On 13 March 2023, the High Court handed down judgment in Boxxe Limited v The Secretary of State for Justice  EWHC 533 (TCC) (judgment available here).
The High Court (Constable J) has ruled that the automatic suspension should be lifted in respect of a c. £30m contract for digital and audiovisual equipment for use by His Majesty’s Courts and Tribunals Service (“HMCTS”).
The Judge held that damages would be an adequate remedy for the Claimant and, therefore, the automatic suspension should be lifted; that damages would not be an adequate remedy for the Secretary of State as there would be avoidable failures and delay to the improvement of the Court Service, HMCTS would lose the first year of the funding it had secured from HM Treasury and that, given rising prices, there was a risk the Competition itself may have to be abandoned. Given these findings the balance of convenience favoured lifting the suspension.
The Court’s judgement provides important guidance on the legal principles applicable to applications to lift automatic suspensions in procurement disputes. In particular, it confirms (in line with recent authority) that where damages are an adequate remedy for the Claimant, the suspension should be lifted even if a speedy trial can be accommodated, and also that the interests of a sub-contractor should not be taken into account when considering the adequacy of damages for the Claimant.
The case is also of interest concerning the correct approach to calculating the limitation period in procurement disputes. The Secretary of State argued that the claim had been issued a day out of time, so that there was no serious issue to be tried. The Claimant argued that the day on which knowledge of the grounds arose was not to be counted in the thirty-day period for limitation. The Judge decided that there was a serious issue to be tried on limitation for the purposes of the application, although he acknowledged that there appeared to be a formidable line of authority supporting the argument that the date of knowledge was included in the limitation period. He considered that the point should be left for fuller argument on a strike out application (which has already been issued).
Rupert Paines and Oliver Mills acted for the Secretary of State for Justice, instructed by the Government Legal Department.