InHealth Intelligence Limited v NHS England

In a procurement challenge concerning the conduct of a competition before its outcome, the court may suspend the procedure under Public Contracts Regulations 2015 regulation 96(1)(c), or under its general interim-relief jurisdiction. The same principles apply as on an application to lift automatic suspension, including the adequacy of damages and the balance of convenience.

A court may require a cross-undertaking in damages as a condition of granting interim relief, but it has no power to order an unwilling party to give such an undertaking. Where the parties consensually pause a procurement pending trial, the court should not insert an undertaking against the wishes of the party concerned.

The claimant challenged its exclusion from a procurement competition conducted by NHS England after an employee failed to upload a required document correctly before the tender deadline. The claimant issued a substantive procurement claim and applied for interim relief under regulation 96(1)(c) of the Public Contracts Regulations 2015 and CPR Part 25.1(a), seeking suspension of the competition.

The parties later agreed that NHS England would pause the procurement pending an expedited trial. The claimant did not agree to provide a cross-undertaking in damages. The central issue was whether the court could order the claimant to give such an undertaking as part of the directions or consensual arrangements.

1. Interim-relief principles. The Suspension Application was not determined on its merits because the parties agreed that the procurement would be paused pending trial. Nevertheless, where a claimant seeks to suspend a procurement before its outcome, the same principles apply as on an application to lift an automatic suspension. The court must consider whether there is a serious issue to be tried, the adequacy of damages, and the balance of convenience.
2. Scope of regulation 95. Automatic suspension under regulation 95 applies where proceedings challenge a contracting authority’s decision to award a contract. It does not apply where the challenge concerns the conduct of the procurement before an outcome is reached. In the latter case, suspension may be sought under regulation 96(1)(c) or CPR Part 25.1(a).
3. Cross-undertaking in damages. An undertaking is a promise to the court, and breach may constitute contempt of court. The court may require an undertaking as a condition of granting interim relief. It cannot, however, order a party to give an undertaking where that party is unwilling to provide it.
4. The principle in Nuclear Decommissioning Authority v EnergySolutions EU Ltd was applicable. The provision of an undertaking or security as a condition of continuing interim relief is a matter of free choice for the party seeking relief. A condition imposed by the court is distinct from compelling the party to make a promise to the court.
5. Even if the court had power to order an undertaking, it would not have been appropriate to add one to the parties’ agreement. NHS England had agreed to pause the procurement, while the claimant opposed the proposed term and the Suspension Application was not being decided.
6. The procurement was paused by consent until determination of the liability trial in February 2023 or further order. The request to impose a cross-undertaking was refused.