International SOS Assistance UK Limited v Secretary of State for Defence

Where an automatic suspension in a procurement challenge is lifted, the successful party will ordinarily recover the costs of that application. The fact that the decision is reached by applying the balance of convenience does not justify reserving costs. Costs are reserved where an interim injunction or suspension is maintained to hold the ring pending trial, because neither party can then readily be identified as the winner. That rationale does not apply where the court refuses to maintain the suspension and grants the requested relief. A party’s possible success at the eventual trial does not alter the costs consequences of the interim application.

The judgment concerned consequential matters following a substantive procurement judgment handed down on 20 October 2025. The court considered how the Defendant’s undertaking not to pursue an argument that the breaches were not sufficiently serious should be reflected in the pleadings, the costs of lifting the automatic suspension, the costs of an unsuccessful expedition application, and an unresolved disclosure application.

The central issues were whether the relevant Defence should be amended or struck out, and whether costs should be reserved where an automatic suspension had been lifted following an assessment of the balance of convenience.

1. Pleading amendment. The court could not alter the undertaking offered by a party. It could, however, strike out part of a pleading likely to obstruct the just disposal of proceedings and direct service of an amended pleading. Since the Defendant accepted that it could not pursue the argument in Defence paragraph 42, that paragraph was struck out so that the pleadings reflected the true position. There was no injustice to the Defendant.
2. Automatic suspension and costs. Applications under the Public Contracts Regulations 2015 to lift an automatic suspension are determined by reference to interim-injunction principles, subject to necessary modification: regulation 96(2). The authorities, including Desquenne et Giral UK Ltd v Richardson [2001] FSR 1, Picnic at Ascot v Kalus Derigs [2001] FSR 2 and Melford Capital Partners (Holdings) LLP v Wingfield Digby [2020] EWCA Civ 1647, [2021] 1 WLR 1553, concerned an injunction granted to hold the ring pending trial. In that situation costs may properly be reserved because the successful party cannot readily be identified.
3. That reasoning did not apply where the court lifted the automatic suspension. Although the decision was based on the balance of convenience, the Defendant had obtained the relief sought and the Claimant had opposed it. The Defendant was therefore the successful party and the normal rule applied: it should recover its costs. The possibility that the procurement claim might ultimately succeed did not change that conclusion.
4. The expedition application was refused, so the Claimant was liable for the Defendant’s costs of that application. No order was made on the disclosure application because its terms remained unresolved.