Procurement claimant wins permission to appeal judgment that manifest error was not “sufficiently serious” for award of damages

A claimant has been granted permission to appeal 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.

In an earlier judgment on liability Alexander Nissen KC, sitting as a deputy judge of the High Court, 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.

In a decision following a hearing on 7 December 2022, Judge Nissen has now 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.

Philip Moser KC of Monckton Chambers is acting for Braceurself Limited.

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.