HT-2025-000079 - [2025] EWHC 2634 (TCC)

The Claimant’s contention in this regard was that the circumstances of this case were akin to those of a case where the tenders had been evaluated by reference to undisclosed criteria. In such a case the evaluation of damages is necessarily speculative because the court has to make an assessment of the consequences of the actions which the claimant and the other tenderers would have taken if the relevant criteria had in fact been disclosed. In appropriate examples of such cases the court has accepted that damages will not be an adequate remedy for the claimant.

There is force in Mr Barrett’s submission that the circumstances here are analogous to an undisclosed criteria case. If the Claimant succeeds it will do so either (a) on the basis that the information provided in the ITT was insufficient and/or did not reveal the true position or (b) on the ground that Healix’s tender should have been treated as an abnormally low tender triggering the regulation 69 process and referral to the Cabinet Office. In order properly to assess the damages on either of those bases the court would have to address a counter-factual situation. It would have to consider what would have happened if the ITT had given substantially different information or what would have been the outcome of the steps which would have followed from treating Helix’s bid as an abnormally low tender. Each of those exercises would necessarily be difficult and speculative. In this regard I take account of the fact that in Covanta Coulson J had regarded an allegation that matters had not been properly clear to the tenderers as akin to an allegation that the evaluation process had been made by reference to undisclosed criteria (though this was only one of the factors which the judge concluded would cause difficulties in the assessment of damages in that case).

I am satisfied that the difficulties in the calculation of the damages in this case if the Claimant succeeds in established the breaches alleged will be such that it cannot safely be said that damages will be an adequate remedy for the Claimant. It follows, using the alternative way of looking at the same issue, that there is a real risk of injustice if the Claimant is confined to its remedy in damages.