Dr Geoffrey William Guy & Ors v Nihal Mohammed Brake & Ors (Moratorium cancellation directions) [2023] EWHC 1560 (Ch)

“17(1) Subject to paragraph (4), a creditor who receives notification of a moratorium under these Regulations may request that the debt advice provider who initiated the moratorium or (as the case may be) the debt advice provider to whom the debtor has been referred since the start of the moratorium reviews the moratorium to determine whether it should continue or be cancelled in respect of some or all of the moratorium debts on one or both of the following grounds, namely that— (a) the moratorium unfairly prejudices the interests of the creditor, or (b) there has been some material irregularity in relation to any of the matters specified in paragraph (2). (2) The matters in relation to which a creditor may request a review on the ground of material irregularity are that— (a) the debtor did not meet the relevant eligibility criteria when the application for the moratorium was made, (b) a moratorium debt is not a qualifying debt, or (c) the debtor has sufficient funds to discharge or liquidate their debt as it falls due. [ … ] 18(1) Having received a request for a review in accordance with regulation 17, a debt advice provider must conduct the review and carry out the steps in paragraph (4) before the end of the period of 35 days beginning with— (a) the day on which the moratorium started, or (b) in respect of an additional debt, the day on which the moratorium took effect in relation to the additional debt under regulation 15(7). (2) Subject to paragraph (3), having carried out a review in response to a request from a creditor, a debt advice provider must cancel a moratorium in respect of some or all of the moratorium debts if the debt advice provider considers that the creditor has provided sufficient evidence that— (a) the moratorium unfairly prejudices the interests of the creditor, or (b) there has been some material irregularity in relation to any of the matters specified in regulation 17(2). (3) A debt advice provider is not required to cancel a moratorium under paragraph (2) in respect of a moratorium debt if the debt advice provider considers that the debtor's personal circumstances would make the cancellation unfair or unreasonable. (4) The steps referred to in paragraph (1) are that a debt advice provider must— (a) inform the creditor who requested a review of the outcome of the review, and (b) if the debt advice provider considers that a moratorium should be cancelled in respect of some or all of the moratorium debts— (i) consult the debtor to whom the moratorium relates prior to doing so to the extent that the debt advice provider is able to do so, and (ii) if, after acting in accordance with paragraph (i), the debt advice provider remains of the view that the moratorium should be cancelled in respect of some or all of the moratorium debts, notify the Secretary of State and the debtor of the cancellation. [ … ] 19(1) If a debt advice provider has carried out a review of a moratorium following a request made by a creditor under regulation 17 and the moratorium has not been cancelled under regulation 18 in respect of some or all of the moratorium debts as a result, then the creditor may make an application to the county court on one or both of the grounds in regulation 17(1). (2) An application under this regulation must be made before the end of the period of 50 days beginning with— (a) the day on which the moratorium started, or (b) in respect of an additional debt, the day on which the moratorium took effect in relation to the additional debt under regulation 15(7). (3) Where on an application under this regulation the court is satisfied as to either of the grounds in regulation 17(1), it may do either or both of the following, namely— (a) cancel the moratorium in relation to a moratorium debt owed to the creditor who made the application to the court, (b) cancel the moratorium in respect of any other moratorium debt.” [ … ]”

“A ‘mental disorder of a serious nature’ means any mental health problem, disorder or disability of the mind which the Approved Mental Health Professional considers to be of a severity which justifies (or could justify) the individual’s detention in a hospital setting or removal to a place of safety under the Mental Health Act 1983 or cases of equivalent severity where the individual’s circumstances do not necessarily warrant such detention or removal (Kaye v Lees [2023] EWHC 152 (KB)).”

“25. … Pausing there, it is apparent that the two conditions for the making of a mental health crisis moratorium under Regulation 28(2) (e) are that (1) the debtor is suffering from a ‘mental disorder of a serious nature’ and (2) in respect of that disorder the debtor is receiving ‘crisis, emergency or acute’ care or treatment in hospital or in the community. 26. So far as condition (1) is concerned Ms Bretherton reminds me of the framework and provisions of the Mental Health Act 1983, which was extensively amended by the Mental Health Act 2007, and submits that the Regulations have to be construed consistently with that framework and Act. I agree. In my view the specific reference to the 1983 Act in sub-paragraphs 28(2)(a) to (d) makes it plain that the Regulations insofar as they relate to mental health crisis moratoria are to be construed consistently or in accordance with the Act. 27. Further it seems to me that sub-paragraph 28(2)(e) has to be read consistently with the 4 categories of situation which precede it. In my judgment sub-paragraph (e) is a sweeping up provision which is intended to catch situations which have the same quality as those identified in sub-paragraphs (a) to (d) so far as the severity of the mental disorder is concerned but which do not fall into one of those earlier categories. The categories are not intended to provide some type of descending hierarchy. In my judgment (e) is intended to provide for an equivalent situation to those described in (a) to (d) but where the treatment can be provided without the debtor being removed or detained without their consent, which is the central feature of the powers conferred by the provisions of the Mental Health Act 1983 referred to in (a) to (d). 28. Sub-paragraphs 28(2)(a) to (d) each deal with a situation where a person is removed or detained without their consent or that of a nearest relative or against their will for assessment, treatment or protection and the nature of the mental health disorder is such that the proposed assessment, treatment or protection is for their benefit and/or for that of the public even though the person concerned may not agree. The hurdles for satisfying the conditions specified in (a) to (d) are necessarily high, directly conflicting with the individual’s right to liberty and their free will. In my judgment the use of the phrase ‘mental disorder of a serious nature [my underlining]’ is a plain indication that before a mental health crisis moratorium is put in place in reliance on sub-paragraph (e) evidence is required to demonstrate that the debtor is suffering from a disorder of a severity which in other circumstances would justify overriding the free will of the debtor in detaining or removing them in their own best interests or that of the public. 29. As to condition (2) the care or treatment must be of a nature and type designed to meet a crisis or emergency or of an acute nature. There is no further statutory definition of those words so far as I am aware but I note the repeated reference to crisis in Regulation 28(3) which defines the type of specialist who is to be providing the treatment. In my judgment the words crisis, emergency and acute are to be read disjunctively, in the sense that they are alternatives, but consistently with each other, in that they each relate to and reflect alternative states of urgency and severity. It is obvious therefore that not all care or treatment will satisfy this second condition which requires something well beyond general or routine treatment.”

“5.10. The creditor cannot request a review of this kind on the grounds that they disagree about the individual’s mental health crisis treatment. Nor can they challenge an AHMP’s professional decision-making via this route. 5.11. If the debt adviser does consider that a creditor’s objection is valid, and it is necessary to cancel the MHCBS in respect of some or all of the breathing space debts, they will inform the Insolvency Service, who will notify the nominated point of contact and relevant creditors. 5.12. If the debt adviser does not cancel the MHCBS, and the creditor remains unhappy with the debt adviser’s decision, the creditor can also ask a court to review whether a MHCBS should be cancelled, on the same grounds (unfair prejudice or material irregularity). Again, the court is not considering the individual’s mental health crisis treatment and cannot be asked to review an AMHP’s professional decision-making via this route. 5.13. If the court decides to cancel the MHCBS in respect of some, or all, of the breathing space debts, they will inform the Insolvency Service, who will notify the nominated point of contact and relevant creditors.”

“(1) The court may make an order for specific disclosure or specific inspection. (2) An order for specific disclosure is an order that a party must do one or more of the following things – (a) disclose documents or classes of documents specified in the order; (b) carry out a search to the extent stated in the order; (c) disclose any documents located as a result of that search. (3) An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2).”

“6.1 A party wishing to seek disclosure of documents in addition to, or as an alternative to, Initial Disclosure must request Extended Disclosure. No application notice is required. However, the parties will be expected to have completed the Disclosure Review Document pursuant to paragraph 7 and following below. 6.2 Save where otherwise provided, Extended Disclosure involves using Disclosure Models (see paragraph 8 below) in respect of Issues for Disclosure which have been identified (see paragraph 7 below). 6.3 The court will only make an order for Extended Disclosure that is search-based (ie Models C, D and/or E) where it is persuaded that it is appropriate to do so in order fairly to resolve one or more of the Issues for Disclosure. 6.4 In all cases, an order for Extended Disclosure must be reasonable and proportionate having regard to the overriding objective including the following factors— (1) the nature and complexity of the issues in the proceedings; (2) the importance of the case, including any non-monetary relief sought; (3) the likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence; (4) the number of documents involved; (5) the ease and expense of searching for and retrieval of any particular document (taking into account any limitations on the information available and on the likely accuracy of any costs estimates); (6) the financial position of each party; and (7) the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost. 6.5 A request for search-based Extended Disclosure (ie Models C, D and/or E) must specify which of the Disclosure Models listed in paragraph 8 below is proposed for each Issue for Disclosure defined in paragraph 7 below. It is for the party requesting Extended Disclosure to show that what is sought is appropriate, reasonable and proportionate (as defined in paragraph 6.4). 6.6 The objective of relating Disclosure Models to Issues for Disclosure is to limit the searches required and the volume of documents to be disclosed. Issues for Disclosure may be grouped. Disclosure Models should not be used in a way that increases cost through undue complexity. 6.7 It is important that the parties consider what types of documents and sources of documents there are or may be, including what documents another party is likely to have, in order that throughout a realistic approach may be taken to disclosure. [ … ] 8.1 Extended Disclosure may take the form of one or more of the Disclosure Models set out below. [ … ] Model D: Narrow search-based disclosure, with or without Narrative Documents (1) Under Model D, a party shall disclose documents which are likely to support or adversely affect its claim or defence or that of another party in relation to one or more of the Issues for Disclosure. (2) Each party is required to undertake a reasonable and proportionate search in relation to the Issues for Disclosure for which Model D disclosure has been ordered. Any appropriate limits to the scope of the searches to be undertaken will be determined by the court using the information provided in the Disclosure Review Document.”

“74. The relationship between the inherent powers of the court to control proceedings and the Rules of the Supreme Court was considered by Sir Jack Jacob in his Hamlyn lecture ‘The inherent jurisdiction of the court’: Current Legal Problems 1970 p 23, 50-51. He said that the powers of the court under its inherent jurisdiction ‘are complementary to its powers under Rules of Court; one set of powers supplements and reinforces the other … where the usefulness of the powers under the Rules ends, the usefulness of the powers under inherent jurisdiction begins.’ In an illuminating article entitled ‘The inherent jurisdiction to regulate civil proceedings’ [1997] LQR 120, the late Professor Martin Dockray said at p 128 that the Rules of the Supreme Court may limit the inherent powers of the court where there is a conflict between them. Thus ‘the inherent jurisdiction may supplement but cannot be used to lay down procedure which is contrary to or inconsistent with a valid Rule of the Supreme Court’. In our judgment, this last statement was correct in law, being supported by the authorities cited in the article which included Moore v Assignment Courier Ltd [1977] 1 WLR 644F-645B and Langley v North West Water Authority [1991] 1 WLR 697, 709D. [ … ] 76. The position pre-CPR, therefore, was that the inherent powers of the court could not be invoked to do something which was inconsistent with a rule. Thus, if a rule gave a wide discretion to the court to decide whether or not to make a particular order, the court could not exercise its inherent powers to make such an order ex debito justitiae as if it had no discretion, or a discretion which could only be exercised one way in accordance with the rules. 77. The same position has obtained since the introduction of the CPR. The CPR are a ‘new procedural code with the overriding objective of enabling the court to deal with cases justly’ (rule 1.1(1)). There is no doubt that the court continues to have the inherent jurisdiction to regulate the conduct of civil litigation: see section 19(2)(b) of the Supreme Court Act 1981. The existence of the inherent jurisdiction is also implicitly acknowledged by CPR 3.1(1) which provides that the list of powers in that rule ‘is in addition to … any powers it may otherwise have’. 78. In our judgment, therefore, where the subject-matter of an application is governed by rules in the CPR, it should be dealt with by the court in accordance with the rules and not by exercising the court's inherent jurisdiction. There is no point in exercising the court's inherent jurisdiction if that would involve adopting the same approach and would lead to the same result as an application of the rules. And it would be wrong to exercise the inherent jurisdiction of the court to adopt a different approach and arrive at a different outcome from that which would result from an application of the rules.”

“37. The third basis for the jurisdiction of the court [to order disclosure] is under CPR 3.1(2)(m). It was accepted for the defendant that the court has an inherent jurisdiction to make an order to disclose documents but submitted that such power should not be exercised in a way that cuts across the Practice Direction. I accept that submission which seems to me to be in accord with dicta in the authorities…”

“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

“94. In determining whether the impugned measures were ‘necessary in a democratic society’, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient and whether the measures were proportionate to the legitimate aims pursued. 95. In this connection, the Court will take into account that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention (art. 8). Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community … The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention (art. 8) … 97. At the same time, the Court accepts that the interests of a patient and the community as a whole in protecting the confidentiality of medical data may be outweighed by the interest in investigation and prosecution of crime and in the publicity of court proceedings … where such interests are shown to be of even greater importance. 98. It must be borne in mind in the context of the investigative measures in issue that it is not for the Court to substitute its views for those of the national authorities as to the relevance of evidence used in the judicial proceedings … ”

“103. … The interference with the applicant’s private and family life which the contested orders entailed was thus subjected to important limitations and was accompanied by effective and adequate safeguards against abuse … [ … ] 105. In the light of the foregoing, the Court finds that the various orders requiring the applicant’s medical advisers to give evidence were supported by relevant and sufficient reasons which corresponded to an overriding requirement in the interest of the legitimate aims pursued. It is also satisfied that there was a reasonable relationship of proportionality between those measures and aims. Accordingly, there has been no violation of Article 8 (art. 8) on this point. [ … ] 110. … the Court considers that the seizure of the applicant’s medical records and their inclusion in the investigation file were supported by relevant and sufficient reasons, the weight of which was such as to override the applicant’s interest in the information in question not being communicated. It is satisfied that the measures were proportionate to the legitimate aims pursued and, accordingly, finds no violation of Article 8 (art. 8) on this point either.”

“36. The applicant submitted that the disclosure of her medical records by the clinic had exceeded the Office's request. Whilst the Office had only asked for medical records relating to the time of her back injury, allegedly sustained at work on 9 October 1981, the clinic had produced records covering a period up to February 1986. … 37. However, in the Courts' view the terms of the above provision suggest that the decisive factor in determining the scope of the imparting authority's duty to provide information is the relevance of the information rather than the precise wording of the request. The Court is satisfied that the interference had a legal basis and was foreseeable; in other words, that it was ‘in accordance with the law’. 38. The object of the disclosure was to enable the Office to determine whether the conditions for granting the applicant compensation for industrial injury had been met. The communication of the data was potentially decisive for the allocation of public funds to deserving claimants. It could thus be regarded as having pursued the aim of protecting the economic well being of the country. Indeed this was not disputed before the Court. On the other hand, the Court does not consider it necessary to examine the second aim invoked by the Government, namely protection of the ‘rights ... of others’. [ … ] 41. The Court reiterates that the protection of personal data, particularly medical data, is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. The domestic law must afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention. [ …] 44. Having regard to the foregoing, the Court considers that there were relevant and sufficient reasons for the communication of the applicant's medical records by the clinic to the Office and that the measure was not disproportionate to the legitimate aim pursued. Accordingly, it concludes that there has been no violation of the applicant's right to respect for private life, as guaranteed by Article 8 of the Convention.”

“45. As a final alternative Mr Phillips relies on the provisions of Article 8 of the European Convention on Human Rights and argues that a power to require the appellants to hand over records without first inspecting them to see if there was good reason for requiring them to be handed over would be an interference with the appellant's right to privacy that was greater than necessary. However, this argument, which first must surmount the hurdle of whether a limited liability company has a right to privacy of the sort invoked here, is emasculated as soon as the appellant abandons the proposition that prior inspection is required before the documents can be handed over. It was pursued but faintly before us, and in my judgement has no substance. 46. Accepting for the purpose of the argument the proposition that Article 8 and the right to respect for private life could apply to a limited liability company operating a transport business, as to which I express no opinion, the interference here would plainly be justified under paragraph 2 of Article 8 if it was ‘in accordance with the law’ and ‘necessary in a democratic society in the interests of … public safety.’ Both those conditions are fulfilled. The requirement to hand over the tachograph sheets has a basis in domestic and indeed European Community law. It is necessary in a democratic society in the interests of public safety for the protection of passengers and road-users who may be endangered by breaches of the obligations that the records are designed to prevent. As to the question of proportionality, there is nothing to suggest that the powers here conferred on the inspectorate could be characterised by shortcomings ‘so serious that the execution of the order can, in the circumstances of the case, be regarded as disproportionate to the legitimate aim pursued’: see Chappell ECHR 30th March 1989, where the Court was considering the use of an Anton Pillar [sic] order obtained against the claimant.”

“[22] In my opinion Cazalet J was right to claim the power to attach conditions to an order directing the release of case papers in Children Act proceedings to a third party. Without that power the court would be left with a crude choice between directing or refusing release. Striking a balance between competing public interests, often across the interface of distinct justice systems, requires much more sophisticated powers. In my opinion Munby J was correct in law to claim that power and equally correct to proceed to a discretionary exercise of that power having regard to the relevant facts and circumstances in so far as they were revealed to him. [ … ] [24] Accordingly in my judgment this appeal can and should be decided within those parameters. I would not want this judgment to be construed or used as laying down any general propositions beyond the context of Children Act proceedings and their aftermath.”

“57. In my judgment, similar reasoning is applicable to the proposed disclosure within the GDC (from registrar to Investigating Committee to Practice Committee) in this case: i) The proposed disclosure pursues legitimate objectives specified in Article 8(2), as being ‘in the interests of … public safety’, ‘for the protection of health and morals’ and ‘for the protection of the rights and freedoms of others’ … The investigation of the allegations against Dr Al-Naher regarding his fitness to practise is necessary to ensure that public confidence in the dental profession is maintained, so that people will not be deterred from seeking dental or other medical treatment when they need it … ii) The proposed disclosure is ‘in accordance with the law’, since it will be made pursuant to the clear statutory regime in the 1984 Act. The provisions of that Act provide a proper legal basis for the disclosure and are accessible and foreseeable in their effect; iii) The proposed disclosure of the patient records also satisfies the requirement of being ‘necessary in a democratic society’. It is proportionate to the important public interest which is being promoted by the professional proceedings against Dr Al-Naher and is subject to appropriate safeguards in that regard. The proposed disclosure is within a comparatively small circle of people. As explained above, the GDC, the Investigating Committee and its members and any Practice Committee and its members who receive the patient records at issue will all be subject to obligations of confidentiality in relation to those records, such that they may only use and disclose them for the purposes of carrying out the necessary investigation into the allegations that Dr Al-Naher's fitness to practise is impaired … Care will be taken to ensure that any other persons involved in a hearing before a Practice Committee will understand that they are subject to similar obligations of confidentiality. Care will also be taken to ensure that private information regarding the health of identified individuals will not be circulated more widely than is necessary nor released unnecessarily into the public domain; iv) In my view, these features of the legal regime offer sufficient safeguards with respect to the protection of the fourteen patients' interests so that the present case is covered by the judgment in MS v Sweden. … v) Civil sanctions may also be available personally under the DPA against persons who are given copies of the patient records, including in particular members of the GDC's committees, if they make improper use or disclosure of the data contained in those records. … The DPA thus provides additional safeguards; vi) The conclusion that there are adequate safeguards to ensure that the patient records are only used for proper purposes and that there is no disclosure beyond what is necessary for those purposes is also reinforced when one bears in mind the high professional standing of GDC committee members and the steps taken by the GDC to ensure that they have a good understanding of the importance of maintaining confidentiality. It is further supported by the procedure which the GDC has followed in this case in giving notice to the patients of what it proposed to do … vii) In view of the strength of the public interest in allowing disclosure of the patient records for the GDC's investigation and the safeguards which are in place to ensure that the records are only used for that purpose, which make the case closely similar to MS v Sweden, Article 8 cannot be taken to impose an obligation on the GDC to obtain an order of the court before arranging for the onward disclosure of the patient records to the Investigating Committee and then to a Practice Committee … ”

“46. I asked whether a deceased person has a right to privacy: both parties thought that she did and I agree that persons have the right in general to expect their medical records will remain confidential even after their death. I also accept that the deceased family have a right to a private life and therefore have some expectations that their deceased mother’s medical records will remain confidential. 47. But those rights must be balanced against the public interest in the collection of the right amount of tax. Having decided that the question of whether there was a transfer of value by the deceased 17 days before her death when she sold the farm in return for the benefit of an annuity is an issue in this appeal, it follows that her medical condition and in particular what she knew about her medical condition may be critical to determine whether the sale was at an undervalue. There is a public interest in the full facts being known in order that the Tribunal is more likely to reach the right conclusion on whether there is tax liability on the executors in respect of the transfer of the farm.”

“23.24. However, there is still no general power for the court to order a medical examination in a case where the condition of a party is in issue. Nevertheless, the common law has found a way, in its inherent jurisdiction to stay proceedings for good cause. Thus, where a defendant in a personal injuries case in light of further evidence sought a further medical examination of the plaintiff, but the plaintiff refused to submit voluntarily, the Court of Appeal ordered a stay of the proceedings until the examination was completed. The reason is that a claimant who sues for damages for personal injury must afford the defendant a reasonable opportunity to have him medically examined. By choosing to sue he forgoes his right to protest at the invasion of his privacy which a medical examination involves. This reasoning does not apply to defendants, yet in at least one case the court has held that it could strike out the defence of a defendant who unreasonably refused to submit to a medical examination when his memory was in issue. … ”

“the defendant in not agreeing to submit to a medical examination of any sort was preventing the court from deciding whether he did or did not remember the facts that would in turn establish where the liability lay in that case. It was a case that was closely related to a personal injury claim where parties do submit to medical examination. The present case could not be further factually from the Lacey case … ”

“I have never refused to be medically examined. I do not however agree to be medically examined by a doctor appointed by a creditor who does not know me; has never treated me; and frankly would have very little to add anything to the evidence that my own treating team of doctors could bring to the court.”

“80. It is wrong in principle for there to be two different experts providing a report on the same topic unless there is a very good reason for needing two experts.”

“Expert evidence shall be restricted to that which is reasonably necessary for the disposal of the proceedings.”