HT-2024-000378 - [2025] EWHC 354 (TCC)

Third, both Mr Coppel KC and Ms Hannaford KC argue that it is a possibility that DHL or Unipart will establish breach of the PCR but be unable to claim damages for failure to satisfy the Francovich criteria. This would leave the Claimant without an effective remedy. In this respect, Mr Coppel KC relies upon Boxxe Limited v SS for Justice [2023] EWHC 533 (TCC) at [42]. Unlike in Boxxe, the point has not been rendered academic because SCCL has not accepted that it will not argue in due course that the breach(es) is not sufficiently serious to warrant damages.

Since Boxxe, the tension described above has been subject to appellate consideration in Braceurself Ltd v NHS England [2024] EWCA Civ 39; [2024] KB 914. The context of the exploration was different, as in that case the argument by the claimant was that it was incoherent and unjust to hold that a breach was not ‘sufficiently serious’ to warrant an award of Francovich damages where it had been held at the interlocutory stage that damages would be an adequate remedy.

At paragraphs [44], [118] and [119], Coulson LJ said:

“44.

In Alstom, O'Farrell J had said that, if a breach was not sufficiently serious enough to justify the Francovich conditions, it was unlikely to be sufficiently serious to justify setting aside the contract under challenge, Constable J said in Boxxe that there was force in that observation. I agree. In my experience, the present case is therefore unusual, if not unique, because of the vast gap the judge found between the very low culpability on the part of the respondent, and the extreme consequences of the single marking error.

…

118.

I acknowledge that there is some tension between the test to be applied at the interim stage, and the Francovich conditions. That tension was first identified by Fraser J in Lancashire Care, and ways to ameliorate the practical issues that can arise were noted in Bombardier and Boxxe. Furthermore, I acknowledge that, as per O'Farrell J in Alstom, it is not a tension that is likely to come to the surface very often, since in most cases, a breach that would have reversed the result of a tender process is more likely than not to be sufficiently serious to justify Francovich damages.

119.

That of course brings us straight back to our starting point. This was a very unusual and, as the judge said, "most unfortunate", situation. It was also, in my experience, very rare. A single, inadvertent breach in an otherwise impressive and careful procurement exercise caused the wrong result. The judge agonised over the competing factors and in the end concluded that Francovich damages were not justified. Some judges might have come to a different view: that is not the point. The only issue is whether the judge erred in principle in undertaking that exercise. For the reasons that I have given, I conclude that he did not.”

It was urged upon me by the Claimants that the risk of being left with no damages notwithstanding a breach of the PCR and the consequence that, but for the breach, the Claimants have suffered financial losses is not as low as might be suggested in Braceurself. On its face, this case seems a long way from Braceurself. Whilst, of course, I do not by these observations bind any future Court, it would seem unlikely in the present case that if all the claimed breaches together with causation are made out, those breaches would not be sufficiently serious to warrant damages. The question of course remains – what if a single breach is the only one DHL or Unipart make out from their litany of claims, which breach nevertheless has causative impact. If that breach was of particularly low culpability, this may align with Braceurself. But even if the Court could see reliably into the future in this way, whilst the inadequacy of damages test may be passed, this ignores the fact that the Court must also assume when considering the ‘balance of convenience’ that the only relevant breach is one which is of very low culpability and insufficient to pass the Frankovich test. This of itself would weigh, in the exercise of discretion, heavily against setting the Contract Award aside.

Even if I am wrong about this analysis, the probability that this case will turn into the rare circumstances grappled with in Braceurself is sufficiently remote to be discounted.