UK Construction and Law
Automatic suspension lifted on a court service cyber security award, and the court refuses to accept that mere arguability satisfies the damages limb
By Staff Writer | 23 August 2026
The incumbent supplier lost a managed cyber security competition and its claim froze the award for five months. The court ended the suspension, held that damages would be an adequate remedy for the challenger and declined to follow a recent observation that a claimant need only show its case on inadequacy is arguable.
Cyberfort Limited v The Lord Chancellor on behalf of HM Courts and Tribunals Service [2026] EWHC 1760 (TCC) was handed down at 2pm on 13 July by Adrian Williamson KC, sitting as a Deputy Judge of the High Court. The competition was run under a dynamic purchasing system, with a bid pack issued on 2 October 2025 and bids due at 1pm on 30 October. Three bidders took part. Award letters went out on 23 January 2026, naming a different supplier. The claim form was issued on 16 February, which triggered the automatic suspension under regulation 95 of the Public Contracts Regulations 2015 and stopped the contract being entered into.
The applicant had been the incumbent for almost six years, since September 2020. Its most recent audited accounts showed revenues of 22.3 million pounds for 2024, and the contract had represented about a quarter of its revenue.
The threshold question the judgment settles
The four stage approach was common ground: a serious issue to be tried, adequacy of damages for the claimant, adequacy for the defendant, and the balance of convenience. What was in dispute was how hard the claimant has to push on the second stage.
The claimant relied on observations of Constable J in Unipart Group Ltd v Supply Chain Coordination Ltd [2025] EWHC 354 (TCC), to the effect that it is enough if the claimant will arguably suffer a loss for which damages are not adequate, provided the risk is a real one. The court read that as apposite on its own facts rather than as a general principle.
Almost any proposition can be argued: without some requirement that the point is at least reasonably arguable, the test under limb (ii) would be meaningless.
Adrian Williamson KC, sitting as a Deputy Judge of the High Court in the Technology and Construction Court
The court preferred the guidance in Neurim Pharmaceuticals (1991) Ltd v Generics UK Ltd [2021] RPC 7, where the Court of Appeal held that a judge should do the best he can on the written evidence at stages two to four rather than treating every disputed fact as a serious issue to be tried.
Three heads of prejudice, and why each failed
The first was the loss of a reference contract. The court found that the existing contract remains available as evidence of experience for a considerable period, because tender questionnaires typically ask for relevant experience within the last three years, and that a court could in any event make a fair award for lost future tenders.
The second was reputation. The evidence was described as very vague. Applying Openview Security Solutions Ltd v The London Borough of Merton [2015] EWHC 2694 (TCC), the court asked whether the absence of interim relief would lead to financial losses that were substantial and irrecoverable, and found no basis for saying so.
In the normal rough and tumble of commercial life, some tenders are accepted and some are not.
Adrian Williamson KC, sitting as a Deputy Judge of the High Court in the Technology and Construction Court
The third was the loss of specialist staff. The court accepted that this can carry the point on the right facts, but held that the impact has to be demonstrated specifically and analytically. Here there were broad assertions that could have been made after any lost tender, and six months had passed since the award letter without any particular person or team being identified.
On the other side, the buyer showed that damages would not be adequate for it, because holding the suspension would stop it obtaining the service on the terms it had chosen, including new service levels carrying prescribed service credits for non-performance, an express innovation obligation and two social value objectives given contractual force.
The listing point
The balance of convenience was dealt with in the alternative and it went the same way. The reason given first is the one to note: on the evidence and on enquiries with the court's own listing, the suspension would probably have had to remain in force until the end of 2027, leaving the buyer, the challenger and the winning bidder in contractual limbo for well over a year.
For a challenger, that is the arithmetic to run before issuing. A suspension that cannot be tried for eighteen months is a suspension the court will be looking hard for a reason to lift, and generalised evidence about reputation and morale will not supply one.