Sodipo, R (on the application of) v Castlepoint and Rochford Primary Care Trust [2006] EWCA Civ 819

[2006] EWCA Civ 819Case No C1/2006/0040
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION (ADMINISTRATIVE COURT)
MR. JUSTICE STANLEY BURNTON
CO/9665/2005
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 th June 2006
Before
LORD JUSTICE THOMAS
Between
The Queen on the Application of Julius SodipoAppellantCastlepoint and Rochford Primary Care TrustRespondent
Mr. Afolabi Ogunbiyi (instructed by Mr. Julius Sodipo) for AppellantMessrs Radcliffes Le Brasseur (instructed by Castlepoint and Rochford Primary Care Trust) for RespondentHearing Hearing dates : 4 th May 2006
Judgment
[1]By an application dated 10 January 2006, the applicant asks for permission to appeal against the order of Stanley Burnton J dated 19 December 2005, refusing him permission for judicial review and awarding costs against him.[2]He further applies for an extension of time, on the grounds that he was not at the hearing and was not represented and so only learned of the order when he received it in the post; it was sent to his surgery address and did not arrive before the holiday; he therefore did not receive it until early January.[3]The application to the judge was for Judicial Review of the decision of Castle Point and Rochford Primary Care Trust of Rayleigh Essex, to hold a hearing to consider suspending him under Regulation 13 of the National Health Service (Performers Lists) Regulations 2004.[4]Prior to the hearing before me, a minimal bundle had been lodged. At the hearing, the applicant was represented pro bono by Oluwole Afolabi Ogunbiyi; I heard a short submission and was provided with a large bundle of papers which I was asked to consider, though they had not been filed with the court prior to the hearing. As a matter of indulgence, I agreed to do so and indicated I would give my judgment in writing without any further submissions.

THE FACTUAL BACKGROUND

[5]The applicant is a General Medical Practitioner and on the Performers List of the defendants (the PCT); he is a sole practitioner.[6]It appears that the PCT, since early 2005 been in contact with the applicant as a result of various processes of assessment. In August 2005, the PCT asked the applicant if he would cooperate with the Essex Advisory Group in a further review of his practice that the PCT considered was required by reason of concerns they held. In September 2005, the applicant declined to have his practice assessed again and had requested further information as to the reasons for this. The correspondence provided to me at the hearing of the application set out the background in some detail.[7]The PCT felt there was still assessment and appraisal work to be done. On 8 November 2005, the Chief Executive of the PCT wrote to the applicant to inform him that they considered that they had explained why they had concerns and why they considered a further assessment was necessary. If he did not agree, then they would have to consider his suspension. They offered him a meeting on 15 or 18 November 2005.[8]At the meeting on 18 November, the applicant would not agree to the assessment; he was handed a letter advising him that the PCT would consider suspending him at a meeting on 1 December 2005.[9]On 24 November 2005, the applicant applied for judicial review, asking that the PCT be restrained from suspending him from the List and for an interim injunction preventing the PCT “from considering or taking any other disciplinary action” against him. He contended that the decision to ask for a further assessment was unlawful and irrational.[10]On 30 November 2005, the applicant applied to the court for urgent consideration of his judicial review application.[11]On 1 December 2005, Lindsay J, on review of the papers, ordered an oral hearing, observing:
“As for the interim injunction, a truly compelling case would be needed for an ex parte quia timet injunction and no such case is made out. Nor, more generally, do I see that the PCT can be restrained as the relief claimed requires but as both relevant parts of the 2004 regulations and of the PCT’s letter of 18.11.05 are incomplete in my papers I am left in such doubts that the safer course is to order an expedited oral permission hearing to be followed by substantive hearing if permission is given.”
[12]The applicant in a letter to the Administrative Court dated 16 December 2005 stated that he never received any notice from the court about the hearing, but he did receive a letter from the PCT on 6 December 2005 telling him the case had been listed for 19 December 2005.[13]That letter, dated 5 December 2005, also stated that the proposed hearing before the PCT had been rescheduled for 20 December 2005.[14]On 15 December 2005, therefore within the time limit of 21 days, the PCT filed an Acknowledgment of Service stating its intention to contest the claim brought in the Administrative Court.[15]On 16 December 2005, the applicant faxed the court, requesting an adjournment as he had been unable to instruct a solicitor because the PCT had not served him with the defence.[16]The applicant was contacted by the court, on the same day, to tell him he should attend. He replied by fax saying, inter alia, “I have been unable to arrange a locum cover for my surgery because of the shortness of the notice to attend court which I received at 5 pm today”.

THE DECISION COMPLAINED OF

[17]The hearing took place on 19 December 2005. The applicant did not appear; nor did anyone on his behalf.[18]Stanley Burnton J refused permission for an adjournment. He stated at paragraph 8:
“I have to say that an adjournment of a hearing in proceedings commenced urgently by [the applicant], in circumstances where there is an adjourned hearing to consider his suspension due to take place tomorrow, is quite extraordinary. ... [It] has no good basis. It is quite opportunistic, in order to prevent tomorrow’s [PCT] hearing from taking place. These proceedings were begun with legal representation of Dr Sodipo. He says he seeks to instruct a solicitor but it is unclear why he has not either continued in instructing a solicitor recently instructed or instructed a solicitor for this hearing date which he knew was due to take place. I conclude that it would be quite wrong to adjourn this hearing and it would be quite wrong to grant any relief.”

The judge refused permission for the following reasons:

“The circumstances in which the court will interfere to prevent a PCT from considering whether to exercise the power to suspend must be rare in the extreme. It must be shown, as a minimum, that there is bound to be an unfair proceeding or that no possible suspension order could be made. Even in those circumstances, where such allegations are made and are substantiated, the court will normally not interfere but will wait to see what the PCT has decided before considering whether to grant judicial review. That is to say, it is the substantive order to suspend which is usually the subject of judicial review proceedings rather than an interlocutory decision, including a decision to hold a hearing. I am doubtful whether it would be appropriate to ask any judge to decide, even where there was an arguable case, that the material before the PCT could not justify a suspension. Be that as it may, having reviewed the complaints in the present case, it is clear to me that it is open to the PCT to make the order of suspension if it considers that the regulatory preconditions are satisfied, there is a real possibility of removal from the lost and the suspension therefore becomes possibly appropriate. In those circumstances, I see no basis on which I could grant permission in this case.”
[20]The PCT then asked for its costs. They referred to the applicant’s conduct at paragraph 21:
“namely that these proceedings have been calculated to throw a spanner in the works of the ordinary operation of the PCT. On that basis, the claim is not only hopeless, it is an abuse of the court’s process to issue urgent applications for injunctions which have no merit and then not to turn up to the actual hearing of the case. The PCT, may I say, as a result of Lindsay J’s order, which said the substantive was to follow if permission was granted, has prepared for the case on the basis that there might have been a substantive hearing.”
[21]The judge awarded them their costs on the basis of Lindsay J’s order. Stating at paragraph 22:
“If Lindsay J said that if permission is granted substantive will follow then you had to be here. You are entitled to your costs.”
[22]The PCT had not, however, served or brought a schedule of costs. An Order was made for detailed assessment. In the event costs were not agreed with the observation that the costs judge might find the costs of the assessment should fall on the PCT.

GROUNDS OF APPEAL

[23]The applicant put forward three grounds of appeal.[24]Firstly, that the judge was wrong not to grant an adjournment on the grounds that:a. The Defendant served its acknowledgment of service well out of time.b. The acknowledgment and ... grounds ... were not served on the claimant or any of his staff personally.c. The claimant was not notified of the hearing by the Court and only got notice through the defendant which he was unsure about. Further, he was unable to arrange a locum cover for his practice.d. The claimant had not sought an oral hearing and the matter was set for an oral hearing by a Judge.e. The refusal to grant an adjournment was prejudicial to the claimant as he ... was unable to deal with the inaccuracies in the defendant’s claims.[25]Secondly, that the judge was wrong to refuse permission, on the grounds that:a. The body which the PCT required to assess Dr Sodipo, the Performance Assessment Group, is not a body created nor recognised by statute or by the Regulations.b. No grounds existed for such a referral; and if there were any such grounds, they had not been made clear to Dr Sodipo.c. The process adopted by the defendant was in breach of the Rules of Natural Justice in that the panel constituted to consider suspending the claimant were the people who at various times had played active and improper roles in the dispute between the parties ... [and in] its insistence that the claimant be not represented by a legally qualified person”.[26]Thirdly, that the award of costs was wrong because:a. The defendant had filed and served its acknowledgment out of time.b. The defendant was forced to modify its behaviour toward the claimant by the mere fact of bringing the application, because a new and differently constituted panel was set up to consider the issue of suspension. Its insistence that the claimant’s be represented only by a non-legally qualified person dropped. Even after the refusal of permission for judicial review the newly reconstituted panel has considered suspension and come to the conclusion that it would be inappropriate in all the circumstances of this case.c. Given the salutary effect of the application for judicial review in forcing the defendant to modify its behaviour toward the claimant and its frank acknowledgment that it had made mistakes in the way the matter was handled, a cost order was inappropriate.

CONCLUSION

[27]The application for permission to appeal save as to costs is pointless, as the hearing took place on 20 December 2005; this resulted in the panel giving the applicant the opportunity to submit to an assessment.[28]As to the first ground, the judge was absolutely right to refuse an adjournment. Once the process of the court is invoked by a person on an urgent basis, that person is under an obvious duty to remain in touch with the court and ascertain when the court would hear the application[29]In relation to the second ground of appeal, the judge was right to refuse permission to the applicant. It is clear from the National Health Service (Performers Lists) Regulations 2004, that a health-care professional on the List is expressly required to participate in the PCT’s appraisal system and to give an undertaking to do so. The PCT is expressly entitled to suspend the applicant if he refuses to participate in their appraisal system. There was on the materials before the judge and in the further materials put before me nothing to suggest that the PCT had acted unlawfully or irrationally.[30]In relation to costs, even if the proceedings below had been a pure permission application, the judge could have awarded the PCT its costs if successful: see Mount Cook v Westminster CC [2003] EWCA Civ 1346. The PCT were obliged to attend in view of the nature of the application made. They were wholly successful and there was no reason why they should not have been entitled to their costs; the fact that the PCT decided at its meeting not to suspend him showed how misconceived the application was; indeed all the materials suggest that the PCT had acted entirely reasonably. There is no prospect of the applicant persuading a court that the judge was wrong in the exercise of his discretion as to costs.[31]In the circumstances, the proposed grounds of appeal can have no prospect of success and the application for permission is refused.