NHS England have agreed terms of settlement with dental providers in respect of two separate Judicial Review proceedings arising from their incorporation.
gunnercooke llp's, Partner Sunil Abeyewickreme, led the team that commenced judicial review proceedings against NHS England in the Administrative Court, at the High Court, Royal Courts of Justice in London on 17 September 2014.
The proceedings were instigated as although NHS England agreed to allow the existing providers to incorporate they required them to sign a Deed of Novation and Guarantee whereby the existing contractors as individuals were always liable for any breaches of the GDS Contract even though the existing contractors may no longer control the company which NHS England could consent to such, either by allowing others to own shares in the company or others to become directors.
In effect the individuals would always have be held liable for the GDS Contract despite the fact that the individuals may have long retired.
gunnercooke llp requested NHS England on behalf of its clients to explain its justification for requiring such a Deed and to show how it was at all reasonable. In Sunil Abeyewickreme's opinion the reasons given by NHS England for such were not satisfactory and steps were taken to issue proceedings against NHS England.
In an attempt to resolve this dispute, at the eleventh hour, NHS England agreed to vary the terms of the Deed of Novation and Guarantee despite the fact that it had been published in their national policy for incorporation of dental contracts in order that the guarantor could change from the existing contractor when a change of control was permitted.
Whilst terms of settlement have been agreed, the parties are awaiting to hear whether a High Court Judge at the Administrative Court will order that the case can be settled.
