Queen’s Bench Division
An NHS trust had acted in breach of contract by withdrawing from a process whereby a surgeon was being assessed by the National Clinical Advisory Service.
HELD: The parties had intended that the agreement, comprising the matters agreed in principle in March 2004 and the agreed terms of reference, should be contractually binding. The fact that the identity of a hospital willing to accept P's placement for an assessment had not been established by the date of the agreed terms of reference did not create any uncertainty as to the material terms of the contract itself; it was a contingency that had to be satisfied in the due performance of the contract. It was true that there was no express provision in the agreement that specified the party who had the main responsibility for securing a clinical placement for P. However, that was not an uncertainty as to the terms of the contract; rather, it was an indication that each of the parties had a responsibility for securing such a placement. Further, P's agreement to submit to a temporary change in workplace, undergo a period of assessed practice in a different hospital and take part in an assessment for which consent was obligatory constituted sufficient consideration. The contract was legally binding and still subsisting when the parties met in August 2005. P had done everything within his powers to fulfil his part of the agreement, and there had been no justification for the trust's decision to withdraw from the assessment process. Moreover, the contract had not been frustrated; that argument was an attempt at an ex post facto justification for a precipitate decision taken by the trust without regard to its contractual obligations. And whether or not the agreement for an NCAS assessment was contractually binding, the trust's conduct in unilaterally terminating the agreement without good reason was both capricious and unfair such as to amount to a breach of the obligation of mutual trust and confidence that was an implied term of P's contract of employment.
 Lloyds Med Rep 472 (HC)
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