January 31st, 2024 by James Goudie KC

In EU law the Francovich/Factortame conditions for state, that is public authority, liability in damages include that the breach is “ sufficiently serious “. This applies for example to damages for breach of the Public Contracts Regulations 2015 and the Concession Contracts and Utilities Contracts Regulations 2016, implementing EU law There has been case law on what constitutes being “ sufficiently serious “, notably Energy Solutions v NDA (2016) EWHC 3326 (TCC) and (2017) UKSC 34. The post Brexit Procurement Act 2023, not implementing EU law,   contains no express requirement for a breach to be sufficiently serious. Does this mean that the requirement has gone? No, says Coulson LJ in Braceurself Ltd v NHS England (2024) EWCA Civ 39.

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