Outer House resolves test cases on meaning of ‘NHS earnings’ in dentistry student bursary contracts

About this case:

• Citation:
  [2026] CSOH 9
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Actions by the Scottish ministers against dentists Donald Leggat and Gabrielle Griffin were transferred to the Court of Session from Dundee Sheriff Court as test cases from a larger cohort of disputes concerning the proper interpretation of a bursary contract under which some 1,300 students received £4,000 per annum in return for providing a certain amount of NHS work for a period after graduating. The pursuers sought repayment of some of these sums on the basis that many dentists had not fulfilled the condition after their graduation.

The cases were heard together by Lord Sandison in the Outer House, with Welsh, advocate, appearing for the pursuers and Brown, advocate, for the defenders.

Clear policy objective

Under the bursary scheme, which closed to new entrants in 2018, undergraduates agreed to carry out a total of five years of dental work in Scotland (with reductions based on how many years the bursary was taken for), with an agreed commitment that their “NHS earnings” would represent no less than 80 per cent of their total. At the time when Dr Leggat and Dr Griffin applied for their bursaries and signed the relevant contract, the Student Awards Agency for Scotland website stated that if a student did not comply with the tie-in period, then they would have to repay a proportion of the bursary based on how much of the period was actually complied with.

On behalf of the defenders, it was submitted that the bursary scheme had a clear policy objective of incentivising dentists to commit to providing NHS dentistry in the early years of their career. However, the contract was fundamentally defective in failing to engage in detail with the practical operation of measuring a dentist’s NHS earnings. The pursuers’ position was that earnings were NHS earnings if the treatment which generated the payment was one that was offered on the NHS and thus dealt with in a Statement of Dental Remuneration, for which patients paid a part of the fee with the balance paid by the NHS on receipt of a claim from the dentist.

The defenders criticised the pursuers’ construction as producing arbitrary results as it meant all earnings derived from those treatments were NHS earnings regardless of whether payment came from the NHS or from the patient. The only workable construction was one which took as the definitional criterion the status of the patient whom the dentist had treated as being NHS registered or not, as distinct from asking whether the specific treatment was NHS funded or not.

Counsel for the pursuers further submitted that the defenders’ reading would allow the 80% requirement to be satisfied by providing privately funded work to an NHS-registered patient. In any event, the contract did not restrict the professional decision-making of the defenders in any manner but simply required repayment in the event that they exceeded the permissible limit of private work.

Not unusual outcome

In his decision, Lord Sandison noted the unusual aspects of the contract at the heart of the case: “The contract under construction was not the product of the slightest negotiation, but was simply a document prepared on behalf of the Ministers and presented to student dentists on the basis that they must either take it or else leave it. Although the context in which the contract was entered into is thus clear enough, that context yields much less than might usually be expected by way of assistance in the exercise of construction.”

He added: “One reaches next the question of what ‘NHS earnings’ actually are. The phrase cannot simply mean earnings actually received from the NHS. The general requirement for patient financial contributions to the dentist in respect of treatment otherwise carried out under the auspices of the NHS would probably render it very difficult, if not impossible, for the dentist to comply with the 80% commitment on the basis that only payments made by the NHS counted as relevant earnings, even if he or she did nothing but treat NHS patients with work authorised to be done in terms of the Statement of Dental Remuneration, to the extent that that cannot objectively be supposed to have been the intention of the parties to the contract.”

Evaluating the competing constructions advanced by the parties, Lord Sandison said: “It is true that dentists cannot properly direct whether a patient registered for NHS treatment in fact chooses to have that treatment as opposed to an alternative which would have to be privately funded, and therefore cannot at their own hand entirely control whether or not the contractual requirement will be met, but, by preponderantly treating patients eligible for NHS treatment, they can maximise the prospects of meeting the requirement.”

He concluded: “That a contracting party may find himself failing to meet a contractual requirement, and thus come under some liability despite his best efforts to avoid that situation, is not a particularly unusual outcome in contract law, and certainly does not furnish a ground weighty enough to displace the conclusion pointed at by consideration of the language of the contract and the highly anomalous results which adoption of the defenders’ favoured construction would entail. No such difficulties attend the Ministers’ construction, that ‘NHS earnings’ means the earnings generated by the dentist by the treatment of NHS patients in accordance with the Statement of Dental Remuneration.”

Both cases were thereafter put out by order for parties to make submissions on their proper final disposal.