International SOS Assistance UK Limited v Secretary of State for Defence [2025] EWHC 2634 (TCC)

[2025] EWHC 2634 (TCC)Case No HT-2025-000079
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 20 th October 2025
Before
Mr Justice Eyre
Between
International SOS Assistance UK LimitedClaimantSECRETARY OF STATE FOR DEFENCEDefendant
Joseph Barrett KC (instructed by Pinsent Masons LLP) for ClaimantRhodri Williams KC And Jonathan Lewis (instructed by Government Legal Department) for DefendantHearing Hearing date: 2 nd October 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 20 th October 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE EYRE
[1]On 24th October 2024 the Defendant commenced a procurement exercise with a view to awarding a contract for the provision of global medical support for Ministry of Defence personnel serving overseas (“the Contract”). The Claimant has provided those services since 2012. It has done so latterly pursuant to a contract which was to come to an end on 30th April 2025. The Claimant and Healix International Group Ltd (“Healix”) were the only compliant tenderers in the procurement exercise and on 7th March 2025 the Defendant announced its intention to award the contract to Healix. The procurement exercise was governed by the Public Contracts Regulations 2015 (“the Regulations”). On 17th March 2025 the Claimant commenced proceedings alleging breaches of the Regulations. Pursuant to regulation 95 those proceedings triggered the automatic suspension of the Defendant’s power to award the contract.[2]The Defendant now applies under regulation 96 for that automatic suspension to be lifted. The Claimant resists the lifting of the suspension and contends that the hearing of the claim should be expedited.[3]The parties are agreed on the substance of the applicable legal principles although there are some differences of emphasis. Although the Defendant contends that the claim is ill-founded it accepts that the Claimant has shown a serious issue to be tried. There were two principal areas of dispute: first, whether damages would be an adequate remedy for the Claimant if the suspension were to be lifted but with the claim ultimately succeeding; second, whether the balance of convenience falls in favour of lifting the suspension (as the Defendant contends) or of maintaining the suspension (the Claimant’s contention).[4]The Contract is to cover the provision of medical assistance for armed forces personnel serving overseas. Its importance is self-evident. It is one of only two contracts which the Defence Medical Services classify as being a “UK StratCom Key Contract”. The proper provision of the medical assistance is essential for the performance of military operations overseas.[5]The Claimant has provided those services since 2012 under a series of contracts, the most recent of which was due to end on 1st April 2025. It was successful in re-tendering exercises in 2016 and 2020.[6]The Invitation to Tender was sent out on 24th October 2024. Although three tenders were received, only those from the Claimant and Healix were compliant.[7]The evaluation process to identify the Most Economically Advantageous Tender gave a weighting of 45% to technical criteria and of 55% to cost criteria. Performance against the technical criteria was scored by reference to four scores. In order to be acceptable a tenderer had to achieve a score of either 100 (the highest possible score) or 70 (the second highest) for each criterion.[8]A score of 100 was awarded in respect of:
“A comprehensive response which provides high confidence to the Authority that the Tenderer will meet all aspects of the requirement set out in the question. In the Authority’s professional judgement, negligible risk to the Authority, in meeting the requirement.”
[9]A score of 70 was awarded in respect of:
“A good response which provides sufficient confidence to the Authority that the Tenderer will meet all aspects of the requirement set out in the question. In the Authority’s professional judgement, there is minor risk in the aggregate, to the Authority, in meeting the requirement.”
[10]The Defendant’s evaluation report showed how the Claimant and Healix had performed against fourteen technical criteria. Five of those were marked simply as “pass” or “fail” and both tenderers passed all five. The remaining nine were scored. The Claimant scored 100 for all nine criteria while Healix scored 100 for four criteria and 70 for the remaining five.[11]The cost of Claimant’s tender was more than twice that submitted by Healix. Accordingly, when account was taken of the cost criteria, Healix’s tender was found to the more economically advantageous of the two.[12]The Defendant says that there were material differences between the Contract and that which was being replaced. In his evidence for the Defendant, James Nugent said that it was believed that the arrangements under the Contract would result in a more comprehensive healthcare provision than under the existing arrangements and would provide better value for money for the taxpayer. An element in both the current and proposed arrangements is the making of Requests For Information (“RFIs”). Under the Contract payment will be made for RFIs and there would be a new RFI Management Plan. Mr Nugent says that the latter will eliminate duplicate requests and would result in medical support being provided more efficiently.[13]The Claimant says that the Contract is not in fact materially different from its predecessor. It says that the RFIs (or at least RFIs other than Bespoke RFIs) were provided without charge under the existing arrangements and so the provision that there should be payment for them was a benefit for the contractor and not for the Defendant. As to the changes in respect of RFI management the Claimant says that these are changes in the way in which the Defendant rather than the contractor proceeds. The Claimant says that the Defendant could have operated in this way under the existing contract and that it had been urging the Defendant to do so.[14]In support of the contention that the Contract is not materially different from its predecessor, Mr Barrett KC referred me to the business cases which had been submitted seeking approval to proceed to tender and subsequently to award the Contract. Mr Barrett submitted that these documents did not say as part of the argument in favour of approval that the Contract was different from its predecessor, let alone that such a difference was an argument in favour of the Contract. However, when the business cases are read as a whole and seen in context it is clear that there is no substance in this point. Under the business cases the course of going out to tender and subsequently awarding the Contract was identified as one of a number of options available to the Defendant. The other options included internal provision of the services and taking no action. The choice being set out was not between providing the medical services under different contracts but between using an external contractor and other courses which did not use such a contractor. The principal purpose of the business cases was to set out the economic, commercial, cost, and management cases for using an external contractor and to obtain funding approval for doing so. The references to the Contract being a continuation of the existing arrangements are to be read in that context. The business cases do not address differences between the existing arrangements and the Contract but when they are read in context it is not surprising that they do not do so and that failure does not advance matters.[15]There may well be scope for argument as to the extent of the differences between the existing arrangements and the Contract but it is clear that there are differences and that the Defendant sees them as being a benefit. I will consider the significance of that in addressing the balance of convenience below.[16]The Defendant and Healix say that 12 weeks will be needed to mobilise the service from the date that the Contract is awarded. The Defendant says that it will have to prepare Standard Operating Procedures for each medical procedure to be covered by the Contract and that the preparation and approval of these will take 12 weeks. The Claimant does not accept that this period would be needed, saying that it is not a requirement of the Contract that there be such Standard Operating Procedures. However, the Claimant’s point in that regard is a misreading of the Defendant’s evidence. The Defendant is not saying that the creation of such procedures is a requirement of the Contract but rather that it is action which the Defendant intends to take in order to ensure that the Contract operates smoothly. At the very least it is apparent that the Defendant believes that the preparation of the Standard Operating Procedures is desirable. In any event, James Clancey of Healix has provided a statement saying that Healix will need a period of 12 weeks to mobilise and to be in a position to undertake the services under the Contract. The Claimant does not contend that this is not a genuine assessment on the part of Healix and, indeed, the Claimant at one point suggested that it was an underestimate of the time that would be required. Accordingly, I will proceed on the basis that a 12 week mobilisation period will be needed.[17]The Defendant points to the 2025 Strategic Defence Review which set out the threats faced by the United Kingdom and which referred to the need to move to a state of warfighting readiness. The Defendant relies on this as a potent factor in the balance of convenience. It says that the change to the provision of medical services for service personnel which is involved in the Contract should be made now because it might not be possible to make that change in a time of conflict. That is because in a time of conflict there would be other demands on the Defendant’s resources and there might not be the capacity available to effect the change. In addition, the Defendant says that the change would have the potential for a degree of confusion on the ground and it would be undesirable for such confusion to be generated in a time of conflict. The Claimant says that the Defendant is overstating both the urgency of the situation and the difficulty of introducing the changes. It says that that proper reading of the Strategic Defence Review and of the statements made by senior military personnel does not indicate that conflict is imminent in the way suggested by the Defendant. In addition, the Claimant says that it is of note that the existing arrangements have been re-tendered in times when service personnel have been engaged in conflict overseas. It says that this shows that the Defendant’s concerns are over-stated.I will address these points further when considering the balance of convenience.[18]The existing contract has been extended to 31st December 2025 and the Claimant remains willing to continue to provide the medical services under the existing arrangements thereafter. However, the Defendant contends that further extension of the existing contract would expose it to legal challenge.[19]The Claimant alleges four breaches of the Regulations.[20]Grounds 1 and 2 are related and are based on an alleged lack of transparency in the Invitation to Tender. It is said that the reasonably well-informed and normally diligent tenderer’s interpretation of the ITT would be that the frequency with which RFIs would be made and the information required in response to such a request would be substantially less in terms both of frequency and the information needed than would in fact be the case. This meant that the RWIND tenderer would submit its tender on a false basis. The Claimant instead tendered on an accurate basis because of its knowledge (derived from the existing contract) of what would in fact be required. This meant that the Defendant was not comparing like with like when assessing the tenders of the Claimant and of Healix (ground 1). In ground 2 the Claimant advances a related argument saying that the difference between the true position and that which would be understood by the RWIND tenderer rendered the Contract materially different in character from that concluded. This would have allowed for the acceptance of the Claimant’s tender rather than that of Healix. In addition, the Defendant’s actions amounted to evaluating Healix’s bid in a way which would require an impermissible contract modification in the future.[21]In grounds 3 and 4 the Claimant says that Healix’s bid should have been regarded as being an abnormally low tender. The Defendant should have required Healix to explain its pricing and was in breach of regulation 69 in failing to do so (ground 3). In addition, (ground 4), the tender should have been referred to the Cabinet Office for assessment in accordance with the Bid Evaluation Guidance Note issued by the Government Commercial Function. The Claimant says that the Defendant’s failure to refer the Healix tender to the Cabinet Office was an unlawful departure from policy.[22]Although for current purposes the Defendant accepts that the Claimant has shown a serious issue to be tried it denies liability. In short, the Defendant’s position is that the terms of the ITT were clear and transparent and that Healix’s tender was not abnormally low. The Defendant characterizes the position as being one where the Claimant as incumbent tenderer either failed to appreciate the differences between the Contract and the existing arrangements or over-priced its tender being confident that it would obtain the Contract. In addition, at paragraph 42, the Defence denied the Claimant’s entitlement to damages on the basis that even if breaches were to be established they should be held not to have been sufficiently serious to warrant an award of damages.[23]The proceedings were commenced on 17th March 2025 but it was not until 15th August 2025 that the Defendant applied for the lifting of the automatic suspension. The Claimant’s application for expedition did not come until 26th September 2025.[24]The Claimant says that the Defendant delayed in seeking to lift the suspension and that account should be taken of this when considering the force of the Defendant’s arguments. For its part, the Defendant says that the application for expedition is a tactical ploy made at a late stage. It also criticizes the Claimant for the fact that it was only on 29th September 2025 that the Claimant expressly confirmed that it would provide a cross-undertaking in damages if the automatic suspension were to remain in place.[25]The parties sensibly and properly sought to resolve the claim by agreement and the proceedings were stayed for one month from 26th March 2025 to enable discussions for that purpose. Neither party is to be criticized in relation to that period. On 11th June 2025 the Defendant sought the Claimant’s agreement to the lifting of the suspension. Correspondence followed. I do not need to address the detail of the various exchanges and it suffices to say that the Claimant raised a number of issues to which it sought a response in order to consider whether to agree to the lifting of the suspension. On 1st August 2025 the Defendant informed the Claimant that it was preparing an application for the lifting of the automatic suspension and invited the Claimant to provide a cross-undertaking in damages. Although the Claimant did not expressly decline to provide such a cross-undertaking it was not until 29th September 2025 that its willingness to do so was stated expressly.[26]It clearly would have been possible for the Defendant to have made its application for the lifting of the automatic suspension earlier but there was not a delay such as to have an impact on the issues I am to consider and still less such as to indicate that the Defendant does not genuinely believe that the lifting is desirable. The Defendant’s application to lift the automatic suspension did not come “out of the blue” nor after a period of inaction but after there had been attempts in correspondence to obtain a consensual lifting. The fact that the application was not made earlier does not detract from such force as the Defendant’s arguments otherwise have. Similarly, it cannot credibly be suggested that the Claimant is not in a position to substantiate its cross-undertaking and any failure to proffer that undertaking expressly at an earlier stage does not cast doubt on its adequacy. It is right that as a matter of fact the Claimant’s expedition application was triggered by the Defendant’s application for the lifting of the suspension and was a riposte thereto. It will, nonetheless, be necessary to consider the potential for expedition of the claim as a whole when assessing the Defendant’s application and in particular when considering the balance of convenience.[27]Regulation 96(2) provides that when deciding whether to lift the automatic suspension the court must consider whether it would have granted an interim injunction preventing the relevant public body from entering into the contract if regulation 95 (imposing the automatic suspension) had not been applicable. O’Farrell J explained the approach to be taken thus in Camelot UK Lotteries Ltd v Gambling Commission [2022] EWHC 1644 (TCC) (2022) 202 Con LR 89 at [47] and [48]: [47] “The applicable principles for determining such an application are set out in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 at 509–510, [1975] AC 396 at 407–408 per Lord Diplock; National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] UKPC 16, [2009] 5 LRC 370, [2009] 1 WLR 1405 per Lord Hoffmann at [17]–[18]; Covanta Energy Ltd v Merseyside Waste Disposal Authority [2013] EWHC 2922 (TCC), (2013) 151 ConLR 146 per Coulson J (as he then was) at [34], [48]; and summarised in Alstom Transport UK Ltd v Network Rail Infrastructure Ltd [2019] EWHC 3585 (TCC), [2020] BLR 95, at [29]. [48] 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?”[28]The courts have considered sundry circumstances in which it has been said that damages would not be an adequate remedy for a claimant and where it has been said that it would not be just to confine the claimant to a damages remedy. That issue is to be addressed by reference to the circumstances of the particular case and there is no general rule that damages either always will be or will never be an adequate remedy in a particular category of case.[29]There will be cases where the difficulties in the calculation of the damages are such that the court cannot be confident that it will be able to quantify the claimant’s loss properly and fairly. In such cases the prospect that the court will not be able properly to reflect the claimant’s loss in a damages award can mean that it is unjust to confine the claimant to its damages remedy. This can be the position where the court would have to take account not only of the lost chance of a tenderer being successful in a fair tender process but also the lost chance of it then being called upon to perform services under a framework contract (see Lettings International Ltd v London Borough of Newham [2007] EWCA Civ 1522 at [33] – [35]). It can also be the position where the allegation is that the tenders were evaluated by reference to undisclosed criteria (see Morrison Facilities Services Ltd v Norwich City Council [2010] EWHC 487 (Ch), at [31] – [34) and NATS (Services) Ltd v Gatwick Airport Ltd [2014] EWHC 3133 (TCC), [2015] PTSR 566 at [80] – [83]). Another example is that of a case where it is said that a tenderer was materially misled and where it would be necessary to analyse whether different responses in communications would have made a difference to the bid (see Covanta Energy Ltd v Merseyside Waste Disposal Authority (No 2) [2013] EWHC 2922 (TCC) at [53]).[30]Care is needed before the court can conclude that difficulties in the evaluation exercise mean that damages will not be an adequate remedy (see Openview Security Solutions Ltd v London Borough of Merton [2015] EWHC 2694 (TCC) at [28] – [32] and Medequip Assertive Technology Ltd v Royal Borough of Kensington and Chelsea [2022] EWHC 3293 (TCC) at [41] – [43]). It is to be remembered that the courts are well-used to determining damages by assessing the value of a lost chance and to doing so on the basis of incomplete information. It is relevant to note the high level of difficulty which has to be shown before the court will accept that damages will not be an adequate remedy. In Morrison Facilities and Covanta the court was concerned with circumstances in which the fair and proper assessment of the damages would have been “virtually impossible”. In Lettings International the court accepted that the proper quantification of the damages would be “very problematical”. In NATS Services Ltd there would have been “great difficulty in estimating the damages”.[31]The fact that the loss of the contract in question would harm a claimant’s prospect of obtaining other contracts and would cause a loss which would be difficult to identify can be a factor meaning that damages would not be an adequate remedy and that it would be unjust to confine the claimant to its damages remedy. However, caution is needed before the court can conclude that the loss of the contract will have such an impact. The fact that a tenderer fails to obtain a contract will not have that consequence without more even if the tenderer was the incumbent under the contract which is being replaced. Nor is it sufficient either that the lost contract was prestigious or that there is said to be an impact to the claimant’s reputation. What is required is cogent evidence demonstrating the prospect that financial loss will be suffered in circumstances where that loss will not be recoverable in damages. See NATS Services Ltd at [84] – [85]; Openview Security Solutions Ltd at [35] and following; Bombardier Transportation UK Ltd v London Underground [2018] EWHC 2926 (TCC) at [57] and following; Draeger Safety UK Ltd v London Fire Commissioner [2021] EWHC 2221 (TCC) at [35] and [41]; Kellogg Brown & Root Ltd v Mayor’s Office for Policing [2021] EWHC 3321 (TCC) at [76] and following; Camelot at [98]; and One Medicare v NHS Northamptonshire Integrated Care Board [2025] EWHC 63 (TCC) at [45].[32]There will be cases where the loss of a tender will cause the collapse of a business or of a substantial part of a business. The prospect of such an outcome can be a matter which makes it unjust to confine a claimant to its remedy in damages. However, such cases will be rare and the court will require detailed and cogent evidence as to the effect of the loss of the contract before accepting that a particular case was in that category (see TES Group Ltd v Northern Ireland Water Board [2020] NIQB 62 at [31] and [32]).[33]There will be rare cases in which a procurement claim succeeds but where the court is precluded from awarding damages because the relevant breach is not sufficiently serious to warrant such an award (see Braceurself Ltd v NHS England [2024] EWCA Civ 39, [2024] KB 913). In such a case there is scope for the argument that damages would not be an adequate remedy for a claimant which might succeed in its procurement claim but then receive no compensation. Such cases are rare and I will address below the approach to be taken in respect of that argument in the circumstances of this case.[34]If a serious issue has been shown and the court is not satisfied that damages will be an adequate remedy it must turn to consider the balance of convenience. The approach to be taken was summarized thus by O’Farrell J in Camelot at [126]:
“The balance of convenience test requires the court to consider all the circumstances of the case to determine which course of action is likely to carry the least risk of injustice to either party if it is subsequently established to be wrong. When determining where the balance of convenience lies: (i) the court should consider how long the suspension might have to be kept in force if an expedited trial could be ordered: DWF LLP v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 900 per Sir Robin Jacob at [50]; (ii) the court may have regard to the public interest: Alstom Transport v Eurostar [2010] EWHC 2747 (Ch) at [80]; (iii) the court should consider the interests of the successful bidder, alongside the interests of the other parties: OpenView [2015] BLR 727 at [14]; (iv) if the factors relevant to the balance of convenience do not point in favour of one side or the other, then the prudent course will usually be to preserve the status quo (or, perhaps more accurately, the status quo ante), that is to say to lift the suspension and allow the contract to be entered into: Circle Nottingham Ltd v NHS Rushcliffe Clinical Commissioning Group [2019] EWHC 1315 (TCC), (2019) 185 ConLR 139, at [16].” (i) the court should consider how long the suspension might have to be kept in force if an expedited trial could be ordered: DWF LLP v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 900 per Sir Robin Jacob at [50]; (ii) the court may have regard to the public interest: Alstom Transport v Eurostar [2010] EWHC 2747 (Ch) at [80]; (iii) the court should consider the interests of the successful bidder, alongside the interests of the other parties: OpenView [2015] BLR 727 at [14]; (iv) if the factors relevant to the balance of convenience do not point in favour of one side or the other, then the prudent course will usually be to preserve the status quo (or, perhaps more accurately, the status quo ante), that is to say to lift the suspension and allow the contract to be entered into: Circle Nottingham Ltd v NHS Rushcliffe Clinical Commissioning Group [2019] EWHC 1315 (TCC), (2019) 185 ConLR 139, at [16].”
[35]There is a public interest in the award of public contracts being made in a lawful and transparent manner but there is also a public interest in public authorities being able to obtain the benefits which they believe flow from the contract in question (see Draeger at [49]). There will often be differing views as to the extent to which new arrangements are in fact different from those already existing and as to the extent of any benefit flowing from the changes. A mere assertion of benefit by a public body cannot close down consideration of the point but the court must proceed on the basis that the public bodies are better placed than the court to determine whether changes will be beneficial (see Medequip at [109] – [110]).[36]As O’Farrell J explained it is necessary to consider whether it would be possible for the trial to be expedited and to have regard to how long the suspension would last if there were to be expedition. I set out my understanding of the approach in somewhat stark terms in Medequip at [59] and the position is rather more nuanced than my language there might suggest. It is nonetheless necessary to have regard to the scope for expedition. In doing so the court must consider the extent to which expedition with retention of the suspension protecting the interests of a claimant would be practicable and would reduce the risk of injustice being caused to the public by the retention of the suspension.[37]The Defendant accepts that the Claimant has shown a serious issue to be tried.[38]The Claimant asserted a number of respects in which it said that it could be seen that damages would not be an adequate remedy if the claim were to succeed after the suspension had been lifted and Healix engaged to perform the Contract. For the reasons I will set out below I accept that the Claimant has shown that the potential difficulties in the calculation of damages mean that I cannot be satisfied that damages would be an adequate remedy for it in the circumstances of this case. I am not persuaded of the force of the other matters on which the Claimant relied and will explain my reasoning on those matters more shortly.[39]The Claimant’s contention in this regard was that the circumstances of this case were akin to those of a case where the tenders had been evaluated by reference to undisclosed criteria. In such a case the evaluation of damages is necessarily speculative because the court has to make an assessment of the consequences of the actions which the claimant and the other tenderers would have taken if the relevant criteria had in fact been disclosed. In appropriate examples of such cases the court has accepted that damages will not be an adequate remedy for the claimant.[40]There is force in Mr Barrett’s submission that the circumstances here are analogous to an undisclosed criteria case. If the Claimant succeeds it will do so either(a) on the basis that the information provided in the ITT was insufficient and/or did not reveal the true position or(b) on the ground that Healix’s tender should have been treated as an abnormally low tender triggering the regulation 69 process and referral to the Cabinet Office. In order properly to assess the damages on either of those bases the court would have to address a counter-factual situation. It would have to consider what would have happened if the ITT had given substantially different information or what would have been the outcome of the steps which would have followed from treating Helix’s bid as an abnormally low tender. Each of those exercises would necessarily be difficult and speculative. In this regard I take account of the fact that in Covanta Coulson J had regarded an allegation that matters had not been properly clear to the tenderers as akin to an allegation that the evaluation process had been made by reference to undisclosed criteria (though this was only one of the factors which the judge concluded would cause difficulties in the assessment of damages in that case).[41]I am satisfied that the difficulties in the calculation of the damages in this case if the Claimant succeeds in established the breaches alleged will be such that it cannot safely be said that damages will be an adequate remedy for the Claimant. It follows, using the alternative way of looking at the same issue, that there is a real risk of injustice if the Claimant is confined to its remedy in damages.[42]As I explained above the court needs to view with considerable caution assertions by an unsuccessful tenderer (even one who was the incumbent under an existing contract) that the loss of a contract will cause reputational damage having a commercial effect or will harm the unsuccessful tenderer’s prospects of obtaining other contracts.[43]Mr Barrett accepted that the Contract was not in the category of exceptionally prestigious contracts the loss of which could by reason of their prestigious nature alone cause the loss of other contracts. He did, however, submit that I should accept the Claimant’s contention that there would be harm to its prospects of obtaining other contracts. It was said that the other members of the “Five Eyes” (the United States, Canada, Australia, and New Zealand) and potentially other NATO members or European nations would have regard to the identity of the contractor providing medical services to the United Kingdom armed forces when placing contracts for their own services. However, this was put at a high level of generality. It was not suggested that there was anything akin to the circumstances in Draeger when other fire authorities were awaiting the outcome of the particular procurement exercise with a view to following the lead of the London Fire Brigade. It is of note that the group of which the Claimant is the United Kingdom element already provides medical support services to the United States armed forces. The Claimant itself can point to an established record of providing those services to the Defendant and there is no suggestion that there was any inadequacy in its provision of those services. The Claimant’s evidence gives details of the extensive nature of its operations and those of the group of which it is a member. The existing contract provides only 3.6% of the revenue of the Claimant and is not the largest medical services contract which the Claimant has (although it is the second largest). In those circumstances it cannot be said that the loss of the Contract is likely to have an impact on the Claimant’s other commercial dealings.[44]Assertions that the loss of a contract will have an impact on a claimant’s business operation are also to be viewed with caution. Here it is said that the failure to obtain the Contract will lead to the loss of 5 – 7 staff posts. I have just noted that only 3.6% of the Claimant’s revenue is attributable to the existing contract. In those circumstances the impact on the Claimant’s business operation is simply not of the scale which would be required before the court could say that damages would not be an adequate remedy.[45]Although the Defence asserts, at [42], that the breaches alleged by the Claimant were not sufficiently serious to warrant an award of damages, before me the Defendant contended that the prospect of such a conclusion being reached was so low that it could be disregarded. It said that the risk of such a conclusion was, therefore, not a factor meaning that damages would not be an adequate remedy for the Claimant. In those circumstances Mr Williams KC submitted that the Defendant should not be required to undertake not to rely on the “not sufficiently serious” line of defence. He submitted that this was the approach which Constable J had taken in Unipart Group Ltd v Supply Chain Coordination Ltd [2025] EWHC 354 (TCC) at [53] and [54] and that the solution of an undertaking being given, which had been adopted in Boxxe Ltd v Secretary of State for Justice [2023] EWHC 533 (TCC), was neither appropriate nor necessary here. However, as a fallback position, if it was necessary for it to do so in order to obtain the lifting of the suspension, the Defendant would undertake not to pursue the “not sufficiently serious” line of defence set out in the Defence at [42].[46]There is no real prospect in this case that the court will uphold the claim but then find that the breach or breaches established is or are not sufficiently serious to warrant an award of damages. As I have explained above it will only be in a very rare case that a procurement claim will succeed but that the court will then find that damages are precluded because the breach on which the claim is founded is not sufficiently serious. Here, if the Claimant succeeds it will be because the court has accepted either that there was a significant lack of transparency or that there was a failure to treat Healix’s bid as an abnormally low tender or both. Those would inevitably be seen as serious breaches and the position would be very different from a case, such as Braceurself, of a single error in an otherwise properly conducted evaluation exercise.[47]In light of that assessment should I simply disregard the risk of the court ultimately concluding that the breaches are not sufficiently serious to sound in damages? The Defendant says that this was the approach taken by Constable J in Unipart and the one which should be adopted here. However, the assessment made by Constable J and the approach based on it were both rather more nuanced than indicated by the Defendant. Constable J did say in short terms at [54] that the risk of the “not sufficiently serious” argument succeeding was “sufficiently remote to be discounted”. However, that was as an alternative to his primary analysis which was set out in [53]. The circumstances of that case were very different from those here and the approach to the question of whether a defendant should be required to abandon a potential line of defence will necessarily be highly fact-specific. In Unipart there was a “litany of claims”. Constable J said that if all those claims were established the court would be unlikely to conclude that they were not sufficiently serious to warrant damages being awarded. He did, nonetheless, contemplate the possibility of only one of the many breaches being established and of the court concluding that such a breach was not sufficiently serious to warrant an award. Constable J said that such a circumstance could mean that damages would not be an adequate remedy for the claimant. However, he went on to point out that for the court to reach such a conclusion it would have to have concluded that the breach in question would be one of “very low culpability” and he regarded that as relevant to the assessment of the balance of convenience.[48]The circumstances here are very different from those which Constable J was addressing in Unipart. Here, instead of multiple claims there are four alleged breaches which resolve into two core groups of allegations. I have to remember that at the heart of and underpinning the American Cyanamid guidelines is the need for the court to take the course which creates the least risk of an injustice which cannot be remedied. In addition, the question of the adequacy of damages for the Claimant is to be approached on the footing that the court is considering whether it is just to confine the Claimant to its remedy in damages. The prospect of the “not sufficiently serious” defence succeeding is small but if it were to remain a live part of the Defence the Claimant would have to prepare to address that line of defence and could not guarantee that the argument would not succeed. It would not be appropriate for the Claimant to be required to prepare to confront that argument and to face that risk if the Defendant were to succeed in having the automatic suspension lifted. Moreover, the Defendant will suffer no real prejudice if it is required to give up that potential line of defence. Not only have I concluded that the circumstances in which that approach will be applied are unlikely to arise but that was the assessment urged upon me by the Defendant. In the particular circumstances of this case the just balance between the parties requires that if the suspension is lifted the Defendant be required to accept that it cannot pursue this argument.[49]The Defendant says that damages would not be an adequate remedy for it if the suspension were to be maintained. It relies on two matters: first, the benefits which will flow from the Contract with the services being provided in accordance with the new arrangements; second, the desirability of making the transition to the new arrangements outside a time of conflict. The Defendant accepts that both of these also feed into the assessment of the balance of convenience and I will address the latter as part of that exercise. The Claimant says that the former element has no substance and should not be regarded as meaning that damages will not be an adequate remedy for the Defendant. It says that this is because there is no material difference between the current arrangements and those which will be in place when the Contract comes into effect.[50]It is well-established that the loss of an opportunity to introduce changes which are seen by the relevant public authority as a benefit is a loss for which damages will not be an adequate remedy: see by way of example Teleperformance Contact Ltd v Secretary of State for the Home Department [2023] EWHC 2481 (TCC ), (2023) 211 Con LR 113 at [66(3)] and One Medicare at [55].[51]As I explained in Medequip Assertive Technology at [110] it will not normally be an answer to this point for a claimant to contend that the changes are not in fact material or that they do not amount to an improvement. The effect of the continuation of the suspension in circumstances such as those here is that the public body in question is being prevented for arranging for services to be provided in the form and on the terms which it wishes and which it regards as beneficial. That is a loss which cannot be compensated in damages. The point is reinforced by the fact that consideration of the balance of convenience is required unless the court is satisfied that damages will be an adequate remedy: where there is doubt as to the adequacy of damages it is necessary to turn to the balance of convenience.[52]In the circumstances here it cannot be said that damages would necessarily be an adequate remedy for the Defendant if the suspension were to be maintained.[53]Although damages would not be an adequate remedy for the Defendant, maintenance of the automatic suspension would cause it financial loss to the extent that it was shown that more was being paid than would have been the case if the Contract were in place. In light of the cross-undertaking proffered by the Claimant that is not a factor operating against the maintenance of the suspension. I have explained above that it is not suggested that the Claimant would not be able to satisfy an award arising out of the cross-undertaking and that the fact that the cross-undertaking could have been proffered earlier does not detract from its adequacy. The Defendant pointed out that the Claimant had not offered a cross-undertaking in relation to Healix. However, that is not material for current purposes. As Sir Robin Jacob explained in DWF LLP v Secretary of State for Business, Innovation and Skills [2014] EWCA Civ 900 at [54] that is no concern of the Defendant nor, in the absence of an application by Healix, is it a matter of concern for the court.[54]The parties take markedly different stances as to the earliest time when the matter could be ready for trial if the court were minded to expedite the hearing. The Claimant submits that the trial could be concluded within 3 days and has put forward a timetable which would provide for a trial in March 2026. For his part, the Defendant says that the trial would take 4 – 5 days. More significantly, he disagrees with the Claimant’s assessment of the time by when the case could be ready for trial. The Defendant’s position is set out in the witness statement of Suleman Ola. Mr Ola says that disclosure will take 6 months (including 2 months for the Defendant to undertake a procurement exercise to identify an e-disclosure provider) and that the preparation of witness statements would take a further 4 months thereafter. As a consequence, the Defendant says that the earliest the matter could be tried would be November 2026.[55]The timetable envisaged by the Defendant is unduly prolonged. The issues in the case are comparatively narrow and the Defendant’s timetable overestimates the complexity of both the disclosure exercise and the preparation of witness statements. In addition, I am not persuaded that in the circumstances of this case the insertion of a 2 month period for the Defendant to identify an e-disclosure provider can be justified. I am, nonetheless, satisfied that the timetable put forward by the Claimant is unrealistically tight. Not only is the Defendant right to say that the trial will take 4 rather than 3 days but the periods which the Claimant proposes for disclosure and the preparation of witness statements are unrealistically short. Disclosure and the preparation of witness statements are important exercises and adequate time must be allowed for them to be performed properly.[56]It is my assessment that even with the imposition of a rigorous timetable the matter could not be ready for trial until the early part of the Easter Term 2026 with a hearing in the latter part of April 2026. There would need to be a proper period of time for consideration of the judgment and it follows that the outcome of the trial would be unlikely to be known until the end of May 2026 (or perhaps a little later).[57]I have already indicated that I will proceed on the basis that a 12 week mobilisation period will be needed. Therefore, if the claim ultimately fails it will not be until the latter part of August 2026 that the new arrangements would come into effect. That would be some 16 months after the envisaged start date and well into the initial 3 year period of the Contract. If the suspension is lifted now the new arrangements will come into effect within about 12 weeks and so by early January 2026. The difference between the positions with and without expedition (on the assumption that the claim fails) is, therefore, a period of 7 -8 months. I will approach the weighing of the balance of convenience on the basis that if the suspension is maintained then it will be appropriate to expedite the hearing of the trial (that being the approach which is more favourable to the Claimant) and will do so on the basis of that period of difference.[58]The Defendant is concerned as to the lawfulness of any further extension of the existing contract beyond 31st December 2025. The Defendant’s concern is that if it were to agree such an extension with the Claimant it would be at risk of challenge. Fraser J, as he then was, addressed such a concern in Lancashire Care NHS Foundation Trust v Lancashire CC [2018] EWHC 200 (TCC) at [31] – [34] and took the view that such a concern was misconceived. Mr Williams submitted that Fraser J’s analysis at [33] was obiter and, in any event, incorrect although he did not address the point in great detail. I do not accept that there is any force in the Defendant’s concerns and I take no account of them in weighing the balance of convenience. The analysis set out by Fraser J is compelling. It is possible that there would have been scope for criticism of the Defendant if it had simply extended the existing arrangements indefinitely without seeking to lift the suspension (though even that is debateable). However, that is not what has happened. The Defendant has applied to lift the suspension. If the application is refused there will be no basis for criticizing the Defendant for extending the current arrangements. It is unrealistic to suggest that a court would accept that the law was such that the Defendant could not continue the current arrangements in these circumstances but that instead, its only lawful options were either to allow the arrangements to lapse without a replacement or to commence a new procurement exercise to find a provider for the period until the conclusion of the current proceedings.[59]The balance of convenience is, therefore, to be assessed on the basis that if the suspension is not lifted the current arrangements will continue and that the new arrangements will not come into operation until the end of July 2026 at the earliest.[60]The interests of Healix are a factor in the balance of convenience and operate in favour of the lifting of the suspension. The maintenance of the suspension is adverse to those interests to the extent that without the suspension Healix will not be in a position to perform the Contract and to receive payment for doing so. However, the witness statement from Mr Clancey of Healix comments on the effect on Healix in only the most general of terms and does not point to any further specific impact from the maintenance of the suspension. The impact on Healix is, therefore, a relevant factor only to the extent of that general impact.[61]The central argument for both the Claimant and the Defendant related to the public interest. It hardly needs stating that ensuring that military personnel serving overseas receive proper medical assistance is a matter of high public importance. The parties disagreed as to the consequences of that public interest in the circumstances of this case.[62]The Defendant says that the Contract brings benefits over and above those of the current arrangements and that the maintenance of the suspension is harmful to the public interest because it delays the date when those benefits will be received. In addition, the Defendant points to the changing world circumstances addressed in the Strategic Defence Review and to the need for the United Kingdom to move to warfighting readiness. It says that it is desirable that the new arrangements for providing medical services are introduced now rather than later in what might be a time of conflict. Such a course is desirable, it says, because introduction might not be possible in a time of conflict either because of other demands on the time of those who would be engaged in implementing the change of arrangements or because of the need to avoid making a change which might involve the risk of confusion for those serving overseas in a time of conflict.[63]The Claimant contends that a number of the points advanced by the Defendant do not bear the weight which the Defendant placed on them. It does not accept that the new arrangements are materially different from those currently in place and questions whether the differences are in fact beneficial. In addition, the Claimant submits that the Strategic Defence Review does not envisage a move to conflict in the period running up to any expedited trial. The Claimant couples this with reference to speeches by senior officers explaining the need for the United Kingdom to prepare for conflict while suggesting a lesser degree of urgency than that for which the Defendant now contends. In addition, the Claimant points out that the contracts which led up to the current arrangements were re-tendered in 2016 and in 2019. At both times United Kingdom forces were engaged in operations in Afghanistan and by re-tendering the Defendant must have accepted that it would be possible to change provider in a time were forces were so engaged.[64]However, the Claimant’s main argument was that the public interest should be seen as a factor operating in favour of keeping the suspension in place. Through Mr Barrett, the Claimant accepted and emphasized that there is a strong public interest in ensuring the provision of medical assistance for military personnel serving overseas. It says that this public interest is best-served by the continuation of the suspension and does so on the basis that it asserts that there are concerns as to the capacity of Healix to provide those services adequately. The Claimant advances two lines of criticism of Healix. First, it says that while the Claimant obtained the highest possible score against each of the criteria in the evaluation exercise Healix was scored at 70 rather than 100 in respect of 5 criteria. Second, in the witness statement of Giles Hill it contrasts the scale and capacity of the Claimant with those of Healix and doubts whether Healix has the capacity to provide the services required under the Contract. The Claimant’s argument that the court should regard the public interest as favouring the maintenance of the suspension because of doubts as to the capacity of the successful tenderer is an unusual one. Mr Barrett accepted that he was not aware of any case in which the court had found that the general public interest (as opposed to the interest in ensuring that procurement exercises are conducted lawfully) justified the maintenance of the suspension let alone one where it had done so on the basis of concerns as to the capacity of the successful tenderer.[65]The assessment of what is required by the public interest is ultimately a matter for the court. Mr Barrett was right in his submission that the Defendant does not have carte blanche and cannot simply assert that the public interest requires the lifting of the suspension. In that regard it is to be remembered that there is a public interest in ensuring that procurement exercises are conducted in accordance with the Regulations and that the automatic suspension is part of the arrangements put in place to protect that interest. Nonetheless, the court’s assessment of what is required in the public interest must take into account the Defendant’s position and, as I explained in Medequip Assertive Technology at [109] and [110] the relevant public body will be better-placed than the court to assess whether and to what extent proposed new arrangements are beneficial.[66]I reject the Claimant’s contention that there would be a legitimate basis for concern as to the adequacy of the provision of the general medical support if that support were to be provided by Healix rather than by the Claimant let alone that there would be a concern which should operate as a factor against the lifting of the suspension. I do so in light of the following matters: i) The Claimant does not criticize the scoring of the competing tenders. This is not a case where it is said that there was an error which meant that Healix received a higher score than it should have done. The Claimant points out that in respect of some of the technical criteria Healix received a score of 70 rather than 100. However, a score of 70 could only be achieved in relation to a particular criterion if the tender was, in that regard, “a good response” providing “sufficient confidence” that “all aspects of the requirement” would be met and where there was no more than a “minor risk” that the tenderer would fail to meet the requirement. ii) The evidence of Lt General Hill raised concerns about whether Healix will have the capacity to perform the Contract. In essence this evidence involved an articulation of the Claimant’s size and capacity (or rather those of the global group of which the Claimant is the United Kingdom operation) which was contrasted with the different scale of Healix’s operation. It does not, however, follow automatically from that contrast that there is cause for concern as to whether Healix can provide the relevant services. The position becomes clearer when one considers the resources which the Claimant has, in fact, used on the current contract. In her evidence for the Claimant Cheryl Plumridge says that the current contract provides 3.6% of the revenue of the Claimant (not of the global International SOS Assistance group). The current contract is the second largest medical services contract which the Claimant has but it constitutes only a modest part of its turnover. Miss Plumridge says that “a significant number of full-time equivalent staff” work on the provision of the current contract and then goes on to say that the loss of the contract will lead to the loss of 5 – 7 staff posts. In light of that it is apparent that in order adequately to provide the services under the Contract the provider does not have to be of the scale of the Claimant (let alone of the global group). It follows that the references to the scale of the global operation of which the Claimant is a part do not advance matters. In those circumstances the smaller size of the Healix operation does not give cause for concern.[67]I accept that the Claimant genuinely believes that it would perform the Contract better than Healix but that will be true of almost all unsuccessful tenderers. The Claimant has not, however, established any proper basis for believing that there is a real risk that Healix would not perform the Contract adequately.[68]It follows that the balance of convenience is to be assessed on the following basis. If the suspension is maintained the services will be provided by the Claimant as to whose capacity and competence there is no question but with that provision being under the current contract with the new arrangements under the Contract not coming into effect until the end of July 2026 at the earliest. If the suspension is lifted the medical services will be provided from about January 2026 under the new arrangements and by Healix. Healix will be a new provider but one which has been assessed by the Defendant as capable of providing the services to the necessary standard.[69]Against that background there is considerable force in the Defendant’s contention that there will be a benefit in moving to new arrangements and that it is desirable for that benefit to be obtained sooner rather than later with the consequence that the public interest favours lifting the suspension. The Claimant questions the extent to which the Contract is materially different from the existing arrangements and, accordingly, questions the asserted benefits of the new arrangements. There is undoubtedly scope for different views on those matters but as noted above, and as explained in Medequip Assertive Technology, the question of whether the change is beneficial is one in respect of which the court must accord considerable deference to the views of the relevant public body. There is also considerable force in the Defendant’s contention that it is desirable that the new arrangements are introduced other than in a time of conflict. It is to be hoped that the United Kingdom will not be involved in serious conflict in the time it will take to determine the claim. There is, however, an inherent degree of uncertainty and unpredictability in that regard. Although the Strategic Defence Review does not suggest that conflict will start in a matter of months it does indicate that a move to warfighting readiness is “essential” and points to a heightened risk of conflict. The Claimant says that the change from provision under the current contract to provision under the Contract could still be made in a time of conflict. That may well be so but there is evident force in the Defendant’s contention that it would be better for changes to the arrangements governing the provision of medical services to military personnel overseas not to be made in a time of conflict if that can be avoided. The change could be effected in such circumstances but it would be better for it to be effected other than in a time of conflict. That means that there is force in the Defendant’s argument that the public interest calls for the change to be made sooner rather than later.[70]I come back to the crucial task of seeking to identify the course which runs the least risk of causing injustice if it turns out to be wrong. Does the public interest in obtaining the benefits of the new arrangements and in doing so sooner rather than later justify running the risk that the Claimant will ultimately be successful but will then have suffered a loss which cannot be adequately compensated in damages? I do not underestimate the risk to the Claimant but the desirability of obtaining the benefits and of doing so as soon as possible is such as to outbalance that risk and to cause the balance of convenience to fall in favour of lifting the suspension.[71]The suspension is, therefore, to be lifted.[72]In deciding whether to order expedition the court must consider whether a good reason for expedition has been shown; whether expedition would interfere with the due administration of justice; whether expedition would cause prejudice to the other party to the application; and whether there are any other special factors operating in favour or against expedition (see W L Gore & Associates GMBH v Geox SPA [2008] EWCA Civ 622 at [25] per Lord Neuberger). As Vos LJ explained in Petter v EMC Europe Ltd [2015] EWCA Civ 480, at [17] that consideration must be underpinned by the recognition that expedition should only be ordered if, viewing the matter objectively, there is some real urgency sufficient to justify that course. The fact that a claim is a challenge to a procurement decision is not without more a sufficient basis for expedition. Fraser J, as he then was, explained in Inhealth Intelligence Ltd v NHS England [2022] EWHC 2471 (TCC) at [26] that even in such a case “there must be good and cogent reasons to justify expedition”.[73]I have already explained why, even if the trial were to be expedited, the balance of convenience would fall in favour of the lifting of the automatic suspension and the suspension has been lifted.[74]In his statement explaining why the Claimant contended that expedition was justified Dr Kotsonis pointed to the seriousness of the allegations being made and the importance of the services which are to be provided under the Contract. He said that there was a public interest in the issue being heard and any breach of the Regulations remedied as soon as possible. There is an important public interest in ensuring that all cases are determined as soon as possible but the steps to be taken to reflect that interest in any particular case must have regard to the needs of other cases. Expedition of one case will almost inevitably mean that other cases will be heard later than they would have been but for the expedition. The subject matter of the Contract is, indeed, a matter of importance but neither that nor the nature of the allegations on which the claim is based amount to sufficient reasons to take the exceptional course of expedition now that the automatic suspension has been lifted. Therefore, the application for expedition is refused.

Cited in 3 later judgments