Damages are an adequate remedy in procurement dispute despite no sufficiently serious breach (Millbrook Healthcare Ltd v Devon County Council)
Public Law analysis: In Millbrook Healthcare Ltd v Devon County Council, the Technology and Construction Court (TCC) held that the assessment of whether a breach is sufficiently serious is not directly relevant to determining whether damages will be an adequate remedy at the interim stage of a procurement dispute, such that damages may still be awarded. In particular, the TCC considered well-known case law authorities, which provide that damages are only available in procurement challenges where the contracting authority's breach is ‘sufficiently serious’ (a test derived in EU law). The point was recently considered in Braceurself v NHS England, in which the TCC held that a sufficiently serious breach should be determined by looking at the nature and quality of the breach, rather than the consequences. The effect of the breach itself was not decisive in establishing whether it was sufficiently serious to award damages. However, in Millbrook, the TCC had to consider (i) whether there had been a ‘sufficiently serious breach’ and (ii) if so, whether damages would be an adequate remedy. Written by James Lupton, director, Elinor Jackson, senior associate and Sam Pringle, senior associate at DWF Law LLP.