Krebs v NHS Commissioning Board

Dr David Krebs is a dentist who has practised from a surgery in Little Hulton in Salford. He had a contract with Salford Primary Care Trust from 1^st April 2006 to 31^st March 2013 when the benefits and burdens of that contract passed to the NHS Commissioning Board (“the Board”) which operates under the name of NHS England. I shall refer to the PCT and the Board as “the defendant” unless it is necessary to distinguish between them. The defendant says that on 30^th April 2013 it was entitled to (and did) determine Dr Krebs’ contract with effect from 31^st May 2013 because Dr Krebs had failed to comply with a remedial notice under which he was required to co-operate with a proposed assessment of his practice by the National Clinical Assessment Service (“NCAS”) when he was contractually obliged to do so. Dr Krebs says that on 30^th April he was willing to engage with any proposed NCAS assessment and that the defendant was therefore not entitled to terminate his contract as they purported to do. Turner J found for the defendant and there is now an appeal.

The National Health Service (General Dental Services Contracts) Regulations 2005 prescribe the terms which the defendant is required to include in their contracts with contracting dentists. Once the contracts are signed, however, they take effect as normal commercial contracts, see Tomkins v Knowsley Primary Care Trust [2010] EWHC 1194 (QB) para 8.

For the purpose of the present appeal the relevant clauses of the contract between Dr Krebs and the defendant are firstly general clauses (10-12) in Part 2 of the contract, secondly the clause (197) requiring him to co-operate with the NCAS assessment already referred to and thirdly the clauses about termination.

These clauses are:-

“9.

In complying with this Contract, in exercising its rights under the Contract and in performing its obligations under the Contract, the Contractor [here, Dr Krebs] must act reasonably and in good faith.

10.

In complying with this Contract, and in exercising its rights under the Contract, the PCT must act reasonably and in good faith and as a responsible public body required to discharge its functions under the Act.

11.

Clauses 9 and 10 above do not relieve either party from the requirement to comply with the express provisions of this Contract and the parties are subject to all such express provisions.

…

197.

The Contractor shall ensure that any dental practitioner performing services under the Contract –

…

197.2

co-operates with an assessment by the NPSA when requested to do so by the PCT [It is agreed that NPSA and NCAS are the same entity]

…

329.

Where the Contractor has breached the Contract … and the breach is capable of remedy, the PCT shall, before taking any action it is otherwise entitled to take by virtue of the Contract, serve a notice on the Contractor requiring it to remedy the breach (“remedial notice”).

330.

A remedial notice shall specify-

330.1

details of the breach;

330.2

the steps the Contractor must take to the satisfaction of the PCT in order to remedy the breach; and

330.3

the period during which the steps must be taken (“the notice period”).

331 The notice period shall, unless the PCT is satisfied that a shorter period is necessary to –

331.1

protect the safety of the Contractor’s patients; or

331.2

protect itself from material financial loss,

be no less than 28 days from the date that notice is given.

332.

Where the PCT is satisfied that the Contractor has not taken the required steps to remedy the breach by the end of the notice period, the PCT may terminate the Contract with effect from such date as the PCT may specify in a further notice to the Contractor.”

The date of actual termination is important because the PCT (or now the Board) has to make arrangements for the defaulting dentist’s patients to be transferred to another dentist. Clause 351 provides that normally a termination notice should specify a period of 28 days before the contract comes to an end.

It is important to be aware that dentists are not NHS employees and work without day to day supervision by the NHS. The power to refer a dentist to the NCAS is therefore an important power given to the defendant to enable it to ensure that NHS services delivered by dentists are services of a proper quality. NCAS explains its purpose in the following way:-

“The purpose of NCAS is to improve patient safety by helping to resolve concerns about the professional practice of doctors, dentists and pharmacists. We provide expert advice and support, clinical assessment and training to the NHS and other health care partners (see http:/www.ncas.nhs.uk).”

Not all dentists have a contract with the defendant like Dr Krebs. Many dentists work as employees of (or are engaged on a self-employed basis by) other dentists or dental partnerships; dentists performing locums will not usually be contractors with the defendant. But Dr Krebs did have a contract and practised from his surgery as a sole practitioner.

Every dentist practising in England and Wales is, of course, regulated by the General Dental Council. Moreover, any dentist who undertakes primary care dentistry for NHS patients has to be on what is called the Dental Performers List (“DPL”). Section 106(1) of the National Health Service Act 2006 provides:-

“Regulations may provide that a health care professional of a prescribed description may not perform any primary dental service for which the Board is responsible unless he is included in a list maintained under the regulations by the Board.”

At the relevant time the relevant regulations were the National Health Service (Performers List) Regulations 2004 (“the 2004 Regulations”). They required performers, who applied to be on the DPL, to give undertakings as set out in regulation 3. Regulation 3(3) included an

“undertaking to co-operate with an assessment by the NCAS when requested to do so by the Primary Care Trust”

Thus the requirement to co-operate with an NCAS assessment as and when required by the defendant was part of the DPL regulatory scheme as well as being a requirement of the contract of any Contractor.

The bald account of the issue between the parties given in the first paragraph of this judgment masks the fact that (as one might expect) there was considerable correspondence and discussion between the parties and their solicitors before the letter of 30^th April was sent. The dispute is largely to be determined by the effect of that correspondence, the detail of which is set out at paragraphs 1-52 of the judgment but it is unnecessary for the purposes of this judgment to rehearse the correspondence in more detail than as follows:-

Dr Krebs exercised his right of appeal to the First Tier Tribunal which listed his case on 8^th April 2013. The outcome was that the claimant was “conditionally removed”, the condition being that he undergo the NCAS assessment. Both Dr Krebs and the defendant assert that this was a consensual outcome, Dr Krebs saying that he recognised he was bound under regulation 3(3) of the 2004 Regulations to co-operate with an NCAS assessment, the defendant saying that such recognition shows how right it had been all along to say that Dr Krebs’ failure to engage with the NCAS constituted a breach of contract, justifying the remedial notice and the notice to terminate his contract.

Thus it was that, on 30^th April 2013, the defendant’s solicitors wrote to Dr Krebs’ solicitors purporting to lift the 8^th November 2012 suspension of the termination of the claimant’s contract and asserting that termination would take effect on 31^st May 2013. Their reasons, as recorded in para 51 of the judgment, were:-

The judge decided that the obligations imposed on the defendant by clause 10 of the contract did not mean that, if the defendant was contractually entitled to terminate the contract by reason of Dr Krebs’ breach of contract, it could be inhibited from doing so by any requirements of reasonableness. He noted that it was not said that the forbearance from termination in the letter of 8^th November gave rise to any estoppel of the defendant preventing it from implementing the termination of the contract on reasonable notice. He also held that Dr Krebs had no rights in public law to the effect that the defendant must act reasonably because the dispute was a purely contractual one and further that Dr Krebs had no claim that his human rights (particularly the right not to be deprived of the possession of a remunerative contract) had been infringed since the contract had to be taken as a whole. Any deprivation was caused by Dr Krebs’ own breach of contract.

Mr Simon Butler for Dr Krebs submitted that there were 4 issues which this court should determine. First he said that the effect of the letter of 8^th November 2012 was to cancel both the notice of termination and the termination (which had already occurred on 31^st October) with the result that any new termination would have to be preceded by a fresh termination notice. No fresh termination notice could be served since Dr Krebs had now agreed to the NCAS assessment; so the contract was still alive never having been legally terminated. Alternatively he submitted that “the dispute” had been resolved, so no fresh termination notice could be given.

Secondly, the notice of termination of 30^th April 2013, if otherwise lawful, was in breach of the defendant’s obligation to “act reasonably … and as a responsible public body”. That was partly because the remedial notice was itself unreasonable but mainly because the defendant, having agreed before the First Tier Tribunal that Dr Krebs’ position on the DPL could be maintained if he underwent assessment by NCAS, it was perverse for them then to terminate his contract because he had earlier declined to co-operate with such an assessment. The consequence was that the notice, again, had no legal effect.

Thirdly, Mr Butler maintained that, if that was wrong, Dr Krebs was entitled to pursue public law remedies which might be wider than any remedy in private law for breach of contract because the defendant had not merely acted unreasonably but also disproportionately.

Fourthly, Dr Krebs could rely on Article 1 of Protocol of the European Convention on Human Rights because his goodwill was a “possession” of which he had been wrongly deprived.

Mr David Lock QC for the defendant submitted, at first, that the effect of the 8^th November 2012 letter was merely to suspend the termination of the contract. After reflection, however, he agreed with Mr Butler that the contract had in fact already terminated, in accordance with the notice of 27^th September, on 31^st October. The letter of 8^th November, therefore, operated merely as a concession that the defendant would not, temporarily, act on that termination.

He submitted, secondly, that clause 10 of the contract could not operate to invalidate any termination. If the defendant was in breach because it had acted unreasonably, Dr Krebs only had a cross-claim for any loss and damage he had suffered as a result of the termination.

Thirdly, he recognised that, if the clause was to be given such a limited effect, public law remedies would potentially be available to a contractor. He also said that such public law remedies would not extend as far Wednesbury unreasonableness but, if they did, there was no lack of reasonableness or perversity on the facts of the present case.

Fourthly, he denied that Article 1 of Protocol 1 could have any application to a contract in respect of which the other party had been entitled to serve a remedial notice and a notice of termination.

In the light of the common ground reached between counsel that the contract between Dr Krebs and the defendant had already come to an end on 31^st October 2012, I doubt if the judge was with respect quite right to say (para 63) that the effect of the letter was to extend the date of termination. It is probably more correct to say that the defendant was agreeing to suspend (or not to act on) the termination (e.g. by seeking to transfer Dr Krebs’ patients to another practice) until the dispute was resolved or until fresh notice was given. On that basis the letter of 8^th November 2012 was no more (in law) than an intimation that the process of transfer would not go ahead, until the dispute was resolved or a fresh notice was given.

I do not think, however, that it matters much whether the above construction or the judge’s construction is correct. On any construction of the letter, the termination was not cancelled it was merely postponed. But even if it was cancelled (as Mr Butler submitted), that did not cancel the remedial notice which the defendant had given on 14^th August as it was entitled to do. The defendant was, therefore, entitled to serve a fresh notice of termination on 30^th April provided that it gave at least 28 days for it to take effect. Since it expressly said that the termination of the contract would take effect on 31^st May 2013, that requirement was satisfied and the letter therefore took effect (if necessary) as a new termination of the contract.

As to the point that “the dispute” referred to in the letter of 8^th November had been resolved there are two answers. First, the dispute was only resolved when Dr Krebs belatedly accepted at the First Tier Tribunal that he would co-operate with an NCAS assessment. Secondly, and in any event, the defendant in the letter of 8^th November expressly left open the possibility that the suspension (to which they were temporarily agreeing) would not continue indefinitely but that it would give notice to Dr Krebs if the suspension was no longer to be effective.

Clause 10, with its requirement that the defendant, in exercising its rights under the contract, must act “reasonably and in good faith and as a responsible public body”, appears at first glance to be an attempt to bring at least some of the principles of public law (to which the defendant, in exercising its public functions, is amenable) into the private contractual relationship with contracting dentists. There is no reason why the contract should not so provide but its consequence may well be mitigated by clause 11 which makes clear that the contracting dentist is not relieved from his obligation to comply with the express provisions of the contract e.g. the provision in clause 197 requiring him to co-operate with an NCAS assessment when requested to do so. The result of the combination of these two clauses is, in my view, that the dentist must comply with the requirement that he co-operate with NCAS even if he considers that the request for him to do so is made unreasonably or in bad faith (whatever that could mean in this context) or made otherwise than in accordance with a responsible public body’s duties.

Does it follow from this that Mr Lock is right in his submission that a termination for failure to comply with a remedial notice is always valid and a dentist can only ventilate any complaint by pursuing a claim for damages by way of cross-claim?

That is a not entirely easy question which, in my view, does not arise for decision in this case because (as the judge records in para 52 of his judgment) there has been an order that Dr Krebs’ contract is to be treated as continuing until the date of trial. The intention of such order must be that it is open to Dr Krebs to pursue any argument open to him which has the consequence of keeping his contract alive. If, therefore, he can show that the notice of termination was wrongful for any reason and that he has not accepted such termination as a repudiation of his contract, his contract will still be alive and the court can so declare.

The question is then whether, as Dr Krebs alleges, the defendant has acted unreasonably or otherwise than as a responsible public body in seeking to terminate his contract. (Dr Krebs does not allege bad faith) That, in turn, raises the question whether breach of the obligation under clause 10 of the contract to “act reasonably and as a responsible public body” can only be held to have occurred if, in the AP Picture Houses v Wednesbury Corporation [1948] 1 KB 223 sense, the defendant has acted in a way no other responsible or reasonable public body would do or whether the word “reasonably” can have a wider meaning.

If contracts between the private parties require either party to act reasonably in any particular respect as when, for example, a contract gives a discretionary power to one of the parties to take some decision for the purposes of the contract, the courts have traditionally been reluctant to import principles of public law as a guide to construction. Thus in The Product Star where a charterparty entitled the owners of a vessel to decline to proceed to a port which they considered to be dangerous as a result of war, this court declined to import the Wednesbury test into an assessment whether the owners had made a reasonable decision that a port was dangerous as a result of the Iran-Iraq war. Leggatt LJ (with whom Balcombe and Mann LJJ agreed) said:-

“… the exercise of judicial control of administrative action is an analogy which must be applied with caution to the assessment of whether a contractual discretion has been properly exercised … In my judgment the authorities show that not only must the discretion be exercised honestly and in good faith, but, having regard to the provisions of the contract by which it is conferred, it must not be exercised arbitrarily, capriciously or unreasonably.”

See Abu Dhabi National Tanker Co v Product Star Shipping Ltd [1993] 1 Lloyds Rep 397, 404.

Similarly in Braganza v BP Shipping Ltd [2013] EWCA Civ 230 and [2013] 2 Lloyd’s Rep 351 where a death in service payment to an employee was not payable if “in the opinion of BP or its insurers” the death resulted from the employee’s wilful act or default, this court assessed the reasonableness of BP’s opinion without regard to any Wednesbury considerations.

In the light of those authorities, I do not think the word “reasonable” in clause 10 of the contract should be read in a restricted Wednesbury sense even though Dr Kreb’s contract was made with a public body and even though clause 10 itself refers to the concept of a responsible public body. The fact that courts are now prepared to dilute the Wednesbury test in appropriate cases where the context so dictates, see Kennedy v Information Commissioner [2014] 2 WLR 808 per Lord Mance at paras 51-54, supports this conclusion.

In this respect, therefore, I differ from the judge who seems to have thought that as a matter of private law “reasonableness” (even in the Wednesbury sense) did not come into the equation as a result of clause 11 of the contract. That way of looking at the matter would effectively negate clause 10 which cannot, in my view, be right. Clause 11 can mitigate the consequences of clause 10 (as I have already said) but cannot entitle a court to treat clause 10 as a dead letter.

There is, of course, a considerable body of authority, cited by the judge, to the effect that it is impermissible for parties to private law contracts made with public bodies to proceed by way of judicial review in order to improve their contractual claim. Thus in R v East Berkshire Health Authority ex p Walsh [1985] QB 152 it was held that, even though the health authority had been required by statute to contract on certain terms with its senior nursing officers, a claim that the authority had no power to dismiss such an officer or had offended the rule of natural justice in dismissing him could not proceed by way of judicial review but only in the ordinary courts or tribunals. Conversely (and logically) it was held in Roy v Kensington and Chelsea and Westminster Family Practitioner Committee The Times 27^th March 1990 that a general practitioner, who claimed that he was eligible for the full rate of basic practice allowance, was entitled to sue in the ordinary courts and was not bound to proceed by way of judicial review, despite the fact that his terms and conditions of service, including his right to such an allowance, were enshrined in statute.

The existence of this body of authority is not relevant, however, if concepts familiar in public law are deliberately introduced into the contract as clause 10 of the present case does. In the present case I do not see that Dr Krebs can, or should, be prevented from arguing that the defendant acted unreasonably or otherwise than as a responsible public body. The question is whether the defendant has so acted in fact.

In my judgment, Dr Krebs cannot show that the defendant acted unreasonably. The judge in para 76 identified the following salient features, albeit in relation to the public law submissions of Mr Butler:-

“i)

The claimant had repeatedly demonstrated a disinclination (for whatever reason) to abide by the clearest terms of his contract;

ii)

The claimant had, on occasion, either disengaged from the legitimate contractual process or imposed conditions upon compliance which were unjustified;

iii)

The claimant had previously indicated his unqualified enthusiasm for an NCAS assessment only later to recant for no adequate reason;

iv)

The defendant had shown a considerable degree of indulgence during the period leading up to the service of the termination notice and beyond. The history of the process and the reasons behind the decisions and suggestions made were set out in correspondence repeatedly and meticulously;

v)

The issue of central importance was not just one of contractual discipline but extended to the welfare of patients which was potentially put at risk by the defendant’s continued non-compliance.”

These are all very telling points which Mr Butler’s submissions did nothing to contradict. They are essentially findings of fact made by the judge after hearing Dr Krebs give evidence and were open to the judge on the totality of the evidence he heard.

The only countervailing argument is that the defendant acted unreasonably in pursuing the issue of termination after writing the 8^th November letter but this argument has no substance. Dr Krebs’ ultimate recognition of the need for an NCAS assessment in the face of the First Tier Tribunal, which was considering whether he should remain on the DPL, just shows how right the defendant was in its requirement that he should co-operate with an NCAS assessment in the first place. In any event, the letter of 8^th November expressly envisaged that the defendant, by notice, could resume its original position.

In answer to an inquiry by the court about how Dr Krebs’ position could be improved by his pursuit of and reliance on public law remedies, Mr Butler submitted somewhat vaguely that, apart from the fact that these days the test of reasonableness is applied to a lower standard than set out in Wednesbury, lack of proportionality in decision making was a further ground for interference. Even if this is right in cases which do not engage Articles 2, 3 or 8 of European Convention of Human Rights, that cannot avail Dr Krebs in this case since the matters set out in para 35 above (particularly point (v)) easily satisfy of any requirement of proportionality to the extent that that might be different from reasonableness.

Moreover, in Mercury Ltd v Electricity Corporation [1994] 1 WLR 521, a case in which a purchaser of electricity from a state corporation sought public law remedies for terminating a commercial contract, Lord Templeman, speaking for the Judicial Committee of the Privy Council on appeal from the Court of Appeal of New Zealand, observed at page 529D:-

“If the causes of action based on contract are rejected the other causes of action will only constitute attempts to obtain, by the declaration sought, specific performance of a non-existent contract. The exploitation and extension of remedies such as judicial review beyond their proper place should not be encouraged.”

This dictum has recently been applied by this court in Hampshire County Council v Support Wave Community Services Ltd [2006] EWCA Civ 1035 para 45 as pointed out by the judge in para 72 of his judgment.

I would endorse that approach and hold that Dr Krebs is to be confined to his contractual (private law) remedies what ever they may be. If he cannot show any breach of contract by the defendant, that is the end of the matter.

This Article provides:-

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law.”

Mr Butler accepted that Dr Krebs could not show any goodwill as constituting a possession within the words of this Article. A mere contractual right to future income will not count as a possession see R (Countryside Alliance) v Attorney General [2008] A.C. 719 at para 21. That is all the more the case when the right is contained in a contract which can be terminated on 28 days notice.

While not, therefore, agreeing with everything said by the judge, I would dismiss this appeal.

I agree that the appeal should be dismissed for the reasons given by Lord Justice Longmore.

I agree with Lord Justice Longmore that this appeal should be dismissed. I agree with the Judge for the reasons he gave that, even if clause 10 of the contract introduced public law concepts, there was nothing disproportionate or irrational in the defendant’s decision to terminate Dr Krebs’ contract. I agree with Lord Justice Longmore that, if clause 10 of the contract imposed an obligation on the defendant not to act unreasonably, in the ordinary sense of that word, in serving the notice of termination, then Dr Krebs cannot show on the facts that the defendant acted unreasonably. I also agree with Lord Justice Longmore that Dr Krebs cannot show any infringement of Article 1 of Protocol 1 of the Convention because the evidential basis for establishing a relevant “possession” in the present case was lacking.

It is not necessary, therefore, to decide the precise relationship between clauses 10 and 11 of the contract. That question is, as Lord Justice Longmore has said, a difficult one. It is an important one because, as the present case demonstrates only too well, disputes over the reasonableness of the defendant’s conduct in applying the termination provisions of the contract can result in a prolonged period of debate and uncertainty about the status of a dentist carrying on practice within the NHS. For my part, I am inclined to agree with the Judge and the defendant that, if the defendant follows correctly the express provisions in the contract for terminating the contract where the contractor has breached the contract, the contract will come to an end in accordance with its terms regardless of any question of the reasonableness of the defendant’s conduct in taking those steps. That interpretation seems to me to be more in tune with the repeated emphasis in clause 11 on the “express provisions” of the contract and, adopting a purposive interpretative approach, with the intuitive expectation that, in the public interest, where the defendant has properly followed the express termination procedure laid down in the contract in respect of an underperforming dentist, the right of that dentist to continue to serve the public within the NHS should not be prolonged while there are disputes about whether and to what extent and in what manner the defendant may have acted otherwise than reasonably in enforcing the express terms of the contract. Those are the types of dispute on which different people and different courts may legitimately have different views and which may finally only be resolved after a number of years and appeals.