Vikram Bhat v NHS Litigation Authority
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 22 February 2024 |
| Neutral Citation | [2024] EWHC 375 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/101/2023 |
The King on the application of
[2024] EWHC 375 (Admin)
Mrs Justice Lang DBE
Case No: CO/101/2023
AC-2023-LON-000189
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jason Coppel KC and Oluwaseyi Ojo (instructed by Taylor Wood Solicitors) for the Claimants
Fenella Morris KC and Rose Grogan (instructed by Capsticks) for the Interested Party
The Defendant did not appear and was not represented
Hearing dates: 30 & 31 January 2024
Approved Judgment
This judgment was handed down remotely at 10 am on 22 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The Claimants seek judicial review of the Determination of the Defendant, dated 10 November 2022, that the General Medical Services Contract (“the Contract”) between the partnership (comprising the Claimants and Mrs Patel) and National Health Service England (“NHSE”) had terminated, whereupon a fixed term contract until 31 March 2022 had come into existence.
The Claimants and Mrs Patel were in a partnership with one another providing general medical services at Sai Medical Centre, Tilbury, Essex pursuant to the Contract with NHSE. The Contract was administered on behalf of NHSE by the local Clinical Commissioning Group (“CCG”) which became the Integrated Care Board (“ICB”) in July 2022.
On 8 November 2021, the Claimants served a notice of dissolution of the partnership on Mrs Patel. The Claimants and the CCG fell into dispute over the consequences of the dissolution for the Contract. The Claimants referred the dispute to the Secretary of State for Health and Social Care (“the Secretary of State”), who appointed the Defendant to adjudicate in the NHS dispute resolution procedure, pursuant to section 9 of the National Health Service Act 2006 (“the 2006 Act”) and section 83 of the National Health Service (General Medical Services Contracts) Regulations 2015 (“the 2015 Regulations”).
In its Determination, the Defendant accepted the CCG's analysis. The Adjudicator found that the Contract had automatically terminated upon Mrs Patel leaving the partnership and had been replaced by an implied fixed-term contract which expired on 31 March 2022. The parties engaged in local dispute resolution on various other matters in dispute which concluded with no agreement. The matter was referred back to the Adjudicator who decided to stay the referral pending the final outcome of the judicial review.
On 9 October 2023, Bright J. granted the Claimants permission to apply for judicial review. The Defendant has taken no part in the proceedings. Its decision is defended by the Interested Party.
History
The Claimants run a medical practice at the Sai Medical Centre, 105 Calcutta Road, Tilbury, Essex, and at two additional branch sites. They are both equity partners in a two-partner partnership. Dr Bhat is a medical practitioner, and Mrs Bhat is the Practice Manager.
The original Contract, dated 17 September 2012, was between NHSE and the partnership trading as Dr Patel & Partners, at Sai Medical Centre, 105 Calcutta Road, Tilbury. The partners were Dr Patel and his wife, Mrs Patel, who was the Practice Manager.
In August 2013, Dr Bhat and Dr Jagadish joined Dr Patel & Partners as locum doctors (not partners).
In March 2014, Dr Bhat and Dr Jagadish became partners in Dr Patel & Partners. At that point, the partners comprised Dr Patel, Mrs Patel, Dr Bhat and Dr Jagadish. According to the findings of Fancourt J. in Bhat & Anor v Patel & Anor [2021] EWHC 2960 (Ch), there was a partnership agreement made in writing on 19 March 2014 between Mrs Patel, as a salaried partner, and Dr Bhat and Dr Jagadish as equity partners.
On a date in 2014 or 2015 (the precise date is unclear from the evidence before me), Dr Patel retired from practice and from the partnership. Following this, the partnership was re-named the Sai Medical Centre.
On 24 April 2015, NHSE, Mrs Patel, Dr Bhat and Dr Jagadish signed a document headed “Variation to General Medical Services Contract” which stated: “This variation amends the General Medical Services Contract in accordance with clause 460 and clause 460.1 the removal of a General Medical Practitioner, Dr P.J. Patel. The practice will be known from this date as the Sai Medical Centre. This requires an amendment to Schedule 1 Part 2 and Schedule 2”.
According to the findings of Fancourt J., a new partnership came into existence under a document titled “Amendment of partnership agreement by adding new partner”, dated 1 April 2016, when Mrs Bhat became a 10% equity partner.
On 31 May 2016, Dr Bhat, Dr Jagadish and Mrs Patel wrote to NHSE informing them that Mrs Bhat had joined the practice as a non-clinical partner.
On 1 July 2016, NHSE, Mrs Patel, Dr Bhat and Dr Jagadish signed a document headed “Variation to General Medical Services Contract” which amended Schedule 1 and Schedule 2 of the Contract to add Mrs Bhat as a partner, with effect from 1 July 2016.
With effect from 31 March 2017, Dr Jagadish retired from the partnership. On 6 April 2017, NHSE signed a document headed “Variation to General Medical Services Contract” (which had been signed earlier by Mrs Patel, Dr Bhat, Mrs Bhat, and Dr Jagadish on 7 February 2017). It amended Schedule 1 and Schedule 2 of the Contract to remove Dr Jagadish with effect from 31 March 2017. Fancourt J. found, at [35];
“d Dr Jagadish then resigned as a partner and there was a further “Amendment of Partnership agreement” made in writing between Mrs Patel and the Bhats. The Recorder did not resolve whether that was operative or a partnership at will existed, but in either case the Bhats were the sole equity partners of the partnership from 1 April 2017.”
In the dispute resolution procedure, it was common ground between the parties that the partnership between the Claimants and Mrs Patel was a partnership at will. At all material times, Dr and Mrs Patel have been the freehold owners of the property at 105 Calcutta Road (“the Property”) and the Claimants are the lessees of the Property, under a business lease.
Dr and Mrs Patel are also the owners of an adjacent site (“the Adjacent Land”) which is next to the Property in Calcutta Road. The partnership intended to develop the Adjacent Land as an extension to the Sai Medical Centre. In about August 2018, Mrs Patel applied for funds from an NHS Improvement Grant in the sum of £531,297.67 in order to redevelop the Adjacent Land, representing 66% of the total cost of the works with the remaining 34% to be paid by the partnership. There is a conflict in the evidence as to whether the Claimants, as the equity partners, did or did not pay their share. NHSE paid additional sums to fund the refurbishment and to meet a shortfall, and an extension to the Medical Centre was constructed.
The Claimants and Mrs Patel fell into dispute over the Adjacent Land, and their relationship broke down. On 20 February 2019, the Claimants informed the CCG that they intended to dissolve the partnership with 2 days notice. The CCG replied to the Claimants' solicitors, Taylor Wood, stating that serving a notice of dissolution would result in the termination of the Contract. Taylor Wood wrote to the CCG on 22 February 2019 and explained that no effective dissolution had taken place and there was no requirement for the CCG to take any steps towards termination of the Contract. The Claimants entered into negotiations with Mrs Patel, which included her resignation from the partnership, but ultimately no agreement was reached.
During the course of 2019, Mrs Patel ceased to attend for work at the practice or have any involvement in the partnership. On 7 August 2019, Mrs Patel commenced possession proceedings against the Claimants for arrears of rent in respect of the Property. On 11 June 2021, the County Court found that there were arrears of rent and that the lease of the Property should be forfeited. However, on 5 November 2021, that decision was overturned on appeal by Fancourt J., who granted relief from forfeiture in respect of the Property, and ordered the Claimants to pay the costs, which they did. The Claimants also claimed a beneficial interest in the Adjacent Land. That claim was dismissed by the County Court and the dismissal was upheld by Fancourt J. on appeal.
After the appeal, on 8 November 2021, the Claimants served on Mrs Patel a document headed “Notice of Dissolution of Partnership” which gave Mrs Patel “formal notice and affirmation of the Dissolution and Termination of our Partnership at Will”. The notice alleged that Mrs Patel had abandoned the partnership and acted in ways which made it clear that she no longer wished to be a member of the partnership, and the Claimants affirmed and accepted her conduct. In the alternative, the Claimants stated that they were dissolving the partnership by notice. The covering letter from Taylor Wood asked Mrs Patel if she would agree to the proposal made by Fancourt J. in paragraph 58 of his judgment to lease the Adjoining Land to the Claimants, so that it could be used for the provision of medical services.
On 24 November 2021, Taylor Wood notified CCG's solicitors, Capsticks, of the service of the notice of dissolution. In response, on 13 December 2021, Capsticks asked Taylor Wood to provide a copy of the notice of dissolution and further information regarding the status of the partnership and the intention for the Contract. The letter set out CCG's position that on dissolution of the partnership the Contract would be terminated by operation of law and an implied fixed-term contract would arise, expiring on 31 March 2022,...
To continue reading
Request your trial