Dr Angelica Khera v National Health Service Commissioning Board

An NHS contract cannot give rise to enforceable contractual rights or liabilities in the courts. A claim based on such a contract may therefore be struck out as disclosing no cause of action. The position is unaffected by a party’s failure to raise the point in earlier proceedings. The NHS status of a dental services contract can be removed only by an effective written variation complying with the contract and the governing regulations. That statutory and contractual requirement cannot be waived by conduct, estoppel, or participation in previous litigation.

The appellant, a primary dental services provider, appealed against Master Stevens’s decision that the court lacked jurisdiction to try her claim and that the claim form should be set aside. She sought declaratory relief concerning alleged breaches of an NHS dental services contract.

The respondent had referred the dispute to the NHS Resolution and Primary Care Appeals Service. It relied on section 9 of the National Health Service Act 2006, under which an NHS contract does not create contractual rights or liabilities and disputes may be referred for determination under the statutory procedure.

The appellant argued that the respondent’s failure to challenge jurisdiction in earlier proceedings between the parties amounted to waiver, estoppel, res judicata, or abuse of process. The central issue was whether that earlier conduct had altered the contract’s NHS status or prevented reliance on section 9(5).

1. Appeal dismissed. The claim form was properly set aside, which was synonymous with striking out the claim.
2. The GDS Contract remained an NHS contract. Clause 14 expressly identified it as such, and there had been no written variation complying with clause 287. Regulation 9 of the National Health Service (General Dental Services Contracts) Regulations 2005 and paragraph 60(1) of Schedule 3 imposed the same written requirement for removing the NHS-contract provision. Neither party could waive that statutory requirement.
3. Under section 9(5) of the National Health Service Act 2006, an NHS contract must not be regarded as giving rise to contractual rights or liabilities for any purpose. The consequence was that the appellant had no cause of action enforceable in the courts. The respondent’s application was therefore properly analysed under CPR 3.4(2)(a) and/or (b), rather than as a jurisdictional challenge under CPR 11. The CPR 11(4) time limit did not apply.
4. The respondent’s conduct in the earlier Vasant proceedings had not varied the contract, waived its NHS status, or prevented reliance on section 9(5). The earlier courts had not considered the contract’s NHS status or the effect of section 9(5). There was therefore no issue estoppel. In any event, the court could apply section 9(5) of its own initiative under CPR 3.3, and earlier inadvertence or negligence could not create rights which did not exist in law.
5. The principles concerning formal variation and estoppel in MWB Business Exchange Ltd v Rock Advertising Ltd required unequivocal words or conduct representing that an informal variation was valid, together with something more than the informal promise itself. That threshold was not met. Clause 371 also preserved the respondent’s right subsequently to enforce the contractual dispute-resolution provisions.
6. The appellant’s alleged prejudice resulted from her election to remain in an NHS contract. She could have requested a variation under regulation 9(4), which NHS England would have been required to agree to, but that could not retrospectively create contractual rights for the historic dispute.

• High Court (King’s Bench Division): Appeal from Master Stevens dismissed. The order setting aside the claim form was upheld.