Summary
On an application to lift an automatic procurement suspension, the court applies the American Cyanamid Co v Ethicon Limited [1975] AC 396 approach. Once there is a serious issue to be tried, the court should not conduct a mini-trial or calibrate the parties’ relative merits, save in an exceptional case with a simple decisive point.
The adequacy of damages requires an assessment of whether it is just to confine the claimant to that remedy. Assertions of prestige, reputational harm, or wider commercial effects will not make damages inadequate where the asserted losses are speculative or can be financially assessed. The public interest in lawful procurement is material but does not automatically require the suspension to continue. It must be balanced against countervailing public interests, including serious risks to patient care and the cost of delay.
Factual background
The Trust ran a procurement for an integrated managed-services contract for pathology services. It intended to award the contract to Abbott Laboratories Ltd. Sysmex had participated as the specialist haematology and coagulation subcontractor in the unsuccessful Roche bid.
Sysmex challenged the proposed award. Its claim initially concerned the CE marking of Abbott’s proposed analyser and later extended to the evaluation and scoring of Abbott’s tender. The proceedings triggered the automatic suspension under the Public Contracts Regulations 2015.
The Trust applied to lift the suspension. It accepted, for the application, that there was a serious issue to be tried. The issues were whether damages were adequate and, if necessary, where the balance of convenience lay.
Held
Application granted. Coulson J ordered that the automatic suspension be lifted. The Trust accepted that there was a serious issue to be tried, but the court held that this concession did not justify a further inquiry into the relative merits of the procurement claim.
The applicable framework was the three-stage approach in American Cyanamid Co v Ethicon Limited [1975] AC 396: serious issue, adequacy of damages, and balance of convenience. The overriding question was which course carried the least risk of injustice. In a complex procurement challenge, the court should not conduct a mini-trial or try to grade the strength of a claim once the serious-issue threshold is met, unless there is an exceptional and simple decisive point.
Damages were an adequate remedy for Sysmex and it was just to confine it to damages. Sysmex could calculate its anticipated profit and tender costs. Its contentions that the contract’s size or prestige, damage to reputation, inability to use the contract as a reference, and wider cost consequences made damages inadequate were unsupported, speculative, or financially measurable. A successful claim could vindicate a wrongly rejected tender without the contract itself having to be awarded.
Conversely, damages would not adequately compensate the Trust if the suspension continued. There was credible, largely unchallenged evidence that obsolete and failing pathology equipment was adversely affecting patient care and could cause grave clinical consequences. The new contract would also produce substantial savings. Those considerations independently and overwhelmingly favoured lifting the suspension.
The public interest in lawful procurement remained relevant but did not automatically favour maintaining the suspension. It had to be weighed against the public interest in timely, safe and efficient NHS services. The court also refused Sysmex’s proposed partial variation of the suspension. The contract was designed as an integrated single-provider arrangement, and the proposed order was impractical, potentially unlawful, and would leave important patient-care risks unresolved.
The court’s approach to earlier authorities
Available to signed-in members.
Appellate history
High Court (Technology and Construction Court): First-instance application to lift the automatic suspension. Before the application, the proceedings had been stayed by consent for four weeks to permit settlement discussions, subject to an express exception for an application concerning the suspension.
Key cases cited
12 authorities cited.
- American Cyanamid Co v Ethicon Ltd [1975] AC 396
- DWF Llp v Secretary of State for Business Innovation And Skills [2014] EWCA Civ 900
- Alstom Transport UK Ltd v London Underground Ltd [2017] EWHC 1521 (TCC)
- Perinatal Institute v Healthcare Quality Improvement Partnership [2016] EWHC 2626 (TCC)
- Kent Community Health NHS Foundation Trust v NHS Swale Clinical Commissioning Group & Anor [2016] EWHC 1393 (TCC)
- Counted4 Community Interest Company v Sunderland City Council [2015] EWHC 3898 (TCC)
- NATS (Services) Ltd v Gatwick Airport Ltd & Anor [2014] EWHC 3133 (TCC)
- R (Edenred) v Her Majesty’s Treasury and Others [2014] EWHC 355 (QB)
- Covanta Energy Ltd v Merseyside Waste Disposal Authority [2013] EWHC 2922 (TCC)
- Alstom Transport v Eurostar International Ltd & Anor [2010] EWHC 2747 (Ch)
- Bristol Missing Link Ltd v Bristol City Council [2015] 876 (TCC)
- Nottingham Building Society v Eurodynamics Systems [1993] FSR 468
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Cases citing this case
11 later cases · 10 positive · 1 caution
Most senior citing decisions:
- Mitie Care And Custody Limited v Secretary of State for The Home Department [2026] EWHC 867 (TCC) applied
- Cubic Transportation Systems Limited v Transport for London & Anor [2026] EWHC 61 (TCC) applied
- Mak Systems Group Limited v Velindre University NHS Trust [2026] EWHC 8 (TCC) followed
- Unipart Group Limited & Anor v Supply Chain Coordination Limited [2025] EWHC 354 (TCC)
- One Medicare t/a One Primary Care LLP v NHS Northamptonshire Integrated Care Board [2025] EWHC 63 (TCC)
- International Game Technology PLC & Ors v The Gambling Commission [2023] EWHC 1961 (TCC)
- Medequip Assistive Technology Limited v The Mayor and Burgesses of the Royal Borough of Kensington and Chelsea & Ors [2022] EWHC 3293 (TCC)
- CAMELOT UK LOTTERIES LIMITED v THE GAMBLING COMMISSION [2022] EWHC 1664 (TCC)
- Kellogg Brown & Root Ltd v Mayor's Office for Policing and Crime [2021] EWHC 3321 (TCC)
- Circle Nottingham Ltd v NHS Rushcliffe Clinical Commissioning Group [2019] EWHC 1315 (TCC)
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