Boxxe Limited v The Secretary of State for Justice
[2023] EWHC 533 (TCC)
Teleperformance Contact Limited v The Secretary of State for the Home Department
6 October 2023
[2023] EWHC 2481 (TCC)
High Court
A company lost a big government contract and tried to stop the government from giving it to someone else. The judge said the losing company could be compensated with money, but the government would be harmed if the contract wasn't awarded quickly, so the government won.
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.