NHS Luton Clinical Commissioning Group v Amanah Health Ltd & Ors

A freezing order requires a good arguable case. A search order ordinarily requires a strong prima facie case. An economic tort claim based on wrongful procurement of breach of contract cannot succeed where the relevant relationship is not contractual. The tort of interference by unlawful means requires independently actionable unlawful means and an intention to cause loss. Knowledge that loss may occur, or that it ought to have been known, does not establish the actual knowledge required to infer intention in a fraud-based claim. A statutory restriction on court proceedings for recovery does not necessarily remove the independent actionability of deceit, particularly where damages and ministerial-consent routes remain available.

The claimant commissioning group sought continuation of a freezing order and retention of a search order against a pharmacy company and its controller. It alleged fraudulent inflation of prescription claims, causing NHS England to make deductions from the claimant’s budget. The claimant relied on unlawful interference with business and wrongful procurement of breach of contract.

The court considered whether there was a good arguable case, whether the alleged deceit was independently actionable despite regulation 94 of the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013, and whether the evidence supported an intention to injure the claimant.

1. The application failed because the claimant had not shown a good arguable case. The freezing relief could not continue and the search order was discharged. It was therefore unnecessary to decide dissipation, destruction of evidence or material non-disclosure.

2. The relationship between the commissioning group and NHS England had private law consequences but was not contractual. The claim for wrongful procurement of breach of contract therefore could not succeed. The court declined, at this interlocutory stage, to extend that tort beyond contracts properly so called.

3. The unlawful-means tort requires interference with a third party’s freedom to deal with the claimant, unlawful means independently actionable by that third party, and an intention to cause loss. The alleged fraudulent prescription claims arguably involved deceit actionable by NHS England. Regulation 94 barred recovery through ordinary court proceedings without ministerial consent, but did not necessarily remove actionability for all purposes or bar a damages claim. The reasoning in Central Liverpool Primary Care Trust v Charles Bullen Stomacare Ltd [2005] EWCA Civ 1514 was explained accordingly.

4. The evidence did not show that the defendants knew that the alleged deceit would reduce the claimant’s budget. An assertion that the defendant would or should have known the relevant system was insufficient to establish actual knowledge. The distinction between knowledge and means of knowledge was material.

5. After discharging the search order, the court refused to reintroduce its wide information requirements through the back door. It ordered disclosure of the pharmacy’s bank statements under rule 31.12, directed that the seized images and documents remain with the supervising solicitor and computer expert until further order, and granted permission to amend the claim form. Costs were awarded to the defendants on the standard basis and summarily assessed.

The judgment was a first-instance decision on an application to continue interim freezing and search orders previously made by another High Court judge. No appellate decision is stated in the judgment.