HT-2024-000378 - [2025] EWHC 354 (TCC)

Both Mr Coppel KC and Ms Hannaford KC argue that the present case is one of the relatively unusual cases where difficulties of assessment of damages would give rise to potential injustice if DHL were confined to that remedy. Mr Coppel KC relies upon another passage from Stuart-Smith J (as he then was) in Openview, in which he said:

“30.

The Court has not been deterred by difficulty of assessment as such. But it has recognised that the more variables are fed into a "loss of chance" calculation, the more likely it becomes that the compensation recovered by the aggrieved party will not match the outcome after the features that were uncertain in prospect have resolved themselves and determined what in fact happens. One example illustrates the problem: if the procurement is limited to two tenderers there may be circumstances in which, even at the interim suspension stage, the Court can be confident that if the impugned successful tenderer had not been awarded the contract, the aggrieved one would have been. However, the more tenderers there are, the less certain this may be – leading to a discounting of the aggrieved tenderer's chance when calculating damages.”

The Judge then concluded his analysis on this topic with the following ‘tentative’ view:

It is said by Mr Coppel KC that the assessment for the Court in due course, were it to become necessary, could be particularly complex. He points to the facts that (a) in ruling upon the extent of DHL’s lost chances of winning the contract, the Court will be required to take into account the position of four different bidders, the three which have brought claims, and GXO; (b) two of those bidders, Wincanton and Unipart were not permitted to submit final tenders so it is not known, and the Court must seek to predict, what those tenders would have stated and how highly they would have been marked, as compared to DHL and GXO; and (c) the nature of DHL’s claims, in particular those complaining of the application of undisclosed criteria and the involvement of Mr Holmes, require speculation as to how bids would have been different if SCCL had acted lawfully, and then how those modified bids would have been marked. Ms Hannaford KC relies upon these issues and adds the complexity within Unipart’s claim which alleges undue influence of one of the evaluators, ‘JT’.

Ms Sloane KC points out, in response, that in DHL’s Amended Particulars of Claim damages are not sought on the basis of a loss of a chance. It claims squarely that but for the breaches it would have won. It is correct, therefore, that the concern raised as to the difficulty of calculating the lost chances of winning are presently academic at least in respect of DHL. Unipart’s claim is based upon lost opportunity. Considering the substance of the point, the fact that there will be more than two bids to consider is not of itself a particularly troubling point: indeed, it is axiomatic in a ‘loss of a chance’ claim (if there are only two bidders, the issue is binary), and there are other authorities where multiple bids are considered. As to the prediction of what the final tenders would be for those that did not submit them, it will be for those parties to provide by way of evidence (if they are to establish the chance they have lost) what that tender would have been, which the Court will assess, no doubt in the face of criticism from others. I accept that this adds a layer of complexity and variability, but in the context of a loss of a chance analysis, not one which a Court will be unable to assess fairly. Similarly, I accept that conflict of interest/undue influence are more nuanced cases than those which rely solely on incorrect application of disclosed criteria, because the counter-factual is not as readily obvious. However, taking the undue influence point, considering the counter-factual is in fact all part of the exercise the Court is likely to have to consider to determine whether there has in fact been undue influence in the first place: a claim that X actually influenced Y may well need to consider, when determining liability, what Y would have done but for X’s conduct i.e. was there any ‘influence’? The liability investigation then, of itself, goes a long way in providing the necessary counter-factual for the purposes of bid evaluation output and the assessment of the loss of a chance.

Whilst accepting therefore that this is a more complex case than many, I do not regard it as one where the number of variables is so complex that the Court will not be able to assess damages, including loss of a chance (to the extent a party claims that) in accordance with the appropriate legal principles.