Where a respondent seeks to uphold a decision for different or additional reasons it must file a respondent’s notice for which permission is not required.
However, where it seeks to challenge or vary an order this is an appeal requiring an appeal notice and permission.
The Court of Appeal has considered the question of when a respondent’s notice to a notice of appeal is really a cross-appeal in disguise for which it requires permission to bring it in Braceurself Ltd v NHS England [2023] EWCA Civ 837.
The case concerned a claim by Braceurself for breach of the NHS’s statutory procurement obligations in respect of orthodontic services in East Hampshire.
A split trial between liability and quantum was ordered with the trial on liability to include whether any manifest breach of the tender evaluation process was sufficiently serious to warrant an award of damages as required by the European Court of Justice decision in Francovich v Italian Republic [1995] ICR 722.
At the liability trial the judge found that there had been manifest errors in the marking of Braceurself’s bid but for which its tender would have been successful.
At a later hearing the judge concluded that the particular breach was not sufficiently serious to trigger the claim for damages.
The NHS had indicated after the liability trial that it intended to appeal the findings of manifest error but following the damages decision it decided not to pursue its application for permission to appeal.
Braceurself obtained permission to appeal the damages issue but was refused permission to pursue other grounds.
The NHS objected to its renewed application to the Court of Appeal arguing that they were appeals against findings of fact.
However, its respondent’s notice served at the same time raised the same four grounds of appeal against the findings of manifest error which it had decided not to pursue.
Was the respondent’s notice really a cross-appeal in disguise for which permission was required?
CPR 52 and its Practice Direction draws a clear distinction between a respondent seeking to challenge or vary an order – which is an appeal requiring an appeal notice and permission – and one seeking to uphold the decision for different or additional reasons which requires a respondent’s notice but no permission.
The NHS was not seeking to appeal the judge’s decision or to seek a variation of it since he found in its favour and the claim against it was dismissed. On the face of it they did not need permission to raise the respondent’s notice.
Louise Clark is a property law consultant and mediator
