Citation: EWHC 63 (TCC)
Background
This dispute arose from a procurement run by the Northamptonshire ICB for a contract to provide an Urgent Care Centre. The claimant, OPC was the incumbent provider of that service. Following the tender process, the ICB awarded the contract to another bidder.
OPC issued a claim challenging the ICB’s award decision. This triggered an automatic suspension under Regulation 95 of the Public Contracts Regulations 2015 (“PCRs”).
The ICB applied to lift the automatic suspension. OPC opposed the application and applied to expedite the trial.
Decision (Jefford J)
Suspension lifted. Application for expedition refused.
The judge decided that there was evidence that lifting the suspension was capable of causing real disruption to OPC’s business which cannot be adequately compensated in damages. However, she found that OPC was a member of a highly interconnected corporate group and it was more likely that OPC would be supported financially. The judge’s hesitation in finding an arguable case that damages are not adequate for OPC was a consideration which weighed heavily in the balance.
The judge decided that if the suspension remained in place, the ICB would suffer damage that extended beyond the purely financial. There was evidence that the provision of services by the successful bidder would improve the quality of care provided to patients. The judge held that she was entitled to take into account matters, notably the scoring of bids, which would be in dispute at trial and assume that, if the claim failed, at least some of the disputed benefits of the successful bid would be realised. Maintaining the suspension entailed the risk that patients would be deprived of these benefits and that loss was not capable of compensation in damages.
On the balance of convenience, there was found to be a far greater probability that the ICB would suffer loss that could not be compensated in damages. The judge further held that OPC’s failure to offer the standard cross-undertaking in damages was the strongest reason to grant the application to lift the suspension.
Once the decision to lift the suspension had been made, there was no reason to expedite. The ICB’s estimate of a 15-day trial was considered reasonable and expedition would prejudice other court users.
Simon Taylor acted for OPC, instructed by Veale Wasbrough Vizards LLP.
