Court Of Appeal Clarifies Use Of A Respondent’s Notice – Braceurself Limited v NHS England
Author: Jared Ursell
The Court of Appeal has handed down judgment today in the case of Braceurself Limited -v- NHS England  EWCA Civ 837 in respect of an important preliminary issue, namely the proper use of a Respondent’s Notice. The Acuity Law team was led by Aisha Wardell and Jared Ursell.
Braceurself Limited (“Braceurself”) commenced proceedings against NHS England (“the NHS”) for breach of the NHS’s statutory procurement obligations, as a result of (on Braceurself’s position) manifest errors by the NHS in the tender evaluation process.
At a costs and case management hearing, Mr Justice Fraser ordered a split trial between liability and quantum. The “Francovich” issue, namely whether any manifest breach was “sufficiently serious” to warrant an award of damages, was to be heard at the liability trial.
Following a trial in front of Alexander Nissen KC (sitting as a Deputy High Court Judge) between 28 February – 4 March 2022, the Court found that there had been a manifest error which, had it not occurred, would have resulted in Braceurself being the successful bidder.
The Judge invited further submissions on the “Francovich” issue, which was then to be dealt with at a further hearing. Before the “Francovich” issue was heard, the NHS indicated that they intended to appeal against the findings of manifest error, and prepared and filed Grounds of Appeal (with four grounds being advanced). The parties agreed, and the Court subsequently ordered, that time for any permission to appeal application be adjourned until 21 days after the judgment on the “Francovich” issue is handed down.
The hearing of the “Francovich” issue took place in September 2022, again in front of Alexander Nissen KC. The Judge concluded that the breach by the NHS was not sufficiently serious to trigger a claim for “Francovich” damages. Time for any application to the Court of Appeal was extended to 21 days after judgment on the consequential matters.
Braceurself sought, and was subsequently granted, permission to appeal from the Court of Appeal on all but one of its grounds. The NHS lodged a Respondent’s Notice, seeking to uphold the order of Alexander Nissen KC for other reasons. In particular, points (i) – (iv) of the Respondent’s Notice reflected the draft Grounds of Appeal submitted by the NHS in respect of the manifest error finding.
Those points raised in the NHS’ Respondent’s Notice attracted initial concern from the Court of Appeal (Lord Justice Coulson), due to the fact that, on the face of it, in advancing those points the NHS was effectively asking the Court of Appeal to overturn the earlier finding of manifest error, rather than dealing specifically with the “Francovich” damages issue (in respect of which Braceuself was appealing).
A preliminary hearing took place on 15 June 2023, the focus of which was for the Court of Appeal to determine whether points (i) – (iv) in the NHS’ Respondent’s Notice were, as the NHS contended, properly advanced by the NHS as other reasons as to why the order should be upheld or, as Braceurself contended (and which followed the Court of Appeal’s initial view), whether the NHS was required to cross-appeal in respect of those points.
The difference between the two position is significant: if the NHS was permitted to advance points (i) – (iv) in its Respondent’s Notice, it could do so unpoliced and permission to appeal was not required from the Court of Appeal – it was entitled to run with those points at the substantive appeal hearing; if, however, those points ought to have properly been raised by way of a cross-appeal, permission to appeal from the Court of Appeal was required. In respect of the latter position, the NHS would likely have faced difficulty obtaining permission to appeal as both the lower court and the Court of Appeal expressed the view that the four grounds seemed primarily to be attacks on the judge’s findings of fact.
The Court of Appeal (LJ Coulson, LJ Simler, LJ Whipple) ultimately found that the NHS was not required to seek permission to appeal from the Court of appeal to raise points (i) – (iv) in its Respondent’s Notice. This was because, in the Court’s views, no question of an appeal arose on either side until the “Francovich” damages issue was decided – and, in particular, unless and until Braceurself appealed the “Francovich” damages issue, there would have been nothing for the NHS to appeal, given that there was no “sufficiently serious” breach.
The Court of Appeal did, however, acknowledge that the current position is an uncomfortable one, in that it has the potential to place a Respondent in a more favourable position than an Appellant; given save for permission being granted by the lower court, an Appellant will always require permission to appeal in respect of every ground of appeal advanced, whereas a Respondent is not faced with the same level of (or indeed any) scrutiny at permission to appeal stage.
The Court of Appeal has raised the issue with the Civil Procedure Rules Committee which, coupled with the initial concern of the Court of Appeal (leading to this preliminary issue having to be determined), suggests that the Court of Appeal acknowledge that the law in this area is currently unsatisfactory.
A copy of the judgment can be found here.