The British Dental Association (“BDA”), represented by Lockharts, successfully intervened in support of Mr E Crouch’s application for judicial review proceedings against South Birmingham Primary Care Trust.
The case was heard over 25 and 26 February 2008. The aspect of the case, which the BDA directly supported and made submissions thereon, concerned a point of general importance to all dentists working under the new NHS PDS contracts. South Birmingham PCT sought to include within Mr Crouch’s contract two clauses purportedly giving the PCT the right to serve a notice cancelling the contract at any time, without any reason, with termination effected on the date specified in the notice. The PCT argued that the PDS regulations required the inclusion of such a clause.
Dr Crouch argued before the NHS Litigation Authority that the clauses that had been included within his contract purporting to give this power were unlawful. Unfortunately, the Appeal Authority agreed with the PCT’s interpretation. As a decision of the NHS Litigation Authority is binding, Mr Crouch’s only option was to appeal by way of a Judicial Review.
Mr Crouch launched his Judicial Review application based on two grounds. First, Dr Crouch argued that the without cause termination clauses should not be included in his contract as these were unlawful. Second, Mr Crouch argued that a public consultation should have occurred prior to the award of the new dental contract. On Lockharts’ advice, the BDA only intervened in support of the first point.
Mr Justice Collins’ Judgment expressed his view that “…it is not surprising that Parliament decided that there should be a degree of security provided for such practitioners. And it seems to me to be self-evident that the 5-year minimum is there in order to provide that degree of security because if the agreement is brought to an end, the practitioners' livelihood will be gravely affected.” Mr Collins ruled that the inclusion of clauses that purported to allow a PCT the right to terminate PDS Agreements at any time without cause was unlawful.
Unfortunately for Mr Crouch, Mr Justice Collins ruled against him on his second argument regarding public consultation prior to the award of the contracts.
The PCT and the Secretary of State will have 21 days from the date that Judgment is handed down to petition the Court of Appeal for a hearing should they wish to challenge the Court’s present interpretation of the Regulations.
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