Millbrook Healthcare Limited v Devon County Council [2025] EWHC 744 (TCC)
The High Court (Anneli Howard KC, sitting as a Deputy High Court Judge) held that the automatic suspension should be lifted in respect of a c. £65m public contract for community equipment and technological equipment being tendered by Devon County Council.
The Judge held that damages would be an adequate remedy for the Claimant and that the balance of convenience favoured the lifting of the suspension. The Judge also dismissed the Claimant’s application for an expedited trial.
The Court’s judgment provides important guidance on the legal principles applicable to applications to lift automatic suspensions in procurement disputes in relation to the adequacy of damages as a remedy for a claimant.
In particular, the Court’s judgment provides the first detailed discussion of whether damages should be regarded as an adequate remedy for a claimant where the defendant has denied that any breach was ‘sufficiently serious’ to sound in damages. The Claimant argued that damages were an inadequate remedy because it might succeed at trial in respect of breach of duty and causation, yet obtain no damages because the breach might not be regarded as ‘sufficiently serious’; and that, since lifting of the suspension would preclude a ‘set aside’ remedy, it might therefore be left with no substantive remedy at all.
The Court rejected this contention, holding that the application of the ‘sufficiently serious’ breach criterion is irrelevant to the Court’s assessment of the adequacy of damages as a remedy.
The Court’s decision is likely to have significant implications for the conduct of procurement disputes. In future, contracting authorities may no longer offer a concession to a claimant that any breach which deprived the claimant of the contract will be sufficiently serious to entitle it to damages.
The judgment also provides useful guidance on both: (i) the nature of the evidence which must be provided to support arguments regarding the alleged inadequacy of damages, and (ii) how the Court will go about resolving evidential disputes relating to alleged advantages and disadvantages of services being provided by an incumbent and new services to be delivered under the contract that is being procured.
A copy of the judgment can be found here.
Joseph Barrett of 11KBW was sole counsel for the successful Defendant, DCC, instructed by Ed Williams and Nico Tilche of DACB LLP.
Patrick Halliday of 11KBW was sole counsel for the Claimant, Millbrook, instructed by Gowlings LLP.
