Dr Angelica Khera v NHS Commissioning Board
| Jurisdiction | England & Wales |
| Judge | Master Stevens |
| Judgment Date | 26 April 2023 |
| Neutral Citation | [2023] EWHC 958 (KB) |
| Docket Number | Case No: QB-2022-001183 |
| Court | King's Bench Division |
[2023] EWHC 958 (KB)
Master Stevens
Case No: QB-2022-001183
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Simon Butler (instructed by Dr Angelica Khera) for the Claimant
Carl Harrison (instructed by Hill Dickinson LLP) for the Defendant
Hearing date: 30 th November 2022
Approved Judgment
This judgment was handed down remotely at 10.00am on 26 th April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This matter came before me to determine whether the court has jurisdiction to try the claim, and if not, to set aside the Claim Form. The claimant is a supplier of primary dental services in South Norwood, London trading under the name of the Family Dental Practice (“FDP”), and the defendant is the public commissioning board for such services. A dispute has arisen as to the correct level of remuneration to which the claimant was entitled under various contractual arrangements with the defendant.
Whilst not material to my decision I consider it helpful to understand the background to the problems which appear to have arisen as a result of the claimant entering an NHS England pilot scheme to trial a new way of delivering dentistry whereby each patient visiting the practice was required to undertake an oral health assessment. The claimant asserts that this process more or less doubled check-up times causing longer waiting lists and many patients elected to find other dentists in the locality. Upon exiting the pilot, the practice has encountered difficulty in rebuilding patient lists to their pre-pilot level, resulting in a fall in turnover against annual targets set, and prepaid by, the commissioning body. The claimant expresses a sense of injustice that she was assured she would not be disadvantaged by agreeing to participate in the pilot. The defendant maintains that it allowed a sufficient period of grace for the practice to rebuild before seeking any clawback, having waived any claim for two years after the pilot exit, and that it has a duty to the public purse not to forego recoupment indefinitely.
In September 2020 the defendant provided the claimant with two options regarding alleged contract breaches for non-performance in financial years ending 31 st March for 2018/19 and 2019/2020; the recovery now being sought in respect thereof amounts to £807,857.97 plus interest. The claimant asserts that the reasons for non-performance (inability to secure sufficient patients to complete post-pilot contracted units of dental activity) were beyond her control, and furthermore, the retrospective nature of the request for clawback of monies paid means that she has acted to her detriment by continuing with the commissioning contract and incurring and discharging significant practice overheads. She maintains that she cannot afford to repay the sums sought, even if they are claimed validly, which is also contested.
The nub of the issue for me determine is whether this dispute can properly be resolved through court process or whether it should be conducted through the Primary Care Appeals Service (“PCA”) to whom a referral has already been made by the defendant although that post-dated the issue (but not service) of these proceedings. The hearing bundle comprised over 1000 pages (not all numbered) including numerous authorities. Accordingly, judgment was reserved.
THE APPLICATION
The application has been made by the defendant under CPR 11(1) (a) for a declaration that the court does not have jurisdiction to try the claim, such that the claim form should be set aside pursuant to CPR 11(6) (a). In the alternative, the defendant seeks under CPR 11(1)(b) a declaration that the court should not exercise any jurisdiction which it may have to try the claim and an order staying proceedings pursuant to CPR 11 (6) (d).
THE ISSUES
The parties had different lines of reasoning as to how I should resolve the question of jurisdiction. According to the defendant it was central to the dispute is the question as to whether or not the General Dental Services (“GDS”) contract to which the parties were signatories, was an NHS or non-NHS contract at the time these proceedings were issued, whilst the claimant maintained that whilst the contract is still labelled as an NHS one it should not be as that position was waived by the defendant's conduct in earlier and unrelated proceedings between the parties. I considered that to resolve the matter requires an understanding of:
a) The way in which a contract is designated an NHS or non-NHS one and the essential difference between the two types of contracts as it impacts choice of dispute resolution mechanisms.
b) Whether the parties' prior participation in unrelated court proceedings in 2017 is relevant as to the status of the contract then as a non-NHS or an NHS one.
c) Whether subsequent to judgment in the 2017 proceedings there have been any circumstances to alter the NHS/non-NHS status of the contract despite the GDS contract clauses prohibiting non-written variations or any form of waiver for reasons of contract, statute and public policy.
d) There is what I believe to be a side-issue about whether some correspondence dated 19.11.22 between the parties, relating to this dispute, and which the defendant asserts was sent on a without prejudice basis to try and resolve matters, should be disclosed to me. That material has been redacted in the copy before me, and the question is whether it should be unredacted as it is said by the claimant to be relevant to the dispute. I said at the outset of the hearing I would hope to determine the central issues without reference to that material.
e) Finally, if I decide the Court does have jurisdiction then I was invited not to exercise it and instead to stay the proceedings; but this point was conceded in oral submissions for the claimant.
Before examining the issues, I will summarise the chronology.
CHRONOLOGY
THE NATURE OF THE CONTRACT BETWEEN THE PARTIES
(i) GENERAL DENTAL SERVICES CONTRACT
| 1 April 2006 | FDP signs GDS and opted to be a health service body |
| 27 April 2011 | Contract variation such that the claimant became the sole provider in place of the previous partnership arrangement for FDP |
| 1 August 2011 | Dental Pilot Contract entered between the parties (underlying GDS contract remains in force) |
| 7 May 2015 | Meeting of parties concerning underperformance during the pilot and agreement not to seek any clawback of monies for financial years ending March 2016 and March 2017. |
| 31 August 2015 | Dental Pilot exit |
| 28 June 2017 | Claimant and others commence High Court proceedings against the defendant in respect of intermediate minor oral surgery services (“the IMOS proceedings”) |
| 10 August 2017 | Defence filed in the IMOS proceedings without raising a jurisdiction challenge |
| 7 December 2018 | Judgment handed down in the IMOS proceedings |
| 16 July 2019 | Appeal judgment handed down in the IMOS proceedings |
| 7 February 2020 | Parties meet to discuss underperformance 2017/18 and 2018/19 (NB it is accepted that following the departure of the defendant's representative from NHS England in 2018 there were no more local discussions around non-performance for these years prior to this meeting) |
| 16 September 2020 | Defendant sent the claimant a letter outlining options concerning the dispute and stating if neither are acceptable the matter can be referred to the NHS Litigation Authority |
| 4 October 2020 | Claimant's legal representative's letter to Defendant asserts the GDS contract is a non-NHS contract and therefore the claimant cannot be forced to progress dispute resolution through the PCA and that she chooses court proceedings if no other resolution is possible |
| 23 November 2020 | Defendant's legal representative acknowledges letter of 4.10.20 |
| 4 December 2020 | Second Breach Notice issued by defendant also stating if the dispute cannot be resolved it can be referred to the NHS dispute resolution procedure |
| 15 December 2020 | Claimant's legal representative's letter to Defendant's legal representative expressing concern as to whether defendant will terminate the GDS contract and/or withhold or deduct monies otherwise payable – noting the pressure on the practice already from Covid and seeking reassurances failing which injunctive court proceedings would be commenced |
| 16 December 2020 | Reply to letter of 15.12.20 – states “it is quite remarkable that your client is the one referring to the potential need for legal proceedings, and we are intrigued as to what your client's cause of action might be”. (Page 207 of bundle) Second letter of the same date asserts that no interim injunctive relief is required and there is no legitimate basis to seek it, but that if the claimant persists with such a course they are instructed to deal and accept service. Also notes that they are prepared to mediate. |
| 4 April 2022 | Email from defendant to claimant referencing letter of 4.10.20 and considering next steps- requests basis of assertion that GDS contract was a non-NHS one. An undated (? 8.4.22) reply from the claimant states that the contract status was waived by the defendant's conduct in the earlier court proceedings between the parties and that the GDS non-waiver clause is unenforceable in respect of the doctrine of election so court proceedings will be required if the dispute cannot be resolved |
| 8 April 2022 | Proceedings issued protectively-it appears from the papers before me that the defendant was unaware prior to service |
| 14 June 2022 | Head of Primary Care Commissioning email to Claimant —... |
To continue reading
Request your trial