Citation: [2025] EWHC 2964 (TCC)
The TCC lifted the automatic suspensions on the award of 22 clinical-waste contracts and refused expedition. Waksman J held that damages were adequate for the unsuccessful bidder but not for the ICBs, as continuing the suspensions would delay the benefits of the new contracts and risk service disruption. The judge also found that the balance of convenience clearly favoured lifting the suspension.
Background
The court considered three applications. The first two applications were brought by the 1st to 22nd Defendants, NHS Integrated Care Boards across England (“the ICBs”), and sought to lift the automatic suspensions on the award of 13 contracts to Sharpsmart Limited (“Sharpsmart”) and 9 contracts to Personnel Hygiene Services Limited (“PHS”) (together, “the Applications to Lift”). In each case, the Claimant (“SRCL”) was the unsuccessful bidder. The third application, issued on 21 October 2025, sought to expedite the trial or to have a trial of one particular issue (“the Expedition Application”).
The procurements concerned the provision of clinical waste collection and disposal services for primary care settings in each ICB area (“the Procurements”). These services represent a relatively small segment of the overall NHS clinical-waste market. The 22 ICBs advertised the Procurements on 11 September 2024, with tenders due by 18 October 2024.
SRCL was the incumbent provider for 18 of the 22 ICBs for which it tendered. The contracts to be awarded had a potential duration of up to nine years (a five-year term with two possible two-year extensions). SRCL estimated their total value at £168 million, though the ICBs maintained that the true figure was significantly lower.
The Applications to Lift, and the proceedings as a whole, were governed by the Public Contracts Regulations 2015 (“PCR”), not the Procurement Act 2023.
Decision (Waksman J)
Applications to Lift were granted; Expedition Application was dismissed.
- Damages as an adequate remedy for SRCL: Waksman J held that damages would be an adequate remedy for SRCL. While the Procurements represented a significant opportunity for clinical waste operators, the services under the new contracts did not differ materially from those already provided by operators. The contracts were not “prestigious” in any meaningful sense; there was simply a large number of them, and in reality comprised 22 separate procurements rather than a single major award.
- Any loss of profits was capable of being quantified in the ordinary way. The suggestion that losing the contracts would force the closure of three facilities, reduce SRCL’s transport fleet or lead to staff losses were not convincing and did not demonstrate that damages would be inadequate. The alleged loss of competitiveness was simply a typical commercial consequence of an unsuccessful bid, not a harm specific to these Procurements.
- The judge also rejected the suggestion that the contracts offered SRCL a unique opportunity to develop its business. SRCL was already the largest operator in the market, and the new contracts did not represent a novel or “reference” opportunity that would materially change its position. Accordingly, this was not a case in which damages would be insufficient.
- Damages as an adequate remedy for the ICBs: Waksman J held that damages would not be an adequate remedy for the ICBs. Maintaining the automatic suspensions would have delayed the introduction of significant improvements under the new contracts, which were not merely a continuation of existing arrangements. Given the time required to reach a fair trial on all issues, that delay would not have been short, and damages could not compensate for the loss of those benefits.
- There was also a real risk that services might not be maintained during the interim, as it was uncertain whether all existing contracts could be extended on the same terms for the duration of the suspensions. This uncertainty over future extensions reinforced that conclusion, although the judge confirmed that his decision would have been the same even without this additional factor.
- Damages as an adequate remedy for Sharpsmart: Had it been a live issue, damages would have been an adequate remedy for Sharpsmart in the event of a wrongfully maintained suspension. The judge rejected the argument that the new contracts offered Sharpsmart a distinct platform for growth that could not be compensated in damages. Even if Sharpsmart was differently positioned from SRCL, any lost opportunity would have been insufficiently clear to undermine the adequacy of damages. In any event, any such loss would have been temporary, limited to the period of the suspension, and not a permanent detriment.
- Balance of convenience: While the issue was academic in light of the finding that damages were an adequate remedy for SRCL, Waksman J stated that he would in any event have held that the balance of convenience favoured the ICBs. Maintaining the suspensions for an extended period would have seriously disrupted mobilisation of the new contracts and significantly delayed the improvements they were intended to deliver. Any uncompensatable damage to SRCL would not have outweighed these impacts. This would have been sufficient to justify lifting the suspensions.
Rhodri Williams KC and Tom Walker acted for the Interested Party, instructed by Knights.
