Suspension of Contract

January 23rd, 2020

In Alstom v Network Rail (2019) EWHC 3585 (TCC) O’Farrell J lifted (paragraph 76) an automatic suspension which arose upon a procurement challenge, where there was a serious issue to be tried (paragraph 30). Damages would be an adequate remedy for the Claimant (paragraphs 31-45 inclusive), but not for the Defendant (paragraphs 46-49 inclusive).  Moreover, the balance of convenience test (paragraph 51) was in favour of lifting the suspension, having regard to the public interest (paragraphs 54-71 inclusive).  Delay to the Project caused by continuing the suspension would (1) delay the anticipated benefits of the planned works, (2) result in abortive costs, and (3) jeopardise the business case and funding for the Project (paragraph 59). There was an urgent need to replace degraded assets (paragraph 67).  Alstom’s point about the public interest in Network Rail complying with its legal obligations in respect of public procurement was a neutral one (paragraph 70).  It had to be balanced against the public interest in Network Rail’s entitlement to proceed with the successful tenderer following a lawful and fair procurement exercise. At the suspension stage the Court was not in a position to judge which case will prevail. There was a strong public interest in proceeding with the works as soon as possible (paragraph 71). Nor would a partial lifting of the automatic suspension be appropriate (paragraph 75). The strong public interest in lifting the automatic suspension extended to the full Project.


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