Navigating automatic suspensions: considering “sufficiently serious” breach in applications to lift suspensions

On 28 March 2025, the High Court handed down its judgment in Millbrook Healthcare Limited v Devon County Council EWHC 744 (TCC). The judgment concerned the Defendant’s application to lift the automatic suspension that was in place following the Claimant issuing proceedings.

The judgment sets out some useful reminders regarding one limb of the test that courts follow when considering whether to lift the suspension in public procurement claims where the legacy Public Contracts Regulations 2015 (PCR 2015) apply.

Automatic suspension – a recap

An automatic suspension prevents an authority from entering into a contract with a winning bidder of a public procurement. The relevant contract cannot be entered into until the Court orders that the suspension be lifted or the claim is resolved.

For a suspension to take effect under the legacy PCR 2015 (which applied in this case), proceedings need to be brought before the contract is signed. In disputes subject to PCR 2015, the claim is often issued within the 10 calendar day standstill period (that runs from the issuing of standstill letters) that must be observed before authorities can enter into a contract.

Note, however, that under the new Procurement Act 2023, proceedings must be brought within the new 8 working day standstill period in order for a suspension to take effect.

The test for lifting an automatic suspension

When hearing an application to lift the suspension, the Court considers the following test:

1. Is there a serious issue to be tried?
2. If so, would damages be an adequate remedy for the claimant if the suspension were lifted and they succeeded at trial?
3. If not, would damages be an adequate remedy for the defendant if the suspension remained in place and it succeeded at trial?
4. Where does the balance of convenience lie? (in other words, in the event of any doubt regarding the adequacy of damages for either party, which course of action is likely to carry the least risk of injustice?)

Very often, in practice, contracting authorities are successful at the automatic suspension hearing on the basis that damages are an adequate remedy for the claimant.

Obtaining damages at trial

If damages are deemed adequate at this stage of the matter and the matter proceeds to trial, a claimant then needs to show that the breach of the PCR 2015 it complains of is “sufficiently serious” to warrant damages. These are known as Francovich damages (derived from an EU precedent by that name).

Key issue in this application

In this case, the Defendant’s stance was that the breach was not “sufficiently serious” and so argued that Francovich damages would not be available.

The Claimant therefore argued during the application to lift the suspension that damages would not be an adequate remedy, as it might succeed at trial on liability but not on “sufficiently serious” breach and therefore would be left without an effective remedy. This is because the Claimant would be left with no opportunity to secure the contract once the suspension was lifted and would also not receive any damages.

The main question before the Court was therefore:

Q: Is damages an adequate remedy for a claimant, even if there is a risk that the breach of the regulations might be determined at trial not to be “sufficiently serious” (resulting in no damages being available)?

The Court rejected the Claimant’s argument on the basis that:

• The Court’s assessment of the adequacy of damages is separate from its consideration of the “sufficiently serious” requirement; and
• To give a view on the “sufficiently serious” point at an interim stage was “an impermissible invitation to enquire into the merits of the case.” – i.e. it is not for a judge in an application to lift the automatic suspension to consider the overall merits of the case.

Key takeaways

This decision is noteworthy as, moving forward, authorities may be less likely tactically to concede to a challenging bidder the point that a breach is “sufficiently serious” in order for the authority to successfully lift the suspension. This concession is commonly made in order to help open the door to a finding that damages are adequate for a claimant.

Whilst important in this case and cases subject to the PCR 2015, the judgment may be less relevant to applications to lift suspensions under the Procurement Act 2023. This is because:

• The test that the Court will consider when deciding whether to lift the suspension or prevent a contracting authority from entering an awarded contract is different under the new Act;
• The adequacy of damages for the claimant is just one consideration for the Court to take into account under the new Act rather than a potential single point of failure; and
• The Francovich damages criteria (including the “sufficiently serious” requirement) may be different.

Aside from the Court’s consideration of the relevance of “sufficiently serious” at the interim stage, the Court also restated the need for claimants to present cogent and compelling evidence to support any argument that damages would not be an adequate remedy. This means providing evidence that explains why the harm or damage that would be suffered by losing the procurement could not be compensated in monetary terms.

If you would like any further information or advice related to any of the topics covered in this article, please contact Richard Binns or Ian Tucker.

This article was written by Ryan Jenkins and Luke Parry-Billings.