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

This is where the case engages most clearly with the exchanges. Medpro relies on the “gowns approved by technical” statement, against the background of the process of submission, as a clear and unequivocal representation. But even so and taken against the background, this falls some way short of the unequivocal or clear representation or basis for assumption which would be needed. The statement does not itself say what is relied on or mention CE marking. And any representation has to be placed against the wider background (including as to sterility), the structure of the process and Medpro’s knowledge of the process (i.e.) that the contracts stage needed still to be completed). On this basis at best this statement can be taken as an implicit representation that the DHSC considered that the material suggested that the gowns were capable of meeting technical requirements. Such a requirement is itself so vague that it could not found any estoppel.

Further, to the extent anything could translate into a representation/assumption, there is nothing which could make a clear representation/assumption about CE marking. Medpro’s case was that:

This is said to be the basis for a clear and unequivocal representation that there was no requirement to have a CE mark with an NB number. As Mr Samek KC put it in closing: “it is obvious what is implicit in that, that DHSC were satisfied with everything that we had given them and that's why we passed on to the next stage and they sign the contract. No valid CE mark was therefore required. No need to demonstrate anything else.”

That expansive statement of what is sought to be read into the terse one liner needs only to be stated to be seen to be wrong. Nor can it be said that one can get to an unequivocal representation/assumption via an argument that: Medpro was “100% compliant”/ therefore Medpro had provided everything that DHSC required/ therefore no need for an NB number. The short point is that the absence of an NB number in the photo was at least equally consistent with the photo showing a blank pro forma, which would have the producer’s own NB number applied. There is simply not enough explicitness or enough absence of alternative meanings for a clear representation/assumption to be the result.