HT-2025-000023 - [2025] EWHC 744 (TCC)

Millbrook has offered a cross-undertaking in damages to meet any monetary losses suffered by DCC and NRS. The issue is whether DCC, as a public authority, will suffer losses that are not measurable in financial terms, for instance if it is unable to provide particular services for the public or be able to provide those services in a particular way for an extended period of time: Medequip, §47.

Mr Barrett KC, in written and oral argument, emphasised the aims of the new contract to introduce enhanced CES and TECS services and significant cost- savings since the last renewal of the contract 7 years ago. In particular, the contract specifications incorporate best practices in terms of data security and cyber security, revised KPIs, a new credit model moving from a 85% credit model to a 100% credit model; new technology enabled services and introduces a new strategic partnership to resolve issues and deliver best value service as well as improved monitoring : Sillars 1, §§45-47 and Sillars 2, §§69-73.

DCC also claims that suspension of the contract would defer additional significant annual costs savings which have already been factored into Defendant’s budget forecasts: Sillars 1 , §47. The Claimant has not addressed this point in evidence. These losses do not appear to be compensable in damages. If DCC is unable to realise those savings this year, it will have to recover them from reductions to the Defendant’s NHS health and social care budget for this financial year (as well as other NHS organisations in Devon), which will translate into service cut-backs for vulnerable users this year that would not be remedied in damages at the end of trial.

I am not persuaded by Millbrook’s response that it has agreed an extension to its existing contract and, in essence, is already replicating the new standards introduced by the new contract or will do so for the term of any extension. Offers to extend the existing contract and change the specification to offer some of the benefits of the new contract (even if that were lawful under procurement law) have been regarded as unsatisfactory: see Teleperformance Contact Limited v SSHD [2023] EWHC 2481 (TCC) §66 and One Medicare v NHS Northamptonshire ICB [2025] EWHC 63 (TCC), §54-55.

Mr Halliday appeared to suggest that Millbrook could start to offer upgraded CES and TECS services immediately after 1 April 2025 but that is inconsistent with its own bid, which indicated that it would need a 3-4 month transitional period and would need to implement a new IT system. Mr Sillars’ evidence for DCC is that it is not as straightforward as simply changing the contractual specifications. The new strategic partnership relationship introduces a move away from a fixed catalogue model towards the provider using its industry expertise to survey the market and making proactive proposals for equipment adjustments to ensure that users have the most appropriate equipment and best value for money. That new operating model and IT system will require time to implement and train staff; time will also be needed to ensure compliance with the latest data security requirements and for introducing transparency and monitoring for DCC: Sillars 2, §45-61.

The Claimant’s arguments ignore the fact that the new contract was intended to deliver significant benefits for vulnerable users, in terms of technology-enabled services and appropriate equipment at the best possible prices as well as deliver significant cost savings for the local authority, meaning that its health and care budgets would stretch further for more users to be cared for in their homes and reduce pressure on NHS beds and other scarce resources. It also denies the local authority’s agency to decide how best to provide public services which is not measurable in financial terms: Medequip, §§47 and 108-110; One Medicare, §68.

There is therefore a realistic risk that damages will not be an adequate remedy for the Defendant.