Jowhari v NHS England

A statutory scheme regulating NHS dental performers lists does not ordinarily create a private-law duty to protect dentists from economic loss. The scheme’s purpose is to protect the public by ensuring the suitability of dentists carrying out publicly funded work. A concurrent common-law duty requires sufficient proximity, foreseeability and a conclusion that it is fair, just and reasonable to impose the duty, having regard to the statutory purpose, possible inhibition of public functions and alternative remedies. Administrative removal of a dentist from a performers list may be outside the statutory powers, but that does not itself create a damages claim. A dentist’s withdrawal under the applicable regulations requires positive notice or assent; silence in response to an invitation to object is insufficient.

The claimant, a dentist, sued NHS England as successor to the liabilities of the City and Hackney Primary Care Trust. He alleged that his name had been unlawfully removed from the Hackney dental performers list, causing loss of NHS dental income and the loss of an opportunity to purchase a practice.

The defendant contended that the removal occurred with the claimant’s consent and that, in any event, neither the regulations nor the common law imposed a duty sounding in damages for pure economic loss. The parties agreed that the judgment would address duty, breach and causation, but not quantum.

1. Disposition. The claim was dismissed.
2. The claimant’s name had not been validly removed under regulation 10 of the National Health Service (Performers Lists) Regulations 2004, nor had he withdrawn under regulation 17. The administrator had removed his name in anticipation of his move to another area and had placed the onus on him to object. That was outside the statutory scheme. Positive assent could have justified treating the change as a withdrawal, but no such formal assent was obtained.
3. The regulations did not create a private-law duty to protect the claimant from economic loss. Their purpose was to provide local oversight of the suitability and integrity of dentists performing publicly funded dentistry, for the protection of patients and the public. They did not indicate an intention to protect dentists’ economic interests. The statutory appeal mechanism also supported that conclusion.
4. No concurrent common-law duty of care arose. Applying the approach in Caparo v Dickman [1990] 2 AC 605, the statutory purpose was decisive. The authorities, including Jain v Trent Strategic Health Authority [2009] UKHL 4, [2009] 1 AC 853, and Mohammed v Home Office [2011] EWCA Civ 351, [2011] 1 WLR 2862, showed that imposing a duty could inhibit the proper exercise of statutory functions. There were no special circumstances warranting a duty.
5. Alternatively, if a duty existed, there was no breach causing recoverable loss. The claimant knew or ought to have known of the position, acquiesced in proceeding without Hackney registration, and probably worked under his principal’s performer number.