Vasant (t/a MK Vasant & Associates) & Ors v NHS Commissioning Board, Court of Appeal - Queen's Bench Division, November 07, 2018, [2018] EWHC 3002 (QB)

Resolution Date:November 07, 2018
Issuing Organization:Queen's Bench Division
Actores:Vasant (t/a MK Vasant & Associates) & Ors v NHS Commissioning Board
 
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Neutral Citation Number: [2018] EWHC 3002 (QB)

Case No: HQ17X02248

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 7 November 2018

Before :

MR JUSTICE MURRAY

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Between :

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Ms Marie Demetriou QC and Mr Simon Butler (direct public access) for the Claimants

Mr Parishil Patel QC (instructed by Hill Dickinson LLP) for the Defendant

Hearing dates: 8, 9 and 10 October 2018

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Mr Justice Murray :

  1. This is a claim for declaratory and, if appropriate, injunctive relief in respect of contractual arrangements between the claimants, who are registered general dental practitioners operating in Croydon, and the defendant, the NHS Commissioning Board, commonly known as ``NHS England''.

    The parties

  2. The claimants are:

    i) Dr Manjul Vasant, who is the principal of MK Vasant and Associates Dental Centre and who has worked in general dental practice since 1973 and at Croydon University Hospital since 1985;

    ii) Dr Angelica Khera, who is the principal of The Family Dental Practice, joined the practice of Dr John Darby in 2002, became a co-principal of Dr Darby's practice on 1 April 2008 and the sole principal upon his retirement; and

    iii) Dr Gursharan Kalsi, who is the principal of Lancaster House Dental Practice and who qualified as a dentist in 1990.

  3. The defendant is NHS England. In relation to the contractual arrangements at issue in this case, it is the successor body to the Croydon Primary Care Trust (``Croydon PCT'').

    The principal issue

  4. It is common ground that each claimant provides general dental services (``GDS'') to NHS England under a General Dental Services Contract (``GDS Contract''), which in each case was originally entered into with Croydon PCT.

  5. The GDS Contract for each claimant is on identical terms, entered into by Croydon PCT under a power conferred by the National Health Service Act 1977 and subject to regulations issued under that Act, in particular, the National Health Service (General Dental Services Contracts) Regulations 2005 SI 2005/3361.

  6. For purposes of the trial, I had before me the GDS Contract entered into between Dr Vasant and Croydon PCT on 1 April 2006. Dr Kalsi's GDS Contract and, I assume, Dr Darby's GDS Contract were also entered into on 1 April 2006. When Dr Khera entered into partnership with Dr Darby on 1 April 2008, becoming at the same time the Managing Partner, Dr Darby's GDS Contract was assigned to her with the consent of the Croydon PCT.

  7. The issue in the case is what contractual arrangements apply to intermediate minor oral surgery (``IMOS'') services, such as tooth extraction, provided by the claimants to the defendant.

  8. The answer to this question determines whether, as NHS England alleges, it has the right to determine its contract with each claimant on 28 days' notice or, as the claimants allege, the claimants have the right to provide the services indefinitely, in the absence of termination for cause. Broadly and informally speaking, if I find that IMOS services are provided under the GDS Contract, the claimants win. If I find that not to be the case, NHS England wins.

  9. The claimants say that their case is clearly established on the face of the documents, construed in accordance with the normal principles of contractual construction. If, however, that is not correct, the claimants say that NHS England is, in any event, estopped from terminating each claimant's contract to provide IMOS services.

  10. NHS England says that the contractual variation in 2009 purporting to bring IMOS services within the scope of the GDS Contract was ineffective and that the claimants' case on estoppel is not made out on the evidence.

    Factual background

  11. On or about 5 March 2007 Dr Vasant and Dr Siddharth Persaud, who was then and remains the principal of Purley Whites Dental Care, each entered into a contract with the Croydon PCT for the provision of minor oral surgery (``MOS'') services for a fixed period of three months ending 4 June 2007, under a document headed ``Contract for the provision of a [sic] advanced mandatory Minor Oral Surgery (MOS) Service'' (``the MOS Contract''). (I note that Dr Vasant in his first written witness statement at paragraph 4 indicated that it was The Family Dental Practice (Dr Darby's practice) who had the other MOS Contract, however this is contradicted by a document entitled ``Intermediate Minor Oral Surgery (IMOS) Service Briefing Paper for Board'', undated, but which according to the trial bundle index is dated 11 December 2007. Dr Persaud does not mention entry into the MOS Contract in his own witness statement. Nonetheless, it seems that the Briefing Paper is likely to be accurate on this point.)

  12. This was, in effect, a pilot scheme to shift certain MOS services from the Mayday Hospital (``the Hospital'', which in 2010 changed its name to Croydon University Hospital) to a primary care setting in order to reduce waiting lists at the Hospital. Under the MOS Contract, the contractor was provided a fee of £120 per patient following completion of the treatment.

  13. In November 2007 the Croydon PCT, following an open tender exercise, selected four practices, namely, those of Dr Vasant, Dr Darby, Dr Kalsi and Dr Persaud, to participate in a 12 month pilot scheme for the provision of IMOS services, with a view not only to reducing the waiting list for treatment at the Hospital but also to reducing cost. Providing IMOS treatments in a primary care setting was less expensive. The contract ran for a fixed period of 12 months from 1 December 2007 to 30 November 2008. Dr Vasant signed his contract on 14 April 2008, Dr Kalsi on 22 April 2008 and Dr Persaud on 14 April 2008. I assume that Dr Darby, who did not provide evidence in these proceedings, signed his contract around the same time.

  14. In relation to this 12 month pilot scheme, there was a triage system to decide which patients referred by general practitioners for an IMOS treatment should be seen at the Hospital and which should be seen by one of the four IMOS services providers (``the Providers'', including Dr Khera as successor to Dr Darby). The terms of the service were set out in a contract headed ``Contract for the Provision of an Intermediate Minor Oral Surgery (IMOS) Service in a Primary Care Setting'' (``the IMOS Contract'').

  15. Mr James Butcher of the Croydon PCT was the principal contact of each Provider in relation to the IMOS Contract.

  16. NHS England contends that the provisions of the IMOS Contract, including the provisions as to termination set out in clauses 50 to 52, continue in effect to govern the provision of IMOS services by the four Providers. Under those provisions, each party is entitled to terminate the contract upon the giving of one month's notice.

  17. The claimants contend that the provision of IMOS services by each Provider is now governed by the Provider's GDS Contract, pursuant to a GDS Contract Variation Agreement Form signed by Croydon PCT on 7 April 2009 (``the VAF''). Under Part 22 of the GDS Contract, which deals with variation and termination of the GDS Contract, termination on notice of the GDS Contract or any service provided under it is only permitted in circumstances that do not apply to this case. There is no general right of termination by notice.

  18. Under the IMOS Contract each Provider was entitled to a fee of £150 per patient upon completion of an IMOS treatment. They were also entitled to fees of £10 for periapical radiographs, £30 for orthopantomographs and £200 for triage. The triage fee was paid directly to the oral surgeon who carried out the triage. The other fees were paid directly to the practice along with a procedure fee on a monthly basis based on a log sent to the Croydon PCT.

  19. Each of the claimants and Dr Persaud in his or her first witness statements gave evidence that following the end of the pilot period to 30 November 2008, the Croydon PCT conducted a further tender exercise to deliver IMOS services, and that each was interviewed during that exercise and appointed pursuant to that exercise, alongside the other Providers. In her evidence, given on behalf of NHS England, Ms Mervlyn Clarke, the Senior Commissioning Manager for Dental, Optometry & Pharmacy in NHS England, London Region, noted that there was no record of such an exercise having been conducted at that time.

  20. Having seen Ms Clarke's evidence in her first witness statement dated 10 September 2018, each of the claimants and Dr Persaud acknowledged that they were probably mistaken. Ms Clarke herself suggested that perhaps they were, in fact, thinking of the 2007 exercise, when giving this evidence. This common mistake of the Providers, and the general degree of overlap between their first witness statements, demonstrates, not surprisingly, that the evidence of each of these witnesses is not independent. In this case, however, I do not read too much into that. The case for each claimant and the case for NHS England in respect of each claimant is, in substance, the same. Most, if not all, of the essential facts in this case are not in dispute. This case turns on the proper construction of the contractual arrangements between each claimant and NHS England in respect of IMOS services.

  21. Given the full alignment of the factual basis for each claimant's case, I was given only the key contractual documents and letters from NHS England that concern Dr Vasant. In relation to those, I have assumed, unless otherwise indicated below, that there is no material difference in the corresponding document or letter relating to each other claimant or, where relevant, Dr Persaud.

    The VAF

  22. On 7 April 2009, Mr Butcher sent the following e-mail to the Providers:

    ``Dear all,

    You will shortly be receiving two copies of a GDS contract variation form from the PCT. These make a clause change...

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