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

The parties take markedly different stances as to the earliest time when the matter could be ready for trial if the court were minded to expedite the hearing. The Claimant submits that the trial could be concluded within 3 days and has put forward a timetable which would provide for a trial in March 2026. For his part, the Defendant says that the trial would take 4 – 5 days. More significantly, he disagrees with the Claimant’s assessment of the time by when the case could be ready for trial. The Defendant’s position is set out in the witness statement of Suleman Ola. Mr Ola says that disclosure will take 6 months (including 2 months for the Defendant to undertake a procurement exercise to identify an e-disclosure provider) and that the preparation of witness statements would take a further 4 months thereafter. As a consequence, the Defendant says that the earliest the matter could be tried would be November 2026.

The timetable envisaged by the Defendant is unduly prolonged. The issues in the case are comparatively narrow and the Defendant’s timetable overestimates the complexity of both the disclosure exercise and the preparation of witness statements. In addition, I am not persuaded that in the circumstances of this case the insertion of a 2 month period for the Defendant to identify an e-disclosure provider can be justified. I am, nonetheless, satisfied that the timetable put forward by the Claimant is unrealistically tight. Not only is the Defendant right to say that the trial will take 4 rather than 3 days but the periods which the Claimant proposes for disclosure and the preparation of witness statements are unrealistically short. Disclosure and the preparation of witness statements are important exercises and adequate time must be allowed for them to be performed properly.

It is my assessment that even with the imposition of a rigorous timetable the matter could not be ready for trial until the early part of the Easter Term 2026 with a hearing in the latter part of April 2026. There would need to be a proper period of time for consideration of the judgment and it follows that the outcome of the trial would be unlikely to be known until the end of May 2026 (or perhaps a little later).

I have already indicated that I will proceed on the basis that a 12 week mobilisation period will be needed. Therefore, if the claim ultimately fails it will not be until the latter part of August 2026 that the new arrangements would come into effect. That would be some 16 months after the envisaged start date and well into the initial 3 year period of the Contract. If the suspension is lifted now the new arrangements will come into effect within about 12 weeks and so by early January 2026. The difference between the positions with and without expedition (on the assumption that the claim fails) is, therefore, a period of 7 -8 months. I will approach the weighing of the balance of convenience on the basis that if the suspension is maintained then it will be appropriate to expedite the hearing of the trial (that being the approach which is more favourable to the Claimant) and will do so on the basis of that period of difference.

The Defendant is concerned as to the lawfulness of any further extension of the existing contract beyond 31^st December 2025. The Defendant’s concern is that if it were to agree such an extension with the Claimant it would be at risk of challenge. Fraser J, as he then was, addressed such a concern in Lancashire Care NHS Foundation Trust v Lancashire CC [2018] EWHC 200 (TCC) at [31] – [34] and took the view that such a concern was misconceived. Mr Williams submitted that Fraser J’s analysis at [33] was obiter and, in any event, incorrect although he did not address the point in great detail. I do not accept that there is any force in the Defendant’s concerns and I take no account of them in weighing the balance of convenience. The analysis set out by Fraser J is compelling. It is possible that there would have been scope for criticism of the Defendant if it had simply extended the existing arrangements indefinitely without seeking to lift the suspension (though even that is debateable). However, that is not what has happened. The Defendant has applied to lift the suspension. If the application is refused there will be no basis for criticizing the Defendant for extending the current arrangements. It is unrealistic to suggest that a court would accept that the law was such that the Defendant could not continue the current arrangements in these circumstances but that instead, its only lawful options were either to allow the arrangements to lapse without a replacement or to commence a new procurement exercise to find a provider for the period until the conclusion of the current proceedings.

The balance of convenience is, therefore, to be assessed on the basis that if the suspension is not lifted the current arrangements will continue and that the new arrangements will not come into operation until the end of July 2026 at the earliest.

The interests of Healix are a factor in the balance of convenience and operate in favour of the lifting of the suspension. The maintenance of the suspension is adverse to those interests to the extent that without the suspension Healix will not be in a position to perform the Contract and to receive payment for doing so. However, the witness statement from Mr Clancey of Healix comments on the effect on Healix in only the most general of terms and does not point to any further specific impact from the maintenance of the suspension. The impact on Healix is, therefore, a relevant factor only to the extent of that general impact.

The central argument for both the Claimant and the Defendant related to the public interest. It hardly needs stating that ensuring that military personnel serving overseas receive proper medical assistance is a matter of high public importance. The parties disagreed as to the consequences of that public interest in the circumstances of this case.

The Defendant says that the Contract brings benefits over and above those of the current arrangements and that the maintenance of the suspension is harmful to the public interest because it delays the date when those benefits will be received. In addition, the Defendant points to the changing world circumstances addressed in the Strategic Defence Review and to the need for the United Kingdom to move to warfighting readiness. It says that it is desirable that the new arrangements for providing medical services are introduced now rather than later in what might be a time of conflict. Such a course is desirable, it says, because introduction might not be possible in a time of conflict either because of other demands on the time of those who would be engaged in implementing the change of arrangements or because of the need to avoid making a change which might involve the risk of confusion for those serving overseas in a time of conflict.

The Claimant contends that a number of the points advanced by the Defendant do not bear the weight which the Defendant placed on them. It does not accept that the new arrangements are materially different from those currently in place and questions whether the differences are in fact beneficial. In addition, the Claimant submits that the Strategic Defence Review does not envisage a move to conflict in the period running up to any expedited trial. The Claimant couples this with reference to speeches by senior officers explaining the need for the United Kingdom to prepare for conflict while suggesting a lesser degree of urgency than that for which the Defendant now contends. In addition, the Claimant points out that the contracts which led up to the current arrangements were re-tendered in 2016 and in 2019. At both times United Kingdom forces were engaged in operations in Afghanistan and by re-tendering the Defendant must have accepted that it would be possible to change provider in a time were forces were so engaged.

However, the Claimant’s main argument was that the public interest should be seen as a factor operating in favour of keeping the suspension in place. Through Mr Barrett, the Claimant accepted and emphasized that there is a strong public interest in ensuring the provision of medical assistance for military personnel serving overseas. It says that this public interest is best-served by the continuation of the suspension and does so on the basis that it asserts that there are concerns as to the capacity of Healix to provide those services adequately. The Claimant advances two lines of criticism of Healix. First, it says that while the Claimant obtained the highest possible score against each of the criteria in the evaluation exercise Healix was scored at 70 rather than 100 in respect of 5 criteria. Second, in the witness statement of Giles Hill it contrasts the scale and capacity of the Claimant with those of Healix and doubts whether Healix has the capacity to provide the services required under the Contract. The Claimant’s argument that the court should regard the public interest as favouring the maintenance of the suspension because of doubts as to the capacity of the successful tenderer is an unusual one. Mr Barrett accepted that he was not aware of any case in which the court had found that the general public interest (as opposed to the interest in ensuring that procurement exercises are conducted lawfully) justified the maintenance of the suspension let alone one where it had done so on the basis of concerns as to the capacity of the successful tenderer.

The assessment of what is required by the public interest is ultimately a matter for the court. Mr Barrett was right in his submission that the Defendant does not have carte blanche and cannot simply assert that the public interest requires the lifting of the suspension. In that regard it is to be remembered that there is a public interest in ensuring that procurement exercises are conducted in accordance with the Regulations and that the automatic suspension is part of the arrangements put in place to protect that interest. Nonetheless, the court’s assessment of what is required in the public interest must take into account the Defendant’s position and, as I explained in Medequip Assertive Technology at [109] and [110] the relevant public body will be better-placed than the court to assess whether and to what extent proposed new arrangements are beneficial.

I reject the Claimant’s contention that there would be a legitimate basis for concern as to the adequacy of the provision of the general medical support if that support were to be provided by Healix rather than by the Claimant let alone that there would be a concern which should operate as a factor against the lifting of the suspension. I do so in light of the following matters:

I accept that the Claimant genuinely believes that it would perform the Contract better than Healix but that will be true of almost all unsuccessful tenderers. The Claimant has not, however, established any proper basis for believing that there is a real risk that Healix would not perform the Contract adequately.

It follows that the balance of convenience is to be assessed on the following basis. If the suspension is maintained the services will be provided by the Claimant as to whose capacity and competence there is no question but with that provision being under the current contract with the new arrangements under the Contract not coming into effect until the end of July 2026 at the earliest. If the suspension is lifted the medical services will be provided from about January 2026 under the new arrangements and by Healix. Healix will be a new provider but one which has been assessed by the Defendant as capable of providing the services to the necessary standard.

Against that background there is considerable force in the Defendant’s contention that there will be a benefit in moving to new arrangements and that it is desirable for that benefit to be obtained sooner rather than later with the consequence that the public interest favours lifting the suspension. The Claimant questions the extent to which the Contract is materially different from the existing arrangements and, accordingly, questions the asserted benefits of the new arrangements. There is undoubtedly scope for different views on those matters but as noted above, and as explained in Medequip Assertive Technology, the question of whether the change is beneficial is one in respect of which the court must accord considerable deference to the views of the relevant public body. There is also considerable force in the Defendant’s contention that it is desirable that the new arrangements are introduced other than in a time of conflict. It is to be hoped that the United Kingdom will not be involved in serious conflict in the time it will take to determine the claim. There is, however, an inherent degree of uncertainty and unpredictability in that regard. Although the Strategic Defence Review does not suggest that conflict will start in a matter of months it does indicate that a move to warfighting readiness is “essential” and points to a heightened risk of conflict. The Claimant says that the change from provision under the current contract to provision under the Contract could still be made in a time of conflict. That may well be so but there is evident force in the Defendant’s contention that it would be better for changes to the arrangements governing the provision of medical services to military personnel overseas not to be made in a time of conflict if that can be avoided. The change could be effected in such circumstances but it would be better for it to be effected other than in a time of conflict. That means that there is force in the Defendant’s argument that the public interest calls for the change to be made sooner rather than later.

I come back to the crucial task of seeking to identify the course which runs the least risk of causing injustice if it turns out to be wrong. Does the public interest in obtaining the benefits of the new arrangements and in doing so sooner rather than later justify running the risk that the Claimant will ultimately be successful but will then have suffered a loss which cannot be adequately compensated in damages? I do not underestimate the risk to the Claimant but the desirability of obtaining the benefits and of doing so as soon as possible is such as to outbalance that risk and to cause the balance of convenience to fall in favour of lifting the suspension.