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

Case No HT-14-187[2015] EWHC 457 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26 th February 2015
Before
MR JUSTICE AKENHEAD
Between
SOLENT NHS TRUSTClaimantHAMPSHIRE COUNTY COUNCILDefendant
Sarah Hannaford QC (instructed by Capstick Solicitors LLP) for ClaimantJoseph Barrett (instructed by Legal Services, Hampshire County Council) for DefendantHearing Hearing date: 23 February 2015
Judgment
[1]In this public procurement case, Hampshire County Council ("HCC") applies to lift the statutory suspension on the placing of a contract for the provision of county wide integrated adult substance misuse recovery services. Solent NHS Trust ("Solent”) is the incumbent provider of comparable services and, having come second in the tender competition for the new contract, has issued proceedings, primarily seeking the setting aside of the decision to award the contract to another organisation.[2]It is, rightly, common ground that the principles set out in the well-known House of Laws decision in American Cyanamid Co v Ethicon Ltd [1975] AC 396, albeit as developed in further case law, are applicable. In essence, in deciding whether or not to lift the suspension, the Court has to decide whether there is a serious question to be tried, whether Solent would be adequately compensated by an award of damages and whether on the balance of convenience the suspension should or should not remain in place. The development of the law, so far as is material, is that the Court in considering whether damages would be an adequate remedy needs to consider the question of "whether it is just in all the circumstances that the claimant should be confined to his remedy in damages” (per Jackson LJ in Iraci v Fallon [2011] EWCA Civ 668 at Paragraph 42). The Factual Background[3]Currently, and until 31 March 2015, HCC employs Solent under a contract made in April 2011 to provide a community based specialist adult treatment service, an inpatient drug and alcohol detoxification service and a specialist carers support service. This contract was initially for two years but was extended for two years. As Mr Down of the HCC Drug and Alcoholic Action Team has said in his witness statement, HCC commissions public health services to treat and support the recovery and rehabilitation of residents in its area who suffer from addiction to alcohol and drugs. He explains that in the 12 months up to 1 October 2014 almost 3,200 people received structured treatment for substance misuse, many of whom present with a variety of physical, psychological, health and behavioural problems and issues and many of whom are both extremely vulnerable and at high risk of facing significant risks to their well-being (and even their lives) in the event of relapse. There can be little or no doubt that the treatment services both under the existing and the proposed new contract are and will be vital to this vulnerable part of society.[4]HCC believed that the services being provided under the current arrangements could be improved by a greater level of integration and by a number of enhancements. Mr Down sets out at Paragraph 10 of his statement the integration improvements and enhancements which, he believes, would be delivered by the proposed new contract. These include the provision of a treatment hub in Gosport (an area of high need with a high prevalence of substance misuse and related crime) where currently there is no local provision of open access and drop in services, group-based therapeutic activities or recovery of development programmes; Gosport residents have to travel currently to Fareham (some 8-9 miles away). There are currently treatment hub premises in Eastleigh, the New Forest and Andover; the lease on Andover expires at the end of March 2015 and it is thought that the other two sets of premises are not fit for purpose; the intention is that alternative sites in the three areas are needed which are fit for purpose. Currently, in-patient detoxification treatment is delivered through a residential unit called Baytrees, in fact owned by Solent; Baytrees is operated so as to provide about half of its 23 beds on a guaranteed basis to HCC “service users” (or patients) whilst the other half is made available to anyone else more on an ad hoc basis. HCC wanted to improve the quality and choice of provision for inpatient detoxification and offer what Mr Down calls "the differentiation of treatment model and environment required under NICE clinical guidelines" for instance accommodating parent and child admissions as well as meeting the requirements of those with very complex physical or mental health needs.[5]Given the impending expiry of the current contract, HCC advertised its intention to award the new contract by notice in the Official Journal of the European Union on 25 June 2014. The advertised contract would be for three years with an optional two-year extension, the maximum budget available was £41.29 million (spread over five years) and start date was to be 1 April 2015. Three tenderers pre-qualified, namely Solent, Inclusion and CRI (the latter currently being a major sub-contractor to Solent under the current contract).[6]The Invitation to Tender ("ITT") set out (Paragraph 2.1) a timetable which envisaged the notification of the contract award decision as being 12 November 2014. Paragraph 5 sets out the "Tender Evaluations Model" which identifies that the contract would be awarded on the basis of "the most economically advantageous tender" with marking of tenders to be by reference to 11 quality requirements (attracting weightings of between 5% and 11%) and one requirement relating to price and cost which was to attract 10% of the weighting in terms of marks. Thus there was a concentration on quality and scope which was to attract 90% of the available marking and only 10% was to relate to price. So far as price was concerned, the highest overall bid price was to receive a score of 0% (Paragraph 5.2.3) with 10% awarded to the lowest bid submitted. The other quality and scope requirements were to be assessed by reference to the answers provided to set questions with score percentages of 100%, 75%, 50% and 0% of the individual weightings being awarded for "Excellent", "Good", "Satisfactory" and "Unsatisfactory" answers, respectively. Paragraph 5.3 identified limits on the number of words to be used in the answers to the 11 quality and scope questions, the word limits varying between 1000 and 2000 words. Paragraph 5.4.1 stated:
“The winning tenderer will be the one which: • Obtains a Pass for Price and Cost; and • Obtains a Pass for all Pass/Fail Award Criteria; and • Obtains the highest combined score of the written submission, and price and cost weighted questions of all tenders, provided they score at least 50% of the available marks each questionnaire…Should no provider reach this minimum we reserve the right not to proceed any further with the tender.”
[7]An example of one of the Questions, referred to by the parties, was Question 7: “Please describe your organisational approach to clinical governance, quality assurance and improvement. As part of your answer please submit details of your governance and assurance framework and explain how this supports your approach in relation to the service outlined in the specification with reference to: a) clinical governance b) quality assurance c) performance & service improvement d) clinical & cost effectiveness."[8]The three pre-qualified tenderers submitted their tenders, apparently within time. By letter dated 2 December 2014, HCC informed Solent that it had been unsuccessful and that HCC intended to place the contract with Inclusion. Attached was an "Evaluation Report" which identified that Inclusion had a total of 55% (albeit 0% on Price and Cost) and that Solent had scored 46.24% (including 8.99% on Price and Cost). This Evaluation Report also set out what Solent and Inclusion scored on each of the questions going to quality and scope with a written explanation explaining their respective scores. For instance, in relation to Question 7, whilst Inclusion scored 5.5% ("Satisfactory"), Solent scored 0% ("Unsatisfactory") for the following given reasons: “The tenderer makes no reference to NICE quality standards or Drug Misuse and Dependence: UK Guidelines on Clinical Management although NICE is referenced. Reference is made to a quality improvement strategy. Although references are made to information management, there are no references to information governance. The response demonstrates that service users are consulted but not that they are engaged at all levels. There is no reference to the involvement of commissioners. The tenderers [sic] answer focuses on practitioner level performance management rather than a strategic level approach."[9]There was unchallenged evidence that the tenders were evaluated by an Evaluation Panel made up of five people including Mr Down and Dr Jackson (who provided witness statements), all of whom were said to be highly experienced individuals with very considerable expertise and knowledge in the relevant fields and in procurement.[10]Following correspondence, Solent issued proceedings in the TCC on 31 December 2014, serving Particulars of Claim on 7 January 2015. At Paragraph 14, Solent sets out its complaints about breach on the part of HCC of the Public Contracts Regulations 2006 (as amended) to the broad effect that HCC "failed to act transparently, fairly and in a proportionate manner, rationally and in accordance with the principles of equal treatment, proportionality and good administration, failed to identify the most economically advantageous tender and/or was manifestly wrong in its evaluation". Its primary complaint at Paragraph 14(1) is that HCC "made plain errors in its scoring of [Solent’s] bid and that reasons provided by [HCC] bear no relation to [Solent’s] tender response and/or do not correspond to the published criteria and scoring methodology…”. There then follows complaints about the marking of Questions 1, 3, 4, 6, 7 and 9. Paragraph 14(2) complains that HCC had unfairly favoured Inclusion by "allocating significantly higher quality scores to Inclusion’s tender relative to those granted to [Solent’s] tender without proper grounds for doing so". Paragraph 14(3) is a complaint that HCC had failed to follow the published award criteria and scoring methodology or had applied undisclosed criteria or methodologies. Paragraph 14(4) is a complaint that Inclusion should have been disqualified in effect because it scored nothing on the Price and Cost (the argument being that it should have been rejected on the basis of Paragraph 5.4.1 of the ITT).[11]The Defence was served on 4 February 2015. This addresses each of the complaints about the marking of six questions highlighted in the Particulars of Claim.[12]HCC issued its application to lift the statutory suspension on 10 February 2015, this being accompanied by a statement from Mr Down. I convened a meeting with Counsel on 11 February 2015 initially fixing a hearing date for 18, later 19 February 2015, with Solent to serve its evidence by close of business on 16 February and HCC to serve evidence in reply by close of business on 17 February 2015. Due to judge availability problems, the hearing on 19 February could not go ahead and so the hearing on 23 February was fixed. Each party was about one or two hours late in the service of its evidence. However, Solent decided, having served a witness statement from Dr Crichton and Ms Austin (the Director of Strategy at Solent), to serve a further witness statement from Ms Austin just after midday on 20 February 2015. At the beginning of the hearing on 23 February 2015, on Solent’s application, I granted permission to Solent to adduce this further evidence, some of which was responsive to HCC’s reply evidence from Dr Jackson (the Deputy Director of Public Health for HCC). In so doing, I had offered to HCC the opportunity of either up to one hour’s adjournment to enable Counsel to obtain instructions from Dr Jackson who was in court or a two-day adjournment to enable responsive evidence to be submitted, all at the cost of Solent but Mr Barrett, on instructions, wished to proceed, given that HCC felt that there was an urgent need to proceed. During the course of argument however, Mr Barrett indicated that his client challenged a key element of what Ms Austin had said in her second statement about the impact of TUPE transfers on Solent’s ability to run other related services for Southampton and Portsmouth City Councils. I gave permission to each party to file short further witness statements dealing with this area of evidential disagreement. These were filed more or less on time on 24 February 2015. Serious Issue to be Tried[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.[16]Accordingly, I conclude that there is a serious issue to be tried here and that the claim in relation to breach in the marking of the six questions highlighted in the Particulars of Claim is neither obviously weak nor obviously strong. Damages as Adequate Remedy and Balance of Convenience[17]Solent, although a "not for profit" organisation, has a substantial annual turnover. In its 2014 annual report, it reports an annual revenue of £188 million with a workforce in excess of 3,600; it achieved a financial surplus of £1.9 million and secured new business worth over £12 million.[18]Solent’s pleaded claim for loss (Paragraph 18 of the Particulars of Claim) is "its lost profits on the anticipated contract and/or its wasted bid costs". Its tender specifically identified the "profit" built into its tendered prices, namely a specific sterling sum. Ms Austin in her first witness statement does not really challenge the assertion that any lost profit claim would be relatively easy to ascertain. On the basis of the case that is pleaded, Solent simply says that it would have won the competition if it had been marked correctly or without manifest error. This is therefore not obviously a case in which the Court is likely to have to assess in percentage terms the chances of Solent "winning": there will either be a finding that it would have won or that it would not have won; if it is the former it will recover its lost profit and if it is the latter it will recover nothing. There is, rightly, no suggestion that the wasted tender costs could not readily be quantified.[19]It is suggested that there is some realistic prospect of there being a loss of reputation if Solent is not in effect given the chance not only to fight the case but to win it so that there can be a re-tendering process through which, if it succeeds in that process, it will secure the new contract with the enhanced reputation which might be brought to it. It is certainly true that in some cases the potential loss of reputation has been taken into account as supporting an argument that damages would be an inadequate remedy (see for example DWF LLP v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 900, at paragraph 52 and Alstom Transport v Eurostar International Ltd [2010] EWHC 2747 (Ch) at paragraph 129). I do not see however that the current case and a lifting of the suspension would materially impact upon the reputation of Solent. There is a mass of evidence from Ms Austin that over the past three or four years it has done very well in terms of the Key Performance Indicators on the current project and so there is no obvious implication that it failed to secure the project because it had performed the current contract badly; indeed, the fact that it pre-qualified to tender for the new contract is itself evidence that it was considered sufficiently qualified and experienced. In any event, even if the suspension was lifted, it remains open to Solent to pursue its case on liability and establish if it can that it should have won the new contract, which would restore any reputation which it thinks it might lose.[20]The real issues raised on the adequacy of damages arise out of two factors. The first (the “TUPE” issue) is that, so it is said, Solent provides community services to Southampton City and community and mental health services to Portsmouth City Councils; if the suspension is lifted, there will have to be TUPE transfers of personnel to the new provider, Inclusion and a number of the employees to be transferred also work on and in connection with the Southampton and Portsmouth City contracts. The economies of scale are such that, following the TUPE transfers, in effect those transferred employees will not be able, readily or at all, to work on those two projects and therefore the staffing and indeed viability of those two projects will be seriously undermined, particularly given the difficulties of finding alternative staff. The second issue relates to the possible closure of the Baytrees Unit (“the Baytrees Issue”). I will address each of these in turn.

(a) The TUPE Issue

[21]Ms Austin explains in her first statement that the Substance Misuse Services (“SMS”) provided for Portsmouth City Council are worth £874,000 per year and the recently secured contract (in December 2014) with Southampton City Council is worth £1.7 million per year. I was told that the Portsmouth City Council was entered into on 1 July 2013. Because, she says, employees who currently work on the HCC contract more than 50% of their time will have to be TUPE transferred to Inclusion, and because they may not be able or permitted by Inclusion to continue to provide their remaining available time to the Southampton and Portsmouth SMS contracts, there will be a serious risk that this would lead Solent to have to withdraw from providing services under those other contracts. This was amplified in her second witness statement in which she said that the senior clinical director of the SMS service, the operational director (currently the three SMS contracts), the clinical governance lead for all three services, 5 out of 8 doctors, 6 out of 6 nurse managers and more than 77% of specialist community nurses, counsellors and substance misuse practitioners will be affected.[22]This was challenged by HCC. In Mr Down’s second statement, he says that, in relation to the first three (who he specifically names), they do all carry out work for the Portsmouth and Southampton City projects as well as the current HCC contract and that HCC will take all reasonable steps to ensure that these three can continue to support the other two projects even after they have been TUPE transferred. He says that, based on the 2014 TUPE information provided by Solent, the vast majority of Solent employees working on the current HCC contract are spending 100% of their time on that contract; in effect, he suggests that there would be no time for them in any event to be working on the Portsmouth and Southampton City projects. He points for instance to there being six nurse managers but those records show that these are working 100% full time on the HCC contract.[23]Ms Austin in her third witness statement says that there are 4 senior people, mentioning for the first time a fourth person said to be a "services manager" who, it is inferred, will be TUPE transferred over. She now says, for the first time, that, without these for senior individuals, Solent will not be able to bid for new SMS business, for instance a new contract in West Sussex. She suggests that in practice they would not be able to continue to provide support for the Portsmouth and Southampton City projects. In relation to the clinicians, nurses and other "patient facing staff", she says that it is not true to say that all of those staff who apparently have 100% of their time allocated currently to the HCC contract on the TUPE lists actually spend 100% of their time on that contract. She suggests that a possible explanation for the allocation is that the 100% allocation relates to staff "employed by Solent as part of the setting up of the [HCC] contract" (Paragraph 6). She seems now to accept that the figure of 6 senior nurses was wrong in her second statement and it should be 6 of 7, with one nurse working on the Southampton contract and one of the remaining six spending 50% of her time at Baytrees.[24]I have to say that I find Ms Austin’s evidence on this simply unconvincing. I do not suggest by that that she is in any way deliberately trying to mislead the Court but what she says is confusing. She puts forward evidence which she could readily have done in the first witness statement; there are errors in the second witness statement. Her explanation that the TUPE lists prepared in 2014 are simply wrong in their allocation of 100% in relation to various clinicians, nurses and other medical type staff is unconvincing. The HCC contract was entered into in April 2011; if staff were allocated then for "setting up" purposes at 100% but that has changed, there is no conceivably good reason why the TUPE lists prepared in 2014 are obviously wrong and misleading. Even if she is right in respect of some or even all of the people who she identifies in her second witness statement as being liable to be TUPE transferred that the allocations of 100% are wrong, that would mean that those people are part-time workers in relation to HCC. They can not be forced, if that is correct, after the TUPE transfer to work more than part-time and if these part-timers also work in truth for the Southampton and Portsmouth City contracts, there is no obvious good reason why they cannot continue to be engaged on those other contracts even after they are TUPE transferred. There is a telling lacuna in Ms Austin’s statements which relates to the timing of Solent’s recent contract (December 2014) and the date of the Portsmouth contract in April 2013: for 1½ years, personnel working on the Portsmouth and HCC contracts will not have been working full-time anyway (between the two) but the economy of scale seems to have been sufficient to accommodate this factor. In relation to the 3 senior personnel, there is an assurance from Mr Down that they can continue to do apparently what they have always done in relation to the Southampton and Portsmouth City contracts. That means that they can continue to play a role in helping secure new contracts and to run the Southampton and Portsmouth projects. It does not sound particularly credible that a responsible NHS trust with a very substantial turnover and cash in the bank would ever wish to be seen to be terminating contracts (possibly in repudiatory breach) such as the Portsmouth and Southampton ones; one would have thought that, if this was any realistic risk, Solent would move heaven and earth to secure other work to overcome any staffing deficiency.[25]I therefore do not see that it has begun to be established that the TUPE issue is one which gives rise to any conclusion that damages would not be an adequate remedy.

(b) The Baytrees Issue

[26]It is common ground that the new HCC contract will involve the bringing to an end the guaranteed provision to the new provider or to Solent of the placement of 50% of the beds at Baytrees. What is envisaged is a choice of bed places which will take into account geographical proximity of patients; as I understand it, beds will be provided more locally in several locations and there will be a wider choice. It therefore seems inevitable that, whilst Baytrees will continue to be available and, one imagines, will also provide beds for patients who need them, there will no longer be guaranteed provision. The new provider will have to provide alternative choices. Ms Austin accepts that the new provider will still need beds for patients and Baytrees beds will be secured on an ad hoc basis. One would have thought that, at least in the short term, Baytrees will be the only facility in the county to offer the type of beds and care which it currently provides and will therefore be relatively busy, at least until the other facilities can be set up or secured.[27]There does not seem to be very much difference in terms of the viability of Baytrees, whether it is Inclusion or Solent which secures this new contract. Either way, there is to be no financially guaranteed number of beds to be provided pursuant to the new contract and Inclusion or Solent will have to provide for alternative arrangements, for instance by way of facilities with beds for patients in one or more different areas to that in which Baytrees is. Again, in either case the short-term (which may be 1 to 2 years, whilst the new arrangements are made) will be such that Baytrees will be substantially in demand, even on an ad hoc basis. Of course, Solent, which owns Baytrees, can not be forced to keep it open or run it at a loss. I am however extremely sceptical that Solent will have to close it; there should be plenty of time to market (if that is the right word) Baytrees to secure full use.[28]I therefore have very serious doubts that this is a real problem and that the Baytrees issue is such as to give rise to any real issue as to the adequacy of damages.[29]Generally, therefore, I am satisfied that damages would be an adequate remedy in this case. The Balance of Convenience[30]As I indicated in open court, I have rarely seen in a public procurement case such blunt evidential challenges as both Ms Austin and Dr Jackson make. In effect, on important issues, each seems to be saying virtually that the other is lying. That is extremely unfortunate and I must resist inferring that the relationship between HCC and Solent has broken down completely at other levels. It is unnecessary and impossible for me to decide whether these evidential differences simply arise out of misunderstandings or otherwise.[31]There is no doubt that the new contract, which HCC wishes to place with Inclusion, can not now be placed for some three months because, unsurprisingly, Inclusion will need that period of time to mobilise appropriately. The problem is that Solent’s current contract expires on 31 March 2015 and, in theory, contractually, Solent could simply stop work on that date, leaving the 3,200 or so "service users" for patients without these key services.[32]Since the announcement that Inclusion had won the tender process, the relationship between HCC and Solent has undoubtedly deteriorated at a senior level. The issue of proceedings on 31 December 2014 has not helped the relationship but, on the other hand, Solent, given that it believes that it has justifiable complaints about the procurement, had no choice but to issue those proceedings then because, if it had not done so, it might well have faced limitation problems. There have been abortive attempts by both Solent and HCC to discuss what should be done in the interim. As January came, the chances of Inclusion starting on or by 1 April 2015 had receded. A major problem is that the lease on the Andover premises will expire on 31 March 2015 and the landlord will not renew; indeed, there is no perceived need to renew but other useful substitute premises need to be found in or around Andover.[33]On or about 16 or 17 February 2015, Solent sent to HCC what was called the “Homer Continuity Summary Plan v2” which identified what needed to be discussed and agreed upon for Solent to continue to provide services. The paper identified that in respect of premises at Winchester, Basingstoke and Aldershot leases were due to expire and the landlord would be willing to extend leases for seven months (Solent’s sub-contractor) taking on the leases but with HCC to negotiate with the landlord to take them on after three months; some contracts for instance for network connections would need to be extended for more than three months. Other matters were raised such as additional costs to Solent which, it was suggested, could be addressed of an open book basis.[34]At the procedural hearing, about two weeks ago, I strongly urged the parties to reach some accommodation given that in practice only Solent could continue to provide the services over the next three months, even if Inclusion was to be permitted to come in.[35]On the evidence, I find it difficult to come to any conclusions as to which, if either, of the parties is in any way to blame for the fact that they have not yet reached an accommodation. However, I was assured by Ms Hannaford QC on behalf of Solent that Solent would, irrespective of the outcome of this application, continue to the best of its ability to provide services which it currently provides, albeit that this will be dependent on cooperation from HCC. I therefore conclude that there is a reasonably good prospect that Solent will, professionally and to the best of its ability, continue to provide the necessary services and, I would expect HCC to pay a reasonable price for the extended provision.[36]There is a serious timetabling problem. If the suspension is not lifted, the Court would use its best endeavours to provide for an expedited trial. I would anticipate that a four-day hearing would need to be allowed for, albeit it is at least possible that three days only would suffice. Having considered the TCC judges’ diaries, it would be difficult prudently and safely to find 4 days much before the second or third week of June 2015. Ms Hannaford QC suggests that, if I ordered a trial in May 2015, even if May was busy (as it is), time would be found and, if necessary, an appropriate Deputy or Recorder could be found. May 2015 is too busy and it is too risky to assume that an appropriate Deputy or Recorder could be found, the emphasis here being on the word "appropriate" because one would need to find someone with some public procurement law experience and there are very few currently on the list. I do not accept Mr Barrett’s argument that this case would not lend itself to an expedited trial in, say, June 2015: there is no good reason why properly motivated legal teams together with their clients could not complete the disclosure and witness statement preparation work for a trial in June 2015. There have been now a number of cases in which expedited trials have been ordered on as or more complicated public procurement cases within this sort of timescale and the legal teams and parties have been able to comply with the requisite directions.[37]There are then two possible scenarios, Solent establishing liability or losing; as indicated earlier in this judgment, I can not and would not predict which would happen. I would assume that the judge would be able to produce his or her judgment on liability by about the first week in July 2015. If Solent succeed, the probability is that there would have to be a re-tendering exercise. The previous tendering exercise took some five months and there would then have to be a three-month mobilisation period before the new contract started. That would take the new contract to a start date in about March 2016, about one year later than planned. If Solent loses the case on liability, then the contract could be placed with Inclusion who would need again three months to mobilise, assuming that it would hold its prices, which would by then be three months or so out of date, compared with what would have been the case. On that basis and making that assumption, Inclusion would not start to provide the new services until October 2015.[38]I am very concerned, on the evidence, about the "service users" and the impact of a delayed contract on the services to be provided for their benefit. Whilst, decently, Solent has agreed in principle to continue to provide the current level of services for as long as is reasonably necessary, what is not going to be provided is the new, improved and integrated service which this proposed contract was intended to provide. Although I detect an inferential argument from Ms Austin that the proposed improvements are either not important or will not provide a significantly better service than is currently being provided, the whole tendering process for the new contract has been predicated on there being substantial and important improvements in the county wide provision of services for the unfortunate "service users". At 3,200 people, this is not a small and insignificant number of people. The effect of a significantly delayed contract which plans to bring greater integration and improvements to the services for these people will, I assess, be harmful and detrimental to them. On one scenario, there will be a delay of over some 10 months and on the other scenario a delay of five months. It would be unfortunate not to say tragic if even one person died or suffered unavoidable serious physical or mental deterioration as a result of unavoidable delays in the provision of the improvements planned by the new contract. The introduction of the improvements will be delayed and services in the interim continue to be provided from those premises which had been considered unfit for purpose and which need to be replaced. I have no reason to doubt Mr Down’s assessment in his first statement in this regard (e.g. at Paragraph 33). I do not think that the Court should take risks with people's lives and health; by this I do not infer that Solent, if it continued under the existing regime would put “service users’” lives at risk but I do infer that the integrated and improved service to be provided under the new contract has a better chance of better outcomes and it would be wrong to risk “service users” not having the benefit of those improvements as soon as possible.[39]There are some authorities which, rightly, suggest that public interest factors such as those set out in the preceding paragraph should be taken into account. These include The Newcastle upon Time Hospital NHS Foundation Trust v Newcastle Primary Care Trust [2012] EWHC 2093 (QB) Paragraph 43, Chigwell (Shepherd's Bush) Ltd v ASRA Greater London Housing Association Ltd [2012] EWHC 2746 (QB) Paragraphs 18-21 and Glasgow Rent Deposit & Support Scheme v Glasgow City Council [2012] CSOH 199 Paragraph 21.[40]Mr Down makes a number of other points such as there being a serious detrimental impact upon HCC’s ability "to progress of key partnership work streams" such as planning for the implementation of the Offender Rehabilitation Act reforms and the piloting of an enhanced acute hospital-based alcohol specialist nurse service in line with the NICE alcohol disorder care pathway. He says at Paragraph 36 that there will be increasing disruption to HCC together with increasing wasted work and costs the longer that the suspension continues. At Paragraph 35 he says that there is a risk that the delay in delivering improvements will lead to a failure to achieve required targets under the Public Health Outcome Framework which may lead to a reduction in funding. He also points to the uncertainty created and continued by the suspension within the ranks of employees who would otherwise be TUPE transferred; it is a reasonable inference that some employees, faced with such uncertainty, may look elsewhere for jobs and competent staff will be lost.[41]Dr Jackson in her witness statement points to prejudice being suffered by Inclusion which is "a highly successful, specialist service focused on drug and alcohol services". One can readily understand that, particularly in relation to its own staff that it wishes to mobilise for the new contract and trying to maintain that team as the suspension. Financially, it is true to say that, relatively belatedly, Solent has offered to extend its cross-undertaking in damages to Inclusion but one would expect there to be some real difficulties in Inclusion quantifying all its loss if the cross-undertaking had to be called on. There must be a real risk that the longer the suspension goes on the greater the risk there will be that Inclusion may not be able to maintain at least the prices which they have quoted.[42]Although the Court can, should and indeed does take into account the public interest in seeing that there is compliance with the Public Contract Regulations, that factor is not a conclusive one. The Court must look across the whole spectrum of factors to determine where in any given particular case the balance of convenience lies.[43]Taking into account all the arguments and evidence in this case, and in particular the factors set out above, I am satisfied that the balance of convenience rests firmly in favour of the suspension being lifted immediately. That provides the best or at least better opportunity for the "service users”, namely the not insignificant number of drug and alcohol addicts with particular medical and mental problems in Hampshire, to have the more fully integrated and improved services provided sooner than if the suspension remains in place. Damages, are, I assess, an adequate remedy in any event and the two primary grounds advanced by Solent as the basis as to why damages would not be an adequate remedy are, at the very least, unconvincing. Decision[44]I allow the application by HCC to have the statutory suspension lifted. I do consider however that, if the parties or either of them wish, an expedited trial in June 2015 will overcome any lingering feelings on the part of Solent that its reputation might suffer. Such a trial is certainly manageable, although both parties might wish seriously to consider settling their remaining differences, through mediation or otherwise, sooner rather than later.

Cited in 5 later judgments