020] NIQB 62 at [32]. In this case, there are no concerns raised by the directors or auditors in Millbrook’s accounts about risks from material uncertainties or events that would cast doubt on it continuing as a going concern; there is no mention or provision to reflect the risks of losing the new contract.”

    [14] Secondly, to the extent that Millbrook faces loss of profits as a result of losing its incumbent position, that is very much part of life.

    [15] In this case, the main immediate harm is the hit to anticipated financial revenues from the loss of the new contract. Those losses will be quantifiable, based on the projections in Millbrook’s bid and their internal documents setting out their anticipated profits from the new contract alongside expert evidence on the lost opportunity: Exel Europe Limited v University Hospitals Coventry and Warwickshire NHS Trust [2010] EWHC 3332 (TCC) §48; Alstom v LUL, §24. Although there may be uncertainties and complexities with quantification, such difficulties are a common feature of damages claims and do not mean any losses are irrecoverable or impossible to quantity fairly.”

    [16] … In contrast with other cases, such as Rail Franchising and Camelot, the new CES/TECS contract was not unique, prestigious or the sole source of the Claimant’s workstreams. The Claimant is part of a private equity financed group with its latest accounts recording a turnover of approx. £118 million and growing profitability of [TEXT REDACTED] per annum. I do not find it compelling that the loss of one single public sector contract, for a fixed term of 7 years maximum, and of modest value and profitability, would undermine the Claimant’s entire business model or its ability to win new work from other local authorities.”

    [17] Many of the broader arguments regarding the impact on Millbrook’s staff and reputation are predicated on the assumption that there will be a “rushed transition” for the new contract and its transfer from Millbrook to NRS. In that event, I agree with Mr Barrett KC’s argument that, contrary to the requirements of the American Cyanamid test, the alleged prejudice does not result directly from the claimed breach of the PCR 2015 but from extraneous events such as transition. In any event, I do not accept that there necessarily will be a “rushed transition” – this allegation seems speculative, if not tendentious. The evidence provided by DCC and NRS is that they will, as a conservative estimate, need a 3-4 months’ transition process although this may be reduced further if, as now appears to have been agreed as part of an agreed timetable for transition, Millbrook transfers its premises to NRS. Millbrook has agreed a 6 month extension to the old contract so there will be no hiatus in provision nor a rushed transition for the new contract to be in place. There will be sufficient headroom within that 6 months extension period to carry out the transition with a buffer for any unexpected difficulties. Mr Halliday sought to argue that anything less than a 16-week transition would be insufficient yet conceded that the Claimant had itself accepted in its bid that a 3 month (12 week) transition would be necessary. So, there is no concrete basis for the premise that any transition would be rushed.

    …

    [21] As regards the claimed impact on the structure of competition in the market, I am not persuaded that there is any cogent causal evidence that the loss of this contract would place Millbrook at a competitive disadvantage or substantially reinforce the market position of the other two main players in the CES market.

    …

    [35] In all of these circumstances I find that it is just and appropriate to confine the Claimant to a remedy in damages, which will be adequate to remedy any breach. As such, that is the end of the enquiry and there is no need to go on and consider adequacy of damages for DCC or the balance of convenience: OpenView, §70; Circle Nottingham v NHS Rushcliffe CCG [2019] EWHC 1315, §18.

    …

    [45] Even if expedition were possible, with the Court’s current capacity, the earliest timeframe for an expedited 10-12 day hearing (which may be over-optimistic) would be Easter 2026 (assuming a judge were available during vacation and this case were regarded as appropriate vacation business). Judgment would take a minimum of 2 months so resolution at first instance would not be until mid 2026. More realistically, the hearing would be listed at the end of 2026 or Spring 2027 with judgment in 2027. If there were a subsequent appeal, final resolution would be unlikely before late 2027/2028. Accordingly, even on an expedited basis, DCC and vulnerable users would be deprived of the intended benefits for a minimum of 2 years. That delay is too detrimental and reinforces the conclusion that damages are not an adequate remedy for the Defendant.

     

    Balance of Convenience

    [46] In the light of the above, lifting the automatic suspension is likely to carry the least risk of injustice for the following reasons:

    i) Declaratory relief and/or damages will be an adequate remedy for Millbrook if it eventually succeeds at trial; Millbrook was content to accept that outcome provided DCC conceded the Francovich criteria so there is no injustice in confining its remedy to damages at this stage.

    ii) If the suspension is maintained, DCC will be prevented from offering CES and TECS services in the way that it considers best and will be unable to introduce the desired improvements and costs savings for a minimum period of 2 years and possibly longer.

    iii) Maintenance of the suspension would effectively force DCC to contract and mobilise with the party that it considers to be the losing party; if the claim fails, DCC would then (assuming it was in a position to do so) have to unravel that process and restart again with NRS. There is a risk that the critical injection of fresh competition from regular tenders and the incentives for improved services and innovation from rival providers, which is a key objective of the procurement regime, would be undermined.

    iv) Continued suspension also means that vulnerable service users and taxpayers in Devon will be deprived of benefits in terms of the latest data protection and cyber security standards, the most appropriate equipment for best value for money and may suffer reductions to local authority health and social care budgets with knock-on adverse consequences for other residents needing NHS services, as vulnerable users may stay longer in hospital or other care centres as they cannot be treated as effectively at home.

    v) The winning bidder, NRS, will suffer adverse consequences as it will be prevented from supplying CES/TECS services pursuant to the new contracts for at least 2 years if the suspension is maintained and Millbrook’s challenge is ultimately unsuccessful. That impact is not confined to its wasted bid and mobilisation costs but mirrors the harmful impact on its costs base and other contracts that the Claimant allegedly suffers from the loss of the new contract. The interests of the Interested Party must also be weighed in the balance: Alstom, §72; Medequip, §114 and Camelot, §126.

    vi) There are competing public interests in ensuring the procurement is conducted compliantly and awarded to the right bidder versus ensuring that the competition is implemented as planned and as soon as possible. To some extent, that tension will be resolved by the trial and if issues are evenly balanced, the Court is to preserve the status quo: Alstom, §73 and Camelot, §126.

    vii) The maintenance of the suspension for a period over 2 years would, in effect, enable the existing provider to extend its incumbency for a significant period of time beyond the 7 years it originally contracted and tendered for. That is not the intended outcome of the procurement regime.

    viii) I take account of the possibility that the Claimant may be right and that it has been deprived of the new contract through a non-compliant procurement process. The Claimant has raised a number of criticisms of NRS’ performance which, it contends, cast doubt on its ability to deliver the contract specifications in light of the cyber security incident as well as other alleged financial and service issues. It relies on other indicators, including a comparison of its Trustpilot reviews and recent coroner’s inquiries. Mr Taylor for the Interested Party provided a strong rebuttal against those allegations in written and oral argument, relying on the evidence of Mr Fotheringham. I am unable to enquire into the respective merits of the parties’ competing positions at this stage, which is a matter for trial. But I also take account of, and place weight upon, the Defendant’s procurement process and its confirmation, through a separate due diligence exercise, that NRS satisfied its operational and financial standing requirements.

    [47] Looking at all of these considerations in the round and weighing up the potential harm to the Claimant alongside the potential harm to the Defendant, NRS, vulnerable users and the public interest, I find the balance of convenience points in favour of lifting the suspension and that outcome creates the least risk of irremediable harm and injustice if the Claimant ultimately succeeds at trial.

  • Mak Systems Group Ltd v Velindre University NHS Trust [2026] EWHC 8 (TCC) (Jefford J)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes. High Court lifts suspension on NHS Trust's contract for a computer system for blood information

    (Jefford J)

    Background

    • Claimant, Mak, was the incumbent supplier of blood information computer system
    • Proceedings commenced: 19 June 2025
    • Application to Lift issued: 9 September 2025
    • Claimant’s application for an expedited trial issued: 17 October 2025
    • hearing: 18 November 2025
    • Judgment: 2 February 2026

     

    Key Factors

    • Damages would be an adequate remedy for the Claimant
    • The principal argument considered was a claim that the loss of the contract would result in reputational damage. The court rejected this where the claims as to reputational impact were mere assertion, the contract was for modest sum and there was no evidence that the contract was being watched closely by the market
    • No justification for an expedited trial (though new services not to commence before Autumn 2027, significant transition period was required so a trial would lead to further delay. Expedited trial rejected even though Claimant proposed that only one issue (successful tenderer’s compliance with regulatory requirements) be tried over a 6-day period)
    • Damages not adequate for the Defendant; while the point was not clearly decided, the Court pointed to delays in the contracting authority obtaining benefits from the new contract and rejected suggestions that the current contract with the incumbent claimant could be further extended
    • The Court did conclude that it was not possible or appropriate for the court to determine whether a further extension would be lawful
    • Balance of convenience also in favour of lifting the suspension on the basis of public interest and provision of benefits in services

     

     

    “[56] … The Claimant’s evidence amounts to no more than the assertion that the loss of a contract by an incumbent provider is damaging to its reputation.

    [57] [The Claimant] seeks to put this type of BECS contract into a special category on the basis that there are rarely changes in providers – he implies, therefore, that the loss of a contract by an incumbent provider is more significant than would commonly be the case. This sort of bald assertion needs, in my view, to be treated with caution. There is no independent evidence to support it.”

    …

    “[59] The argument as to the prestigious nature of this contract, being an NHS contract, is not sustainable. If it were right, it would lead to the conclusion that all NHS contracts were particularly prestigious and would provide a reason not to lift the suspension in any case involving an NHS contract.”

    …

    “[63] In the present case there is no evidence that this modest contract is of any particular interest to the wider market or would be regarded as setting any standard (as in Draeger); it is not global in its coverage or prestige; and the evidence that it might affect future bids is vague and speculative.”

    ….

    “[95] Mr Williams submits that the issue turns on Regulation 72(1)(e) of the PCR 2015 which reflects the decision in Pressetext and which provides that modifications are permitted to existing contracts if they are not “substantial”. Regulation 72(8)(d) provides that a modification is substantial if it extends the scope of the contract considerably. The defendant has already twice extended the existing contract with MAK. The defendant’s position is that there is at the least a risk that the court or another supplier would take the view that a further extension in itself or in aggregate amounted to a considerable modification and, therefore, an impermissible modification.

    [96] Whether the Pressetext principles or Regulation 72 applies, it is not possible or appropriate for the court to determine this issue as to the lawfulness of any extension on this application. It is sufficient to say that there must be a risk that any extension would be impermissible and expose the defendant to further proceedings. Even if delay were not an issue this would not be an answer to the defendant’s case that damages are not an adequate remedy for it.

    …

    “[108] There is a public interest in enabling the defendant to give effect to the contract that it wishes to enter into for the purpose of providing benefits in services…”

  • Cubic Transportation Systems Ltd v Transport for London & Anor [2026] EWHC 61 (TCC) (ter Haar KC)

    View Case

    Region: England and Wales

    Suspension Lifted? Yes. High Court lifts suspension on £800m revenue collection contract for Transport for London (TfL)

    (ter Haar KC)

    Background

    • Claimant, CTSL, was the incumbent, having entered a contract in 2015, which was extended to August 2026
    • Decision issued on 15 July 2025
    • Proceedings issued on 15 August 2025, with Amended Particulars filed on 14 October 2025
    • Application to Lift issued on 29 September 2025
    • Hearing on 11 December 2025
    • Judgment on 15 January 2026

     

    Key Factors

    • Damages would be an adequate remedy for the Claimant
    • Reputational effects of loss of contract not accepted as meaning that damages were not adequate
    • Effect on Claimant’s business capable of assessment in damages
    • Damages not adequate for TfL
    • Delayed benefits of the new contract and serious operational risk if a new contract was not signed, were ‘matters which fundamentally may disadvantage passengers which cannot easily be compensated in damage’

     

    “[45] The evidence shows that the TfL system is probably the largest and most extensive revenue collection system in the world outside the United States of America. Having lost this contract award, I accept that the status of CTSL outside the United States of America is, to an extent, diminished. On the other hand, CTSL does have other irons in the fire outside the USA, including for South Western Rail in the United Kingdom and two contracts in Ireland.

    [46] It is also part of, and can point to its parentage in, the Cubic Group which has competed for, and won, large contracts internationally, including in New York, Vancouver, San Francisco, Sydney and Queensland.

    [47] CTSL competes in a sophisticated and limited market, in which future contracting partners will know from experience in the procurement of public sector contracts that such contracts are tendered and, when they expire, retendered. The mere failure by CTSL to win this tender should not necessarily mean to a future employer that CTSL’s place in the market place as a successful and professional designer, supplier and maintainer of such systems is diminished, although I do not rule out that at a full trial of an issue as to damages such a case as to diminution of reputation might be made out on evidence before a Court in future.

    [48] It seems to me there is also some strength in the point made by TfL … that any damage to the reputation of CTSL that it might have suffered or will suffer would be likely to be rectified were CTSL to succeed at trial and receive an award of damages.

    [49] In the circumstances, I accept TfL’s submission that the reality is that CTSL, and the wider Cubic Group, are significant players in the international transportation market, and I also consider that CTSL has failed to establish at this stage that its failure to win the Proteus Contract will significantly affect its chances in future procurements by reason of loss of reputation (I accept that it is always possible that at a full trial on different evidence, such a case might in due course be made out).”

    …

    “[54] Whilst I accept that the loss of the Proteus Contract will have a significant effect upon CTSL’s business, in my judgment, if breach is established in due course, a Court will be able to enter upon investigation of, and assess, an appropriate award of damages.”

    …

    “[76] It seems to me that the first two points raised matters which fundamentally may disadvantage passengers which cannot easily be compensated in damages.”

  • One Medicare (t/a One Primary Care LLP) v NHS Northamptonshire Integrated Care Board [2025] EWHC 63 (TCC) (Jefford J)

    View Case

    Region: England and Wales

    Suspension lifted? Yes. High Court lifts automatic suspension on NHS Board's contract for provision of an Urgent Care Centre.

    (Jefford J)

    Background:

    • Claimant, One Medicare (t/a One Primary Care LLP)(‘OPC’), was the incumbent provider of Urgent Care
      Centre services at Corby
    • Decision: 2 January 2024
    • Proceedings commenced: 25 January 2024
    • Defence filed: 21 March 2024
    • Application to lift issued: *after 25 January 2024 but ‘well before’ 10 June 2024*
    • Claimant’s application for an expedited trial issued: 10 June 2024
    • Hearing: 25 June 2024
    • Judgment: 17 January 2025

     

    Key Factors:

    • OPC’s failure to give a standard cross-undertaking in damages to the ICB was the ‘strongest reason, if not the sole reason’ to lift the suspension.

    • The balance of convenience was firmly in favour of lifting because the ICB’s likely non-compensable loss was greater than OPC’s position (OPC likely to continue operating and be compensated in damages if it wins).

    • If the ICB succeeded at trial, maintaining the suspension would prevent it from providing urgent care services ‘in the way’ it had decided (including qualitative improvements), a loss not measurable in financial terms.

    • Maintaining the suspension carried a risk that patients would be deprived of the benefits of the new service model for an avoidable reason; health-outcome risk is something the court should be slow to run.

    • While some disruption to OPC’s business was ‘capable’ of occurring if the suspension was lifted and might be hard to quantify, there was no real likelihood of such disruption because it was more realistic that OPC would be financially supported as a member of a highly interconnected corporate group.

     

    On the Adequacy of Damages

    “[35] Drawing the threads of these submissions together, in my view, there is evidence which establishes that the lifting of the suspension is capable of causing disruption to OPC’s business which cannot be adequately compensated in damages. Even if OPC undertakes the cost cutting which it and the ICB contemplate and/or re-negotiates some of its non-profitable contracts, that in itself is a disruption which is difficult or impossible to quantify and compensate. However, I am not at all satisfied that that amounts to an arguable case that there will, in fact, be such disruption because of the more realistic likelihood that OPC will be financially supported. I would certainly not accept that there is a real risk that OPC will cease to exist by the date of trial. Even if I am wrong as to whether there is an arguable case that damages would not be an adequate remedy, these are matters that weigh heavily in the balance of convenience which I will come to. Similarly, the fact that the financial position of OPC is one generated by its apparent decision not to make any provision for the possibility that it would not retain the Corby UCC contract is material.”

    ….

    “[69] Although for the reasons I have given, I have not undertaken a mini-trial on the issue of the merits of the case as to the benefits that the new contract would bring, I bear in mind what was said by Akenhead J in Solent NHS Trust v Hampshire County Council [2015] EWHC 457 (TCC) at [38]:

    “It would be unfortunate not to say tragic if even one person died or suffered unavoidable serious physical harm or metal deterioration as a result of unavoidable delays in the provision of improvements planned by the new contract …. I do not think that the Court should take risks with people’s lives and health; by this I do not infer that Solent, if it continued under the existing regime would put “service users” lives at risk but I do infer that the integrated and improved service to be provided under the new contract has a better chance of better outcomes and it would be wrong to risk “service users” not having the benefit of those improvements as soon as possible.”

    Taking together the regard to be had to the ICB’s wish to provide services in a particular way, the apparent benefits of the DHU provision, the experience that DHU has in this respect, and the time that it would take OPC to mirror this provision (even accepting that it could do so), to maintain the suspension carries with it the risk that patients will be deprived of those benefits for an avoidable reason. That is both a loss to the ICB that cannot be compensated in damages and weighs very much in the ICB’s favour in the balance of convenience in any event.”

     

    On the Balance of Convenience

    “[70] I deal with this shortly as I have already indicated my views. As I have said, I have hesitated in concluding that there is an arguable case that damages are not an adequate remedy for OPC because of the likelihood that it will continue to operate and be properly compensated in due course in damages. The probability that the ICB will suffer loss which cannot be compensated in damages is far greater as it will be unable to provide what it considers the better services during the suspension and they are services which are intended to improve patient care. The balance of convenience is firmly in favour of lifting the suspension.”

    “[82] The absence of the offer of a standard cross-undertaking in damages to either the ICB or DHU is the strongest reason, if not the sole reason, to grant the application to lift the suspension.”

     

• Ireland
  • CHC Ireland DAC v Minister for Transport [2023] IECA 229

    View Case

    Region: Ireland

    Suspension Lifted? YES. Automatic suspension lifted for contract for provision of Irish Coast Guard aviation service

    Costello J (upholding CHC Ireland DAC v Minister for Transport [2023] IEHC 457, Twomey J)

    Background:

    • Tender decision communicated: 31 May 2023
    • Proceedings commenced: 14 June 2023
    • High Court hearing of lift application: 4 July 2023
    • High Court judgment (lifting suspension): 25 July 2023.

     

    Key factors:

    • Risk to life
    • Certainty a vital matter when dealing with a crucial life-saving service
    • Risk that delay would mean winning tenderer could not perform contract in accordance with terms of its tender
    • While accepting that unsuccessful tenderer would not be adequately compensated in damages if it went out of business

     

    Balance of Justice

    “[63] By far and away the most important factor in this case is the public interest in ensuring that there is no gap in the provision of the service. It outweighs all other factors, given the nature of the service. It is literally lifesaving. As has been set out above, 277 lives have been saved to date in 2023 and 563 lives were saved in 2022.

    [64] There was no dispute between the parties that this was so. The primary issue for the court is whether the High Court erred in weighing the risks of a gap in the service occurring after 30 June 2025 and, so far as is possible, guarding against it. All other arguments, while relevant and possibly decisive in other circumstances, cannot outweigh the essential duty of the court to ensure the least possible risk to life as a consequence of either lifting or retaining the automatic suspension.”

    ….

    “[101] In addition, there is a significant risk that if the suspension is not lifted and there is a delay other than a short delay that Bristow could never perform the contract for the reasons set out above.

    [102] For all of these reasons, in my judgment, not lifting the suspension poses a far greater risk to the continued provision of the service than the risk posed by the possibility that Bristow may not be able to complete its transition plan in time to assume responsibility for the service on the 1 July 2025, and therefore that the balance of justice is firmly tilted in favour of lifting the automatic suspension in this case.”

     

    Certainty/Delay

    “[124] Secondly, the failure to lift the automatic suspension resulting in the delay for (at the very least) many months in awarding the contract may mean that Bristow will no longer be able to perform the contract in accordance with the terms of its tender. Thus, even if the Minister succeeds in the proceedings, he may be required to commence a new process with all the additional uncertainty that would entail.

    [125] Furthermore, in considering the provision of a crucial life-saving service such as the contract at issue in these proceedings, certainty is a vital matter which weighs, and weighs very heavily, in favour of lifting the automatic suspension in this case.

    [126] Further, the probable period of delay in awarding the contract if this court refuses to lift the automatic suspension at this point in time (assuming the Minister and Bristow are successful at trial), is likely to be of such duration in the circumstances of both this case and the transition plan at issue, that this weighs heavily in favour of lifting the automatic suspension.”

  • Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform [2018] IECA 35, [2019] 2 IR 305

    View Case

    Region: Ireland

    Suspension Lifted? NO. Court of Appeal leaves suspension of contract for interpretation services in place pending trial.

    Hogan J (overturning Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform [2018] IEHC 1, Noonan J)

    Key factors:

    • Damages limited to Francovich damages in procurement cases
    • Damages not an adequate remedy for the applicant
    • Damage may prove terminal to applicant company, where it would lose specialist employees

     

    “[63] These competing factors are admittedly rather finely balanced on both sides. In this context, the fact that damages have not been shown to be an adequate remedy has an important – perhaps even a decisive – impact for the present appeal. Irrespective of whether the matter is viewed from the perspective of national or EU law, the right to an effective remedy is a constitutional fundamental: see Article 40.3.2° of the Constitution and article 47 of the Charter of Fundamental Rights of the European Union respectively. In the present case adherence to the standstill clause is, in reality, the only real remedy a claimant such as Word Perfect currently enjoys. It is true that reg. 9(1)(b) of the 2010 Regulations enables the court to declare a reviewable public contract “ineffective”, but it is equally clear from reg. 11 that this particular remedy is available only in quite special cases – such as where the authority concluded the contract in breach of the standstill clause – none of which apply to the present case.

    [64] At all events, if that protection is lifted by court order then, in practice, Word Perfect would enjoy no real remedy, even if the matter were to go to trial and a material breach of the public procurement regime were ultimately to be established so far as the contract award was concerned. In these circumstances I am driven to the conclusion that the fact that damages are not an adequate remedy is decisive in terms of any evaluation of where, in Okunade v. Minister for Justice [2012] IESC 49, [2012] 3 I.R. 152 terms, the greatest risk of possible injustice lies.”

  • Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform [2021] IECA 305, [2022] 3 IR 764

    View Case

    Region: Ireland

    Suspension Lifted? NO. Court of Appeal leaves suspension of contract for Irish language translation services in place pending trial

    Barniville J (overturning Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform, High Court, unreported, 23 September 2021, McDonald J)

    Key factors:

    • Compelling urgency to proceed with the contract was absent
    • Early trial could be facilitated
    • No service interruption
    • Damages would be an inadequate remedy for the applicant, having regard to the complexity of the exercise in assessing damages and the number of variables involved in that exercise.
    • Significant injustice if applicant left to its remedy in damages

    “[170] While it is invidious to compare the nature or order of the public interests involved here with those at issue in BAM PPP PGGM Infrastructure Cooperatie UA v National Treasury Management Agency [2015] IEHC 756, Powerteam Electrical Services Limited trading as Omexom v Electricity Supply Board [2016] IEHC 87, Beckman Coulter Diagnostics Limited v Beaumont Hospital [2017] IEHC 537 and Homecare Medical Supplies Unlimited Company v Health Service Executive [2018] IEHC 55, as important public interests were involved in all those cases and in this case, the real distinguishing feature between those cases and the present case, is the real and pressing urgency in those cases to proceed with the particular contract or competition. That overriding or compelling urgency is not, in my view, on the evidence, present in this case.

    [174] I have concluded that the trial judge ought to have found that damages would be an inadequate remedy for the applicant, having regard to the complexity of the exercise in assessing damages and the number of variables involved in that exercise…

    [175] I am also satisfied that the judge ought to have concluded that the balance of convenience or balance of justice lay in favour of keeping the suspension in place, in the particular circumstances of this case, and having regard to the likely duration of the suspension…

    [177] The real question to be asked was whether it would minimise the risk of injustice to keep the suspension in place for a relatively short period until the trial (which we now know will take place on 11 January 2022), having regard to the potential injustice to the applicant, or to lift the suspension, in light of the evidence as to the use by public bodies of the recently expired 2016 Framework and the likely use by public bodies of the 2021 Framework, in circumstances where the framework is optional and many public bodies do conduct their own tender processes.”

  • Homecare Medical Supplies Unlimited Company v Health Service Executive [2018] IEHC 55

    View Case

    Region: Ireland

    Suspension Lifted? YES. High Court lifts automatic suspension on a 3-month bridging contract for the supply of disposable continence products; such bridging contract having been entered into to ensure supplies pending the outcome of review proceedings challenging the main contract award

    Barniville J

    Key factors:

    • Damages would be an adequate remedy for the Applicant
    • Damages would not adequately compensate the Respondent
    • On the balance of convenience, the short duration of the bridging contract, the interests of patients, the absence of an unqualified undertaking in damages and the fact that the Respondent was not prepared to extend the Applicant’s contract for public procurement reasons all favoured the lifting of the suspension

    “74. I am satisfied that on the very particular and unusual facts of this case the balance of convenience clearly favours the lifting of the automatic suspension. I have reached this conclusion having carefully considered and reviewed all of the evidence and submissions advanced in this case and have reviewed relevant aspects of the arguments made by the parties in the proceedings in December 2017. I have reached this conclusion for several reasons including:-

    (1)        The highly unusual circumstances in which the HSE has had to provide for a bridging contract where, due to time and resource constraints, it has not been possible for judgment to be given in the application in the review proceedings and in the plenary proceedings before the end of the existing contractual arrangements through no fault of any of the parties;

    (2)        The potentially very short duration of the bridging contract, initially three months with provision for a further extension of three months, further extensions of three months up to a total duration of 12 months with provision for termination on one month’s notice. I note the HSE’s stated intention to terminate the bridging contract at the earliest opportunity on which it is lawfully possible for it to do so in the event that it is permitted to enter into the distribution contract with Freightspeed;

    (3)        The decision by the HSE that it will not roll over or extend the existing contracts beyond 31st January, 2018 for public procurement reasons. While there is a serious dispute between the parties as to whether the HSE can lawfully do so, and I have touched on the parties’ respective contentions in that regard earlier in this judgment, I cannot resolve that issue on this interlocutory application. There are arguments either way. However, the fact of the matter is that the HSE will not roll over or extend the existing contracts. If it does not do so, and if it cannot enter into the bridging contract for the short duration required, then there will be very serious implications for patients and end users of these very important medical products;

    (4)        I am persuaded by Dr. O’Sullivan’s evidence that it is critical that there be continuity in the supply of these products from 31st January, 2018, and I refer in paragraph to paras. 5, 6 and 7 of her affidavit in that regard, which I do not propose to repeat in this judgment but I refer to those three paragraphs in particular;

    (5)        The interests of patients and end users afford a very strong argument to my mind in favour of lifting the automatic suspension where the HSE has made it clear that it cannot or will not roll over or extend the existing contracts. The correctness or otherwise of the parties’ respective legal contentions on Regulation 72 of the 2016 Regulations and on Pressetext may ultimately have to be decided at trial but I cannot conclusively do so at this stage in the proceedings. In my view it is critical that there is absolute clarity that these essential products are distributed to patients after 31st January, 2018. Like Costello J. in Powerteam, albeit on different facts, I conclude that any doubt or question over this issue should weigh and must weigh very heavily in the balance of convenience issue and clearly favours the lifting of the automatic suspension on the facts of this case;

    (6)        The absence of an unqualified undertaking as to damages is also a factor which I take into account and which favours the lifting of the automatic suspension;

    (7)        While there is undoubtedly a public interest in ensuring that public procurement law is fully complied with, I am not in a position at this stage of the proceedings to conclude that there is anything unlawful in what the HSE intends to do in relation to the bridging contract. This is a matter which will have to await determination at the trial;

    (8)        Finally, as far as the maintenance of the status quo is concerned, while I do not place enormous weight on this factor, it is the case that having regard to the approach which the court has to take on applications such as this, as explained by Costello J. in Powerteam, the status quo is that there is no suspension and so the lifting of the suspension will maintain the status quo. I do not have to fall back, however, on the maintenance of the status quo in view of my conclusions earlier and in light of the other factors which I have considered.”

  • Coolsivna Construction Limited v Meath County Council (High Court, unreported, 26 July 2024)

    Region: Ireland

    Suspension Lifted? YES High Court lifts automatic suspension for Framework Agreement for the construction of social and affordable housing

    McDonald J

    Key Factors:

    Bearing in mind that discovery had not been agreed, the earliest that a judgment could be estimated to be given on the substantive action was April 2025 (8-9 months from the date of the hearing of the application to lift)

    Winning contractor was ready to commence the construction of 47 homes (the first contract under the Framework being automatically awarded to the winning bidder)

    Construction on other projects could be commenced before end of 2024 if suspension lifted and mini-competition allowed to take place

    “[It] seems to me that the continuation of the stay will have a significant impact at local level in delaying by eight or nine months the date when something of the order of 348 to 520 homes will be made available to those who are currently without a home they can call their own”

    There was very little evidence of the damage that would be done to the Applicant if the suspension was lifted and what was put forward was said “in extraordinarily broad-brush terms”; there was no evidence as to how there could be a loss of reputation as a consequence of not being on the Framework; there was no evidence of the Applicant being at risk of losing valuable staff

    The Notice Party did provide evidence of loss of staff if the automatic suspension remained in place

    The Court did not accept the contention that damages would not be available to the Applicant, particularly where a Francovich undertaking had been given by the Respondent

    But the Court accepted that damages would not be a wholly adequate remedy: “I’m therefore prepared to accept that notwithstanding what I have said about the availability of damages to be assessed on the basis of a loss of a chance, an award of damages will not completely compensate Coolsivna if it ultimately succeeds at trial and in the meantime no stay is placed on the award of the Framework Agreement. It seems to me that I should accept that while Coolsivna has a remedy in damages, the remedy is in fact an imperfect one and one which is not wholly adequate to compensate it if ultimately successful in the proceedings, and that is therefore a consideration that must be weighed in considering where the balance of justice lies.”

    However, other factors supported a lifting of the automatic suspension, including (i) the position of the Notice Party; (ii) the real risk that it would be impossible to restore the status quo ante; (iii) the very important public interest in giving effect to the orderly implementation of measures which were prima facie valid; (iv) the Council’s interest in implementing a project which took several years of preparation; (v) the extra time that would be required to conduct individual tenders for construction projects outside the Framework; (vi) the very obvious and pressing public interest in addressing the homelessness crisis; (vii) the fact that though imperfect, damages were available as a remedy for the Applicant; (viii) adverse consequences for the Respondent could not be remedied by an award of damages.

    The Applicant’s interests were “far outweighed” by the importance of progressing the housing projects.

  • Construcciones Y Auxiliar De Ferrocarriles S.A. v Iarnród Éireann - Irish Rail [2025] IEHC 645 (Twomey J)

    View Case

    Region: Ireland

    Suspension Lifted? Yes. High Court lifts automatic suspension on €650m train manufacture and maintenance contract

    (Twomey J)

    Background: 

    • Award decision notified: 18 September 2025
    • Proceedings issued by CAF (triggering the automatic suspension): 17 October 2025
    • Application to lift the automatic suspension issued by IR/NI Rail: 28 October 2025.
    • Hearing of the lift application: 18 November 2025
    • Judgment delivered: 26 November 2025.

     

    Key Factors:

    • If the suspension was not lifted, it was unlikely that the contract would be signed at all (due to the unavailability of production slots and the requirement for EU funding to be drawn down by a certain date)
    • If the contract was not signed by 30 November 2025, it was likely that €165 million in EU funding would be lost
    • The Applicant was not prepared to offer an undertaking as to damages to cover this €165 million sum
    • Public interest favoured lifting; allowing a prima facie valid procurement to proceed, avoiding loss of EU funding (and consequent taxpayer impact), emissions reductions, and accessibility improvements for disabled passengers.
    • “Status quo” was no suspension, so if matters were finely balanced, that would favour lifting (and in any event it was an additional factor here).

     

    “[51] To conclude in relation to the unique and most important aspect of this case (i.e. the risk of the loss of EU Funding if the suspension is not lifted), in this Court’s view, while some of the other factors in the case might support CAF’s position, and some might support IR/NI Rail’s position, the foregoing factors regarding the EU Funding are determinative of whether the continuation of the suspension is justified on the balance of justice. In particular, this is:

    • because of the magnitude of the funding (€165 million) which is likely to be lost -a fact starkly highlighted by the failure of CAF to undertake to compensate IR/NI Rail in this sum, if the EU Funding is lost as a result of the suspension being continued, and

    • because the suspended contract is likely not just to be delayed, but to be extinguished, if the suspension is continued.

    [52] Another way to view this unique case is that, unlike the usual suspension-lifting cases, CAF, if it is successful in having the suspension continued, and then is successful at the trial, is not going to benefit from the Contract. This is because, based on the evidence before this Court, the Contract will be extinguished, since the EU Funding for same is unlikely to be available.”

  • Atlantic Endeavour Limited - Office of Public Works [2025] IEHC 324 (Simons J)

    View Case

    Region: Ireland

    Suspension Lifted? Yes. High Court lifts automatic suspension on allocation of land permits boats to land boat passengers on Skellig Michael.

    Background

    • Tender decision: 27 March 2025.
    • Proceedings issued: 14 April 2025.
    • Landing season scheduled to commence: 8 May 2025.
    • Hearing of lift applications (heard together): 3 June 2025.
    • Judgment delivered: 5 June 2025 (omnibus judgment)
    • Substantive action (priority hearing): 21 July 2025.

     

    Key Factors

    • That there was a serious issue to be tried was not contested.
    • The ‘crucial point’ for lifting the suspension was whether the contract created rights only for the 2025 season.
    • Minimal prejudice to the unsuccessful tenderers because damages were an adequate remedy for the 2025 landing season, and the usual rationale for preserving pre-contractual remedies was weakened where the concluded contract only covered 2025.
    • OPW’s admission that if a breach of EU procurement rules were proved, it ‘can be considered sufficiently serious’ for Francovich damages (subject to damage/causation) was broad enough to ensure damages would be an effective remedy.
    • The adverse impact on successful tenderers and the local economy would be disproportionate when set against the benefit to the unsuccessful tenderers, and the public interest in orderly implementation of  lawful public decisions weighed against restraining contract conclusion.
    • The landing season is very short and one month had already been lost; continuing the suspension would likely prevent landings for a further six or seven weeks.
    • Early trial date was a factor (disruption would be short-lived) but the balance of convenience still favoured lifting given the short season and consequences of continued delay.

     

    “[34] The appended contract is thus confined to the 2025 landing season. It does not confer any contractual rights beyond that period of time. Whatever the full extent of the inchoate rights which the successful tenderers may ultimately enjoy, the only right which the OPW seek to translate into a concluded contract prior to the determination of the judicial review proceedings is confined to the 2025 landing season. This is the crucial point for the purpose of the application to lift the automatic suspension.”

    …

    “[43] The principal factors in favour of the hypothetical interlocutory injunction are, first, that the conclusion of the contract would relegate the claim in respect of the 2025 landing season to a claim for damages; and, second, that any disruptive effect upon the successful tenderers and the wider public interest will be short- lived by virtue of the early trial date. The principal factors against are, first, that the prejudice to the unsuccessful tenderers is minimal in that damages are an adequate remedy in respect of the 2025 landing season; second, that the adverse impact on the successful tenderers and the local economy would be disproportionate to the benefit to the unsuccessful tenderers; and, third, that the public interest in the orderly implementation of prima facie lawful decisions of public authorities militates against enjoining the conclusion of the contract.”

    …

    “[55] In summary, therefore, this court is satisfied, for the reasons outlined above, that the balance of justice would lie in favour of refusing the hypothetical interlocutory injunction. The potential prejudice to the unsuccessful tenderers if the appended contract is to be concluded prior to the hearing and determination of the judicial review proceedings is outweighed by the potential prejudice to the successful tenderers and the local economy if no landings at Sceilg Mhichíl are to be permitted for a further six or seven weeks. The landing season is very short: one month has already been lost. The trial will not take place until 21 July 2025.”

• Northern Ireland
  • John Sisk & Son Holdings Ltd v Western Health & Social Care Trust [2014] NIQB 56 (Stephens J)

    View Case

    Region: Northern Ireland

    Suspension Lifted? Yes. High Court lifts suspension on entry into construction framework agreement, the initial project of which included construction of a hospital

    (Stephens J)

    Key Factors

    • Determining factor: damages would be an adequate remedy for the Plaintiff
    • Also, damages not adequate for the Trust
    • Overriding public interest in new hospital being constructed in an appropriate timescale

    Element of the analysis that damages were adequate for the Plaintiff included the following

    • The Plaintiff was not an incumbent
    • The difference in marks was very small
    • Loss of Profits could be calculated by an expert
    • Plaintiff failed to provide sufficient evidence to support a reputational argument
    • No evidence staff would leave
    • No evidence to support claim that Plaintiff would be deprived of opportunities to develop economies of scale and market share

     

    “[60] First, in some public procurement cases, the plaintiff is an incumbent supplier of services so that bringing to an end the requirement on the public body to refrain from entering into a contract with a different supplier has a significant impact on the plaintiff’s business with loss of staff, loss of market share, loss of standing and loss of reputation. The plaintiff in this case is not an incumbent supplier, those losses which on occasion are difficult or impossible to quantify by an award of damages are not present in this case, either at all or to that degree. The context is entirely different.

    [61] Second the difference between the marks awarded to the plaintiff and the marks awarded to McLaughlin and Harvey was extremely small. This led Mr Humphreys to submit that in relation to those parts of the plaintiff’s claim that related to evaluation and marking, that any change in the marks of the plaintiff or any diminution in the marks awarded to McLaughlin and Harvey would inevitably lead to the conclusion that the plaintiff ought to have been appointed as the preferred bidder. There was discussion as to the precise process that should be followed in such circumstances if there was a manifest error in the marking and the framework agreement had not been awarded to McLaughlin and Harvey then the court would set aside the appointment of McLaughlin and Harvey as the preferred bidder. This would leave the Trust able to remark the bids with a different evaluation panel. The plaintiffs would then have a chance of being appointed as the preferred bidder but it would not be a guarantee that they would be appointed. A different evaluation panel within its margin of appreciation might still mark McLaughlin and Harvey as the top tenderer. If the plaintiff was confined to an award of damages and there was found to be a manifest error in the marks awarded to either the plaintiff or to McLaughlin and Harvey then either Mr Humphreys is correct and the court should find that the plaintiff would have won the contract or alternatively the court should envisage what would have happened on a remarking exercise. It may be on the facts of this case that that is a distinction without any substantial difference. The significance of the difference is that if the court has to assess what would have happened on a remarking exercise there is the added complication of assessing the amount of damages appropriate to the loss of a chance. However, I consider on the facts of this case as presently known that the loss of a chance would be virtually indistinguishable from the proposition that the plaintiff ought to have been appointed as the preferred bidder. That means that in relation to claims 3-9 the court would measure a loss of profit as opposed to loss of profit as discounted by any element of chance. I do not consider there to be a triable issue in relation to Claim 1. Claim 2, if the plaintiff succeeded, would lead to the court concluding that the plaintiff ought to have been appointed as the preferred bidder and therefore the difficulties of assessing the loss of a chance would not be present in respect of Claim 2. On the facts of this case the difficulties of assessing loss of a chance is not a difficulty of any major substance.

    [62] Third, I consider that a calculation of loss of profits in relation to the construction of the new Omagh hospital could be made, I echo the sentiments expressed by Mr Justice Gillen at paragraph 62 of Resource NI Ltd by concluding that a suitable expert could calculate the profits the plaintiff would have made if awarded the contract. There will be information available to assist in that exercise such as the plaintiff’s own calculation of its profit levels when forming its tender. Its historic profit levels established by its own accounts, the details as to what in fact occurred during the construction of the new hospital including what has taken place at the preferred bidder stage. That does not mean that the plaintiffs would be confined to what McLaughlin and Harvey Ltd did or will do at the preferred bidder stage or during the course of the construction works. But rather there is or would be a template as to how another economic operator reacted in the particular circumstances.

    [63] Furthermore, if there are any negotiations or if there are any call off contracts awarded during the 4 year period all the documents in relation to those negotiations and those call off contracts will be available. There will undoubtedly be an element of chance in relation to any damages claimed in respect of a call off contract and that element of chance creates difficulties in relation to the assessment of damages. However, there is no evidence before me of any plans for a call off contract and I consider on balance that those difficulties are unlikely to emerge over the 4 years of the framework agreement. If they do then I consider that they can be addressed.

    [64] Fourth, the plaintiff alleges that there will be damage to its reputation in that it will not have the current experience and skills that it would otherwise have if it had been appointed as the preferred bidder and then awarded the framework agreement and had constructed the new Omagh hospital. Knowledge, experience and skills are aspects in the award of future contracts. In this contract the marking was weighted 80% in relation to price and 20% quality. Half of quality, that is 10% of the total weighting related to personnel assigned by the contractor to the initial project 2/16/151. The plaintiff asserts that the loss of an opportunity to contract for the new Omagh hospital project and other significant health related projects will have a significant impact on the plaintiff’s ability to qualify for subsequent major health projects. However, the information now available is that the Mater Hospital contract completed in October 2013 and that the plaintiff has submitted bids in relation to a circa £100m contract at Altnagelvin and has applied for the first stage of a circa £100m contract at the Royal Victoria Hospital, Belfast. So the plaintiff has current experience and has the opportunity of obtaining further experience. The plaintiff has not brought forward sufficient evidence for me to conclude at this interlocutory stage that there will be major difficulties in assessing damages, if any, under this heading.

    [65] Fifth, the plaintiff alleges that those members of the plaintiff’s staff who have experience in healthcare projects have an interest in and an entitlement to develop that experience. The plaintiff goes on to say that if the plaintiff cannot provide continuing experience in healthcare projects it will be difficult for it to retain its staff. There is not the necessary detailed evidence to demonstrate substance to this allegation. The staff concerned were identified at the hearing as being Mr Aherne, Mr Tierney and Mr Walsh. There is no evidence that any of them have indicated that they wish to leave because the plaintiff was not the preferred bidder for the new Omagh hospital. The plaintiff no doubt pays appropriate and proper remuneration to its employees.

    [66] Sixth, the plaintiff asserts that the loss of the new Omagh hospital contract and any call off contracts deprives the plaintiff of opportunities to develop economies of scale and market share that are critical. Again, there is insufficient evidence to establish at this interlocutory stage that there is any substance in this allegation. What are the additional economies of scale that have not been achieved with an €800m turnover? What is the plaintiff’s present market share? What was the plaintiff’s past market share? None of these questions have been addressed.

    ….

    [74] The balance comes down firmly in favour of the public interest in the construction, in an appropriate timescale, of a new hospital. There are competing public interests but any assessment is that, on the facts of this particular case, the overriding interest is that which involves the new hospital being constructed in an appropriate timescale.”

     

  • CGI IT UK Ltd v Department of Finance [2024] NIKB 49

    View Case

    Region: Northern Ireland

    Suspension Lifted? NO. High Court refuses to lift automatic suspension on contract for a digitally enabled ICT solution to support land registration services

    Humphreys J

    Key factors:

    • Claimant came second and its overall mark was very close to that of the winner
    • No Francovich undertaking was provided by the contracting authority (i.e. an undertaking that any breach would be sufficiently serious)
    • The Claimant could succeed in the case and yet not be entitled to damages
    • Existing contract could be extended and any damage in terms of higher costs would be covered by the claimant’s undertaking in damages
    • Contracting authority’s interest in upgrading its systems not given weight
    • An expedited trial could take place with a judgment within 6 months

     

    “[44] I therefore approach the question of whether it would be just to confine the Plaintiff to its remedy in damages on the basis that one possible outcome of this case is that the Plaintiff succeeds at trial on the basis of a breach which is not sufficiently serious to found an award of damages. If that were to occur, the contract would have been awarded to the wrong bidder and the Plaintiff would have spent considerable money and resources on a wholly Pyrrhic victory”

    “[47] The Defendant stresses that it wishes to upgrade and improve its services as soon as possible in order that its customers, and the public more widely, may avail of a proper modern digitalised system. This is no doubt a worthy aim but the urgency to implement it may stand in contrast to the poor contract management and repeated extensions which have characterised the existing arrangements”

     

  • Eircom UK Ltd v Department of Finance [2018] NIQB 75 (Horner J)

    View Case

    Region: Northern Ireland

    Suspension Lifted? Yes High Court lifts suspension on award of the Northern Ireland Public Shared Network (NIPSSN) contract to British Telecommunications Plc (BT).

    (Horner J)

    Background: 

    • Claimant (Eircom UK Ltd) was the incumbent supplier under the original contract awarded in 2007, which had been extended by two years to September 2019.
    • OJEU published contract notice for the NIPSSN procurement: 22 April 2017.
    • Notification of award: 4 June 2018.
    • Claimant initiated proceedings: 14 June 2018
    • Judgment was delivered: 3 October 2018.

     

    Key Factors: 

    • That there was a serious issue to be tried was conceded (both on the abnormally low tender and the competition law allegations).
    • Damages were an adequate remedy for the claimant; losing the contract would not ‘sound the death knell’ of the claimant’s NI business. There was a lack of detailed evidence to support their ‘catastrophic failure’ argument.
    • Even if the claimant’s NI business did wind up, damages would still be adequate because the loss should be ‘capable of ready calculation’ (loss of profits).
    • Where the claimant was part of a large group with substantial resources, it was artificial to treat the claimant as a standalone small entity.
    • Damages were not an adequate remedy for the Department (and BT), largely due to the likely duration and complexity of the litigation and the realistic prospect of substantial delay, potentially beyond the critical timeframe.
    • There was a real risk BT would not stand over its tender if delayed, which could force a re-procurement on different terms with further delay, harm not adequately compensable in damages to the Department.
    • The balance of convenience and public interest favoured lifting the suspension where the public would be deprived of increased efficiencies and possible price reductions if the award were delayed.
    • The greater risk of injustice/irremediable prejudice lay in keeping the suspension in place rather than lifting it.

     

    On the Adequacy of Damages

    “[28] Of course this submission on behalf of the plaintiff has to be taken on trust. There is no affidavit dealing specifically with exactly how the plaintiff’s income stream is made up. No satisfactory reason for this omission has been offered. Accordingly the court is left with having to choose between the Department’s calculation that 30% of the plaintiff’s turnover will be lost against the 80% of the turnover which the plaintiff claims will be lost if it is not awarded the NIPSSN contract. It is highly regrettable that this dispute has arisen. On the basis of the evidence filed in this application I remain unpersuaded of the claim that the loss of this contract will sound the death knell of the plaintiff.

    [29] However, even if, contrary to my finding above the loss of the NIPSSN contract was to result in the winding up of the Northern Ireland business, I still remain of the view that damages, which should be capable of ready calculation on the basis of the plaintiff’s loss of profits, will constitute an adequate remedy for the plaintiff for a number of reasons:

    (i) The claim that the plaintiff would be effectively shut out of the Northern Ireland market by BT’s competitive pricing is not borne out by the facts. In 2007 the plaintiff together with BT and Virgin Media sought to win the contract for network services in Northern Ireland. I have seen no evidence to suggest that what the plaintiff was able to accomplish in 2007 could not be accomplished when the NIPSSN contract comes up for renewal in 2024/2026.

    (ii) In any event as I have recorded the plaintiff is part of a group of companies with a turnover of well in excess of €1bn. If those in control of the group want to compete with BT they have adequate resources at their disposal to do so either now or in the future. The concentration on the turnover of the plaintiff is both artificial and contrived. The plaintiff is not a small fish swimming through hostile and uncharted waters. It is a member of a Group with access to very substantial assets. If the Group wants the plaintiff, or indeed any of its companies, to compete with BT or one of its subsidiaries in Northern Ireland, then it has the assets and the expertise to do so. I reject the submission that the plaintiff must be viewed in splendid isolation. That would be to ignore reality.

    (iii) If a large, successful commercial organisation was able to claim successfully that because one of its off shoots might go out of business if it failed to win a tender, and that therefore the award of that contract should be suspended, it would allow such an organisation to game the system. All such organisations would place their bids through small companies, which they could then claim would be “wiped out” if was proposed at the next procurement exercise to award the tender to another competitor and thus sabotage the prompt award of these types of contracts.”

    …

    “[35] Finally, I agree with Professor Arrowsmith when she says at 22-139 that “the courts are cautious about accepting such arguments, namely that loss of the contract will result in catastrophic failure”. If such claims are to be made then they need to be supported by convincing and cogent evidence as it is a claim which is all too easily made. In the present case such proof of imminent catastrophe if the NIPSSN Contract is singularly lacking. Accordingly the claim that damages will not be an adequate remedy to compensate the plaintiff if it is ultimately successful is not made out.”

    ….

    “[38] I have no doubt that the network services could continue to be provided in the meantime by the plaintiff. I do consider that any court should treat sceptically any claim by a successful tenderer that any delay caused by the unsuccessful tenderer is such that it will imperil the original offer. However given the likely delay I am satisfied that there is a real risk that BT may refuse to stand over its original tender. Another procurement process will have to be started with further delay. Any re-tender is likely to be on different terms from the present successful tender. I am satisfied that damages would not represent an adequate remedy to the Department in all the circumstances.”

     

    On the Balance of Convenience

    “[43] There has been much debate about what is in the public interest. But the case made by the plaintiff that it is in the public interest to ensure that there is no abnormally low tender and/or breach of competition law is flawed. This argument presupposes that there is an abnormally low tender and/or breach of competition law. But those issues remain to be determined by a court. To conclude that it was in the public interest to remove the suspension on this basis is to prejudge the issues that will at a later date be before the court. However it is in the public interest that the public should benefit from the increased efficiencies of BT’s tender and the possible savings that bid may bring.

    [44] I consider that on balance the risk of a greater injustice comes from leaving the suspension in place and/or maintaining an injunction. This is because it cannot be in the public interest to deprive the public generally of the benefits of increased efficiencies and possible price reductions that the new contract may bring to the public networks by delaying its award for a period of nine months and perhaps up to 15 months. The greater risk by far of irremediable prejudice lies in leaving the suspension in place and/or preventing the Department from awarding this contract to BT.”

  • Lagan Construction Ltd (t/a Charles Brand) v Northern Ireland Water Ltd [2020] NIQB 61 (Horner J)

    View Case

    Region: Northern Ireland

    Suspension Lifted? Yes High Court lifts suspension on award of Lot 2 and Lot 3 framework contracts for NI water and sewerage works

    (Horner J)

    Key Factors: 

    • Damages were an adequate remedy for Lagan; the evidence for a “doomsday scenario” was unpersuasive, particularly given the absence of cogent up-to-date financial evidence, the weakness of the expert material relied upon, and the fact that Lagan was part of a wider group.
    • Damages were not an adequate remedy for NI Water; some of the defendant’s loss could not realistically be measured in money, especially environmental harm and deterioration in water quality if urgent works were delayed.
    • If Lagan’s own case was taken at face value, Lagan would not be in a position to meet a substantial damages claim if the suspension wrongly remained in place, and no group guarantee was offered.
    • The public interest weighed overwhelmingly in favour of lifting the suspension; NI’s water and sewerage infrastructure was in a dire condition, with serious capacity problems, environmental risks, and constraints on development across Northern Ireland.
    • Significant risk of serious practical harm, including catastrophe, if the suspension continued (including the risk of sewage leakage, internal flooding risks in residential areas, and the inability to carry out urgent upgrades)
    • Delay would obstruct urgently needed housing, schools and wider development
    • At least prima facie, NI Water would face major difficulties delivering the necessary urgent works without the successful tenderer, and using other routes would be less efficient and would cause further delay.
    • Interests of the successful tenderers also supported lifting the suspension
    • Even if the balance had been equal, the status quo favoured lifting the suspension
    • The balance of convenience came down heavily in favour of the defendant.

    Adequacy of Damages 

    [58]…The evidence in the instant case is conflicting, it is unpersuasive and it is therefore difficult to afford it much weight in seeking to hold the balance justly between the parties at this interlocutory stage.

    [59] I draw attention yet again to Professor Arrowsmith’s observations at 22-139 in her book The Law of Public Utilities Procurement where she said:

    “… The courts are cautious about accepting such arguments namely that loss of the contract would result in catastrophic failure.”

    As I have observed in Eircom, to make such a claim clear, convincing and cogent evidence has to be adduced. Such evidence has been singularly lacking in the instance case. I reject the claim that damages would not be an adequate remedy for  Lagan.”

    …

    “[63] Of course, the issue of whether or not Lagan could pay damages to the defendant if it turned out that the stay should not have been extended might well be resolved if the Lagan Group of Companies guaranteed an undertaking from Lagan to reimburse any damages the defendant suffered as a consequence of an extended stay. There has been no such offer forthcoming. It is scarcely surprising. The parlous state of the Water Services in Northern Ireland and the damages that could flow from a major disaster on the evidence before this court is such that the Lagan Group of Companies in giving such a guarantee to the defendant for Lagan would be imperilling the very future of the Group. Looking at all the circumstances, I do not consider that damages will be an adequate remedy for the defendant.”

     

    On the Public Interest

    [80] Firstly, there is a significant risk, I find, that in the interim period while the suspension of the award of contracts continues, that a major catastrophe will engulf a part of Northern Ireland because of the worn out state of the Water Services. There are many obvious and serious risks relating to different areas of Northern Ireland. The Strathfoyle sewerage syphons need to be upgraded immediately. They are “beyond their design life and in a very poor condition.” At present they leak sewage into Lough Foyle which is adversely affecting the water quality. In any event it cannot be in the public interest to permit the award of new contracts for Lot (2 or) 3 under IF105.

    [81] Secondly, there are over 30 properties in the Ravenhill Road and Sicily Park/Marguerite Park areas which are at risk of internal flooding, a risk which includes flooding from sewage. The defendant is in a position to award contracts in these areas immediately to ensure this does not happen. But it is prevented by the suspension which has been imposed as a consequence of Lagan’s claim.

    [82] Thirdly, the failure to upgrade equipment and resources means that many areas of Northern Ireland are unable to develop in the way they wish because of constraints imposed by the limitations of the Water Services. This means for example that there will be citizens in Limavady unable to obtain new housing because of the inability to develop the former Gorteen House Hotel for housing. Perhaps more importantly, children will be denied the opportunity to attend a new school which cannot be built on agricultural land in the area close to the Ballyquin Road, which has been earmarked for the project, because the Water Services in the area do not have sufficient capacity.

    [83] Fourthly, there is Meadow Lane, Portadown, where the Water Services need major upgrading to avert a serious potential problem in the future and where the defendant is in a position to award a contract immediately and so remedy years of neglect.

    [84] In the circumstances it is impossible not to conclude that it is overwhelmingly in the public interest to remove the suspension and allow the urgent work to be carried out under Lot 3.”

     

    Balance of Convenience

    [85] There are the interests of the other parties who successfully tendered for (Lot 2 and) Lot 3. Their interests require that they should be awarded the contracts for which they successfully tendered. They are being denied the opportunity to revamp, improve and transform the Water Services and earn profits because of this legal action by Lagan. It is not suggested that any of the successful tenderers have done anything untoward.

    …

    [90] I am satisfied the proceedings have been pursued vigorously and without undue delay. I do not have sufficient information to make any ruling on whether there was undue delay before the present application was made. Importantly I have concluded the balance of convenience comes down heavily in favour of the defendant. Even if the balance of convenience had been evenly distributed, which it is not, the status quo ante bellum requires that suspension should be removed. In the circumstances, I remove the stay preventing the defendant from awarding contracts to successful tenderers in respect of Lot (2 and) 3.”

  • TES Group Ltd v Northern Ireland Water Limited [2020] NIQB 62 (Horner J)

    View Case

    Region: Northern Ireland

    Suspension Lifted? Yes High Court lifts suspension on award of Lot 2 contracts for minor works relating to NI water and sewerage services.

    (Horner J: complementary decision to the Lagan judgment)

    Key Factors:

    • Damages were an adequate remedy for TES who failed to provide convincing, up-to-date financial evidence; any proven loss could be quantified and compensated in damages.
    • Damages were not an adequate remedy for NI Water; there were real difficulties in quantifying the defendant’s losses from delay, inefficiency, increased costs, delayed maintenance, and lost efficiency savings. More importantly, even if those losses could be quantified, there was no reliable evidence that TES could satisfy an undertaking for those losses.
    • The balance of convenience favoured the defendant
    • Public interest favoured lifting the suspension; still in the public interest that Water Services should not suffer from delayed maintenance, deteriorating assets, leakage, inefficiency, and failure to carry out basic maintenance in a timely way.
    • The interests of the successful tenderers supported lifting
    • TES bore the burden of justifying continuation of the suspension and did not discharge it
    • Even on a status quo analysis, lifting was favoured
    • Lifting the suspension caused the least irremediable prejudice.

     

    Adequacy of Damages 

    [42] However, regardless of whether or not damages can be calculated, the real problem lies not with the quantification of damages but the payment of those damages. The loss suffered by the defendant if it is unable to make the efficiency savings on any view is likely to be very substantial amounting to hundreds of thousands of pounds over the course of the contract.

    [43] Even if damages could be quantified, an award of damages would not be an adequate remedy because the court has no evidence before that it could rely on which would permit it to conclude that TES could honour any undertaking to discharge the defendant’s loss. There can be no doubt that TES has been profitable in the past and that there were cash reserves. But that is in the past and TES’s own case is that failure to win this tender will put its lights out. A deliberate decision was taken not to adduce up-to-date financial information as to TES’s performance. The consequence is that the court is at a loss to know whether the undertaking being offered has and will have any substance. In all of those circumstances I conclude that damages will not be an adequate remedy for the defendant if TES’s claim fails.

     

    Balance of Convenience

    “[51] The risk of a major disaster as a result of the failure to implement Lot 2 is of a wholly different order from the risk of failing to implement Lot 3. The court accepts there is a risk of lack of basic maintenance and deteriorating assets leading to leakage of water and sewerage. However, nowhere is there the same pressure that exists with the Lot 3 works. There is, for example, no imminent prospect of a catastrophic calamity if Lot 2 work is not carried out such as exists, for example, with the Strathfoyle sewage syphons under Lot 3. However it cannot be in the public interest to endure dilapidated and deteriorating Water Services because, inter alia, basic maintenance is not carried out in a timely fashion. So the public interest is in favour of the defendant but not to the same overwhelming extent that it is with Lot 3.

    [52] There are the interests of the other parties who successfully tendered for Lot 2 to be taken into account. Their interests require that they should be awarded the contracts for which they successfully tendered. They are being denied the opportunity to revamp, improve and transform the Water Services and earn profits because of this legal action by TES. It is not suggested that they have done anything untoward.

    …

    [54] The factors in this case are not evenly balanced. The factors come down in favour of setting aside the order and permitting the defendant to award contracts to the successful tenderers in respect of Lot 2. However, even if the arguments were evenly balanced, which they are not, the status quo ante bellum is to permit the defendant to award the contracts in respect of Lot 2 to the successful tenderers.”

     

  • CSC Computer Sciences v Business Services Organisation [2019] NIQB 18 (Horner J)

    View Case

    Region: Northern Ireland

    Suspension Lifted? The challenge arose after CSC was excluded at the Selection Questionnaire stage; this was an interlocutory application for an injunction to stop the procurement proceeding. High Court refuses injunction to suspend the award of the Electronic Health and Social Care Record (Encompass) procurement contract.

    (Horner J)

    Key Factors: 

    • That there was a serious issue to be tried was conceded
    • Damages would not be an adequate remedy for the Claimant; quantifying the claimant’s loss would be highly speculative because CSC had been excluded at the initial sift and damages would require assessing ‘a chance heaped upon a chance and another chance’
    • Damages would not be an adequate remedy for the defendant, because the loss from delaying a province-wide EHCR roll-out (public benefit/service improvement) is extremely difficult to quantify, and re-running a competition could change who bids and on what terms.
    • Public interest (decisive) in completing the procurement promptly so that citizens could benefit from a fully integrated electronic health and care record.
    • Given how far the procurement had progressed, a central factor was that granting an injunction would likely force a full re-run (rather than simply “pausing” and inserting CSC) which would take a significant amount of time.
    • The claimant waited roughly three months after issuing the writ to seek an injunction; the Court found this delay was not satisfactorily explained, and that it materially magnified the public-interest harm because the procurement had advanced significantly in the meantime.
    • Balance of convenience strongly favoured refusing an injunction and allowing the procurement to continue

     

    Adequacy of Damages

    [30] There can be no doubt that even adopting a robust approach it would be difficult to quantify the plaintiff’s financial loss. This is in part because of the way this particular procurement process operates. The plaintiff has been excluded at the initial sift when the plaintiff was advised that it had not been admitted to the dialogue phase of the procurement competition. Four tenderers were successful. There was then the ISOS OBS stage which has produced two final bidders for the shortlist. It is now a head to head contest with the procurement process set to produce an outright winner by 18 March 2019 if this application does not intervene.

    [31] A court will have to assess the chance of the plaintiff making the first sift, then the second sift and finally overcoming the remaining bidder in the final head-to-head. This is bound to involve a speculative assessment of a chance heaped upon a chance and another chance. It does seem to me that an award of damages in these circumstances would inevitably involve too much speculation and too little science. Such an award is likely to be unfair to one or other of the parties.

    [32] On the issue of reputational damages, I am not satisfied from the evidence that these should weigh heavily in the balance. This is a multi-national company excluded from what must be, by its terms, a comparatively modest contract in Northern Ireland. There is no cogent evidence that the plaintiff will suffer any damage to its reputation if it is denied this contract.

    [33] I am also not satisfied that damages would represent an adequate remedy to the defendant. I intend to discuss the benefits this contract will bring to the public in a little more detail in the following paragraphs but it does not seem possible to quantify the loss which the defendant will suffer if it is unable to roll out the EHCR for the great benefit of all the inhabitants of Northern Ireland. The defendant is not a profit driven enterprise. It is in the business of improving the health and welfare of citizens of Northern Ireland. Of course substantial costs have been incurred which can be calculated and quantified. But the cost of putting this scheme back six months at a minimum gives rise to a loss that will be extremely difficult to calculate. Also it cannot be assumed that if the competition is to be run again (and I consider this to be highly likely for the reasons which I set out below) that the same tenderers will re-enter the competition or, if they do, that the prices or services offered will be on the same terms as before.

     

    Balance of Convenience

    “[36] It seems to me that there is considerable force in the claim of the defendant that if an injunction is granted the whole process will have to be run again. If the competition is not rerun then there could be all sorts of problems as the defendant has emphasised. It would not make sense for the plaintiff to go through to the final stage when 2 other bidders have been excluded and the plaintiff has not been involved at all in the various procedures set out above. There would inevitably be a challenge by these disgruntled tenderers who should be able to argue that they were expected to compete with the plaintiff in circumstances where the relevant information concerning the approach and methodology adopted by the other bidders in putting forward their submissions last year is likely to be available within the wider market.”

    …

    “[48] The strengths and weaknesses of the plaintiff’s case have not been explored in this application but for the reasons given the delay has affected the defendant. It seems to me that on the facts of this particular case the delay of the plaintiff severely impedes the court in the practical act of doing justice on this application. In a procurement case such as this, delay will mean that substantial benefits are denied to the public for a period of time, 6 months at a minimum, which will have adverse public interest consequences, which I have discussed above. The court is entitled to take this delay into account, and who is responsible for that delay in determining whether to grant an interim injunction. In this case the court has concluded that the majority of the delay was occasioned by the plaintiff and that the consequences for this delay must be borne by the plaintiff. In the court’s view the public interest is the decisive factor in considering “the balance of doing an injustice”. There is considerable public interest in ensuring the procurement process is completed as soon as possible so that the citizens of Northern Ireland can enjoy the benefits that the EHCR will bring. In this case the effect on the public interest has been magnified by the time the plaintiff has taken to bring this application to the court’s attention. While the defendant cannot escape some criticism for failing to respond promptly to correspondence, the plaintiff had control of these proceedings. The suggestion that the defendant should have stopped the procurement process on receipt of the Writ of Summons is without merit. It was the responsibility of the plaintiff to bring this application to the attention of the court as soon as reasonably possible. All counsel and solicitors who operate in the Commercial List should know that procurement cases will be fast tracked and will receive an early hearing. The plaintiff has not provided a satisfactory explanation for its delay.”

  • Omagh Forum for Rural Associations v Department for Agriculture, Environment and Rural Affairs [2023] NIKB 14 (McBride J)

    View Case

    Region: Northern Ireland

    Suspension lifted? No. High Court maintains suspension on award of rural community support services contract for the Fermanagh and Omagh District Council area.

    Background:

    • Intention to award issued: 16 August 2022.
    • Proceedings issued: 5 September 2022.
    • Directions hearing: 15 December 2022.
    • Statement of claim served: 6 January 2023.
    • Defendant’s lift application: grounding affidavit sworn 10 January 2023.
    • Judgment delivered: 30 January 2023

     

    Key Factors:

    • That there was a serious issue to be tried was conceded.
    • Damages were not an adequate remedy for the Plaintiff where it is a not-for-profit and the incumbent provider, and loss of the contract would likely mean losing uniquely experienced staff, undermining its ability to carry out its charitable purpose.
    • Financial dependence was significant.  The contract was essential to the organisation’s long-term survival, and without it the plaintiff would suffer “catastrophic consequences” not compensatable in damages.
    • It was conceded that damages were an adequate remedy for the defendant which materially reduced the prejudice to the defendant from maintaining the suspension.
    • Public interest/continuity of services did not justify lifting the suspension. The evidence did not establish definitively that a gap would occur and, even if it did, the services were not ‘acute’ services. While vital, the impact of a gap would be less detrimental than in acute-service cases. In any event, the Court made directions for an expedited hearing, so any gap would likely be short.
    • Delay was not a factor favouring lifting, because the Court was satisfied an expedited trial timetable was achievable.
    • The interests of the successful tenderer were a factor in the balancing exercise but the plaintiff’s inability to be compensated in damages and its incumbent status tipped the balance in favour of the suspension remaining.
    • The least irremediable prejudice favoured keeping the suspension, and no conditions were imposed.

     

    On the Adequacy of Damages

    “[31] First, the burden of proof lies on the plaintiff. Arrowsmith at paragraph 22-

    “… the courts have held that the burden of proof … lies on the party seeking suspension and there must be a real prospect of loss attributable to the loss of the contract at issue that would not be recoverable in damages – Open View Security Solutions v the London Borough of Merton Council [2015] EWHC 2694 at para [39].”

    [32] Second, the plaintiff must produce solid, cogent evidence that damages are not adequate. Mere bald assertions are usually not sufficient – see TES Group at paragraph [32]. In TES Group, Horner J, set out the types of evidential materials which should normally be provided where a party is seeking to establish that damages are not adequate. Obviously, the documentation which should be provided will vary depending on the facts of the case.

    [33] Third, the amount of damages that may be recoverable is immaterial. The question is always whether damages are an adequate remedy.

    [34] Fourth, the party seeking suspension must show a real prospect of loss attributable to the loss of the contract at issue that would not be recoverable in damages – see Open View.”

    …

    “[41] In accordance with the existing jurisprudence, the fact a body is a not-for-profit entity may make it more likely that it cannot be adequately compensated in damages but the burden nonetheless remains on the not-for-profit organisation to prove by evidence why this is so.”

    …

    “[43] Given that the plaintiff is the incumbent provider of the Services I am satisfied on the evidence of Mr Bunting, that the loss of the Contract would inevitably lead to a loss of staff who are uniquely experienced. As a consequence, the plaintiff would be unable to carry out its charitable purpose and the activities which lie at the very heart of its existence, namely providing support and assistance to community and voluntary groups in the local rural area.

    [44] Further, the Contract accounted for well over half the plaintiff’s turnover in 2021 and over a third of its turnover in 2022. In these circumstances I consider the Contract is essential to the long term survival of the organisation and without this Contract I consider the plaintiff would suffer catastrophic consequences which are not compensatable in damages.“

     

    On the Balance of Convenience

    [52]  The public interest weighs heavily in the balance in procurement cases as noted by Horner J in TES Group at paragraph [48]. In this case the defendant says the public interest lies in awarding the contract to ensure that there is continuity of vital services to rural areas. Mr Hopkins submitted that the Services will cease from 31 January2023 as the defendant has received legal advice indicating they should not extend the contract beyond this date. Mr Anderson on behalf of the plaintiffs submitted that this was an arbitrary date and it still lay within the power of the defendant to extend the contract beyond 31 January 2023, and the defendant has been advised not to do so because of a risk of a challenge by a third party.

    [53]  I do not accept that there will, of necessity, be a gap in the provision of Services. Firstly, Mr Bunting in his evidence, did not say this definitively. He indicated that this was a risk. I note that the defendant has extended the contract with the plaintiff several times in the past. I am satisfied that it could, if it so chose to, again, extend the contract but in doing so it will make a judgment about the risks, weighing the risk of a challenge against the risk of Services not being provided to the public. In these circumstances I am not satisfied that there will, of necessity, be a cessation of Services after 31 January 2023 especially as the plaintiff remains able and willing to provide the Services.

    [54] Secondly, even if there is a gap in the continuity of the Services that would be because of a decision made by the defendant. Thirdly, I consider that the services are not acute services and, whilst they are vital services, the impact of a gap would not be as detrimental as those involving the provision of acute services.

    [55] Fourthly, given that I have made directions for an expedited hearing, I consider that any gap in services will be of short duration.

    [56] In the present case there is another party who had successfully tendered for the contract. Their interests require that they should be awarded the contract for which they successfully tendered. The interests of the other successful party is a matter which must also be taken into account in the balancing exercise.

    [57] In carrying out the balancing exercise, I have taken all the factors set out above into consideration. I have also taken into account the merits of the case, (although I have given little weight to this) and I have also taken into account the fact that the plaintiff cannot be compensated in damages and the fact that it is the incumbent provider of the Services. Balancing all these various factors it is my view that the balance of convenience tips in favour of the suspension remaining in place.”
• Scotland
  • Amey Ow Limited V North Lanarkshire Council [2024] CSOH 66

    View Case

    Region: Scotland

    Suspension Lifted? YES. Outer House of the Court of Session lifts automatic suspension on contract for roads and infrastructure maintenance

    (Lord Sandison)

    Key factors:

    • Claim as to reputational loss was unpersuasive and damages not otherwise shown to be sufficiently difficult to assess so as to weigh in the balance
    • Delay in the contract – for a period of 6 months, a reasonable estimate for the action to be determined – would adversely impact on the public interest by delaying the contribution to be made by the contract to wider economic and investment related activities
    • The approach in Scotland may place less importance on the question of adequacy of damages than is the case in England and Wales
    • The automatic suspension constitutes the status quo (unlike in England and Wales)

     

    “[34] In Scots law, the American Cyanamid method was, in substance if not in point of form, rejected as a general approach to the grant or recall of interim orders by the Second Division in Toynar Ltd v Whitbread & Co plc 1988 SLT 433, 1988 SCLR 35, the court noting with considerable understatement that “it is not clear that the attitude of the court towards injunction in England is precisely the same as the attitude of the court towards interdict in Scotland.” However, it may be that the American Cyanamid approach is in general terms actually more consistent with regulation 90(2), save for its particular focus on the primacy of issues arising out of adequacy of damages in the assessment of where the balance of convenience lies, a focus which is not obviously mandated by the terms of the regulation and which, while undoubtedly relevant, would not otherwise be regarded in Scots law as being of quite such centrality to the determination of an application for interim regulation.”

    …

    “[36] The English courts (Edwards-Stuart J in Circle Nottingham at [16], followed by O’Farrell J in Draeger at [48]) have held that if the factors relevant to the balance of convenience do not point in favour of one side or the other, then the prudent course will usually be to preserve the status quo ante, and have identified that status quo ante as the situation which pertained prior to the automatic suspension, so that the proposed contract would in those circumstances be allowed to proceed. The reasoned basis for such an identification of the status quo ante is not made clear in either case, seems to sit ill with the principle ut lite pendente nihil innovetur, and does not obviously emerge as the necessary approach from the way in which the matter was dealt with in American Cyanamid, set out above. Another way of approaching essentially the same question is to ask on whom the burden of showing that the automatic suspension should be lifted lies. The answer to that question in the law of England and Wales appears to be that it lies on the claimant (OpenView, per Stuart-Smith L at [39ii], see also Medequip per Eyre J at [45]). On the other hand, Lord Malcolm in Shetland Line at [13] referred to a “requirement on the authority to persuade a court to lift” the automatic prohibition, which respectfully appears to me to fit with what I would regard as the appropriate analysis, that the automatic suspension is the status quo which the pursuer has to attempt to dislodge.”

    …

    “[41] I consider that those remarks are apposite to the situation described by Mr Adams. Not being satisfied that reputational loss to the pursuer (and the consequent difficult assessment of damages which might follow thereon) is a probable consequence of the removal of the automatic suspension, I leave it out of account in the balance of convenience exercise. No attempt was made to persuade me that any other aspect of the pursuer’s alternative damages claim would qualify as sufficiently difficult to assess as to weigh on that account in that balance.”

    …

    “[43] Turning to what the defender has to place in the balance, some of its more pressing expressed concerns (e.g. an imminent prospect of failing in the fulfilment of its statutory duties as local roads authority) fall to be regarded as having been assuaged by the pursuer’s undertaking to continue its existing services until the dispute is resolved. Others, such as the prospect of bids being withdrawn, or a full re-procurement exercise having to be undertaken, fail to meet the qualifying criterion of probability to be entered into the balancing exercise to be carried out in terms of regulation 90(2). However, there remain the defender’s claims, vouched by the affidavits of Ms McDowall and Mr Ashcroft, that the procurement exercise in question forms part of a wider enterprise project with the important public objectives set out in Answer 39 and noted above, and that any delay in the award of the contract to Hochtief would delay the contribution to be made by the contract to the achievement of those wider economic and investment related activities within North Lanarkshire. Although I do not as presently agree with the apparent suggestion (again, seemingly heavily influenced by the supposed need to deploy at every opportunity the concept of the adequacy of damages) by Eyre J in Medequip at [110] that a public authority’s inability to deliver future services in the way it wishes falls to be regarded as sounding in damages which it would be exceptionally difficult to quantify, and for that reason weighs in the relevant balance, it does appear to me that in the present case there would probably be clear and vouched damage to the public interest, along the lines just discussed, in the local authority area for which the defender is responsible, were the award of the contract in question to be delayed for the period which appears likely to be required finally to determine the action (an estimate of six months seems reasonable in that regard) were the automatic suspension meantime to remain in place. That consideration appears to me to outweigh, by a moderate but decisive measure, the others properly in the balance contemplated by regulation 90(2).”

  • Hastings & Co (Insolvency) Ltd v The Accountant in Bankruptcy [2013] ScotsCSOH 55

    View Case

    Region: Scotland

  • Scott & Co (Scotland) LLP v Aberdeenshire Council [2016] CSOH 64 (Lord Doherty)

    Region: Scotland

    Suspension Lifted? No. Outer House of the Court of Session maintains suspension on award of Aberdeenshire Council’s sheriff officer services contract.

    (Lord Doherty)

    Key Factors

     

     

  • Patersons of Greenoakhill Limited v South Lanarkshire Council [2014] CSOH 21 (Lord Tyre)

    Region: Scotland

    Suspension Lifted? Outer House of the Court of Session

We discuss and analyse the most significant factors  considered by the courts in applications to lift the automatic suspension. The same factors tend to arise again and again, although the focus in a particular case will depend on the  facts, the evidence and the arguments advanced. While each case will turn on its own facts, the courts often employ and rely on earlier decisions for the purpose of establishing and applying certain principles or points of emphasis, so that precedent does play an important role. That said, it is not always easy to identify clear principles and the same factor can be treated quite differently from one case to the next (partly a reflection of the fact-sensitive nature of the decision-making process, as well as the discretionary nature of the decision being made by the judge).

• The Test on an Application to Lift

  To date, the English courts have applied the American Cyanamid test in deciding whether to lift the automatic suspension. Notwithstanding that the application is brought by the Defendant contracting authority, the burden is on the Claimant to show that the suspension should remain in place pending trial.

  The American Cyanamid test applies generally in applications for interim injunctions. In the context of applications to lift, the test was expressed as follows in Camelot Lotteries Ltd v Gambling Commission [2022] EWHC 1664 (TCC) (O’Farrell J) at [48]:

  “(i) Is there a serious issued to be tried?

  (ii) If so, would damages be an adequate remedy for the claimant(s) if the suspension were lifted and they succeeded at trial; is it just in all the circumstances that the claimant(s) should be confined to a remedy in damages?

  (iii) If not, would damages be an adequate remedy for the defendant if the suspension remained in place and it succeeded at trial?

  (iv) Where there is doubt as to the adequacy of damages for either of the parties, which course of action is likely to carry the least risk of injustice if it transpires that it was wrong; that is, where does he balance of convenience lie?”

  The case law has shown that if damages would be an adequate remedy for the Claimant, that is generally the end of the inquiry. Many cases have been decided on that basis. Where damages are not adequate for the Claimant, the court will consider whether damages are adequate for the defendant. Invariably, they are not. The court then goes on to consider the balance of convenience, or the question of where the least risk of injustice lies.

  The argument has been raised in recent English cases (in particular in some intellectual property cases) that the test as formulated above is too formulaic and that instead of this rigid sequential approach (in particular, where the application can be decided if the court finds that damages are adequate for the claimant), the question of the adequacy of damages ought to be considered as part of the overall question of the balance of justice. In an application for permission to appeal in an intellectual property case, a three-member panel of the UK Supreme Court noted:

  “The panel considered that there is a point of law of public general importance touching on the question whether the four-stage test outlined by Lord Diplock in American Cyanamid v Ethicon [1975] AC 396 should be applied in a rigid and strictly sequential manner or whether a more overarching and flexible approach to the issues adumbrated by Lord Diplock would be appropriate – cf the observations of Lord Goff in R. v Secretary of State for Transport Ex p. Factortame Ltd (No.2) [1991] 1 A.C. 603.”

  However, permission to appeal in that case was refused, partly because of the imminence of the trial (see Neurim Pharmaceuticals (1991) Ltd & Anor v Teva UK Ltd [2022] EWHC 1641 (Pat) at [21]). In subsequent cases below Supreme Court level, the courts have emphasised that they are bound by American Cyanamid (see Astrazeneca AB & Anor v Glenmark Pharmaceuticals Europe Ltd [2025] EWCA Civ 480 at [36], [74]).

  All this said, the position in the case law is perhaps not so simple. Some cases do seem to apply a quite rigid approach to the assessment of the adequacy of damages, with the decision being made to lift the suspension once the court has determined that damages would be adequate for the Claimant. For example, in Millbrook Healthcare Ltd v Devon County Council [2025] EWHC 744 (TCC), the High Court held at §35;

  “35. In all of these circumstances I find that it is just and appropriate to confine the Claimant to a remedy in damages, which will be adequate to remedy any breach. As such, that is the end of the enquiry and there is no need to go on and consider adequacy of damages for DCC or the balance of convenience: OpenView, §70; Circle Nottingham v NHS Rushcliffe CCG [2019] EWHC 1315, §18.”

  In all of these circumstances I find that it is just and appropriate to confine the Claimant to a remedy in damages, which will be adequate to remedy any breach. As such, that is the end of the enquiry and there is no need to go on and consider adequacy of damages for DCC or the balance of convenience: OpenView, §70; Circle Nottingham v NHS Rushcliffe CCG [2019] EWHC 1315, §18.

   

  However, a more nuanced position is seen in other cases. For example, in one of the earlier cases, Covanta Energy Ltd v Merseyside Waste Disposal Authority [2013] EWHC 2922 (TCC), Coulson J stated the principles as follows:

  “48. I would summarise the relevant principles concerning the adequacy of damages as follows:

  (a) If damages are an adequate remedy, that will normally be sufficient to defeat an application for an interim injunction, but that will not always be so (American Cyanamid, Fellowes, National Bank);

  (b) In more recent times, the simple concept of the adequacy of damages has been modified at least to an extent, so that the court must assess whether it is just, in all the circumstances, that the claimant be confined to his remedy of damages (as in Evans Marshall and the passage from Chitty);

  (c) If damages are difficult to assess, or if they involve a speculative ascertainment of the value of a loss of a chance, then that may not be sufficient to prevent an interim injunction (Araci);

  (d) In procurement cases, the availability of a remedy of review before the contract was entered into, is not relevant to the issue as to the adequacy of damages, although it is relevant to the balance of convenience (Morrisons).

  (e) There are a number of procurement cases in which the difficulty of assessing damages based on the loss of a chance and the speculative or ‘discounted’ nature of the ascertainment, has been a factor which the court has taken into account in concluding that damages would not be an adequate remedy (Letting International, Morrisons, Alstom, Indigo Services, and Metropolitan Resources). There are also cases where, on the facts, damages have been held to be an adequate remedy and the injunction therefore refused (European Dynamics, Exel).”

  Section 102 of the Procurement Act 2023 addresses applications to lift the automatic suspension in procurements governed by the Act. Section 102(2) provides that in deciding such applications, the court must have regard to a number of factors, which include “the public interest in, among other things”, “upholding the principle that public contracts should be awarded … in accordance with the law; “avoiding delay in the supply of the goods, services or works”; “the interests of suppliers, including whether damages are an adequate remedy for the claimant”; and “any other matters that the court considers appropriate”. The placing of the question of adequacy of damages for the claimant among a range of other factors could suggest that the test under section 102 is different to the American Cyanamid test, or at least different to a rigid sequential formulation of that test as set out above. It remains to be seen whether the courts adopt a new approach to the test when applying section 102.

• Fact-Specific Analysis

  As with all injunction cases, each case ultimately turns on its own facts. As put by Smith J in Kellogg Brown & Root Limited V Mayor’s Office For Policing And Crime [2021] EWHC 3321 (TCC), [25]:

  “Suffice to say for present purposes that it is no surprise that every case in this area turns on its own facts and that insofar as each party is able to identify cases raising issues which appear to point in its favour, there is an obvious need for careful analysis of the reasons for the outcome in such cases and the extent to which the court is here concerned with a similar factual scenario.”

• Expedited Trial
  • Importance of Suspension's Duration

    DWF LLP v Secretary of State for Business Innovation And Skills [2014] EWCA Civ 900, Jacob LJ:

    “50. Having passed the first hurdle [of a serious issue to be tried] the next question is to ask how long a period the suspension might be and to what extent it should be in force. You cannot assess the later Cyanamid questions without this essential background.”

    DHL Supply Chain Ltd v Secretary of State for Health and Social Care [2018] EWHC 2213 (TCC), O’Farrell J

    “55. The starting point in assessing the balance of convenience is to consider how long the suspension might have to be kept in force.”

    Ireland

    Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform [2021] IECA 305, [2022] 3 IR 764, Barniville J

    “147. In considering where the overall balance lay, it was critical, in my view, to bear in mind the period for which it might be necessary to keep the suspension in place. This has been described, in some of the English cases, as the “starting point” in the assessment of the required balance: DWF LIN v The Secretary of State for Business Innovation and Skills [2014] EWCA Civ 900 (“DWF”) (per Sir Robin Jacob at para 50) and DHL Supply Chain Ltd v Secretary of State for Health [2018] EWHC 2213 (TCC), [2018] BLR 709, (per O’Farrell J at para 55, p 720). It seems to me that this is a crucial piece of information in terms of assessing where the balance of convenience or the balance of justice should lie“

  • Early Trial - Maintain Suspension

    When courts have maintained the suspension, they have often emphasised that the suspension need not be in place for an overly long period, given that a trial can take place on an expedited basis or at least relatively quickly

    DWF LLP v Secretary of State for Business Innovation And Skills [2014] EWCA Civ 900 –  Early Trial was a significant factor in maintaining the suspension

    Court of Appeal judgment delivered on 8 July 2014. Trial could be held in August or September. Suspension was lifted in respect of a number of parts of the legal services framework.

    “50. We were told that there could be a trial in early August or September. Miss Hannaford, surprisingly, suggested that early August was too soon – that the case could not be ready. I do not accept that. It seems to me clear that all the documents and witnesses must be readily available. Competent lawyers could easily do the job in time. But there is not a great difference between the two dates anyway.”

    Draeger Safety UK Ltd v The London Fire Commissioner [2021] EWHC 2221 (TCC) – Suspension maintained where early trial could take place

    Proceedings issued: 23 April 2021; Particulars of Claim: 10 June 2021; Application to Lift issued: 11 June 2021; Defence: 8 July 2021; Hearing of Lift Application: 14 July 2021; Judgment: 4 August 2021

    As part of the balance of convenience, the Court considered the question of how long the suspension might have to be kept in place if there was an expedited trial.

    “49. The public interest in the timely introduction of new protective equipment to implement operational improvements would be a very strong factor in favour of lifting the suspension. However, in this case, a significant factor is that the Court is able to offer the parties an expedited trial. When the matter was before the Court at the hearing on 14 July 2021, the Court could not accommodate a trial in October 2021, although it could have heard the case in December 2021. However, since the hearing, there have been settlements of other cases in the list and the Court can now offer a trial in October 2021 with the agreed estimate of 5 days.

    50. It is recognised that this will cause some delay to the proposed procurement but the impact on LFB’s overall strategy will be limited. As Mr Tawney sets out in his evidence, in order to satisfy the Grenfell recommendations, LFB is procuring radios as part of a three-stage communication strategy. Under phase one, new radios will be provided by September 2021; under phase two, new radio repeaters will be provided by July 2021. These parts of the strategy are unaffected by the suspension.

    51. Phase 3 comprises the new breathing apparatus with new communications interface. This is inextricably linked to the RPE procurement and cannot be fully implemented until the new RPE has been provided. However, Mr Tawney accepts that the new radios and radio repeaters can be used in conjunction with the existing equipment interface until the new breathing apparatus is implemented.

    52. The Court appreciates that MSA’s interest would be served by lifting the suspension but that has to be balanced against the interest of the parties in achieving a fair resolution of the dispute. If, as LFB maintains, there is no merit in the procurement challenge, it can be disposed of speedily, enabling the new programme to continue without the prospect of a claim for damages. If, as Draeger maintains, the procurement exercise was flawed, the Court will have all remedial options available.

    53. LFB’s estimate is that the lead-in time between contract award and operational commencement of the new RPE equipment will be 9-12 months, currently by May 2022. The introduction of the equipment will be phased in as the LFB firefighters are trained to use the new equipment. Against that timescale, a short delay until the Autumn, to resolve the procurement challenge by Draeger, will not have any significant impact on the progress of the improvements.

    54. For those reasons, in this case, the least risk of injustice is to maintain the automatic suspension pending an expedited trial of the dispute.”

    Bristol Missing Link Ltd v Bristol City Council [2015] EWHC 876 (TCC) – Early trial supported maintaining the suspension.

    “65. In my view, the public interest in ensuring compliance with the law is particularly significant in the present case because, for the reasons that I have explained, if the suspension is lifted, that is effectively the end of BMML’s claim. Thus, if BMLL are right and this procurement process was not properly operated, they will have been deprived for all time of a significant legal right.

    66. Of course, in all cases where this issue arises for consideration, what matters is whether or not the trial can be heard in a reasonably short time in order for the issues to be finally determined. In some procurement disputes, the issues raised are so complicated, and require such preparation prior to trial, that the delay before the issues can be properly determined is too long, and the suspension has to be lifted. However, that is not this case. As I have demonstrated, the issues which are raised here are straightforward. Some documents have already been disclosed. The major work before trial will be the preparation of witness statements but that, in itself, is not an overly onerous task.

    67. In my view, disclosure can be given before the end of April and witness statements can be prepared and exchanged by the last week in May. In those circumstances, a trial can take place in mid-June. As it happens, the TCC listing office has informed the court that this 3 day trial could be accommodated on 9, 15 or 22 June 2015.

    68. Of course, following the trial, it is likely that the judge will reserve judgment, but I consider it likely that the judgment will be provided sometime in July 2015. Even if the claim is unsuccessful and even allowing for the three month mobilisation period noted in the documents, that means that the new contract could start with Refuge in October 2015. That is a total delay of six months. In the overall scheme of things, I do not regard that as too long, given the time it has taken to prepare the proposed new contract and the length that it might last. Accordingly, the fact that the remedy of review can be dealt with relatively promptly by the TCC is another factor in the balance of convenience weighing against lifting the suspension.”

    Ireland

    Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform [2021] IECA 305, [2022] 3 IR 764, Barniville J

    148. On 11 November 2021, the court was informed that the trial has now been listed for hearing on 11 January 2022. In light of that development, and without in any way attempting to interfere with the case management of the case in the commercial list or the hearing of the case, it does seem realistic to think that it should be possible for the trial to take place and for judgment to be delivered by the end of the Hilary term in 2022. If the suspension were to remain in place, we would, therefore, be looking at a further period of four to six months, in circumstances where it has been in place since the proceedings were commenced in early June 2021 (almost five months ago) and where the 2016 Framework expired on 3 July 2021 with no framework being in place since then. In my view, this is a very significant factor in assessing where the balance should lie as between lifting the suspension or leaving it in place until after the trial.”

  • Delay to Trial - Lift Suspension

    Many of the cases lifting the suspension point to the time period that would be required for the case to come to trial and be determined. Courts have expressed concern about the length of time that may be required to carry out pre-trial steps (such as disclosure), the duration of the trial itself, the time required for issuing a judgment and the possibility of an appeal. The issue is often connected to the impact of a suspension being in place for a prolonged period – e.g. resulting in a delay to achieving benefits of the new contract.

    Newcastle Upon Tyne Hospital NHS Foundation Trust v Newcastle Primary Care Trust & Ors [2012] EWHC 2093 (QB) , [44]-[47] – Disclosure, experts, amendments, even appeals could all delay trial; overall delay of a year

    Camelot UK Lotteries Ltd v The Gambling Commission [2022] EWHC 1664 (TCC) (O’Farrell J) – Even with an expedited trial, there would be a delay of 18 months and given the required implementation period for the new licence, maintaining the suspension would result in a delay to the start of the new licence period (suspension maintained)

    “142. The difficulty in this case is that, even if the hearing could be concluded by the end of October 2022, and a swift judgment produced thereafter, that would still entail a significant delay to the commencement of the transition period, and there would remain the possibility of an appeal. The contingency in the implementation period has already been eroded and Camelot, the incumbent under the existing licence, provided for a minimum transition period of 18 months. Therefore, it is inevitable that there would be delay to the start of the Fourth Licence.”

    Millbrook Healthcare Ltd v Devon County Council [2025] EWHC 744 (TCC), Howard KC – Even if there was an expedited trial, the Defendant contracting authority and vulnerable users of home care could be deprived of the benefits of the new contract for 2 years

    “44. The likely timeframe for the suspension is also relevant. The Claimant has applied for expedition in lieu of lifting the suspension but has not really explained why there is real urgency that necessitates expedition nor why this case should take priority over all other cases currently pending before the TCC: WL Gore & Associates GMBH v Geox SpA [2008] EWCA Civ 662, per Lord Neuberger §28; Petter v EMC Europe Ltd [2015] EWCA Civ 480, per Vos LJ at §17. In this regard, I also take into account the correspondence between the parties where the Claimant was willing to agree to lift the suspension in exchange for a concession from the Defendant on the sufficiently serious issue. If the Claimant was prepared to accept at that point that its remedy should be limited to damages, then there is no strong reason why this claim should be given priority above all others before the TCC.

    45. Even if expedition were possible, with the Court’s current capacity, the earliest timeframe for an expedited 10-12 day hearing (which may be over-optimistic) would be Easter 2026 (assuming a judge were available during vacation and this case were regarded as appropriate vacation business). Judgment would take a minimum of 2 months so resolution at first instance would not be until mid 2026. More realistically, the hearing would be listed at the end of 2026 or Spring 2027 with judgment in 2027. If there were a subsequent appeal, final resolution would be unlikely before late 2027/2028. Accordingly, even on an expedited basis, DCC and vulnerable users would be deprived of the intended benefits for a minimum of 2 years. That delay is too detrimental and reinforces the conclusion that damages are not an adequate remedy for the Defendant.”

    No convincing case for expedition and vulnerable users would be deprived of benefits of new contract for a minimum of 2 years

    Ireland

    Coolsivna Construction Limited v Meath County Council (High Court, 26 July 2024, McDonald J) – Time needed to prepare a trial and allow judgment militated against maintaining the suspension

    “The first thing that can be said is that even if discovery can be agreed, and that is by no means certain, a period of time will be needed to allow discovery to be made.  That is likely to be a minimum of four weeks but it could be a lot more.

    Secondly, if discovery cannot be agreed, the time needed to resolve the dispute will not be insubstantial.  There would have to be an exchange of affidavits and submissions and a meeting to try to resolve matters.  The long vacation can of course be used for this purpose such that a hearing date could be assigned to any discovery application in the first week of next term, possibly on 8th or 9th October.  But it does have to be said that if there is a dispute, that will add nine weeks to the duration of any stay.

    Third, depending on whether discovery is or is not agreed, there will be a period of four to nine weeks to resolve that issue.

    Fourth, from my experience of other procurement cases, the likelihood is that an application will be made to amend the Statement of Grounds after the Applicant sees the discovery made, and indeed it will have been noted from my review of the pleas made in the Statement of Grounds that that is something which is in fact foreshadowed in what is said by the Applicant in its Statement of Grounds.  This has also happened in many of the procurement cases I’ve seen in this list since 2021 when the Word Perfect case was dealt with by me.

    And it has to be said that the amendment of the Statement of Grounds and the response to it, with an amended Statement of Opposition, is likely to add another four weeks to the duration of a stay.

    Fifth, irrespective of any amendment of the Statement of Grounds following discovery, it is inevitable that there will be a further exchange of affidavits and very likely also expert reports following the making of discovery.  There will also have to be an exchange of written submissions.  We see from the judgment of
    Mr. Justice Barniville in Word Perfect that this is likely to take a period of two to two‑and‑a‑half months.  That accords with my own experience.  Having regard to the fact that discovery will have to be made first, it seems to me to be likely that even if discovery is agreed, it will be early October before the exchange of affidavits can begin.

    Sixth, having regard to the steps I’ve just outlined I think it is unlikely that the case could realistically get a hearing date before Christmas 2024 and I think a hearing date in January 2025 is more realistic.

    And finally, while the Court of Appeal considered that judgment would be given within a period of two‑and‑a‑half to just under three months, there is more recent experience which regrettably shows that a longer period may be necessary for this purpose.

    Judgments following substantive hearings in procurement cases are more time consuming than other more straightforward cases … [In] my view, assuming that a hearing takes place in the first few day of Hilary term 2025, I think, realistically, a judge would need the Easter vacation to finalise a judgment.  Hilary term 2025 ends on 11th April and I think therefore that judgment could very well be given in the first week of the Easter term which begins on 28th April.  And while all of this is no more than a very rough estimate on my part, I think I can proceed on the basis that it will be April 2025 before the proceedings are likely to be determined at first instance.  That is a period of roughly eight or nine months from today.  That does not take into account the possibility of an appeal and the further delay that may arise, as noted by Ms. Justice Costello in the Court of Appeal in the CHC case in a foot note at page 37 of her judgment.  The assessment of the likely delay that she made in that case was made without considering the impact of an appeal from either the substantive decision or any interlocutory decisions of the High Court.  She said that while the automatic suspension lasts only until the determination of the challenge to the process at first instance, given the value of the contract there’s a very strong probability that either CHC or Bristow, depending upon the outcome of the trial, may appeal the decision. “If it goes in favour of the Minister and Bristow, almost inevitably CHC will seek a stay on the award of the contract pending the appeal based inter alia on the importance of pre‑contract remedies and not confining an unsuccessful tenderer to the remedy of damages. If granted, this will add considerably to the existing delays.” And it has to be said that the same consideration must surely apply in the present case.”

  • Alleged Delay by Contracting Authority

    Claimants have sometimes sought to rely on the fact that the contracting authority has delayed in issuing the application to lift, or in taking some other step in the proceedings. While these factors have been considered by courts, and interact somewhat with the question of whether there should be an expedited trial, courts have generally not penalised contracting authorities for such delays.

    Mak Systems Group Ltd v Velindre University NHS Trust [2026] EWHC 8 (TCC)

    “102. The proceedings were commenced in June 2025. The defendant did not ask MAK to agree to lift the suspension until 1 September 2025. MAK’s solicitors responded on 5 September 2025. The application was issued on 10 September 2025. That, it is submitted, is not emblematic of any urgency.

    103. I do not accept that submission. The Particulars of Claim were extremely lengthy and raised a myriad issues. I do not see that the defendant can be criticised for focussing, as Ms Holtham says it did, on the drafting of the Defence first. The summer period has an inevitable impact and the defendant is reliant on in house legal services rather than a large team from external solicitors. That the lifting of the suspension was not raised until September does not, in this case, indicate any lack of urgency and certainly not to any extent that undermines the defendant’s case on the importance of implementation or where the balance of convenience would otherwise lie. Once the lifting of the suspension had been raised, the application, supported by evidence, was issued promptly.”

    DHL Supply Chain Ltd v Secretary of State for Health and Social Care [2018] EWHC 2213 (TCC), O’Farrell J:

    “60. Fourthly, there has been some delay to the procurement timetable but there is no evidence that DHSC was at fault in permitting the slippage. The procurement exercise covered 13 separate contracts with a collective value of £1.2 billion. In those circumstances, it is not surprising that some elements of the exercise took longer than planned. The delay of 5 months to date does not indicate that there is no urgency to meet the deadline for the FOM to be in place by the end of March 2019.”

    Newcastle Upon Tyne Hospital NHS Foundation Trust v Newcastle Primary Care Trust & Ors [2012] EWHC 2093 (QB) , [35] (No criticism of Defendant for delay in issuing application to lift, where proceedings issued on 9 March 2012 and application to lift issued on 1 June 2012)

    Ireland

    Coolsivna Construction Limited v Meath County Council (High Court, 26 July 2024, McDonald J) – contracting authority’s failure to comply with time limits for pleadings was not relevant

    “Now, there’s one further matter that I should address in the context of the period between now and the trial.  I want to make very clear that I have not lost sight of Coolsivna’s argument that it is deeply unfair to it that, having brought its challenge in an extremely prompt way on 15th May, the Council did not deliver its opposition papers until 8th July 2024 notwithstanding the very clear provisions of Order 84A, Rule 6 of the Rules which requires the delivery of opposition papers in these cases within a period of seven days from the date of service of the originating motion.  Coolsivna argues that the County Council has delayed things by concentrating instead on the present application and that, by taking that course, it has done considerable damage to Coolsivna and that it has in fact adopted a tactical approach in order to maximise the prospects of obtaining a stay from the Court.

    While I do have some sympathy for the fact that the rule in this case has not been observed as it should have been observed, I do not believe that this submission on the part of Coolsivna should affect the matter, and I take that view for a number of reasons.

    In the first place, without in any way condoning the position adopted by the Council in not complying with the rule, I have to acknowledge that I have never seen, in any procurement case which has crossed my desk over the last three years while in charge of this list, seen any Respondent to date who has been able to deliver opposition papers within that timeframe and, on reflection, I think that is unsurprising given what has to happen before a Statement of Opposition and verifying affidavit can be delivered.  After service of proceedings, solicitors have to be retained, counsel has to be instructed, a meeting undoubtedly has to be held, advice has to be given by counsel and papers have to be drafted and it is difficult, it has to be said, to see how all of those steps could be taken and a finalised Statement of Opposition delivered within such an abridged period of time.

    Secondly, it seems to me that there was in any event a remedy within Coolsivna’s power.  It could have applied either to the judge in charge of the non jury list for a direction to the Respondent to deliver the Statement of Opposition or it could itself have applied to enter the proceedings into this list, in which case, strict time limits could have been fixed at an early stage in these proceedings for the taking of all steps in the proceedings.  For example on Monday of this week I dealt with an application for entry in a procurement case which was brought by the Applicant in those proceedings within six days of the launch of the proceedings.  In the present case, it was Meath County Council who applied for entry into this list, which I think shows that the Council was not proposing or purporting to delay the proceedings.  One would not apply for entry into this list if one were intent on delaying the proceedings.

    So in those circumstances notwithstanding the powerful submission that was made by counsel on behalf of Coolsivna in relation to that aspect of the matter, I do not propose to take that aspect into account in my resolution of the issue before me.”

• Whether Existing Contract can be Extended

  No Definitive Ruling

  There does not appear to be a definitive ruling on the question whether a contract, which cannot be further extended under its terms, could be lawfully extended for the period of the suspension and some judges have avoided the question by saying that the issue cannot be resolved on an interlocutory application.

  The issue whether the incumbent contract (which is coming to an end) can be extended for the period during which the suspension would need to last (i.e. until a trial and a judgment) is often raised in suspension applications. Often, this arises in respect of contracts for ongoing services, where the incumbent is the Claimant. Its current contract may be about to expire. It says, however, that it will extend the contract so that the suspension can remain in place, without any interruption to service delivery. The response from the Defendant contracting authority is often that it is not legally permissible to extend the contract (that that in itself would be a breach of procurement law) and so this does not provide a solution. The Defendant often also says that extending the current contract would mean a delay to realising whatever benefits are to be brought about by the new contract. There are two distinct issues raised there: (i) whether an extension of the incumbent’s contract would be lawful; and (ii) whether the incumbent’s contract should not be extended because it would mean the contracting authority losing out on benefits from the new contract. Sometimes these issues are considered together.

  Some examples of the treatment of this issue are set out here.

  England & Wales

  In Millbrook Healthcare Ltd v Devon County Council [2025] EWHC 744 (TCC), concerning a home care services contract, Howard KC considered the issue in finding that damages would not be adequate for the Defendant, [40]-[41]:

  “40. I am not persuaded by Millbrook’s response that it has agreed an extension to its existing contract and, in essence, is already replicating the new standards introduced by the new contract or will do so for the term of any extension. Offers to extend the existing contract and change the specification to offer some of the benefits of the new contract (even if that were lawful under procurement law) have been regarded as unsatisfactory: see Teleperformance Contact Limited v SSHD [2023] EWHC 2481 (TCC) §66 and One Medicare v NHS Northamptonshire ICB [2025] EWHC 63 (TCC), §54-55.

  Mr Halliday appeared to suggest that Millbrook could start to offer upgraded CES and TECS services immediately after 1 April 2025 but that is inconsistent with its own bid, which indicated that it would need a 3-4 month transitional period and would need to implement a new IT system.”

  In Indigo Services (UK) Ltd v The Colchester Institute Corporation [2010] EWHC 3237 (QB), [40]-[42] Donaldson QC emphasised that the current contract (for cleaning services) did not provide for further amendments and any further extension would amount to a new contract, subject to procurement. The suspension was lifted.

  Ireland

  In Homecare Medical Supplies Unlimited Company v Health Service Executive [2018] IEHC 55, Barniville J could not reach a definitive conclusion on whether a contract extension would be lawful, but the balance of convenience clearly favoured the lifting of the suspension on a contract for the supply of disposable continence products.

  “67. Homecare also contends that the status quo favours the maintenance of the existing contracts and that it is open to the HSE to extend or roll over those contracts without breaking public procurement law. It relies in particular on Regulation 72(1)(b) and (e) of the 2016 Regulations, namely the “safe harbour” provisions, and the decision of the Court of Justice of the European Union in Pressetext Case C-454/06 [2008] ECR I-04401. Homecare touched on some of these points in its oral submissions before me on this application.

  70. The HSE disputes the contention that it can lawfully roll over or extend the existing contracts. It maintains that Regulation 72(1) (b) and (e) of the 2016 Regulations have no application and are of no assistance to it. Nor does Pressetext give it any comfort. In any event, it queries why it should have to take the risk of any challenge to a rollover or extension of the existing contracts, particularly in circumstances where Homecare has not offered an unqualified undertaking as to damages.

  74(5).    The interests of patients and end users afford a very strong argument to my mind in favour of lifting the automatic suspension where the HSE has made it clear that it cannot or will not roll over or extend the existing contracts. The correctness or otherwise of the parties’ respective legal contentions on Regulation 72 of the 2016 Regulations and on Pressetext may ultimately have to be decided at trial but I cannot conclusively do so at this stage in the proceedings. In my view it is critical that there is absolute clarity that these essential products are distributed to patients after 31st January, 2018. Like Costello J. in Powerteam, albeit on different facts, I conclude that any doubt or question over this issue should weigh and must weigh very heavily in the balance of convenience issue and clearly favours the lifting of the automatic suspension on the facts of this case.”

  In Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform [2021] IECA 305, [2022] 3 IR 764, in maintaining the suspension until trial, the Court of Appeal emphasised that participation in a new centralised framework for translation services (which was the subject of the proceedings and which was to replace an earlier framework) was optional for public bodies and that there was evidence that public bodies obtained services outside the centralised framework system, Barniville J stating:

  “165. While it is by no means ideal, the evidence establishes that public bodies can and do obtain Irish translation services by engaging in their own tender processes

  166. In the assessment of the balance of convenience, the real question was not the large number of public bodies covered by the obligations under the 2003 Act or indeed the significant importance of the 2021 Framework, none of which can seriously be disputed, but rather the number of public bodies who availed of the previous framework and who may be anticipated to avail of the 2021 Framework in the period between now and the date of the trial (11 January 2022), in circumstances where many public bodies have conducted their own tender processes and where participation in the new framework will be optional. It is, of course, also necessary to bear in mind the respondent’s evidence of anticipated increase in demand under the 2021 Framework as well as the impact of work which may come following the end of the derogation for the Irish language as a working language in the EU. They are all matters appropriately weighed in the balance but in attempting pragmatically to regulate matters between now and the date of trial in a manner which minimises the risk or injustice, it seems to me that it would not be fair or just to leave the applicant its remedy in damages with all of the difficulties which that would involve.”

• Merits of the Case

  Under the American Cyanamid test, the Claimant need only establish, as rgeards the merits, a fair issue to be tried. This is a relatively low bar. Nonetheless, not infrequently in lift applications, debates have arisen about the merits of the substantive action. Either side may claim that their position is very strong and that their opponent’s position is very weak and that this should be factored in to the Court’s decision. However, courts have generally eschewed engaging on the merits and judges often warn against conducting a mini-trial.

  “It is not appropriate to have a mini-trial in a complex procurement dispute”

  Sysmex (UK) Ltd v Imperial College Healthcare NHS Trust [2017] EWHC 1824 (TCC) (Coulson J) – the Court should not engage in a mini-trial

  “18. On behalf of Sysmex, Ms Hannaford QC referred to that part of Lord Diplock’s speech in American Cyanamid in which he said that a consideration of the relative strengths of the parties’ cases “may not be improper to take into account in tipping the balance”. On that somewhat slender foundation, she argued that the strength of Sysmex’s case here was an important element of the balance of convenience.

  19. I do not consider, on an application to lift the suspension in a typical procurement case, that this is an appropriate matter for the court to investigate. Such cases are a long way from a straightforward claim for an interlocutory injunction, where a particularly good point on the substantive dispute (an admission, say, or an unequivocal contractual term in one side’s favour) might well be of assistance to the court’s consideration of the application overall. It is not appropriate to have a mini-trial in a complex procurement dispute like this. Where, as here, it is accepted that there is a serious issue to be tried, then (save in exceptional circumstances) both sides should resist any further temptation to argue about the merits.

  20. Support for that approach can be found in three authorities:

  (i) Kent Community Health NHS Foundation Trust v NHS Swale Clinical Commissioning Group and Another [2016] EWHC 1393 (TCC), where Stuart-Smith J said, at paragraph 28:

  “It is common ground that there is a serious issue to be tried. By reference to confidential information, Mr Giffin QC for the Trust showed me what he described as an indicative example of the strength of the Trust’s case that the marking had gone wrong. At present, that case has not been answered and, on what I have been shown, Mr Giffin’s criticisms seem valid. However, in applying American Cyanamid principles, he accepts that the Court cannot adjust the weight to be applied to the nature of the issues to be tried to reflect what appear to be gradations of strength of the Claimants’ case. Once it is accepted that there is a serious issue to be tried, the first hurdle is passed. Unless the Court can form the view, without conducting any form of mini-trial, that the claimant is virtually bound to succeed, the case remains classified as one where there is a serious issue to be tried. It is both unsafe and wrong (in principle and on authority) to attempt to calibrate the exercise of the Court’s discretion by reference to an assessment of the strength of the Claimant’s case as lying somewhere between the two points of there being a serious issue to be tried and being virtually certain of the Claimant’s ultimate success. On the information available to this court, I am not able to form a reliable view that the Claimant is anywhere near to being virtually certain of success. I therefore treat the case simply as one where it is common ground that there is a serious issue to be tried.”

  (ii) Counted4 Community Interest Company v Sunderland City Council [2015] EWHC 3898 (TCC) where Carr J said:

  “59. As for the strength of the claim, I have already concluded that a serious issue exists. I do not consider that the claim can be said to be so weak or indeed so strong that its strength is a material factor weighing either in favour of lifting or maintaining the suspension. I treat it as a neutral factor.”

  (iii) Alstom Transport, where Stuart-Smith J said (by reference to his own decision in Openview) that it would only be in rare cases that the potential outcome of the ultimate hearing could be predicted with any confidence, and that the court was not justified in embarking upon anything resembling a trial of the action upon conflicting affidavits in order to evaluate the strength of either parties’ case. He indicated that he did not regard the application of American Cyanamid principles to require or permit the relative strengths of the parties’ cases to be taken into account in assessing the balance of convenience.

  21. I agree with the approach adopted in those cases. Accordingly, save in the exceptional circumstances where one party has some kind of simple ‘knock-out’ point, I do not consider it appropriate as a matter of principle for the court to conduct a mini-trial or to endeavour to reach any conclusions as to the strength or weakness of one or both sides’ case.”

  Mak Systems Group Ltd v Velindre University NHS Trust [2026] EWHC 8 (TCC) (Jefford J) – inappropriate to conduct mini-trial

  “44. I have set out the nature of these issues in some detail because it makes it clear that the court cannot resolve these issues on this application. It is apparent that there are a number of layers to MAK’s argument including (i) whether the ITT required compliance with the regulatory requirements for an in vitro diagnostic device or accessory; (ii) whether the ITT ought to have done so (because a BECS falls within relevant definitions); and (iii) whether the BECS tendered by GPI is compliant. Indeed, Mr Neill submits that MAK’s argument that a contract for a product that does not comply with the IVDR conflates (i) the defendant’s statutory duties under the Blood Safety and Quality Regulations 2005 and the Health and Social Care (Quality and Engagement) (Wales) Act 2020 (referred to in the defendant’s evidence), which would be material to the implementation of the BECS, with (ii) the distinct question of compliance with the defendant’s duties under the PCR, and that it is the latter which go to the lawfulness of entering into the contract in so far as relevant on this application.

  45. Resolving these multi-faceted issues would amount to a mini-trial and this is patently not the exceptional case which Coulson J contemplated in Sysmex or one in which there is a knock-out point.”

  Bristol Missing Link Ltd v Bristol City Council [2015] EWHC 876 (TCC) (Coulson J) – serious issue to be tried is a low threshold

  “33. [In] the ordinary procurement case, where there may be points to be made on both sides, it will often be unproductive for the parties (and a waste of judicial resources) to spend a good deal of time arguing about the merits or otherwise of the underlying claim. The threshold is, after all, a low one…

  [In] cases where there are clear issues arising out of individual scores, it will be difficult for the court to conclude that there is no serious issue to be tried; and, second, that this difficulty arises, at least in part, because the relevant documents have yet to be disclosed.”

  Solent NHS Trust v Hampshire County Council [2015] EWHC 457 (TCC) (Akenhead J) – court could not assess relative strength of the parties’ cases

  “13. Mr Barrett, clearly with some reluctance, accepted that there was a serious issue to be tried overall, primarily on the basis that disclosure had yet to take place. He however sought to argue (in the context of the balance of convenience) that the liability case pleaded against HCC was very much at the weak end of the spectrum. Ms Hannaford QC sought to argue that her client’s case was at the strong end of the spectrum.

  14. Mr Barrett took the Court by way of example to the pleaded complaints about inadequate marking in relation to Questions 6, 7 and 9, saying that when one looks at the answers provided by Solent they are unspecific, general and, often, not an answer to the specified question. Ms Hannaford QC however sought to persuade me otherwise. Whilst one can see, simply from the wording used by Solent that, superficially at least, the answers are not immensely informative, it would be invidious for the Court at this stage to form a concluded view that the answers are or are not so uninformative and non-responsive to the individual questions that it can be said that the pleaded case in relation to these answers to questions is weak or indeed strong. The Court has only the written answers and they would probably need to be looked at in the context in which they were written as well as in the light of the specification and indeed the word count limitation imposed by the ITT. The Court might be helped ultimately by comparing at least Inclusion’s answers; if, for instance, its relevant answers are obviously more informative and responsive than Solent’s (or not), that might enable a view to be formed as to the scores awarded. The Court is simply not in a position at this stage to say with any confidence that the case on breach is strong or weak.

  15. The only exception to this is the pleaded case that Inclusion’s tender should have been rejected because it secured a 0% mark on Price and Cost. Without finally deciding the point, this would seem to be a very weak complaint given the express wording of Paragraph 5.4.1 that HCC “reserve[d] the right not to proceed any further with the tender” which strongly suggests that it had retained a discretion either to proceed or not to proceed with a tenderer whose tender had secured such a mark. However, even if that element of the Claim is weak, there remains a serious issue to be tried on the complaints about the marking. There was much discussion before the Court about that the criteria to be applied in relation to complaints about marking. There is some authority which suggests that, provided that the marking is not irrational or not such as no reasonable authority could have given, the Court should not find a breach of the Regulations and that, provided that the marking is within the range of what authorities might reasonably have awarded, the Court will not interfere. That may well all be correct but, as indicated above, the Court is not in a position on the limited written evidence to assess the relative strengths and weaknesses of the complaints of breach.”

  Consideration of merits favoured lifting of suspension

  Indigo Services (UK) Ltd v The Colchester Institute Corporation [2010] EWHC 3237 (QB), [44]-[47] (more likely than not that Respondent would succeed on causation and any loss of chance not significantly more than fanciful)

  Ireland

  Construcciones Y Auxiliar De Ferrocarriles S.A. v Iarnród Éireann – Irish Rail [2025] IEHC 645 (Twomey J) – Inappropriate to consider the merits

  “62. At an interlocutory hearing, this Court cannot determine which of the parties is correct in this regard. However, what is clear from the foregoing claims and counterclaims is that this is not a straightforward case, such that this Court can reach a view on the strength (or weakness) of the applicant’s case at the interlocutory stage. Accordingly, the alleged strengths or weaknesses of CAF’s case is not a factor which weighs in the balance of justice in favour (or against) the granting of an injunction/continuation of the suspension.”

• Reputation and Prestige of Contract

  A significant debate usually arises as to whether damages will be an adequate remedy for the Claimant. The English courts place significant emphasis on this part of the analysis and have, in many cases, decided to lift the suspension largely because damages were found to be an adequate remedy. Whether this can in some cases be too rigid an approach is discussed above when addressing the test.

  In arguing that damages will not be an adequate remedy, Claimants frequently run reputational arguments. They may say that the contract is prestigious or particularly important and that if the suspension is lifted, with the consequence that they then have no chance of being awarded the contract, this will damage their position in the market and jeopardise their ability to obtain future public contracts. We look at how the courts have addressed such arguments, under a number of headings.

  • General Approach

    The overall approach has been summarised in a umber of cases, for example by Jefford J in Mak Systems Group Ltd v Velindre University NHS Trust [2026] EWHC 8 (TCC) at [50]

    “(i) The threshold for establishing that a company will suffer reputational damage as a result of no more than an unsuccessful bid is a high one.

    (ii) For a commercial body, loss of reputation as such is unlikely to mean that damages are not an adequate remedy unless the court can conclude that it will lead to financial loss that is irrecoverable. That is because the relevance of reputation to a commercial body is in its contribution to the success of the business.

    (iii) The fact that a bidder, even if an incumbent provider, is not successful does not in and of itself tarnish that company’s reputation. If, in due course, the court concludes that the company ought to have been awarded the contract, that judgment establishes the rightness of its position.

    (iv) It is only in respect of contracts of particular prestige that such an irremediable loss may be regarded by the court as likely to be suffered.”

  • Burden and Standard of Proof

    The burden on a Claimant to show reputational damages that cannot be compensated in damages is a high one, requiring cogent evidence

    Openview Security Solutions Ltd v Merton LBC  [2015] EWHC 2694 (TCC), Stuart-Smith J:

    “39. What then are the criteria to be applied before a court accepts that “loss of reputation” is a good reason for holding that damages which would otherwise be adequate are an inadequate remedy for American Cyanamid purposes? In the absence of prior authority directly in point (none having been cited by the parties) but with an eye to the approach adopted by the Court in Alstom, DWF and NATS I suggest the following:

    i) Loss of reputation is unlikely to be of consequence when considering the adequacy of damages unless the Court is left with a reasonable degree of confidence that a failure to impose interim relief will lead to financial losses that would be significant and irrecoverable as damages;

    ii) It follows that the burden of proof lies upon the party supporting the continuance of the automatic suspension and the standard of proof is that there is (at least) a real prospect of loss that would retrospectively be identifiable as being attributable to the loss of the contract at issue but not recoverable in damages;

    iii) The relevant party who must generally be shown to be affected by the loss of reputation is the future provider of profitable work.

    40. These are general criteria, which need to be reviewed and considered in the light of the facts of each case. I readily accept that there is more to be said on the subject and that principles such as those I have suggested are not to be applied by rote.”

    Bombardier Transportation UK Ltd and others v London Underground Ltd (Siemens Mobility Ltd, interested party) [2018] EWHC 2926 (TCC), O’Farrell J:

    “58. Each case must be considered on its own facts. In most cases, unsuccessful bids are part of the normal commercial risks taken by a business and will not have any adverse impact apart from potential wasted costs of the tender and lost profits. Not every failed bid will result in damage to reputation causing uncompensatable loss. There must be cogent evidence showing that the loss of reputation alleged would lead to financial losses that would be significant and irrecoverable as damages or very difficult to quantify fairly.”

    Unipart Group Ltd & Anor v Supply Chain Coordination Ltd [2025] EWHC 354 (TCC), Constable J:

    “28. Whilst the more prestigious a contract is the more readily a Court may be to conclude that its loss will produce collateral negative financial effects beyond a direct loss of profit, that does not obviate the need for a claiming party to provide by way of evidence a proper foundation upon which a Court can conclude to the appropriate degree of certainty not just that the contract is prestigious or high value, but that its loss will lead to financial losses that would be significant and irrecoverable as damages. What evidence a Court might expect to see will differ from case to case.”

    One Medicare (t/a One Primary Care LLP) v NHS Northamptonshire Integrated Care Board [2025] EWHC 63 (TCC), Jefford J:

    “45. The threshold for establishing that a company will suffer reputational damage as a result of no more than an unsuccessful bid is a high one. Firstly, for a commercial body, loss of reputation as such is unlikely to mean that damages are not an adequate remedy unless the court can conclude that it will lead to financial loss that is irrecoverable. That was the view of Stuart-Smith J in Openview Security Solutions Ltd v The London Borough of Merton at [39]. That is a straightforward proposition because the relevance of reputation to a commercial body is in its contribution to the success of the business. In any event, the very nature of the procurement process involves the premise that the relevant body is seeking the most economically viable tender evaluated against specified criteria. The fact that a bidder, even if an incumbent provider, is not successful does not in and of itself tarnish that company’s reputation. If, in due course, the court concludes that it ought to have been awarded the contract, that judgment establishes the rightness of its position. As Coulson J said in Sysmex (UK) Ltd. v Imperial College Healthcare NHS Trust [2017] EWHC 1824 (TCC) at [50]: “… it is fundamentally wrong in principle to say that an award of damages would not restore a reputation lost because of the rejection of a tender, but the award of the contract itself would”.

    46. As the ICB submitted, it is only in respect of contracts of particular prestige that such an irremediable loss may be regarded by the court as suffered. In Medequip Assistive Technology Ltd. v The Royal Borough of Kensington [2022] EWHC 3293 (TCC) at [70]-[75], Eyre J drew together the cases in which the court had found the contract to be so prestigious. DHL Supply Chain Ltd. v Secretary of State for Health and Social Care [2018] EWHC 2213 (TCC) is illustrative as a contract for the provision of all medical devices and hospital consumables to the NHS.”

  • Contracts of Sufficient Prestige

    The cases where it was found that the contract was sufficiently prestigious were summarised by Eyre J in Medequip Assistive Technology Ltd. v The Royal Borough of Kensington [2022] EWHC 3293 (TCC) at [70]-[76]:

    “70. [It] is necessary to note the kinds of contracts which have been regarded as carrying prestige of this kind. Thus in Bombardier Transportation UK Ltd v London Underground Ltd [2018] EWHC 2926 (TCC) at [59] the contract for provision of rolling stock for the London Underground was said to be “distinctively prestigious” and carrying a global reputation.

    71. In Camelot v The Gambling Commission the reputational harm flowing from a failure to obtain the replacement licence to run the National Lottery was not such as to mean that damages were not an adequate remedy.

    72. In NATS v Gatwick Ramsey J described the position in that case thus at [84]:

    “I am also persuaded on the evidence in this case that the contract for air navigation services at Gatwick Airport would have a particular impact on the reputation of NATS in the global marketplace. Gatwick is the world’s largest single runway airport with a very large number of annual movements. It is seen in the marketplace as a being of major importance in the increasingly competitive market for air navigation services”.

    73. In DHL Supply Chain Ltd v Secretary of State for Health & Social Care [2018] EWHC 2213 (TCC) the contract was for provision of “all medical devices and hospital consumables (other than medicines)” for the NHS together with related information technology and logistics contracts. That was accepted by O’Farrell J as being “prestigious and high value” (see at [46]).

    74. The contract in Draeger v London Fire Commissioner was the provision of breathing apparatus to the London Fire Brigade. The Defendant’s internal reports explained that “other fire and rescue services throughout the UK were watching [the] procurement with a view to following LFB’s lead” (see at [35]). It was in those circumstances that O’Farrell J accepted, at [41], that the procurement while neither unique nor high value was “likely to be perceived as setting the standard for improved protective equipment in this sector” with the consequence that it was arguable that damages would not be an adequate remedy for the claimant.

    75. In Vodafone Ltd v Secretary of State for Foreign, Commonwealth, & Development Affairs [2021] EWHC 2793 (TCC)  the contract in question was for the provision of a secure communications system for the Foreign and Commonwealth and Development Office requiring the “provision of connectivity between 532 sites in more than 170 countries” (see at [3]). Kerr J accepted, at [84], that this contract was “highly prestigious” explaining at [85]:

    “I am prepared to accept Vodafone’s assessment, not directly contradicted by the defendants, that in the field of international global communications this contract is second only in prestige to an equivalent contract to supply those services to the government of the USA. Such opportunities do not arise frequently; the last one was 11 years ago”.

    76. In DWF LLP v Secretary of State for Business, Innovation, & Skills [2014] EWCA Civ 900 the question of reputational harm was not considered at length but it is apparent that the procurement exercise was for the provision of legal services to the Insolvency Service throughout England, Wales, and Scotland.”

    Bristol Missing Link Ltd v Bristol City Council [2015] EWHC 876 (TCC) – Contract for domestic violence and abuse support services in Bristol; where this constituted the Claimant’s only market (Claimant was a not-for-profit entity)

    “56. (e) As paragraph 48 of Ms Metters statement makes clear, the lifting of the suspension and the effective determination of the case against BMLL will have a significant effect on their reputation. Again, that could not be compensated for in damages.

    57. On this last point, Mr Williams QC relied on Solent to suggest that claims for reputational harm were of little consequence where the claim was linked to the unsuccessful attempt to obtain the contract in the first place. But I accept Mr Coppel QC’s submission that, in this case, the reputational damage arises from BMLL’s inability to do their core work in their only market, rather than their failure to win the contract per se.”

    Bombardier Transportation v London Underground [2018] EWHC 2926 (TCC)

    “58. Each case must be considered on its own facts. In most cases, unsuccessful bids are part of the normal commercial risks taken by a business and will not have any adverse impact apart from potential wasted costs of the tender and lost profits. Not every failed bid will result in damage to reputation causing uncompensatable loss. There must be cogent evidence showing the loss of reputation alleged would lead to financial losses that would be significant and irrecoverable as damages or very difficult to quantify fairly: Alstom Transport v Eurostar International Ltd [2010] EWHC 2747 per Vos J at [129]; NATS (above) at [84]-[85]; DWF (above) at [52]; Openview (above) at [33]-[40]; DHL v Secretary of State for Health and Social Care [2018] EWHC 2213 at [45] & [46].

    59. This procurement is distinctively prestigious because of its size, location and value. Success in such a competition would enhance the reputation of the winning bidder in the global rolling stock industry. It would provide evidence of competence and expertise that could be used to increase its chances of securing other high-value commercial opportunities. Conversely, failure in such a competition through unlawful procurement procedures would deprive the unsuccessful bidder of those advantages and place it at a disadvantage in competing for other commercial opportunities. Mr Coppel argues that the claimants were successful in pre-qualifying for this procurement exercise. That argument ignores the fact that such success was no doubt founded, at least in part, on the technical and commercial expertise of the claimants evidenced by their other successful projects. In future competitions, they will be able to rely on other projects carried out but they will be deprived of the opportunity to rely on the scale and innovative design of this project as demonstration of their capabilities. It would be very difficult to prove a causal link between the loss of reputation and loss of subsequent business; for that reason, it would be very difficult to quantify.

    65. In conclusion, I am satisfied that the loss of these contracts is likely to have a substantial adverse effect on the reputation of the claimants which would cause losses that would be very difficult properly to quantify.

    66. For the above reasons, it is likely that damages would not be an adequate remedy for the claimants if they were to establish their claims at trial.”

    Vodafone v Secretary of State for Foreign Commonwealth and Development Affairs [2021] EWHC 2793 (TCC)

    Kerr J held that the Claimant could not be adequately compensated by an award of damages. The loss of the contract in issue was significant because it would lead to a loss of opportunities to bid for and win other contracts “on the back of this one”. The contract was a very large and important one and in that case, the claimant’s submission was actually supported by what the successful bidder, Fujitsu, had said in a letter dealing with the effects on it of any delay in the award of the contract. It explained how developing the system for the contract to be awarded would help it to obtain similar contracts for other public sector clients such as the National Crime Agency, the Ministry of Defence, HMRC and NHS.

    “84. Here, the immediate value of the contract is relatively low, though it is fair to hold the defendants to their own estimate of £184 million overall, taking account of opportunities to obtain call off contracts. I accept that the contract is highly prestigious…

    85. I am prepared to accept Vodafone’s assessment, not directly contradicted by the defendants, that in the field of international global communications this contract is second only in prestige to an equivalent contract to supply those services to the government of the USA. Such opportunities do not arise frequently; the last one was 11 years ago.

    87. In the end, what helps to persuade me that it would not be just to confine Vodafone to its remedy in damages is the unquantifiable loss of opportunities to bid for and win other contracts on the back of this one. I do not accept that the evidence of this was vague and speculative, as the defendants suggested.

    88. The disparity between the relatively modest value of the services immediately to be provided and the overall estimated value of £184 million shows the difficulty of quantifying losses that are, in my judgment, likely to prove irrecoverable as damages in future. While Vodafone can bid for other government and public sector contracts without having won this one, it would not be able to secure call off contracts and build its standing by that means.

    89. I also find persuasive Vodafone’s point that Fujitsu has heavily relied in its letter on threats to its future business opportunities and relationships with suppliers arising from any risk that it might, after all, not hold onto this contract. I see no reason why the same logic should not hold good for both companies.”

    Ireland

    Word Perfect Translation Services Limited v Miniter for Public Expenditure and Reform [2018] IECA 35 – loss of rare language interpreters could damages company’s reputation, possibly putting it out of business

    “62. Weighed on the other hand is the fact that Word Perfect has provided this service to many State agencies for years and it has shown itself in the round at least to be a competent provider of a specialist service. If it were to lose this business there seems little doubt that but that it would hamper its ability to retain specialist employees who can translate rare languages such as Farsi, Albanian and Ga. Irrespective of whether Mr. Gashi raised this concern only somewhat belatedly, there must be a real risk of significant reputational damage to the company which might possibly prove to be terminal.”

  • Rejection of Reputational Arguments

    The courts have rejected reputational arguments in a significant number of cases. Some examples are below.

    Alstom Transport v London Underground Ltd [2017] EWHC 1521 (TCC) – lack of evidence of reputational impact

    Stuart-Smith J held that the evidence submitted by Alstom in support of its submission that damages would not be an adequate remedy was surprisingly lacking in detail and that the picture painted by it was partial and that both scrutiny and scepticism were justified. On analysis, its evidence that if it did not get the contract in question it was highly unlikely that it would be able to maintain the centre of expertise for traction technology, was “barely credible” ([33]). He therefore rejected the submission that damages would be inadequate.

    Cubic Transportation Systems Ltd v Transport for London & Anor [2026] EWHC 61 (TCC) (ter Haar KC) – loss of the contract would not diminish the Claimant’s status in the marketplace

    “45. The evidence shows that the TfL system is probably the largest and most extensive revenue collection system in the world outside the United States of America. Having lost this contract award, I accept that the status of CTSL outside the United States of America is, to an extent, diminished. On the other hand, CTSL does have other irons in the fire outside the USA, including for South Western Rail in the United Kingdom and two contracts in Ireland.

    46. It is also part of, and can point to its parentage in, the Cubic Group which has competed for, and won, large contracts internationally, including in New York, Vancouver, San Francisco, Sydney and Queensland.

    47. CTSL competes in a sophisticated and limited market, in which future contracting partners will know from experience in the procurement of public sector contracts that such contracts are tendered and, when they expire, retendered. The mere failure by CTSL to win this tender should not necessarily mean to a future employer that CTSL’s place in the market place as a successful and professional designer, supplier and maintainer of such systems is diminished, although I do not rule out that at a full trial of an issue as to damages such a case as to diminution of reputation might be made out on evidence before a Court in future.

    48. It seems to me there is also some strength in the point made by TfL … that any damage to the reputation of CTSL that it might have suffered or will suffer would be likely to be rectified were CTSL to succeed at trial and receive an award of damages.

    49. In the circumstances, I accept TfL’s submission that the reality is that CTSL, and the wider Cubic Group, are significant players in the international transportation market, and I also consider that CTSL has failed to establish at this stage that its failure to win the Proteus Contract will significantly affect its chances in future procurements by reason of loss of reputation (I accept that it is always possible that at a full trial on different evidence, such a case might in due course be made out).”

     

    Ireland

    Construcciones Y Auxiliar De Ferrocarriles S.A. v Iarnród Éireann [2025] IEHC 645 (Twomey J) – reputational argument rejected on the basis that damages not available for loss of reputation in any event

    “73. Thirdly, as regards damage to reputation, it is clear from BAM and Powerteam, the Irish courts do not regard difficulties in assessing claims for reputational damage, as a result of not winning tenders, as meaning that damages are inadequate in those cases. At para. 37 in Powerteam, Costello J. stated:

     ‘I do not accept that reputational damage arising from the loss of a tender competition per se will warrant the conclusion that damages are an inadequate remedy for an applicant.’

    In BAM at para. 19, Barrett J. answered the contention that the reputational damage to the losing tenderer would be very difficult to evaluate and so damages would be inadequate in the following way:

    ‘The court is unconvinced by BAM’s contention in this regard. When it comes to tendering for contracts, to use a colloquialism, “you win some, you lose some”’.

    Furthermore, it is this Court’s view that CAF’s characterisation of its claim, as a loss of a ‘reputation gain’ (which it would have got, if it had won the tender), is in effect, the other side of the same coin as loss of reputation. After all, in both instances a party is looking for damages for the impact on its reputation, for its (allegedly wrongful) failure to be awarded a tender. Thus, since to date damages have not been awarded by the Irish courts for reputation loss (in the context of a tender bid), this Court does not believe that damages are available for the loss of a reputation gain (in the context of tender bid). Hence CAF’s claim that damages are inadequate for this reason is rejected.”

     

    Powerteam Electrical Services Limited t/a Omexom v Electricity Supply Board [2016] IEHC 87 (Costello J) – reputational argument rejected in relation to contract for repair and maintenance of overhead power lines

    “37.       I do not accept that reputational damage arising from the loss of a tender competition per se will warrant the conclusion that damages are an inadequate remedy for an applicant. This would clearly be inconsistent with the existence of damages as a remedy in procurement cases. No doubt success in any particular procurement process enhances the ability of the successful party to tender in subsequent competitions. On the other hand, parties frequently unsuccessfully participate in tender procedures. It is inevitable that parties will not be successful in every tender competition. It does not unduly inhibit them in subsequent competitions. It is in those circumstances that the allegation of reputational loss arising out of a failure to win this contract requires to be assessed.

    38. Further, it was held by Bermingham J. in O’Kelly Brothers Civil Engineering Company Ltd. v. Cork City Council [2013] IEHC 159 that damages were an adequate remedy and appropriate remedy in a procurement case. The applicant in this case has not established that the contract at issue is of such an exceptional and prestigious character as in Eurostar or Gatwick Airport as to warrant the conclusion that the loss of the contract would cause such significant reputational damage as to be incapable of compensation.

    39. I am not satisfied that the applicant has made out a case that damages would be inadequate to compensate the applicant for any loss of reputation or market position arising out of its failure to win the contract the subject of these proceedings.”

  • Claims of Going Out of Business

    Northern Ireland

    TES Group Ltd v Northern Island Water Ltd [2020] NIQB 62 Horner J – convincing evidence needed to show financial ruin

    “[32] But no company can expect to be successful in every tendering competition it enters. If an unsuccessful tenderer is intending to make the case that the loss of a competition will spell financial ruin, then it should provide convincing evidence as to why this is likely. There has been a complete failure to provide such evidence. I have already commented on the expert opinion of Mr McAllister. Indeed, it is difficult not to conclude that there has been a deliberate attempt to keep the court in the dark as to how TES will perform should it lose this tender by starving it of up to date financial information as to how TES is currently performing. If TES had wanted to make such a case, namely that winning Lot 2 was essential for its long-term survival, I would have expected the following evidence to be provided at a bare minimum:

    (a) Up-to-date management accounts and detailed financial information as to turnover etc.

    (b) A breakdown of how TES’s turnover was made up and what was attributable to Water Services.

    (c) What contracts TES had in the Water Services sphere apart from those with the defendant.

    (d) What alternative work sources there were in the Water Services sphere available to it.

    (e) What plan TES had if it was unsuccessful in this tender to seek other work. If it had no plan how and why had it become so dependent on winning this particular contract.

    (g) The effect of a successful claim on its finances and its ability to retain its employees.

    [33] In the circumstances I remain deeply unimpressed by the claim made by TES of financial ruin if it fails to win this contract and by its failure to provide any cogent financial evidence to support it.”

    Ireland

    Word Perfect Translation Services Limited v Miniter for Public Expenditure and Reform [2018] IECA 35 – loss of rare language interpreters could put company out of business

    “62. Weighed on the other hand is the fact that Word Perfect has provided this service to many State agencies for years and it has shown itself in the round at least to be a competent provider of a specialist service. If it were to lose this business there seems little doubt that but that it would hamper its ability to retain specialist employees who can translate rare languages such as Farsi, Albanian and Ga. Irrespective of whether Mr. Gashi raised this concern only somewhat belatedly, there must be a real risk of significant reputational damage to the company which might possibly prove to be terminal.”

    Powerteam Electrical Services Limited t/a Omexom v Electricity Supply Board [2016] IEHC 87 (Costello J) – Court accepted argument that damages were not adequate for the Applicant on the basis it would go out of business, however, suspension lifted on balance of convenience

    “42.       Finally, there is the applicant’s argument that if the automatic suspension is lifted the company will cease to carry on business in the state. Prima facie if a business will probably cease to trade if an injunction is withheld, damages are not an adequate remedy. The applicant says it “will lose most, if not all, of its highly trained resources and management to competitors, such that its’ position in the overhead line market will be damaged irretrievably, and probably, terminally.” While it has other work, this is miniscule compared with the volume of work previously performed for the respondent. It will be forced to cease operations in Ireland.

    43. This evidence was not contested by the respondent. It argued that the loss, if the applicant’s evidence was correct, was inevitable, whether or not the suspension was lifted, as the applicant would have no work from the respondent unless and until it succeeded in these proceedings and it succeeded in winning a place on the Framework. Therefore this was not an answer to its argument that damages would provide an adequate remedy.

    44. I do not accept the respondent’s submission. The applicant has placed evidence before the Court, which is not controverted, that there is likely to be a real issue retaining staff in the absence of work. In fact the respondent and the notice party actually agree with the applicant on this point and the fact that it will be very difficult to start again from scratch, so to speak, at the end of these proceedings. That being so, on the basis of the evidence before the Court, I accept that damages would not be an adequate remedy for the applicant were the suspension lifted.”

• Adequacy of Damages for Contracting Authority

  The courts almost always conclude that damages will not be adequate for the contracting authority, although there are rare cases where the courts have held that damages would be adequate for the contracting authority.

  General Considerations

  Medequip v Kensington and Chelsea [2022] EWHC 3293 (TCC) – Eyre J

  “47. Particular considerations arise when addressing this question in the context of procurement cases where the defendant will be a public body. There will be cases where damages will demonstrably be an adequate remedy even for such a body if the suspension is kept in place and it is precluded from placing the contract in accordance with its procurement process. This will be the position where awarding the contract would mean that the authority was able to obtain particular goods or services at a particular price and where the restraint on awarding the contract means that it has to obtain identical goods or services for a higher price. There, an award in due course of the difference between the two amounts would adequately compensate the authority in question for the inability to place the contract at the lower sum at the earlier time. In such a case the same goods or services will have been obtained during the period of the suspension but at a higher price than would have been the position in the absence of the suspension. There will, however, be circumstances where damages will not be an adequate remedy for a public body. This will potentially be the position where the contract is to provide particular services for the public or to provide those services in a particular way and where the maintenance of the suspension means that for a period of time the services will not be provided or will not be provided in the way desired by the authority. Such an impact on the provision of services by the public body in question will not be measurable in financial terms and damages would not normally be an adequate remedy for a defendant authority in those circumstances (see per Lord Goff in R v Secretary of State for Transport ex p Factortame [1991] 1 AC 601 at 673 A-B).”

  Rare cases where damages found to be adequate for the contracting authority

  Bristol Missing Link Ltd v Bristol City Council [2015] EWHC 876 (TCC) (Coulson J)

  “60. By contrast, I consider that damages are an adequate remedy for the Council if the suspension is not lifted and it turns out that BMLL’s claim is ill-founded. I say that for two reasons. First, if that happens, then … that will lead to a six month delay in Refuge starting work. The costs savings to the Council (if any) which they will have been deprived of, because of that six months delay, can easily be calculated. So too can any administrative costs referable to the delay. What is more, the evidence from Mr Kandola shows that BMLL’s cross-undertaking in respect of such damages would be met.

  61. The Council say that the prejudice caused to the service users by this six month delay is not something which can be compensated for in damages. If there were any prejudice to the service users then I would accept that submission. However, for the reasons explored in Section 8 below, I have concluded that no such prejudice has been demonstrated.

  62. For those reasons, therefore, damages would be an adequate remedy for the Council if BMLL’s claim is unsustainable and the six month delay should not have occurred. On that basis, therefore, a consideration of the adequacy of damages, the first critical element of the balance of convenience, is in favour of maintaining the suspension.”

• Undertaking as to Damages

  Is a Claimant required to provide an undertaking as to damages as a condition of having the suspension remain in place? This appears to be the position. Significant weight has been given to this issue in some cases, but not in others. A question that also sometimes arises is whether the Claimant’s undertaking will cover losses suffered by entities beyond the contracting authority, or to the public interest more generally.

  One Medicare (t/a One Primary Care LLP) v NHS Northamptonshire Integrated Care Board [2025] EWHC 63 (TCC) at [72]-[82]

  “The absence of the offer of a standard cross-undertaking in damages to either the ICB or DHU is the strongest reason, if not the sole reason, to grant the application to lift the suspension.”

  Camelot UK Lotteries Ltd & Anor v Gambling Commission & Ors [2022] EWCA Civ 1020 – Cross-undertakings in damages required as a condition of permission to appeal against High Court decision lifting the suspension

  “22. It follows that these undertakings in this form must be given by the applicants by 4 pm tomorrow because that is the time when the suspension runs out. The suspension will not be extended further if those undertakings are not provided. If the undertakings are given by 4 o’clock, the suspension is continued and will be continued to the conclusion of the appeal.”

  Ireland

  Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform [2021] IECA 305, [2022] 3 IR 764 – Applicant provided undertaking as to damages but it would not cover the many public bodies who might use the framework (but, suspension was maintained)

  “145. The applicant also contends that if there is an administrative cost caused by the delay in concluding the framework, that could be compensated in damages, and it has provided an undertaking as to damages in that regard. However, I see no reason to disagree with the judge’s conclusion that the potential damage to the public interests involved and the difficulty of quantifying that damage means that damages would not be an adequate remedy the respondent. Insofar as there is a greater administrative cost involved in public bodies having to proceed with individual tender processes and while the applicant has confirmed that any costs associated with that could be compensated in damages on foot of the applicant’s undertaking as to damages, the judge rightly pointed out that the applicant has only offered an undertaking as to damages to the respondent and not to individual public bodies who may be put to additional expense if they have to run their own procurement processes. Therefore, I completely agree with the judge that damages would not be an adequate remedy for the respondent.”