Consultant Connect Ltd v NHS Bath and North East Somerset, Swindon and Wiltshire Integrated Care Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWHC 2037 (TCC) |
| Docket Number | Case No: HT-2021-000154 |
| Court | Queen's Bench Division (Technology and Construction Court) |
and
[2022] EWHC 2037 (TCC)
Mr Justice Kerr
Case No: HT-2021-000154
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Royal Courts of Justice
Rolls Building, Fetter Lane, London EC4A 1NL
Joseph Barrett and Raphael Hogarth (instructed by Eversheds Sutherland (International) LLP) for the Claimant
Sarah Hannaford QC and Ewan West (instructed by DAC Beachcroft Claims Ltd) for the Defendants
The Interested Party did not appear and was not represented
Hearing dates: 8, 9, 13, 14, 15 June 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and will be released for publication on the National Archives caselaw website. The date and time for hand-down is 10am on 29 July 2022. I direct that no official shorthand note shall be taken of this Judgment and that copies of this handed down version may be treated as authentic.
Introduction and Summary
This is a broad challenge to a procurement in 2020 and 2021 for the supply of communications services for use within the National Health Service ( NHS). The claimant ( CC) already had a contract to supply services relevant to the procurement at three hospitals in the area. The defendants, formerly NHS clinical commissioning groups ( CCGs) 1, asked CC and two other companies to make a presentation in November 2020. All three defendants ( NHS Bath, NHS Gloucestershire and NHS Bristol) were present at the demonstration.
NHS Bath scored the claimant's presentation against that of the two other companies. CC was unaware that its offering was being marked, or what the criteria and scoring system were. CC scored second highest; the highest score went to the interested party ( Cinapsis). Unlike CC, Cinapsis was one of 24 suppliers of communications services appointed to a previously tendered NHS-wide framework agreement ( the framework).
NHS Gloucestershire consulted three other framework suppliers and decided that only Cinapsis was suitable. The defendants decided to hold what was called a “mini-competition” under the framework, but with Cinapsis as the only competitor. The invitation to tender was sent to Cinapsis only. The claimant, as a non-framework supplier, was not invited to compete. The defendants then negotiated directly with Cinapsis, eventually agreed terms and awarded the contract to Cinapsis.
CC then brought the present challenge, arguing that the process was non-transparent, skewed in favour of Cinapsis and in unlawful breach of various provisions in the Public Contracts Regulations 2015 ( the PCR 2015 or the PCR or the Regulations). CC asserts that this was an unlawful direct contract award without competition. The issues for the court's decision were agreed in a detailed list, which I address below.
The main broad questions are whether the CCGs owed the claimant any duties under the PCR; whether the claimant has “standing” to bring the challenge; whether the defendants' use of the framework was unlawful; whether the defendants breached the duties of transparency and equal treatment; whether they provided adequate reasons for their decision; whether there were conflicts of interest and bias in favour of Cinapsis; what remedies, if any, the court should grant; and in particular whether the claimant can establish a right to damages.
The Facts
The three CCGs acted as commissioners of goods and services for the NHS in their respective areas. They operated under the overall guidance of NHS England ( NHSE). The latter had at the relevant time an arm which dealt specifically with electronic communications and technology, known as NHSX. The CCGs were contracting authorities under the PCR 2015.
CC is a provider of electronic communications services to NHS bodies. It provides what is called telemedicine, via its “CC platform”, as its co-founder and CEO, Mr Jonathan Patrick, explained. The CC platform enables messages comprising medical “advice and guidance” ( A&G) to pass between professional staff. The communications may be by telephone ( synchronous) or by written message, where an immediate response is not required ( asynchronous).
Since 2015, CC has acquired contracts with various NHS bodies including contracts for service provision to three NHS trusts in NHS Bath's area: the Royal United Hospitals Bath NHS Foundation Trust ( RUH), the Great Western Hospitals NHS Foundation Trust ( GWH) and the Salisbury NHS Foundation Trust ( Salisbury). The services provided were mainly telephony, with photo messaging in the field of dermatology (skin conditions) and, more rarely, in diabetic podiatry (which concerns the feet of persons with diabetes).
From July 2018, NHS Gloucestershire had a contract with Cinapsis for the provision of A&G services. That contract was entered into under a call-off arrangement in accordance with a “G-Cloud” framework agreement, to which Cinapsis was a party. After an extension, it was due to expire at the end of April 2021. CC's contracts to provide services at RUH, GWH and Salisbury, following some extensions, were due to end a month earlier, on 31 March 2021.
Until fairly recently, NHS organisations made frequent use of pagers. These devices are also known as bleepers or bleeps. There is a quaint old fashioned air about them because they only receive messages and cannot transmit any. A bleep activated by telephone would sound on the device in a clinician's pocket. The clinician would read the message displayed or call the telephone number indicated.
The NHS has a computer patient record system known as the “NHS Spine”. It provides access to basic patient details, such as their name, NHS number, date of birth and registered general practitioner ( GP). An A&G system may or may not have what is called NHS Spine integration. A system which has it may tap into that information. A system that does not must rely on other means to identify the patient concerned, such as typing (or cutting and pasting) the patient's NHS number into an electronic message.
In mid-2020 (when the COVID pandemic was putting huge pressure on the NHS nationally), CC's A&G platform did not have the benefit of NHS Spine integration. CC first obtained it considerably later, in December 2021, just short of three months after starting the process of seeking approval and performing the technical tasks needed to link its platform to the NHS Spine.
Another issue in A&G provision is post event messages ( PEMs). A PEM is a written electronic message generated automatically. The content of the PEM can be determined by a clinician in consultation with the provider. In the middle of 2020, CC's A&G platform was not configured to send a PEM after each telephone call. It was configured to send a PEM after a written communication. In its service provision at the hospitals in NHS Bath's area, CC took advice from GPs in the area on when PEMs were required and their content.
On 23 February 2019, the Secretary of State for Health and Social Care announced that “to bring the NHS into the 21 st century … we're banning pagers right across the NHS”. An accompanying press release said the ban would take effect for non-emergency communications and would need to be implemented by the end of 2021. Pagers would be “phased out”, except for emergency use. Staff would use “modern alternatives, such as mobile phones and apps”.
Dr Chris Dyer was at the time an associate medical director at RUH, where CC was providing A&G services. He was aware that CC's contracts were due to end in the first quarter of 2021. He regarded CC's services as satisfactory but was also thinking about the longer term. He says he and a colleague (a Dr William Hubbard) spoke in about early 2020 to Mr Roger Tweedale of CC and a colleague (Ms Celia Enderby); and that his, Dr Dyer's, impression was that CC had no particular appetite to extend its offering to asynchronous services in other services as well as teledermatology.
Mr Tweedale disputes this evidence. He says he met Drs Dyer and Hubbard in person on 7 January 2020 and remotely on 31 March 2020, both times with Ms Enderby, the account manager for RUH. He produced Ms Enderby's notes of a post meeting discussion they had the next day. He says he could not possibly have shown a lack of appetite for extending asynchronous messaging beyond teledermatology and diabetic podiatry. It would have been inconsistent with CC's approach of developing its offering and tailoring it to client requirements.
I prefer Mr Tweedale's evidence on this issue. I think Dr Dyer's recollection is mistaken. CC's supposed lack of ambition is out of tune with Mr Tweedale's enthusiasm for salesmanship, even extending to the giving of his evidence in court. Mr Tweedale is not one to put off a client. I do not know the full context of the discussions in early 2020. Dr Dyer mentioned them in his second witness statement, not his first. He first mentioned the point in a litigation context, in response to Mr Patrick's evidence that RUH appeared satisfied with CC's service. He produced no written record of the conversation.
On 1 May 2020, NHSX issued a prior information notice ( PIN) for “IT services: consulting, software development, Internet and support”. It was published in the Official Journal of the European Union ( OJEU) on 5 May. The title given to the procurement was “Clinical Communication Tools for NHS Trusts” ( CCTs). In the PIN, they were said to be “for NHS...
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