Teleperformance Contact Limited v The Secretary of State for the Home Department

On an application to lift the automatic suspension of a public procurement, the court applies the American Cyanamid guidelines within a broad statutory discretion. The primary injury is that suffered by the claimant whose rights are allegedly infringed. Losses of related companies are ordinarily irrelevant, especially where separate special purpose vehicles have no standing and no duty is owed to them. Exceptionally, third-party effects may be relevant where they have a sufficient nexus with intangible or reputational loss suffered by the claimant. Quantifiable lost profits normally make damages adequate. Where damages are adequate for the claimant, and delay would cause uncompensable public-interest detriment, the suspension should ordinarily be lifted.

The claimant challenged the award of three visa and citizenship application-services contracts to the interested party under the Public Contracts Regulations 2015. The defendant applied under regulation 95(1) to lift the automatic suspension preventing the contracts from being entered into.

The claimant argued that damages would be inadequate because losing the contracts would cause closures, redundancies, reduced future procurement prospects, revenue loss and reputational harm across its wider corporate group. The central issue was whether losses suffered by other group companies could be considered when assessing the adequacy of damages for the claimant.

1. Application granted. The automatic suspension was lifted. There was a serious issue to be tried, but the court was not asked to assess the relative strength of the underlying procurement challenge.
2. The American Cyanamid questions applied. The jurisdiction is broad and permits relief where it is just and convenient. Ordinarily, however, the relevant injury is the injury suffered or likely to be suffered by the party entitled to claim for the alleged violation.
3. Third-party injury may exceptionally be relevant where it has a sufficient nexus with intangible or reputational loss suffered by the claimant. The court may also consider the objective expectations created by the relevant relationship, including a regulatory regime and the remedies it provides.
4. The wider losses of TLScontact and the Teleperformance group were not relevant to the claimant’s adequacy-of-damages case. The group used separate special purpose vehicles, none of the other entities was a party, and the other vehicles had no standing to claim against the authority. There was no sufficient nexus between their losses and any uncompensable loss suffered by the claimant itself.
5. The claimant’s own losses were quantifiable. The evidence did not establish an existential threat, serious reputational harm, irreplaceable workforce loss or a credible disadvantage in future procurements. Any wider group revenue loss was also quantifiable and could not establish inadequacy of damages for the claimant.
6. Conversely, delay would risk a gap in services and postpone improvements in security, technology, customer experience and contract management. Those public-interest detriments could not adequately be compensated in damages. The balance of convenience therefore favoured lifting the suspension.