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

Medpro argued that the DHSC owed it “a duty of care in tort properly to advise it and communicate to it what was required of it [Medpro], in relation to obtaining any applicable necessary technical and regulatory approval in respect of the Contract”. That is, in the context of commercial parties entering into a deal worth £122 million, a bold submission.

It is well and long established that, in general the law does not require commercial parties entering into contracts to look out for each other, or advise: “The law does not impose a general duty of care in the conduct of contractual negotiations, reflecting the fact that each party is entitled, within the limits set by the law, to pursue its own interests.” Lord Reed at [42] in Cramaso LLP v Ogilvie Grant[2014] UKSC 9, [2014] AC 1093. Of course, the particular relationship between the parties may cause a duty to advise; and if representations are made which the representor can reasonably foresee are likely to be relied on, to take care. But the basis for the duty needs to be established.

Medpro’s submission that it was wholly reliant upon DHSC for advice is, on the facts, utterly unrealistic. Medpro was presenting itself to DHSC as a worthy entrant into the fast lane for approval as a supplier and aiming to land contracts worth hundreds of millions of pounds of public money. It said repeatedly that it had experience. It claimed to be well established: Mr Barrowman’s years of experience were trumpeted, as was its track record “manufacturing large quantities for the Australian government” as well as Mr Page’s “We are certain that we are 100% compliant”.

It is neither here nor there that Mr James did in fact try to clarify and advise to some extent. In the circumstances there is no basis for a general duty to advise.

The other claims under this head are grounded in the submission that the “approved by Technical” statement was negligently wrong. One problem here is essentially the same one that afflicts this argument in the context of estoppel: “approved by Technical” is not a clear representation that gowns presented exactly as per the photos would comply with the contract terms. It was in fact saying, and in the context this was its objective meaning (and was true), that the first stage (persuading DHSC that Medpro was capable of sourcing compliant products) had been passed.

In terms of intention for reliance, Medpro’s case (that DHSC must have appreciated that Medpro would rely on this) is also fundamentally undermined by the fact that the next stage was production, negotiation, and approval of draft contracts. There is no good reason why DHSC would at the due diligence stage have thought that (the experienced and confident) Medpro would cling to a one liner in an email from someone in Opportunities, rather than reading the terms of the Contract and ensuring the contract obligations matched what it proposed to deliver.

This then impacts on the question of reasonable reliance (if there had been evidence of reliance, which of course there was not). If this is not a duty to advise situation it would not be reasonable for Medpro to rely on representations made in speed during negotiations, when it was the supposedly experienced provider – and had a detailed draft contract setting out requirements.

The claim therefore fails on multiple levels. Had the claim succeeded, the loss claimed is not the correct measure of loss, and the correct measure of loss has not been proved (or even addressed).