Supreme Court re-writes the law of procurement damages


The Supreme Court has today handed down judgment in the preliminary issues appeal in EnergySolutions v NDA [2017] UKSC 34. The Court, allowing NDA’s appeal on the main issue, has unanimously held that damages in procurement claims are not awarded as of right, but should only be available if any breach of duty that is established is ‘sufficiently serious’ within the meaning of the EU law conditions for Member State liability (i.e. the well known Francovich/Factortame conditions). The judgment potentially has very significant implications for all procurement litigation in the UK.

11KBW will shortly hold a seminar to discuss the implications of the judgment, with a venue in central London.

Nigel Giffin QC, Joseph Barrett and Rupert Paines of 11KBW (together with David Pannick QC in the Supreme Court) acted for NDA.