Mak Systems Group Limited v Velindre University NHS Trust

On an application to lift an automatic suspension in a procurement challenge, the court should not conduct a mini-trial where a serious issue to be tried is accepted, save for an exceptional knock-out point. The availability and practical length of an expedited trial may inform the American Cyanamid questions, but expedition is not an overarching consideration that replaces the established test.

For a commercial bidder, reputational loss from an unsuccessful tender will rarely make damages inadequate without cogent evidence of irrecoverable financial loss. Conversely, delay to a public authority’s intended service improvements may not be compensable in damages, particularly where the authority is best placed to assess the benefits and timing of implementation. The suspension was therefore lifted.

The claimant, the incumbent supplier of a blood establishment computer system, challenged the defendant NHS Trust’s procurement and sought to maintain the automatic suspension preventing contract formation. The Trust applied to lift the suspension. The claimant also sought an expedited trial, initially of all issues and later of a regulatory-compliance issue concerning the successful bidder’s software.

The Trust accepted that there was a serious issue to be tried for the purposes of the application. The court considered the adequacy of damages for both parties, the availability and practicality of an expedited trial, the public interest, patient-safety arguments, possible extension of the existing contract, and the balance of convenience.

1. Disposition. The defendant’s application to lift the automatic suspension succeeded. The claimant’s application for an expedited trial, including its proposed expedited determination of the regulatory-compliance issue, was dismissed.
2. Applicable approach. The application was governed by the American Cyanamid principles, as conveniently stated in Camelot Lotteries Ltd v Gambling Commission [2022] EWHC 1664 (TCC). Once a serious issue to be tried was conceded, the court should not investigate the relative merits or conduct a mini-trial in a complex procurement dispute, absent exceptional circumstances such as a simple knock-out point. The regulatory issues concerning the specification, the applicable medical-device regime and compliance could not be resolved summarily: Sysmex (UK) Ltd. v Imperial College Healthcare NHS Trust [2017] EWHC 1824 (TCC).
3. Expedition. The established expedition factors were good reason, administration of justice, prejudice to the other party and special factors, as stated in W L Gore & Associates GmbH v Geox SpA [2008] Civ 622. The prospect of an expedited trial could affect the suspension analysis, but it was not an overarching substitute for those principles. The pleaded claim was too extensive for the proposed estimates, and no sufficient justification for expedition was shown.
4. Adequacy of damages. The claimant’s contract was financially modest relative to its business. Reputational loss from an unsuccessful bid required cogent evidence of irrecoverable financial loss. Assertions about prestige, market perception and future procurements were insufficient. The claimant’s damages were therefore adequate. The Trust’s loss from delaying the benefits and implementation of the new system could not be adequately remedied in damages. The court was entitled to give substantial weight to the public body’s assessment of the services and benefits it required.
5. Other matters. The possibility of extending the existing contract or entering a conditional arrangement with the successful bidder was too uncertain to answer the Trust’s case. If the balance of convenience had required consideration, it would have strongly favoured lifting the suspension, having regard to implementation delay, the public interest and the successful bidder’s interests.