Court of Appeal hears appeal over judgment that manifest error in procurement was not “sufficiently serious” for award of damages

The Court of Appeal is this week (29 November) hearing an appeal against a High Court ruling that an error in the award of an NHS orthodontic contract was not sufficiently serious to entitle it to Francovich damages.

The case of Braceurself Ltd v NHS England is being heard by Lord Justice Coulson, Lord Justice Dingemans and Lord Justice Snowden. The hearing is being streamed live here.

In an earlier judgment on liability Alexander Nissen KC, sitting as a deputy judge of the High Court, had found in in Braceurself Ltd v NHS England [2022] EWHC 1532 (TCC) [2022] EWHC 1532 (TCC), that the contracting authority had committed a manifest error of assessment in its scoring of Braceurself’s tender and that, absent that error, Braceurself’s tender would have won.

However, in a subsequent damages judgment, Judge Nissen concluded in Braceurself Ltd v NHS England [2022] EWHC 2348 (TCC) that the NHS’s error had been excusable and the provision of public services was unaffected.

The damages claimed by the claimant, Braceurself, were the sum of £4.7m for loss of profit, bid costs of £26,500 and loss of goodwill, which was not separately quantified.

Monckton Chambers said this was the first such judgment in which a breach that had led to an award to the wrong bidder was considered insufficiently serious to merit an award of damages.

Judge Nissen granted Braceurself permission to appeal the damages judgment to the Court of Appeal on the question of whether the breach was sufficiently serious on Francovich principles so that the claimant was entitled to damages.

See also: Braceurself Part 2: damages denied as breach was not “sufficiently serious” - Despite a bidder succeeding in its legal claim, establishing that the contracting authority breached procurement law and that it should have been awarded the contract, it has been left without any damages. Laura Wisdom and Lloyd Nail examine the ruling.

Read, check, repeat: the key to avoiding procurement errors - Juli Lau and Gonzalo Puertas outline their key takeaways on the liability judgment from the Technology and Construction Court.