The automatic suspension is a central feature of both the EU and UK remedies regimes. It automatically comes into effect on the bringing of legal proceedings and suspends the contract, meaning that the contracting authority is precluded from concluding the contract with the winning bidder.
In the EU regime, the Remedies Directive (89/665) emphasises the importance of so-called “pre-contractual” remedies. The rationale is that if the tender process or award decision was unlawful, the best remedy is one which is granted before any contract has been concluded and which affords the successful applicant an opportunity to obtain the contract (or, at least, ensure that the contract is not concluded on an unlawful basis). Article 2 of the Remedies Directive requires Member States to “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.” That automatic suspension must end no earlier than the expiry of the standstill period.
In the UK, section 101 of the Procurement Act 2023 also imposes an automatic suspension once proceedings have been commenced. This continues the position that applied previously under the 2015 Public Contracts Regulations.
The automatic suspension lasts until such time as the application for review is determined or the Court lifts the automatic suspension. The first question for a contracting authority faced with proceedings is whether it should apply to lift the automatic suspension. If it does so, the Court will essentially determine an injunction application, faced with deciding whether the suspension should remain in place pending the determination of the proceedings, or whether the suspension should be lifted so as to permit the contracting authority to conclude the contract and leave the claimant to a remedy in damages.
There is a significant body of case law on the automatic suspension. We provide an extensive review of this area, focusing on judgments of the English, Northern Irish, Scottish and Irish courts. Coverage is provided of over 50 judgments, with in-depth analysis of the weight given to different factors and how they are considered and applied by the courts, including:
- The Burden and Standard of Proof
- The Merits of the Case
- Reputational Damage
- The Prestige of the Contract
- Difficulties in Assessing Damages
- The Sufficiently Serious Breach Question
- The Timeline to Trial
- External Funding for the Contract
- The Public Interest
- Benefits of the New Contract
- The Interest of the Successful Tenderer
- Importance of Compliance with Public Procurement Law
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EU
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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.
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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.
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Article 2 Requirements for review procedures
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Directive 89/665/EEC
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Ireland
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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
- Citation.
- Interpretation—general.
- Application of these Regulations to contracts and decisions.
- Persons to whom review procedures are available.
- Standstill period.
- Notices to unsuccessful tenderers and candidates.
- Time limits for applications to Court.
- Application to Court.
- Powers of Court.
- Rules of court.
- Declaration by Court that a contract is ineffective.
- Effect of declaration that a contract is ineffective.
- Alternative penalties.
- Non-exclusion of other remedies.
- 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.
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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.
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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.
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Regulation 9 Powers of Court
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(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.
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Consolidated Version of S.I. No. 130/2010 (Remedies Regulations)
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S.I. No. 130/2010 European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010
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UK
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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.
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102 Interim remedies
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(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.
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101 Automatic suspension of the entry into or modification of contracts
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Procurement Act 2023
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England and Wales
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Indigo Services Ltd v Colchester Institute Corporation [2010] EWHC 3237 (Donaldson QC)
Region: England and Wales
Suspension Lifted? YES. High Court lifts automatic suspension on contracts for cleaning services at two education facilities
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]-[42]
“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.
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 …
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.
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.”
- Excel Europe Ltd v University Hospitals Coventry and Warwickshire NHS Trust [2010] EWHC 3332 (TCC) (Akenhead J)
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The Halo Trust v Secretary of State for International Development [2011] EWHC 87 (TCC) (Akenhead J)
Region: England and Wales
Suspension Lifted? Yes. High Courts lifts suspension on £3.5m contract for demining in Cambodia
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
Claimant failed the serious issue to be tried threshold ([54-[57])
“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.
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.
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.
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.”
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Newcastle Upon Tyne Hospital NHS Foundation Trust v Newcastle Primary Care Trust [2012] EWHC 2093 (QB) (Tugendhat J)
Region: England and Wales
Suspension Lifted? Yes. High Court lifts suspension on contract for diabetic retinopathy screening services
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]-[47]
“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.
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.
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.
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.
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.
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.”
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Covanta Energy Limited v Merseyside Waste Disposal Authority (No 2) [2013] EWHC 2922 (TCC) (Coulson J)
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
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]-[55])
“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.
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.
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.
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.
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.
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]-[76])
“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.
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?
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.
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.
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.
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.”
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DWF LLP v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 900 (Jacob, Sir Robin)
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
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)
- NATS (Services) Ltd v Gatwick Airport Ltd [2014] EWHC 3133 (TCC) (Ramsey J)
- R (Edenred (UK Group) Limited) v HM Treasury [2014] EWHC 3555 (Leggatt J)
- Group M UK Ltd v Cabinet Office [2014] EWHC 3659 (TCC) (Akenhead J)
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Advanced Business Software and Solutions Ltd v The Pirbright Institute [2014] EWHC 4651 (TCC) (Akenhead J)
Region: England and Wales
Suspension Lifted? Yes. High Court lifts suspension on contract for an integrated software system
Key Factors
- Damages were adequate for the Claimant – claims of importance of contract in getting foothold in the market, rejected ([16])
- Balance of convenience favoured lifting – urgency to replace outdated IT systems; significant delay if to await trial ([17]-[18])
“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)
- Counted4 Community Interest Company v Sunderland City Council [2015] EWHC 3898 (TCC) (Carr J)
- Solent NHS Trust v Hampshire County Council [2015] EWHC 457 (TCC) (Akenhead J)
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Bristol Missing Link Ltd v Bristol City Council [2015] EWHC 876 (TCC) (Coulson J)
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
- Perinatal Institute v Healthcare Quality Improvement Partnership [2016] EWHC 2626 (TCC) (Jefford J)
- Alstom Transport Limited v London Underground [2017] EWHC 1521 (Stuart-Smith J)
- Sysmex (UK) Ltd v Imperial College Healthcare NHS Trust [2017] EWHC 1824 (TCC) (Coulson J)
- Lancashire Care NHS Foundation Trust & Anor v Lancashire County Council [2018] EWHC 200 (TCC) (Fraser J)
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DHL Supply Chain Ltd v Secretary of State for Health [2018] EWHC 2213 (O'Farrell J)
Region: England and Wales
Suspension Lifted? Yes. High Court lifts suspension on £730m NHS contract for logistical services
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 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.”
- Bombardier Transportation UK Ltd v Hitachi Rail Europe Ltd [2018] EWHC 2926 (TCC) (O'Farrell J)
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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
- 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
- On reputation at [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”
- 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
- Circle Nottingham Ltd v NHS Rushcliffe Clinical Commissioning Group [2019] EWHC 1315 (TCC) (Edwards-Stuart J)
- Neology UK Ltd v Newcastle-upon-Tyne City Council [2020] EWHC 2958 (TCC) (Kerr J)
- Aquila Heywood Ltd v Local Pensions Partnership Administration Ltd [2021] EWHC 114 (TCC) (Pepperall J)
- Vodafone Limited v Secretary of State for Foreign Commonwealth and Development Affairs [2021] EWHC 2793 (TCC) (Kerr J)
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Draeger Safety UK Ltd v London Fire Commissioner [2021] EWHC 2221 (TCC) (O'Farrell J)
Region: England and Wales
Suspension Lifted? No. High Court maintains suspension on contract for respiratory protective equipment for London Fire Brigade
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)
- Camelot UK Lotteries v The Gambling Commission [2022] EWHC 1664 (O'Farrell J)
- Medequip Assistive Technology Ltd v Kensington and Chelsea [2022] EWHC 3293 (TCC) (Eyre J)
- Boxxe v Secretary of State for Justice [2023] EWHC 533 (TCC) (Constable J)
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Teleperformance Contact Ltd v Secretary of State for the Home Department [2023] EWHC 2481 (TCC) (Constable J)
Region: England and Wales
Suspension Lifted? YES. High Court lifts automatic suspension on contracts for the provision of visa and citizenship application services
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.”
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Robert Heath Heating Limited v Orbit Group Limited [2024] EWHC 3039 (TCC) (ter Haar KC)
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
Key Factors
- Damages were adequate for the Claimant
- No arguable case for loss of reputation
[75]-[79]
“In my judgment, contrary to those submissions, damages would be an adequate remedy for RHH if its challenges succeed.
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.
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.
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.
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.”
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Involve Visual Collaboration Ltd v Secretary of State for Work and Pensions [2025] EWHC 2664 (Waksman J)
Region: England and Wales
Suspension Lifted? No. High Court refuses to lift automatic suspension on contract for audio-visual facilities
The Claimant was the incumbent; it was excluded from the competition for failing the technical element
Key factors
Damages would not be an adequate remedy for the Claimant
“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” ([49])
Damages would not be adequate for the Defendant although
“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 to the New Contract” ([61])
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 prejudice to the Defendant was possibly
“the delay to bringing in the New Solution with the various benefits which that will entail” ([69])
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Millbrook Healthcare Limited v Devon County Council and Nottingham Rehab Limited [2025] EWHC 744 (TCC) (Howard KC)
Region: England and Wales
Suspension Lifted? YES. High Court lifts automatic suspension for £46m home care services contract.
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
Points made by the Claimant to establish prejudice were “made by mere general assertions, without supporting evidence” [13]
Loss of profit from the contract for the unsuccessful was “very much part of life” [14]
Lost revenues from the contract “will be quantifiable” and “uncertainties and complexities with quantification … do not mean any losses are irrecoverable or impossible to quantity fairly” [15]
The contract “was not unique, prestigious or the sole source of the Claimant’s workstreams” and the loss of one contract would not “undermine the Claimant’s entire business model or its ability to win new work from other local authorities” [16]
Concerns about a rushed transition to the new provider were not substantiated [16]-[19]
No cogent evidence to suggest that the award of the contract would have an impact on the structure of competition in the market [21]
Re sufficiently serious breach, the Defendant refused to concede, for the purpose of the Lift application, that any breach would be sufficiently serious. However, Howard KC decided that it was just to confine the Claimant to a damages remedy, while accepting that at the conclusion of the case, it might be held that any breach was not sufficiently serious to sound in damages. Referring to Braceurself Limited v National Health Service [2024] KB 914, there was nothing incoherent in an approach which held, at the interlocutory stage, that damages were an adequate remedy, and a final decision, where it was held that damages were not available because the breach was not sufficiently serious. As Coulson LJ had said in that case, at [114]:”That is not incoherent; it is the consequence of there being two different exercises (one interlocutory and one final), involving two different sets of evidence and two different sets of governing principles. They may produce differing results.” Howard KC also stated at [32]:
“Other than a preliminary conclusion on the adequacy of damages and the effectiveness of that remedy, I am not in any position to conduct a ‘crystal ball gaze’ of the respective merits of two rival bidders nor review the evaluation conducted by DCC to anticipate whether there was in fact any breach of the PCR 2015 in its assessment of any one of the pass/fail criteria or other scores or, if so, whether any such breach was (im)material, culpable or excusable. At this early stage, I cannot even assess whether there is a real risk of any breach not being found to be sufficiently serious…
[Whilst] the Claimant is entitled to effective remedy and fair process, those principles are not absolute. The principle of effective relief does not function as a guarantee or create any entitlement to a particular preferred remedy where there is none.
[There] is a system of remedies for breaches of procurement law but that does not mean that all remedies are universally available at all times.”
The Court held that as damages were adequate for the Claimant,”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” [35]
Other Factors
The Court nonetheless said that damages would not be adequate for the Defendant and that the balance of convenience favoured lifting the suspension. It was also held that even if expedition could be granted for the trial, the earliest hearing date would be Easter 2026 ([45])
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Mak Systems Group Ltd v Velindre University NHS Trust [2026] EWHC 8 (TCC) (Jefford J)
Region: England and Wales
Suspension Lifted? Yes. High Court lifts suspension on NHS Trust's contract for a computer system for blood information
Background
- Claimant, Mak, was the incumbent supplier of blood establishment 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:
- claims as to reputational impact were mere assertion;
- contract was for modest sum
- 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 (although holding at [96] 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.”
“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…”
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Cubic Transportation Systems Ltd v Transport for London & Anor [2026] EWHC 61 (TCC) (ter Haar KC)
Region: England and Wales
Suspension Lifted? Yes. High Court lifts suspension on £800m revenue collection contract for Transport for London (TfL)
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” ([76])
“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.”
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Indigo Services Ltd v Colchester Institute Corporation [2010] EWHC 3237 (Donaldson QC)
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Ireland
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CHC Ireland DAC v Minister for Transport [2023] IECA 229
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)
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
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Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform [2018] IECA 35, [2019] 2 IR 305
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.”
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Word Perfect Translation Services Limited v The Minister for Public Expenditure and Reform [2021] IECA 305, [2022] 3 IR 764
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.”
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Homecare Medical Supplies Unlimited Company v Health Service Executive [2018] IEHC 55
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.”
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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.
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Construcciones Y Auxiliar De Ferrocarriles S.A. v Iarnród Éireann - Irish Rail [2025] IEHC 645 (Twomey J)
Region: Ireland
Suspension Lifted? Yes. High Court lifts automatic suspension on €650m train manufacture and maintenance contract
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
“[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” ([52])
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Atlantic Endeavour Limited - Office of Public Works [2025] IEHC 324 (Simons J)
Region: Ireland
Suspension Lifted? Yes. High Court lifts automatic suspension on issuance of licences for ferry boats to Skellig Islands
Background
- ABCD
Key Factors
- ABCD
- ABCD
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CHC Ireland DAC v Minister for Transport [2023] IECA 229
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Northern Ireland
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John Sisk & Son Holdings Ltd v Western Health & Social Care Trust [2014] NIQB 56 (Stephens J)
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
Key Factors
Determining factor: damages would be an adequate remedy for the Plaintiff
Also, damages no adequate for the Trust ([72]) and overriding public interest in new hospital being constructed in an appropriate timescale ([74])
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
The Plaintiff was not an incumbent: “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” ([60])
The difference in marks was very small: Stephens J said: “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 … On the facts of this case the difficulties of assessing loss of a chance is not a difficulty of any major substance” ([61])
Loss of Profits could be calculated by an expert: “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. 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” ([62]-[63])
Plaintiff failed to provide sufficient evidence to support a reputational argument: “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” ([64])
No evidence staff would leave: see [65]
No evidence to support claim that Plaintiff would be deprived of opportunities to develop economies of scale and market share: see [66]
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CGI IT UK Ltd v Department of Finance [2024] NIKB 49
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
“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” ([44])
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:
“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” ([47])
An expedited trial could take place with a judgment within 6 months
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John Sisk & Son Holdings Ltd v Western Health & Social Care Trust [2014] NIQB 56 (Stephens J)
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Scotland
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Amey Ow Limited V North Lanarkshire Council [2024] CSOH 66
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 ([41])
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 ([43])
The approach in Scotland may place less importance on the question of adequacy of damages than is the case in England and Wales (see [34])
The automatic suspension constitutes the status quo (unlike in England and Wales) (see [36])
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Amey Ow Limited V North Lanarkshire Council [2024] CSOH 66
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 [Add references here, including Millbrook]. 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.”
- Importance of Suspension's Duration
- 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.”
“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.”
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
“[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.”
- General Approach
- 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.”