“Very few of the recommendations from the reports can be provided under the current contracts due to the way in which the old contracts were commissioned and the way in which the services are set up to be provided under the current contracts. However, these improvements will be seen under the new contracts which have been commissioned specifically in light of these reports and recommendations and the need to ensure these improvements and changes are realised are embedded into the new contracts.”
“The relevant questions for the court, when determining an application to lift the automatic suspension in a procurement challenge case, are as follows: (i) Is there a serious issue 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 of 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 the balance of convenience lie?”
“Accordingly, 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).”
“... would increase the ability of NHS Commissioners to integrate services by providing them with more discretion in when to use procurement processes to arrange services. Our proposals are intended to ensure that tendering does not take place where it adds no value. By giving Commissioners the discretion to choose either to award a contract directly to a provider or to undertake a procurement process, in either case with the clear aim of ensuring good quality care, good patient outcomes and value for money when designing local healthcare services.”
“The way in which decision-makers reach decisions about who provides services would depend on the type of service under consideration, and the kind of decision being made. Broadly there are three decision circumstances in scope of this regime for decision-making bodies, which are: (1) Continuation of existing arrangements. There will be many situations where the incumbent provider is the only viable provider due to the nature of the service in question, and a change of provider is not feasible or necessary – many NHS services are already arranged in this way. There will be other situations where the incumbent provider/group of providers is doing a good job and the service is not changing, and there is no value in seeking another provider. In these situations, it needs to be straightforward to continue with the existing arrangements. (2) Identifying the most suitable provider for new/substantially changed arrangements. There will be situations where existing arrangements need to change – for example, when a service is changing considerably; when a new service is being established; when the incumbent is no longer able/no longer wants to provide the service; or when the decision-making body wants to use a different provider. In these situations, the decision-making body should consider a set of key criteria. If after having done so they have reasonable grounds for believing that one provider/group of providers is the most suitable provider (which may or may not be the incumbent), they may award the contract to that provider without conducting a tendering process. This must be done in a way that is fully transparent as outlined in Section 8: Transparency and scrutiny. (3) Competitive procurement – for situations where the decision-making body cannot identify a single provider/group of providers that is most suitable without running a competitive process, or the decision-making body wants to use a competitive process to test the market.”
“If a decision-maker wants to continue with existing arrangements, they may do so where: A) The type of service means there is no alternative provision. … B) The alternative provision is already available to patients through other means such as the exercise of patient choice ... C) The incumbent provider / group of providers is judged to be doing a sufficiently good job (i.e. delivering against the key criteria in this regime) and the service is not changing, so there is no overall value in seeking another provider.”
“Where the claimant claims that in the absence of a breach of contract by the defendant a third party would have acted in a particular way so as to benefit the claimant, he need not prove the hypothetical on the balance of probabilities provided that the claimant can prove that in the absence of a breach there was a real or substantial not a speculative chance of a third party’s action and the loss of chance is not too remote, the court must assess the chance of that action resulting, usually as a percentage, and then discount the claimant’s damages for his loss by reference to that percentage.”
“The Courts have on occasions referred to ‘loss of reputation’ as a possible basis for holding that damages are not an adequate remedy. In principle, the underlying assumption appears to be that a ‘loss of reputation’ may be a real commercial disadvantage but one that is not capable of being included in any assessment of damages. This would be most likely to apply because of the application of principles of remoteness. For example, it might not in general be open to an aggrieved tenderer to recover damages for the chance of securing other contracts on the back of the contract at issue because the law would regard those losses as legally too remote. The outcome might in principle be different if both the tenderer and the contracting authority knew and intended that participation in the contract at issue was a necessary and sufficient qualification for participating in another contract as well. It is not self-evident that the exclusion of a particular head of damages on grounds of remoteness automatically renders damages an inadequate remedy, not least because the principles of remoteness are intended to be a principled response to the assertion of losses that are too speculative to justify recovery under a just and adequate system of law.”
“37. I am not persuaded that loss of reputation as such affects the question of adequacy of damages as a remedy. If damages were otherwise an adequate remedy, I see no reason why the ‘reputation’ of a tendering party as such should affect the giving or withholding of interim relief. With commercial parties, what ultimately matters is whether the loss of the contract in question will reduce their profitability in a way that is not recognised by the normal principles on which damages are awarded. This in turn suggests that what is generally of concern is whether the aggrieved tenderer will lose out on other contracts which it might have obtained if it had added lustre to its reputation by getting the contract at issue. In other words, the real subject of the ‘loss of reputation’ argument is financial losses which the law of damages does not normally recognise. … 38. This points to the answer to the second question: the constituency of interest is future prospective contracting authorities (or other contracting parties) who might be influenced to give work to a party which has the contract at issue rather than to a party which has not. The answers to the two questions explain in many cases why the ‘loss of reputation’ does not normally sound in damages in the first place: the loss is speculative and legally too remote. They also provide good reason for restraint on the part of a Court which is urged to adopt ‘loss of reputation’ as a reason for holding that the damages that would be awarded are not adequate compensation. 39. What then are the criteria to be applied before a court accepts that ‘loss of reputation’ is a good reason for holding that damages which would otherwise be adequate are an inadequate remedy for American Cyanamid purposes? In the absence of prior authority directly in point (none having been cited by the parties) but with an eye to the approach adopted by the Court in Alstom, DWF and NATS I suggest the following: (i) Loss of reputation is unlikely to be of consequence when considering the adequacy of damages unless the Court is left with a reasonable degree of confidence that a failure to impose interim relief will lead to financial losses that would be significant and irrecoverable as damages; (ii) It follows that the burden of proof lies upon the party supporting the continuance of the automatic suspension and the standard of proof is that there is (at least) a real prospect of loss that would retrospectively be identifiable as being attributable to the loss of the contract at issue but not recoverable in damages; (iii) The relevant person who must generally be shown to be affected by the loss of reputation is the future provider of profitable work.”
“It is simply the case that we need to enter into the new contracts as soon as possible so that the benefits of the new contracts can be seen, and the impact on healthcare as discussed in Rhodes 1 will be seen sooner rather than later. That will result in a decrease of self-harm and patient deaths. These risks will not only be reduced under the new contracts due to the improvement in services, but also because entering into the contracts will remove the uncertainty arising from the suspension, and in particular the impact on staffing, which is discussed in Rhodes 1.”