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Dental Tribune United Kingdom Edition

20 Business United Kingdom Edition July 2014 change of control clause, don’t panic. The main thing to remember is that the NHS Area Teams are under a duty to act reasonably in granting consent to a change of control. Sometimes this duty is explicitly stated in the con- tract with the words “such con- sent not to be unreasonably withheld”. Where those words are not present, in our opinion there is a strong argument that the duty is implicit anyway. This view is reinforced by the recently issued (April 2014) NHS guidance document “Poli- cy for Incorporation of Primary Dental Contracts” which gives area teams the exact wording for a change of control clause to be inserted to an NHS contract on an incorporation and states that consent to change of con- trol should not be “unreason- ably withheld, delayed or con- ditioned”. On behalf of our clients, we have successfully obtained con- sent to change of control from a number of NHS Area Teams and in our experience, provided the proposed buyer of the shares is a registered dentist of good standing without previous disci- plinary or conduct issues, capa- ble of maintaining the existing standard of service provided at the practice, it would be unrea- sonable for the Area Team to withhold consent. One further point to remem- ber is that there is no express right in any of the regulations or guidance for an Area Team to impose alterations to the con- tract value when asked to pro- vide consent to change of con- trol under the NHS contract. Whilst these are strong ar- guments we’ve used before to successfully procure consent to change of control, they are not always immediately accepted without the need for negotiation with Area Teams causing delays to a proposed practice sale. Our advice is that if you have an NHS contract in the name of a limited company and you intend to sell your practice at some point in the future, have it reviewed by a firm of solicitors who are used to successfully dealing with these issues and obtaining consent. That way any change of control clause can be considered from the very outset. In addition, instruct your Solici- tor to open the dialogue with the Area Team as soon as you have found a buyer so that the issue does not cause delays further down the line. DT Laser Dentistry - LaserWhitening - LaserTherapy Made in Britain QLDL130214RG No battery No power loss No expensive tips All-in-one Laser £3,300£3,300 Inc. VAT, Delivery, all Accessories plus Online & Hands on BILD training course inc. Proud Sponsors of T. +44 1227 780009 E. info@quicklase.com W. www.quicklase.com QuickLase QuickWhite @QLQW About the author Thomas Coates is a Partner and Head of the Dental Team at LCF Law. Thomas has years of experience in acting exclusively for dentists and dental practice owners throughout England and Wales particularly in re- spect of practice sales and purchases, practice business structures, incorpo- ration and general commercial ad- vice. Within the Dental Team he can also call on Solicitor led expertise in Dental Employment and HR, CQC is- sues, GDC regulatory matters, NHS disputes and Property. Call Thomas on 0113 2440876 or email tcoates@lcf. co.uk for a no cost/obligation consul- tation. ‘The main thing to remember is that the NHS Area Teams are under a duty to act reasonably in granting consent to a change of control’ ß page 19DT

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