Hussain & Ors, R (on the application of) v Secretary of State for the Health Department & Anor [2011] EWCA Civ 800

Thursday July 14th, 2011
Neutral Citation Number: [2011] EWCA Civ 800
Case No: C1/2011/0069

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Cranston
[2010] EWHC 3351 (Admin)

Royal Courts of Justice
Strand, London, WC2A 2LL
14/07/2011

B e f o r e :

LORD JUSTICE RICHARDS
LORD JUSTICE LEVESON
and
LORD JUSTICE STANLEY BURNTON

____________________

Between:

The Queen (on the application of (1) Dr Ikhlaq Hussain, (2) Dr Bindu Patel, (3) Dr Wernan Muller)
Claimants/ Respondents
- and -

Secretary of State for the Health Department
(acting through the NHS Litigation Authority)

Defendant/ Appellant
- and -

Warwickshire Primary Care Trust
Interested Party/ Appellant

____________________

Ali Reza Sinai (instructed by Young & Lee Solicitors) for the Respondents
Philip Coppel QC and Saima Hanif (instructed by Bevan Brittan LLP) for
the Secretary of State
David Lock QC (instructed by Weightmans LLP) for Warwickshire PCT
Hearing date : 14 June 2011

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Richards :

  1. The issue in this appeal is whether general dental services contracts entered into between Warwickshire Primary Care Trust (“the PCT”) and each of the claimant dentists on 31 March 2006 were contracts to which the claimants were entitled by virtue of article 4 of the General Dental Services and Personal Dental Services Transitional Provisions Order 2005 (“the TPO”). Disputes raising that issue were referred to the Secretary of State pursuant to regulation 8 of the National Health Service (General Dental Services Contracts) Regulations 2005. The Secretary of State had directed the NHS Litigation Authority (“the NHSLA”) to exercise the relevant functions of dispute resolution on his behalf. An NHSLA adjudicator found that article 4 of the TPO did not apply. On an application for judicial review of the adjudicator’s determinations, Cranston J found that it did apply. The PCT now appeals, with permission given by Laws LJ, against Cranston J’s finding. The appeal is opposed by the claimants. The NHSLA has not participated in the appeal on this issue.
  2. There is no appeal against Cranston J’s other substantive findings. There is, however, a separate application by the NHSLA for permission to appeal against the judge’s order that the NHSLA pay 70 per cent of the claimants’ costs of the judicial review claim.
  3. Cranston J’s judgment contains a thorough account of the factual and legal background to the case: see [2010] EWHC 3351 (Admin) at [3]-[46]. I propose to pick out only those matters essential to an understanding of the issue before this court. Reference can be made to the judgment below for further details if required.Legal framework
  4. Dentists in the United Kingdom formerly provided NHS dental services under s.35 of the National Health Service Act 1977 (“the 1977 Act”). A new regime was introduced by the Health and Social Care (Community Health and Standards Act) 2003 (“the 2003 Act”), by way of amendments to the 1977 Act. The provisions have since been consolidated in the National Health Service Act 2006. The changeover date to the new regime was 1 April 2006.
  5. Section 28K of the 1977 Act, as introduced by s.172 of the 2003 Act, conferred a power on Primary Care Trusts to enter into general dental services contracts:

    “28K General dental services contracts: introductory

    (1) A Primary Care Trust or Local Health Board may enter into a contract under which primary dental services are provided in accordance with the following provisions of this Part.

    (2) A contract under this section is called in this Act a ‘general dental services contract’.

    (3) Subject to any provision made by or under this Part, a general dental services contract may make such provision as may be agreed between the Primary Care Trust or Local Health Board and the contractor in relation to –

    (a) the services to be provided under the contract (which may include services which are not primary dental services),

    (b) remuneration, and

    (c) any other matters.”

    Section 28M(1) provided that such a general dental services contract could be entered into with (a) a dental practitioner, (b) a dental corporation, or (c) two or more individuals practising in partnership where specified conditions were satisfied.

  6. Section 173 of the 2003 Act required transitional provision to be made in respect of persons who were already providing dental services under s.35 of the 1977 Act. The TPO was made pursuant to that section. Its most important feature for present purposes is that it prescribed circumstances in which there was an entitlement on the part of the dentist, and a correlative duty on the Primary Care Trust, to enter into a general dental services contract. Thus, Chapter 1 of Part 2 included the following articles:

    Entitlement to a general dental services contract

    3.(1) For the purposes of section 173(2) of the 2003 Act, the circumstances in which a Primary Care Trust must enter into a general dental services contract with a person who, on 31st March 2006, is providing services under section 35 of the 19787 Act are prescribed in articles 4 and 5.

    (2) Nothing in this Order shall require a Primary Care Trust to enter into a general dental services contract with any person (whether as an individual or as a member of a partnership) on more than one occasion.

    Individual dental practitioner

    4.(1) Subject to paragraph (2) and (3), a Primary Care Trust must, if a person so wishes, enter into a general dental services contract with him as an individual dental practitioner if –

    (a) on 31st March 2006 or, if earlier, on the date on which the contract is to be signed, he is included in the dental list of that Primary Care Trust;

    (b) on the date on which the contract is to be signed, he is practising as an individual dental practitioner and –

    (i) no other dental practitioner, or

    (ii) no other person providing services under section 35 arrangements,

    practises in partnership with him ….

    Partnerships

    5.(1) Subject to paragraph (2), a Primary Care Trust must, if a person so wishes, enter into a general dental services contract with him as one of two or more individuals practising in partnership if –

    (a) on 31st March 2006 or, if earlier, on the date on which the contract is to be signed, he is included in the dental list of that Primary Care Trust and is practising;

    (b) on 31st March 2006 or, if earlier, on the date on which the contract is to be signed, he is in partnership with one or more persons who are –

    (i) included in the dental list of the Primary Care Trust, or

    (ii) providing general dental services under section 35 arrangements (and are not dental practitioners); and

    (c) he wishes to enter into a contract as an individual practising in partnership with the persons referred to in paragraph (b) … .”

  7. Article 9 conferred a right of appeal against a failure of a Primary Care Trust to enter into a general dental services contract with a person who offered to enter into such a contract.
  8. Chapter 2 of Part 2 contained the “required terms” of contracts entered into under Chapter 1. In particular, article 10 made provision for determining the number of units of dental activity to be provided by the contractor under such a contract. This, in turn, affected the contract value and the payments to which the contractor was entitled.
  9. The broad scheme is described as follows in the Department of Health’s “Factsheet 8 – Understanding the Transitional Provisions Order”:

    “2.4 The Transitional Order gives legal rights to the dentists in para 2.1 [including dentists working under s.35 of the 1977 Act], but the legal rights, unless otherwise stated in the Order, are in force only at the point of transition. Therefore, in order to be protected by the conditions of the Order a dentist or PDS contractor providing services under the GDS or a PDS pilot scheme must sign a new contract no later than 31 March 2006.

    2.5 After 31 March 2006, unless he/she is protected by special provisions, the dentist or contractor will lose all his/her transitional rights. Of course, the loss of that legal protection does not prevent the PCT and contractor agreeing a new contract but the obligation on the PCT to offer a contract has gone.

    2.6 Unlike nGMS there is no default contract, so a dentist who does not sign a new contract does not move to a ‘default’ contract but loses the right to provide NHS dental services. For practical purposes a GDS contract or PDS agreement should be in place by at least the end of February 2006 to ensure the necessary payment information is in place so the NHS Business Services Authority (BSA) can make the first monthly payments in May 2006.”

    Factual background

  10. The claimants between them operated from two dental practices in Warwickshire. One was at 206 Camphill Road, Nuneaton (“Camphill”), the other at 60 Long Road, Atherstone (“Atherstone”). At Camphill there were some nine dentists, including Dr Hussain (the first claimant), Dr Patel (the second claimant), Dr Mthewetha and Dr Poon. At Atherstone there were some seven dentists, including Dr Muller (the third claimant), Dr Hussain (the first claimant), Dr Moloto and Dr Chan. It was accepted before Cranston J that all were registered dentists.
  11. On 10 March 2006 the PCT wrote to Dr Hussain stating that it had written letters of intent to the individual practitioners at the Camphill and Atherstone practices and that they had been asked to sign and return copy contracts to ensure that they received payment in May 2006.
  12. A letter dated 21 March 2006 from solicitors for Dr Hussain to the solicitors then acting for the PCT indicated that partnerships had been created and asked the PCT to enter into partnership based general dental services contracts for Camphill and Atherstone. The response on behalf of the PCT expressed scepticism about the partnerships and requested clear evidence of them. Details of the partnership deeds were provided by Dr Hussain’s solicitors on 27 March. The PCT was still not prepared, however, to provide partnership based contracts to the practices because it was not satisfied that the arrangements were bona fide. It offered to provide individual contracts to dentists working at the practices.
  13. The background to the PCT’s stance is set out in a witness statement of Mr Jim Barlow, of South Staffordshire Primary Care Trust, in previous judicial review proceedings involving South Staffordshire as well as Warwickshire. Mr Barlow states that Dr Hussain and another dentist, Dr Bachada, had acquired a number of dental practices in the West Midlands and that there were considerable concerns about the management of those practices. The problems were an unusually high dentist turnover; a higher than average number of complaints, and concerns about quality standards and NHS claim compliance; concerns about the financial integrity of the way the practices were operated; the fact that the costs to the NHS of providing dental services in an area went up considerably whenever a practice was taken over by Dr Hussain and Dr Bachada; and the way the practices were run did not appear to be satisfactory. The witness statement refers to issues of fraud arising in relation to both dentists. Subsequently, as we were told, both of them were charged with fraud, convicted and sentenced to imprisonment. It is to be stressed that the frauds did not relate to either the Camphill or the Atherstone practice and that neither Dr Patel nor Dr Muller (the second and third claimants) were implicated in them.
  14. A further concern was that it was not clear to the PCT that all the dentists who had signed the partnership deed had done so willingly, and informal contacts suggested that some of them did not wish to enter into partnership contracts with the PCT but had a preference for individual contracts which would enable them to receive direct payment from the PCT for the work they did.
  15. Those matters help to explain the course of events but do not affect the legal issue that arises on this appeal.
  16. What happened next was that, faced with the PCT’s continued refusal to enter into partnership contracts for Camphill and Atherstone, the claimants entered reluctantly and at the last moment, on 31 March 2006, into the proffered individual general dental services contracts, albeit they signed them “in dispute”.
  17. The dispute about the PCT’s refusal to enter into partnership based contracts was referred to the Secretary of State and fell to be determined by a NHSLA adjudicator. By a determination dated 2 June 2006, having received no evidence or submissions to the contrary from the PCT, the adjudicator accepted the partnership deed at face value and found that on 31 March 2006 the partners had met the conditions for partnership based contracts under article 5 of the TPO. But he added this (at para 5.13 of the determination):

    “However, the Appeal Unit also notes the provisions of Article 3(2) of the TPO which states ‘Nothing in this Order shall require a PCT to enter into a GDS Contract with any person (whether as an individual or as a member of the partnership) on more than one occasion’. The Appeal Unit notes … that ‘a large number of individual contracts are being signed’. No evidence has been put forward as to whether individual contracts in respect of these applicant dentists have been signed. If they have, then whether a contract is awarded to those individuals practising in partnership, is at the PCT’s discretion.”

  18. The PCT refused thereafter to enter into partnership contracts with the claimants, relying on article 3(2) of the TPO and the existence of the individual contracts as removing any obligation on them to do so. Judicial review proceedings in relation to the partnership issue were commenced but later withdrawn by consent. The individual contracts were in fact converted into partnership contracts (though for a smaller number of partners than included in the original partnership deed) with effect from 8 April 2008, by service of a notice under contractual provisions reflecting the requirements of para 62 of schedule 3 to the 2005 Regulations. The issue now before the court, however, relates to the time when they were still individual contracts.
  19. On 30 March 2007 the claimants registered a number of further disputes with the NSHLA, to the effect that the value of their individual contracts was incorrectly calculated.
  20. The underlying issue was whether the contract values should reflect work done during the “baseline” period by dentists employed by the claimants. The PCT’s position was that the contracts entered into with the claimants made no provision for the work of employed dentists to be taken into account. Moreover, at least some of the employed dentists had entered into individual contracts of their own, and the PCT contended that the claimants were not entitled to include the value of work done by dentists who had their own separate contracts.
  21. Whilst that was the underlying issue, the detailed calculation of contract values depended on whether the contractor was entitled to payments based on a Calculated Annual Contract Value (“CACV”) or whether a Negotiated Annual Contract Value (“NACV”) applied. A contractor was entitled to payments based on a CACV if, among other conditions, (a) he was entitled to a general dental services contract by virtue of Part 2 of the TPO (i.e. by virtue of article 4 or article 5 of that Order), and (b) such a contract was entered into and the number of units of dental activity to be provided by him was determined in accordance with article 10 of the TPO. In other cases the entitlement to payment was based on a NACV, which looked at what was agreed in the contract itself. Those matters were covered in directions issued by the Secretary of State pursuant to s.28N of the 1977 Act, under the title “General Dental Services Statement of Financial Entitlements”. Accordingly, a relevant question to be answered in determining the disputes was whether the contracts entered into by the claimants had been contracts to which they were entitled by virtue of Part 2 of the TPO. The adjudicator’s determinations
  22. The adjudicator gave a separate determination in relation to each of the claimants. There are obvious factual differences between the determinations, for example as regards the names of the employed dentists, but they are otherwise materially identical. I will refer only to the determination relating to Dr Hussain.
  23. At para 3.3 of the determination the adjudicator stated:

    “The crux of the contractor’s claim appears to be that the activity carried out by Dr C and Dr M during the baseline period should have been included in his individual contract values. I understand that the PCT has entered into individual contracts with Dr C and Dr M respectively for the activity that they undertook as employees of the contractor during the baseline period.”

  24. “Dr M” was Dr Mthewetha, and “Dr C” was Dr Chan, both of whom were employed by Dr Hussain. The adjudicator’s understanding of the factual position was mistaken, since it is now accepted that Dr Mthewetha did not enter into an individual contract. This error and similar errors in the other determinations were the responsibility of the parties, not the fault of the adjudicator, who was entitled to rely on the information placed before him. The point about factual errors is considered by Cranston J at [66] of his judgment. In the event, however, nothing turns on it and I need not examine the point any further.
  25. The adjudicator went on to state in para 3.4 that the contractor could not claim employee status for a person with whom he acted in partnership for the provision of the services. In para 3.5 he noted that the dispute related to an individual contract, but he referred to the finding in the previous adjudication concerning the existence of a partnership and an entitlement to a partnership contract on 31 March 2006, and he recorded the PCT’s submission that the contractor therefore had no statutory right to claim an individual contract. He then set out the relevant provisions of article 4 of the TPO, before continuing at para 3.7:

    “The contractor was not entitled to a GDS contract by virtue of Article 4 of the Transitional Provisions Order. The PCT had discretion to enter in to the GDS contract with the contractor. The contract is therefore based on a Negotiated Annual Contract Value (NACV) as set out at paragraph 3 of the General Dental Services Statement of Financial Entitlements.”

  26. The rest of the determination proceeded on that basis. In particular, the adjudicator stated at para 3.9 that neither Dr C nor Dr M were parties to the individual contract between the PCT and the contractor; there was no entitlement that the activity undertaken by them during the baseline period was to be included within that contract; the NACV was to be negotiated and agreed between the parties; and no information had been placed before him which stated that the activity undertaken by employees (if they were deemed to be employees and not partners of the contractor) of the person with whom the contract was entered into and undertaken during the baseline period had to be included in a NACV between the contractor and the PCT. On the basis that entitlement to payment was based on the NACV, therefore, the claim to include the activity of the employed dentists during the baseline period failed. The judgment of Cranston J
  27. The proceedings before Cranston J, as I have explained, were for judicial review of the adjudicator’s determinations. Having dealt with the background and certain preliminary matters, the judge turned to consider the nature of the claimants’ contracts, stating that in essence the claimants contended that the adjudicator was wrong to rule that the PCT awarded the contracts in the exercise of a discretion outside the scope of Part 2 of the TPO rather than under article 4 of the Order. On that issue the judge concluded, at [55]:

    “In my view the adjudicator was wrong in this part of his decisions. The background to the Transitional Order, as the Department of Health Factsheet 8 explains, was to confer on existing section 35 dentists protected rights. A PCT was obliged to enter into a GDS contract with such dentists. It was under a mandatory duty to enter with section 35 dentists either an individual contract under article 4 of the Order or a partnership contract under article 5. The rights of section 35 dentists were thus protected. The claimants asserted that they were in partnership. The PCT refused to accept that they were. Whether or not they were in partnership the crucial fact is that the PCT entered individual contracts with them. Those contracts could only have been entered pursuant to article 4. There is no legal basis in the Transitional Order for the PCT to enter a ‘discretionary’ contract in these circumstances.”

  28. The judge proceeded to consider the calculation of the contract values, on the basis that, because these were contracts under article 4, they were subject to the provisions of article 10 of the TPO. I do not need to consider the detail of his analysis, but its main feature was a finding that the work of employed dentists who had entered into individual contracts of their own was not to be taken into account in the calculation of the claimants’ contract values.
  29. The judge’s overall conclusion was set out at [69]:

    “The adjudicator’s award must be set aside for error of law. These claimants were entitled to, and were given, individual contracts under article 4 of the Transitional Order. However, the legislative regime does not empower the PCT to pay them under their contracts for dental services work being performed by other dentists pursuant to those dentists’ separate individual contracts with the PCT. However, where work was undertaken in the baseline period by employee or assistant dentists who did not enter a separate individual contract with the PCT, that is potentially includable with the contract value of the contracting dentist ….”

    After receiving submissions, the judge decided to remit the matter to the NHSLA for reconsideration.

    Whether the claimants had an entitlement to individual contracts under the TPO

  30. The PCT’s case is that the judge was wrong to find that the claimants were legally entitled to individual general dental services contracts by virtue of article 4 of the TPO. A person’s legal entitlement to a contract under article 4 or article 5 depended on whether, as a matter of objective fact, he met the conditions of the relevant article. The claimants’ entitlement, on the objective facts as later established, was to partnership contracts under article 5, not to individual contracts under article 4. Although the PCT perceived the facts to be such as to give rise to an entitlement to individual contracts under article 4, that perception was mistaken; and a mistaken perception could not operate to create a legal entitlement. But the PCT had a power under s.28K of the 1977 Act to enter into individual contracts with dentists irrespective of any entitlement to them under the TPO, and the entry into individual contracts with the claimants must be taken to have been done in the simple exercise of that power rather than pursuant to a duty under article 4.
  31. I agree with that broad line of argument and have reached the conclusion that the judge fell into error on this issue. My reasons are developed below.
  32. The wording of article 4 is clear. In order to be entitled to an individual contract, a dentist had to be meet the conditions laid down, including the condition in article 4(1)(b) that “on the date on which the contract is to be signed, he is practising as an individual dental practitioner and (i) no other dental practitioner, or (ii) no other person providing services under section 35 arrangements, practises in partnership with him”. On the facts as asserted at the time by the claimants and subsequently found by the adjudicator, the claimants were practising at the material time not as individuals but in partnership with others. They did not meet the condition and were therefore not entitled to an individual contract.
  33. Those same facts meant that the claimants met the conditions for partnership contracts under article 5. They could have taken their stand on that, declining to enter into individual contracts and simply exercising their right of appeal in respect of the refusal of partnership contracts. The result, on the adjudicator’s factual findings, would have been the award of partnership contracts, since in those circumstances article 3(2) would not have stood in their way. As it was, however, they opted to enter into the individual contracts that were on offer at the time. I fully understand the difficulty of their position. If they had taken their stand on the asserted entitlement to partnership contracts, they risked ending up with no contract at all if in due course the adjudicator found the relevant facts against them. By entering into individual contracts they protected themselves against that risk. They tried to have it both ways, by signing the individual contracts “in dispute”, but that proved to be of no help to them. Their real problem was that by entering into individual contracts they triggered the operation of article 3(2), which removed any duty on the PCT to enter into a partnership contract with them when the facts were subsequently found in their favour. They had to act quickly and may not have appreciated the full consequences of their decisions, but they did have the benefit of legal advice during this period. In any event, the difficult choice they faced cannot in my view affect the legal position.
  34. The PCT, on the other hand, refused at the time to accept the validity of the partnership deed and insisted that the only contracts on offer were individual contracts, and they later asserted in terms that the individual contracts had been entered into pursuant to article 4. It was a long time before they turned round and, in the light of the adjudicator’s factual finding that a partnership existed at the material time, denied that the claimants came within article 4 at all. That volte face may be unattractive but again it cannot, in my judgment, affect the legal position. I accept the PCT’s case that the question whether the conditions of article 4 are satisfied must be answered by reference to the facts as objectively ascertained, not the parties’ perceptions of them at the time. Although Mr Sinai, for the claimants made some reference in his submissions to estoppel, the case has at no time been pleaded on that basis and I cannot see how an estoppel could operate here to confer an entitlement which the statutory conditions did not give.
  35. Cranston J took the view that the individual contracts entered into with the claimants could only have been entered into under article 4 since there was no legal basis in the TPO for the PCT to enter into a “discretionary” contract. I agree that there was no legal basis in the TPO for a discretionary contract: the TPO was concerned only with the circumstances in which, for the protection of dentists with existing s.35 arrangements, the PCT was under a duty to enter into a contract (either an individual contract under article 4 or a partnership contract under article 5). There was, however, a discretionary power outside the TPO, in s.28K of the 1977 Act itself. That section empowered the PCT to enter into individual contracts with the claimants even in the absence of a duty to do so, and the entry into such contracts can be explained, on analysis, as an exercise of that power even though the PCT mistakenly considered at the time that it was acting in discharge of a duty. Once the existence of that discretionary power is appreciated, it becomes unnecessary to try to accommodate the situation within article 4, where it simply does not fit.
  36. For much the same reasons I reject a submission by Mr Sinai, on behalf of the claimants, that articles 4 and 5 of the TPO are to be viewed as a complete system, so that a dentist had to fall either under article 4 or under article 5. Articles 4 and 5 were exhaustive of the circumstances in which a PCT was under a duty to enter into a contract, but the discretionary power under s.28K of the 1977 Act existed outside the TPO. In any event, on the facts as found, the claimants met the conditions of article 5 and it was only the operation of article 3(2) that removed the duty to which the PCT would otherwise have been subject to enter into partnership contracts with them under article 5. Once it is established that the claimants met the conditions of article 5, they cannot at the same time successfully assert that they met the conditions of article 4.
  37. I should add for completeness that the contracts themselves do not cast any light on the issue before us. They are in standard form and very long. Recital B and the footnote to it refer between them to the power under the 1977 Act to enter into general dental services contracts with certain categories of persons and to the entitlement of certain categories of persons to a general dental services contract. Recital D merely states, however, that the PCT and the contractor wish to enter into a general dental services contract “in accordance with the provisions of this Contract”.
  38. For the reasons I have given, the adjudicator was in my view correct to find that the claimants were not entitled to individual contracts by virtue of article 4 of the TPO, so that his subsequent analysis proceeded on a correct legal basis. It was Cranston J’s disagreement with the adjudicator on this one point that led the judge, through a process of reasoning that is not otherwise subject to challenge, to the conclusion that the adjudicator’s determinations should be quashed and the matter remitted. There is no respondent’s notice seeking to uphold the judge’s conclusion in the event that the PCT succeeds on the article 4 issue, and for my part I cannot see how any such argument could prevail. It follows that I would set aside the judge’s order and reinstate the adjudicator’s determinations. The issues relating to costs
  39. If the judge’s order is set aside as proposed above, the separate application by the NHSLA for permission to appeal against the judge’s costs order falls away. In the light of the submissions that we heard in relation to it, however, I can express provisional views on the order that should now be made in respect of costs. I stress that these are provisional views. The parties must have an opportunity to make further written submissions in the light of the matters set out in this judgment before any final decision on costs can be reached.
  40. As to the proceedings below, my conclusion on the PCT’s appeal means that the claimants’ judicial review claim will have failed completely and it is difficult to see how the claimants can resist the principle of an order for costs against them.
  41. The defendant to the proceedings was the Secretary of State, acting through the NHSLA (and I shall continue to refer to the NHSLA rather than to the Secretary of State). The PCT was an interested party. They both took an active part in the proceedings and both will, in the event, have been successful. It is, however, unusual for the court to order two sets of costs against a losing claimant. The course often followed is a full award of costs in favour of either the defendant or the interested party and no order as to the costs of the other. But the present case appears to me to call for a different and more nuanced approach.
  42. Although the NHSLA and the PCT both put in acknowledgments of service with written grounds of opposition, the PCT did not thereafter play an active part in the proceedings until a very late stage, about two weeks prior to the hearing before Cranston J. Up to that point the defence of the adjudicator’s determinations was run by the NHSLA. In announcing its change of position, in a letter dated 22 November 2010 to the NHSLA’s solicitors, the PCT cited the fact that at a permission hearing many months previously McCombe J had criticised the PCT for not being present. The letter stated that the PCT had reflected on the position and agreed that “it is probably more appropriate for the PCT to take over the effective defence of this claim”. The letter therefore invited the NHSLA to take a neutral position and to allow the PCT to take over the defence. Thereafter the PCT prepared for, and participated in, the hearing before Cranston J.
  43. The NHSLA chose nevertheless to maintain its own involvement and to be represented by both leading and junior counsel at the hearing before the judge. It adopted a neutral stance on the article 4 issue (which the PCT, by contrast, pursued) and concentrated on the question whether the calculation of the claimants’ contract value should reflect work done by employed dentists, contending that such work was not to be taken into account either on the CACV basis or on the NACV basis and that the adjudicator’s determinations were therefore correct irrespective of how the article 4 issue was resolved.
  44. It was plainly appropriate for the PCT, as the other party to the dispute with the claimants, to take the decision it eventually did to involve itself actively in the defence of the judicial review claim. On the other hand, account must be taken of the fact that for a long period the PCT left the matter to the NHSLA (albeit this will have had the effect of reducing the total level of costs incurred by the PCT). In all the circumstances it seems to me that justice will be done if the claimants are ordered to pay 75 per cent of the PCT’s costs of the proceedings below.
  45. I accept that it was also appropriate for the NHSLA to take active steps to defend what was in effect its own adjudications, given in particular that they involved issues of policy and the interpretation of departmental orders and directions. There is a loose analogy with the practice relating to decisions taken by the planning inspectorate, where the Secretary of State often acts in defence of the decision and is then treated as an ordinary party for the purposes of costs. It is also understandable that the NHSLA decided not to drop out when the PCT came in actively to defend the determinations. But I do not think that the claimants should be required to pay the costs of that continued involvement by the NHSLA, let alone the costs of representation by two counsel. Taking a broad view of the matter, I consider that justice will be done if the claimants are ordered to pay 50 per cent of the NHSLA’s costs of the proceedings below.
  46. On that basis the claimants will be required overall to pay a little more than a single set of costs but well short of a double set in respect of the proceedings below.
  47. As to the proceedings before this court, my provisional view is that costs should follow the event and that the claimants should therefore be ordered to pay the PCT’s costs of the appeal; but that there should be no order as to the costs of the NHSLA either in relation to the appeal itself (in which it took no active part) or in relation to the application for permission to appeal against the judge’s costs order. Lord Justice Leveson :
  48. I agree. Lord Justice Stanley Burnton :
  49. I also agree.

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