Citation: [2021] EWHC 44 (TCC)
The procurements for NHS orthodontic services which were the subject of these cases were abandoned in June 2020 due to the effects of the Covid crisis and the requirement to reassess NHS orthodontic needs. The remaining issue was the treatment of costs. By judgment of 14 January 2021, Mr ter Haar QC sitting as a Deputy High Court Judge held that the case was closest to the 3rd category in M v LB Croydon [2012] I WLR 2607, namely a situation where there has been a compromise which does not reflect the Claimant’s claims.
While the June announcement had in effect given the Claimants the relief sought it was wholly unconnected with the litigation and provide no indication that the Claimants had been successful. In these circumstances, the Court considered whether it was “tolerably clear” who would have won if the June announcement had not rendered the proceedings academic. It concluded that it was not tolerably clear and the primary order was therefore no order as to costs. Certain costs relating to procedural matters were ordered in the Claimants’ favour. Simon Taylor acted for the NHS Commissioning Board.
