High Court judge lifts automatic suspension of £400m property services framework, rules damages would be adequate remedy

A Technology and Construction Court judge has lifted the automatic suspension which arose from a challenge to a procurement by the Mayor’s Office for Policing and Crime (MOPAC).

The ruling in Kellogg Brown & Root Ltd v Mayor's Office For Policing And Crime & Anor [2021] EWHC 3321 (TCC) concerned a £400m framework agreement and call-off contract (“the Proposed Contract”) for the provision of services designed to support the efficient running of MOPAC's estate of properties through contract, financial and operational management of the property supply chain, supported by systems and information technology. MOPAC referred to this type of contract as an "integrator" contract.

Kellogg Brown & Root (KBR) is the incumbent provider of support services to MOPAC pursuant to a contract entered into in April 2013 for a facilities management integrator role. Under that contract, which is due to expire in April 2022, KBR provides support to MOPAC for the management of its estate and supply chain.

MOPAC had applied for the automatic suspension to be lifted, while KBR subsequently sought an expedited trial.

Mrs Justice Joanna Smith said: “In conclusion, in my judgment, the balance of convenience clearly favours the lifting of the suspension. This is not a case in which an expedited trial is appropriate and the potential delay if the suspension is not lifted is likely to be significant. There is a public interest in MOPAC achieving the benefits and financial savings it envisages from the Proposed Contract without the period of substantial delay that would otherwise ensue.

“Following the American Cyanamid test, I conclude that damages would be an adequate remedy for KBR, that there is a risk that damages would be an inadequate remedy for MOPAC and that the balance of convenience does not support the grant of an injunction. The status quo favours not granting one. Approaching the question by reference to the modern approach, I am satisfied that it is just in all the circumstances that KBR should be confined to its remedy in damages.”

11KBW, whose Joseph Barrett was sole counsel for MOPAC and the Metropolitan Police Service, said: “The Court’s judgment provides important guidance on the legal principles applicable to applications to lift automatic suspensions in procurement disputes, in particular in relation to the adequacy of damages as a remedy for a claimant.

“Joanna Smith J’s judgment carefully considers, and rejects, dicta from recent cases in which some High Court Judges have appeared to suggest that the availability of an expedited trial was a factor relevant to the assessment of the adequacy of damages.”

It added: “The judgment also provides important guidance on both the nature of the evidence which must be provided to support arguments regarding the alleged inadequacy of damages and the legal principles which the Court is required to apply in assessing such contentions, namely orthodox tortious principles of remoteness and causation.

“The judgment is an important one, which should be carefully considered by both claimants and defendants in this field.”