Rahman and Partners (a firm) v North Central London Integrated Care Board

Introduction

By these proceedings, the Claimant seeks a series of declarations arising from the Defendant's decision to terminate a General Medical Services Contract (“the GMS Contract”) under which the Claimant was contracted to provide primary medical services at a medical centre in North London.

In high level summary, the Claimant suggests that the termination was not lawful, or effective, in that the termination was itself in breach of the GMS Contract on the grounds that the conditions precedent for the decision to terminate were not met; the Defendant’s decision that they were met was not a reasonable one; and in any event the decision was not made in good faith.

The Facts

Unless otherwise stated, the facts and matters set out below constitute a finding of fact made by me on the basis of the evidence that I have heard. Where necessary (in particular, in relation to disputed or controversial issues), I set out my reasoning for finding a particular fact as having been established.

The Claimant is a partnership which supplies primary medical services to some 7,000 patients in the N17 postcode catchment area in North London.

Until September 2021 the partnership carried on business from (and was known as) Charlton House Medical Centre, 581 High Road, Tottenham, London. In September 2021 it moved to 579C High Road, Tottenham, London, keeping the name the Charlton House Medical Centre. In this judgment I shall refer to the partnership as “the Medical Centre” or “the Practice”.

The partners of the practice are: Dr Hafizur Rahman, Dr Waseem Abdul Mohi, Dr Raphael Rasooly and Mrs Aritri Mukherjee.

The Medical Centre serves a diverse population, for many of whom English is not their first language. It has a smaller population of older patients – those aged 65 years or more – than the national average: 10%, against a national average of 17%.

Dr Rahman qualified as a doctor in 2003. He began working as a general practitioner (a “GP”) in 2011, initially as a locum. He became a partner at the Practice in 2013.

Dr Rasooly became a party to the Contract on 8^th April 2022 – and only appears to have had involvement in the Practice from about February 2022 onwards. It follows that his direct knowledge of many of the matters in issue in these proceedings was limited. Accordingly, I disregarded paragraphs 14-45 of his witness statement. Additionally, the comments, opinion, arguments and submissions set out in paragraphs 46-49, 64, 66, 79 and 80 of his witness statement were not matters upon which Dr Rasooly could properly give evidence: I disregarded those too.

The Defendant is a statutory National Health Service (“NHS”) organisation established by s19 of the Health and Care Act 2022 (“the 2022 Act”) and paragraph 2 of the Integrated Care Boards (Establishment) Order 2002, and – from 1^st July 2022 – has been the statutory successor to the North London Clinical Commissioning Group (“the CCG”). The CCG was itself in turn the statutory successor to a group of Primary Care Trusts (“PCTs”), including the Haringey PCT, that served the North London area until their abolition by the Health and Social Care Act 2012 (“the 2012 Act”).

The Defendant is the commissioning board for primary medical services provided to NHS patients in Haringey, Barnet, Enfield, Camden and Islington. It is therefore the commissioning board for the services provided by the Claimant.

So far as is relevant to this claim, the Defendant (and, before it, the CCG) exercised its powers and undertook its functions through the following bodies and individuals.

The Primary Care Commissioning Committee (“The PCCC”) is a sub-committee of the Defendant’s Strategy and Development Committee. The PCCC operates pursuant to Terms of Reference (“ToRs”) which set out its membership, remit, responsibilities and reporting responsibilities. The voting members of the PCCC are a mix of both clinical and non-clinical personnel. So far as is relevant to this claim, the ToRs provide as follows:

Usman Khan was the Chair (and a non-executive director) of the PCCC at the time that the GMS Contract was terminated by the Defendant. He took up that position in October 2022. He has an academic and professional background in public policy, is presently the Managing Director of a UK based advisory practice, and holds a portfolio of non-executive positions. He is a Visiting Professor in Health Management and Policy.

Vanessa Piper is the Defendant’s Assistant Director of Primary Care Contracting. She has had a role in NHS commissioning and then contracting since 2007. Her role is to manage the Defendant’s Primary Care Contract Team (which comprises 9 people, including herself and Anthony Marks), which team oversees and manages primary care contracts for the 175 or so practices in North Central London.

The primary function of Ms Piper and her team is to ensure that contracts are operated and managed in a way that ensures compliance with primary care regulations, policy and standards and which ensures that providers of primary care services deliver quality services to the public. The way in which this is done ranges from supportive monitoring, through to the assessment of performance quality and standards, through to more formal measures (including the issuing of breach and remedial notices).

Anthony Marks is the Defendant’s Primary Care Contracting Senior Manager within the Primary Care Contract Team. He has had a role in NHS contracting since 2004.

Mr Marks’ role involves managing contracts between providers and the NHS – in particular, pursuant to delegated authorities from NHS England to the Defendant, it entails managing primary care contracts on a day-to-day basis.

The GMS Contract is the principal way in which GPs in England and Wales are contracted to provide primary medical services within the NHS. Historically, GPs have provided services as part of the NHS as independent contractors, not employees, under what became known as the GMS system. Although the fundamental nature of the GMS Contract has not changed – it is a nationally negotiated contract (now every year between NHS England and the General Practice Committee of the British Medical Association) – the content of the GMS Contract has changed significantly over time (reflecting the move from payment by capitation, to GP fundholding, to the management of local health budgets and commissioning by Primary Care Groups, then Primary Care Trusts, then Clinical Commissioning Groups and now Integrated Care Systems).

Before commencement of the trial, the parties proceeded on the basis that the contract between them was the updated version of the GMS Contract circulated as a national template by NHS England in 2019 (and that it was based on the requirements of the National Health Service (General Medical Services Contracts) Regulations 2015). This may have been because the papers disclose that the parties considered updating the contract in this way.

In fact, that transpired to be incorrect: the parties recognised that they had not “refreshed” the contract that existed between them (i.e. the proposal was never carried into effect) and instead the contract between them reflected the national template made in 2004 and the requirements of the National Health Service (General Medical Services Contracts) Regulations 2004 ("the 2004 Regulations"). The Defendant asked for permission to amend its Defence to reflect this: I granted such permission.

The GMS Contract is dated 1^st April 2004, but was in fact signed on 29^th August 2012 (“the Contract”).

The Contract was made between the Haringey Primary Care Trust (a predecessor organisation of the Defendant), and Drs Anoma Ranmuthu, Charles Morrison and Tatyana Vasilou (the previous partners of the partnership).

By a notice of variation signed on 12^th December 2013, Dr Rahman was added as a new partner to the Contract.

The Contract is a long document, amounting to some 249 pages. So far as is relevant, the Contract provides as follows:

It follows that the Contract contains (so far as is relevant to this claim) the following species of regulatory measures:

For present purposes, it is sufficient to note the following features of these regulatory measures:

As I have mentioned in paragraph 8 above, Dr Rahman joined the practice in 2013. There had previously been three partners, and Dr Rahman was replacing two of them (Drs Charles Morrison and Tatyana Vasilou). The partnership therefore consisted of Drs Rahman and Ranmuthu.

On 31^st January 2018 Dr Ranmuthu announced her decision to NHS England to retire from the Practice with effect from 1^st August 2018. It follows that Dr Rahman would be from this date the sole contract holder. NHS England wrote to Dr Ranmuthu on 9^th February 2018 stating:

A meeting was duly arranged for 13^th March 2018 between the Defendant and the Practice. It was held at the Medical Centre. Mr Marks was one of those who attended on behalf of the Defendant. He explained that the reason for the visit is that a singlehanded contractor with a large list of patients is considered to generate a level of risk – if something happens to the single hander (e.g. ill-health or a regulatory compliance issue) then the whole list is put at risk.

Those who undertake “regulated activities” (as defined by s8 of the Health and Care Act 2008 (“the 2008 Act”)) must, pursuant to Chapter 2 of the 2008 Act, be registered with the Care Quality Commission (“the CQC”). Indeed, it is a criminal offence – punishable on conviction on indictment to an unlimited fine or to up to 12 months’ imprisonment – to carry on a regulated activity without being so registered.

At the time of the visit on 13^th March 2018 the existing registration for the Medical Centre was valid – albeit it could become invalid from the point of Dr Ranmuthu’s retirement: Drs Ranmuthu and Rahman were required to inform the CQC of Dr Ranmuthu’s retirement, and obtain a registration which referred to Dr Rahman alone. Mr Marks discussed this issue with Drs Ranmuthu and Rahman at the meeting and emphasised the need for this matter to be addressed – it was agreed that Drs Rahman and Ranmuthu would urgently contact the CQC.

The meeting was evidently a difficult one – Mr Marks detected some animosity between the Acting Practice Manager (who was providing ad hoc support to Dr Rahman) and Dr Ranmuthu – and by the end of it Mr Marks had been given none of the reassurance that he had hoped for. For her part, Dr Ranmuthu sent an email after the meeting apologising for the nature of it; and Dr Rahman also wrote to apologise for the fact that the meeting became “a circus and a freak show” and saying that he was “very embarrassed about the whole event”.

On 19^th March 2018 Mr Marks wrote to the Practice noting that a range of concerns had been highlighted to Drs Ranmuthu and Rahman at the meeting (including that there may have been periods when GP cover was unavailable; whether there would be adequate clinical coverage after the retirement of Dr Ranmuthu; and noting that there was no Practice Manager to manage the day-to-day running of the Practice). Significantly, for present purposes, the letter noted that a concern had been raised about “CQC registration status”.

The Practice replied to the letter on 20^th April 2018 – in relation to the question about CQC registration the email simply said: “Application reference number: DPL-332341”. Mr Marks reasonably viewed this response as unsatisfactory – in relation to what he describes as the “key issue of CQC registration status” he would expect to be provided with the date on which the application was made; the current status of the application; when a response was expected; and confirmation that all of the relevant documents had been provided to the CQC.

The Defendant followed up its letter of 19^th March 2018, and the Practice’s reply of 20^th April 2018, with an email of 29^th May 2018 which enclosed two tables that reduced to simple form the concerns that had been raised and the information which the Defendant was seeking. In relation to the issue of CQC registration (which was but one of a long list of concerns), the Defendant said that the “next step” was for the “Practice to provide an update…as to whether the application has been made to the CQC to remove Dr Ranmuthu and adding Dr Rahman.” This information was required by 4^th June 2018.

On 2^nd June 2018 the Practice sent back the Defendant’s tables, with a small number of the columns seeking information populated with replies. In relation to the request for information about CQC registration the document stated: “an application has been pending since January 2018 [ref: DPL:332341] we have initiated the change of regulated activities manager from Dr Ranmuthu to Dr Rahman.”

On 4^th June 2018 Dr Ranmuthu replied to some of the requests in the Defendant’s tables. In relation to CQC registration he said “I have to re request removal for myself twice as it came to light Dr T Vasilou was on the CQC register still. I have now requested to remove myself as a manager and a partner, also to remove Dr T Vasilou. Dr Rahman has been added as a partner. I will send the evidence separately.” By separate email of the same day, Dr Ranmuthu sent a copy of an application form – made under s19 of the Health and Social Care Act 2018 – that she had made on 13^th February 2018 to remove himself as a partner of the Practice from the register with effect from 31^st July 2018.

On 25^th June 2018 Dr Ranmuthu sent a further email to the Defendant - in relation to the CQC registration issue, she said “I will forward the relevant email from NHS England giving options to carry out the process.”

On 3^rd July 2018 Dr Ranmuthu sent an email chain to the Defendant between the Practice and the CQC, the effect of which was the CQC had informed the Practice that it was unable to accept the application to remove Dr Ranmuthu from the register because the partnership could not consist of only one partner – instead, a new application for registration of an individual provider would need to be made.

Following further correspondence from the Defendant dated 12^th July 2018 seeking information, or more detailed information, in relation to the matters identified at the meeting on 12^th March 2018, on 10^th August 2018, the Practice sent a further version of its response to the information sought in the Defendant’s tables. In relation to CQC registration, the information remained the same: “an application has been pending since January 2018 [ref: DPL:332341] we have initiated the change of regulated activities manager from Dr Ranmuthu to Dr Rahman.”

There the matter rested until late 2019. Specifically, on 18^th December 2019 the CQC drew to the Defendant’s attention that “the partners registered with the CQC are no longer there – it is currently being run by two partners who are not registered with the CQC.” Information exchanged between the Defendant and the CQC on 14^th January 2020 established that the partners registered for the Practice with the CQC were Drs Ranmuthu and Vasilou, and yet neither of them remained with the Practice (indeed, Dr Vasilou had left in 2014); that the Practice was instead being run by Dr Rahman as a sole principal; and that Dr Rahman was not registered with the CQC.

On 22^nd January 2020 Ms Piper and Mr Marks visited the Medical Centre (principally to discuss safety concerns about infection prevention and control after an audit had been undertaken on 12^th December 2019). They also discussed CQC registration. This was followed up by a letter dated 29^th January 2020 to Dr Rahman which noted that the Practice had an invalid CQC registration.

Following a chaser on 17^th April 2020, Dr Rahman responded on 29^th April 2020. In relation to CQC registration, Dr Rahman said “I applied for the registered CQC Manager whilst the old partner was here in 2018…The application that was submitted in 2018 was still pending but closed as the previous partner failed to accept on the CQC portal. However, a new application has been submitted and we are waiting further information from the CQC team…” Dr Rahman enclosed a document sent from the CQC (a “Suspected unregistered provider letter”) which was populated with information suggesting that he had applied to the CQC on 20^th January 2020 to be registered as a provider.

However, on 15^th December 2020 the Defendant was informed by the CQC that issues with the Practice’s registration remained – the CQC said that Dr Rahman had failed on each occasion that he had tried to register either to include a valid DBS check or the DBS check that was submitted had not been countersigned by the CQC.

On 18^th December 2020 the Defendant wrote to Dr Rahman setting out a long chronology of the issues with the Practice’s CQC registration, warning him that the Defendant was considering taking action under the Contract, and requiring that evidence be provided by 8^th January 2021 that all material had been provided to the CQC to ensure registration.

On 8^th January 2021 Dr Rahman replied by email to the Defendant’s letter of 18^th December 2020 stating “We have been in constant communication with [sic] CQC regarding our application…The application made in January 2020 was advised to cancel [sic] as the application was following on from the old registration with Dr Ranmuthu, so with did a new application for a new service. The application was submitted in September, however there is a DBS issue for a non-clinical partner – nonetheless that has been rectified and the CQC registrations team is awaiting a new DBS number. They have advised that it can take 2 weeks or more…”

The Defendant did not regard that as a satisfactory answer. As it appeared that Dr Rahman carried on regulated activities at the Medical Centre from at least 2018 without valid CQC registration, Ms Piper and Mr Marks decided to refer the matter to the PCCC.

Ms Piper attended the PCCC meeting of 18^th February 2021 and spoke to a report prepared by Mr Marks that recommended that a remedial notice be served on the Practice requiring it to provide evidence of completion of the registration process with the CQC. The PCCC approved the recommendation.

On 7^th April 2021 the Defendant served a notice on the Claimant (it was specifically addressed to Dr Rahman) pursuant to Clause 566 of the Contract. Although the body of the notice makes it clear that it is a remedial notice served pursuant to that provision, the heading of the letter suggests that it was a “breach notice” – this was an error, but nothing turns on it. The letter was signed by Vanessa Piper, then Head of Primary Care for the CCG.

So far as is material, the First Remedial Notice states:

The First Remedial Notice had attached to it a table, which set out the clause of the Contract it was said had been breached, the relevant concern, and the remedial action required:

On the same day, at 11.48am (i.e. after 2 hours or so), Dr Rahman responded to the First Remedial Notice by email stating:

Attached to the email was a series of emails between the Claimant and the CQC. These showed (in summary) that: (i) at some point before 18^th February 2021 Dr Rahman had sent to the CQC an application for the registration of a new manager of the Practice; (ii) on 18^th February 2021 the CQC has responded to Dr Rahman informing him that the application was defective and did not supply the information that the CQC needed (the CQC set that information out for Dr Rahman); (iii) on 22^nd February 2021 Dr Rahman provided the CQC with some more information; (iv) at some point prior to 22^nd February 2021 the Practice had sent an application for registration of a new partner (Dr Sultana Atker); (v) on 22^nd February 2021 the CQC has responded to the Practice to say that that application was also defective and did not supply the information that the CQC needed (again, the CQC set out the information needed); (vi) on 25^th February 2021 the CQC had informed the Practice that it had passed the application for the registration of a new manager to a registered inspector; (vii) on 17^th March 2021 the CQC had informed the Practice that it was working on applications received in December 2021 and would write in April 2021 with an update; and (viii) on 7^th April 2021 the CQC had informed the Practice that a recent application for a new registration (it is not clear if this was one of the two applications referred to above, or another application) had been passed to an inspector for assessment.

Meanwhile, on the same day the Defendant received notification from NHS England that it had received a letter from a whistle-blower. The whistle-blower’s letter set out a series of allegations against Dr Rahman, which were grouped into what the whistle-blower described as (i) safety concerns, (ii) management concerns and (iii) ethical concerns. The allegations included that:

On 11^th May 2021 the Defendant issued a Second Remedial Notice (pursuant to an approval given by the PCCC under its urgent resolution procedure). The letter, again signed by Vanessa Piper, materially stated as follows:

Appendix 1 to the letter of 11^th May 2021 set out a detailed analysis of the materials sent by the Claimant in response to the First Remedial Notice, explaining why those materials did not, in the Defendant’s view, satisfy the requirement of the First Remedial Notice.

The letter of 11^th May 2021 continued:

I should explain that the Quality and Outcomes Framework (“QOF”) was introduced as part of the GMS Contract on 1^st April 2004. The objective of QOF is to improve the quality of care patients receive by rewarding GP practices for the quality of care they provide to their patients. It is a voluntary incentive payment program which relates to specific areas of clinical care and public health. Attainment of the requisite levels of achievement in the domains within QOF is dependent upon the practice actually treating patients with the relevant condition. But it is the case that not all patients are treatable or willing to be treated. Accordingly, and in order for practices not to be penalised on account of circumstances outside their control, it is permissible for them to exclude some patients from the counting exercise by a process called "exception reporting" - examples of exception might include: patients who refuse to attend; patients for whom chronic disease reporting is inappropriate (e.g. terminal illness); or patients refusing investigation or treatment.

From 1^st April 2019 exception reporting was replaced with a Personalised Care Adjustment (“PCA”). As with exception reporting, the application of a PCA to a patient’s record has the effect of removing that patient from an indicator denominator if the QOF defined intervention has not been delivered. The purpose of the change was said to be to offer a more structured framework (with specific reasons for adjustment) and to enhance transparency and provide more context for the exclusion of patients.

Continuing with the letter, it set out a table – in the same format as was attached to the First Remedial Notice – which identified 11 areas of concern. The first 5 were the same as those set out in the First Remedial Notice (i.e. concerning the CQC registration issue). The remaining 6 concerned the other issues identified in the letter, as set out above. I shall not set these out herein, in full, as not all of them were addressed in any detail by the parties in the course of the trial. Instead, when considering the issue of whether there was compliance with the requirements of the Second Remedial Notice below, I shall set out the relevant parts of the table to the Second Remedial Notice.

As he accepted in cross-examination, Dr Rahman did not challenge the Defendant’s decision to issue the Second Remedial Notice – despite being given the facility to do so, and it being explained to him in clear terms the time limit, the means for doing so and the fact that the Contract was at risk.

On 13^th May 2021 the CQC notified Dr Rahman that his application to be the registered manager of the Practice had been approved.

On 8^th June 2021, the CQC carried out an announced inspection of the Practice (as to the results of that inspection, on 26^th August 2021: see paragraph 75 below).

On 9^th June 2021 the General Medical Council (“the GMC”) suspended Dr Rahman from the medical register for a period of 18 months. This meant that Dr Rahman was unable to practise as a doctor in the United Kingdom in this period.

On 14^th June 2021 Ms Piper wrote to Dr Rahman, noting that the Second Remedial Notice had not been responded to, and that the time for doing so had passed.

On 15^th June 2021 – i.e. a week after the time for compliance with the Second Remedial Notice had expired - the Practice sent to Ms Piper an email that contained a screenshot of a draft undated and unsent email from Dr Rahman to Ms Piper in which Dr Rahman said that the Defendant’s Second Remedial Notice was stored in his “junk folder”, and asked for a meeting on 16^th June 2021 – i.e. the next day.

The meeting took place on 16^th June 2021, as planned. Dr Rahman was present, as was Ms Piper of the Defendant. In the course of the meeting, Ms Piper addressed the issue of Dr Rahman’s request to add new partners to the Contract. She said that, when submitting the request, Dr Rahman should ensure that the accompanying letter, signed by the new partners, demonstrates that they are aware of the risks and liabilities associated to the Contract, in particular that (i) two remedial notices had already been served on the Practice (she said that these notices should be shared with the partners); (ii) if the CQC rated the Practice as requiring improvement, or inadequate, then the Defendant would be issuing a third remedial notice; and (iii) Dr Rahman had been suspended by the GMC. These requirements (which were outside the terms of the Second Remedial Notice) were later confirmed by Ms Piper in an email to Dr Rahman.

On 18^th June 2021 the Practice sent an email to the Defendant which stated “Please see attached remedial notice action plan” and which attached (i) an Excel spreadsheet which sought to explain the action which the Practice had taken in response to the Second Remedial Notice; (ii) a number of pictures (as jpegs), and (iii) a number of documents (as pdfs). I address in paragraph 174 to 216 below the content, and adequacy of these responses and do not do so here.

On 29^th June 2021 Ms Piper emailed Dr Rahman to chase a response to the points that she had raised in her emails of 18^th June 2021 (and which had been discussed at the meeting on 16^th June 2021), asking for a response by 5^th July 2021.

On 7^th July 2021, Dr Rahman responded to Ms Piper - he stated that a Dr Ahmed was being brought into the Practice to provide cover for him (as he was suspended), and said that other general practitioners were being recruited.

On 26^th July 2021 Ms Piper responded to Dr Rahman, setting out the areas in which she had been seeking reassurance from him and explaining the reasons why a number of the responses he had provided did not give that reassurance. In particular, Ms Piper noted that there remained inconsistencies in the clinical rota because Dr Rahman was shown as delivering sessions when he was suspended and therefore unable to do so and that no information had been provided in relation to the recruitment processes for further employees and partners in the Practice. Ms Piper asked for a reply by 6^th August 2021.

Dr Rahman replied on 6^th August 2021, stating that he was “progressing towards recruiting the 2^nd partner”, but suggesting that this new partner wished to remain anonymous.

On 19^th August 2021 the PCCC approved the issue of a third remedial notice on the Practice. This was on the basis of Dr Rahman’s suspension by the GMC, the inadequacy of the responses to the First Remedial Notice, and the inadequacy of the response to the Second Remedial Notice. The PCCC also agreed to hold a further meeting once the CQC had published its report following the inspection of the Practice on 8^th June 2021.

On 26^th August 2021 the CQC published a report in relation to the Practice. It gave the Practice an overall rating of “Inadequate” (the lowest rating within the CQC’s range of ratings), along with the following ratings in relation to individual domains:

Following a re-inspection on 22^nd September 2021, on 27^th September 2021 the CQC suspended the Practice’s provider licence for 6 months with effect from 28^th September 2021 (i.e. until 29^th March 2022). As a result of the suspension, Dr Rahman was further prevented from undertaking his clinical duties under the Contract and could instead only carry out administrative tasks. In order for the Practice to be able to continue to provide clinical services, another provider (either a sub-contractor or a caretaker) who was registered with the CQC would therefore be needed.

From 28^th September 2021 caretakers (the Haringey GP Federation, acting under an Alternative Provider Medical Services Contract) were appointed to manage the Practice’s patient list.

On 5^th October 2021 the Claimant lodged an appeal against the notice of suspension served by the CQC to the First Tier Tribunal (Health, Education and Social Care Chamber) (“the FTT”).

On 21^st October 2021 the PCCC further approved the issuing of a Remedial Notice “for the concerns identified in the CQC suspension notice which indicated that the GP Provider is operating in breach of their GMS Contract.”

On 8^th February 2022 the Claimant and the CQC agreed terms of settlement of the appeal to the FTT. In summary, the CQC agreed to undertake a reinspection of the Practice by 28^th March 2022 to determine if the Claimant had remediated the concerns set out in the CQC’s suspension decision of 27^th September 2021.

On 15^th February 2022 the Defendant issued a Third Remedial Notice to the Practice. The delay in doing so (i.e. following the further approval given by the PCCC on 21^st October 2021) was, on the evidence, because of the work that the Defendant had to undertake arising from the suspension, in particular in identifying, installing and then ensuring the smooth running of a caretaker practice.

The Third Remedial Notice:

As with the Second Remedial Notice, I shall not at this stage of the judgment set out the terms of the Third Remedial Notice, nor the steps that were required to be taken by it, and instead address these in paragraphs 217 to 235 below when addressing the reasonableness of the Defendant’s decision that the Claimant was in breach of the Third Remedial Notice.

On 23^rd March 2022 the CQC re-inspected the Practice and on 29^th March 2022 the CQC served a notice of urgent suspension on the Practice. On 13^th April 2022 the Claimant lodged a notice of appeal against that suspension.

Meanwhile, with effect from 8^th April 2022 Drs Mohi and Rasooly, and Mrs Mukherjee (a non-clinical partner) joined Dr Rahman in the partnership (prior to that, as I say above, Dr Rahman had been the sole contract holder). It follows that, at the time of the termination of the Contract, these were the partners of the Claimant partnership.

In April 2022 the PCCC agreed to extend the caretaking contract until 30^th June 2022.

The Claimant did not respond to the Third Remedial Notice by the deadline of 15^th March 2022. Accordingly, on 22^nd March 2022 (and again on 28^th March 2022), the Defendant notified the Claimant that, given the failure to respond, the Defendant was considering whether to issue a further remedial notice or whether to terminate the Contract. Notwithstanding a continuing failure to respond, on 14^th April 2022 Ms Piper gave the Claimant a further opportunity to respond to the Notice – although she did not formally extend time, she requested a response to the Notice by 3^rd May 2022.

In fact, the Claimant responded on 29^th May 2022. The response consisted of four main documents: (i) an introductory section that explained the Claimant’s response, and in particular the limitations of it; (ii) a section responding to the Third Remedial Notice; (iii) a section responding to the Defendant’s assessment of compliance with the Second Remedial Notice; and (iv) a section addressing the CQC’s report of 26^th August 2021. Alongside the response itself, the Claimant sent some 1,350 pages of material which it said supported the response (including some 78 policies or protocols).

On 24^th June 2022 the FTT handed down its judgment on the Practice’s appeal against the CQC’s decision to suspend its provider licence. This followed an appeal hearing that took place over three days before the FTT on 9^th, 10^th and 11^th May 2022.

On 5^th July 2022 the parties held a meeting. Drs Rahman, Rasooly and Mohi, and Ms Mukherjee, attended from the Practice. Ms Piper, Su Nayee and Luke Porter attended from the Defendant. In relation to the remedial notices, Ms Piper stated that the First and Second Remedial Notices had been responded to by the Practice, but “remained not met”, and that the response to the Third Remedial Notice was being assessed as part of the local dispute resolution process. The minutes make it clear that Ms Piper offered significant assistance as to how the Practice could best supplement its response to the Third Remedial Notice if it wished to do so.

This involves consideration of three sub-issues:

It will be noted that I have presently drawn the boundaries of the issues that fall to be determined under Clause 569 as involving only consideration of whether the Defendant was satisfied that the Claimant had not taken the required steps set out in the Second and Third Remedial Notices, and the related Wednesbury and good faith issues – rather than including consideration of remediation of the First Remedial Notice too. That is because the Defendant’s entitlement to rely on alleged breach of that First Remedial Notice is a disputed issue, and is addressed separately in paragraphs 255 to 265 below. In any event, reliance on breach of that First Remedial Notice (if permitted) may not arise in the event that the Defendant’s decision to terminate, based on the Second and Third Remedial Notices, was lawful.

I shall consider each remedial notice – the Second and then the Third Remedial Notice – in turn.

I put to one side the point taken by the Defendant that the Claimant failed to respond at all to the Second Remedial Notice by the deadline of 8^th June 2021 contained within it: (i) there is a suggestion (the accuracy of which I am unable to judge) that the Notice remained in a junk folder within the Practice for many weeks, (ii) more importantly, at a meeting on 16^th June 2021, Ms Piper allowed the Claimant until 18^th June 2021 to respond; and (iii) the PCCC did not decide the issue of compliance by reference to a failure to comply by the initial deadline – the material put before the PCCC related to the substance of the Claimant’s eventual response, not the date of receipt of it.

The Defendant plainly was satisfied that the Claimant had not taken the required steps set out in the Second Remedial Notice by 18^th June 2021: (i) Ms Piper’s report, dated 5^th December 2022, and prepared for the purpose of the PCCC’s meeting on 13^th December 2022 sets out in great detail the respects in which the Claimant had not complied with the Second Remedial Notice; (ii) that report was placed before the PCCC at its meeting on 13^th December 2022; (iii) the minutes record that the Committee members were requested to approve the termination of the Contract on the grounds of a failure to remediate the Second Remedial Notice; (iv) the minutes of the PCCC’s meeting of 13^th December 2022 show that it approved that recommendation; and (v) the notice of termination itself states that the Defendant was terminating the Contract on the basis of a failure to remediate the Second Remedial Notice.

The position is exactly the same in relation to the Third Remedial Notice - the Defendant plainly was satisfied that the Claimant had not taken the required steps set out in the Third Remedial Notice by 15^th March 2022: (i) Ms Piper’s report, dated 5^th December 2022, and prepared for the purpose of the PCCC’s meeting on 13^th December 2022 sets out in great detail the respects in which the Claimant had not complied with the Third Remedial Notice; (ii) that report was placed before the PCCC at its meeting on 13^th December 2022; (iii) the minutes report requests that the Committee members should approve the termination of the Contract on the grounds of a failure to remediate the Third Remedial Notice; (iv) the minutes of the PCCC’s meeting of 13^th December 2022 show that it approved that recommendation; and (v) the notice of termination itself states that the Defendant was terminating the Contract on the basis of a failure to remediate the Third Remedial Notice.

In short, all of the factual evidence points in one direction: the Defendant was satisfied that the Claimant had failed to comply with the Second and Third Remedial Notices and terminated the Contract on that basis. I note in this regard that the Defendant relies on the fact that, when he was cross-examined, Dr Rahman accepted that he had not taken all of the steps required by each of the Remedial Notices, and suggests that this was an inevitable concession, but one only made in the course of Dr Rahman’s evidence. It is correct that Dr Rahman made this concession in the course of his oral evidence – but this is primarily relevant to the later question I have to address, namely whether the Defendant’s decision was Wednesbury unreasonable, rather than whether the Defendant in fact reached that conclusion.

Before the trial commenced, there was seemingly a nice issue of law to resolve, namely whether the Court of Appeal’s decision in Krebs v NHS Commissioning Board [2014] EWCA Civ 1540 in relation to the word “reasonable” in a dentist’s contract (which was framed in similar terms to Clause 10 of the GMS Contract) could stand in the light of the subsequent decision of the Supreme Court in Braganza v BP Shipping Ltd [2015] 1 WLR 1661.

However, the parties agreed in their Skeleton Arguments, in the Agreed List of Issues and in oral argument that the question for the Court which arises under Clause 10 of the Contract was whether the Defendant’s decision to terminate the Contract pursuant to Clause 569 was reasonable in the Wednesbury sense. I shall proceed on that basis.

Notwithstanding this agreement, the parties sometimes fell into the trap of using the phrase “Wednesbury sense” as a shorthand term which was capable of only one meaning, a meaning which was commonly understood and agreed by them. Their written and oral submissions revealed that this assumption may have been misplaced. There are two issues that require untangling in this regard.

The first issue is what question or questions must actually be asked and answered in determining “…whether the Defendant’s decision to terminate the Contract pursuant to Clause 569 was reasonable in the Wednesbury sense.” In its Opening Skeleton Argument the Defendant stated at [20] “It is not in dispute that the reference in Clause 10 to acting “reasonably” imports a test akin to Wednesbury unreasonableness, that is to say whether the Defendant reached ‘a conclusion so unreasonable that no reasonable authority could ever have come to it’: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 233-234…”

As I observed in argument, although other parts of the Opening Skeleton Argument appeared to recognise the correct position, this formulation only sets out one limb of the test formulated by Lord Greene MR in Wednesbury. The test has two parts, or limbs, to it:

The Defendant rightly reflected this when closing its case – in its Closing Skeleton Argument it modified what it had said in this part of its opening, stating instead at [18]: “It is not in dispute that the Defendant must act in a way which is Wednesbury reasonable. It accordingly must (a) not reach ‘a conclusion so unreasonable that no reasonable authority could ever have come to it’ and (b) take into account material considerations and leave out of account immaterial considerations: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 233-234…”

This is the correct approach (as the Claimant agrees), and the one that I shall take.

The second issue is whether the Wednesbury test incorporates within it a requirement for the court to assess the procedural fairness of the decision-making process. Founding itself on passages from Lady Hale’s judgment in Braganza, the Claimant submits that it does. The Defendant submits that it does not.

The Claimant relied on the following passage from Lady Hale’s judgment in Braganza at [24]:

The Claimant seizes upon the words “The first limb focusses on the decision-making process” and submits that this is authority of the highest level which establishes that the Wednesbury test requires scrutiny of the fairness of the decision-making process. The Claimant also relied on the decision of Simon Gleeson, sitting as a Deputy High Court Judge, in Warwickshire College v Malvern Hills District Council [2023] EWHC 2008 (Ch), where at [44] he held:

In argument I suggested that many public lawyers would be surprised if the Claimant’s submission was correct, as most of them would understand that Lord Greene MR’s formulation in Wednesbury raises two issues for consideration, not three – and that very few would understand that procedural fairness was one of them. But the surprise of a public lawyer is not enough to determine an issue. The more elaborate reasons why the Claimant is incorrect are as follows.

First, in paragraph 24 of Lady Hale’s judgment in Braganza she did not hold that the Wednesbury test requires scrutiny of the fairness of the decision-making process. This is clear for five interlinked reasons:

Second, in his concurring judgment Lord Hodge similarly speaks of Lord Greene MR’s two-limbed test in Wednesbury in terms of the first limb involving consideration of the thought process of the decision-maker, rather than the procedural fairness of the decision-making process: see [52] and [53].

Third, many post-Braganza cases refer to the two limbs of Lord Greene MR’s formulation in the conventional way that I have done above: see for example Patural v DG Services (UK) Ltd [2015] EWHC 3659 (QB) at [50] – [61]; Downing LLP v Sanguine Hospitality Ltd [2020] EWHC 3011 (Ch) at [48] – [54] and [65]; and R (LS) v London Borough of Merton [2024] EWHC 584 (Admin) at [67] – [69].

Fourth, my approach is precisely the same as that taken by HHJ Pelling KC, sitting as a Judge of the High Court, in UK Acorn Finance Limited v Markel (UK) Limited [2020] EWHC 922 (Comm). There, the Claimant sought to criticise the Defendant’s decision on the grounds that it had failed to conduct a fair investigative process before taking a decision to avoid liability under a professional indemnity policy, because: (i) it failed to hold a meeting to discuss the issues that were of concern to the Defendant before reaching a decision and (ii) because most if not all of the primary investigation was left to a single person. Holding that such a challenge was not open to the Claimant, the Judge held at [76]:

The Claimant submitted that I should not rely on the first underlined passage within this paragraph, as it was (i) wrong and (ii) in any event obiter, because the Judge went on to set out a second reason (as set out in the extract above), and because he then went on in subsequent paragraphs of his judgment to give additional reasons. As to the first point, I do not think that the Judge was wrong: indeed, he came to the same view as me, without me knowing of his judgment. As to the second point, it seems to me that this was an important part of the Judge’s reasoning for his decision – the fact that it was part of a series of points within his overall reasoning does not make it obiter.

Finally, the Claimant’s reliance on paragraph 44 in the Warwickshire College case does not advance its submission any further. Mr Gleeson’s decision in the Warwickshire case was simply an application of Baroness Hale’s judgment in Braganza, not a development of it – this is clear from his paragraph 44. Moreover, Mr Gleeson himself goes on to state at [46] that “As Baroness Hale points out, there are two limbs to the Wednesbury test…” (emphasis added).

For all of these reasons, I reject the Claimant’s case that the application of the Wednesbury test requires scrutiny of issues of procedural fairness in the decision-making process. I therefore turn below to consider the two issues which do fall to be determined.

Before I do so, I have to address the issue of the FTT’s decision. The Claimant has variously suggested that, when the Defendant came to decide whether to terminate the Contract, the Defendant was “bound by the decision” of the FTT; that the FTT’s decision created an issue estoppel; or that “the principle of res judicata applied.” In support of these submissions, the Claimant suggested that the Defendant “engaged with the CQC throughout the process”; that it was “privy to the issues”; that the issues raised by the Second Remedial Notice, and a good majority of those raised by the Third Remedial Notice, were determined by the FTT to have been remediated; and that there was “most definitely a link between the Claimant and the Defendant concerning the issues determined by the [FTT].”

I reject the suggestion that the Defendant was “bound by the decision” of the FTT. The language used by the Claimant is redolent that of the principle of stare decisis, but there is no such principle that establishes that a decision of the FTT is a binding precedent when an Integrated Care Board (“ICB”) determines whether to terminate a GMS Contract.

I similarly reject the submission that the FTT’s decision created an issue estoppel that prevented the Defendant from deciding that there had been a failure by the Claimant to remediate any of the issues raised by the Second Remedial Notice, and a “good majority” of those raised by the Third Remedial Notice. In its oral and written submissions, the Claimant did not seek to establish which paragraphs of each of those remedial notices had been determined by the FTT to have been remediated (nor point to the paragraph of the FTT’s decision which, it was said, had that legal effect). Instead, it made a generic submission. But that is not the main reason I reject this submission. Instead, the reason is a legal one. An issue estoppel prevents a party from re-litigating issues which have previously been determined in prior proceedings between the same parties, or their privies. In this context, ‘privies’ includes not only successors in title but also third parties that are sufficiently closely connected to a party such that it is just for them to be bound by a decision binding the party themselves: Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510. The court referred to these as ‘Gleeson privies’. That case involved issues of copyright in relation to the design of a shirt. The plaintiff, Miss Gleeson, brought an action against a company ("Denne") for breach of copyright in her drawings for the shirt, the essence of her claim being that Denne had copied a shirt supplied to them by the defendant ("Wippell"), which was itself a copy of a shirt manufactured for Miss Gleeson as copied from her drawings. Miss Gleeson failed in her action against Denne, the court holding that there was no infringement of her copyright. She then commenced a further action against Wippell, alleging infringement of copyright by Wippell. Wippell applied to strike out the claim on the grounds that it had already been held in the Denne action that Wippell's shirt did not infringe Miss Gleeson's copyright. The application to strike out failed, Sir Robert Megarry V-C holding that there was no privity of interest between Wippell and Denne, so no issue estoppel arose between Miss Gleeson and Wippell – see 515A-516F:

Applying these principles, this case is a country mile from raising an issue estoppel: the CQC was in no sense the privy of the Defendant. Indeed, the Claimant has fallen into exactly the trap identified by the then Vice-Chancellor: in suggesting that the Defendant was “privy to the issues” raised by the CQC’s suspension and the appeal, it has confused the Defendant being interested in the subject matter of those issues with there being any sufficient degree of identification whatsoever between the CQC and the Defendant. In no sense would it be just if the Defendant was bound by the outcome of the proceedings before the FTT: the Defendant had no control over those proceedings (the high point was that Ms Piper had provided a witness statement for the CQC’s use in those proceedings, but that statement was taken as read by the FTT and its contents did not affect the outcome); despite a degree of factual overlap between them, the issues were different in each set of “proceedings”; the issues were determined within a different legal framework and context; and the evidence before the FTT was different than the material that was before the Defendant.

Finally, the Claimant mentioned on occasion in its oral and written submissions the principle of res judicata. Issue estoppel is a species of res judicata. I have explained above why no issue estoppel arose in the circumstances of this case. The Claimant did not identify in its oral or written submissions any separate basis – outside of the creation of an issue estoppel – by which it might be said that the principle of res judicata meant that the FTT’s decision prevented the Defendant from determining for itself the issue of whether there had been compliance with the Second and / or Third Remedial Notices.

I therefore turn to the issues which do require to be determined.

The Claimant relies on 8 matters which, it says, the Defendant failed to take into account. I address each of them in turn.

(1) The decision of the FTT: I have addressed above the legal status of the FTT’s decision when it came to the Defendant’s decision. But that is not necessarily the end of the matter. It could be said that the Defendant ought to have had regard to the outcome (or even the reasoning) of the FTT when considering whether to terminate the Contract.

The PCCC was informed, in Ms Piper’s report to the Committee, of the fact of the appeal against the CQC’s suspension decision and the outcome of that appeal – namely that on 24^th June 2022 the FTT had allowed the appeal, and the CQC suspension was thereby lifted. The FTT’s decision was not attached to the report, nor otherwise provided to the PCCC for the purposes of its meeting.

Dr Khan explained in his evidence that, although aware of the outcome of the appeal to the FTT, he and the PCCC focussed on the material which the “officers” of the Defendant put before the Committee, asked them questions and gave those answers appropriate weight – rather than seeking to test what they were being told by comparing it to the FTT’s findings.

I cannot see any error in that approach. In this context, it must be remembered that the Contract does not codify the considerations which a PCCC must take into account when determining whether to terminate a contract. Here, it is helpful to lean on how public law approaches the issue of identifying which are the relevant and which are the irrelevant factors to bring into account when assessing the rationality of a decision.

In Re Findlay [1985] AC 318 Lord Scarman cited with approval the following passage from Cooke J’s judgment in CREEDNZ Inc. v. Governor General [1981] 1 N.Z.L.R. 172, at 183:

This led the Court of Appeal in London Borough of Newham v Khatun & Ors [2004] 3 WLR 417 to hold, per Laws LJ, at [35] that:

This approach has been applied in the private law context of contractual disputes when the court is examining the exercise of a discretion: see e.g. Faieta v ICAP Management Services Ltd [2017] EWHC 2995; and CMC Spreadbet Plc. v Tchenguiz [2022] EWHC 1640 (Comm).

Here, in circumstances where the Contract does not specify the considerations which a PCCC must take into account when determining whether to terminate a contract, it was for the PCCC to determine what to take into account and which matters (if any) it wished further to investigate. Having regard to the significant volume of detailed material with which the PCCC was provided; the evident differences between the issues before the FTT, and legal framework in which they were being considered, and those before the PCCC; and the stark failures on the face of the papers of the Claimant to comply with the Second and Third Remedial Notices, the approach of the PCCC seems to me entirely reasonable.

(2) The difficulties that the Claimant encountered in securing information and documents to answer the Third Remedial Notice: The Claimant set out in its response to the Third Remedial Notice a series of issues which, it said, limited its ability properly to respond to the Notice. These were (in summary): (i) that the responses were prepared away from the Medical Centre (by reason of the suspension, and the fact that the Practice was being run by caretakers), and Dr Rahman had encountered difficulties in securing access to the Medical Centre; and (ii) that Dr Rahman was prevented from having access, for the same reasons, to the Practice’s computers (including its databases, network drives and shared folders) – this was reflected in the substance of the Claimant’s response to the Third Remedial Notice, in that it was claimed that of the 44 remedial steps required, the Claimant could not respond to 34 of them by reason of having only “read access” to EMIS (a patient record system and software used in primary care).

It must first be recognised that this point, even if it has merit, does not affect the Second Remedial Notice – as none of the restrictions about which complaint was made afflicted the Claimant’s ability fully and properly to respond to that Notice.

In fact, the PCCC was provided with very full information about the extent to which Dr Rahman’s physical absence from the Medical Centre, and the need therefore to access material remotely, may have impacted on his ability properly to respond to the Third Remedial Notice. Over a full page of Ms Piper’s report to the PCCC is given over to this topic. In summary, this explained that:

In the light of the information provided to the PCCC, this complaint has no substance.

(3): Failing to revise the content of the Third Remedial Notice in the light of the decision of the FTT: For the reasons set out above, in relation to complaint (1), this additional complaint is not established.

(4): Failing to understand the QOF figures and the relevance of exceptions: It was not explained how it was said that the PCCC (or Ms Piper and Mr Marks) failed to understand the QOF figures or the relevance of exceptions, and so I am in no position to find that there was any failure in this regard.

(5): Failing to take into account that Dr Rahman did secure registration with the CQC: This complaint is not established on the facts, as (i) the PCCC was informed that Dr Rahman was registered with the CQC; and (ii) the information provided to the PCCC did not suggest that the Contract should be terminated on the grounds of a failure by Dr Rahman to secure registration with the CQC.

(6): Failing to take into account the fact that Dr Rahman’s failure to secure prompt registration with the CQC had not triggered a full performance review of the Practice: The fact that Ms Piper and Mr Marks had given the Practice every opportunity to secure registration, and that they had not at that stage moved to a full performance review, was not a consideration that was relevant to the question of whether there had been compliance with the terms of the Second and / or Third Remedial Notice. If and to the extent that it was not taken into account by the PCCC, then that was neither a failure nor unreasonable.

(7): Failing to take into account that the Practice was not underperforming in key domains: This was not a consideration that was relevant to the question of whether there had been compliance with the terms of the Second and / or Third Remedial Notice. If and to the extent that it was not taken into account by the PCCC, then that was neither a failure nor unreasonable.

(8): Failing to take into account that the Defendant had not terminated the Contract after the response to the Second Remedial Notice: This information was before the PCCC, as it was included in the materials provided by Ms Piper to the Committee (and was in any event obvious). Dr Khan explained to me that he and the Committee were aware of the decision not to terminate the Contract after the response to the Second Remedial Notice. The fact that the Defendant had not terminated the Contract after the Second Remedial Notice was irrelevant, especially in circumstances where the decision was taken to wait for the CQC to take action against the Practice.

Turning then to the list of matters which the Claimant says the Defendant did take into account, but which – it argues – were irrelevant and ought not to have been brought into account, the Claimant relies on five facts and matters.

(1) The PCCC was told that “There is no assurance of being registered with the CQC”: It is not clear why it is said that this was an irrelevant consideration. The Practice wished to operate with three new partners (Drs Mohi and Rasooly, and Mrs Mukherjee), and indeed on 8^th April 2022 they had been added to the Contract. But the three additional partners had ceased engaging with the Defendant and in any event had not been registered as such with the CQC – there was indeed no assurance, in the light of all of the issues with the Practice, that they would be so registered.

(2) The PCCC was told that “There are still concerns around two of the partners”: This was a reference to two matters. First, the fact that two of the partners were registered providers in other practices which the CQC had assessed as requiring improvement. Second, the fact that Dr Rasooly was at that time being investigated by NHS England (the investigation later ended, but only after the events with which I am concerned). Far from being immaterial considerations, in my judgment they were directly relevant. As Dr Khan explained, as well as addressing whether the terms of the Contract had been breached (in this case) by reason of a failure to comply with the Second and Third Remedial Notices, the PCCC had to take a broader view about whether it was appropriate to terminate the Contract – information of this kind is directly relevant to that issue. Indeed, in the course of his cross-examination Dr Rahman himself conceded “I agree that if I am bringing in new partners, it is relevant for the Defendant to take into account the CQC rating of the practice in which those partners work and the existence of an ongoing investigation.” I agree.

(3) The PCCC was told that, when the Practice went into caretaking, it was discovered that the Practice was in debt: This was factually accurate. The caretakers had identified a large number of invoices showing that the Practice owed some £77,434 to creditors (including HMRC, locums, rental arrears, and photocopier rental, telephone bills and gas bills) and that letters from bailiffs had been sent to the Practice demanding payment or threatening the removal of equipment from the Medical Centre. There was every reason for the PCCC to be given this information, as it was relevant to the broader context that the PCCC had to consider when deciding whether to terminate the Contract. It was not irrelevant.

(4) The PCCC was told that Dr Rahman had not paid bills: This was factually accurate: see above. There was every reason for the PCCC to be given this information, as it was relevant to the broader context that the PCCC had to consider when deciding whether to terminate the Contract. It was not irrelevant.

(5) The PCCC was told that the other partners had not indicated that they were happy with Dr Rahman’s submission: This was factually accurate. Ms Piper and Mr Marks were legitimately concerned that the involvement of the new partners in the provision of information to, and engagement with, the Defendant had, since joining the Practice, declined. There was every reason for the PCCC to be given this information, as it was relevant to the broader context that the PCCC had to consider when deciding whether to terminate the Contract. It was not irrelevant.

Overall, the Claimant’s case in relation to the first limb of Wednesbury fails.

This involves separate consideration of the Second and Third Remedial Notices.

It was part of the Claimant’s case (and put to Ms Piper in cross-examination) that the Defendant had not harboured any significant concerns about the performance of the Practice at the time of the service of the Second Remedial Notice and that the concerns that were expressed in the Notice and in the Table annexed to it were essentially a list of issues created by the Defendant to cause difficulties for the Claimant because it knew it was not going to be able to rely on the absence of registration with the CQC as a basis for taking action against the Claimant. Quite aside from the fact that, at the date of the service of the Second Remedial Notice (11^th May 2021), the CQC had not yet decided to register Dr Rahman as the manager of the Practice (that occurred on 13^th May 2021), there is a wealth of documentary evidence that clearly demonstrates that the Defendant (and its predecessors) had indeed harboured such performance concerns for many years before the service of the Second Remedial Notice. I note, in particular: (i) the letter to the Claimant of 19^th March 2018 (see paragraph 34 above); (ii) the tables of concern sent by the Defendant to the Practice on 29^th May 2018, following the meeting of 13^th March 2018 (see paragraph 36 above); (iii) the letter sent by the Defendant to the Practice on 12^th July 2018 (see paragraph 41 above); and (iv) the visit on 22^nd January 2020 to discuss safety concerns and infection prevention and control (see paragraph 43 above).

Turning then to the issue of whether the Defendant’s conclusion - that the Claimant had failed to remediate the Second Remedial Notice – was unreasonable in the second Wednesbury sense, the Claimant submitted that it had, in fact, provided all of the information requested in the Second Remedial Notice and relied on the Excel spreadsheet, and the documents sent along with it, by email on 18^th June 2021. It accordingly relied on the provision of that information and material to suggest that the Defendant’s conclusion was an unreasonable one.

I fundamentally disagree. The suggestion that the Claimant had provided “all of the requested information” is manifestly incorrect. The Defendant reasonably concluded that there had been a failure to provide a significant proportion of the information and documents sought – indeed, any conclusion that there had been such compliance by the Claimant would have been the irrational one.

A close examination of the Excel spreadsheet and the documents that accompanied it demonstrates the extent of the Claimant’s non-compliance with the requirements of the Second Remedial Notice. I set out below, in a somewhat abridged form, the ways in which the response was not compliant with the requirements of the Second Remedial Notice.

Paragraph b of the Notice: This identified that QOF performance had worsened in 2019/20 compared to the CCG average for that year. It required the Claimant to “Provide a SMART action plan to improve QOF achievement. The plan will include, but not be limited to: audit of current long term conditions management; audit of consistency of SNOMED coding; consistent use of clinical templates by the clinicians in the practice’s identified training needs and plans to address this; timelines for all actions; identified leads.”

In response, in the Excel spreadsheet, the Claimant said “The practice has recruited another practice nurse, working 3 days a week to provide [an] additional chronic disease management clinic. We also have ARRS staff assisting with the call/recall for CDM. Our HCA is on a NA course, this will assist us with CDM management plan. We have introduced an ARDENS template to simplify the coding errors. With the new partners joining – they will be allocated a team to assist with the management of each clinical indicator,”

This part of the response was defective and incomplete – i.e. it did not meet the requirements of the Second Remedial Notice – in the following respects:

Paragraph c of the Notice: This identified that the use of Personalised Care Adjustments was above the CCG average in 17 out of 37 domains – these were set out in detail in the Notice. It required the Practice to provide its policy for the use of PCAs, which should include but not be limited to (i) when it was appropriate to add a PCA; and (ii) the monitoring and audit of PCAs.

In response, the Excel spreadsheet stated as follows: “Clinical Directors, local GPs and Commissioners are aware of the challenging population we have. The practice has a robust call/recall system to try to engage patients. The practice works on a 3-call invite basis. Telephone, text, letter/email (1-month apar [sic]). With the introduction of SLP, Pharmacist, we are able to assist patients with monitoring [sic] with making adjustments to medication quantities to ensure relevant checks are up to date. We have successfully started [sic] this with the high risk drug monitoring which was started in May.”

This part of the response was defective and incomplete – i.e. it did not meet the requirements of the Second Remedial Notice – in the following respects:

Paragraph d of the Notice: This required an audit to be conducted, by a clinician, of PCA coding for 2020-2021 for a sample of medical records, providing evidence of which codes were used, evidence of when the patients were seen, and the date of recall in the Practice after the PCA code had been applied.

The response to the Notice stated “The practice started in yearly recall for chronic disease management. We have not contacted anyone yet. We are driving the quality outcome framework for asthma/COPD/hypertension successfully.”

It follows that the Practice failed entirely to answer the request made by the Notice. When he came to give evidence, Dr Rahman conceded this, stating under cross-examination: “I agree that we did not do what was required by this request.” This was an abject failure, and would be regarded by any reasonable ICB in that way. A reasonable ICB would also bring into account the fact that the failure to provide any proper response was in the context of a Practice where 17 of the 37 PCA rates were above the CCG/national average, and where the Practice was coding 3 PCA rates (asthma, COPD and hearing failure) 10-20% above the CCG/national average, and would properly be concerned that the health needs of a cohort of vulnerable patients may not have been met by the Practice, leading to the deterioration of patient health.

Paragraph e of the Notice: This required the Practice to provide a SMART plan for increasing the recorded rates of disease prevalence in the Practice, including (but not limited to): an audit of existing disease registers, and audit of SNOMED coding, and casefinding for patients not on a disease register.

The response to the Notice stated: “Same as 7b”, but there was no answer “7b”. Dr Rahman stated when he gave evidence that “I cannot fully recall whether we provided any SMART plan as a result of or in answer to this question.” That was a rather euphemistic acknowledgment by him (and he knew it, when he said it) that no such SMART plan was provided, most likely because no such SMART plan existed.

Quite aside from the absence of a SMART plan, the response failed to provide audits of existing registers or the use of SNOMED coding, failed to describe a casefinding protocol or process, and failed to describe a failsafe system to ensure that patient care was delivered to those who required it.

Paragraph f of the Notice: This required the Practice to provide a SMART plan for increasing the uptake of childhood immunisations in the Practice in order that it might reach the national target, including (but not limited to): provision of the current child immunisation policy, the call and recall processes, the failsafe procedures, and the policy on patient education and outreach.

The response stated: “With the addition of new partners joining, the quality will improve as the partners have protected time to ensure clinical coding is up to date and correct. With the support from F4H for uptake in smear and immunisation – they found it extremely difficult with our population. We are creating a questionnaire to audit parents/guardians with children under 4, of how much information/support they have received for vaccination programme. This will eventually lead to a patient group meeting to try to engage and adapt our current services to the needs and expectations.”

Dr Rahman again stated in cross examination that “I cannot fully recall whether we provided any SMART plan as a result of or in answer to this question.” This was a reflection of the fact that, again, no such SMART plan had been provided and, moreover, the substance of the matters that might be included in such a policy had not been addressed by the response. A reasonable ICB would find this response very concerning, especially in the context of this Practice, which for the past 4 years had consistently been around 20% below the national target for immunisations.

Paragraph g of the Notice: required the provision of a SMART plan for increasing the uptake of flu immunisation in the over 65s to achieve the national target, including (but not limited to): the call and recall processes, the failsafe procedures, and patient education and outreach.

The response stated: “We have agreed for 2021/2022 [the] influenza programme will be run with a HCA/nurse available every day for walk-in and also 2 weekends for the first 3 months. This will be challenging whilst COVID [sic] as it was demonstrated when the federation tried assisting last year for a weekend flu walk-in. Patients will be given sufficient notice for the vaccine dates. We have discussed with our Sanofi vaccine manager regarding ordering patient awareness resources.”

This response again failed to provide a SMART plan (resulting in the same response in cross-examination from Dr Rahman as is described in relation to similar failures concerning other parts of the Notice).

A reasonable ICB would find this response troubling, especially in the context of a Practice where flu immunisations had decreased every year since 2016.

Paragraph h of the Notice: This required the production of a SMART plan for increasing the uptake of cervical screening to reach national targets, including (but not limited to): the Practice’s screening policy or protocol, the call and recall processes, failsafe procedures and measures for ensuring patient education and outreach.

The response stated: “We have recruited another nurse to assist with cervical screening. We are currently waiting for Nurse Enriques to be signed off. We have collocated 2 members of staff for recall of smear campaign. We have redesigned the information ACCURUX to more patient specific in line with our demographics.”

This response failed yet again to provide a SMART plan. As to the substance, the response fails to describe or attach the Practice’s screening protocol or policy (leading to the clear inference that it does not even have one); it fails to describe the call and recall processes for cervical screening; it does not set out the failsafe procedures in operation; the description of patient education and outreach is limited in scope and its effectiveness is not described as being audited, and there is no description of any systemic review to identify patients eligible for cervical screening who have failed to attend or respond to an invitation.

I canvassed in evidence (having undertaken some research as to the nature of the measures that might be taken to improve cervical screening uptake) whether Dr Rahman had similarly undertaken any research to see what measures might be deployed, having regard to the many academic and practitioner research and pilot studies that are available. He said he had not. And so measures commonly described in the literature as improving success rates – offering online appointments, offering a self-booking system through the use of an app, communicating with patients by text message, appointing a screening manager, auditing the accuracy of patient contact details, using a range of languages when communicating with patients, offering longer appointments and easy read leaflets for patients with learning difficulties, offering evening and weekend appointments, or offering home HPV testing (and the list could go on and on) – were not matters that he had brought into account when either responding to this request or in practice when seeking to improve screening uptake rates.

All of this was in the context of the Practice being 20% below the national average for cervical screening uptake rates. The failure properly to respond to the Defendant’s reasonable, and targeted, request would worry any reasonable ICB.

Paragraph i of the Notice: This required the production of a copy of the current risk assessments undertaken for all clinical staff for immunity to measles, rubella and varicella.

The response stated: “All clinicians have had their immunity status [sic] after it was highlighted in the inspection.”

It follows that the Practice failed properly to answer this request. No risk assessments were provided. Moreover, the response itself was incomprehensible – there was a word or words missing, making it impossible to see what the Practice had said had happened. As the response noted, the Infection Prevention and Control team had undertaken an audit on 12^th December 2019 and notified the Practice that there was no evidence of risk assessments for the three diseases mentioned. And there was the Practice, years on, without the ability to produce the evidence to demonstrate that appropriate remedial action had been taken. Dr Rahman nicely understated the extent of the failure here when in cross-examination he said “I agree that from looking at this summary document we did not answer this question.”

Paragraph j of the Notice: This required the Practice to provide evidence of the remedial actions taken to address the issues which had arisen from the flooding of the Medical Centre, including the dates that repair works were undertaken.

The response stated: “Ms Sanjeev Bhundoo was aware of our limitations of a listed building and the cost of changing the flooring in view of relocation. It was agreed to either be repaired or replaced. The practice repaired the seals.”

This response fails to provide any evidence of the remedial actions taken in response to the flooding. It fails to provide dates on which the repair works were undertaken. Dr Rahman accepted, in cross-examination, that “…the response does not answer the question raised.”

Paragraph k of the Notice: This required the Practice to provide evidence that all examination couches used in the Practice had the appropriate paper roll holders fitted and that there was a process in place for re-ordering stock.

The response stated “Couch paper roll is ordered via MEDISAVE/Williams Medical. All couches have paper rolls fitted. Photographic evidence attached. Couch paper roll was fitted. We are replacing the current examination bed in room 4. Jpen advised not necessary.” Attached to the email were photographs of two examination couches, and a screenshot of a re-order of paper rolls on 19^th April 2021.

Data held by the Defendant suggested that there were 3 GP rooms, 2 nursing rooms and 1 multi-occupancy room – it follows that evidence had not been provided to establish that all of these rooms had paper rolls fitted to the examination couches. No evidence was provided of a re-ordering process (instead, all that was provided was a one-off order form).

Paragraph l of the Notice: This required the Practice to produce evidence that the taps fitted to clinical handwashing sinks had each been replaced with an appropriate mixer tap that incorporated an elbow or wrist operated tap.

The response did not address this request, albeit a photograph of a single sink was provided. This did not have an appropriate mixer tap fitted.

Paragraph m of the Notice: This required the Practice to provide evidence that all clinical sinks fitted in the Practice did not have overflows.

The response stated: “Not met, the overflow is raised higher than average sink basin. We have removed plugs as per IPC Policy December 2020” and a photograph of a sink was provided.”

The Practice admitted in its reply that this requirement was not met. The photograph of the sink that was included also showed that the sink was not compliant. In his evidence, Dr Rahman explained that the Practice had not undertaken this work because “we thought that we were moving.”

Overall, the response to the Second Remedial Notice was very poor indeed. It was defective across each and every one of the requests made. It was defective in relation to a broad range of issues, stretching from issues with the premises (the response to the flooding, the fitting of paper rolls to examination couches, and the sinks) to fundamental issues of clinical practice (the absence of policies concerning exception reporting, cervical screening and immunisation). In fairness to him, Dr Rahman made the following important concession in cross-examination: “In hindsight, I accept that the spreadsheet and the documents provided fall seriously short of what was required.” But hindsight was not required. These were relatively straightforward requests. Sufficient time was given to respond to them. The reliance on the need for hindsight to understand how far the Practice had fallen short was in my view artifice to seek to overcome the fact that, in reality, the answers most probably reflected the situation on the ground (rather than this being a well run and properly functioning practice, but which had paid insufficient attention to the demands of the Notice).

It will have been noted that the response to this Notice was emailed to the Defendant by the Practice Manager, not by Dr Rahman or another clinician. Dr Rahman explained that this reflected the fact that the Practice Manager “got the documents together.” Building on this theme, Dr Rahman said in evidence that he did not receive any feedback from the Defendant that the response to the Second Remedial Notice was in any way defective, and so he and the Practice were none the wiser that the response was in any sense unsatisfactory until he received the Third Remedial Notice. This was not Dr Rahman’s finest moment giving evidence, as the documents reveal that he and the Practice were indeed given such feedback. Thus:

The exercise of assessing whether the Defendant’s decision that there had not been compliance with the Third Remedial Notice is not as straightforward as in relation to the Second Remedial Notice. This is because: (i) the Third Remedial Notice set out a much higher volume of requirements – 44 – than the Second Remedial Notice; (ii) the content of some of the requirements is complex; (iii) the Claimant did not address in either his witness statement or his oral evidence each of these requirements; (iv) neither the Claimant or the Defendant in their oral or written submissions addressed each of the 44 requirements; and (v) the Defendant’s own analysis of the extent of such (non-) compliance (set out in Appendix 2 to the notice of termination is a 77 page table of closely reasoned analysis. This discloses that the Defendant concluded that the Claimant had not complied with 41 of the 44 requirements.

Instead, the parties took the approach of selecting a sample of the requirements set out in the Third Remedial Notice and tested in the evidence and their submissions the factual bases and reasonableness of the Defendant’s conclusions. I shall follow that approach too.

Request 1: This required the Practice to submit evidence, if it had been underperforming in a domain within QOF, of the actions that it had taken to review, improve performance and improve patient outcomes over the past 3 years, in particular (i) the audits carried out, with their findings and what actions had been taken; (ii) minutes of meetings with the practice team where long term disease management had been discussed; (iii) in-practice training sessions to improve case management; and (iv) any action plans that had been put in place. The request set out a series of domains in which there had been underperformance in QOF by the Practice.

In response (as well as relying on the generic response about the difficulties it had in accessing data and policies), the Practice sent two screen shots from EMIS and stated “Our GP IT systems has QOF auditing tools built in. As per screen shot of the current year, these audit tools for QOF are EMIS web built in, and I have been using this since 2013…” (emphasis added). When he gave evidence, and under cross-examination, Dr Rahman agreed that what he had done was describe the EMIS IT system that the Practice used, and had not produced any results from such audits, nor showed in fact that any such audits had taken place, that there was no description of any action taken as a result of the performance of such audits, that there was no explanation of any action taken to seek to improve QOF figures in underperforming domains, and that there was no discernible difference in approach taken by the Practice either across time or across the different conditions. In the light of the material provided (reflected in Dr Rahman’s concessions), it was entirely reasonable for the Defendant to conclude that this request had not been complied with.

Request 10: This required the Practice, in the cases where "practice prevalence" was low in relation to a disease register (practice prevalence refers to the percentage of patients within a GP’s practice who have a specific condition, as recorded on the practice's clinical register) to provide evidence of steps taken to improve performance and patient outcomes over the previous 3 years, including (i) minutes of meetings, (ii) health checks audits, (iii) referrals audits, (iv) audits of blood pressure reviews, (v) medication reviews, (vi) spirometry audits, and (vii) written protocols or action plans for staff in systematically recalling patients to identify new cases of diseases.

The response stated “This historical data relating [sic] is not accessible to us, as we no longer have the previous practice team, and the access to this historical data. This has been the case since the GMS Contract was suspended and care takers [sic] appointed by NCL CCG to manage the practice since September 2021.”

Quite aside from the more general points made above about the access that the Practice could have secured to information and materials in order properly to answer this request, it is notable that:

It was entirely reasonable for the Defendant to conclude that this request had not been complied with. Much information sought by the request could have simply been described by Dr Rahman (if, in fact, the relevant practices and procedures had been undertaken). In evidence, Dr Rahman agreed with this, and said “It was an oversight by me not to explain in my own words what we had done in these areas.” Oversight or not, the fact is that the Defendant was not presented with even a basic description of the steps undertaken by the Practice to seek to improve its performance in a range of important matters. Additionally, data which was, on its own account, reasonably available to the Practice was not provided.

Requests 11 – 14: These sought information about improvements that the Practice had sought to make, over a 3-year period, in relation to (i) child immunisations, (ii) influenza immunisations, and (iii) cervical screening tests (in each of which areas the Practice had demonstrated that it was well below national targets). Dr Rahman rightly accepted when he gave evidence that the target groups in relation each of these three measures were very different (namely: the parents of children; people over 65 and those who are otherwise vulnerable; and people with a cervix) and therefore that a targeted and bespoke approach to assessment, planning and communication was needed.

The Practice adopted the same reply in relation to each of these requests, namely that it could not access the historical data needed to reply to these requests. It did, however, provide some SMART plans as part of the large bundle of materials that it sent to the Defendant alongside its replies. One of these was said to be a SMART plan for increasing the uptake of childhood immunisations in the Practice to reach national targets, another was a SMART plan for increasing the uptake of flu immunisations in the over 65s to achieve national targets, and a third was a SMART plan for increasing the uptake of cervical screening to reach national targets. The difficulties with these documents included the following:

Request 44: This request was along similar lines to request 43, but sought the Practice’s revised policies and protocols that would be implemented in a list of domains. The Practice’s answer was the same as for request 43. But none of the documents included in the large bundle provided by the Practice identified which were old policies, which had been reviewed and amended, and which were documents which the Practice intended to implement in the future. Dr Rahman agreed, when this was pointed out to him in evidence, that it was “a fair point”, that request 44 asked a straightforward question, and that it was a critical issue for the Defendant as to whether he and the Practice had the capability to remediate issues of concern.

The Defendant’s decision that there had been failure to comply with the Second and Third Remedial Notices was not unreasonable. Indeed, it was very far from being unreasonable. There had been very significant non-compliance by the Claimant with each of those Remedial Notices. These failures to comply with the Second and Third Remedial Notices were serious. They were not isolated, but instead repeated and related to ongoing issues of concern. The Claimant was given every opportunity to comply, through the use of repeated remedial notices, the giving of extensions of time, and the facility to provide additional information and documents outside of the extended time periods. The subject matter of the notices were not minor issues, but instead went to the very heart of the running of the Practice. The Claimant’s responses not only failed to comply with the terms of the Second and Third Remedial Notices, they demonstrated a stark failure by the Claimant to understand the nature, scale and depth of the legitimate concerns that existed in relation to the running of the Practice. All of this was against the background of a longstanding history of unsatisfactory performance at the Medical Centre, which performance had not been satisfactorily resolved despite the persistent efforts and attention of the Defendant. The Defendant’s decision that there had been a breach of both the Second and Third Remedial Notices by the Claimant was a reasonable one.

It was pleaded in the Particulars of Claim that the Defendant had not acted in good faith in terminating the Contract – see paragraphs 3.1 and 13.1(5). No further particulars were given of the respect or respects in which the Defendant had not acted in good faith (cf the requirement, when making an allegation of this nature, to plead the facts, matters and circumstances relied on: Three Rivers District Council v Governor and Company of the Bank of England (No.3) [2003] 2 AC 1 at [51], [184] and [186]). The Defendant sought further information of these averments under Part 18 of the Civil Procedure Rules 1998 and on 29^th January 2024 Master Eastman ordered the Claimant to file and serve full particulars to support its claim for a declaration, as set out in paragraph 13.1(5) of the Particulars of Claim, that “the Defendant has not acted in good faith when making a decision to serve the notice of termination dated 24^th April 2023.” The essence of the Claimant’s response to the request is reflected in the following paragraphs of the Claimant’s Further Information:

The first issue which arises is the meaning of the relevant part of Clause 10 of the Contract (“In complying with this Contract, and in exercising its rights under the Contract, the [Defendant] must act … in good faith…”), in particular whether pre-determination, or having a “closed mind”, as to the issue of termination of the Contract would be in breach of the express obligation to act in good faith.

It is well established that, as with any question of interpretation of a contract, an express “good faith” clause in a contract takes its meaning from the context in which it is used: see, for example, Compass Group UK and Ireland Ltd (t/a Medirest) v Mid-Essex Hospital Services NHS Trust [2013] EWCA Civ 200 at [109] and [150]- [151].

Relatedly, it is very clear that in the task of considering the interpretation and meaning of an express “good faith clause” in its context, cases from other areas of law or commerce, which turn upon their own particular facts, may be of limited value and must be treated with considerable caution: see, for example, Street v Derbyshire Unemployed Workers' Centre [2004] EWCA Civ 964 at [41] and Compass Group (supra) at [110].

In my clear view the obligation in Clause 10 placed upon the Defendant to act in good faith encompasses a requirement, when considering whether to terminate the Contract, not to act with predetermination – or a “closed mind” to that issue. Firstly, and most obviously, that would not be to act honestly. The fundamental or essential meaning of the words “in good faith” – often described as their core meaning – is honesty, or to act honestly: see Street (supra) at [110], recently approved by the Court of Appeal in Re Compound Photonics Group Limited [2022] EWCA Civ 13 at [149]. Considering whether to terminate the Contract with a closed mind – i.e. pre-determination as to the outcome – would not be a genuine consideration of that issue at all; it would not be honest, it would not be undertaken in good faith. Secondly, the context of the good faith obligation in Clause 10 is that is sits alongside an obligation, later in the Clause, that the Defendant must act “…as a responsible public body required to discharge its function under the [National Health Service Act 1977].” Whilst there is no pleaded allegation, suggestion in the Claimant’s Skeleton Argument, or mention in the agreed List of Issues that this part of Clause 10 is in issue in this claim (and the issues which arise from it are not therefore before me), I do think that this part of Clause 10 gives colour and context to the requirement earlier in the Clause that the Defendant must act in good faith. In particular, a responsible public body would not act with a closed mind or predetermine issues, in particular such significant issues such as the termination of the Contract itself.

And so, in principle, the allegation of the Defendant having a closed mind to, or pre-determining, the issue of termination of the Contract – if established on the facts – could amount to a breach of the obligation to act in good faith placed upon the Defendant by Clause 10 of the Contract.

It was not clear from the Part 18 Further Information, nor from the Claimant’s case more generally, whether the allegation of having a closed mind, or pre-determination, was made against those of the Defendant’s employees (such as Ms Piper and Mr Marks) who were responsible for the investigation, and management, of concerns concerning the Claimant, or of the PCCC which ultimately made the decision to terminate the Contract.

In relation to the former, no suggestion was made to Ms Piper in cross-examination (either directly or indirectly) that she had not acted in good faith.

It was, however, put to her that there were references throughout the emails sent to the Claimant to the possibility that the Contract might be terminated and that this was evidence that it was the intention all along to terminate the Contract. Ms Piper explained that this was not the case, that it was ordinary practice to refer to the possibility of termination when managing poor performance with a practice, and that regrettably termination of the Contract was “…the situation in which we found ourselves.” The explanation given by Ms Piper accords with common sense, and the way in which I would expect a public body in the position of the Defendant to behave. I have re-read the emails sent by the Defendant to the Claimant in the light of the suggestion made to Ms Piper to see whether they strike me any differently than when I first read them (when reading in to the case). They do not – they read exactly as Ms Piper described them: giving busy medical professionals a clear warning of the seriousness of the issues being looked into, and the need for compliance with the requests made of them, and of the possible consequences in the event of non-compliance. Quite aside from the text, and clear purpose, of the emails the allegation that they are evidence of a settled plan to terminate the Contract is entirely inconsistent with the Defendant’s conduct as a whole (and, in particular, the conduct of Ms Piper and Mr Marks). That conduct demonstrates that they gave the Claimant every opportunity to address the Practice’s poor performance and breaches of the Contract. If anything, there was delay by them in moving towards the issue of termination, and asking the PCCC to determine that issue.

It was similarly suggested that emails and other documents exchanged within the Defendant evidenced a settled intention to terminate the Contract from May 2021 onwards (the Claimant relied on exchanges between Ms Piper and Mr Marks in an email exchange of 4^th May 2021; a report by Mr Marks to the PCCC dated 4^th May 2021; an email exchange between Ms Piper and Mr Marks of 5^th May 2021; a report by Mr Marks to the PCCC dated 7^th May 2021; and an email exchange between the CQC and Ms Piper and Mr Marks dated 27^th January 2022). I have read and re-read these documents and cannot see any material within them that is suggestive of an improper and settled intention to terminate the Contract – instead, all they reveal to me is the mention of possible termination of the Contract as a possible outcome amongst many others which, in the context of the exchanges themselves and the broader chains of communications in which they sit, was entirely reasonable.

It is right to note some of the questions which were asked of Ms Piper for the entirely different purpose of seeking to establish a breach of an implied term of procedural fairness might in one sense be said to go to the issue of good faith. As I have said, the issues of whether there is such an implied term; if so, its nature and extent in the context of this contractual relationship; and whether any such term was on the facts breached by the Defendant are not issues before me. But I ought, for completeness rather than because that was how the Claimant put its case, to consider (or “repurpose”) those questions when considering the issue of good faith.

Ms Piper accepted that the Defendant should give notice to a practice in the position of the Claimant, in advance of a meeting of the PCCC at which the contract under which they provide primary care services may be terminated, that the issue of termination was being considered and determined by the PCCC. She also accepted that in her email of 23^rd November 2022 to Mr Butler she had not informed him that the PCCC was going to consider termination of the Contract. She said that “That was just an oversight in my email, albeit we had said on a number of occasions to Dr Rahman that his contract was at risk.”

No suggestion was made to Ms Piper that she had deliberately omitted to include in her email of 23^rd November 2022 reference to the fact that the PCCC would be considering termination of the Contract.

Ms Piper’s explanation was given in a clear and straightforward way, without varnish or gloss.

Ms Piper had certainly not previously been coy with the Claimant that its conduct was a matter that could be referred to the PCCC for consideration to be given to the termination of the Contract – indeed, ironically, it will be noted that the frequency of the mention of the issue was sought to be used by the Claimant as the foundation stone for an alternative part of his argument – namely that it had always been the case that the Defendant was going to terminate the Contract.

For all of these reasons, I accept that this was simply a mistake by Ms Piper rather than evidence of a failure by her to act in good faith.

It was suggested to Anthony Marks that, by the spring of 2021, he had already made the decision to terminate the Contract (and had done so in collaboration with the CQC).

It is clear from the material before me that the Defendant reached the view that the Claimant failed to comply with the First Remedial Notice. For reasons given elsewhere in this judgment, it is unnecessary for me to determine whether it did so reasonably and in good faith. But the fact that it reached that conclusion, which undoubtedly it did, is relevant to the allegation of pre-determination against Mr Marks. He was one of those within the Defendant who had reached the view that the Claimant failed to comply with the First Remedial Notice. That would have entitled the Defendant to take steps to terminate the Contract. But it did not do so. Nor was Mr Marks pressing for the Defendant to do so. Instead, rather than pressing for termination, his view was that the Claimant should be given a further opportunity to comply – hence the re-service of the same questions in the Second Remedial Notice. This behaviour is inconsistent with the suggestion that it was always his intention to secure the termination of the Contract. The same is true in relation to the Second Remedial Notice. Here, the Defendant undoubtedly took the view that the Claimant had failed to comply with the remediation required by it. Importantly, and as I have already found, that view was entirely reasonable. Yet again it decided not to terminate the Contract there and then, but instead gave the Practice yet further opportunities: this conduct is at odds with the suggestion that it was always Mr Marks’ intention that the Contract should be terminated. As for Mr Marks’ liaison with the CQC over the registration issues, I read the exchanges which Mr Marks had with his counterparts in the CQC for the purposes of reading in to the case, again when I was taken through them in the course of the cross-examination of Mr Marks and for a third time when preparing this judgment. Each reading has left me with the same impression: they are simply working-level exchanges, of the type, frequency and tone which I would expect, between officials in organisations who have overlapping and complimentary functions. I see nothing amiss in any of the exchanges, certainly no evidence that Mr Marks was improperly acting in cahoots with the CQC. Rather, he was legitimately seeking information that may have been relevant to the proper discharge of the Defendant’s functions.

No suggestion was made to Usman Khan to the effect that he or any other member of the PCCC which made the decision to terminate the Contract at the meeting on 13^th December 2022 had failed to act in good faith. It was pleaded that the Defendant had breached Clause 592 of the Contract (“Whenever the [Defendant] is considering terminating the Contract…it shall, whenever it is reasonably practicable to do so, consult with the Local Medical Committee (if any) for its area before it terminates the Contract…”). In fact, the Defendant did undertake such a consultation before the termination of the Contract – it requested the views of the Londonwide LMC, in particular as to whether it had any views, concerns, or queries about termination of the Contract, and on 24^th April 2023 the Londonwide LMC responded by stating that it concurred with the PCCC’s decision to terminate the Contract.

The conclusions which I have reached above mean that the claim falls to be dismissed: the Defendant was satisfied that the Claimant had not taken the required steps set out in the Second and Third Remedial Notices by the end of the notice periods set out therein; that decision was not unreasonable in the Wednesbury sense; and that decision was made in good faith – accordingly, the Defendant did not breach the Contract and was fully entitled to terminate it.

I will, however, proceed to address the alternative bases for termination which were set out in the letter of termination of 24^th April 2023, namely termination under both of the bases set out in Clause 571, and a failure to remediate the First Remedial Notice, dated 7^th April 2021.

The Claimant submits that the Defendant was not entitled to rely on the termination of the Contract on Clause 571 of the Contract, nor upon a failure to remediate the First Remedial Notice.

The letter of termination of 24^th April 2023 purports to terminate the Contract pursuant to both Clause 569 and 571:

The letter of termination of 24^th April 2023 also purports to terminate the Contract on the basis of an alleged failure to remediate the First Remedial Notice:

The minutes of the PCCC meeting of 13^th December 2022 make it absolutely clear that the PCCC was only being asked to consider whether to decide to terminate the Contract pursuant to Clause 569 of the Contract, and only on the basis of a failure to remediate the Second and Third Remedial Notices, and made its decision on that basis.

The ToRs of the PCCC make it clear that it has the responsibility for making decisions in relation to poor performance of providers of primary medical services: see clause 3.1(a) of the ToRs. That is doubtless one of the reasons why the membership of the PCCC comprises such a broad range of individuals, from both clinical and non-clinical disciplines, as voting members: see paragraph 4.1 of the ToRs.

The ToRs of the PCCC allow for some decisions to be taken other than by the full PCCC: urgent decisions may be taken in the circumstances, and by the people set out in clause 20.4 of the ToRs; and immediate decisions may be taken in the circumstances, and by the people, set out in clause 20.5 of the ToRs.

These detailed provisions vesting decision making in the PCCC in relation to listed matters, and permitting decisions to be made outside of the full Committee in limited circumstances, are not consistent with the facility for non-Committee members of the Defendant to make a decision that the Contract should be terminated on a basis other that in fact determined by the PCCC itself. It follows that it was not open to Ms Piper and Mr Marks to include in the letter of termination dated 24^th April 2023 bases for termination of the Contract that had not in fact ever been considered by the PCCC, still less decided upon by the PCCC.

It follows from all of the above that the Defendant, through its PCCC, did not decide to terminate the Contract pursuant to Clause 571 or (for the purposes of Clause 569) by reason of a failure to remediate the First Remedial Notice. In these circumstances, the Defendant having not in fact decided to terminate the Contract in either of these ways, it is not open to the Defendant to rely on these bases within these proceedings as bases for termination of the Contract.

Accordingly, the following issues, set out in the Agreed List of Issues, do not fall for determination by me:

Outcome

The claim is dismissed. If such matters cannot be agreed between the parties, I shall set a timetable for the making of written submissions in relation to consequential matters, including costs, and will determine those matters on the papers.