[2025] EWHC 2664 (TCC)

The first question is whether damages would be an adequate remedy for Involve if deprived of the automatic suspension. If they are, then the suspension should be lifted without more.

There is detailed evidence before me on this question from Mr Pasqualino. I set out the relevant parts of his WS as follows:

“45 The new Contract is prestigious and would be the largest video platform contract delivered across the public sector in the United Kingdom. Being awarded the Contract would not only deliver commercial rewards in itself, but is also likely to be viewed by potential customers, and in the marketplace generally, as a “flagship” project which would immediately open interest and opportunities in other public and private organisations which might not be currently available to Involve. The successful award of the new Contract to Involve would give major public and private sector organisations confidence in engaging with Involve. It would also serve as an excellent use case to introduce the New Solution developed by Involve to major system integrators like BT, Capita, Serco, Vodafone and Atos, who bring together various component subsystems into a whole. These system integrators have large framework access, and the exposure of the New Solution developed by Involve to these private organisations (a number of whom are providers of assessment services to the DWP) via the new Contract would be invaluable, and could lead to them seeking to contract with Involve directly in order to use the New Solution for other lines of business in their organisations.

46 Development of the New Solution by Involve also represents a material change in direction for Involve's business, pivoting away from a pure services business delivered over or in conjunction with third party-owned technology, towards more direct provision of technology owned by Involve which would, subject to being awarded the Contract, lead in time to a business valuation greater than Involve would achieve as a pure services business.

47 The New Solution represents the first opportunity for Involve to offer proprietary, bespoke software solutions and, as I have explained above, the prestige attached to the new Contract would enable Involve to exploit bigger and more lucrative market opportunities with major system integrators as a result. This unique level of interest likely to flow from the new Contract, and the resulting opportunities to which I have referred to above, would enable Involve to develop its business model so that it has far greater direct product control, differentiating Involve from other similar providers in the market. This in turn will boost shareholder value and change the perception of Involve away from a business leveraging third-party intellectual property towards a business with important and valuable proprietary solutions of its own. By giving Involve the ability to diversity its product and service portfolio, it would also serve as a material hedge against the potential loss of other central government contracts which are critical to Involve's business. None of these benefits are readily quantifiable in damages.

48 Further, and as I mention above, the technology for the New Solution has been developed by Involve at considerable cost, and the New Solution contains a significant amount of valuable intellectual property. A failure by Involve to secure the Contract would compromise the willingness of Involve's shareholders to invest further in developments of this nature, which could impair Involve's ability to pivot in the direction of providing its own proprietary technology, rather than simply being a reseller of third party services.”

As to that, DWP makes a number of points. First, it says that the claim for loss of reputation and goodwill should have been pleaded. I accept that sometimes, this is done but if it is Involve’s case that such losses would not sound in damages it is hard to see that it needs to be. It is not an answer to say that a claim for such losses might get over the hurdle of remoteness, for example, and therefore should have been pleaded. Moreover, the point about loss of reputation was clearly intimated in the letter from Involve’s solicitors dated 22 May 2025.

Second, DWP says that it would appear from Involve’s own evidence that it is already a leading player in the industry, working with various government departments and has an excellent reputation. In other words, if its reputation is already established, there is no room now for an argument about loss of reputation. I do not consider that this is an answer to Mr Pasqualino’s evidence here. This is because he is saying that Involve had the opportunity to enhance its reputation much further now, by now taking on the role of a direct supplier in relation to a contract which is one of the largest of its kind.

Third, DWP says that notwithstanding the terms of paragraph 45 of Mr Pasqualino’s WS, there is not sufficient evidence that the New Contract was indeed a “flagship” or prestigious contract. I disagree. The first point to note about all of this is that Mr Edwards did not seek to dispute any of the facts alleged in those paragraphs in JE2. Indeed, he did not address them at all. It is correct that at paragraph 8 of JE2, Mr Edwards says that insofar as he has not dealt with a particular point he should not be taken as agreeing it. I also take note of the fact that Mr Pasqualino’s evidence was served at a late stage - on 29 September, for a hearing on 9 October which meant that DWP had only a few days to respond to it. Nonetheless, Mr Edwards was able to deal in detail with other parts of Mr Pasqualino’s evidence and it is very hard to see why he would have been unable to deal with the paragraphs in question if DWP had really wanted to tackle them. It is not said, for example, that such matters were outside his knowledge. So it remains the case that there is no specific evidence to contradict what Mr Pasqualino has said.

Further, there is no reason why Mr Pasqualino is not in a good position to speak about the importance of the New Contract, given his knowledge of the market in which Involve operates and the way in which video-conferencing facilities are provided and can be provided. Indeed, the importance of the New Solution is stressed by DWP itself in terms of what it says it will be able now do for its customers across all of its business lines by virtue of the New Solution.

DWP then says that there is not sufficiently detailed or “cogent” evidence as to the “specific but uncompensateable loss” that would flow in the absence of the New Contract. However, I disagree. On the basis of the prestigious nature of the New Contract and its significance, it seems to me to be plausible that major public and private sector organisations would now have the confidence to engage with Involve and after all, Mr Pasqualino does identify specific companies who are major system integrators like BT, Capita, Circo, Vodafone and ATOS which have large framework access.

The context to all of this, of course, is Involve’s specific intention now to be a direct creator and provider of its own video-conferencing product, as opposed to acting merely as a reseller. This would enable it to have far greater direct product control and differentiate its products from others in the market. See paragraph 47 of Mr Pasqualino’s WS.

The point is taken that there is no specific financial information provided in relation to these matters, and that is true, both as regards the development costs of Involve’s new “home-grown” product and also in relation to the returns to be made from further contracts which Involve would be able to make on the back of the New Contract. I do not see this as fatal to Involve’s position on the adequacy of damages. As to development costs, these are not the critical point here; indeed, in theory, they may be capable of being claimed as an alternative to damages for loss of profit on the New Contract itself. As for expected revenue from further contracts, it is hard to see what figures could be produced at this stage beyond saying that there is a specific and lucrative market out there which Involve could tap into.

In this respect, this case is quite different from TES where the contention was that, absent the putative contract, the claimant was facing financial ruin, and where, on that basis, the failure to adduce proper financial information, so that the Court was “kept in the dark”, was held fatal to the claim that damages would be an inadequate remedy.

Nor can it be said that the evidence adduced by Involve here is so unsatisfactory as to be rejected, in the way that the claimant’s evidence was in Alstom.

As for Vodafone, I take the point that one of the factors which Kerr J took into account was information provided by Fujitsu which mirrored the position taken by Vodafone. However that was not the whole story as his judgment makes clear. See paragraphs 85-87 thereof, cited at paragraph 32 above, which focus on the same sort of considerations as have been raised by Involve here.

Overall, and having regard to the particular facts of this case, I do not consider that the evidence provided by Mr Pasqualino can be dismissed as “mere assertion”. In my judgment it is plausible, and sufficient to support the contention made by Involve that being deprived of the New Contract would indeed expose it to serious losses of opportunity to develop its business in specific ways which could not be compensated by an award of damages. That being so, it is now necessary to consider whether damages would be an adequate remedy for DWP if the suspension is not lifted.