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

Even if there is a risk that OPC will cease to exist before trial, the ICB submits that that risk exists because of OPC’s own financial management – OPC has chosen to use this existing Corby UCC contract to subsidise other less profitable or loss making contracts; at the same time it has paid out substantial sums to shareholders and made significant loans but not made provision for the risk that it would not be re-awarded the profitable Corby UCC contract. Damages may not then be an adequate remedy but the justice of the case dictates that OPC cannot take advantage of the situation they have themselves created. Otherwise, there would be an incentive for bidders who form part of a group of companies to run down the financial security of the bidding company in order to be able to advance the argument that OPC relies on in this case. The argument is well made. In this case, however, I make it clear that there is no suggestion that this is a position that OPC has engineered for the purposes of opposing the application to lift the stay and merely reflects how OPC has run its businesses for some years.

Drawing the threads of these submissions together, in my view, there is evidence which establishes that the lifting of the suspension is capable of causing disruption to OPC’s business which cannot be adequately compensated in damages. Even if OPC undertakes the cost cutting which it and the ICB contemplate and/or re-negotiates some of its non-profitable contracts, that in itself is a disruption which is difficult or impossible to quantify and compensate. However, I am not at all satisfied that that amounts to an arguable case that there will, in fact, be such disruption because of the more realistic likelihood that OPC will be financially supported. I would certainly not accept that there is a real risk that OPC will cease to exist by the date of trial. Even if I am wrong as to whether there is an arguable case that damages would not be an adequate remedy, these are matters that weigh heavily in the balance of convenience which I will come to. Similarly, the fact that the financial position of OPC is one generated by its apparent decision not to make any provision for the possibility that it would not retain the Corby UCC contract is material.