Blake Morgan leads NHS England to Court of Appeal victory

Posted on 8th February 2024

Leading law firm Blake Morgan has supported NHS England in successfully defending a public procurement claim from a contractor in the Court of Appeal.

In one of the first cases in recent years providing important Court of Appeal authority on the application of the “sufficiently serious” test to damages claims in procurement challenges, the judgment handed down on 30 January upheld the decision from the High Court in this respect and found the test to have been correctly applied.

In a significant ruling, the Court of Appeal agreed with the court below that an alleged error made by NHS England in a procurement process – which it had been suggested led to the claimant being unsuccessful in a tender – was not ‘sufficiently serious’ to grant an award of damages.

Braceurself Ltd – an orthodontic service provider – had made a public procurement claim after it was unsuccessful in winning a large contract with NHS England in 2019. The contractor claimed that NHS England had committed a manifest error of assessment in scoring its bid during the procurement process, which led to it being unsuccessful, and losing out on a multi-million pound contract.

In 2022, the High Court had ruled that NHS England had made a manifest error which impacted the outcome of the procurement process, but ruled that this was not ‘sufficiently serious’ to warrant an award of damages to the claimant. This decision was appealed by Braceurself Ltd.

The Court of Appeal has now found that the ruling that the alleged breach was not sufficiently serious was sound. However, it also went on to rule that NHS England had not in fact made a manifest error, demonstrating a rare overturning of a finding of fact by a lower court in the Court of Appeal.

Blake Morgan’s team has been led by lawyers Sarah Whittle and Daniel Taylor. The firm has strong expertise in commercial dispute resolution and advises public sector and private clients on a range of areas including public procurement disputes. The firm’s Commercial Disputes team has been recognised in legal rankings by Chambers and Partners and Legal 500.

Sarah Whittle, Legal Director at Blake Morgan, said:

This ruling is a significant milestone in the development of procurement law.

The case provides important authority from the Court of Appeal on the application of the ‘sufficiently serious’ test when applied to damages in procurement challenges.

Our team has worked tirelessly over the past five years to secure this outcome for our client and we are delighted to have done so. At a time when procurement law is evolving, with the Procurement Act due to come into force this year, we continue to support clients to navigate this space.

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