Nageh v Southend University Hospital NHS Foundation Trust [2007] EWCA Civ 1432

Case No A2/2007/1177[2007] EWCA Civ 1432
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(MRS JUSTICE SWIFT)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 1 st November 2007
Before
LORD JUSTICE BUXTONLORD JUSTICE LAWSLORD JUSTICE MOSES
Between
NAGEHAppellantSOUTHEND UNIVERSITY HOSPITAL NHS FOUNDATION TRUSTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr J Hendy QC & Ms H Sampson (instructed by Radcliffe Le Brasseur) appeared for Appellant.Mr M Supperstone QC & Mr J Milford (instructed by Browne Jacobsen LLP) appeared for Respondent.
Judgment
[1]Listed before the court today was an appeal with permission granted by my Lord, Buxton LJ on 23 August 2007 against the refusal by Swift J on 25 May 2007 of an interim injunction sought by the appellant in order to restrain the respondent from proceeding with disciplinary allegations against her. I will refer to the appellant who is the claimant in the action as “Dr Nageh” and the respondents who are an NHS Foundation Trust as “the Trust”.[2]Dr Nageh has been employed since 1 August 2005 as a consultant cardiologist by the Trust at Southend Hospital, Essex. Her contract of employment was signed on 26 September 2005 but took effect retrospectively from 1 August 2005. She had some other work in the London Chest Hospital in Bethnal Green under what is called an honorary contract, and certain private practice privileges at two private hospitals.[3]On 29 January 2007 Dr Nageh was peremptorily called to a meeting and told she was being suspended from duty. She was told to leave the hospital but she was not then informed of the allegations against her which were said to justify this drastic action. A contemporary file note shows that the Trust’s Clinical Director said this to her:
“…we faced a breakdown in the cardiology team and communication which could endanger the working of the team and patient safety. A certain behaviour had contributed to this, therefore she [Dr Nageh] was being suspended from duty in order to remedy this and to enable a cooling down period.”
A letter the next day 13 January confirmed her suspension and stated that:
“There had been an allegation into your conduct and probity.”
[4]Dr Nageh was suspended from the London Chest Hospital on 29 January 2007 and from her private clinics from 5 February. She had herself informed the London Chest Hospital and BUPA of her suspension by the Trust.[5]There followed a series of insistent requests as to the details of the case against Dr Nageh. It is said that these were only disclosed piecemeal. The Trust says that ongoing investigations brought further concerns to light. Because in circumstances which I will describe Mr Hendy is proposing to withdraw this appeal, it is not necessary to go into the allegations; it is enough to say that in the course of the interim proceedings before Swift J one of the disputes was as to whether the allegations were really matters of personal conduct or clinical competence.[6]The doctor’s suspension had been reviewed and continued from time to time since it was imposed on 29 January 2007. She remained suspended when her application for an interim injunction came before Swift J on 23 May 2007; and she remains suspended today although in April and May 2007 there were certain relaxations in order to allow her to perform certain aspects of her employment.[7]The Trust proposed and proposes, as I understand it, to take disciplinary proceedings against Dr Nageh. The issue in the interlocutory proceedings before Swift J was in essence whether in the course of such proceedings the trust might lawfully rely on a particular disciplinary procedure as it proposed to do. By the time the matter came before Swift J a date had been fixed for the disciplinary hearing: 7 June 2007. But that has been vacated or adjourned in light of the fact that this appeal from Swift J’s decision was launched.[8]Dr Nageh contends and has contended that the applicable disciplinary process is that contained in a document: HC(90)9. It contains elaborate procedural provisions. Dr Nageh says that it was incorporated into her contract on 1 August 2005. The Trust says that by virtue of certain directions issued by the Secretary of State under statute, it lacked the legal power to contract with Dr Nageh on terms including HC(90)9 and that the applicable process is contained in a different document: it is enough to refer to it as MHPS. In a sentence, when the matter came before the judge below she preferred the Trust’s arguments; she refused the injunction; she held there was no serious issue to be tried. Mr Hendy QC, in the course of preparing his appeal on behalf of Dr Nageh, has marshalled a welter of argument and authority to show that the learned judge was wrong. One of the points is whether, with respect, the judge confused a question about a serious issue to be tried with another kind of question, namely which party has the better case; and points were taken, some not without sophistication, as to the contractual position in dispute between the parties.[9]It is not however necessary to go into the detail. The reason is -- and the reason why Mr Hendy is proposing to withdraw the appeal -- that the Trust has in fact offered Dr Nageh all that she might obtain if she had a fair wind behind this injunction application. On 12 October 2007 the Trust’s solicitors stated in terms that:
“…as you are well aware, no disciplinary proceedings will be taken against your client at least until after the trial, assuming it takes place early in the new year.”
The solicitors invited Dr Nageh’s solicitors to agree to stay the appeal. They wrote again on 17 October 2007 indicating that inquiries revealed that the substantive trial could be heard in January 2008. Dr Nageh is not due to return to work until March 2008, being on maternity leave. The Trust’s solicitors stated on 17 October:
“Our client is prepared to give a formal undertaking that it will not pursue any disciplinary proceedings against your client until after a full trial has been completed provided that you cooperate in bringing the matter to trial.”
Dr Nageh’s solicitors replied on 19 October 2007. They complained that the issue of a stay of the appeal had been raised very late in the day. They said:
“We do not accept the undertaking you offer, namely that you will not bring disciplinary proceedings against our client until completion of a full trial, provided we cooperate in bringing the matter to trial. Were the appeal stayed, your client would be able to adopt the undisturbed reasoning of Swift J at the trial. We believe that our client has a good prospect of success on an appeal, which clearly raises important points of law. We therefore do not think the course you have outlined, whereby a trial takes place without the appeal being heard, is appropriate. As our counsel pointed out to your counsel, the judgments on the appeal are likely to be of value to the Judge hearing the full trial. Indeed it may be that in the light of the judgments on appeal the trial might be settled.”
[10]At the outset of the hearing this morning Mr Hendy was pressed with the proposition that the Trust’s offer of an undertaking effectively rendered this appeal otiose. He submitted that he should be entitled to proceed with the appeal because as matters stand the Trust has the judgment of Swift J behind it; that may at least have persuasive effect before the trial judge. As I have indicated Swift J held in terms there were no serious issues to be tried. It seems to me with respect to Mr Hendy and those behind him that this is an entirely misconceived approach. It is obvious that Swift J does not bind the trial judge who will hear the matter in due course; nor is there any necessity for the trial judge to be persuaded or influenced by what Swift J has said. She was dealing with an interlocutory application, no more, no less. Mr Hendy complains of the want of a level playing field. The playing field is entirely level assuming only that the players on it play their parts properly.[11]Accordingly it seems to me that the line taken in the letter of 19 October and (with deference) by Mr Hendy this morning is simply misconceived. This court sits only to decide whether justice requires an interim injunction to be granted. That issue has fallen away because of the offer of the undertaking by the Trust.[12]In those circumstances it seems to me to be right that Mr Hendy should withdraw the appeal as he has indicated he will.[13]I agree[14]I also agree.

Order

Appeal withdrawn on undertaking.