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

Declaratory relief and/or damages will be an adequate remedy for Millbrook if it eventually succeeds at trial; Millbrook was content to accept that outcome provided DCC conceded the Francovich criteria so there is no injustice in confining its remedy to damages at this stage.

If the suspension is maintained, DCC will be prevented from offering CES and TECS services in the way that it considers best and will be unable to introduce the desired improvements and costs savings for a minimum period of 2 years and possibly longer.

Maintenance of the suspension would effectively force DCC to contract and mobilise with the party that it considers to be the losing party; if the claim fails, DCC would then (assuming it was in a position to do so) have to unravel that process and restart again with NRS. There is a risk that the critical injection of fresh competition from regular tenders and the incentives for improved services and innovation from rival providers, which is a key objective of the procurement regime, would be undermined.

Continued suspension also means that vulnerable service users and taxpayers in Devon will be deprived of benefits in terms of the latest data protection and cyber security standards, the most appropriate equipment for best value for money and may suffer reductions to local authority health and social care budgets with knock-on adverse consequences for other residents needing NHS services, as vulnerable users may stay longer in hospital or other care centres as they cannot be treated as effectively at home.

The winning bidder, NRS, will suffer adverse consequences as it will be prevented from supplying CES/TECS services pursuant to the new contracts for at least 2 years if the suspension is maintained and Millbrook’s challenge is ultimately unsuccessful. That impact is not confined to its wasted bid and mobilisation costs but mirrors the harmful impact on its costs base and other contracts that the Claimant allegedly suffers from the loss of the new contract. The interests of the Interested Party must also be weighed in the balance: Alstom, §72; Medequip, §114 and Camelot, §126.

There are competing public interests in ensuring the procurement is conducted compliantly and awarded to the right bidder versus ensuring that the competition is implemented as planned and as soon as possible. To some extent, that tension will be resolved by the trial and if issues are evenly balanced, the Court is to preserve the status quo: Alstom, §73 and Camelot, §126.

The maintenance of the suspension for a period over 2 years would, in effect, enable the existing provider to extend its incumbency for a significant period of time beyond the 7 years it originally contracted and tendered for. That is not the intended outcome of the procurement regime.

I take account of the possibility that the Claimant may be right and that it has been deprived of the new contract through a non-compliant procurement process. The Claimant has raised a number of criticisms of NRS’ performance which, it contends, cast doubt on its ability to deliver the contract specifications in light of the cyber security incident as well as other alleged financial and service issues. It relies on other indicators, including a comparison of its Trustpilot reviews and recent coroner’s inquiries. Mr Taylor for the Interested Party provided a strong rebuttal against those allegations in written and oral argument, relying on the evidence of Mr Fotheringham. I am unable to enquire into the respective merits of the parties’ competing positions at this stage, which is a matter for trial. But I also take account of, and place weight upon, the Defendant’s procurement process and its confirmation, through a separate due diligence exercise, that NRS satisfied its operational and financial standing requirements.