EWJ June 61 2025 web - Flipbook - Page 11
listed as included in the fixed price package were
"Consultants' operating fees". Listed among the items not
included in the package were "the Consultant's fee for the
initial out-patient consultation".
not included. The Consultant's operating fees were
included in the total sum charged by BMI.
The reference in Clause 18 of the Terms and
Conditions to the Consultants being self-employed
does not give any indication whether the services of
surgeons or anaesthetists should be excluded from the
scope of the obligation. After all, terms can be included
within any contract for services to be performed by a
third party. However, the second half of Clause 18 stipulates that the Consultants provide their services direct to the patient. A reasonable person would
consider that Clause 18 stipulates that the Consultant
rather than BMI would provide their services to the
patient. Furthermore, these words are preceded by
"all Consultants are self-employed". This allows the reader
to understand that the Consultants do not work for
BMI.
The attached Terms and Conditions referred to in the
covering letter ran to 25 clauses. Although the Judgment refers to other clauses, Clauses 18 to 20 are key
to the Judgment as handed down by the Court. They
read as follows:
18. All consultants are self-employed and provide their
services direct to the patient.
19. Your quote will state whether the Consultant's fees for the
procedure and the follow up (but not the initial consultation
fee) are included in the quoted price. If the fees are included,
the hospital will usually collect the consultant's fees as agent,
but occasionally you will receive a separate invoice from the
consultant for his portion of the procedure cost...
Clause 19 stipulates that the fees of the Consultants in
this case were collected by BMI acting as agent for the
Consultants. This is consistent with the Contract not
including the provision of the Consultants' services.
20. The initial consultation fee with the Consultant is a separate fee (outside the package price) which will be invoiced to
you directly by the Consultant.
Method to be adopted in the interpretation of the
Contract – Summary of arguments
Both the Defendant and the Claimant agreed that the
appropriate way of interpreting the contractual documentation was by reference to the Judgments in
Lamesa Investments Limited -v- Cynergy Bank Limited and
Network Rail Infrastructure Limited -v- ABC Electrification
Limited.
Accordingly, the Court concluded that the ordinary
and natural meaning of the words in Clauses 18 and
19 would have conveyed to the reasonable reader that
the surgical services of the Consultants were to be provided by them rather than BMI. Reading the Contract
as a whole, the purpose of the Contract was to provide
a fixed price package for the Claimant's hip resurfacing procedure that included within the fixed price fees
charged by the Consultants.
The Judge considered his role was to identify the
intention of the parties by reference to what a reasonable person having all the background knowledge
which would have been available to the parties would
have understood the language used in the Contract
to mean. The departure point for the interpretation of
the language is the natural and ordinary meaning of
the contractual terms used.
The Court, therefore, accepted the Defendant's arguments and dismissed the Claimant's request for
declaratory relief.
Other matters in the judgment
Amongst other matters dealt with in the Judgment,
the Court considered the following:
The Claimant laid great weight on the wording in the
covering letter from BMI which offered the fixed price
package for "your surgery". This, they argued, indicated
that the Contract covered all aspects of the procedure
including the surgery and anaesthesia.
l It was not much argued by the parties, but
commercial common sense is an important factor in
the interpretation of contracts. The Judge concluded
that the Defendant's interpretation of the Contract was
consistent with commercial common sense.
In contrast, BMI relied heavily on Clauses 18 to 20 of
the Terms and Conditions attached. The hospital argued that the Consultants' services were not included
within the Contract as between BMI and the
Claimant.
l Documents that post-date contract formation or are
not shared with the patient cannot form part of the
factual matrix relevant to interpretation of a contract.
For example, the practising privileges as between BMI
and the Consultants would not lie within the knowledge of the Claimant and were, therefore, disregarded. The Registration Form that was signed by the
Claimant after the formation of the Contract was also
disregarded.
The judgment
The Judge acknowledged that the covering letter
stated that the fixed price package was for "your
surgery". However, this covering letter made mention
to the Terms and Conditions and the attached Quotation. The Quotation described the procedure as "The
Birmingham Hip resurfacing procedure". This description
describes the subject of the Contract as being the procedure, but the inclusion in the Quotation of a text
box listing what is and what is not included within
"your package" makes clear that not all matters are covered. The initial consultation with the Consultant was
EXPERT WITNESS JOURNAL
l There were no formal written contracts as such
between the Claimant and the Consultants and the
Claimant had specifically pleaded that no contracts
were formed. In its Defence, the Defendant made no
admissions as to the existence of such contracts. On
the evidence available, the Court concluded that there
were contracts between the Claimant and the Consultants. It should be noted that the Court accepted that
the consent process in private medical healthcare
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JUNE 2025
