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

The threshold for establishing that a company will suffer reputational damage as a result of no more than an unsuccessful bid is a high one. Firstly, for a commercial body, loss of reputation as such is unlikely to mean that damages are not an adequate remedy unless the court can conclude that it will lead to financial loss that is irrecoverable. That was the view of Stuart-Smith J in Openview Security Solutions Ltd v The London Borough of Merton at [39]. That is a straightforward proposition because the relevance of reputation to a commercial body is in its contribution to the success of the business. In any event, the very nature of the procurement process involves the premise that the relevant body is seeking the most economically viable tender evaluated against specified criteria. The fact that a bidder, even if an incumbent provider, is not successful does not in and of itself tarnish that company’s reputation. If, in due course, the court concludes that it ought to have been awarded the contract, that judgment establishes the rightness of its position. As Coulson J said in Sysmex (UK) Ltd. v Imperial College Healthcare NHS Trust [2017] EWHC 1824 (TCC) at [50]: “… it is fundamentally wrong in principle to say that an award of damages would not restore a reputation lost because of the rejection of a tender, but the award of the contract itself would”.

As the ICB submitted, it is only in respect of contracts of particular prestige that such an irremediable loss may be regarded by the court as suffered. In Medequip Assistive Technology Ltd. v The Royal Borough of Kensington [2022] EWHC 3293 (TCC) at [70]-[75], Eyre J drew together the cases in which the court had found the contract to be so prestigious. DHL Supply Chain Ltd. v Secretary of State for Health and Social Care [2018] EWHC 2213 (TCC) is illustrative as a contract for the provision of all medical devices and hospital consumables to the NHS.

The claimant’s position is that this particular UCC is market-leading such that a failure to bid successfully for this contract will have a negative impact on OPC’s reputation. Mr Beverley describes it as a flagship for OPC and Northamptonshire. He points to the fact that the price per patient of £93 is twice the price of other UCCs and at a level equivalent to an A&E service. He also relies on additions to the standard UCC specification including Wellbeing Advisers, Continuing Care, Sexual Health Liaison, a Safeguarding Team and Observation Bays. Ms Stansfield’s evidence to the contrary is that these are elements of care commonly delivered in the market by UCCs, primary care providers and hospitals. That is confirmed by DHU.

I am not persuaded that there is anything like a sufficient basis for me to conclude that this is a market leading contract such that there would be, or is even the potential for there to be, damage to OPC’s reputation that cannot be remedied in damages. As Ms Coyne submitted, if there are unique benefits under the new contract and if there is a judgment in the claimant’s favour, it can, in future tenders, rely on the fact that it provided those benefits under its contract for UCC Corby and should have been re-awarded that contract.

Mr Beverleyfurther sets out various examples of innovation by OPC and suggests that OPC will be unable to continue such innovation without the UCC Corby contract which is another aspect that cannot be remedied in damages. His evidence is that nearly 40% of the profit generated by the Corby contract has been used to fund innovation and that where found to be successful after trialling it has been rolled out to other sites. Without the profits from the Corby UCC contracts, the opportunity to trial and roll out such innovations will be lost and cannot be compensated in damages. I regard this suggestion as entirely speculative. There is no identification of any proposed innovation at Corby the benefit of which might be lost. There is no consideration of whether innovations can be trialled elsewhere at no or low cost particularly where they could result in costs savings on unprofitable contracts. By the same token, OPC is not losing any benefit that it may have from such innovation which it can refer to and/or introduce to future tenders. There is no evidence of any innovation which it would wish to undertake under the new contract or cannot undertake on other contracts. If there is any loss from wasted investment or any loss of opportunity, it is something that can be compensated and quantified. If the argument is no more than that there might be something that could be done that would improve OPC’s prospects of successfully bidding for other future contracts, it is utterly speculative.