CL-2022-000676 - [2025] EWHC 2486 (Comm)

While Medpro maintained in closing that the estoppel case extended to validated process to the extent that the validated process argument crosses over with SAL, no estoppel can arise. This is essentially for the same reason outlined above as to Medpro’s case on construction: that it was agreed that the compliance with SAL was satisfied by provision in advance of the partial certification, and photos of gowns with an NB number which was not apt to sterile gowns. Medpro says “Ultimately, it was for the DHSC, through the Technical team, to determine whether the documents provided by PPEM met the necessary technical requirements, and before the gowns were purchased.”

There plainly is no representation which can be spelled out of the circumstances here, as to validated process and SAL – particularly when the complications of the process form part of the backdrop: how could it be understood that DHSC were satisfied that gowns would be sterile if they were as presented? At this level Medpro’s case becomes that DHSC agreed or represented or the parties assumed that the kind of non-sterile gowns which were not needed could be the sterile gowns which were needed.

The estoppel case could therefore only conceivably work if SAL were independent of validated process. Then there might be room for a representation/assumption that all that was needed (in terms of validation of process) to demonstrate compliance with SAL was compliance with ISO 11137. However that case itself would fail for the same reasons as the ETS arguments already considered. There is no clear representation (again see the relevant backdrop of what the process is covering), there is no evidence of assumption, there is no evidence of reliance, and there is no presumption of inducement.