Successful judgment of the Court of Appeal in Braceurself v NHS England  EWCA Civ 39
On 30 January 2024, the Court of Appeal handed down its highly anticipated judgment in Braceurself v NHS England  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:
- If a breach of procurement law resulted in the “wrong” bidder being selected, that alone would be “sufficiently serious” to result in an award of damages. Until Braceurself, it had been assumed by most practitioners that this was the case.
- The fact that a breach was “excusable” or “inadvertent” was irrelevant to an assessment of the seriousness of the breach.
- Where a contractor had been deprived of a contract which it ought to have won, the principle of effectiveness in EU damages required that either the bidder should be awarded the contract, or that damages should be awarded. A bidder that ought to have been successful should not be left with nothing.
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.