Braceurself Limited v NHS England (No 2: Substantive Appeal)
[2024] EWCA Civ 39
Braceurself Limited v NHS England
14 July 2023
[2023] EWCA Civ 837
Court of Appeal
NHS England won a court case, but the other side appealed part of the decision. NHS wanted to argue against the appeal using points they lost on earlier, but the judge said they didn't need special permission to do that, as they were just supporting the overall win, not trying to change it.
Key Facts
- •Braceurself Limited (Braceurself) appealed a High Court decision dismissing its claim against NHS England (NHS) for breach of statutory procurement obligations.
- •The High Court judge found a manifest error in the NHS's tender evaluation but determined this error was not 'sufficiently serious' to warrant Francovich damages.
- •The NHS filed a Respondent's Notice, raising points challenging the High Court's finding of manifest error, without seeking permission to appeal.
- •The Court of Appeal had to determine if the Respondent's Notice was a disguised cross-appeal requiring permission.
Legal Principles
A respondent's notice is not a cross-appeal if it doesn't seek to appeal or vary the lower court's order, but rather upholds it on different grounds.
CPR 52.13 & PD 52C
An appeal lies against a judgment or order, not against findings of fact or reasoning.
Lake v Lake [1955] 3 W.L.R. 145
Findings of fact without a formal order can still be significant and appealable if they impact the parties' rights and obligations.
Re B (a minor) [2000] 1 W.L.R. 790
A respondent can challenge a judge's findings of fact in a respondent's notice without it being a cross-appeal, unless the overriding objective dictates otherwise.
Cie Noga SA v Australia & New Zealand Banking Group [2002] EWCA Civ 1142
The court considers the substance, not merely the form, of an order to determine if a respondent's notice amounts to a cross-appeal.
Trinity Logistics USA Inc v Wolff [2018] EWCA Civ 2765
Outcomes
The NHS's Respondent's Notice was not a cross-appeal.
The NHS was not seeking to appeal or vary the High Court's order dismissing the claim; they were upholding it on different grounds.
The Court of Appeal declined to exercise its discretion to require the NHS to seek permission to appeal.
Following the CPR and case law, the NHS did not need permission. Requiring permission would create uncertainty and potentially increase costs. The case wasn't analogous to the extreme circumstances in Noga where such discretion was warranted.
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