Cyberfort Limited v The Lord Chancellor on behalf of HM Courts and Tribunals Service

Summary

A cyber security supplier lost a procurement for a managed cyber security service for the courts and tribunals service and challenged the award. The challenge triggered an automatic suspension preventing the authority from signing the new contract. The authority applied to lift the suspension.

The authority said the suspension should be lifted because the delay threatened the cyber security of the justice system, and damages would be an adequate remedy for the disappointed bidder. The bidder wanted the suspension kept in place until trial.

Adrian Williamson KC lifted the suspension. There was a serious issue to be tried, but damages would be an adequate remedy for the bidder if it succeeded, damages would not be an adequate remedy for the authority, and the balance of convenience favoured letting the contract proceed.

Background and facts

His Majesty's Courts and Tribunals Service procured a contract for the provision of a managed cyber security service across the whole of the service. Cyberfort lost the procurement, which was awarded to another bidder, Accenture, and issued a claim challenging the award.

The claim triggered the automatic suspension under regulation 95 of the Public Contracts Regulations 2015, prohibiting the authority from entering into the new contract. The authority applied to lift the suspension so that it could proceed.

The court noted that cyber security is fundamental to the authority's public functions, because the administration of justice now depends heavily on digital technology that is vulnerable to attack.

The issue

Because this procurement was governed by the 2015 Regulations, the court applied the established balance of convenience test. The questions were whether there was a serious issue to be tried, whether damages would be an adequate remedy for the bidder and for the authority, and where the balance of convenience lay.

The decision

Adrian Williamson KC lifted the suspension. He accepted there was a serious issue to be tried, but held that damages would be an adequate remedy for the bidder if it succeeded, so it was just to confine the bidder to a claim in damages.

For the authority, the position was different. The harm from keeping the suspension in place was to the security of the justice system and the continuity of a critical public service, which could not be measured in money:

"HMCTS have, therefore, shown that damages will not be an adequate remedy for them if the Suspension is not lifted."Adrian Williamson KC, paragraph 39

The balance of convenience also favoured lifting, in part because the suspension would otherwise have to be kept in force for many months until trial. The judge granted the application:

"I would accede to HMCTS's application so that the Suspension is ended with immediate effect."Adrian Williamson KC, paragraph 41

The suspension was ended and the authority was free to conclude the contract.

Practical implications

The regime that governs a procurement decides the test. This procurement was under the 2015 Regulations, so the court applied the familiar balance of convenience approach, under which a finding that damages are an adequate remedy for the bidder usually leads to the suspension being lifted. Procurements begun under the Procurement Act 2023 are governed by the different statutory test, which gives greater weight to the public interest in a lawful award, so the outcome can differ on similar facts. Check which regime applies before predicting the result.

Where the contract protects a critical public function, an authority is well placed to lift a suspension. The court accepted that damages would not compensate the authority for the harm of leaving the justice system exposed to cyber attack. An authority relying on this should put in concrete evidence of the operational harm of delay, not a general assertion that the contract is important.

A disappointed bidder should think hard about whether damages will be treated as adequate for it. Under the old test, a supplier whose loss is essentially the profit on a contract will often be held to have an adequate remedy in damages, which counts against keeping the suspension. If you want the suspension maintained, be ready to show why damages would not make you whole.

The likely length of the suspension matters. The court weighed the fact that the suspension would have to run for many months to trial. Both sides should be ready with realistic evidence about listing and trial timing, because a long freeze on an important public contract tells against the bidder.

Cyberfort Limited v The Lord Chancellor on behalf of HM Courts and Tribunals Service [2026] EWHC 1760 (TCC), Technology and Construction Court, Adrian Williamson KC sitting as a Deputy Judge of the High Court. Heard 8 July 2026, judgment handed down 13 July 2026.