Sysmex (UK) Ltd v Imperial College Healthcare NHS Trust

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.

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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

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.