International SOS Assistance UK Limited v Secretary of State for Defence

Mr Justice Eyre :

1. The substantive judgment in this matter was handed down on 20 th October 2025. This judgment addresses a number of issues raised in the parties’ competing submissions about consequential matters. Amendment and the Undertaking by the Defendant.

2. In the substantive judgment at [48] I explained that if the suspension were to be lifted justice would require that the Defendant accept that it could not pursue the argument pleaded in the Defence at [42] that the breaches were not sufficiently serious to warrant an award of damages. The parties disagree as to the way in which effect should be given to that.

3. The Claimant takes issue with the undertaking proposed by the Defendant in which the Defendant undertakes not to pursue that line of argument. Instead the Claimant contends that there should be an undertaking to amend the Defence to withdraw that line of argument. The Court does not have power to alter an undertaking proffered by a party. The appropriate course if an undertaking is proposed in terms which the Court does not regard as sufficient is for the Court to indicate that unless an undertaking is given in particular and different terms certain consequences will follow.

4. The Court does, however, have power to strike out any part of a pleading as likely to obstruct the just disposal of the proceedings and to direct the service of an amended pleading to reflect that striking out. That is the course which I have adopted here. The Defendant accepts that, in light of the substantive judgment, it cannot pursue the “not sufficiently serious” argument. I agree with the Claimant that it is appropriate for that position to be reflected in the pleadings. If [42] were to remain in the Defence the pleadings would not reflect the true position and this would have the potential to obstruct the just disposal of the proceedings. There is no injustice to the Defendant in the striking out of that part of the Defence which it is prepared to undertake not to pursue. The Costs of the Application to lift the Automatic Suspension.

5. The Defendant succeeded in obtaining an order lifting the Automatic Suspension. The Claimant says that the costs of the application should nonetheless be reserved.

6. The Claimant is right to say that applications to lift the automatic suspension under the Public Contracts Regulations 2015 are to be determined by reference to the principles governing the grant and refusal of interim injunctions subject to any necessary modification in light of the subject matter. On that basis the lifting of an automatic suspension is to be seen as akin to a refusal to grant an interim injunction restraining entry into a new contract. This follows from regulation 96(2). It does not follow from that position that the costs of a successful application to lift the automatic suspension are to be reserved. Rather, for the reasons I will now explain the reverse is the position.

7. The approach set out in Desquenne et Giral UK Ltd v Richardson [2001] FSR 1 , Picnic at Ascot v Kalus Derigs [2001] FSR 2 and Melford Capital Partners (Holdings) LLP v Wingfield Digby [2020] EWCA Civ 1647 , [2021] 1 WLR 1553 is directed to the situation where an interim injunction is granted on the basis that the balance of convenience favours “holding the ring” until trial. Those authorities explain that in such circumstances it is appropriate for costs to be reserved because a winning or losing party cannot properly be identified. That is akin to the position where the court concludes that the automatic suspension should be maintained in place. The maintenance of the automatic suspension has the effect of “holding the ring” until the trial of the procurement challenge.

8. Here, however, I have directed the lifting of the automatic suspension. That is akin to the refusal of an application for an interim injunction. I have done so on the basis that the balance of convenience favoured the lifting of the automatic suspension and did not warrant the holding of the ring until trial.

9. Does the fact that my conclusion that the automatic suspension should be lifted was reached by reference to the balance of convenience mean that the same approach to costs should be applied as when an interim injunction is granted (or the suspension upheld) by reference to the balance of convenience? In my judgement it does not. There is a material difference between granting an interim injunction to hold the ring on the basis of the balance of convenience and refusing such an injunction because the balance of convenience does not favour the holding of the ring until trial. The position is, if anything, even stronger in the context of applications to lift the automatic suspension. The Defendant sought the lifting of the automatic suspension on the footing, inter alia, that the balance of convenience fell against the maintenance of the suspension. The Claimant sought to maintain the suspension in place contending that the balance of convenience favoured that course. In those circumstances not only is it possible to identify the wining and the losing party but such identification can readily be made. The fact that the procurement claim might ultimately succeed does not alter that assessment. It follows that the Defendant was the successful party on the application to lift the suspension and the normal rule that it should recover its costs applies. The Costs of the Expedition Application.

10. The Claimant sought expedition of the trial. That application was refused and there is no reason for departing from the normal rule that the unsuccessful party must bear the costs of the successful party. The Disclosure Application.

11. The disclosure application was not addressed at the hearing before me. In the absence of agreement between the parties as to all the terms of any order to be made in respect of that application is not appropriate to make any order in respect thereof.