Apasen Limited v London Borough of Tower Hamlets
| Judge | Mr Roger ter Haar KC, sitting as a Deputy High Court Judge |
| Hearing | 31 July 2026 |
| Judgment | 28 August 2026 |
| Court | High Court of Justice, Business and Property Courts of England and Wales, Technology and Construction Court |
| Jurisdiction | England and Wales |
| Claimant | Apasen Limited, a registered charity and provider of domiciliary care services |
| Defendant | London Borough of Tower Hamlets, the contracting authority |
| Case reference | HT-2025-000267 |
| Application | Defendant's application to strike out under CPR 3.4(2)(a) |
Summary
Tower Hamlets abandoned a domiciliary care procurement after tenderers challenged it, then awarded seven interim contracts directly on the justification of extreme and unavoidable urgency. Apasen, a charity and one of five incumbent providers, was allocated two of them in March 2025 and given none in June. It asked the court to set aside the contracts awarded to four other providers.
The council applied to strike the set aside claim out as unarguable. An urgent direct award carries no mandatory standstill, and on the council's case it had published a contract award notice and honoured a voluntary standstill of eight working days. The court refused. Section 105(4) treats a notice that did not provide accurate information as one never published, and whether these notices were accurate is arguable and undecided.
Background and facts
The council advertised domiciliary care services in July 2023 in four lots by area, and Apasen tendered for two. Anonymous whistleblowing allegations against it followed, an investigative audit was commissioned, and in October 2024 the council made its award to Apasen conditional on the outcome of that audit. Apasen challenged and issued proceedings. In November 2024 the council abandoned the procurement.
On 13 March 2025 it published a transparency notice stating that it intended to award seven interim contracts directly, relying on urgency. Two were to go to Apasen. The same day it published what it intended to be a contract award notice, which made no mention of that justification. On 18 June 2025 the council reversed its position as to Apasen alone.
Apasen did not issue proceedings during the standstill period, so the automatic suspension in section 101 never applied and the contracts were entered into. Whatever remedy remained lay in section 104.
The issue
Whether the claim to set aside the interim contracts was unarguable and should be struck out. Section 104(2)(a) obliges the court to set aside a contract where a set aside condition in section 105 is met. The council said no condition could be met: it had published a contract award notice, no mandatory standstill applied to an urgent direct award, and it had offered and honoured a voluntary standstill. Apasen said both notices were invalid, and that section 105(4) puts an inaccurate notice in the position of one never published.
The decision
Section 105(4) divided the parties. If a contract award notice has not been published, a set aside condition is met and the contract must be set aside under section 104(2)(a). Section 105(4) extends that to a notice which, though published, did not provide accurate information. Everything turned on what accurate means.
Both sides went back to authority under the previous regime, which the judge accepted as a guide to the detail a notice must carry. The council's difficulty was the separate requirement of accuracy. He tested it with an example of his own: a notice describing a contract for the construction of a bridge where the contract was in truth for a sewage works.
There may well be cases where facts omitted may be so extensive and misleading as to render a notice inaccurate.Mr Roger ter Haar KC, paragraph 61
He then confined what he was deciding, and did so in terms.
This judgment should not be taken as stating what approach a court should take in deciding whether a contract award notice was accurate or not. That will depend upon fact specific considerations in a wide range of circumstances.Mr Roger ter Haar KC, paragraph 62
What I do decide is that the question of what circumstances would justify holding that a contract award notice is not accurate is highly arguable and not decided as yet by authority.Mr Roger ter Haar KC, paragraph 63
If the urgency justification was not in truth factually well founded, a notice asserting that the urgency criterion was satisfied is at least arguably not accurate. A second argument survived. The justification appeared in the transparency notice but not in the contract award notice, which regulation 27(2)(u) of the Procurement Regulations 2024 requires it to carry. The judge held that point arguable, and curable by amendment rather than met by strike out.
On those grounds I reject the Defendant's application to strike out the parts of the Particulars of Claim seeking to set aside certain contracts.Mr Roger ter Haar KC, paragraph 66
Nothing was decided about whether the urgency justification was good, or whether any contract will be set aside.
Practical implications
The voluntary standstill is not the shield it has been taken to be. An urgent direct award carries no mandatory standstill, and the working assumption has been that a contract award notice plus a voluntary eight day standstill closes off section 105 through section 105(2). That holds only while the notice stands up.
Accuracy is not confined to the face of the document. A court may have to look at evidence about what was actually procured and what was left out of the stated justification. A challenger who can plead that the urgency was the authority's own doing has an argument for set aside, not merely for damages.
The justification belongs in the contract award notice, not only in the transparency notice. An authority that puts its reasoning in the earlier document and leaves the later one bare is exposed on a point now held arguable.
This was a care services procurement, but nothing in the reasoning turns on subject matter. The same notice requirements and set aside conditions govern works contracts, and the judge reached for construction examples to test the point.
Practice points
- Read what the contract award notice actually says. Where a direct award is made under section 41, regulation 27(2)(u) of the Procurement Regulations 2024 requires that notice to carry the direct award justification and an explanation of why the authority considers it applies. A justification stated only in the transparency notice is arguably not enough.
- Do not treat a voluntary standstill as an answer to a set aside claim. Section 105(2) protects the authority only where the contract award notice holds good. Section 105(4) withdraws that protection from a notice carrying inaccurate information.
- For a challenger, plead inaccuracy in terms and plead the facts behind it. The court accepted that evidence going behind the notice may be needed, which is why this claim could not be disposed of on the documents.
- Urgency attributable to the authority's own acts is not unavoidable. Paragraph 14 of Schedule 5 requires that the urgency be neither attributable to the authority nor foreseeable by it. An authority whose urgency follows from abandoning its own flawed procurement should expect that to be tested on evidence.
- Issue during the standstill period if set aside matters to you. Apasen did not, the automatic suspension in section 101 never applied, and the contracts were signed. Its remedy became the harder post-contractual one.
- Advise on the pleading threshold, not on an outcome. The judge held these questions arguable and expressly declined to state the approach a court should take to accuracy. The point is open, not won.