Braceurself Ltd v NHS England
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson |
| Judgment Date | 14 July 2023 |
| Neutral Citation | [2023] EWCA Civ 837 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000048 |
[2023] EWCA Civ 837
Lord Justice Coulson
Lady Justice Simler
and
Lady Justice Whipple
Case No: CA-2023-000048
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURT OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURTS (KBD)
Mr Alexander Nissen KC
(sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Moser KC & Amardeep Dhillon (instructed by Acuity Law Limited) for the Appellant
Fenalla Morris KC & Benjamin Tankel (instructed by Blake Morgan LLP) for the Respondent
Hearing dates: 15 June 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 14 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives
Introduction
When is a Respondent's Notice really a cross-appeal in disguise? That is the issue that arises in an ongoing appeal brought by Braceurself Limited (“Braceurself”) against the respondent, NHS England (“the NHS”). The issue matters because, if the NHS's Respondent's Notice is, in reality, a cross-appeal, then they need permission in order to bring it, whilst if it is a proper Respondent's Notice, they do not.
This is the judgment of the court, to which we have all contributed. We are very grateful to both Ms Morris KC and Mr Moser KC for their clear submissions on the underlying issues. We recognise that, although we can and will decide the issue on the particular facts of this case, it may have a wider application. That is particularly so given the paucity of authority directly in point.
The Factual Background
Braceurself made a claim against the NHS for breach of the NHS's statutory procurement obligations. The tender process in question concerned the provision of orthodontic services in East Hampshire, lot reference PR002368. The claim was based on what were said to be manifest errors in the tender evaluation process. By the time of the hearings before the judge, the claim was for a declaration and damages: the automatic suspension had been lifted some time previously, and the contract had been awarded to the successful tenderer.
On 12 February 2021, at a costs and case management hearing, Fraser J ordered a split trial between liability and quantum. He expressly indicated that the issue of liability, to be heard at the first trial, would include the issue as to whether any manifest breach was “sufficiently serious” to warrant an award of damages. The importance of that latter issue in English law derives from the decision of the Supreme Court in Energy Solutions EU Limited v Nuclear Decommissioning Authority [2017] UKSC 34; [2017] 1 W.L.R. 1373, which itself applied the decision of the European Court of Justice in Francovich v Italian Republic (Joined Cases C-6/90 and C-9/90) EU:C:1991:428; [1995] ICR 722. In short, in a procurement challenge where the remedy sought is for damages only, the claiming party has to demonstrate that the authority's manifest breach of the procurement obligations was sufficiently serious to justify an award of damages.
There was some debate before us as to the proper categorisation of the Francovich damages issue, and whether it was properly included as part of the liability trial. We think it was. It is a species of causation argument. In a procurement case where damages are the only remedy, it is critical to know whether any breach that may be proved surmounts the “sufficiently serious” hurdle. If it does, the remaining issues are matters of quantification only; if it does not, that is the end of the case. In more old-fashioned language, it is a key element of determining “liability proper”.
The liability trial took place between 28 February 2022 to 4 March 2022 before Alexander Nissen KC, sitting as a Deputy High Court judge (“the judge”). The parties had agreed a list of 23 issues. Issue 19 addressed a schedule of alleged manifest errors in the marks given by the NHS to the two tenderers (Braceurself and the successful bidder). Issue 23 asked whether any of those breaches that were proved were sufficiently serious to justify an award of Francovich damages.
The judge's judgment on the substantive issues is at [2022] EWHC 1532 (TCC). He found at [127] – [146] that there had been a manifest error in respect of the marking of Braceurself's responses to question CSD02, concerned with clinical and service delivery, and in particular the issue of accessibility. He found that the NHS had misunderstood Braceurself's bid in two respects, concerned with: i) access to the first floor premises and the references to a stair-climber; ii) alternative premises. This resulted in Braceurself being awarded a score of 3 for premises and equipment, when they ought instead to have been awarded a 4 [147], [186]. In consequence, the total bid score would have been 2.5% higher and would have meant that Braceurself's tender would have been the successful bid [188].
At [192], the judge observed that, through no fault of the parties, they had not made adequate submissions as to whether the particular breach which he had found was sufficiently serious to trigger the claim for Francovich damages. This was partly because, although the errors which the judge found were properly before him, they had not been the subject of any particular focus before or at the trial. In consequence, the judge adjourned Issue 23 and all consequential matters until after this question had been decided.
The judge's order of 21 June 2022 reflected this position. The Recitals to the order included:
“AND UPON the Court finding that:
(i) The Defendant made a manifest error in the marking of the Claimant's bid under CSD02 (“the Breach”);
(ii) The Claimant's mark for CSD02 should be increased from 3 to 4;
(iii) Such a change would have resulted in the Claimant's bid being successful;
(iv) But for the above, none of the Claimant's other challenges succeed.”
The remainder of the order of 21 June 2022 dealt with the judge's directions for the forthcoming hearing on the Francovich issue.
By the time the judge made the order of 21 June, the NHS had indicated that they intended to appeal against the findings of manifest error, and Ms Morris had prepared draft Grounds of Appeal. There were four stated grounds. Grounds i) and ii) were concerned with the access issue: i) complained about the judge's treatment of the mistake about the stair-climber as a legally significant error; ii) was the suggestion that the judge had failed to attach proper weight to the access requirements of parents with buggies. Grounds iii) and iv) were concerned with scoring: iii) criticised the judge for discounting the evidence of the evaluators that, even if they had known that it was a stair-climber, not a stair-lift, it would probably not have changed their mark; iv) was an allegation that, in re-scoring, the judge made various errors in his evaluation and did not take the entirety of CSD02 into account.
There was some argument before this court as to whether those were challenges to the judge's findings of fact and/or his evaluation of the evidence, or raised discreet points of principle. Although it is unnecessary to reach a concluded view on that matter, we consider that, at first blush, the four grounds are primarily attacks on the judge's findings of fact and the inferences to be drawn from those facts, and his evaluation of some of the evidence. Inevitably, there is some overlap with principle, particularly on the topic of re-scoring, although we consider that overlap to be relatively modest. Accordingly, these are the sort of points which, on an application for permission to appeal, may give rise to the concern that they strayed into areas which were the sole preserve of the trial judge (see Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] F.S.R. 29 at [114]). However, we make clear that we have formed no view as to the merits of those points one way or the other, and therefore cannot say whether, if they did require permission to appeal, such permission would have been granted.
The order of 21 June 2022 expressly reflected the fact that the NHS had indicated their intention to appeal. Paragraph 4 of the order provided that:
“For the avoidance of doubt, time for any application for permission to appeal to the Court of Appeal is extended to 21 days after the date that judgment on the Francovich Issue is handed down.”
In September 2022 the judge heard the Francovich damages issue. His judgment was dated 16 September 2022, [2022] EWHC 2348 (TCC); [2023] 1 C.M.L.R. 41. The judge concluded that, for the reasons set out there, the breach was not sufficiently serious to trigger a claim for Francovich damages. An order was drawn up to reflect that, and to give directions for a hearing to deal with all consequential matters. The Recitals to the order of 16 September 2022 included:
“ AND UPON the defendant confirming that, in light of those judgments: (i) it no longer pursues its application for permission to appeal; (ii) the foregoing is without prejudice to its right, under CPR Part 52.13, to file and serve a Respondent's Notice in the event that the Claimant applies for and obtains permission to appeal.”
Time for any application to the Court of Appeal was extended to 21 days after judgment on the consequential matters.
The consequentials hearing took place on 7 December 2022 and a third and final judgment was handed down at [2022] EWHC 3509 (TCC). In consequence of that hearing, an order dated 16 December was drawn up. That recorded the judge's decision on costs and his grant of permission to appeal to Braceurself on what was called Ground 7, namely the issue as to whether the breach was sufficiently serious to justify Francovich dama...
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