Further Success as Another Automatic Suspsension is Lifted by High Court

24 Jul 2012

The Newcastle upon Tyne Hospital NHS Foundation Trust v Newcastle Primary Care Trust [2012] EWHC 2093 (QB)

The latest judgment of the High Court on an application to lift the automatic suspension of a procurement process has resulted in a further victory for members of Monckton Chambers.  Rob Williams, instructed by Hempsons and acting for four Primary Care Trusts in the North East of England, successfully persuaded Mr Justice Tugendhat that the suspension of a procurement process for diabetic retinopathy screening services should be brought to an end, allowing the PCTs to proceed to award the contract.

The application was in fact made some way into the proceedings.  The Defendants had been planning to rely on the incumbent service providers, which included the Claimant, whilst the proceedings were resolved.  However, one of those service providers subsequently decided that it was unable to extend the existing arrangements.  The Court accepted that it had been reasonable for the Defendants to bring forward an application to lift the suspension at that point in time.

As to the merits of the claims made, the Judge decided that “Mr Williams had very much the better of [the] argument” both as to liability and limitation, but decided the application on the balance of convenience.  He found that, although the Claimant hospital had an interest in the quality of service provision, damages would be an adequate remedy for the Claimant in its capacity as an “economic operator”.  The Judge also found that it would not be just to put the Defendants in a position where they had no choice but to appoint the Claimant to provide services on an interim basis when they did not consider that to be appropriate course.

Members of Monckton Chambers have now succeeded in five successive applications to lift the suspension of procurement processes subject to regulation 47G.

Click to view the judgment in Newcastle Upon Tyne Hospital NHS Foundation