“A breach of the duty owed in accordance with regulation 89 or 90 is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage.”
“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 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?”
“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 can 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 which 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 that 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 who 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 previous cases] 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 that would retrospectively be identifiable as being attributable to the loss of 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 work.” 40. These are general criteria, which need to be reviewed and considered in the light of the facts of each case. I readily accept that there is more to be said on the subject and the principles such as those I have suggested are not be applied by rote.” (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 that would retrospectively be identifiable as being attributable to the loss of 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 work.”
“This procurement is distinctively prestigious because of its size, location and value. Success in such a competition would enhance the reputation of the winning bidder in the global rolling stock industry. It would provide evidence of competence and expertise that could be used to increase its chances of securing other high-value commercial opportunities. Conversely, failure in such a competition through unlawful procurement procedures would deprive the unsuccessful bidder of those advantages and place it at a disadvantage in competing for other commercial opportunities. Mr Coppel argues that the claimants were successful in pre-qualifying for this procurement exercise. That argument ignores the fact that such success was no doubt founded, at least in part, on the technical and commercial expertise of the claimants evidenced by their other successful projects. In future competitions, they will be able to rely on other projects carried out but they will be deprived of the opportunity to rely on the scale and innovative design of this project as demonstration of their capabilities. It would be very difficult to prove a causal link between the loss of reputation and loss of subsequent business; for that reason, it would be very difficult to quantify.”
“41. The evidence before the Court does not indicate that this procurement is unique or high value. However, it is being closely watched by a number of other fire and rescue services and is likely to be perceived as setting the standard for improved protective equipment in this sector. On that basis, it is arguable that, if the automatic suspension is lifted and Draeger is ousted from its position as the incumbent provider of breathing apparatus for LFB, it will suffer a loss for which damages are not an adequate remedy.”
“84. Here, the immediate value of the contract is relatively low, though it is fair to hold the defendants to their own estimate of£184 million overall, taking account of opportunities to obtain call off contracts. I accept that the contract is highly prestigious. .. 85. I am prepared to accept Vodafone’s assessment, not directly contradicted by the defendants, that in the field of international global communications this contract is second only in prestige to an equivalent contract to supply those services to the government of the USA. Such opportunities do not arise frequently; the last one was 11 years ago. 87. In the end, what helps to persuade me that it would not be just to confine Vodafone to its remedy in damages is the unquantifiable loss of opportunities to bid for and win other contracts on the back of this one. I do not accept that the evidence of this was vague and speculative, as the defendants suggested. 88. The disparity between the relatively modest value of the services immediately to be provided and the overall estimated value of£184 million shows the difficulty of quantifying losses that are, in my judgment, likely to prove irrecoverable as damages in future. While Vodafone can bid for other government and public sector contracts without having won this one, it would not be able to secure call off contracts and build its standing by that means. 89. I also find persuasive Vodafone’s point that Fujitsu has heavily relied in its letter on threats to its future business opportunities and relationships with suppliers arising from any risk that it might, after all, not hold onto this contract. I see no reason why the same logic should not hold good for both companies.”
“As regards potential harm to Millbrook’s competitive situation, it is not clear why the loss of this particular contract would undermine the Claimant’s ability to win other CES/TECS contracts in future. The new contract is not a prestigious contract nor a “reference contract” that would drive Millbrook’s future tenders. Millbrook currently hold 10 other CES/TECS contracts that it can use to establish its level of expertise in future bids…”
“92. … The loss of specialist staff can be a matter which means that damages are not an adequate remedy for a contractor harmed by deficiencies in a procurement process. The Claimant says that is the position here. However, careful analysis of the degree of specialism and of the effect of the loss of the staff in the particular case is required before that analysis can be accepted… 99. [There are] …cases in which the court has held that the loss of specialist staff means that damages are not an adequate remedy for the particular claimant. In both those cases there was a high degree of specialism; the transfer would have been of all or almost all of the claimant’s staff; and the loss of the staff would have affected the claimant’s continued capacity to perform other contracts or to function at all. It will immediately be noted that those are very different indeed from the circumstances here. Although the Claimant will lose some of its specialist staff the degree of specialism in question is rather less than in those cases. More important the Claimant will retain a number of such specialists and its very existence will not be threatened by the loss of the staff who will transfer to the Interested Party. It cannot credibly be suggested that the loss of the staff who will transfer to the Interested Party will mean that the Claimant will be unable to continue to perform the contracts it has for the provision of CES to local authorities in widely disparate parts of the United Kingdom. Accordingly, this is not a case where the Claimant’s loss of specialist staff means that damages will not provide it with an adequate remedy.”
“47. Particular considerations arise when addressing this question in the context of procurement cases where the defendant will be a public body. There will be cases where damages will demonstrably be an adequate remedy even for such a body if the suspension is kept in place and it is precluded from placing the contract in accordance with its procurement process. This will be the position where awarding the contract would mean that the authority was able to obtain particular goods or services at a particular price and where the restraint on awarding the contract means that it has to obtain identical goods or services for a higher price. There, an award in due course of the difference between the two amounts would adequately compensate the authority in question for the inability to place the contract at the lower sum at the earlier time. In such a case the same goods or services will have been obtained during the period of the suspension but at a higher price than would have been the position in the absence of the suspension. There will, however, be circumstances where damages will not be an adequate remedy for a public body. This will potentially be the position where the contract is to provide particular services for the public or to provide those services in a particular way and where the maintenance of the suspension means that for a period of time the services will not be provided or will not be provided in the way desired by the authority. Such an impact on the provision of services by the public body in question will not be measurable in financial terms and damages would not normally be an adequate remedy for a defendant authority in those circumstances (see per Lord Goff in R v Secretary of State for Transport ex p Factortame[1991] 1 AC 601 at 673 A-B).”
“109. There is no challenge to the evidence from Mr Hughes that the terms of the Agreement are the result of reflection and consideration by the members of the Consortium after a period of consultation. The local councils are the bodies with responsibility for the provision of these services to their citizens. They are best placed to know both whether the services are being delivered in a particular way under the existing framework agreement and whether the changes which have been made from that agreement leading to the terms of the Agreement are likely to be an improvement or not. Certainly it is for the local authorities to decide the way in which they want the services delivered. 110. Almost inevitably there will be scope for debate as to the extent to which the changes which it is said are being made are in truth changes from the current arrangements and also as to the extent to which the changes are an improvement. It may well be that the differences in terms of the practical operation of the system are not as great as the Defendant perceives them to be and also that different persons will have different views as to whether the new arrangements are an improvement. However, I come back to the point that the Consortium has decided that it is beneficial for the CES to be delivered in a particular way and on particular terms. If the suspension is maintained the Consortium will not be able to implement that decision for the period of the suspension and for such time thereafter as is necessary to enable the new arrangements to be put into effect. Provision of services will continue in the interim. The Claimant is willing to continue to supply the services and this is not a case where there will be a gap in provision. Nonetheless the fact remains that the Defendant will not be able to provide the services in the form and on the terms it wishes. That is a loss which cannot adequately be compensated in damages.”
“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])… 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.”
“ICBs are subject to a duty to act with a view to ensuring that they deliver financial balance (section 223GC of the 2006 Act). I understand that NHS England is able to provide financial support to ICBs where it appears they will not meet this duty. Therefore, if the ICBs are subject to a damages award they will be expected to manage their overall finances in such a way as to be able to pay that award (with or without support from NHS England).”
“The breaches were not sufficiently serious such as to provide SRCL with a remedy in damages. Insofar as the Defendants breached their obligations (which is denied), any such breach was unintentional and/or immaterial and/or involuntary.”
“29. Mr Halliday for the Claimant eloquently explained that there was a real chance that the Claimant in this case would find itself in the same position as Braceurself, namely successfully establishing a breach in a closely run competition, where one point’s difference in the scoring would have changed the outcome of the award, yet be left with no substantive remedy. If the ATL is granted, Millbrook would lose its preferred remedy of setting aside the contract and having the competition re-run and/or the contract awarded to Millbrook instead. Further, in the absence of any concession from the Defendant on the sufficiently serious criterion, there was a real risk that Millbrook could be left without any remedy in damages at all. This risk, he argued, should be factored into the assessment of adequacy of damages. 30. In support, he relied on the ruling of the High Court of Northern Ireland in CGI IT UK Ltd. v Department of Finance [2024] NIKB 49, where Humphreys J at §§43-44 held that the facts of the case were similar to Braceurself and, in circumstances where the bids were very close and the Defendant had not made a concession or given an undertaking on the sufficiently serious issue, there was a risk that if the contract had been awarded to the wrong bidder, the claimant would be left with a Pyrrhic victory. Humphreys J held that, in such circumstances, the suspension should be maintained as it would not be just to confine the claimant to a remedy in damages. Aside from the Braceurself point, he would have found that damages were adequate… 33. I recognise that the High Court of Northern Ireland in CGI did take account of the likely seriousness of the breach in the assessment of adequacy but that authority is merely persuasive and non-binding. I take comfort in my conclusion to the opposite from a consistent host of eminent High Court judges endorsing the exclusion of the sufficiently serious criterion as part of the adequacy assessment, including in cases where the Defendant has not conceded the Francovich criterion. The tension between the adequacy of damages assessment at the interlocutory stage and the sufficient seriousness at the time of the final award has long been recognised in procurement cases: see Bombardier, per O’Farrell J at §64; Boxxe Ltd v Secretary of State for Justice[2023] EWHC 533 (TCC) , per Constable J at §§39-43; and more recently in Unipart Group Ltd a.o. v SCCL[2025] EWHC 354 at §§50-54. It is true that in most cases, the Defendant has made a concession or offered an undertaking to square the circle between the two but I do not see that as decisive. In Alstom, O’Farrell J observed if a breach was not sufficiently serious enough to satisfy the Francovich conditions, it was unlikely to be sufficiently serious to justify setting aside the contract under challenge. In Boxxe, Constable J agreed and held that this should not be a factor that should weigh (or weigh heavily) in preventing the letting of the contract in the context of an application to lift. Both judgments were cited with approval on this point by Coulson LJ at §§41-44 of Braceurself itself; although that comment was obiter, I regard it (and the preceding TCC precedent chain) as more persuasive. 146. 34. In the present case, as Mr Barrett KC observed, if the Claimant is entitled to maintain the suspension in place, purely on the Francovich risk when all other considerations point towards damages being an adequate remedy, it means that the previous operator can artificially extend its incumbency and the life of the old contract and the local authority will be forced to invest resources and mobilise with the bidder that it considers to be the losing party, even though its losses can be fairly and adequately compensated at the end of trial. 35. In all of these circumstances I find that it is just and appropriate to confine the Claimant to a remedy in damages, which will be adequate to remedy any breach.”
“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.”
“It is however relevant to briefly say that by virtue of the Second Claim, the scope of this litigation has significantly increased. The parties now dispute the lawfulness of the proposed award of 22 contracts, as opposed to 9. The result of this is that the Claimant pleads further numerous breaches of the PCR including the introduction of a significant point with regard to the Defendants’ consideration of the economic and financial standing test as detailed in the invitation to tender for the Procurement, relating to the successful bidder, Sharpsmart, for Lots 1, 2, 9, 18 and 19 in the First Claim, and Lots 3, 4, 5, 6, 12, 13, 20 and 22 in the Second Claim.”
“[W]hen considering such an application there are four factors to take into account. The first is whether the applicants … have shown good reason for expedition; the second is whether expedition would interfere with the good administration of justice; the third is whether expedition would cause prejudice to the other party; and the fourth is whether there are any other special factors.”
“1. That the Sharpsmart ICBs’ discretion to take into account other factors on the scored elements of the analysis could not be exercised where a tenderer had “clearly failed” the ratio element. 2. That the Sharpsmart ICBs were not permitted to seek clarification/correction of an incomplete or erroneous tender. 3. That Sharpsmart was unlawfully permitted to amend its tender response. 4. That Sharpsmart was unlawfully permitted to rely upon its parent company, Daniels. 5. That Sharpsmart was unlawfully permitted to offer a Parent Company Guarantee from Daniels.”