Kent Community Health NHS Foundation Trust v NHS Swale Clinical Commissioning Group and NHS Dartford, Gravesham and Swanley

Citation: ([2016] EWHC 1393 (TCC))

Judgment was handed down in Kent Community Health NHS Foundation Trust v NHS Swale Clinical Commissioning Group and NHS Dartford, Gravesham and Swanley ([2016] EWHC 1393 (TCC)) on 27 May 2016.

This case relates to a tender for adult community services in North Kent. The Claimant, an NHS Foundation Trust and incumbent provider (“the Trust”), was unsuccessful in the tender and issued proceedings alleging breach of the procurement rules. These proceedings imposed an automatic suspension on the Defendants’ (“CCGs”) right to enter into a contract with the successful bidder, Virgin Care.

On the CCGs’ application, Mr Justice Stuart-Smith ruled that the suspension should be lifted.

The Court found that damages were calculable based on the intended annual contribution from the contract to the Trust’s fixed overheads and were an adequate remedy for the Trust. The Court accepted that the Trust existed to care for the people of Kent, but found that this “does not give the Trust a monopoly or the right to primacy or priority in the context of NHS procurement.   Nor does it determine whether or not damages would be an adequate remedy.” Faced with opposing evidence from two NHS bodies, the Court felt unable to rule on the contention that the public would be better served by maintaining the contract with the Trust and found that a delay of even 6-8 weeks pending an expedited trial would put mobilisation of the new contract prior to the winter at risk. Finally, the Court found that the status quo was the CCGs’ right to enter into a contract with its chosen provider and thus also favoured lifting the suspension.

The case is significant in particular for the Court’s rejection of the argument that the public service objects of NHS claimants are such that damages could never be an ‘adequate remedy’ for the purposes of an application to lift.

Sarah Hannaford QC and Simon Taylor acted for the CCGs. Instructed by Capsticks Solicitors LLP.

Counsel

Sarah Hannaford QC
Simon Taylor

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