Mitie Care And Custody Limited v Secretary of State for The Home Department
| Judge | Mr Roger ter Haar KC (sitting as a Deputy High Court Judge) |
| Judgment | 16 April 2026 |
| Jurisdiction | England & Wales |
| Claimant | Mitie Care And Custody Limited |
| Defendant | Secretary of State for The Home Department |
Summary
The Home Office ran a procurement for services managing irregular migration at two reception facilities in Kent and decided to award the contract to another bidder. The unsuccessful bidder challenged the award, which suspended the Home Office from signing. The Home Office applied to lift the suspension, and the bidder sought an expedited trial.
The bidder said the loss of the contract would harm its reputation in a way damages could not repair, and that its challenge should be heard first. The Home Office said damages would be an adequate remedy and the contract should proceed.
Mr Roger ter Haar KC lifted the suspension and refused an expedited trial. Damages would be an adequate remedy for the bidder, and a claim of reputational harm needs cogent evidence of substantial and irrecoverable financial loss, which was not made out.
Background and facts
The Home Office procured a contract for irregular migration management services at Western Jet Foil and the Manston Reception Centre in Kent. Mitie Care and Custody was the unsuccessful tenderer and challenged the award.
The challenge triggered the automatic suspension under regulation 96(1) of the Public Contracts Regulations 2015, preventing the Home Office from entering into the contract. The Home Office applied to lift the suspension, Mitie applied for an expedited trial, and on the eve of the hearing Mitie proposed a late amendment to add a new ground of challenge.
The issue
The procurement was under the 2015 Regulations, so the court applied the four-stage balance of convenience test. The central question was whether damages would be an adequate remedy for the bidder, and in particular whether a claim of reputational harm made damages inadequate. The court also had to decide whether to expedite the trial.
The decision
Mr Roger ter Haar KC lifted the suspension and dismissed the application for an expedited trial. He set out the practical approach to these applications:
"is to ask the question whether damages would be an adequate remedy for the claimant, and, if the Court comes to a clear answer to that question in favour of the party making an ATL, then it is not necessary for the Court to go on to set out any further reasoning in respect of steps (3) and (4)."Mr Roger ter Haar KC, paragraph 42
On the facts, damages would be an adequate remedy for the bidder if it established that the award was a breach. The bidder's argument that losing the contract would damage its reputation did not change that. To rely on reputational harm, a bidder must show by cogent evidence that the harm would cause financial losses that are substantial, irrecoverable and hard to quantify fairly. That was not established here.
Because damages were an adequate remedy for the bidder, the court did not need to go further, and the balance of convenience favoured lifting. He concluded:
"the Home Office's application to lift the suspension succeeds. Mitie's application for an expedited trial is dismissed."Mr Roger ter Haar KC, paragraph 85
Practical implications
The adequacy of damages for the challenger is often the decisive step. Where the court is satisfied that a money award would compensate the bidder for losing the contract, it can decide the application at that point without weighing the further stages. A bidder that wants to hold the suspension should focus its evidence on why damages would not make it whole.
Reputational harm is a demanding argument, not a makeweight. A bidder cannot keep a suspension in place simply by asserting that losing the contract will damage its standing. It must produce cogent evidence that the reputational harm will translate into financial loss that is substantial, irrecoverable and difficult to quantify. General assertions about prestige or market position will not do.
A late amendment does not automatically justify expedition. Proposing a new ground on the eve of the hearing did not persuade the court to expedite the trial or maintain the suspension. A challenger who wants an early trial should have its case in order and a realistic timetable, not a shifting set of grounds.
The regime still frames the analysis. This was a 2015 Regulations procurement, so the balance of convenience governed and the adequacy of damages for the bidder was central. A procurement under the Procurement Act 2023 is judged on the statutory test that gives greater weight to the public interest in a lawful award, so confirm the governing regime before predicting the outcome.
Practice points
- Under the Public Contracts Regulations 2015, if the court is satisfied that damages are an adequate remedy for the challenger, it may decide a lift application on that step alone, without weighing the later stages.
- Reputational harm makes damages inadequate only on cogent evidence that it will cause substantial, irrecoverable financial loss that is hard to quantify; assertion of harm to standing is not enough.
- A late proposed amendment adding a new ground will not by itself justify expedition or maintaining the suspension; have the case and a realistic timetable ready.
- Identify whether the procurement is under the 2015 Regulations or the Procurement Act 2023, because the test and likely outcome differ.