At 8.30pm on 23 March 2020, Boris Johnson announced a nationwide stay-at-home order in response to the COVID-19 global pandemic. Restrictions were temporarily lifted and reintroduced over the next two years. However, it would take until 24 February 2022 for all legal restrictions to be lifted.

Prior to this global pandemic, which killed over 6.66 million people worldwide, the world had endured other devastating disasters such as the 1931 Yangstze river floods, the 1968 Flu pandemic, the 2004 Indian Ocean Tsunami and the 2010 Haiti Earthquake.

These terrible events are often referred to as 'an act of god' or as the French call it a 'force majeure' which literally means 'greater force'.

The concept of adding a clause into contracts to remove or mitigate a party's liability, in the event of an 'external, unforeseeable and unavoidable catastrophic event' originates in French civil law and has now become an accepted clause in many jurisdictions around the world.

It is not supposed to be easy to escape contractual liability; the law recognises the importance of holding parties accountable to the contractual terms they have agreed and when asked to adjudicate on the legal meaning of such clauses. The Courts have tended to prefer a very narrow interpretation, where only the events specified and caused by an external, unforeseeable, and unavoidable event, invoke the protection of a force majeure clause.

But as time goes on, we are becoming more aware of the risk of natural and human led threats, pandemics, asteroids, cyber-attacks, armed conflict and nuclear warfare. The increase in frequency of such events inevitably leads to question, what is a foreseeable or avoidable event in the world today?

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The Law

To truly understand the concept of 'force majeure' and what qualifies, it is prudent to examine the law that sits behind it and how the concept of 'force majeure' has evolved and been applied in claims for contractual relief.

A 'force majeure' clause is considered an 'express term' in contract law, which means that it will not ordinarily be implied into contracts governed by English law. In fact English common law does not recognise the concept of 'force majeure'. The closest we have is the doctrine of contractual 'frustration', which has been given a very narrow interpretation by the Courts and so is of benefit in very limited situations.

Therefore, to claim this relief for a 'force majeure' type event, you have to have such a clause in your contract at the point of signature. Further, there is no standard, 'one size fits all' type wording for 'force majeure' clauses, the specific wording of the clause is likely to vary depending on the industry. Parties should therefore carefully view such clauses to ensure they cover all reasonable eventualities.

Standard NHS GDS contract/PDS agreement

The standard NHS GDS contract/PDS agreement and the accompanying policy book do recommend and provide some standard wording for a 'force majeure' clause. It is important to note however, that NHS guidance states that the inclusion of a force majeure clause is recommended but not required under the terms of the dental regulations. Accordingly, dental contractors are advised to carefully check the wording of any NHS contract prior to signature and where absent, request that a clause be added.

What constitutes force majeure?

The standard clause recommended for the GDS contract/PDS agreement refers to 'circumstances or events beyond the reasonable control of a party'. This phrase is potentially open to interpretation as to what is meant by 'beyond reasonable control'.

The NHS England Dental Force Majeure policy offers guidance on this point and states that claims for relief in respect of planned or anticipated events should not be considered a 'force majeure 'event because while they may affect service delivery in the short term, the contractor is contractually bound to make adequate provision to ensure any lost activity due to 'known events', is recovered before year end. Further unacceptable events include refurbishment of premises, foreseeable adverse weather events/disruptions (i.e. Snow and ice during winter months), planned events (i.e elective surgery, maternity/paternity leave and annual leave) and long term sickness absence.

The standard GDS contract/PDS agreement similarly offers guidance on what should not be considered a 'force majeure' event 'any actions or omissions of either party's personnel or any failures of either party's systems, procedures, premises or equipment shall not be deemed to be circumstances or events beyond the reasonable control of the relevant party for the purposes of this clause, unless the cause of failure was beyond reasonable control'.

As well as what is not likely to be covered, the NHS force majeure policy provides a non-exhaustive list of possible events or circumstances which may warrant a claim for dental relief, these include: Death or serious accident or sudden serious illness of a performer, leaving insufficient time to fill the post or make up the shortfall in activity by year end. Account is also taken as to when in the contract year the event occurs and the feasibility of expecting contractors to make up the shortfall before year end. Other examples include physical damage or essential services/utilities failure to the dental premises rendering it impossible or unsafe to deliver care for a prolonged period. Pest infestation, adverse weather events and prolonged industrial action which significantly affects provision of public services, also make the list.

Making a claim for force majeure

The party seeking to rely on the clause is required to promptly inform the other party of the event and the action taken despite this, to comply with the terms of the contract as fully and promptly, as possible.

Failure to recognise a potentially qualifying event and not promptly notifying your local area team, will render any claim for dental relief invalid.

Outcomes

The NHS England guidance to local area teams on force majeure, states that requests for dental relief on account of 'force majeure' should be considered on a case-by-case basis whilst ensuring balance, consistency, local flexibility, and alignment with policy/legislations including the Equality Act 2010.

In terms of what 'relief' can be offered to the affected party, depends on the extent to which the affected party is delayed or prevented from performing their obligations and what point in the contractual year the event occurs. The preference is always for the contractor to make up the shortfall before year end.

However, if the area team is satisfied that all reasonable efforts have been made to mitigate against the consequences of the force majeure event and making up the shortfall would be unduly burdensome, the area team may allow the contractor to carry forward the UDAs, which it is estimated were not delivered because of the force majeure event. Any activity carried forward would then be expected to be fully delivered within the next contractual year.

Finally, in the rare situation whereby the force majeure event has caused a significant interruption for a continuous period of three months or more, the standard NHS GDS contract 2018 does provide at clauses 374-375, the option to terminate the contract but with the caveat that the contract will not be terminated if the affected party is subsequently able, during the notice period, to resume performance of its obligations or if later, with the other parties consent.

What if no 'force majeure' is found?

Right to appeal

If, NHS England does not approve the claim for relief as a result of a 'force majeure', the contractor has the right to appeal. This appeal needs to be in writing to the area team within 20 working days of receiving the advice. The appeals route will be determined by the NHS body status of the contract holder so do ensure that the GDS contract or PDS agreement is checked to confirm the area team of the dispute route that is to be taken.

Consider claiming relief through another route

Alternatively, the dental contractor may instead consider their eligibility under any of the exceptional circumstances set out in the 'NHS England Mid-year and end of year reconciliation Policy' document. Failing which, the dental contractor may wish to try and agree a temporary rebasing of their contract or repayment plan with the local area team to reassure the board that NHS funds are not at risk of material financial loss. Any agreement reached should be confirmed in writing and signed by both parties.

Conclusion

The concepts that underpin what traditionally has be considered a 'force majeure' are shifting, it will be interesting to see how in NHS dentistry our current crisis in access to NHS dentistry and the mass shortage of NHS dentists, which are arguably unforeseeable and out with a contractor's reasonable control, will be interpreted in accordance with the concept of 'force majeure' and its ever changing borders.