Braceurself Limited v NHS England

A respondent requires permission to appeal where it seeks to challenge or vary the lower court’s order. Permission is unnecessary where it seeks only to uphold the order for different or additional reasons.

The distinction turns on substance, not the order’s form. Separate issues forming part of the reasoning by which a single claim was determined do not become separate cross-appeals. A respondent may therefore challenge findings on such issues without permission, although resurrecting a distinct claim dismissed below requires an appeal.

The overriding objective does not ordinarily permit an appellate court to impose a permission requirement where the procedural rules impose none. Exceptional, disproportionate or abusive respondent’s notices may instead be controlled or struck out.

Braceurself Limited claimed damages for breach of NHS England’s statutory procurement obligations. After a split liability trial, the judge found a manifest evaluation error which would have changed the tender result, but later held that the breach was not sufficiently serious to justify Francovich damages. The claim was therefore dismissed.

Braceurself obtained permission to appeal the sufficiently serious breach decision. NHS England served a respondent’s notice challenging the earlier finding that it had committed any manifest error. The Court of Appeal considered whether those grounds were a cross-appeal requiring permission under rule 52.13 of the Civil Procedure Rules 1998 and paragraph 8 of Practice Direction 52C.

The central issue was whether NHS England sought to alter the order dismissing the single claim, or merely to uphold that order for different reasons.

1. Permission to appeal was not required. NHS England had succeeded below because the damages claim was dismissed. Its respondent’s notice neither challenged nor sought to vary that result. It sought to uphold the dismissal on the additional ground that no manifest procurement error had occurred. This fell within rule 52.13 of the Civil Procedure Rules 1998 and paragraph 8(3) of Practice Direction 52C rather than the provisions governing cross-appeals.

2. The substance of the lower court’s determination governs its appealability. The manifest-error findings were not incapable of appeal merely because the June 2022 order recorded them in recitals rather than declarations. Nevertheless, the judge had been directed to determine liability, including whether any breach was sufficiently serious to support damages. Liability remained undecided until that question was resolved in September. NHS England then became the successful party and had no reason to appeal unless Braceurself appealed.

3. The distinction drawn in Trinity Logistics USA Inc v Wolff [2018] EWCA Civ 2765 between separate claims did not extend to separate issues within one claim. A respondent wishing to revive a distinct claim dismissed below must cross-appeal. By contrast, the issues determining a single claim form part of the reasoning leading to the disposition and cannot sensibly be separated into independent appeals. Both manifest error and sufficient seriousness concerned the single claim for procurement damages.

4. A respondent’s notice may generally challenge factual findings. The overriding objective can exceptionally prevent a successful party from rerunning complex, lengthy and disproportionate factual disputes. It cannot routinely be used to impose a permission requirement which the rules and authorities do not impose. Such a practice would create uncertainty, additional notices and disputes about time limits. In a suitable case, an application to strike out a frivolous or vexatious respondent’s notice may provide the proper control.

5. The court accordingly determined that NHS England could advance grounds 1–4 of its respondent’s notice without permission. Costs of the issue were left for short submissions if not agreed.

• Court of Appeal (Civil Division): In [2023] EWCA Civ 837, determined that NHS England’s grounds challenging the finding of manifest error were properly contained in a respondent’s notice and required no permission to appeal.
• High Court, Technology and Construction Court: In [2022] EWHC 3509 (TCC), decided consequential matters and granted Braceurself permission to appeal the sufficiently serious breach issue.
• High Court, Technology and Construction Court: In [2022] EWHC 2348 (TCC), held that the procurement breach was not sufficiently serious to support Francovich damages.
• High Court, Technology and Construction Court: In [2022] EWHC 1532 (TCC), found a manifest tender-evaluation error which would have changed the successful bidder, while adjourning the sufficiently serious breach issue.