When time is critical—the balance of convenience (International SOS Assistance UK Ltd v Secretary of State for Defence)
Public Law analysis: This case concerns a successful application submitted by the contracting authority under regulation 96 of the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102, to lift the automatic suspension imposed by regulation 95(1), alongside the refusal of a request for an expedited trial by International SOS Assistance UK Ltd (the claimant). The judgment highlights the court’s careful consideration of urgency surrounding the implementation of new arrangements, in this case, the provision of medical services to military personnel overseas. The case provides useful clarification on the factors considered when determining whether to lift an automatic suspension. It highlights the court’s approach in weighing the potential advantages to the contracting authority of lifting the suspension against the interests of the claimant and the wider public in maintaining it, particularly where lifting the suspension could enable the award of a contract offering additional benefits beyond those currently in place. The judgment places a spotlight on the inherent difficulties in assessing damages, noting that such calculations require consideration of complex and uncertain hypothetical scenarios. As a result, the court concluded that damages could not be regarded as an adequate remedy for either the claimant or the contracting authority in this case. Considering then the balance of convenience, Mr Justice Eyre determined that the public interest in implementing the new arrangements promptly, particularly given consideration to the operational readiness and national security concerns, outweighed the claimant’s risk of uncompensated loss, such that the suspension was lifted and the request for expedition refused. Written by Sam Pringle, senior associate and Charlotte Jones, trainee solicitor at DWF Law LLP.