HT-2024-000023 - [2025] EWHC 63 (TCC)

The starting point for the ICB’s submissions is that damages are an adequate remedy for OPC. The estimated revenue, as pleaded, over the 5 year term of the contract is approximately £40 million excluding VAT. The “normal outcome” would be that the suspension is lifted and the claimant held to this remedy: Braceurself Ltd v NHS England [2022] EWHC 1532 (TCC) at [21]; Openview Security Solutions Ltd. v The London Borough of Merton Council [2015] EWHC 2694(TCC) at [70]; Circle Nottingham v NHS Rushcliffe Clinical Commissioning Group [2019] EWHC 1315 (TCC) at [18].

There is a tension between this “normal outcome” and Mr Taylor’s submission that it need be only arguable that damages are not an adequate remedy which would seem to open the door to many instances in which the court would have found that it was arguable that damages were not an adequate remedy. The starting point for his submission is the referenceto the decision of O’Farrell J in Draeger. In that case, the judge concluded that the procurement was not of high or unique value but that it was being closely watched by a number of other fire and rescue services and was likely to be seen as setting a standard for improved protective equipment in the sector. On that basis, she said, “it is arguable that if the automatic suspension is lifted and Draeger is ousted from its position as the incumbent provider of breathing apparatus for LFB, it will suffer a loss for which damages are not an adequate remedy”. This is, therefore, a statement of her conclusion as to what was arguable on the facts of that case. It illustrates that the court could and should make an assessment of whether there is a realistic risk that damages will not be an adequate remedy. That is why in other cases on which OPC relied the court has said that it will make an assessment of whether the lifting of the suspension will have a real and disruptive effect on the respondent’s business or require cogent evidence of the impact of loss of reputation.