Kircher v Hillingdon Primary Care Trust [2006] EWHC 21 (QB)

Claim No. HQ 05X01391

[2006] EWHC 21 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

Date 13 January 2006

Before

DAVID FOSKETT QC

(Sitting as Deputy High Court Judge)

Between

DR MICHAEL KIRCHERClaimant

HILLINGDON PRIMARY CARE TRUSTDefendant

JUDGMENT

Introduction

[1]By this application the Claimant, Dr Michael Kircher, a Consultant Psychiatrist, seeks interim relief against the Defendant, his employers, the Hillingdon Primary Care Trust, in relation to a letter dated 26 May 2005 terminating, or purporting to terminate, his contract of employment.

[2]In essence, by his Application Notice he seeks an interim injunction until trial preventing the Defendant from acting further upon that letter until the disciplinary procedures provided for within his contract of employment have been exhausted if that route is the route it chooses to resolve the current difficulties. He also says that there are other options they might choose to pursue in the meantime. The Defendant resists the application saying in a nutshell(a) that it is not obliged to go through the disciplinary procedures,

(b) that the notice provision within the contract (upon which it says in effect it relied when writing to the Claimant on 26 May) takes precedence over any provision concerning disciplinary procedures,

(c) he has been dismissed in a way that has brought to an end his contract such that there are no disciplinary procedures left to employ and

(d) in any event, damages will constitute a suitable remedy for any breach of contract on its part and that, accordingly, no injunctive relief is appropriate. There is an issue about whether I am to apply the American Cyanamid principles to this application or those referred to in the judgment in Zockoll Group Ltd v Mercury Communications Ltd

[1998] FSR 354

. The principles enunciated in the latter case concern the approach to granting an interim mandatory injunction.

[3]I will turn to these issues below, but I should record briefly two matters that are themselves preliminary to the substantive application.

Preliminary matters

[4]First, the Claimant’s case in support of the interim application relied in part on certain material that was arguably “without prejudice” and thus privileged from disclosure. The Defendant took objection to the use of that material and invited me to rule on its admissibility as a preliminary issue. It was accepted that in order to fulfil that task I should, in accordance with usual practice, read and consider the relevant material de bene esse on the established basis that should I rule against its admissibility I would put that material out of my mind on the substantive application. I heard argument from Mr Moon for the Defendant and Mr Sutton for the Claimant on these issues and gave an ex tempore judgment in which I acceded to certain objections from the Defendant and rejected others. It followed that certain material that I had read and considered for the purposes of making this ruling became inadmissible on the substantive application. I invited the parties to agree a redacted version of the Claimant’s main witness statement to reflect my ruling. This was, in due course, done and in accordance with standard judicial practice I have taken into account on this application only the admissible material.

[5]Second, and somewhat surprisingly in the light of the approach that the Defendant agreed I should adopt, after giving my ruling I was then invited to recuse myself from further consideration of the application because I had seen material that I had ruled inadmissible. I heard argument from Mr Moon and Mr Hendy QC (for the Claimant) on this issue and in a further ex tempore judgment declined the Defendant’s invitation to recuse myself.

Essential background

[6]Since this is merely an interim application I will confine myself to what seems to me to be the essential factual background for the purposes of determining that application. Regrettably, even the shortened version of the story is quite lengthy and complex, but the full story is probably even more complex and may yet need to be unfolded in due course.

[7]The Claimant studied in Germany and the Netherlands and is, as I understand it, registered as a medical practitioner in each country. His specialities were in the fields of psychiatry and neurology. He was appointed to the UK Specialist Register as a psychiatrist and also trained as a GP before being appointed to the position of Consultant Psychiatrist with the then Hillingdon Hospital NHS Trust on the terms referred to in paragraphs 8 and 9 below.

[8]In July 1998 the Claimant was offered appointment as a Consultant Psychiatrist at Hillingdon on the basis of a six-month contract with effect from September 1998. In March 1999 this appointment was converted into a permanent post.

[9]The appointment was subject to the Terms and Conditions of Service of the Trust Hospital Medical and Dental Staff. Those terms and conditions contained two material conditions for the purposes of this application:(a) paragraph 7 of the letter of appointment states that the employment “is subject to three months’ notice on either side”;

(b) whilst there is some difference between the parties about whether paragraph 2 or paragraph 13 of the letter of appointment is the operative paragraph for this purpose (and nothing turns on this), it is accepted that by virtue of one or other of those paragraphs certain disciplinary provisions were incorporated into the contract, one feature of those disciplinary provisions being what is known as the HC(90)9 procedure concerning matters of professional conduct and professional competence. I will return to this procedure below.

[10]Although there had been rumblings prior to May 2002, the difficulties which have given rise to the present application first surfaced in an unsigned letter, apparently emanating from the "South West Community Mental Health Team", dated 28 May 2002 and addressed to the Claimant. It was apparently handed to him by Mrs Noreen Rice, to whom I will refer in paragraph 11. I need not quote the whole letter, its essential flavour being clear from the first two paragraphs which I do quote:

“We would like to express our concerns regarding the difficulties that have arisen in our multidisciplinary referral meeting. This focuses on the team’s working relationship with you. Some team members have felt that there is a lack of respect for their clinical judgments and opinions with regards to case discussion. Views are not listened to when the team is discussing an appropriate course of action and some team members have expressed feelings of intimidation and bullying behaviours. This leads to members feeling unable to contribute to the discussion and decision-making process.”

The letter concluded with an invitation to the Claimant to express “any views that [he] may have with regards to resolving these difficulties.”

[11]The Community Mental Health Team (‘CMHT’) of which the Claimant was a part moved to a unit called Mill House in August 2000. Mill House was a Community Mental Health Resource Centre and Mrs Noreen Rice became its Locality Manager at this time. An internal inquiry commissioned in June 2002 prepared a report dated 4 November 2002. The investigation that led to this report and the report itself are the subject of considerable criticism on the Claimant’s part for reasons to which I will refer later, but it is worthy of note that its authors concluded that the Mill House working environment was “extremely stressful”, that “proper team working was never established after the move to Mill House” and that “the team has been very dysfunctional at many times during the last year or so.” It concluded that the reasons for the difficulties were “complex” and that responsibility lay “with many team members and service managers.” Amongst other things, the report drew attention to conflicts that had arisen between the medical team and the management team referring to it as a “power struggle”. Whilst the report was critical of some aspects of the Claimant’s style and conduct, it recorded that he was regarded “as a good doctor by everyone we have interviewed”. The report also concluded that the letter of 28 May “was written without the knowledge, involvement and support of many senior members of the [CMHT].”

[12]I interrupt the chronology to record that the full report of this inquiry was not made available to the Claimant and his advisers until 14 August 2005 although a summary of certain matters contained in the report was made available to him in December 2002.

[13]Although the letter of 28 May was addressed to the Claimant personally and marked “private and confidential”, it is clear that its contents had become known more widely. According to the Claimant, the Chief Executive of the Trust, Mr David McVittie, was in possession of a copy the day after the Claimant had received it. On 16 July the Human Resources Manager – Medical Staff, Carole Band, wrote to the Claimant informing him that, in the light of the letter of 28 May, a decision had been made by Dr Julia Palmer (a Consultant Psychiatrist), who was the Associate Medical Director for Mental Health, to appoint Dr Diz Shirley, Associate Medical Director, to investigate the allegations of “personal performance, conduct and behaviour” on the Claimant's part in accordance with section 3 of the Trust’s Disciplinary Policy. Dr Shirley is (or was at the material time) a Consultant Radiologist with the Trust.

[14]On 24 July the Claimant wrote an open letter addressed to the “South West Community Mental Health Team” in which he referred to “serious difficulties” that existed within the team arising from a number of matters including the “new management structure and major changes in working procedures” and lack of resources. He asserted that the atmosphere thus created had caused “team work and respect for the role and responsibility of the individual health care professional [to have been] replaced by a blame culture.” He drew attention to the proposition that the Consultant Psychiatrist was the “clinical leader of the multi-disciplinary team (not the community mental health team manager).” I will not quote the whole of the letter, but that which I have quoted gives a sufficient flavour of his view of the reason why things had not been working well. He emphasised his role as the “responsible medical officer” who would be accountable if wrong decisions or inappropriate interventions in relation to the care of a patient had been made.

[15]On 25 July he wrote to the Director of Human Resources, Mr David Shields, referring to Carole Band’s letter of 16 July. He said that the letter was “full of generalities” and addressed “predominantly matters of professional misconduct”. He said that he intended to obtain the advice of the Medical Protection Society.

[16]Shortly after this the Claimant went on sick leave. He received a letter from Dr Shirley dated 27 August inviting him to a meeting on 11 September (also to be attended by Carole Band) to enable her to carry out her investigation into the complaints made. It should, perhaps, be observed that on 19 August Dr Shirley had held a meeting with the “South West Community Health Mental Team”, though none of the medical staff were present. Doubtless it would be possible, should it be necessary in due course, to identify who was present at this meeting (all those who contributed being referred to only by their initials in the note of the meeting now available). According to Dr Shirley’s final report, 22 members of the Community Mental Health Team were present. It is clear that Mrs Rice was present and contributed to what was said. The notes of the meeting (some 9 typed pages which were provided to the Claimant anonymously at a later stage), if accurate, suggest that its focus was upon the allegations made in the letter of the 28 May and the Claimant's way of dealing with people in his capacity as a Consultant. A number of specific matters concerning his approach were raised. It appears that Dr Shirley was sufficiently concerned by what she heard from those present to advise the Trust to convert the Claimant's sick leave into “gardening leave” immediately, to prevent him from entering Trust premises unsupervised and to prevent him from seeing any patients, either on or off Trust premises. I will say more about Dr Shirley’s involvement in due course.

[17]The Claimant had sought the assistance of the Medical Protection Society which, in turn, had asked Mr John Mitchell of Clyde and Co to advise the Claimant and to act for him. Mr Mitchell wrote a lengthy letter to Dr Shirley dated 9 September 2002. He raised a number of matters and challenged the appropriateness of seeking to investigate the allegations on the basis that they constituted “personal misconduct” (which would have fallen outside the scope of HC(90)9). He drew attention to what the Court of Appeal had said in December 2000 in Saeed -v- Royal Wolverhampton NHS Trust

[2001] ICR 903

“If there is any doubt about the matter a Trust would be well advised to proceed down the professional conduct route in any event…. In a contract such as this, if there is any overlap between personal and professional conduct, a professional conduct route must be taken. Further, if it is known that the doctor is suggesting that there was a valid clinical reason for his behaviour then a Trust would be well advised to adopt the professional conduct route unless that suggestion is so outlandish that it can be confidently ignored.”

Mr Mitchell emphasised the Claimant's position, namely, that if any disciplinary action was to be considered (the need for which he refuted), it would be in the context of professional, rather than personal, misconduct and, accordingly, that the HC(90)9 procedure should be invoked.

[18]It is, perhaps, worth noting at this stage that whilst the House of Lords in Skidmore -v- Dartford and Gravesham NHS Trust

[2003] ICR 721

, in a decision given in May 2003, disagreed with one aspect of the Court of Appeal’s analysis in Saeed, it did not disagree with this general proposition and indeed endorsed the view that the expression “professional misconduct” in HC(90)9 is to be given a broad interpretation.

[19]Mr Mitchell’s letter appears to have had an impact and the meeting proposed for 11 September was postponed to 26 September when, according to Dr Shirley’s letter of 11 September, it would be “an informal meeting” which was “not being held under any Trust disciplinary policy nor under the provisions of HC(90)9.” The aim of the investigation, it was said, was to look at the complaints made in the letter of 28 May with a view to “establish the facts based on evidence gathered and to find the point of truth around these complaints.” She said the inquiry “is broadly based and is looking at many service issues.” In her final report she recorded that the changed emphasis of the investigation occurred on 9 September. In a letter of 25 September, Mr McVittie explained that the investigation was not being carried out in line with the Trust’s disciplinary procedures, but was to look at the concerns raised in the letter of 28 May and “to establish the facts and key issues.” He said that since the investigation was “informal…we would expect that this is perceived as an open process, the main concern of which is to improve the existing situation within Mill House.”

[20]The Claimant attended the meeting with Dr Shirley on 26 September. Carole Band was present and took notes, a typed version of which was supplied with the full report when it was disclosed on 14 August 2005. Whilst I restrict my comment to the minimum necessary since this is an interim application, it does appear to be the case that none of the specific matters concerning the Claimant's conduct raised at the meeting on 19 August were put to him for his comment at the meeting with Dr Shirley. The note does, however, reveal that the Claimant would welcome a proper disciplinary investigation in which members of staff would be interviewed by “a tribunal” when the evidence would “come out”.

[21]Until that meeting he had been on paid leave. Shortly after the meeting he was invited to take further paid leave whilst the investigations continued. He declined that suggestion and Mr McVittie decided to suspend him. In his letter of 2 October 2002 Mr McVittie said that the suspension was not being taken under any disciplinary policy. Mr Hendy asserts that there was no contractual justification for this suspension, a point made in the letter from Mr Mitchell to Mr McVittie dated 29 October 2002. Mr McVittie replied substantively to that letter on 15 November 2002, indicating that Dr Shirley had completed her investigation and provided her report. In relation to the suspension he said this:

“Whilst, in procedural terms, we have had to suspend Dr Kircher under the Trust’s disciplinary procedure, we are not treating this as a disciplinary issue at this stage. Dr Shirley’s investigation was a wide ranging one and was not carried out under a specific Trust policy, but was a comprehensive review of a range of issues raised relating to team functioning and service delivery at Mill House.”

[22]Mr McVittie’s letter envisaged an informal meeting with the Claimant shortly thereafter and on 6 December such a meeting, attended by the Claimant, Mr Mitchell, Mr McVittie and Dr Palmer took place. The Claimant was not provided with a copy of Dr Shirley’s full report, but a summary was prepared which was provided to him and Mr Mitchell. It said explicitly that “it is not to be shown to any members of the Mill House Community Mental Health Team.”

[23]The discussion on 6 December focused on the Trust’s suggestion that the Claimant should be seconded to another Trust for 6 months during which he would undertake further training and mentoring. Before the Claimant had taken advice about that and considered his position fully, on 17 December the Trust supplied a document to the Mill House staff entitled “summary of the investigation by Diz Shirley and Carole Band”. Under a heading entitled “Allegations Concerning Dr Kircher” the following appeared:

“It is clear from the investigation that aspects of Dr Kircher’s style and behaviour with staff and patients led people to be concerned and these concerns were found to be valid. Dr Kircher has met with David McVittie and there is an ongoing discussion, which is confidential to Dr Kircher. We do not envisage, in the short to medium term, Dr Kircher returning to work at Mill House. It would not be appropriate to provide feed back in more detail than this or the Trust would breach confidentiality.”

Over the page and under a heading entitled “Wider Issues in the CMHT”, a number of findings were recorded, but the following sentence also appeared:

“The basic outcome is that, however serious and how well founded the allegations were, there is still work for the whole team to complete to become an effective functioning team.”

[24]This document was sent to the Claimant’s solicitor under cover of a letter from Dr Palmer dated 20 December in which she explained why she did not feel it appropriate that the Claimant should see Dr Shirley’s full report.

[25]In January, Mr Mitchell expressed extreme concern about the document referred to in paragraphs 22 and 23 above and the particular quotations highlighted in paragraph 23. In a letter dated 9 January 2003 he said this:

“…it is completely inappropriate for comments such as this about Dr Kircher to be circulated to staff in such a report, which itself claims that it “will not go into personal details about anybody”

. Furthermore, as you yourself say in your letter of 20 December, this was not a disciplinary investigation, and it is grossly prejudicial to say that concerns about Dr Kircher “were found to be valid”, when Dr Kircher has not even been given a proper opportunity of addressing such concerns.” In a lengthy letter dated 31 January 2003, which addressed specifically the suggestion as to secondment made at the meeting on 6 December, Mr Mitchell made significant criticisms of (i) Dr Shirley’s inquiry, particularly her conduct of, as he described it, the “free for all” meeting of 19 August, (ii) the decision to suspend the Claimant and (iii) the document of 17 December. As to that document he said this:

“The summary document given to Mill House staff on 17 December is the last straw. As set out in my letter to you of 9 January, this document makes a number of very damaging comments about Dr Kircher, which it was completely inappropriate to circulate to staff in a report which itself claimed that it “will not go into personal details about anybody”

. The content of this document, and our understanding of what was discussed at Dr Shirley’s meeting on 19 August 2002, has confirmed to Dr Kircher that his position has already been widely prejudged and disparaged, and that it is necessary therefore either for him to have an opportunity to confront the allegations made, or for those allegations to be withdrawn.”

[26]In that letter the suggestion of secondment was rejected because it “would no doubt be interpreted as an admission by [the Claimant] that the allegations and concerns about him [were] indeed valid…”. The Trust was invited to acknowledge, and to inform the staff, that no allegations or concerns in respect of the Claimant had been proven or “found to be valid” and that any suggestion that he had put patients at risk be expressly withdrawn. At the same time, it was suggested that the Claimant would agree to a formal assessment by the NCAA (the National Clinical Assessment Authority, now the National Clinical Assessment Service) by which he and the Trust would agree to be bound. This was not, it was emphasised, an acceptance on his part that his performance to date had been deficient, but to provide an appropriate baseline from which to move forward.

[27]The Trust’s response, through Dr Palmer’s letter of 13 March 2003, was that it was unwilling to give the acknowledgements requested, but was happy to accept the proposal for the NCAA assessment.

[28]The Claimant’s response, through Mr Mitchell’s letter of 16 April 2003, was to emphasise that the suggestion made in the previous letter was a “package” and it was not open to the Trust to “pick and choose” features of it, a proposition to which he reverted in his letter of 10 June. The gauntlet was thrown down in relation to the future resolution of the problem in this way:

“This situation cannot be allowed to continue any longer, and it is clearly now time for the Trust either to reinstate Dr Kircher forthwith or to institute formal disciplinary procedures pursuant to HC(90)9; your letter of 13 March makes it clear that the Trust’s allegations include issues of professional confidence and/or conduct. Would you please therefore confirm within 7 days either that Dr Kircher is to be reinstated forthwith or that the formal disciplinary process will now be pursued very quickly, given the delays which have occurred so far.”

[29]This particular exchange of correspondence coincided with the assumption (on 1 April 2003) by the Hillingdon Primary Care Trust of the mental health responsibilities formerly undertaken by the Hillingdon Hospital NHS Trust.

[30]As will be apparent from paragraph 28, the lines were fairly clearly drawn at that stage unless there was a change in position either by the Trust or on the Claimant’s behalf. There was none and Dr Palmer wrote directly to the Claimant on 26 June 2003 saying that:

“The PCT cannot ignore the seriousness of the allegations and the subsequent investigatory process and we feel you have left us no other option but to move the investigation into the formal disciplinary procedure.”

She said that the process would be begun “over the next few weeks” and that she would write again with further details.

[31]Mr Mitchell followed this up shortly afterwards by asking for confirmation “as soon as possible [of] the precise [disciplinary] process to be followed” to which Dr Palmer replied on 23 July saying that she “should soon be in a position to write advising…of the details of the disciplinary process…”. She also said, in response to a comment made by Mr Mitchell, that “although the Trust has serious concerns about the allegations against [the Claimant], we do not consider them proven; arriving at a finding on the allegations after hearing evidence is the role of a disciplinary hearing.” Mr Hendy draws attention to the contrast between that position and the statements made in the 17 December 2002 document referred to at paragraphs 23 and 24 above. Mr Mitchell, when he chased up Dr Palmer in September 2003, said that the acknowledgement was “too little and too late” and that the “damage has already been done”, referring back to the letters referred to in paragraphs 25 and 26 above.

[32]By 21 October 2003, Dr Palmer was still not in a position to give further information about the disciplinary process. It was not until 29 October 2003, when the first letter from Messrs Mills and Reeves, solicitors instructed on behalf of the Trust, was written that some intimation of the proposed process was given. The relevant paragraphs of that letter are as follows:

“The position is that the complaints made in respect of Dr Kircher have been referred to Dr Palmer who will appoint an investigating officer to undertake a preliminary investigation to particularise allegations, proof witnesses and report upon the allegations and a course of action in accordance with the Trust’s policy. It is agreed that the complaints are a mixture of personal and professional issues and if preliminary investigation determines that further steps are needed, the Trust will not follow its personal disciplinary policy. As you are aware to date, the Trust has conducted an informal service inquiry in respect of the issues at Mill House but has not investigated matters in the context of its disciplinary procedures.” “The Trust provides its assurances that the investigations will be expedited in order that a conclusion can be reached quickly and fairly which is in the interests of everyone concerned.”

[33]Mr Hendy submits that the first of the two paragraphs quoted indicates that the Trust accepted that, if a disciplinary process was dictated, the appropriate procedure would be the HC(90)9 procedure, not any “personal disciplinary” process. For the reasons given later I consider that the furthest I have to go on this application is to decide whether there is a “serious issue to be tried”. On that basis I merely say that, in my judgment, on the material available to me, what Mr Hendy says appears to be a distinctly arguable proposition. A firm of solicitors of the standing and experience in the field of Messrs Mills and Reeve can be expected to know of the relevant procedures and will also, almost certainly, have been aware of the decision of the House of Lords in Skidmore (see paragraph 18 above), the speeches in which were published on 22 May 2003.

[34]Although Mr Mitchell subsequently asserted (with possible justification) that the appointment of “an investigating officer” to conduct a preliminary investigation was not provided for under the HC(90)9 procedure, it is right to observe that a preliminary investigation to establish if there is a prima facie case of misconduct is required and dictated by HC(90)9. It is, as it seems to me, possible that this is what lay behind the suggestion of the appointment of “an investigating officer”. At all events, by 23 December 2003, when Messrs Mills and Reeves replied to a chasing letter from Mr Mitchell, Dr Helen Bond, a Consultant Psychiatrist with the North West Surrey Mental Health Trust and formerly Medical Director of Hounslow and Spelthorne, had apparently been appointed the investigating officer.

[35]It appears that nothing further was heard from or on behalf of the Trust until Mills and Reeve wrote further on 30 March 2004 to which letter Mr Mitchell responded in detail on 27 April 2004. Although objection was taken by Mr Moon to the reception of Mr Mitchell’s letter in evidence, I was unable to see on what basis objection could justifiably be taken. In my ex tempore ruling I characterised the letter as one which, at the very least substantially, invited the Trust to “get its act together” about its approach to the disciplinary proceedings given that by then the Claimant had been suspended for over 18 months. The letter raised the question of whether the appointment of an “investigating officer” was what HC(90)9 contemplated and also raised objection to Dr Bond’s appointment on the basis, it was said, that she was “a former close colleague” of Mrs Catherine Knights, the Divisional Director of Mental Health with the former Hillingdon Hospital NHS Trust. Summarising Mr Mitchell’s letter on the issue concerning the disciplinary process, he invited the withdrawal of all allegations against the Claimant and his reinstatement or, alternatively, the initiation of the HC(90)9 process. He set a deadline for a response as close of business on 4 May.

[36]There was no substantive response to that letter because Messrs Merriman White replaced Mills and Reeve at or about this time. That firm, also very experienced in this area, wrote to Mr Mitchell on 4 May in a letter headed “without prejudice”. I heard argument about this letter and the meeting that took place in consequence and ruled that reference to both was inadmissible. I say no more about that particular period save to record, in fairness to the Trust, that there had plainly been some discussions during that period with a view to resolving the difficult situation that had arisen. It does, however, have to be observed that no active steps appear to have been taken to progress the disciplinary process that Dr Palmer had referred to a year earlier.

[37]Not much happened for several months thereafter (in the sense of communications emanating from the Trust’s side) until Messrs Beachcroft Wansboroughs, another firm of considerable standing and experience in this field, were instructed by the Trust in November 2004. That firm made initial contact with Mr Mitchell by letter dated 10 December 2004. They indicated that they had not yet received the files, but invited him to send a short note setting out the background, what he believed the relevant issues were, whether there were any pressing matters to be dealt with and any proposals that he may have for a resolution of the dispute. Mr Mitchell declined to provide the note and referred to the previous correspondence, particularly the correspondence I have concluded was “without prejudice”.

[38]On 21 January 2005 Beachcroft Wansboroughs, having discussed the position with the Trust, wrote in the following terms to Mr Mitchell (in a letter I have ruled was not written on a “without prejudice” basis):

“As you will recall we were due to meet with our client on 22 December to discuss how to progress this matter to a satisfactory conclusion. We are pleased to advise you that we did have this meeting with our client and discussed all the options that were available. We note that your client is keen to return to work with the Trust and our client would like to proceed along that route. To that end we propose that we hold a meeting with you, your client, us and our client to discuss how we may implement a return to work from Dr Kircher to Mill House with the minimum of delay.”

[39]The proposed meeting was held on 28 February 2005 and, as I concluded in my ruling on the “without prejudice” issue, the focus of the meeting, as was the focus of the letter that led to it, was simply to discuss how the Claimant's return to work at Mill House could be implemented. That appears to have been the mutual objective at that time.

[40]As I have said, this certainly seems to have been the initial intention behind the meeting. However, before the meeting took place the Head of Human Resources at the PCT, Melanie Smith, had canvassed the views of the staff at Mill House about the possibility of a return to work there by the Claimant. The letter she wrote is annexed to her witness statement and invites the recipient “to formally put in writing…any concerns that remain at this point about working with [the Claimant] in the future and why these concerns remain.” The letter also asked for any indication that the recipient might be able to give about having “a positive working relationship with [the Claimant] upon his return to work.”

[41]In a letter dated 23 February 2005 and signed by 17 members of staff at Mill House (only one of whom was medically qualified), concerns about the Claimant’s return to Mill House were raised. I will not quote the letter in detail, but since the Claimant had not worked at Mill House for nearly 3 years it is inevitable that its contents focused largely on historical matters. In the second paragraph of the letter reference is made to the matters concerning the Claimant raised in what was described as “the investigatory report of 2002”, a clear reference to Dr Shirley’s report, as was indeed confirmed subsequently by Beachcroft Wansboroughs. There are two paragraphs in the letter from the Mill House staff that I think I should quote:

“The question of whether Dr Kircher would be able to have a positive working relationship with team colleagues is central. In the period since his removal, no information or evidence has been provided to suggest Dr Kircher’s recognition of his role in conflicts, his provocative approach to management and policy…, acceptance of a level of personal responsibility for his conduct, or his expressed regret for the offence, distress or obstruction he caused. We can only conclude therefore that Dr Kircher’s attitudes and behaviour are unlikely to have altered. This view is further reinforced by Dr Kircher’s apparent drive to return here. The team also feel it important to restate that not all concerns expressed about Dr Kircher’s practice relate to his inter-personal style, nor did all concerns arise within the Mill House staff team. Despite a letter to the team in 2002 suggesting internal team dysfunction to be the source of problems, patient care and other professional concerns were also raised. No information has been received to demonstrate the outcome of complaints related to Dr Kircher’s professional capabilities and knowledge base.”

Mr Hendy has argued that these paragraphs evidence generalised allegations of professional misconduct and lack of competence, most of which had surfaced in the letter of 28 May 2002. He argues, however, that the tenor of the views expressed is different from the tenor with which the views in that letter were expressed. That earlier letter had invited the Claimant's response to the concerns expressed and “any views [he had] with regards to resolving these difficulties.” The letter of 23 February 2005 reflected a hardened attitude and a resolute determination to prevent the Claimant from returning to Mill House. Whilst, as I have said, I am concerned only with whether there is a serious issue to be tried, Mr Hendy’s argument plainly has considerable force.

[42]The attitude displayed in the letter to which I have referred is a reflection of a similar attitude demonstrated when Mrs Catherine Knights canvassed views about the possible return to work of the Claimant in June 2004. In a letter to her dated 2 July 2004 ten members of staff based at Mill House (including six who signed the subsequent letter of 23 February 2005) expressed concerns about the Claimant returning there. It appears from the letter of 2 July 2004 that Mrs Rice had previously assured staff there that his return “was not going to be a reality”.

[43]At all events, by the time the meeting took place on 28 February 2005, the Trust was aware of renewed resistance from this quarter (and indeed others) to the suggestion that the Claimant should return to Mill House. The resistance shown the previous summer does not, however, appear to have prevented the Trust initially setting the objective of his return to work at Mill House as the sole objective, but this was in fact only one of two options put forward by the Trust at the meeting. So far as that option was concerned, it was apparently said at the meeting that the difficulties arising from the attitude of some staff at Mill House were “not insurmountable”. The other option put forward was for the Claimant to take up a substantive consultant post at another centre within the Trust, namely, the Pembroke Centre.

[44]Mr Mitchell wrote a lengthy letter to Beachcroft Wansboroughs dated 17 March 2005 referring to the meeting and, in response to those options, expressing the Claimant’s preference to return to Mill House. Through Mr Mitchell the Claimant reserved his position about the idea of working at the Pembroke Centre. Mr Mitchell did express concerns about the contents of the letter of 23 February and queried whether the signatories had had a full picture of what had happened (or not happened) in the meantime. One matter he mentioned was the fact that all the allegations against the Claimant had been withdrawn by the Trust. He was there referring to something that occurred during the “without prejudice” discussions in May/June 2004 which I have ruled inadmissible. However, it is necessary and appropriate to refer to the withdrawal(a) to make sense of one paragraph in a letter of reply to Mr Mitchell from Beachcroft Wansboroughs which I have ruled was not “without prejudice” (see paragraph 45 below) and

(b) in any event, because Mr Moon, on a limited basis (see paragraph 55 below), has confirmed openly the withdrawal of the allegations.

[45]Following Mr Mitchell’s letter it emerged that the post at the Pembroke Centre was not a substantive full time post and, therefore, so far as the Claimant was concerned, going there was no longer an option to be considered. The logical consequence appears to have been that, to enable a return to work by the Claimant, efforts would have to be made to overcome the resistance of certain members of the staff, something, according to the Claimant’s evidence (which has not been controverted), that was not “insurmountable”. In their substantive letter of reply to Mr Mitchell’s letter, Beachcroft Wansboroughs confirmed that “the allegations against [the Claimant] were withdrawn by the PCT, but it does not necessarily follow that the staff will have changed their minds about their experience of working with [him].” The letter concluded by stating that the PCT’s “primary obligation is to offer a service to its patients”, that in order to do so “it has to have employees who can work together to provide the service”, but that despite “the numerous enquiries and reports into the problems of Mill House the staff appear to be unpersuaded that their view of [the Claimant] is wrong.” The letter ends by saying that the PCT would be writing to Mr Mitchell and the Claimant “shortly with details on the next stage.” The expression “next stage” would not, as it seems to me, convey the impression that dismissal of the Claimant was the next position for the Trust to adopt. Indeed the main substance of Mr Mitchell’s reply dated 10 May was(a) to complain that the Trust had done nothing over the previous 2 years “to reconcile any differences there may have been between [the Claimant] and some members of the staff”, but

(b) to encourage the Trust to formulate a programme by which relationships could be restored.

[46]By the time he wrote that letter Mr Mitchell had consulted Mr Hendy on the Claimant's behalf. The penultimate paragraph of his letter to Mr Lock, the partner at Beachcroft Wansboroughs dealing with the matter, was in these terms:

“Finally, Counsel has advised that we should specifically raise with you in correspondence the possibility that the PCT may decide to dismiss Dr Kircher, however unfairly, simply because it cannot be bothered to go through any constructive process, orbecause it imagines, quite wrongly, that this will be the easiest, quietest and cheapest way out for it. There would of course be no basis whatever for dismissing Dr Kircher, particularly bearing in mind that all allegations against him have been withdrawn, and that the Trust’s stated position for the last 3½ months is that Dr Kircher should return to work “with the minimum of delay”

. However, were the PCT even to consider dismissing Dr Kircher, would you please provide us with sufficient notice of any such intention, so as to enable us to apply to the court for an injunction to prevent dismissal, in accordance with Mr Hendy’s advice.”

[47]Against the background of that request, it is, to say the least, surprising that the next communication was not from Beachcroft Wansboroughs, but from the Trust, through its Chief Executive. It was a letter dated 26 May addressed directly to the Claimant headed “Termination of your employment”. It was in these terms:

“It is with regret that I must write to inform you that I have taken the decision to terminate your employment with the Trust with immediate effect. Your effective date of termination is therefore 26 May 2005. As you will be aware, you are entitled under your contract of employment to 3 months’ notice of termination. On the basis that I am not giving you notice to terminate, and there is no right under the contract to make a payment in lieu of notice, I can make a payment of damages to you representing your earnings for what would have been the notice period, free of deductions for tax and National Insurance up to £30,000. Given that you would have been paid until 31 May 2005 in the May pay run, 5 days of this sum will be paid with your May pay and the rest will be paid to you separately. A cheque in the sum of £18,661.00 will be sent to you shortly together with your P45. The reason for the termination of your employment is that there are irreconcilable differences between you and the Trust in relation to your employment. Working relationships with colleagues have become so strained that the Trust has been petitioned not to allow you to return to work. As the Trust’s primary obligation is to ensure proper patient care and the provision of ethical services, where relationships become so strained that these duties are compromised, as the Chief Executive it is encumbent (sic) upon me to take action. That is what I have done in terminating your employment. Efforts have been made to resolve this situation both by way of an agreed parting of company or a return to work in a different role. Neither of these have (sic) proved to be fruitful. I accept that matters could have been handled better by the Trust and for that I apologise. I am also happy to confirm that this termination is not the result of misconduct on your part. For the reasons I have given above I am not offering you the right of appeal against my decision. I am not proposing to progress your grievance either, and I do not see that it is an appropriate use of time and resources as you will not be working for the Trust any longer. No doubt you will wish to take advice on this letter. The Trust is prepared to offer suitable compensation to you in relation to this matter in the sum of £59,040 (being £56,800 plus £2,240 basic award), representing the maximum an employment tribunal can award you for unfair dismissal. This would be subject to you entering into a Compromise Agreement. I understand that you may also have some annual leave owing, the payment for which we will forward to you separately.”

[48]The letter makes no reference to Mr Mitchell’s letter of 10 May and no explanation, either by the Trust or on its behalf, was given subsequently for ignoring the penultimate paragraph of his letter.

[49]As indicated in paragraph 1 of this judgment, it is in respect of that letter that the Claimant seeks interim relief.

Summary of the position prior to the letter of the 26 May

[50]Before turning to the parameters within which my decision on the application falls to be determined, it may be helpful to summarise the position that had been reached prior to the letter of 26 May. I should, of course, emphasise that, since this is an interim application, nothing I say about any issue is intended to reflect a final finding of fact.

[51]The position seems to be this:(a) the letter of 28 May 2002 made allegations about the way the Claimant conducted himself in his professional capacity, though, certainly at face value, sought a dialogue with a view to resolving the issues thus created;

(b) by 16 July 2002 the Trust (in its then manifestation) had decided to investigate the allegations contained in the letter in accordance with its disciplinary policy relating to personal conduct and appointed Dr Shirley to investigate;

(c) on 19 August 2002 Dr Shirley held a meeting with the non-medical staff at Mill House and, as a result of what she heard, recommended that the Claimant be placed on “garden leave” immediately and be prohibited from entering the Trust premises unsupervised;

(d) on 23 August 2002 Mrs Catherine Knight wrote to the Claimant, who by then was on sick leave, forbidding him from seeing patients in any capacity, either on or off hospital premises, and recommending that he did not enter the hospital premises or make contact with any other staff members;

(e) on 9 September 2002 objection was taken on the Claimant's behalf to dealing with the issues raised on the basis of the personal misconduct procedure and the position taken that, if any disciplinary action was required, it should be on the HC(90)9 basis;

(f) probably on receipt of that letter the Trust decided to refocus the investigation as a broadly-based inquiry into service issues rather than a disciplinary inquiry;

(g) when seen by Dr Shirley on 26 September, no specific matters raised at the meeting on 19 August were put to him for his comment and the Claimant said he would welcome a proper disciplinary investigation;

(h) shortly after that meeting he was suspended;

(i) in early December 2002 discussions took place with a view to the Claimant's secondment to another Trust for 6 months;

(j) on 17 December a document was circulated to staff at Mill House which carried the message that the allegations against the Claimant were “serious and well founded” and were “valid”;

(k) from then on the Claimant's advisers, whilst at the same time endeavouring to discuss with the Trust and its advisers a way through the difficult situation that had arisen, were asking that the record be put straight since the Claimant had never had an opportunity to confront and answer the allegations made;

(l) efforts to resolve the situation during the first half of 2003 failed and by June the Trust said that a disciplinary process (later effectively conceded to be the HC(90)9 procedure) would begin soon;

(m) no real progress was made with that process until the appointment in December 2003 of Dr Bond as “investigating officer” and no obvious progress had been made by March/April 2004 when the Trust’s new solicitors were appointed;

(n) “without prejudice” discussions during May/June 2004 came to nothing;

(o) by November/December 2004, and no certainly no later than January 2005, after Messrs Beachcroft Wansboroughs had been instructed, the Trust had decided that the objective was to get the Claimant back to work at Mill House as soon as possible and discussions focused on this;

(p) the emphasis changed when the views of the staff had been canvassed even though the difficulties associated with that were not thought to be “insurmountable”;

(q) another alternative was found to be impracticable;

(r) despite various renewed representations on the Claimant's behalf and the request for the opportunity to seek interim relief if dismissal was contemplated, the decision to dismiss was made with no such opportunity being afforded.

(a) The interim nature of the injunction sought

[52]The application is for an interim injunction which means a trial of the issues raised in the proceedings is contemplated if the case cannot be resolved. Although there were hints during the submissions that my decision might prove determinative, I am not persuaded that that will be so. The highest it was put was on behalf of the Defendant was when it was said that the grant of an injunction that effectively required the HC(90)9 procedure to be followed is “likely to be determinative because…by the time of the final hearing the HC(90)9 process might well be completed.” When that was drafted I imagine that Mr Moon was contemplating a properly constituted HC(90)9 procedure and not some foreshortened process. Whilst the issue of HC(90)9 figured substantially in the arguments before me, and may indeed prove to be a process upon which the Defendant ultimately is obliged to embark,(a) it is not the only outcome of an injunction preventing the Defendant until trial from acting upon the letter of 26 May 2005 and

(b) even if it is embarked upon, it is by no means certain that the process would be concluded before trial, certainly if, as I would be minded to do, I directed a speedy trial.

[53]As to (a), Mr Hendy has submitted that the Defendant, whilst it is obliged contractually to pursue the HC(90)9 procedure before it considers dismissing the Claimant on the grounds of professional misconduct, could during the pendency of an interim injunction take steps to try to resolve the differences between the Claimant and the Mill House staff which, though now described as irreconcilable, were not long ago described as “not insurmountable”. This would involve a return to work in “an appropriately managed fashion”, to borrow the expression used by Mr Moon in his Second Supplementary Skeleton Argument. Another option is to consider offering him employment somewhere else within the Trust. A yet further option, unless the effect of the injunction was to require the Trust to take some positive action, is simply for the Trust to do nothing until trial (other than not to take any further steps to implement the letter of 26 May) and to take its chances then on the substantive arguments made for each side in relation to the relief sought.

[54]As to (b), the evidence suggests that the preliminary steps necessary for the HC(90)9 procedure to be engaged have either not been taken or have not advanced very far. They appear to have stopped by about March/April 2004. If that is so then reference to the procedural requirements shows that there is a substantial way to go before a hearing could take place and the ultimate decision given. Since I have, as it happens, chaired such an inquiry myself I have some direct experience of what is required. A decision first of all has to be made within the Trust as to whether a prima facie case of professional misconduct exists and, if so, the detailed nature of the complaint or complaints need to be formulated and witness statements in support taken and provided to the practitioner. Since 22 members of the non-medical staff were present at Dr Shirley’s meeting of 19 August 2002 and various other members of the medical staff were interviewed as part of her investigation, it is likely that many witnesses would need to be called if the allegations are to be substantiated. It is, of course, open to the practitioner to give evidence and call witnesses himself. It is, in my experience, usual for witness statements to be exchanged. It is, of course, necessary to engage a suitably legally qualified chairman and to appoint two other members, one of whom must be professionally qualified (presumably, in this case, a Consultant Psychiatrist) from outside the Trust. I note that the disciplinary policy of the Trust (which effectively mirrors the provisions of HC(90)9) anticipates the whole process (including the hearing and the presentation of the report) from the decision as to a prima facie case to a decision about what to do in the light of the report “should not exceed 35 weeks”. Since the Chairman of the inquiry panel has no coercive powers, and since the actual hearing may take longer than the 7 days provided for in the timetable, this period can easily be exceeded in a complex case and, as Mr Moon says in his Skeleton Argument, the time limits set out in HC(90)9 are rarely adhered to.

[55]The question does arise in this case of what kind of HC(90)9 process would take place given that the Trust has said that it has withdrawn the allegations against the Claimant so far as they relate to matters of misconduct. Mr Moon says that, whilst this is so, the allegations have not been withdrawn in so far as they are or may be relevant to the suggestion that there are “irreconcilable differences” between the Claimant and other members of the Mill House staff. Whether this can truly be said to be a withdrawal of the allegations, and quite how tenable and fair such a position is given the Claimant’s case that the alleged irreconcilable differences have arisen, at least substantially, because of the way the Trust has handled the situation from the outset, particularly having regard to the document referred to in paragraph 23, will doubtless be matters for consideration at trial. However, if the only route available to the Claimant to respond to the allegations that lie at the heart of this case is the HC(90)9 route, he might decide, in so far as it is within his gift, to release the Trust from its limited withdrawal of the allegations and let the HC(90)9 procedure go forward so that the allegations can be ventilated fully.

[56]I should, perhaps, say that at the conclusion of the argument I asked Mr Moon how the Trust would see the HC(90)9 procedure going forward if the Trust decided, in the light of my decision, that it should proceed. I raised the question merely to gain some appreciation of the likely practical consequences of any order I might make. He was unable to give me an immediate response, but subsequently informed me (in his Second Supplementary Skeleton Argument) that, subject to the terms of any order I might make, the Defendant will not convene an HC(90)9 panel in order to consider the allegations against the Claimant. He repeated, for the avoidance of any doubt, that the allegations against the Claimant have been withdrawn, although, as I understand it, this is only upon the basis I have already indicated. He submits that to require the Defendant to convene an HC(90)9 panel simply to inform the panel that no evidence against the Claimant will be is presented would be otiose. I invited Mr Hendy’s response to this and he emphasised that the Claimant’s application was, as I have already concluded, not specifically to order the Trust to convene an HC(90)9 panel. He said, as indeed I indicate below, it is a matter for the Trust whether to institute disciplinary proceedings if the Claimant’s employment status is maintained pending trial.

[57]These considerations have reinforced my view that it is right to treat this application as a true interim application and one the outcome of which will not necessarily be determinative of the whole case. Whilst I have been tempted to grasp the nettle now, I think the unusual way in which the situation has developed in this case dictates otherwise. (b). Mandatory or prohibitory injunction?

[58]Mr Moon has argued strongly that I am being invited to grant an interim mandatory injunction and that I must, therefore, apply the principles set out in the Zockoll case.

[59]I accept entirely that if I am indeed being invited to grant (or am contemplating granting) an interim mandatory injunction I must apply the Zockoll principles. But for the reasons explained in part in paragraphs 52 - 54 above, and supplemented by what I say in paragraphs 62-66 below, I do not think that is, in substance, what I am being asked to do even though the terms of the Application Notice might suggest otherwise.

[60]Without derogating from other submissions he made, Mr Moon’s essential argument can be summarised thus:a. that the Claimant has not been dismissed for misconduct, but his employment has been terminated because of “irreconcilable differences between [him] and the Trust in relation to [his] employment” (as the letter of 26 May 2005 says);

b. where termination of employment is founded upon “irreconcilable differences” between an employer and an employee, the employer is entitled to rely upon the notice provision in the contract to dismiss the employee;

c. where that occurs (as, he says, occurred here), the question of invoking disciplinary procedures does not arise;

d. even if the irreconcilable differences arose because of the employee’s misconduct, it is possible for the employer effectively to ignore contractually-imposed disciplinary procedures because of the primacy of the notice provision;

e. although the letter of termination gave the Claimant no notice as such (and indeed, one might add, no right of appeal) and was thus a summary dismissal, the effect of tendering payment in lieu of notice was to bring an effective end to the contract and thus any provisions relating to disciplinary procedures.

[61]The net effect of those arguments, if correct, is that the HC(90)9 procedure is, in the context of this case, either irrelevant or redundant.

[62]I have not been asked to determine as a preliminary issue whether any of these submissions is correct as a matter of law. It is, of course, often better to examine submissions such as these in the factual context to which they are said to relate and one could foresee here, for example, substantial factual issues at trial about the alleged “irreconcilable differences”, how they arose and, indeed, if they exist. Other factual issues may indeed arise as well. Since I am not asked to consider any of these matters specifically as preliminary issues, it appears that the parties are content that the trial judge should adjudicate upon them after hearing full argument in the appropriate factual context. Whilst, obviously, I am concerned to ensure that matters are dealt with in a proportionate and expeditious manner, I think that this must be treated as a reasonable position to take in the context of this case. It seems to have been the course taken before Gray J in Gryf-Lowczowski -v- Hinchingbrooke Healthcare NHS Trust

[2005] EWHC 2407

because the learned judge there was apparently being invited to decide whether to grant a final mandatory injunction requiring the implementation of the HC(90)9 procedure in the particular factual context with which he was presented. The language of his judgment does not suggest that he was dealing with matters on an interim basis and I note that he did hear some oral evidence in the case.

[63]Against that background, it seems to me that, in reality, however the Application Notice is framed, all that I am being asked to do by the Claimant is to prevent the Defendant from acting upon or otherwise treating as valid the letter of 26 May 2005 as an effective termination of his employment pending consideration at trial, amongst other things, of whether the HC(90)9 procedure is something that needs to be invoked. On that basis the injunction sought is of a general prohibitory nature. If I am persuaded that it is to be granted, it may be necessary to consider protecting the Defendant’s interests pending trial.

[64]If that analysis is correct then, despite the extensive citation of authority and argument on each side, I think my conclusions can be expressed relatively shortly.

(c) Status quo

[65]Subject to questions concerning the adequacy of damages as a remedy, matters concerning the balance of convenience and the ultimate discretion of the court, any injunction I might grant would be designed to preserve the status quo. The issue arises as to the date of which the status quo is to be preserved: Mr Moon says the date of the hearing; Mr Hendy says it should be the date of Mr Mitchell’s letter referred to in paragraph 46 above.

[66]On this issue, I have no hesitation in accepting Mr Hendy’s submission. In my judgment, it is plain from cases such as Graham -v- Delderfield

[1992] FSR 313

and Hughes -v- London Borough of Southwark

[1988] IRLR 55

, that the appropriate date for the purposes of the status quo depends upon when the relevant right to claim an injunction is intimated to the party against whom it will be sought and upon the nature and context of the dispute itself. Here the Claimant's solicitor, against the background of longstanding communications between him and the Trust, both directly and through firms of solicitors, asked for notice of any intention to dismiss the Claimant so as to enable the application for an injunction “to prevent dismissal”. It is the kind of request one sees in this and other contexts and one which one normally expects to be acceded to. However, it was not, but since Mr Mitchell’s letter gave clear notice of what the Claimant intended to do if dismissal was contemplated, I think it is right to take that date as the date at which the status quo is to be maintained. On that date the Claimant was still employed and subject to the rights conferred upon him by his contract of employment.

[67]Mr Hendy also argued strongly that the purported dismissal of the Claimant was a tactic (tantamount to an abuse of the process of the court) designed to prevent the court from granting relief that it would otherwise have been minded to grant. He cited Daniel -v- Ferguson

[1891] 2 Ch 27

; Matthias -v- Davies [1970] EGD 370; Von Joel -v- Hornsey

[1895] 2 Ch 774

and Trenberth (John) Limited -v- National Westminster Bank Limited

[1979] P&CR 104

. Mr Moon sought to distinguish these cases on the basis that they did not establish any general principle and were neighbour disputes concerning rights to light. He said, in any event, that there was no evidence here that the Defendant was knowingly trying to subvert the court’s processes. Furthermore, since, as he contends, the Defendant had the right to rely upon the notice provision in the contract, it was not necessary to give notice of the intention to do so.

[68]Whilst I have no doubt that the Court would assume a jurisdiction to ensure that its process is not out-manoeuvred by underhand tactics, given my decision as to when the status quo should be taken for the purposes of the injunction application I do not think it is necessary to reach a concluded view about these submissions: if the status quo is taken at the date of Mr Mitchell’s letter, no prejudice to the Claimant's position arises. I should, perhaps, observe that although Mr Mitchell’s letter was addressed to Beachcroft Wansboroughs, no reply from that firm was forthcoming and no explanation given subsequently for why the reasonable request of Mr Mitchell was ignored. Since, as I have already observed, it is another firm with considerable experience and of good standing in this field, I am inclined to think the matter was largely taken out of their hands. The letter of 26 May from Mr Betts, the Chief Executive of the Trust, indicates very clearly that it was he, Mr Betts, who had taken the decision to terminate the Claimant's employment. His reference in the pre-penultimate paragraph to not wasting “time and resources” on a grievance procedure the Claimant had invoked suggests that, like the Chief Executive in the Trust by which Mr Gryf-Lowczowski was employed (see paragraph 200 of the judgment of Gray J), he wanted to proceed down an avenue that was cheaper than the other avenues that were open at the time, including, of course, the HC(90)9 procedure which, on any view, is likely to be an expensive process in a case such as this. As will be well known, Circular HC(90)9 was withdrawn last year pursuant to a direction of The Secretary of State for Health given on 17 February 2005 and replaced by more informal procedures. Whilst everyone would sympathise with the objective of saving scarce NHS resources, it does have to be achieved vis-à-vis an employee within the appropriate contractual framework. Where serious issues concerning that framework exist, no court will be dissuaded from examining those issues if asked to do so, nor from preserving the position until that examination can take place. If the only way of doing that is to grant an interim injunction, the court has ample powers to make an order which protects the interests of the employee as well as the employer. (d). Are there serious questions to be tried?

[69]Since the American Cyanamid approach is, in my judgment, the correct approach to the present application, the first question is whether the Claimant’s claim raises serious questions to be tried. The principal issue raised is whether the Defendant is obliged to pursue and exhaust the professional misconduct disciplinary procedure provided for in the Claimant's contract of employment before considering whether to dismiss him. But for one matter, I would have been quite content merely to say that Gray J’s decision in Gryf-Lowczowski would have persuaded me that there is a serious issue to be tried here. Gray J referred to a number of authorities relied upon by Mr Hendy in this case: see, in particular, paragraphs 66 and 67 of his judgment. He held that Mr Gryf-Lowczowski had the right to require the Trust in his case to abide by the disciplinary procedures in his contract: see paragraph 70. Since I would be prepared to infer that the contract in that case was identical, or virtually identical, to the Claimant's contract here (see per Lord Steyn in Skidmore at paragraph 13), the same considerations would apply. As I have already said, Gray J appears to have been dealing with the case on the basis of whether a permanent mandatory injunction was appropriate. On that basis I would have said that I need not go any further in deciding whether, in the context of an application for an interim prohibitory injunction, there was a serious issue to be tried.

[70]However, Mr Moon has argued that a fundamental argument was not advanced in that case (and indeed in others) that means that it and the line of authorities mentioned by Gray J are flawed. The argument is that the notice provision in the contract supersedes all other provisions, including the provision relating to disciplinary procedures. He submits that there is strong support for this proposition in Johnson -v- Unisys Limited

[2003] 1 AC 518

and, in particular, in the speech of Lord Hoffmann with which Lords Bingham and Millett agreed expressly. The particular passages relied upon are (quoted in full) as follows:

“38 My Lords, I shall consider first the problem posed by the express terms of the contract. In developing the implied term of trust and confidence and other similar terms applicable to the continuing employment relationship, the courts were advancing across open country. No express provision that BCCI would be entitled to conduct a fraudulent business, or that the employer in W A Goold (Pearmak) Ltd v McConnell would have no grievance procedure, stood in their way. But the employer's right to dismiss the employee is strongly defended by the terms of the contract. In the present case, Mr Johnson's contract provided: "If you decide to leave Unisys Ltd you are required to give the company four weeks' notice; equally, the company may terminate your employment on four weeks' notice ... In the event of gross misconduct, the company may terminate your employment without notice." 39 The effect of such a provision at common law was stated with great clarity by McLachlin J of the Supreme Court of Canada in Wallace v United Grain Growers Ltd (1997) 152 DLR (4th) 1, 39: "The action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the relationship (or pay in lieu thereof) in the absence of just cause for dismissal ... A 'wrongful dismissal' action is not concerned with the wrongness or rightness of the dismissal itself. Far from making dismissal a wrong, the law entitles both employer and employee to terminate the employment relationship without cause. A wrong arises only if the employer breaches the contract by failing to give the dismissed employee reasonable notice of termination. The remedy for this breach of contract is an award of damages based on the period of notice which should have been given." "If you decide to leave Unisys Ltd you are required to give the company four weeks' notice; equally, the company may terminate your employment on four weeks' notice ... In the event of gross misconduct, the company may terminate your employment without notice." "The action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the relationship (or pay in lieu thereof) in the absence of just cause for dismissal ... A 'wrongful dismissal' action is not concerned with the wrongness or rightness of the dismissal itself. Far from making dismissal a wrong, the law entitles both employer and employee to terminate the employment relationship without cause. A wrong arises only if the employer breaches the contract by failing to give the dismissed employee reasonable notice of termination. The remedy for this breach of contract is an award of damages based on the period of notice which should have been given." 75. "At common law a master is not bound to hear his servant before he dismisses him. He can act unreasonably or capriciously if he so chooses but the dismissal is valid. The servant has no remedy unless the dismissal is in breach of contract and then the servant's only remedy is damages for breach of contract." 41 The action for wrongful dismissal could therefore yield no more than the salary which should have been paid during the contractual period of notice. In the present case Mr Johnson's letter of engagement referred to terms and conditions of employment contained in the company's employee handbook, which stipulated expressly that "The company reserves the right to make payment in lieu of notice". Unisys exercised that right. 42. My Lords, in the face of this express provision that Unisys was entitled to terminate Mr Johnson's employment on four weeks' notice without any reason, I think it is very difficult to imply a term that the company should not do so except for some good cause and after giving him a reasonable opportunity to demonstrate that no such cause existed.”

[71]In view of my conclusion that this is truly an interim application and that my decision will not be determinative of the final outcome, I must refrain from expressing any view that could be interpreted as being binding on the trial judge. I have, however, heard substantial argument on the point and it would be wrong not to venture a tentative view because, as presented, the argument, if successful, would defeat virtually any application for an injunction in this kind of situation. I think the most appropriate way of expressing myself for present purposes is simply to say that my tentative view is that Mr Moon would have an uphill task at trial in contending successfully for the proposition upon which he relies. Firstly, the point, if it is a good one, predates Johnson -v- Unisys and would have been available in many of the cases cited to me where injunctions have been granted to prevent the circumvention by an employer of a contractually agreed disciplinary or redundancy procedure. The repeated overlooking of such an obvious answer to many of these cases makes one question whether the point is a good one. Second, Johnson -v- Unisys involved specifically consideration of whether there was an implied term in a contract of employment that the employer’s power of dismissal would only be exercised fairly and for good cause. It did not purport to deal with the issue that arises in this case, namely, the resolution of an apparent tension between two express terms. Third, it would, in my view, be surprising if the House of Lords intended to overrule a substantial line of cases without(a) having been referred to them and

(b) saying expressly that they were no longer to be treated as good law.

[72]I am inclined to the view that the answer to the question of how the Claimant’s contract is to be interpreted may lie in other words of Lord Hoffman, namely, those in Investor’s Compensation Scheme Limited -v- West Bromwich Building Society

[1998] 1 WLR 896

, as modified slightly in the Bank of Commercial International SA -v- Ali

[2002] 1 AC 251

, when dealing with the principles underlying the interpretation of a contract, and the words of Lord Steyn in Skidmore when spelling out why HC(90)9 was promulgated (see paragraph 75 below). That which Lord Steyn recorded would be part of the background material available for consideration when interpreting the contract and may lead to the conclusion that the HC(90)9 procedure was put in place contractually to protect the doctor from merely being given notice when the grounds for contemplating dismissal are allegations of professional misconduct or incompetence. It is not wholly clear how the argument was presented to Gray J in Gryf-Lowczowski – the point may even have been conceded – but I respectfully draw comfort from the conclusion he reached.

[73]I have formulated these tentative views merely to test whether Mr Moon’s submission is so compelling as to make me doubt whether there is a serious issue to be tried. The submission has not had that effect.

[74]I have, of course, approached this issue on the basis that the Defendant, at the time of the letter of determination, was acting within the notice provision. There is an issue to be tried as to whether that is the case. It may be arguable that the true position is that there was a summary dismissal for no justifiable reason: indeed the letter says that no misconduct is relied upon. To that extent, it might be arguable that the notice provision is irrelevant to the question of whether the disciplinary procedure is subservient to it because the notice provision was not as a matter of fact relied upon. Furthermore, although there is debate in the authorities about the effect of unaccepted repudiation of a contract of employment, it is certainly arguable that a repudiation of such a contract by a wrongful summary dismissal which is not accepted by the employee leaves the contract intact at least for the period when notice ought to have been given even though during that period the employee would not be expected to work and the employer would not be expected to provide work. (e). Are damages an adequate remedy?

[75]In his speech in Skidmore, Lord Steyn referred (in paragraph 13) to the report of the joint working party comprising representatives of the Department of Health, the NHS and the professions the recommendations of which were accepted and led to HC(90)9. I will quote the paragraph that Lord Steyn quoted:

“The Working Party recognised the professions' concerns that disciplinary procedures for senior doctors and dentists must ensure that the grounds for dismissal have been fully justified, since a specialist who has been dismissed from an NHS post on professional grounds would be unlikely to find alternative employment elsewhere. The professions felt that the procedures used should be sufficiently weighty to reflect both the long periods of training and competitive selection processes which doctors have undergone before appointment to senior posts, and also the potential gravity of the outcome of such procedures.”

[76]If an injunction is not granted, the Claimant will be deprived of the ability to argue at trial that he should be entitled to have the opportunity to clear his name, or at the very least put the complaints made about him in their true context, before an independent tribunal provided for in his contract of employment. As Gray J concluded in Gryf-Lowczowski, the remedy of damages is not adequate against that particular background. There would be a significant risk, as there was in the Gryf-Lowczowski case, that the Claimant would never find alternative employment, at least within the NHS.

[77]Mr Moon’s Skeleton Argument contains the proposition that if the Claimant's career is already “blighted” it is unlikely that this blight will be wiped away by the HC(90)9 procedure. That is hardly an attractive proposition when the Claimant has been saying for over 3 years that he would welcome the opportunity to have the allegations tested properly. But it seems to me that, even now, if an inquiry panel rejected any allegations advanced of serious professional misconduct, or said that, looked at in their proper context, they were at the low end of the bracket of seriousness, that would be of considerable benefit to the Claimant whatever step the Trust then chose to take following receipt of the panel’s report. That, as I have said, seems to be what underlay the setting in place of HC(90)9 in the first place.

[78]For those reasons, I do not consider that damages would be an adequate remedy.

(f) Balance of convenience

[79]The grant of an injunction will mean that the Claimant’s contract of employment remains in existence and he will be entitled to payment under it, albeit during a period when he will not be working. That is or may be a financial drain from the Trust’s point of view, but is met by the cross-undertaking in damages that will have to be given.

[80]Mr Hendy has made it clear that the Claimant agrees to remain suspended until the trial and, accordingly, there is no possibility, as Mr Moon had argued, that the grant of an injunction would “impose” the Claimant back at Mill House. For the avoidance of doubt, the injunction I propose to grant is not intended to direct the Claimant’s reinstatement.

[81]Against that background, it seems to me to be clear that the balance of convenience dictates the grant of an interim injunction. Without it the Claimant has no prospect(i) of taking part in any disciplinary process and addressing the allegations that have been made about him,

(ii) of taking part in any other process designed to overcome what are presently described as “irreconcilable differences” with the staff at Mill House or

(iii) being considered for another position within the Trust. Whether the Trust decides to try to go down the HC(90)9 route in the period before trial is a matter for them: I am not making a mandatory order that they should do so. If they do decide to do so, they may need some reassurance that the Claimant will participate fully in it and cooperate with it. Since, in default of some other solution, he has been wanting such a procedure for over 3 years, I doubt that there would be any difficulty about it; but I will hear argument about it if it is thought relevant.

Conclusion

[82]Subject, therefore, to final submissions on the precise form of the order necessary to give effect to the substance of my decision, I would propose granting an interim injunction until trial or further order prohibiting the Defendant from acting upon the letter of 26 May 2005, or otherwise treating it, as an effective termination of the Claimant’s contract of employment.