Braceurself Ltd v NHS England
| Jurisdiction | England & Wales |
| Judge | Alexander Nissen,Mr Alexander Nissen |
| Judgment Date | 16 September 2022 |
| Neutral Citation | [2022] EWHC 2348 (TCC) |
| Docket Number | Case No: HT-2019-000339 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2022] EWHC 2348 (TCC)
Mr Alexander Nissen KC
Sitting as a Deputy Judge of the High Court
Case No: HT-2019-000339
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Holl-Allen KC and Amardeep Dhillon (instructed by Goodman Grant Solicitors Ltd) for the Claimant
Fenella Morris KC and Benjamin Tankel (instructed by Blake Morgan LLP) for the Defendant
Hearing date: 26 July 2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Alexander Nissen KC SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 16 September 2022 at 10.30am.
Mr Alexander Nissen KC:
Introduction
In these proceedings, the Claimant claims damages against the Defendant pursuant to the Public Contracts Regulations 2015. The Defendant, NHS England, is the statutory authority responsible for, amongst other things, NHS South, Central and West Commissioning Support Unit. In February 2019, the Defendant completed a nationwide procurement for the provision of orthodontic services of which Lot reference PR002368 (WSX18), located in an area of East Hampshire, formed part. The Claimant, Braceurself Ltd, was the incumbent provider and was one of two bidders for the Lot, which comprised a seven-year contract. The Claimant's bid was unsuccessful. In its proceedings, the Claimant initially sought relief against the Defendant setting aside the award of the contract to the successful bidder, Orthodontics by Eva Petersfield & Alton Ltd (“PAL”). The stay was lifted on the automatic suspension in November 2019: see [2019] EWHC 3873, (TCC). As a result, the contract was let to PAL as the successful bidder. In December 2019 the relief sought by the Claimant was amended to include a claim for damages. Those damages were claimed in the sum of £4.7m for loss of profit, bid costs of £26,500 and loss of goodwill, which was not separately quantified.
A feature of this case is that the outcome of the competition was very close. The Claimant's bid scored 80.25% whereas PAL's bid scored 82.5%. The difference was therefore only 2.25% in a two-horse race. It followed that even minor breaches of duty by the Defendant could have had a decisive impact on the outcome. That explains why the Claimant had cast its net quite widely in respect of its complaints. The Claimant had contended there should have been both upwards adjustments of the Claimant's score and downward revisions of PAL's score.
On 12 February 2021, Fraser J ordered a split trial whereby the Court would first determine issues of liability including the seriousness of any breach. The last part of that order is a reference to the requirement that a breach must be “sufficiently serious” to justify an award of Francovich damages.
Following a trial which concluded in March 2022, I handed down judgment on all issues save for that concerning the seriousness of any breach: see [2022] EWHC 1532 (TCC).
As articulated by the parties in their List of Issues, the remaining question was framed in the following terms:
“If there was or there might have been a material difference to the scoring of the bids, were the breaches sufficiently serious to justify an award of Francovich damages, having regard to the relevant case law touching on Francovich damages?”
In respect of that question, I concluded at [192] that I would be assisted by further submissions from the parties in light of the single breach found.
The hearing in respect of this part of the trial was held on 26 July 2022. The Claimant was again represented by Mr Holl-Allen KC and Mr Dhillon. The Defendant was again represented by Ms Morris KC and Mr Tankel. I am grateful to all counsel for their assistance.
Summary of earlier findings
The full extent of my findings can be found in the judgment at [2022] EWHC 1532 (TCC). What follows is by way of brief synopsis.
In September 2015, the Defendant produced a “Guide for commissioning dental specialties – orthodontics” also known as the National Guide for Commissioning Orthodontics 2015. It stressed the importance of promoting equality which was said to lie at the heart of the Defendant's values. The Guide was to be used by commissioners to offer a consistent and coherent approach and described the direction required to commission dental specialist services with a view to improving dental care and outcomes for patients. The procurement exercise was in relation to services to be provided pursuant to a “Personal Dental Services” agreement for the relevant Lot area. The competition rules were set out in an “Invitation to Tender Document” (“ITT”). The same ITT was used across the NHS England South region divided across 97 lots. The ITT comprised a Call for Competition for the provision of Orthodontic Services for East Hants, carrying the procurement reference WSX18.
Within the ITT, the Evaluation Methodology was described in detail. The approach was conventional. Evaluators, appointed for their knowledge and experience, would complete an individual evaluation of the bids including the provision of scores and justification for those scores. Evaluations were to be of bids in their own right rather than by comparison with other bids. There would then be a process of moderation with the evaluators to discuss the consistency and appropriateness of each individual score. (This was to occur even if their scores had been the same.) Moderation would usually be an in-person meeting. A final score resulting from the moderation was then recorded for each applicable question, to which the weightings were then deployed. (After the moderation, the individual scores by the evaluators were no longer relevant.) The highest total combined score for Quality and Finance would then be recommended for an award. Scores ranged from 0 (deficient) to 4 (excellent).
Overall, I was generally impressed by the careful way in which the evaluators had tried to carry out their functions. I also concluded that the procurement itself was carefully planned and well organised. Nonetheless, of the very many complaints made by the Claimant in these proceedings, I found one to have been justified. In particular, I found the Defendant made a manifest error in its scoring of question CSD 02 which led to it awarding the Claimant a score of 3 (good) in respect of that question rather than, as I found it should have done on the evidence before me, a score of 4 (excellent). In summary, CSD 02 was concerned with Clinical and Service Delivery. One aspect of this multi-faceted criterion concerned accessibility to the premises. The Claimant's premises were on the first floor which meant that its bid needed to cater for those patients who could not use the stairs to access the service. In addressing this part of the Claimant's bid, the Defendant made two errors. The Claimant had proposed to use a device called a stair climber. Mistakenly, the Defendant evaluated the Claimant's bid on the basis that it was proposing to install a stair lift. The Defendant also mistakenly thought that, by way of partial solution, the Claimant was offering services at alternative premises at least to those patients who could not use the stairs. The suggestion was that the equipment at the alternative premises would not be of the same standard. In fact, the Claimant was only making an offer to use alternative premises as a result of a flood or fire rendering its primary site unusable. I concluded that these mistakes had a causative impact on the Defendant's scoring and were material to the outcome. Whilst I acknowledged that the Defendant was generally entitled to a margin of appreciation in its scoring of the criterion as a whole, I concluded that such margin was not relevant in determining whether a straightforward misunderstanding of the bid had taken place since that was not a question of judgment or assessment.
The Court was well placed to reach a conclusion as to the appropriate score which ought to have been given to the Claimant. It was clear that the issue about access had, in fact, impacted negatively on the score which the Claimant received in respect of CSD 02 and the Court was in a good position to reach its own conclusion about the appropriate score in light of the evidence as a whole. The consequence of changing the score from 3 to a 4 in respect of CSD 02 was to increase the Claimant's total bid score by 2.5% in circumstances where the difference between the two bidders had been 2.25%. But for the manifest error, the Claimant would therefore have been awarded the contract, having scored 0.25% higher than the other bidder. This was not, therefore, a loss of a chance case.
The Law – Outline Approach
I did not understand the broad legal framework to be in dispute although, inevitably, there were some detailed points of difference. Where relevant, I address those differences below in my considerations of the individual factors.
In EnergySolutions EU Ltd v Nuclear Decommissioning Authority [2017] UKSC 34; [2017] 1 WLR 1373, SC the Supreme Court held that European Union law liability of a contracting authority under the Remedies Directive for breach of the Public Procurement Directive would only exist where the minimum conditions set down by the Court of Justice were met and that, accordingly, an award of damages could only be made under EU law when a breach of the Public Procurement Directive was sufficiently serious, applying Francovich v Italian Republic [1995] ICR 722 and Brasserie du...
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