Braceurself Limited v NHS England (No 2: Substantive Appeal)

For Francovich damages in public-procurement litigation, a claimant must separately establish a sufficiently serious breach. Proof that, but for an error, the claimant would have received the contract satisfies causation but cannot itself determine the separate seriousness condition.

The court must assess the nature and quality of the breach in all the circumstances. An inadvertent and excusable factual misunderstanding, made in good faith during an otherwise careful procurement, may fall below the threshold despite serious practical consequences. The principle of effectiveness ensures access to a remedy process; it does not override the Francovich conditions because an automatic suspension was lifted on the provisional basis that damages could be adequate.

The appellant was the incumbent provider of orthodontic services and unsuccessfully tendered for a seven-year contract. Its score was 2.25% below that of the successful bidder, PAL.

At the liability trial, the High Court held that evaluators had made a manifest error by treating a stairclimber as a fixed stairlift. The judge increased the appellant’s score for CSD02 from 3 to 4 and held that it would then have won the competition: [2022] EWHC 1532 (TCC). In a later judgment, he nevertheless dismissed the damages claim because the single breach was not sufficiently serious for Francovich purposes: [2022] EWHC 2348 (TCC).

The appeal concerned whether loss of the contract was decisive, whether excusability and good faith were relevant, and whether the lifting of the automatic suspension required an effective damages remedy. The respondent also challenged the causative significance of the stairclimber error and the rescoring exercise.

1. Appeal dismissed. The deputy judge was entitled to dismiss the claim for Francovich damages. Coulson LJ gave the judgment; Dingemans and Snowden LJJ agreed.

2. The second Francovich condition is distinct from causation. A finding that the claimant would have received the contract but for the breach establishes the causal condition, but cannot automatically establish that the breach was sufficiently serious. Treating the loss of the contract as decisive would collapse the second and third conditions into one. The court must assess the breach itself, including its nature, quality and culpability, in all the circumstances.

3. The actual consequences of a breach may be relevant in an appropriate case, but are not determinative. In procurement cases, the relevant principles include fair, equal and transparent competition, and the award of the contract to the most economically advantageous tenderer. Those principles do not make every scoring error that changes the outcome sufficiently serious.

4. Excusability is not confined to mistakes of law. A manifest factual error may still be excusable. The absence of bad faith does not make excusability, inadvertence or the infringer’s state of mind irrelevant; they are material to the gravity of the breach. Here, the judge was entitled to find that the evaluators’ misunderstanding was minor, inadvertent, in good faith and made while pursuing accessibility to publicly funded services.

5. The principle of effectiveness guarantees a proper process for pursuing an available remedy. It neither guarantees success nor displaces the Francovich conditions. A decision at the interim stage that damages would in principle be adequate does not prevent a later final decision that damages are unavailable because the seriousness threshold is unmet.

6. There was also an independent basis for dismissal. The contemporaneous evaluation records showed unresolved accessibility concerns for parents with prams and buggies, independently of the stairclimber misunderstanding. The liability judge had overlooked that evidence and was wrong to confine the accessibility issue to patients under the Equality Act 2010. It was more likely than not that the score of 3 would have remained, so the contract had not been shown to have been wrongly awarded. The judge had, however, been entitled in principle to undertake a limited rescoring exercise to determine the effect of a manifest error.

• Court of Appeal (Civil Division): Appeal dismissed in [2024] EWCA Civ 39. The court upheld dismissal of the Francovich damages claim and accepted the first point in the respondent’s notice concerning the causative effect of the scoring error.

• High Court, Technology and Construction Court: The deputy judge held that the breach was not sufficiently serious and dismissed the damages claim: [2022] EWHC 2348 (TCC).

• High Court, Technology and Construction Court: The deputy judge had found a manifest error in the evaluation and, after rescoring, held that the appellant would otherwise have won the contract: [2022] EWHC 1532 (TCC).

• High Court, Technology and Construction Court: The automatic suspension was lifted and permission was granted to add a damages claim: [2019] EWHC 3873 (TCC).