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Contract Formation & Incorporation of Terms
Tuesday 14th November 2017


In order for a contract to be legally binding, there must be an offer, acceptance of the offer, consideration (something given by each party), intention to create legal relations, and sufficient certainty of contractual terms.

Acceptance of an offer must usually be communicated to the offeror. However, a contract may be accepted through conduct, by the parties acting as if the contract is binding.

A valid contract can be formed verbally, but intention to create legal relations can be difficult to establish where a contract is purportedly formed in an informal setting. In such cases, there may also be uncertainty as to the agreed terms, which could prevent a valid contract from being formed.

Where two businesses contract with each other and both attempt to incorporate their standard terms of business, a process known as the ‘battle of the forms’ ensues. Several factors (including the existence of ‘prevail’ clauses, the process of negotiations and the order in which the conflicting terms are sent between the parties) play a part in determining which terms form part of the contract.

Recent case law

In Reveille Independent LLC v Anotech International (UK) Limited [2016] EWCA Civ 443, Anotech sent an offer document to Reveille, which stated that it would not be binding on Reveille until signed by both parties. Reveille never signed the document, but both parties proceeded as if the contract had been signed. Cranston J, in the Court of Appeal, held that Reveille’s conduct amounted to an acceptance of the offer and a waiver of the signature requirement. Both parties’ conduct confirmed the existence of a binding contract, and this outcome accorded with the reasonable expectations of honest and sensible business people.

In two similar cases this year, MacInnes v Gross [2017] EWHC 46 (QB) and Blue v Ashley [2017] EWHC 1928 (Comm), the Courts considered whether binding contracts had been formed as a result of discussions held in informal settings (a restaurant and a pub, respectively). In both cases, the Courts found that no binding contract had been formed. However, it was made clear that the informal nature of the meetings did not, of itself, preclude a contract from being formed. The factors which influenced the Courts’ decisions included:

• the informal setting and nature of the meetings and the absence of any written record of negotiations;
• the use of the phrase “headline terms” in respect of the purported agreement;
• the absence of terms vital to the performance of the contract and the uncertainty of terms supposedly agreed; and
• the lack of commercial common sense in the purported agreement.

In Barrier Limited v Redhall Marine Limited [2016] EWHC 381 (QB), Redhall sent a purchase order to Barrier which stated on the front: “The terms overleaf must be read and strictly adhered to”. Redhall would normally print its standard T&Cs on the back of such purchase orders but, in this case, the carbon copy which only contained the front page was sent by accident. The Court held that Redhall’s T&Cs were communicated to Barrier by reference and were therefore incorporated into the contract; Barrier had the opportunity to request the T&Cs at any time and did not need to have read the terms for them to be binding.


These recent cases highlight a number of important points:

• A document need not be signed in order to be binding, and explicit signature requirements can (in certain circumstances) be waived by the parties.
• An offer can be accepted by conduct even where the document expressly requires acceptance in a certain manner.
• A contract can be formed (verbally or otherwise) anywhere, but the informality of the setting, the nature and detail of the discussions and the commercial viability of the purported agreement will influence the Court’s decision.
• It is preferable (although not necessary) to reduce a contract to writing, but phrases such as “headline terms” or “heads of terms” indicate a lack of intention to create legal relations, even in a written document.
• It is not necessary for contractual terms to be set out in the actual contract document for them to be binding, provided that reasonable notice of the terms has been given to the other party (e.g. by clear reference on the front page of the document).

If you would like to find out more on the topic, please contact Jack Roberts or a member of our Commercial team.


Contractual Interpretation
Tuesday 14th November 2017


It has been established in the Courts that, when interpreting the provisions of a contract, one must look at a number of factors including:

• the natural meaning of the words used;
• the meaning of the clause (as a reasonable person would understand it) in light of the overall document;
• the purpose of the document (from a commercial point of view); and
• the relevant background facts or knowledge reasonably available to the parties at the time the contract was made.

However, there has been some debate in recent years as to how much weight should be afforded to each of those factors, and which should take priority in the event of a conflict.

In Rainy Sky SA v Kookmin Bank [2011] UKSC 50, Lord Clarke took the view that, where there are two possible interpretations of a contractual term, the Court is entitled to favour that which is consistent with “business common sense”, and to reject the alternate interpretation even where the natural meaning of the words leans in favour of the latter.

In Arnold v Britton [2015] UKSC 36, Lord Neuberger favoured the approach that puts the most weight on the plain and ordinary meaning of the words used, stating that the surrounding circumstances of the case and the idea of commercial common sense should not be invoked to undermine the language used in the contract.

Recent case law

In an attempt to reconcile the previous decisions and clarify the true legal position, the Supreme Court addressed this issue again in Wood v Capita Insurance Services Limited [2017] UKSC 24.

Lord Hodge stated in Wood that textualism (the approach that looks at the plain and ordinary meaning of the words used) and contextualism (the alternate approach of favouring commercial common sense and the factual background of the contract) are not conflicting paradigms. The correct, objective interpretation of a contract must be achieved having regard to both principles; the question of which deserves priority over the other will depend on the circumstances of the case, and the nature of the document.


Whilst it seems that Lord Hodge is “sitting on the fence” with regard to the alternate principles favoured in Rainy Sky and Arnold respectively, his comments in the judgment of Wood provide some useful guidance as to the circumstances in which each principle should be applied.

In the case of a sophisticated contract that has been negotiated and drafted by skilled professionals, if any provisions seem unusual or create an unfair outcome for one party then it is likely that this was intended as a result of the negotiations. The “textualism” approach of looking at the plain and ordinary meaning of the words should take priority, and only be departed from in the event that conflicting interpretations of the contract cannot be reconciled by the language alone.

If a document is informal, or badly drafted, the Courts may be more likely to depart from the most plausible linguistic meaning of the words used and favour a construction that better fits the commercial purpose of the contract, taking into account the document as a whole and the relevant circumstances.

If you would like to find out more on the topic, please contact Jack Roberts or a member of our Commercial team.


The Dental Lawyer’s guide to unlocking your NHS Pension- 24 Hour Retirement
Tuesday 17th October 2017

You own your NHS dental practice, you love it, you couldn’t bear to leave your wonderful patients and staff, but you wish that you could still get your hands on that NHS pension which you have accrued over the years. So how can you achieve this whilst still remaining in practice? Don’t worry, the dental team at Brabners can help.

To claim your pension you must: i) retire from your NHS contract for a minimum period of 24 hours and ii) have not worked more than 16 hours a week in the month preceding this retirement. If you have a partner on your NHS contract, this might be a simple process. However, for sole practitioners submitting notification to the NHS of your retirement would have the effect of terminating your contract.

If you want to continue to run and own your practice after claiming the pension, steps can be taken to ensure that this does not happen. The appropriate way forward is to add a second name onto your NHS contract, another dentist, who would act as a nominal partner. This allows you to ‘retire’ from the NHS for the obligatory 24 hours, and subsequently allows you to re-join the NHS and claim an entitlement to your pension the next day.

Obviously, the partner needs to be someone you can trust. It may also be sensible to have a document prepared, to formally stipulate that whilst this partner’s name appears on the NHS contract, the benefit of the goodwill and income will continue to be owned by you.

From the nominal partner’s perspective, it is worth bearing in mind that although they would have no actual right to any of the money from the NHS in accordance with their agreement with you, they do have obligations to the NHS once they appear on the contract. For example, if the practice runs behind whilst they are a partner, they are responsible (together with you) for clawback payments. If this is a significant risk, this partner may wish to ensure that their name is removed from the contract as soon as your name has been re-added to the contract.

The CQC is another factor to consider in this process. NHS England is likely to look to ensure that the partnership only starts once an application has been processed for CQC registration in the joint names of yourself and your proposed partner.

Once a CQC application has been processed, notice can be submitted to the NHS to add the second name to the contract and a date will then be set for your brief 24 hour retirement. Once this date is known, you can submit the ‘NHS BSA Pensions- Retirement Benefits Claim Form’ (AW8) to the Business Services Authority.

Following the 24 hour retirement, any changes that have been made to your NHS contract and CQC registration can be reversed. Your NHS contract can be returned to your sole name and you can re-apply as an individual for CQC registration.

However, for a number of reasons, you may wish to consider retaining the assistance of your nominal partner for a little longer.

For example, timescales for termination of a GDS contract upon the death of a sole practitioner are short and can only be extended at the sole discretion of NHS England. This puts an added and potentially avoidable stress on your family and executors, at an already stressful time.

Leaving a second nominal partner on your GDS contract would ensure that the NHS contract survives in their name following completion. In the event of your death, it would give your executors and family flexibility, giving them more time to sell on or possibly choose to continue running the practice.

Now all you need to do is find that trusted dentist friend and give us a call. 


Top 5 consumer rights businesses need to be aware of
Friday 6th October 2017

As the news emerged on Monday morning that Monarch Airlines had gone into administration overnight, just days after rival airline Ryanair announced that a second wave of flight cancellations would affect more than 400,000 people, many of the affected travellers needed information as to the options for recompense available to them.

Ryanair found itself in trouble with the Civil Aviation Authority (CAA) last week for misleading its affected customers. On the CAA’s orders, Ryanair has contacted its disrupted customers to advise them of their rights under EU regulations and will be offering full refunds or alternate flights.

However, for Monarch passengers, such remedies are unlikely to be available due to Monarch’s parlous financial position. The CAA will return stranded Monarch customers to the UK (at the government’s expense), but for those yet to depart on their travels the best remedy may be found in the UK’s consumer credit regime.

Whilst it is vital for consumers to understand their rights and remedies, it is equally essential that businesses understand their liabilities and obligations. Whether you are a large airline operator or a small high street retailer, here are the top 5 consumer rights that your business needs to be aware of:

1.Liability of credit card providers

Where a consumer makes a purchase over £100 (but less than £30,000) using a credit card for at least part of the payment, and subsequently has a claim against the supplier for breach of contract or misrepresentation, the Consumer Credit Act 1974 states that the credit card provider is jointly and severally liable and that a claim can be made by the customer against the provider. However, businesses should not see this as a safety net; credit card providers will seek reimbursement from a business should the provider pay up to the consumer, with businesses likely to find that credit institutions are more rigorous in their debt recovery than the average consumer.

2.Cooling off periods for online sales

When a consumer buys goods, services or digital content online or over the phone, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 require a mandatory cooling-off period of 14 days within which the consumer may cancel the contract. The 14 days begins on the day after the date the contract is entered into (for services or digital content) or the date upon which goods are received by the consumer.

3.Remedies for defective goods

Under the Consumer Rights Act (CRA) 2015, goods (including digital content) sold to consumers must be of satisfactory quality, fit for their purpose and as described. If a consumer discovers a fault with the goods or digital content within 6 months, it is assumed that the fault existed upon delivery (unless the supplier can prove otherwise). Defective physical goods may be rejected (for a full refund) within 30 days after delivery. Within the first 6 months, a consumer is entitled to have faulty goods or digital content repaired or replaced or to obtain a price reduction (which may be a full refund).

4.Delivery of goods

Unless otherwise agreed with the consumer, the supplier must deliver goods within 30 days. The supplier also retains the risk in the goods until they are delivered to the consumer (or someone identified by the consumer to take delivery). If delivery is late, and another reasonable delivery time cannot be agreed, the consumer has the right to terminate the contract and get a full refund.

5.Unfair terms

There is a general rule under the CRA 2015 that if a term in a consumer contract is unfair to the consumer, it will not be binding. Terms that are likely to be considered unfair include: those which unreasonably limit the liability of the supplier or the rights of the consumer; disproportionate monetary penalties; and those which attempt to bind the consumer to terms that they have not had the opportunity to read beforehand. Whilst all businesses need to protect their own interests in their contracts, when dealing with consumers it is vital to ensure that the scales are not tipped too far in favour of the supplier, to the detriment of the consumer.

If you would like to find out more on the topic, please contact Jack Roberts or a member of our Commercial team.


NHS Dentistry figures released
Monday 2nd October 2017

A major nationwide survey by the BDA has indicated that almost 58% of the UK’s NHS dentists plan to leave NHS dentistry within the next 5 years.

Whilst retirement will play a significant factor in this (with 2016 figures showing that around a third of practice owners and 13% of associates intend to retire within five years), the more worrying result is that over half (53%) of young and newly qualified NHS dentists (under the age of 35) intend to leave the NHS in the same period.

10% of these young dentists intend to leave dentistry altogether, and a further 10% intend to practice overseas.

Only 16% of young dentists believe that they can own their own practice within the next 5 years.

The BDA's Chair of General Dental Practice, Henrik Overgaard-Nielsen, said:

"It is a tragedy that a decade of underfunding and failure to deliver meaningful reform now risks shutting off the pipeline of NHS dentists.

Government has made NHS high street practice so unattractive the next generation are now looking to the exit. These young dentists are the backbone of the dental workforce, and losing them at the start of their careers raises existential questions about the future of the service.
A suffocating contract system tells dentists from day one that government targets matter more than improving the oral health of their patients. We urgently require a new system that recognizes and rewards prevention.

The traditional career path for high street NHS dentists has gone, and until government can offer a viable alternative this brain drain will continue”

The Healthcare team at Brabners is committed to helping young dentists in their aspirations of practice ownership and we provide regular training and information to dentists with a view to helping them to get their foot on the practice ownership ladder. Despite the disturbing figures released over the weekend by the BDA, we continue to see high demand from purchasers for NHS practices coming onto the market.

If you are one of the many looking to retire, get in touch with our specialist dental lawyers. We can help you with planning your exit strategy.


European Commission Position Paper on Public Procurement
Wednesday 27th September 2017

Negotiations with the EU over the UK’s withdrawal from the Union have entered their fourth round this week. Whilst most news and media outlets are focussing on the headline topics, there are of course a number of other important areas for discussion, such as public procurement, which tend to elude the public eye.

The European Commission (“the Commission”) recently released a position paper regarding Public Procurement for discussion at the European Council’s Article 50 Working Party, which sets out three main principles of the EU’s position (as to procurement) to be presented to the UK in the Brexit negotiations.

First, the Commission states that any on-going public procurement procedures, and any procedures in relation to on-going framework agreements (including the award of contracts) should continue to be governed by national law as it stands at the date of withdrawal (in other words, in accordance with EU law).

Second, the ‘non-discrimination principle’ (in brief, that contracting authorities must not discriminate against tenderers and contractors based upon which member state they are from) should be complied with by contracting authorities both from the UK (in respect of tenderers and contractors from the other member states) and from the EU (in respect of tenderers and contractors from the UK) in relation to on-going procurement procedures and framework agreements.

Finally, the review procedures and legal remedies available in procurement matters under national and EU laws (as at the withdrawal date) should also continue to apply to any on-going procurement procedures and framework agreements. Such remedies include the requirement for member states to ensure that contracts are declared ineffective where certain rules have not been followed, and the automatic suspension of contracts upon the submission of an application to the Courts for the review of a decision made by a contracting authority.

Whilst the first two principles provide that the procedural aspects of advertising and awarding public supply and works contracts should remain unchanged (at least for any on-going projects), the final principle seeks to ensure that disappointed contractors and tenderers retain their means of enforcement against contracting authorities that do not adhere to the rules.

The position and intentions of the UK in this respect are not yet clear. The majority of the regulation of public procurement in the UK is based in national laws that were designed to implement EU Directives and, post-Brexit, it would of course be possible for the UK to repeal those regulations. However, the UK will remain a party to the Government Procurement Agreement (GPA) as part of its membership of the World Trade Organisation, which contains many provisions that are similar to the EU regime (albeit, in some cases, in less detail).

It seems likely that the UK will eventually derogate to some extent from the position under EU law (even if only to simplify the regulations), but many of the guiding principles behind the existing EU rules (such as non-discrimination, transparency and the availability of review procedures) will remain intact, to a degree, by virtue of the GPA anyway.

At this stage, it does not appear that the EU anticipates ‘shutting out’ the UK from the benefits of the EU regime. The Commission position paper specifies that, from the withdrawal date, other member states should continue not to discriminate against UK contractors, and the Publications Office of the European Union should continue to publish notices sent by UK authorities. Before the UK considers the benefits of repealing any of the rules under the EU regime, it should certainly be considered what benefits could be lost in respect of contracts from the remaining member states.


Pharmacies - Collaboration and Joint Ventures
Tuesday 19th September 2017

Nearly a year after the government imposed significant cuts, many community pharmacies continue to struggle with the effects of reduced funding.

Reacting negatively to the funding cuts could involve pursuing options such as implementing cost-cutting measures or, more drastically, even selling the business. However, we are finding that an increasing number of independent pharmacies are instead looking to react positively by expanding or exploring collaborative arrangements with other pharmacies.

Corporate Joint Ventures

By forming a new corporate vehicle, multiple pharmacies can work together and share costs, resources and facilities. This can be useful for performing a particular function or undertaking a fixed-length project, in order to ring-fence liability. The newly formed entity could bid for enhanced and locally commissioned service contracts whilst the primary pharmacy businesses remain largely protected. However, the downside to this approach is finding a way of ensuring that each of the pharmacies has a satisfactory level of influence in the management of the joint venture company.

Contractual Joint Ventures

Alternatively, pharmacies can collaborate by entering into a legally binding contract. Administrative functions can be streamlined by sharing premises and staff, and issues of financial liability and decision-making can be addressed in the contract. Under this type of arrangement, one of the contracting pharmacies could bid for locally commissioned services on behalf of the other parties.

Whilst this method can avoid some of the governance issues of a corporate joint venture, it may increase risk for the pharmacy contractor, as liabilities under the contract will be borne by each of the relevant contracting pharmacies.

These collaboration methods allow pharmacies to cover a wider geographical scope and potentially achieve economies of scale. In a market with limited funds and tight margins, this is an attractive proposition for commissioners, who may prefer to contract with just one provider to cover a range of services.


The final option is for two or more pharmacies to merge, combining all trading activities, assets, liabilities and capital into one organisation and sharing a joint customer base. Statutory protection exists for pharmacies that choose this route, where it does not create a gap in service provision.

The cost reductions involved can make this an attractive option; fewer staff may be required and there will be more scope to increase efficiency through automation, streamlined supply chains and “hub and spoke” dispensing. However, this comes at the sacrifice of the autonomy, control and flexibility previously enjoyed by the individual parties, and governance of the merged entity can be complex and contentious.

Each form of collaboration has advantages and disadvantages, and circumstances will dictate which is the most appropriate. It is important to take advice from solicitors and accountants and reach a decision which is bespoke to the pharmacy in question.

Members of our pharmacy team will be attending the Pharmacy Show at the NEC Birmingham on 8th – 9th October 2017. We will be exhibiting at stand PG31.  Richard Hough, a pharmacist and lawyer, who is head of our pharmacy team, and David Seddon, a specialist pharmacy transactional lawyer, will be on hand to answer any questions you may have about our specialist legal service for pharmacists and pharmacy business owners. To arrange a meeting with either Richard or David, please get in touch using the details below. Alternatively, we would be delighted if you visited us at our stand anytime.

You can find out more about the event by clicking here.


Defective Work and Buying a Dental Practice – How Your Solicitor Can Reduce the Risks
Wednesday 13th September 2017

The process of buying a dental practice can be stressful. However, it doesn’t have to be. Ensuring that you have the right legal team on board can change that stress into a feeling of being well informed, and empowered. Our dental team prides itself on timely communication of appropriate, easy to understand information. Our clients in turn have a firm understanding of both the different stages of the transaction, and perhaps more importantly a real knowledge of the business that they are acquiring.

This can be particularly important when it comes to acquiring a practice but discovering that there has been defective treatment carried out by your predecessor, which may have been an ongoing issue for some years.

A specialist dental lawyer knows the questions that need to be asked when a practice is being purchased. The information provided during this process should uncover any potential regulatory or management issues at the practice. However, when it comes to the standards of care received by the patients this can be harder to unearth until after the practice has changed hands. Despite this difficulty, it doesn’t mean that there is a lot that can be done to minimise the risks.

Denplan Care patients (or patients on similar capitation schemes) can be the biggest problem when it comes to defective treatment. These schemes work on the basis that the dentist receives a set monthly amount in return for maintaining patients at a certain standard of dental health. Problems can arise where patients have either been incorrectly banded under the scheme, or the standard of dental health promised has not been achieved or maintained by the outgoing dentist. The biggest worry is that you will spend many hours after acquiring the practice remedying issues with patients only to receive the standard monthly amount. 

Denplan recommends that, when Denplan Care patients are transferred, a sum is kept aside equating to 10% of annual Denplan turnover. The idea behind this is that the retained sum can be claimed by a buyer if any additional work is required. A purchase contract can make provision for this retention and then clearly set out the circumstances in which a claim on those funds can be made.

For purely private patients, arrangements can be made either for the seller to carry out appropriate repair work, or for you to step in and remedy the defective treatment and for the seller to reimburse you for the cost of the work. 

Where defective work has been carried out by a previous practice owner on the NHS, then remedial work will be carried out under the NHS guarantee scheme and, for the most part, any repair work would be eligible for you to claim UDAs.

You should therefore not be out of pocket if you are required to carry out remedial work.

Even if funds are set aside for potential claims, it is important to remember that there may be some limitations on the amount you can claim. Sale agreements often include minimum values before a claim can be made in order to avoid disputes over small sums. Contracts often also have a maximum limit of either the full purchase price of the practice or the price paid for goodwill and equipment at the practice. Sale contracts will also set out the timescales for making claims under any defective work warranty. It is important that you are aware of these, as a claim will not be allowed if it is brought too late. 

If claims are made against a seller for defective work, a sale agreement may also set out a process for either: i) the seller to carry out remedial treatment themselves; ii) the seller to examine the patients to ascertain whether the work is really required; or iii) the seller to have an independent third party examine the patients to verify the claim. The seller and the buyer would negotiate on these points and agree to any suitable options in the circumstances.

Although a solicitor can do a lot to protect a buyer financially, there are some risks that are more difficult to safeguard against. The poor dental health of your patient base may mean that during the first year of practice ownership you spend all of your time remedying problems left by your predecessor, rather than concentrating on new business and growth. You should consider whether you will have enough staff should extensive remedial work become necessary. Where the practice is staffed by associates, are they the right people to help you fix the problems of the past, given that they may have been aware of, or worse, part of the problem in a failure to maintain clinical standards? Patients may also simply dislike the practice, or it could have a poor reputation in the community which can take years to bounce back from.

An experienced dental lawyer can do a lot to protect you financially from the risks associated with purchasing a practice and discovering a catalogue of defective treatment. However, owning and running a business is an inherently complicated and risky world. The practical implications of taking over a patient base which has been poorly treated shouldn’t be downplayed. Proper and careful consideration of any business you are looking to acquire, with the help of expert advice, will always put you in the best possible position to deal with any challenges you uncover as a new business owner.


Considering the least risk of injustice in automatic suspensions in public procurement cases
Wednesday 13th September 2017

The recent case of Sysmex (UK) Limited (“Sysmex”) v Imperial College Healthcare Trust NHS Trust (“Trust”) [2017] EWHC 1824 (TCC) has again shown  the Courts applying and developing the American Cyanamid rules in order to determine whether or not an automatic suspension should be lifted.  The case arose as a result of a procurement by the Trust for a contract for pathology services.  Abbott Laboratories Limited (“Abbott”) won the tender.  Sysmex (who came second in the process) challenged the result of the procurement, triggering the automatic suspension on the Trust’s ability to enter into the contract.

The Trust applied to lift the suspension. Sysmex argued that the suspension should remain because damages would not be an adequate remedy for them, due to the size and prestige of the contract and the related reputational damage being unquantifiable in monetary terms.

In considering the application, the Court considered the usual principles as set out in American Cyanamid.  The Court considered that it only had to be satisfied that there was a serious issue to be tried, and that no trial of the issues would be necessary; Mr Justice Coulson iterated that other than in exceptional circumstances where one party had a “knock-out point”, such action is inappropriate as a matter of principle.  The Court also added that, if damages were an adequate remedy then this would normally (but not in all instances) be sufficient to lift the suspension.  In addition, the Court added that, when considering the practical application of these principles, considerable assistance can be taken from the judgment in Nottingham Building Society v Eurodynamics Systems, particularly that ‘the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be “wrong”’.

The Court deemed Sysmex’s arguments in relation to the prestige of the contract and their reputational damage as speculative and lacking supporting evidence, and that damages would be an adequate remedy and that it would be just to confine them to that remedy.

Regarding the Trust however, the Court determined that damages would not be adequate. Whilst the Trust may be able to quantify its loss of profits during the period of the injunction, the Court determined that, due to the nature of the contract, in considering the balance of convenience, it was apparent that damages would not be a suitable remedy.

The Court determined that there was overwhelming evidence to lift the suspension on the contract.  Due to the nature of the services, the Court found that “where there is credible evidence that patient care will suffer if the suspension is not lifted, it will usually be the case that the least risk of injustice will favour the lifting of the suspension”.  The Court balanced this point against those raised by Sysmex’s arguments that the procurement had been significantly delayed and that it is in the public interest to ensure that a procurement is ran correctly.  However, it deemed that the delays in the process were understandable given the size and complexity of the contract awarded and that, whilst the public interest is important in relation to the procurement process, patient care was of more importance in this case.

Unusually, another point raised by Sysmex, was that the suspension could be lifted in relation to certain parts of the contract.  While the Court deemed that this would not be workable in this instance, it did allude to the fact that this route could be explored in future disputes.

The key issue for the Court in this matter, despite the claims from Abbott, was the importance of the American Cyanamid principles and the willingness of the Court to apply them practically to avoid an injustice, particularly in cases such as this which revolved around patient care.

For further information, please visit our procurement page or contact a member of our procurement team.


Brexit: Calls to Simplify Public Procurement Law to Promote Local Growth
Friday 25th August 2017

The Local Government Association (LGA), which represents English and Welsh councils, has called upon the UK Government to simplify the public procurement rules for local authorities after the UK has left the European Union in order to promote local economic growth.

Procurement Regulations
Currently, councils are required to comply with EU-wide public procurement legislation, which stipulates strict advertising and award requirements whenever they purchase goods, works and services and also restricts changes to live contracts. The LGA says these rules have caused difficulties such as:

1. The EU-wide approach can conflict with a council’s desire to support its local economy;
2. Procurements that are subject to the OJEU regime can take between 3 and 18 months, typically twice as long as those undertaken in the private sector; and
3. Despite these safeguards against localism and member state protectionism, very few contracts are actually awarded to companies based in other member states: only 20% of English councils even received an expression of interest from companies in other EU countries, and across Europe only 1.6% of public contracts are eventually awarded to companies in other EU states.

A New British System?
The LGA, which remained neutral during the referendum campaign, has called for a simpler procurement process and adoption of a “lighter touch” approach after Brexit.
Such simplified system could then allow councils the flexibility to use procurement to boost their local economies, e.g. by:
1. Granting councils greater freedom to use local suppliers;
2. Allowing councils to impose additional social requirements on companies which are awarded contracts, such as specifying a local minimum wage or employing or training a number of local people; and
3. Permitting councils to procure using shorter timescales thus lowering administration (and associated costs) to councils and businesses. This may assist small and medium sized local firms to bid for contracts in the first instance.
Though councils would no longer be required to advertise contracts on an EU-wide basis, the LGA argues that local councils should retain the ability to do so, if they so wish.
Cllr Kevin Bentley, Chair of the LGA’s Brexit Group, explained that though any new regulations for public procurement must continue to “demonstrate best value for money and ensure effective and fair competition”, introducing “more local flexibility” post-Brexit could provide “more community benefits and growth opportunities for SMEs”.
Set against this are the expectations of the private sector for a framework for fairness and transparency in public procurement, and remedies where this is not the case. In an international context, trading with the EU or on World Trade Organisation terms would most likely require a system not too dissimilar to the current legal framework.

Changing Post-Brexit Landscape
The adoption of new procurement rules is just one of a number of regulatory changes that could occur after Brexit, albeit, as we have considered previously there is limited room for UK Government to manoeuvre. We consider Brexit is an opportunity to provide a more flexible public procurement regime, not only in terms of the LGA’s request but also in other areas, such as ease of seeking recourse for flawed procurements. It is important that clients keep abreast of any changes in public procurement law and seek appropriate legal advice, whether they are a contracting authority running a procurement procedure, or a private sector supplier bidding for a public contract.

For further information please visit our procurement page or contact Michael Winder.