One Medicare t/a One Primary Care LLP v NHS Northamptonshire Integrated Care Board

On an application under regulations 95 and 96(1)(a) of the Public Contracts Regulations 2015, the court must assess the adequacy of damages for both parties and, where necessary, the balance of convenience. A commercial claimant must show a realistic risk of serious, unquantifiable business disruption. Speculative effects on future opportunities, reputation or innovation are insufficient. A public authority may establish inadequacy of damages through non-financial loss from being unable to implement qualitatively better services, particularly where patient care is affected. The court may consider the proposed benefits on the assumption that the authority succeeds at trial, without conducting a mini-trial on the procurement merits. A standard cross-undertaking in damages is ordinarily expected before an automatic suspension is maintained. The suspension was lifted.

The claimant, the incumbent provider of an urgent care centre, challenged the defendant’s procurement and intended award of a replacement contract to the interested party. The challenge engaged transparency, scoring and conflict-of-interest issues. The defendant accepted that there was a serious issue to be tried.

The defendant applied to lift the automatic suspension preventing contract award under the Public Contracts Regulations 2015. The claimant applied for expedition. The court considered the adequacy of damages for the claimant and defendant, business disruption, future tender opportunities, reputation, innovation, service improvements, patient care, the balance of convenience and cross-undertakings in damages.

1. Outcome. The defendant’s application to lift the automatic suspension was granted. The claimant’s application for expedition was refused.
2. Applicable test. The court applied the four-stage approach identified in Camelot UK Lotteries Ltd v Gambling Commission [2022] EWHC 1664 (TCC) at [48]: whether there was a serious issue to be tried; whether damages were adequate for the claimant; whether damages were adequate for the defendant if the suspension remained and it succeeded; and, if necessary, which course carried the least risk of injustice.
3. Claimant’s remedy. Loss of profit would ordinarily be calculable. There was evidence that lifting the suspension could cause difficult-to-quantify business disruption, but the court was not satisfied that there was a realistic risk of destruction of the business. The more realistic likelihood was shareholder support. Alleged effects on future opportunities, financial standing, reputation and innovation were speculative or capable of compensation. The contract was not shown to be sufficiently prestigious to make reputational loss irrecoverable. The court relied on Openview Security Solutions Ltd v The London Borough of Merton Council [2015] EWHC 2694 (TCC) and Sysmex (UK) Ltd v Imperial College Healthcare NHS Trust [2017] EWHC 1824 (TCC).
4. Defendant’s remedy and balance. On the assumption that the defendant’s evaluation was lawful and correct, the court could consider the qualitative benefits of the proposed contract, including benefits challenged in the procurement proceedings. It was unnecessary to conduct a mini-trial. The inability of a public authority to provide services in the form and on the terms it considered beneficial could not adequately be compensated in damages: Medequip Assistive Technology Ltd v The Royal Borough of Kensington [2022] EWHC 3293 (TCC). The proposed service improvements, the existing failure to meet a triage KPI and the potential effect on patient care weighed heavily in favour of lifting the suspension.
5. Undertakings and expedition. The absence of a standard cross-undertaking in damages to the defendant or interested party was a powerful, potentially decisive, reason to lift the suspension. A capped or causation-limited undertaking was inadequate. Expedition was unnecessary because the risk of financial collapse was unrealistic, and the complexity of the litigation meant that expedition would prejudice other court users.