Automatic Suspension

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).

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  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.

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  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.”

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  Expedited Trial

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    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“

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    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.”

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    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.”

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    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.”

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  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.”

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  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.”

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  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.

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    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.”

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    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.”

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    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.”

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    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.”

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    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.”

• Copied

  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.”

• Copied

  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.”