Dr Angelica Khera (trading as the Family Dental Practice) v National Health Service Commissioning Board (also known as NHS England)

An NHS contract remains an NHS contract until its status is changed by a written variation signed in accordance with the contract and applicable regulations. Earlier litigation, a failure to challenge jurisdiction, waiver, estoppel or post-contract conduct cannot ordinarily alter that status. An NHS contract does not give rise to enforceable contractual rights before the courts, so disputes must proceed through the applicable NHS dispute-resolution mechanism. The court may set aside a claim form where the claim depends on contractual rights that are not enforceable in court.

The claimant supplied primary dental services under a General Dental Services contract with NHS England. After a dispute about alleged underperformance and repayment of remuneration, she issued proceedings in the High Court. NHS England applied under CPR 11(1)(a) and CPR 11(1)(b) for a declaration that the court lacked jurisdiction, or alternatively for a stay.

The claimant relied on earlier litigation concerning intermediate minor oral surgery services, in which NHS England had not challenged jurisdiction. She argued that the earlier proceedings, together with waiver, estoppel and related doctrines, had changed or established the contract’s status as non-NHS. The central issue was whether the contractual dispute could be litigated in court or had to proceed through the Primary Care Appeals Service.

1. Application granted. The court lacked jurisdiction to try the claim and the claim form was set aside. The parties could continue addressing the performance dispute through the statutory Primary Care Appeals Service process.
2. The written GDS contract expressly stated that it was an NHS contract. Under its terms, including the written-variation provisions, and under the National Health Service (General Dental Services) Regulations 2005, the status could be changed only by an agreed written variation. No such variation had occurred.
3. The earlier proceedings, Vasant, Khera and Kalsi v NHS Commissioning Board, [2018] EWHC 3002 (QB), concerned whether IMOS services were governed by the IMOS arrangements or incorporated into the GDS contract. They did not determine whether the GDS contracts were NHS or non-NHS contracts. The defendant’s failure to raise a jurisdiction challenge did not establish waiver or determine the issue. The challenge was also subject to the time limit in CPR 11(4).
4. The Court of Appeal decision in NHS Commissioning Board v Vasant, [2019] EWCA Civ 1245, was binding. It established that post-contract conduct and subjective intention could not vary or interpret the written contract in this context, save that extrinsic evidence could explain an unconventional expression. That principle prevented reliance on the parties’ conduct, the earlier proceedings or correspondence to change the contract’s NHS status.
5. Following Pitalia v The National Health Service Commissioning Board, [2014] EWCA Civ 474, an NHS contract must not be regarded as giving rise to enforceable contractual rights or liabilities before the courts for any purpose. It followed that the claimant’s contractual claim could not proceed in the High Court. It was unnecessary to determine the detailed arguments on res judicata, estoppel or abuse of process.