Cyberfort Limited v The Lord Chancellor

On an application to lift an automatic suspension in a procurement challenge, mere arguability that damages may be inadequate is insufficient. The claimant must show at least a reasonably arguable risk, and the court must assess the available evidence at the adequacy and balance stages.

Loss of future tenders remains compensable where causation can be proved, despite uncertainty in assessment. Reputational and workforce assertions require specific evidence of significant irrecoverable loss. A public authority may establish inadequacy of damages through its inability to implement chosen service terms and benefits. The balance of convenience may favour lifting the suspension where the public interest, the successful bidder’s interests and the likely duration of the suspension point that way.

HM Courts and Tribunals Service procured a managed cyber security services contract. Cyberfort, the incumbent supplier and unsuccessful bidder, issued a procurement challenge after the award to Accenture. Under the Public Contracts Regulations 2015, regulation 95, commencement of the claim automatically suspended contract-making. HMCTS applied to lift the suspension.

The application concerned whether there was a serious issue to be tried, whether damages were adequate for each side, and where the balance of convenience lay.

Disposition. The application was granted and the automatic suspension ended with immediate effect.

1. Applicable framework. The parties agreed the four-stage approach summarised in Camelot UK v The Gambling Commission [2022] EWHC 1664 (TCC): serious issue to be tried; adequacy of damages for the claimant; adequacy of damages for the defendant if the suspension remained; and, if necessary, the course carrying the least risk of injustice.
2. Cyberfort’s remedy. Mere arguability that damages would be inadequate did not satisfy the claimant’s burden. The court followed the approach in Neurim Pharmaceuticals (1991) Ltd v Generics UK Ltd (T/A Mylan) [2021] R.P.C. 7: the court must assess the written evidence at the later stages and should not apply the serious-issue threshold throughout. The observations in Unipart Group Ltd v Supply Chain Coordination Ltd [2025] EWHC 354 (TCC) did not establish that mere arguability was sufficient.
3. The HMCTS contract remained available as a reference contract for a considerable period, and any proven loss of future work could be assessed in damages despite uncertainty. Cyberfort’s alleged reputational loss was speculative and unsupported by evidence of significant irrecoverable financial loss. Its evidence concerning staff and morale was broad rather than specific and analytical. The court applied the guidance in Openview Security Solutions Ltd v The London Borough of Merton [2015] EWHC 2694 (TCC), Practice Plus Group Health & Rehabilitation Services Ltd v NHS Commissioning Board [2022] EWHC 2082 (TCC) and Medequip Assistive Technology Ltd v Kensington and Chelsea RBKC [2022] EWHC 3293 (TCC).
4. Alternative findings. HMCTS was best placed to assess the improvements and service terms it had chosen. Its inability to implement those terms and obtain the associated non-financial benefits was a loss not adequately compensable in damages. The balance of convenience also favoured lifting the suspension, given the likely delay until the end of 2027, the public interest, the successful bidder’s interests and the status quo ante.

not stated in the judgment.