Perinatal Institute v Healthcare Quality Improvement Partnership

JurisdictionEngland & Wales
CourtQueen's Bench Division (Technology and Construction Court)
JudgeMrs Justice Jefford
Judgment Date21 July 2017
Neutral Citation[2017] EWHC 1867 (TCC)
Date21 July 2017
Docket NumberCase No: HT-2016-000201

[2017] EWHC 1867 (TCC)




Royal Courts of Justice

Strand, London, WC2A 2LL


Mrs Justice Jefford

Case No: HT-2016-000201

Perinatal Institute
Healthcare Quality Improvement Partnership

Miss Rebecca Haynes (instructed by My Business Counsel) for the Claimant

Mr Jason Coppel QC and Mr Joseph Barrett (instructed by Gardner Leader) for the Defendant

Hearing date: 8 th June 2017

Judgment Approved

Mrs Justice Jefford

On this occasion, there were before the Court two applications: by the Claimant, the Perinatal Institute ("PI"), to amend the Claim Form and Particulars of Claim to add a Fresh Claim ("the Fresh Claim") and by the Defendant, the Healthcare Quality Improvement Partnership ("HQIP"), to strike out the existing pleaded claim ("the Original Claim"). Given the urgency of some of the matters raised, I gave short oral reasons for my decision at the conclusion of the hearing and directions for the immediate future conduct of the action. I undertook to provide full written reasons and these are those reasons. On 27 June 2017, these were provided to the parties in draft for comments. I indicated that, as a matter of convenience, judgment would be handed down at the hearing of the Case Management Conference. Neither party has asked for judgment to be handed down any earlier.



The background to this matter is set out in my judgment on HQIP's successful application in October 2016 to lift the automatic suspension on contract award under Regulation 95(1) of the Public Contracts Regulations 2015. I repeat what I said there in summary form only:

(i) HQIP is an independent organisation established in 2008 to promote quality in healthcare and in particular to increase the impact of clinical audit on healthcare quality improvement.

(ii) PI is a national not for profit company whose primary mission is to enhance the quality and safety of maternity care.

(iii) HQIP was given the task by the Department of Health and the devolved governments of Scotland and Wales of commissioning a project to implement standardised mortality reviews across the NHS principally through training and the use of software to enable local and national collection and analysis of data. The purpose of this project was to reduce the level of perinatal deaths (encompassing still births and early neonatal deaths).

(iv) An invitation to tender ("ITT") was sent out on 29 March 2016 seeking an appropriate software tool to achieve these aims. It provided that the timetable for the procurement was that the contract award decision would be notified on 17 June 2016; the contract would be awarded on 28 June 2016; and the contract would commence on 1 July 2016 for a national roll out in March 2017. I note that, on this timetable, contract award was to be shortly after the decision and roll out within 9 months thereof.

(v) PI submitted a tender as did a consortium led by Oxford University's National Perinatal Epidemiology Unit ("NPEU"). NPEU's bid was the winning bid.

(vi) By a Claim Form issued on 27 July 2016 PI challenged that decision as a result of which the contract award was stayed. Thereafter, Particulars of Claim were served on 3 August 2016; the Defence was served on 30 August 2016 followed by a Reply; the application to lift the stay was issued on 21 September 2016 and was followed by a hearing on 5 October 2016. I handed down judgment on 26 October lifting the stay.

(vii) A contract with NPEU was subsequently entered into on 21 December 2016.

The Original Claim


The Original Claim alleged, amongst other things, that the evaluation or preference of NPEU's bid was unlawful or irrational in a number of respects. Central to this case was the express requirement in the ITT that the tool was to be able "to prompt for when and how to seek parents input into the review and when to communicate with parents about outcomes." NPEU's bid was said by HQIP to provide them with greater assurance than PI's bid about obtaining patient consent "because of their plans to use s.251 approval to address patient confidentiality."


Section 251 of the National Health Service Act 2006 permits the Secretary of State to make regulations for processing patient information. Under the Health Service (Control of Patient Information) Regulations 2002 (which I understand were adopted under provisions subsequently consolidated in the 2006 Act) confidential patient information may be processed for specified types of or aspects of medical research if that processing has been approved by the Health Research Authority (" HRA"). The HRA has established a Confidentiality Advisory Group ("CAG") to advise it on applications for approval. In accordance with s. 251(4), regulations may not make provision requiring the processing of confidential patient information if it would be "reasonably practicable to achieve that purpose" in some other way. The HRA's published policies reflect that in that the HRA and the CAG will consider whether it would be reasonably practicable to seek patient consent.


As I summarised at paragraph 20 of my earlier judgment, PI's key complaints were these:

(i) that HQIP had misdirected itself as to the law relating to s.251 in that approval under the Regulations is not available where it is practicable to obtain patient consent;

(ii) that HQIP had misdirected itself and/or erroneously or irrationally concluded that patient consent cannot be obtained in circumstances where its own specification and the duty of candour (in Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014) necessarily renders patient consent a practicable option;

(iii) that HQIP had, as a result, selected a bid which would not or was unlikely to gain approval under s.251.


That case was strongly disputed by HQIP both on the facts and on the law, HQIP arguing on the previous application that there was no serious issue to be tried. I rejected that particular submission. In doing so I said this:

"PI's case cannot be said at this stage to be misconceived: the inference which it draws that the winning bid does not allow for patient input is tenable and the evidence to refute that inference is limited and does not give any detail as to NPEU's bid. If the inference that PI draws is right, that would mean that a bid has been preferred that makes no provision for patient input and PI has at least an arguable case that to prefer such a bid is irrational."

The Fresh Claim


There was plainly a delay in the progress of this project from what was contemplated in the ITT because of the stay and the proceedings in relation to it:

(i) As I have said above, the contract was then entered into 2 months after my judgment was handed down.

(ii) NPEU's website states that the tool is currently being developed and will be piloted over the summer of 2017 with a roll out planned by the end of the year.

(iii) No application for approval under s.251 has yet been made. In a statement from Mr Felton, of HQIP's solicitors, he says that the application will be submitted next month and that approval is expected in August/ early September.


On this basis, PI infers that the contractual timetable has been varied to afford NPEU time to develop its tool and that the tool was never ready to implement in accordance with the ITT. As a result, PI also infers that the contract and/or specification has been amended in breach of Regulation 72 of the Public Contracts Regulations; indeed PI go further in inferring that it has been amended to reflect PI's tool. This is in essence what is relied upon as giving rise to the Fresh Claim.


For the reasons I address below, PI says it did not and could not have become aware of anything of this nature until at earliest 13 March 2017.


Since then PI has sought to amend the existing claim but has not issued fresh proceedings. PI argues that this is a convenient course to take because much of the background to the claim is already pleaded and amendment avoids significant duplication. One objection that might be taken to this course is that no cause of action in respect of the fresh claim could have arisen at the date of the issue of the Claim Form. In answer to that potential point, PI relies on the decision of Chief Master Marsh in The Football Association Premier League Limited v O'Donovan and Barclays Bank [2017] EWHC 152 (Ch). The claim related to alleged infringement of copyright in logos for the 2015/2016 football season. An application was made to amend to add claims relating to the following season which had not arisen at the time of issue. The Chief Master held that there was nothing in the CPR or general law that prevented the addition of such claims and that, as the CPR encourages parties to resolve all issues in one claim, the Court would lean in favour of adding claims rather than requiring the issue of a new claim where possible. One of the instances, however, where that was not possible was where there was a limitation defence.


The principal ground then on which HQIP opposes this application is that the Fresh Claim is or is arguably time barred. HQIP says, therefore, that the Court should not allow the amendment but should leave the Claimant to decide whether to take its chances in issuing a fresh Claim Form in which proceedings HQIP would be able to raise its limitation defence. The Defendant's secondary ground of opposition is that the fresh claim is wholly without merit. It is convenient to take HQIP's arguments first.

The limitation period


Regulation 92 is headed "General time limits for starting proceedings". It provides as follows:

(1) This regulation limits the time within which proceedings may be started where the proceedings do not seek a declaration of...

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