Fenella Morris KC
Year of call: 1990
Silk: 2012
On 30 January 2024, the Court of Appeal handed down its highly anticipated judgment in Braceurself v NHS England [2024] EWCA Civ 39. The case is set to become the leading case on when an unlawful procurement exercise will – and more importantly will not – be “sufficiently serious” to justify an award in damages. It represents a major milestone in the development of procurement law and has far-reaching implications. All practitioners in the field will need to take note.
The appeal was brought on three grounds:
The Court of Appeal dismissed each of these grounds. In a fascinating judgment, it considered the roots of the sufficiently serious principle in EU law. It held that the principle was concerned more with the nature and quality of the breach by the infringer than with the consequences of the breach for the damaged party. In that context, the excusability of the breach, including whether it was inadvertent, was likely to be highly relevant to an assessment of whether it was sufficiently serious. Finally, there could well be situations in which, at an interim stage, an automatic suspension is lifted at the interim stage on the basis that damages are an adequate remedy, but when damages are not then awarded at trial.
Braceurself reverses the received wisdom as to the recoverability of damages in procurement claims. The judgment is likely to make it materially more difficult to recover damages in a wide range of such claims. As such, it will be a highly relevant factor in the calculation of risk for any potential claimant considering whether to bring a procurement claim.
Fenella Morris KC and Benjamin Tankel represented the successful Defendant, NHS England. They were instructed by Sarah Whittle and Daniel Taylor of Blake Morgan LLP.