Joseph Barrett lifts automatic suspension on UK perinatal mortality project

Perinatal Institute v Healthcare Quality Improvement Partnership [2016] EHWC 2626 (TCC)

The High Court has lifted the automatic suspension on the award of the public contract for the delivery and roll-out of a new standardised monitoring tool, and related research activity, across the NHS in England, Scotland and Wales.

The Court (Jefford J) held that:

1. While the claim crossed the low threshold of establishing a serious issue to be tried, it could not be said to be obviously strong.
2. Damages would be an adequate remedy for the claimant. The fact that a claimant is a not for profit entity does not necessarily mean that damages is not an adequate remedy. However, it is a factor that may mean that damages are not an adequate or just remedy. On the facts of the case, the claimant would have a claim for a loss of contribution to fixed overheads and bid costs and confining it to that remedy would not be unjust.
3. In any event, the weighty public interest in reducing the level of perinatal deaths in the UK meant that the balance of convenience strongly favoured lifting the suspension.

The Judgment will be of significance in future cases where claimants contend that damages are not be an adequate remedy because the contract is to be performed on a ‘not for profit’ basis. As the Judgment notes, there is a contrast of approach on this issue in the existing authorities (as between the judgment of Coulson J in Bristol Missing Link Ltd v Bristol City Council [2015] EWHC 876 (TCC) (holding that the fact that a contract was to be performed on a not for profit basis meant that damages would not be an adequate remedy) and the decision of Stuart-Smith J in Kent Community Health NHS Foundation Trust v NHS Swale Clinical Commissioning Group[2016] EWHC 1393 (TCC) (trenchantly finding that ‘not for profit’ status is unlikely to be relevant to the adequacy of damages)).

It is submitted that Jefford J’s approach appears to have more in common with that of Coulson J, albeit that the Judge held that on the specific facts of the case damages would be an adequate remedy for this claimant.

The judgment can be read here:

Joseph Barrett of 11KBW was sole Counsel for the successful Defendant, HQIP.