NHS Commissioning Board v Bargain Dentist.Com

An NHS contract under section 9(5) of the National Health Service Act 2006 cannot give rise to contractual rights or liabilities. A later variation converting the arrangement into an ordinary contract cannot retrospectively create a private-law cause of action for earlier breaches. Where regulations make careful transitional provision for disputes following a change of status, the court will not imply additional machinery. A detailed statutory dispute-resolution scheme, under which a determination is binding unless challenged by judicial review, is incompatible with a parallel equitable or restitutionary remedy enabling a party to circumvent that determination.

The NHS Commissioning Board brought claims against dental-service providers for alleged overpayments arising during periods when their arrangements with primary care trusts were NHS contracts. The providers later varied their contracts so that they ceased to be regarded as health service bodies. The Board also sought to withhold sums from Dr Yellon in respect of matters previously referred to, and determined by, the Family Health Services Appeal Unit under the statutory disputes procedure.

The providers applied for strike-out or summary judgment. The central questions were whether the Board could sue in contract for alleged breaches occurring before the variations, and whether it could rely on contractual, equitable or restitutionary remedies despite the earlier determination.

1. Applications allowed. The claims in actions 875 and 925, and the counterclaim in action 737, were struck out.
2. Section 9(5) of the National Health Service Act 2006 clearly provides that an NHS contract must not be regarded as giving rise to contractual rights and liabilities. The Board therefore had no private-law cause of action for alleged breaches occurring while the arrangements were NHS contracts. A later ordinary contract on identical terms could not retrospectively create liabilities which had not existed before the variation.
3. The approach was supported by Pitalia v National Health Service Commissioning Board [2014] EWCA Civ 474, which established that an NHS contract cannot be sued upon in the courts. The Court of Appeal’s reasoning was materially applicable and was followed.
4. Regulation 9 of the National Health Service (General Dental Services Contracts) Regulations 2005 made deliberate transitional provision for changes in health-body status. The Board had an opportunity to invoke the disputes procedure before signing the variation. The omission of further provision for disputes discovered later was not an oversight. The court could not enlarge the scheme by implication, particularly in a manner inconsistent with section 9(5).
5. The Family Health Services Appeal Unit’s determinations under paragraphs 55 and 56 of Schedule 3 were binding on the parties unless challenged by judicial review. The fact that the determination rested on a time bar rather than the merits did not alter that effect.
6. A parallel equitable or restitutionary remedy based on fairness could not coexist with the detailed statutory scheme. It would allow the Board to circumvent a binding determination and would produce an uncertain and arbitrary remedial structure. The reasoning in R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54; [2011] 2 AC 15 supported that conclusion.

First-instance decision. No prior appellate decision is stated in the judgment.