Jurisdiction(s):
United Kingdom

Braceurself v NHS England: Court of Appeal clarifies 'sufficiently serious' test for procurement damages—focus on culpability, not outcome (England and Wales)

Published on: 13 February 2024

Published by a LexisNexis Public Law expert

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Article summary

Braceurself Ltd v NHS England [2022] EWHC 2348 (TCC) What are the practical implications of this case?

Mistakes arise in public procurement from time to time; however, when courts seek to do justice between the parties, both the intention behind, and the impact of, such errors remain significant. For practitioners, the priority is to deploy relevant, objective selection criteria and to avoid scoring errors—whether inadvertent or otherwise—and to take prompt remedial steps at the earliest opportunity, thereby minimising the scope for contentious proceedings and unfavourable factual findings in court on a damages claim. At first instance, the judge concluded that the phrase “sufficiently serious” signals a relatively demanding threshold before the test is met, having regard to all the facts and circumstances (as recorded at para [15] of the judgment). Those threshold considerations are liable to provide some reassurance to practitioners where an error is a one-off, was not intentional or deliberate, the procurement overall was competently delivered, and it did not lead to serious consequences...

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