[2025] EWHC 2664 (TCC)

With that, I turn to balance of convenience. It is in this context that I need to consider when a trial is likely to take place, and the Expedition Application.

The present position is this: the current extension to the Existing Contract made between Involve and DWP will expire on 28 February 2026. If the suspension is in place and there is no further extension, then DWP will be without any video-conferencing facilities. Further, the Procurement was undertaken within the aegis of DWP’s Dynamic Purchasing System (“DPS”). The DPS itself is due to terminate also on 28 February 2026. If DWP is not able to award the New Contract by that date, then it will be necessary to undertake a fresh procurement which itself will engender further delay.

So far as the question of any extension to the Existing Contract is concerned, matters have moved on significantly since Involve put in its evidence and filed its Skeleton Argument. Its original position was to say that IHG, the owner of AA, had indicated verbally that it would be prepared to enable Involve to grant an extension, but there was little more detail than that. This, of course, is a case where the grant of an extension is not entirely in the hands of the incumbent supplier, since Involve is simply a licensee of IHG.

Then, during the hearing, Mr Patel KC for Involve produced an email from IHG dated 3 October 2025 which said this:

“Hi Rob/Mick,

Thanks again for your time last week.

I’m pleased to confirm that we are happy to support an extension of the DWP contract for the provision of the Attend Anywhere service beyond the current expiry date of 28th February 2026. We’re open to discussing the length of the extension based on the customer’s requirements, and any extension would continue under the existing terms and conditions of the current contract…”

Given that the date of this email is 3 October, it is unclear to me why it could not have been produced prior to the hearing. In any event, while it is an encouraging development, if matters were left there, it would be unclear as to how long any extension might be.

As it seemed to me that there was in principle a willingness to grant an extension with the consent of IHG, I enquired of Mr Patel KC whether his clients would be willing to undertake to the court that the Existing Contract will be extended on the same terms for a period of up to 12 months as from 28 February 2026. Any such extension would obviously provide a very useful breathing space, as it were. After taking instructions, he confirmed that they would be so willing. At the end of the hearing on 9 October I invited Involve to provide any further information that might be relevant on the question of extension.

They did this on Monday 13 October, when Involve’s solicitors wrote to the Court and enclosed the licensing agreement made between Involve and IHG in redacted form. This shows that in fact, Involve has the power to extend underlying contracts, such as the Existing Contract for the provision of AA, in the event of termination of the licence agreement and for an indefinite period. This, it was said, reinforces the undertaking which Involve says it will give, as well as supporting the position taken by IHG.

Given all of that, I consider that it can safely be said that insofar as is necessary, the Existing Contract will indeed be extended beyond 28 February 2026. To the extent that no New Contract was awarded before 28 February 2026 and it was therefore necessary to run a fresh procurement, there should be ample time to do so before the extension expired on 28 February 2027. The period of extension should also be sufficient to allow for the transition period from the Existing Solution to the New Solution which is now put at 4.5 months – see JE3. What all of this means is that there is now no risk that the maintaining of any suspension to trial will mean that DWP will lose its ability to provide any video-conferencing. The prejudice to it consists simply in the delay to bringing in the New Solution with the various benefits which that will entail.

On one view, it might be said that this extension is sufficiently generous to allow for a trial to take place even in late 2026, and certainly not one which needs to be expedited.

On the other hand, if it is possible to have a trial at some point before 28 February 2026, it would be advantageous because it would then eliminate the need for a fresh procurement.

I therefore turn to the parties’ respective positions on the question of trial date. The position taken by Involve in its Expedition Application is that the trial should take no more than three working days and that it can fairly be held at some point in December 2025. That of course assume that judicial resources can be made available as a matter of expedition.

DWP’s position is that the trial will require a minimum of two working weeks and that it is impossible to have a fair timetable running up to such a trial in December 2025, even if such a trial could be listed.

As it so happens, the court can now accommodate a two-week trial which commences on 13 January 2026, without the need for any order for expedition. If the trial were to take place then, it may be possible (I say no more than that) for a judgment to be given a little time before 28 February 2026 so that if DWP was successful but the suspension in the meantime had been in place, it could then award the New Contract to Accenture.

The question then becomes whether a trial could fairly be held in January 2026. It is to be recalled that the issue between the parties on the claim is relatively narrow. It concerns one decision in relation to one qualifying question and a re-moderation of that decision. The key time period is 8 November to 19 December 2024. Within that, the relevant dates are 8 to 18 November 2024 which covers the original moderation, and then 19 December 2024 when the re-moderation took place.

DWP says that it intends to call up to seven witnesses, including the four evaluators (because one of the evaluators from the first moderation was not available for the second moderation and had to be replaced). Other witnesses would be from DWP’s Digital Team. Involve says that it would call one or two witnesses and their evidence would be very limited. Although the dispute is of a narrow compass, I can see that it might not be possible to start and finish a trial within effectively three working days if the first day was pre-reading for a judge, and even if openings were brief. In my view, the appropriate trial length would be up to 2 working weeks.

So far as disclosure is concerned I also think that this should be of a narrow compass. The preponderance of documents will of course come from DWP as the decision-maker. It has already provided a significant amount of information and documents to Involve. Indeed, at one point, DWP informed Involve that the latter had now received the key documents where they existed. Notwithstanding that, Mr West KC argued that there would still need to be a further significant amount of time spent on completing the disclosure exercise. I disagree, and I think that disclosure (including dealing with the models for disclosure) could be completed relatively quickly.

It has been pointed out that Involve has nonetheless applied for some specific disclosure from DWP, although no hearing date has yet been obtained. However, even this is narrow: Involve seeks the notes of the new evaluator but DWP says they have already been disclosed. Then Involve seeks the documents evidencing the decision to re-moderate as to which DWP says that the decision was taken after verbal discussions and emails. Finally, Involve has sought documents containing the process for having a re-moderation. I do not consider that this application will add very much to the time spent on disclosure.

Against that background, it seems to me that a trial could take place in the near future. After all, the statements of case are closed and the areas of dispute have been articulated for some time. That said, even if the Court could make two weeks available in December 2025 (which is difficult at the moment), I think that would be too soon for the trial. On the other hand, I see no reason why the trial could not commence on 13 January 2026. There is no reason why disclosure and the provision of witness statements cannot be completed within two months from now, in other words by mid-December 2025. That will then allow a period of time for trial preparation and agreeing bundles, and written submissions can be produced in early 2026.

Nonetheless, DWP maintains that it should not be effectively pressurised into an early trial. In this regard, I need to say something about delay on the part of DWP in the context of these proceedings.

As already noted, Involve’s Particulars of Claim were served on 1 May 2025. By its letter dated 15 May 2025, DWP’s solicitors, being the GLD, sought Involve’s consent to an application to lift the automatic suspension and it explained its case for doing so in some detail. By 22 May 2025, DWP knew that Involve would not consent to a lifting of the stay because its solicitors said so in a letter of that date.

However, no application to lift the stay was made until 17 July 2025, almost 2 months later. This was a serious delay in proceeding, in my view. Mr Pasqualino so commented in paragraph 36 of his WS. At paragraph 20 of JE2, Mr Edwards responded by saying that DWP had to spend time undertaking due diligence and appropriate levels of assurance to ensure that the Application to Lift was properly authorised and that the right approach strategically was being taken, so that any perceived delay was simply the result of necessary co-ordination, legal preparation and internal governance.

I do not accept that this is a good reason for such a long delay. Paragraph 49 of Appendix H to the TCC Guide emphasises that applications to lift must be made expeditiously in circumstances such as this. Moreover, it is hard to see how DWP could have reserved its right to issue an application to lift without further notice to Involve, in its letter of 15 May 2025, if it was not already in a position from a governance point of view to do so. On any view, if it is being suggested that nearly 2 months was required to obtain some final clearance to issue the application already foreshadowed, that is an unacceptably long time, even taking into account a no doubt hard-pressed government department. One also needs to bear in mind that there should have been a degree of urgency on the part of DWP in any event since from its perspective, it was going to be in serious difficulties in providing a video-conferencing facilities to its customers at any time after 28 February 2026.

This delay has had serious consequences. The application was made two weeks before the legal vacation and it seems that the first step taken about listing the application, from counsel’s clerks, was on 31 July and then there were discussions about fixing dates going through most of August. Because of the vacation and counsel being away this took longer than normal and indeed it was only when I was alerted to the position on 2 September that I took steps to have the application listed at the first available opportunity, being 9 October. That date was fixed on 3 September.

Had DWP acted timeously, it could and should have obtained a hearing for the Application to Lift well before the end of the summer term. Had it done so, it might then have secured a trial this term. If the result of the delay is that DWP must now set to work to prepare for a trial in January 2026, then it is the author of that situation. Having said that, I am of the firm view that a trial commencing on 13 January 2026 does not in any event pose any serious problem for DWP in terms of production of WSs, disclosure and preparation – the trial can fairly be commenced on that date.

If all of this was an appropriate course to take, as I believe it is, then the balance of convenience would resolve firmly in favour of Involve. That is so, even though DWP may suffer some uncompensatable losses as a result of the delay in adopting the New Solution, to the extent set out above. The inability on the part of Involve to have the opportunity to win new contracts (as set out above) is a more serious matter, in my view.