Key Facts
- •Teleperformance Contact Limited (TCL) challenged the Secretary of State for the Home Department's (SSHD) award of four contracts to VF Worldwide Holdings Ltd (VFW) for visa and citizenship application services.
- •The procurement involved five geographical lots with a total estimated value of £1.2 billion.
- •TCL was awarded Lot 5 but lost Lots 1-4 to VFW.
- •SSHD applied to lift the automatic suspension under regulation 95(1) of the Public Contracts Regulations 2015, preventing them from entering into the contested contracts.
- •TCL argued damages would be inadequate due to potential losses for the wider Teleperformance group, including VAC closures, redundancies, and reputational damage.
- •SSHD and VFW argued that only TCL's losses were relevant to the adequacy of damages.
Legal Principles
American Cyanamid test for lifting automatic suspension: (1) serious issue to be tried; (2) adequacy of damages for claimant if suspension lifted; (3) adequacy of damages for defendant if suspension remains; (4) balance of convenience.
American Cyanamid v Ethicon [1975] AC 396, Camelot UK Lotteries Ltd v Gambling Commission [2022] EWHC 1664 (TCC)
In considering adequacy of damages, the court generally focuses on the claimant's losses, not those of related entities.
Circle Nottingham Limited v NHS Rushcliffe Clinical Commissioning Group [2019] EWHC 1315 (TCC), Boxxe Limited v Secretary of State for Justice [2023] EWHC 533 TCC
Section 37(1) Supreme Court Act 1981 grants broad discretion to grant injunctions where just and convenient.
Bath and North East Somerset Council v Mowlem Plc [2004] BLR 153, AB v CD [2014] EWCA Civ 229
In assessing adequacy of damages, the court can consider irrecoverable losses, including intangible losses, but primarily those of the claimant.
AB v CD [2014] EWCA Civ 229, Lauritzencool AB v Lady Navigation Inc [2005] 1 Ll Rep 260
The purpose of the Public Contracts Regulations 2015 is to provide remedies to those with an interest in obtaining a particular contract, not to sub-contractors or parent companies.
IGT Game Technology PLC and others v The Gambling Commission [2023] EWHC 1961 (TCC)
Outcomes
SSHD's application to lift the stay was successful.
Damages were deemed adequate for TCL; SSHD would suffer irremediable losses from delays, including a gap in services and delayed implementation of contract benefits.