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

Although the Defence asserts, at [42], that the breaches alleged by the Claimant were not sufficiently serious to warrant an award of damages, before me the Defendant contended that the prospect of such a conclusion being reached was so low that it could be disregarded. It said that the risk of such a conclusion was, therefore, not a factor meaning that damages would not be an adequate remedy for the Claimant. In those circumstances Mr Williams KC submitted that the Defendant should not be required to undertake not to rely on the “not sufficiently serious” line of defence. He submitted that this was the approach which Constable J had taken in Unipart Group Ltd v Supply Chain Coordination Ltd [2025] EWHC 354 (TCC) at [53] and [54] and that the solution of an undertaking being given, which had been adopted in Boxxe Ltd v Secretary of State for Justice [2023] EWHC 533 (TCC), was neither appropriate nor necessary here. However, as a fallback position, if it was necessary for it to do so in order to obtain the lifting of the suspension, the Defendant would undertake not to pursue the “not sufficiently serious” line of defence set out in the Defence at [42].

There is no real prospect in this case that the court will uphold the claim but then find that the breach or breaches established is or are not sufficiently serious to warrant an award of damages. As I have explained above it will only be in a very rare case that a procurement claim will succeed but that the court will then find that damages are precluded because the breach on which the claim is founded is not sufficiently serious. Here, if the Claimant succeeds it will be because the court has accepted either that there was a significant lack of transparency or that there was a failure to treat Healix’s bid as an abnormally low tender or both. Those would inevitably be seen as serious breaches and the position would be very different from a case, such as Braceurself, of a single error in an otherwise properly conducted evaluation exercise.

In light of that assessment should I simply disregard the risk of the court ultimately concluding that the breaches are not sufficiently serious to sound in damages? The Defendant says that this was the approach taken by Constable J in Unipart and the one which should be adopted here. However, the assessment made by Constable J and the approach based on it were both rather more nuanced than indicated by the Defendant. Constable J did say in short terms at [54] that the risk of the “not sufficiently serious” argument succeeding was “sufficiently remote to be discounted”. However, that was as an alternative to his primary analysis which was set out in [53]. The circumstances of that case were very different from those here and the approach to the question of whether a defendant should be required to abandon a potential line of defence will necessarily be highly fact-specific. In Unipart there was a “litany of claims”. Constable J said that if all those claims were established the court would be unlikely to conclude that they were not sufficiently serious to warrant damages being awarded. He did, nonetheless, contemplate the possibility of only one of the many breaches being established and of the court concluding that such a breach was not sufficiently serious to warrant an award. Constable J said that such a circumstance could mean that damages would not be an adequate remedy for the claimant. However, he went on to point out that for the court to reach such a conclusion it would have to have concluded that the breach in question would be one of “very low culpability” and he regarded that as relevant to the assessment of the balance of convenience.

The circumstances here are very different from those which Constable J was addressing in Unipart. Here, instead of multiple claims there are four alleged breaches which resolve into two core groups of allegations. I have to remember that at the heart of and underpinning the American Cyanamid guidelines is the need for the court to take the course which creates the least risk of an injustice which cannot be remedied. In addition, the question of the adequacy of damages for the Claimant is to be approached on the footing that the court is considering whether it is just to confine the Claimant to its remedy in damages. The prospect of the “not sufficiently serious” defence succeeding is small but if it were to remain a live part of the Defence the Claimant would have to prepare to address that line of defence and could not guarantee that the argument would not succeed. It would not be appropriate for the Claimant to be required to prepare to confront that argument and to face that risk if the Defendant were to succeed in having the automatic suspension lifted. Moreover, the Defendant will suffer no real prejudice if it is required to give up that potential line of defence. Not only have I concluded that the circumstances in which that approach will be applied are unlikely to arise but that was the assessment urged upon me by the Defendant. In the particular circumstances of this case the just balance between the parties requires that if the suspension is lifted the Defendant be required to accept that it cannot pursue this argument.