An Integrated Care Board has been allowed to award a £40m urgent care centre contract to a new provider following a High Court judgment which marks the latest chapter in the commissioner’s ongoing legal row with its incumbent supplier, HSJ reports.
Northamptonshire ICB attempted to award the contract to run the UCC in Corby to its preferred provider, DHU Healthcare, last year, but this was delayed when the service’s existing provider launched a legal challenge. The action by One Medicare, which trades as One Primary Care, automatically suspended the procurement. The ICB set up an interim contract with the incumbent provider to cover the services while it asked the court to lift the suspension.
But on 17 January, a year after the procurement was halted, Mrs Justice Jefford granted the ICB’s application to lift the suspension, clearing the way for the commissioner to award the contract to DHU.
Considering the ICB’s application, the High Court judge had to determine whether there were serious issues to be tried by the court. They then had to decide whether damages would be adequate remedy for OPC, should the suspension be lifted and it goes on to win at trial, or for the ICB, should the suspension remain and it goes on to win at trial.
If there is some doubt over whether damages would be adequate for either side, then the judge must decide which action would have the least risk of injustice if it turned out to be wrong – determining where “the balance of convenience” lies.
The judge found that while there was “an arguable case” that “damages are not an adequate remedy for OPC”, but she hesitated in reaching this conclusion “because of the likelihood that it will continue to operate and be properly compensated in due course in damages” should it win at trial.
Meanwhile, the judge said: “The probability that the ICB will suffer loss which cannot be compensated in damages is far greater as it will be unable to provide what it considers the better services during the suspension and they are services which are intended to improve patient care. The balance of convenience is firmly in favour of lifting the suspension.”
OPC also did not offer a standard cross-undertaking in damages to either the ICB or DHU, the judge said, whereby it would promise compensation to the ICB and DHU if the suspension was maintained. OPC later lost the claim at trial, so the suspension should not have been applied and the ICB and DHU suffered financial losses.
The judge said the absence of a standard cross-undertaking was the strongest reason, if not the sole reason, to grant the application to lift the suspension.
The judge also rejected an application by OPC for an expedited trial. The company applied for expedition “over five months from the issue of proceedings and well after the application to lift [the suspension] ha been made. “It is suggested by the ICB that it is a late tactical application. I agree.”
Date: 3 february