Blackmore, R (On the Application Of) v Parliamentary And Health Service Ombudsman [2008] EWHC 3469 (Admin)

Case No CO/6144/2008[2008] EWHC 3469 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 18th December 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF BLACKMOREClaimantv
Between
PARLIAMENTARY AND HEALTH SERVICE OMBUDSMANDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Angus Moon QC (instructed by Messrs Radcliffes Solicitors) appeared for ClaimantMr James Maurici (instructed by Messrs DMH Stallard) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: This is a renewed application for permission to seek judicial review of the refusal by the Health Service Commissioner to entertain or deal with a complaint sought to be made by the claimant.[2]The claimant was a general practitioner, acting as such in a practice in Dorset. In 2004, and the details are not a matter I need go into, apparently he had fallen out with at least one of his fellow practitioners and a complaint had been made by that practitioner to the PCT, which alleged, putting it broadly, that Dr Blackmore was falling short of a proper practice in the way he was dealing with patients. The PCT did not notify Dr Blackmore or seek any explanation from him of the complaint that had been made but immediately decided that it should be referred to the General Medical Council. That they did and it is quite clear from the reference letter that indeed they say in terms that Dr Blackmore was not aware of the fact that it was being put to the GMC.[3]Once it had got to the GMC there was a risk, of course, that Dr Blackmore might be the subject of an interim suspension if the terms of the matter put forward were serious enough and he had had no opportunity to raise anything against them or indeed to put in, if there were any, written material which might point against the validity of the complaint. He simply does not know what he might have been able to say.[4]The GMC then started its process but Dr Blackmore decided that he would give up practice. He acted, as I understand it, for a time as a locum but in 2007 he applied to come off the register and that application was successful. Incidentally, the timescale is an indication, I fear, of the length of time these matters sometimes take before the GMC. Be that as it may, the effect of his coming off the register was that the GMC no longer had any concerns to deal with the complaints and so nothing was taken forward.[5]Dr Blackmore was concerned about the manner in which the PCT had acted. Accordingly, initially he complained to the Health Services Commission but that body indicated that in its view it had no jurisdiction to deal with the matter because it was a matter concerned with employment issues.[6]He then made his complaint to the Ombudsman. That was initially rejected by the Ombudsman. The decision made was in these terms. It said:
"We have carefully considered whether we could investigate your complaint about the Commission's handling of this matter, ie whether there was a significant enough fault within the Commission's process to make their decision unreasonable. In doing so, we consider that the Commission's decision not to investigate Dr Blackmore's complaint concerning employment issues was reasonable. Furthermore, when looking at this complaint in the round, we also looked at Dr Blackmore's ongoing concern that he was denied a right of appeal or the opportunity to obtain an appropriate remedy."
Pausing there, I am not sure that is necessarily the correct interpretation of the complaint. Certainly as put forward now, the complaint was that there was no notification of the matters that were being put against him and thus no opportunity to make any representations. It was not suggested, and indeed if it were suggested I would take the view that it was not arguable, that there was a requirement to have, as it were, a hearing of any sort or a consideration of each side's cases. All that was necessary, it was argued, was that notification should be given and there should be an opportunity to make representations which would be taken into account by the PCT in taking whatever decision they considered appropriate. No doubt, if there were matters which showed that the complaints were either unjustified, in which case no further action should be taken, or that there were circumstances which ought to be drawn to the GMC's attention if it was decided that the matter nonetheless should be put to the GMC, then that would be an important safeguard for the doctor concerned.[7]Going back to the decision letter, it goes on:
"When doing so, we bore in mind that Dr Blackmore did have the opportunity to challenge the allegations made and seek a resolution to the issue of damage to reputation by responding to the GMC investigation and attending the hearing they arranged. With that in mind, and while we acknowledge Dr Blackmore's feelings about the GMC investigation into his conduct, we consider that he did have the benefit of participating in an appropriate resolution process in which to seek an appropriate remedy. We decided therefore not to take the matter further."
[8]The first point made is that it could not be said properly that this was concerned with employment issues because Dr Blackmore was employed by no-one and thus there was no employment issue. On the face of it that is clearly arguable. Secondly, it is said that the GMC would not have concerned itself with the circumstances in which the complaint was put before it and that therefore Dr Blackmore's complaint that he was making to the Ombudsman was not something which could be dealt with or would be dealt with by the GMC. Again, it seems to me that it is arguable that in that letter the Ombudsman had missed the point. But there is a further hurdle, and in my judgment an insurmountable hurdle, that faces the claimant and that hurdle lies in section 7 of the Health Service Commissioners Act 1993. Subsection (1) of section 7 prohibits the Commissioner from conducting an investigation in respect of action taken in respect of appointments or removals, pay, discipline, superannuation or other personnel matters in relation to service under the National Health Service Act 2006.[9]Mr Moon accepts for the purposes of argument that it would be difficult to say that on the face of it the circumstances here do not fall within subsection (1) but he submits that subsection (3B) comes to his aid and that provides:
"Nothing in the preceding provisions of this section prevents a Commissioner conducting an investigation in respect of action taken by a health service body in operating a procedure established to examine complaints."
[10]He draws my attention to the procedure which the Health Service has in place, which is headed "A procedure for the identification and support of doctors whose performance is giving cause for concern". Now, that procedure was, as is said in its introduction, a voluntary process designed to "provide support for doctors in general practice who are finding it difficult to maintain an acceptable level of clinical performance", and secondly to "ensure that the public are protected from such poor performance". It makes the point that individual patient complaints should not be dealt with under this procedure but it also makes the point that the information relating to poor performance could come inter alia from the complaints process. Nonetheless, the performance screening group, which is the group set up to deal with matters arising under this procedure, should not deal with formal complaints, there being an alternative procedure for dealing with such complaints.[11]It seems to me that it is unarguable that this procedure which is relied on, and which incidentally has a provision which requires that the doctor be informed of the nature of the concern and invited to co-operate and to provide an initial response, is a procedure established to examine complaints. It clearly is not. It is a procedure established to deal with matters which may have got to it as a result of a complaint being made. I say may have got to it on the basis that the information on which the process and the procedure was to be applied may have emanated from knowing the details of a particular complaint, but the one thing that it is not is a procedure established to examine complaints. That is a different procedure and 7(3B) on the face of it is concerned with shortcomings by the PCT in dealing with a complaints procedure, which may have been to the detriment of an individual, not with the situation which arises here.[12]There is a further matter raised which is the question of delay. There is no doubt that this claim was out of time by a day or two. I say a day or two, there is a slight argument about the precise day upon which the time began to run. Regrettably, those advising Dr Blackmore left it very much to the last moment to raise the judicial review possibility with the Ombudsman and, indeed, they left it too late to write a Pre-action Protocol Letter, although at the last moment, before the three months expired, notification was given. It was said judicial review would not be needed if she agreed to examine the matter. No doubt that is so, and I do not doubt that many applicants for judicial review would be happy that they would not need to pursue it if they got the remedy they were after, but that really is what it boils down to. The problem here, as I say, is jurisdiction, so that will not run. But in any event, I am unpersuaded that there was any good reason for the delay and that too would have led to a decision that permission should not be granted.[13]I would only add that in my judgment the Deputy Judge who refused permission on the papers went a little too far in suggesting that this was a claim which was totally without merit. It raises, on the face of it, issues which are indeed of concern because if there is a practice of PCTs to fail to notify doctors that they propose to put a matter to the GMC (and, indeed, to fail to notify the doctor that any complaint has been made, because that would be the effect of their action), that seems to me, on the face of it (and I emphasise I have not heard from the PCT) and certainly arguably, a practice which should not continue. The normal practice should surely be that a doctor is told of a matter which is raised and is given the opportunity at least to put in representations or material which is relevant to either the weight to be attached to any matters of complaint or to whether it really is necessary for the matter to be put before the GMC. But even if it is necessary in the view of the PCT that it goes to the GMC, then at least they will be able to forward to the GMC the matters, the representations and any other material put in by the doctor in question.[14]I re-emphasise that what I have just said is in the absence of any input from the PCT but, should this issue arise subsequently, it seems to me that it is to say the least arguable that to act as they are acting is to act wrongly. But, as it is, permission must be refused.[15]MR MAURICI: My Lord, can I hand up a schedule of costs? My Lord, can I just explain in relation to costs. This schedule is limited to --[16]MR JUSTICE COLLINS: Hang on. Sorry, let me just find it.[17]MR MAURICI: There is an issue I need to focus on. The deputy judge did make an order of costs in our favour.

MR JUSTICE COLLINS: Well, that was the acknowledgment of service.

[19]MR MAURICI: Yes, but not quite, my Lord, because what happened in this case was, you may remember, the claimant lodged without detailed grounds.

MR JUSTICE COLLINS: That I had not picked up, no.

[21]MR MAURICI: So what it was was that the claimant lodged without detailed grounds and so we filed an acknowledgment of service, which just very briefly responded to the claim and put in a schedule of costs and that amounted to the amount of money that the learned judge --

MR JUSTICE COLLINS: That was about 1,600, was it not?

[23]MR MAURICI: Yes, my Lord. In the order --

MR JUSTICE COLLINS: I cannot remember precisely the figure.

[25]MR MAURICI: The precise figure, my Lord, the figure the judge ordered, was 1,788.94. My Lord, what then happened was my learned friend's clients put in their detailed grounds and we then responded through effectively further summary grounds, which in reality were the main summary grounds, and we did send into the court and to the other side the revised schedule of costs, which is what I just handed up to your Lordship. You will see it is dated 29th August, so it is the date that our further summary grounds went in, and so we were actually asking the judge to make an order for that sum, which is 10,653.61.

MR JUSTICE COLLINS: Does that include today?

[27]MR MAURICI: No, it does not. That is limited to the costs of dealing with --[28]MR JUSTICE COLLINS: Mr Maurici, you are exceedingly hopeful in that case. There is no way in which that sort of level of costs is appropriate for an acknowledgment, even in the circumstances you indicate.[29]MR MAURICI: Well, my Lord, I would nonetheless like some order for costs --[30]MR JUSTICE COLLINS: You are entitled on the face of it, obviously I will hear Mr Moon, to some order. There can be no doubt of that.[31]MR MAURICI: My Lord, I would state that the amount ordered by the judge was obviously before any summary grounds in any detail had been prepared.

MR JUSTICE COLLINS: I think they were too much, but there we are.

[33]MR MAURICI: -- is not, in my submission, a sufficient amount to deal with the costs of the claim.[34]MR JUSTICE COLLINS: No. Well, let us have a look at this. Also, I think we had better have a look at what came before the judge. We got up to 5,792. I have a schedule in that sum.[35]MR MAURICI: No, there should be a third page.[36]MR JUSTICE COLLINS: Oh, I see. I am missing -- you are quite right. It was stuck to the second. No. Wait a minute. Yes. It got itself struck. Yes, you are quite right, it is this. It seems invidious to go into counsel's fees, Mr Maurici but --[37]MR MAURICI: Well.

MR JUSTICE COLLINS: Sometimes I wish I had remained at the Bar.

[39]MR MAURICI: Well, what can I say but that it is a small proportion of the costs of the overall bill and, my Lord, I do obviously -- my main submission is I do ask for an order for the full sum but obviously your Lordship is entitled to summarily assess that down.[40]MR JUSTICE COLLINS: You are not going to get the full sum, I can tell you that. This was a question of jurisdiction. There were three points you had to deal with. Two you would not have won on and you won on one, which is pretty straightforward.[41]MR MAURICI: Well, my Lord --[42]MR JUSTICE COLLINS: And you then have delay. It really did not involve a huge amount of work, did it?[43]MR MAURICI: Well, my Lord, there were a number of arguments to deal with on delay, because my Lord made an application to extend time, which I then had to deal with.[44]MR JUSTICE COLLINS: I take your point that they went about things in a bad way by putting in initially effectively no grounds and then amending it and that inevitably, and I think the claimants appreciate this, meant you are entitled to rather more than you might otherwise have been entitled to.[45]MR MAURICI: And then, my Lord, when one comes to the actual grounds, there were three points, my Lord. Obviously I have succeeded on one of them today. I have not dealt with the other two but --[46]MR JUSTICE COLLINS: The point I am making is I think the other two are arguable. I have seen your answers to them but if they stood alone -- subject to delay and so on. I mean, I am not granting permission -- but I think that --[47]MR MAURICI: And then, my Lord, there was the delay issue, which I did have to deal with, because an application had been made and again time and money was spent dealing with that application to extend time. So, my Lord, in all the circumstances, given that the claimants did not follow the proper processes, there was a delay issue as well --[48]MR JUSTICE COLLINS: He may well have found himself properly liable for twice that which he would be otherwise be liable for, the way he went about things, that I recognise, but -- well, let us see what Mr Moon has to say about it.[49]MR MOON: Well, my Lord, your Lordship has the point, that I do submit that I won on two out of three of the merits points and that in fact we did not take much time arguing about delay and so on any view there should be a proportionate deduction.[50]MR JUSTICE COLLINS: Well, no, because you -- this, remember, is the acknowledgment of service costs, not today's costs.[51]MR MAURICI: My Lord, quite, but the acknowledgment of service deals at length with the issues on which the defendants lost.[52]MR JUSTICE COLLINS: Certainly. They had to deal with that. I think they also, as I indicated in discussion with Mr Maurici, I think you have to recognise that it is going to be a bit more expensive than otherwise because of the way you went about --[53]MR MOON: My Lord, I do not seek to dissuade your Lordship from that. I make two factual points: one is that the hourly rate of 175 per-hour is £35 an hour more expensive than those instructing me, who have offices in Westminster. I am not going to say anything about my learned friend's fee. That does not mean I accept it but it is always embarrassing and I do not know what my fee is, so -- the other point is, my Lord, that the work done on documents seems rather excessive in terms of hours. It looks as if something like 18 hours was spent on documents and, my Lord, although this is a case which has a bit of law in it, it is not very document heavy and so, my Lord --

MR JUSTICE COLLINS: It is not a valid sum.

[55]MR MOON: It is not a valid sum. My Lord, there it is. Those are my submissions. It is much too high a figure.

MR JUSTICE COLLINS: Anything you want to add, Mr Maurici?

[57]MR MAURICI: No, my Lord.[58]MR JUSTICE COLLINS: It is always difficult in these circumstances for a judge to assess the appropriate level of costs, this being an application for costs limited to the costs of preparing the acknowledgment of service. It is, however, to be remembered that in principle those costs are to be kept to a reasonable level.[59]An acknowledgment of service is a valuable document and it can often indicate that a claim is not one which can properly go ahead. Sometimes it goes further because investigation has to be carried out and it can shown that the claim has failed to adduce material that it ought to have adduced and so some extra evidence is needed. That is not the situation here but indicates that there is a variation to be accepted. Now, what adds to costs here, and this is a matter I raised in Leach some time ago, when this issue was first raised, is that if there is a failure to go through the pre-action protocol process inevitably costs of preparing the acknowledgment of service are going to be very much higher because the costs incurred in meeting the pre-action protocol letter are not costs which could be included in the acknowledgment of service costs. Here the situation is that all costs which were incurred in meeting the claim were incurred in preparing the acknowledgment of service. In addition, when the claim came, it was based upon exiguous grounds and more detailed grounds were submitted later and that meant that there was a need, as it were, for a double acknowledgment of service to deal with the detail.[60]Having said all that, I am, I am afraid, satisfied that the amount claimed of £10,600 is excessive. Mr Moon has pointed out that the rate of £175 a hour claimed is somewhat higher than that which his clients charge, who are London-based. Equally, I note counsel's fee. It seems to me, and I appreciate this is very much inevitably a broad brush, palm tree, whatever expression one likes to use, because one is not in the position of being able to make a detailed assessment, but bearing in mind all the principles that I have mentioned, it seems to me that the claimant must recognise they are going to have to pay more than perhaps would be normal in an acknowledgment of service case because of their own shortcomings in the way they have dealt with the lodging of this claim. Overall, it seems to me, and I am taking a round figure, that the sum of £5,500 is an appropriate sum and that is the order I make.[61]MR MOON: My Lord, can I just raise two points of clarification? One is whether that is to include VAT?[62]MR JUSTICE COLLINS: That is an inclusive sum. I do it that way. Someone will work out how much is applicable to VAT. In fact, they have claimed too much, have they not?[63]MR MOON: Well, they have --[64]MR JUSTICE COLLINS: They have put in 17 and-a-half per cent. I thought that it had now been reduced to 15.[65]MR MOON: Well, the date when this was written, it was before the budget.

MR JUSTICE COLLINS: But now it would be a bit less.

[67]MR MOON: But it will be 5,500 inclusive of VAT, whatever rate they might be.

MR JUSTICE COLLINS: That is inclusive.

[69]MR MOON: Secondly, my Lord, can I take it that that supersedes the order made by the judge?[70]MR JUSTICE COLLINS: Yes, it does. It supersedes the order made by the Deputy Judge.[71]MR MOON: And, my Lord, this is not a point of clarification but may I take it, my Lord, that your Lordship would give us permission to send a note of your Lordship's comments to the relevant PCT.[72]MR JUSTICE COLLINS: Well, you will get in due course a transcript of what I have said. I do not think you will probably get it until next term, but certainly, as far as I am concerned, you are entitled to make such use of it as you think appropriate.[73]MR MOON: Thank you very much.