In public procurement, the concept of a ‘sufficiently serious’ breach plays a pivotal role in determining whether damages can be awarded to claimants. This article explores this principle in light of the recent case Millbrook Healthcare Limited v Devon County Council [2025].
Defining ‘Sufficiently Serious’ Breach
A breach is considered ‘sufficiently serious’ if it meets the criteria established in the case of Francovich v. Italy [1991]. The breach must be manifest and grave, showing a clear disregard for the limits of discretion by the contracting authority. To determine this, a balancing exercise must be undertaken, considering several factors, including the importance of the principle breached, the clarity and precision of the rule breached, and the degree of excusability of an error of law.
Link to Damages
The ‘sufficiently serious’ criterion is crucial in the context of awarding damages. For a claimant to receive compensation, they must prove that the breach was sufficiently serious. This is a precondition for awarding damages under the Francovich principles.
In Braceurself Limited v National Health Service [2024], the court found that the breach, although leading to the wrong contract award, was not sufficiently serious to warrant damages. This case illustrates the risk that a breach may not meet the threshold for damages, leaving the claimant without an adequate remedy.
Court’s Approach in Millbrook v Devon CC
In the recent case of Millbrook v Devon CC, the court ruled for the automatic suspension to be lifted, enabling Devon CC to award their contract. The case then addressed the argument regarding the ‘sufficiently serious’ breach. Millbrook, reiterated the Braceurself outcome, stating that even if they establish a breach of the Public Contracts Regulations 2015, they may not be awarded damages if the breach is not deemed sufficiently serious under the Francovich criteria.
The court acknowledged this argument but emphasised that it cannot predict the outcome of the substantive trial at this stage. The court must focus on whether damages are an adequate remedy at this point. The final determination of whether a breach is sufficiently serious is made at the substantive trial, involving a detailed assessment of the nature and quality of the breach.
This demonstrates that proving a breach may not automatically lead to damages, even if the breach led to the “wrong” bidder winning. It will be for the Claimant to provide compelling evidence that the breach is sufficiently serious to warrant damages.
Conclusion
Understanding the ‘sufficiently serious’ breach is essential for navigating procurement disputes. Millbrook highlights the importance of thorough legal strategy and risk management on both the claimant and contracting authority’s part. It is clear that the Francovich principles are as important as ever in determining whether damages are an appropriate remedy.
It is interesting that the Courts have been willing to lift the automatic suspension despite the obvious tension between the need for an adequate remedy and the need for the claimant to show a “sufficiently serious” breach before damages are available.
For claims brought under the Act, the old EU rules including the Francovich principle will no longer directly apply, so it will be interesting to see what approach the Courts take in future.
How can we help?
For further information about issues raised in this article, please contact a member of our Procurement team.
