Mitigation of Loss: Key Lessons from the Medpro Decision for Claimants

Personal Protective Equipment (“PPE”) is specialist clothing worn to protect individuals from health and safety risks in the workplace or other environments, and as an acronym, PPE was relatively unknown prior to the end of 2019. 

However, from late 2019 and early 2020 PPE became a much sought after commodity as Covid19 swept across the globe and front-line workers required PPE to enable them to carry out essential services in a protected and safe environment.

The stockpile of PPE was insufficient to cater for the huge surge in demand the pandemic required, and the government set up a “VIP lane” to contract with firms to supply such equipment to the NHS. One such company to be awarded a contract to supply PPE via the VIP Lane was PPE Medpro Limited.

In the case of Secretary of State for Health and Social Care v PPE Medpro Limited [2025] EWHC 2486 (Comm) (“Medpro”), it was found that Medpro had breached its contract with the UK Government resulting in it being ordered to pay  £122m in damages.  The judgment has brought renewed focus to the practical application of the doctrine that a claimant in England and Wales must ‘mitigate’ its losses.

The legal principle of mitigation is a cornerstone of English contract and tort law, and the duty ensures that claimants take reasonable steps to minimise the financial consequences of a defendant’s breach or wrongdoing, rather than allowing losses to accumulate unnecessarily. 

The Legal Foundation of the Duty to Mitigate

The duty to mitigate is not a separate cause of action but a limitation on recoverable damages. When a claimant suffers a loss due to another’s breach of contract or tort, they are under a legal obligation to take reasonable steps to minimise that loss. If the claimant fails to do so, the court may refuse to award damages for the avoidable portion of the loss.

This principle is rooted in the landmark case of British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673, where it was held that a claimant cannot recover damages for loss which could have been avoided by reasonable action. The burden of proving a failure to mitigate rests with the defendant, who must show that the claimant acted unreasonably in not taking certain steps.

What Constitutes Reasonable Steps?

The standard of reasonableness is objective and fact specific. Claimants are not required to take extraordinary measures or to risk their own interests unduly. Instead, they must act as a reasonable person would in the same circumstances. 

Such actions may involve seeking substitute goods or services in contractual disputes or undertaking remedial action to limit physical damage.

Importantly, the law does not require, or expect, perfection. 

Provided the claimant’s decision is reasonable, even if it turns out in hindsight to be less effective, the court will not penalise them for an honest mistake or for choosing one reasonable course of action over another.

The Medpro Case: Facts and Key Findings

Medpro has provided a timely and practical illustration of the duty to mitigate in action. 

In Medpro, the claimant company sought damages following a breach of contract by the defendant. The defendant argued that the claimant had failed to mitigate its losses by not pursuing alternative suppliers and by not acting promptly to address the breach.

The Court examined the claimant’s conduct in detail, considering whether the steps taken were reasonable in light of the information available at the time. The court reaffirmed that the test is not whether the claimant could have achieved a better outcome, but whether their actions were within the range of reasonable responses.

In Medpro, the court found that the claimant had acted reasonably by exploring alternative options and engaging in negotiations, even though these did not fully offset the loss. The judgment emphasised that the law does not require a claimant to accept unduly onerous terms or risky alternatives, nor to act with perfect foresight.

Practical Implications for Claimants

The Medpro decision highlights several practical points for claimants:

• Document Efforts: Claimants should keep thorough records of attempts to mitigate, including correspondence, market searches, and internal decision-making processes.
• Act Promptly: Delay in seeking to limit losses can undermine a claim. Courts expect proactive steps but also recognise the need for due diligence.
• Reasonableness, Not Perfection: The focus is on whether the claimant’s actions were reasonable, not whether they produced the best possible result.
• Rejecting Unreasonable Alternatives: Claimants are not obliged to accept alternatives that would involve undue risk, expense, or disadvantage.

Comment

Katie Byrne, Partner and Head of Commercial Dispute Resolution at Irwin Mitchell LLP, comments:

“The duty to mitigate remains a fundamental aspect of damages claims in England and Wales. 

“The Medpro case serves as a useful reminder that courts take a pragmatic approach, assessing the claimant’s conduct in context and focusing on reasonableness rather than hindsight. 

“For claimants, the message is clear: act sensibly and swiftly to limit your losses, document your efforts, and the courts will generally support your claim for damages arising from another’s breach.”