CoA: no procurement law damages in Braceurself

30 Jan 2024
Philip Moser KC

Braceurself v NHS England judgment, Court of Appeal.

In a public procurement damages claim the claimant must prove not only a breach of the Public Contract Regulations 2015 but also that the breach was ‘sufficiently serious’ to warrant damages (generally called Francovich damages). Braceurself was a case where the lower court held that a breach was established which had led (albeit narrowly) to the award of the contract to the wrong bidder in a two-bidder race, in circumstances where a suspension on contract-making had earlier been lifted. Nonetheless, the breach was held to be insufficiently serious to merit damages.

On appeal, the Court of Appeal (leading judgment by Coulson LJ) has upheld the lower court’s ruling on seriousness and gone further, taking the rare step of finding that the trial judge was wrong on the facts and that more probably than not there had been no breach in any event.

The three main Francovich issues were: (1) whether, following the judgment of Fraser J in Energy Solutions [2016] EWHC 3326 (TCC), the nature of the breach in this case was sufficiently serious without more; (2) if not, whether the Francovich balancing exercise meant it was sufficiently serious, taking into account all relevant matters; query whether a ‘manifest error’ can ever be excusable, and (3) whether the principle of effectiveness required a remedy in this case.

The Court of Appeal’s answers were: (1) no; a multifactorial assessment had to be carried out in each case; Fraser J’s judgment in Energy Solutions ought to be read as saying the same, alternatively had gone too far on that point; (2) no; the judge carried out the balancing exercise correctly; disregarding or rendering neutral Francovich factors such as excusability or state of mind would be contrary to authority, particularly the judgment of Lord Clyde in Factortame when properly considered; also, a manifest error may be excusable, and (3) the principle of effectiveness had no further or separate role to play in this case; the fact that the outcome of the interim hearing on suspension and the final hearing on relief may differ lies in the nature of litigation (see the CJEU in C-568/08 Spijker).

Further, applying Volpi v Volpi [2022] EWCA Civ 464, the Court held that the trial judge had been wrong to find a manifest error on the evidence around the proposed use of a ‘stair climber’ in the procurement. It was more likely than not that the procurement assessors’ scores would have been left unchanged.

Philip Moser KC acted for the Appellant on the appeal, instructed by Acuity Law.

A copy of the judgment is here.