Michalak v Mid Yorkshire Hospitals NHS Trust [2007] EWHC 2469 (QB)

Case No 7MA 91065[2007] EWHC 2469 (QB)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONVenue Manchester Civil Justice CentreBridge StreetVenue ManchesterDate 31/10/2007
Before
MR JUSTICE TUGENDHAT
Between
Dr Ewa Wieslawa MichalakClaimantMid Yorkshire Hospitals NHS TrustDefendant
Mr Paul Gilroy QC (instructed by Halliwells) for ClaimantMr Antony White QC (instructed by Ford &Warren) for DefendantHearing Hearing dates: 19th October 2007
Judgment
[1]The claimant is a Consultant physician. She has been suspended from work with the defendant (“the Trust”) since January 2006 and excluded from her place of work since 21st March 2006. She faces a disciplinary hearing which has been rescheduled to take place on 2nd November 2007 (ten working days after the hearing before me). This has been convened by the Trust in accordance with a procedure which the claimant maintains is not the procedure for which alone provision is made under her contract of employment.[2]The claimant issued a Claim Form and Application Notice on 5th October 2007. By the Application Notice she seeks interim relief in the form of what is in effect a declaration, and two injunctions, in these terms: “1. The applicable procedure in respect of all matters of disciplinary complaint made by the Defendants against the Claimant in the current disciplinary process is that prescribed by Annexe B to HC (90) 9 [“HC(90)9”]; 2. The Defendant… be restrained from convening or purporting to convene a disciplinary hearing in relation to the Claimant at any time otherwise than in accordance with [that procedure] and [“the first injunction”] 3. The Defendant ….. be restrained from excluding the Claimant from her place of work with the Defendant, thereby allowing her to return to work within 60 days of the date of this Order either with or without reasonable restrictions pending the conclusion of the disciplinary process” [“the second injunction”]”.[3]The procedure under which the Trust has been proceeding throughout this matter, and which, unless restrained by injunction, they will continue to apply, is set out in a document of some 40 pages with the title “Maintaining High Professional Standards: Conduct Capability, Ill Health and Appeals Policies and Procedures for Medical and Dental Staff”. It was issued in July 2005. It is sometimes referred to as MHPS and sometimes as the “2005 Procedure”. The author is stated to be Diane Nichols, Director of Human Resources for the Trust. She has also made two witness statements in these proceedings.[4]In a letter dated 16th January 2006, in which the Trust first informed the Claimant that she was to be suspended, it was made clear that the procedure to be adopted would be the 2005 procedure. Extensive correspondence was exchanged between the parties and on occasions, for example 7th June 2006, the claimant complained of what she said were the numerous respects in which the Trust was “in breach of” the 2005 procedure. By June 2007 the Trust had arranged a disciplinary hearing to take place at the end of that month. On 1st June 2007 the claimant raised the dispute which is now before me, namely whether, in the true construction of her contract of employment, the correct procedure is the 2005 procedure as alleged by the Trust, or whether it is the HC(90)9 procedure referred to in the Application Notice. I shall refer to this as “the contractual issue”. HC(90)9 was the procedure which was in force before the July 2005 procedure, and which the claimant contends is still in force in respect of her.[5]The Claimant puts her case as follows in her Particulars of Claim, which are a carefully drafted and detailed document. She states that in 2005 the Secretary of State for Health issued the directions on Disciplinary Procedures 2005 (“the 2005 Directions”) which required NHS bodies such as the Trust to implement by June 2005 the attached Framework entitled Maintaining High Professional Standards in the Modern NHS – a framework for the handling of concerns about doctors and dentists in the NHS (“the MHPS Framework”). Part 3 of that document dealt with conduct hearings and disciplinary matters. The claimant pleads that neither the 2005 Directions nor the MHPS Framework had any direct contractual effect between the Trust and its employees, the formal status of the MHPS Framework being that its terms were agreed between the Department of Health, the NHS Confederation, the British Medical Association (“BMA”) and the British Dental Association. She pleads that, in particular, although the 2005 Directions withdrew HC (90) 9 those Directions did not have the effect of expunging the provision in the contract of employment between the Claimant and the Trust which adopted, in relation to allegations of professional misconduct or professional conduct, a procedure consistent with or derived from Annexe B to HC(90) 9. Accordingly, her case is that the HC (90) 9 procedure continued to have contractual effect as between her and the Trust.[6]Moreover, it is her case that the HC (90) 9 procedure gives her a number of important procedural safeguards, which are not available under the 2005 procedure. She identifies these as(1) the right to a hearing before an independent panel, unconnected with the employer;(2) the right to a hearing before a legally qualified chairman, and(3) the right to appeal to the Secretary of State for Health.[7]I make two observations on the claimant’s contentions in relation to the safeguards which she contends HC (90) 9 affords and which she contends the July 2005 procedure does not afford. First she did not contend before me that the 2005 procedure was open to challenge on grounds of lack of compliance with requirements of natural justice or fairness, as to the independence or competence of the tribunal. Such a contention would be a very serious one. Given her pleaded case that MHPS Framework was agreed between the Department of Health, the NHS Confederation, and BMA, it would also be surprising. If that were her contention she could, and no doubt would, challenge the proposed disciplinary proceedings on that ground, rather than on the more technical contractual grounds on which she does challenge it. I proceed on the footing that the panel arranged for the hearing on 2nd November 2007 is independent and qualified, to the extent required by law. As to the right of appeal to the Secretary of State for Health, the Trust submit that, while certain employees do have that right, others do not, and the claimant is amongst those who do not. I cannot resolve this, and assume that the claimant does have the right of appeal which contends for. But, again, it is not her case that the rights of appeal, such as they may be (if any), under the 2005 procedure render that procedure open to challenge on grounds of natural justice or related human rights grounds.[8]Mr Gilroy QC, who appeared for the Claimant, submits that one possible outcome of the disciplinary proceedings would be the claimant’s dismissal. He submits that the claimant is a relatively young consultant physician, and if she were to be dismissed by the Trust on grounds of misconduct or clinical incapacity as alleged, there is no doubt that she will never work again as a doctor in the NHS and that her prospects of working outside the UK will be immeasurably damaged. The Trust do not say that this submission is an exaggeration.[9]Mr Gilroy submits that the requirement for the allegations against her to be heard by and independent and impartial forum is therefore of fundamental importance to her. That cannot be doubted, but as already commented above, it is not submitted by the claimant in the present proceedings that the tribunal convened under the 2005 procedure would be lacking independence or impartiality as is required by law.[10]Mr Gilroy further submits that given the timescale, if no interim injunction is granted, the claimant may well be dismissed by the defendant before the material issues could be decided at trial, and for that reason the injunctions sought should be granted. So a refusal by me of the injunction would finally decide the merits of a dispute (see cases such as Lansing Linde v. Kerr [1991] ICR 428).[11]These submissions will be considered below.[12]In addition to the very carefully drafted Particulars of Claim, there are before the court two witness statements made by the claimant with supporting exhibits (one in reply to the Trust’s evidence), and two witness statements for the Trust made by Diane Nichols. The exhibits for the Claimant number nearly four hundred pages, and there is a similar volume of material exhibited for the Trust. Given that the Claim Form and Application Notice were issued on 5th October, and that the matter came before me for a hearing on 19th October, the case for the Trust has had to be prepared in greater haste than might have been desired. That is not the fault of the Trust, and neither side have asked for an adjournment to put in further evidence.[13]For the purposes of this Judgment very little need be said about the allegations made against the claimant in the disciplinary proceedings. The claimant commenced employment with the Trust in May 2002. She was assigned to the Medical Admissions Unit which had been newly set up at Pontefract Hospital. Her exclusion was triggered by a complaint from the Yorkshire Deanery to the Trust’s Chief Executive regarding concerns the Dean had with regard to the claimant’s alleged treatment of junior doctors training and working within her unit. It is not necessary to set out the allegations in this judgment. The allegations are serious, but to forestall undue speculation it is right to say that they are by no means the most serious allegations of their kind that could be made against a doctor in the claimant’s position. [If, when the judgment is circulated in draft, either party is not content with this characterisation of the allegations, they may make submissions to me to that effect].[14]Under the heading “Purpose of this Application”, in her first witness statement the claimant says this: “The purpose of this application is two fold: a) To restrain the defendant from adopting a disciplinary procedure other than that to which I am contractually entitled to be subjected in relation to the above mentioned disciplinary proceedings against me and b) To restrain the defendant from continuing to act in breach of contract by maintaining my exclusion from my place of work. Whilst the above two limbs are disjunctive and could be considered separately, in the event that the court considers there is merit in limb (a), this would, I respectfully suggest, further strengthen limb (b), in that it will take some time for the proceedings to be effectively “switched” from the procedure which is currently being adopted to the procedure which I say I am contractually entitled”.[15]Mr Gilroy submits that I should approach this matter in accordance with the guidance in American Cyanamid. This dictates, generally, three questions:(a) Is there a serious question to be tried?(b) If there is, would damages be an adequate remedy for the party injured by the court’s grant of or its failure to grant, an injunction?(c) If not, where does the “balance of convenience” lie? He also refers to the summary of that guidance of Lord Diplock given by Browne LJ in Fellows & Son v. Fisher [1976] 1 QB 122 at 137. In particular he refers to that part of the guidance which states that, if the extent of the uncompensatable disadvantage to each party would not differ widely, it may not be improper to take into account, in tipping the balance, the relative strength of each party’s case as revealed by the evidence adduced at the hearing of the application. The guidance includes: “This, however, should be done only where it is apparent upon the facts disclosed by evidence as to which there is no credible dispute that the strength of one party’s case is disproportionate to that of the other party”.[16]Mr Gilroy submits that the strength of the claimant’s case is so disproportionate to that of the Trust’s case, that I should examine the merits of the contractual dispute and grant the injunctions sought on that basis. Indeed, much the greater part of the skeleton arguments of both parties’ is devoted to the merits of the contractual dispute.[17]It is convenient to list the main points for the Trust advanced on their behalf by Mr Antony White QC under four headings: 1. That this court has no jurisdiction to grant the injunctions sought following the decision of the House of Lords in Johnson v. Unisys Ltd [2003] 1 AC 518; 2. That this application would, if granted, effectively end the proceedings, and that the claimant’s case is too weak to support the injunctions sought, given the heightened test the claimant has to pass in cases where the grant of an injunction would finally decide the merits of a dispute (see cases such as Lancing Linde v. Kerr [1991] 1 WLR 251); 3. That the claimant’s case on the first injunction sought (to restrain the holding of the disciplinary hearing) is inconsistent with her case on the second injunction sought (restraining the continuation of her suspension); 4. There has been unacceptable delay and inconsistency on behalf of the claimant in first allowing the matter to proceed under the 2005 procedure and later, but only on 1st June 2007, raising her present claim that the procedure that ought to be adopted is HC [90] 9.

Jurisdiction – Johnson v Unisys Ltd [2003] 1 AC 518

[18]Mr White summarised the effect of Johnson v Unisys as follows. Because Parliament in Part X of the Employment Rights Act 1996 provided employees with limited remedies for unfairness in connection with dismissal (including in particular a failure to follow an agreed disciplinary procedure) justiciable in specialist Employment Tribunals, no claim to recover damages for loss arising from the manner of dismissal is available at common law in the ordinary courts. Lord Hoffmann (at p66) said that “disciplinary rules incorporated into a contract of employment do not create contractual duties which are independently actionable”. Mr White submits that the reasoning in Johnson inevitably leads to the conclusion that a reference in a contract of employment to a disciplinary code cannot as a matter of law give rise to claims for breach of contract, whether that claim is for damages or for an injunction.[19]In the present case the relief sought includes a claim for a declaration as to the applicable disciplinary procedure, and an injunction to restrain the Trust from following what is said to be a non-contractual procedure. This is not the same as a claim for damages. The jurisdiction of the court to grant declarations is wider than its jurisdiction to award damages, and in practice (the Trust being a public authority) the grant of a declaration would have the same effect as an injunction.[20]I doubt the correctness of Mr White’s submission on jurisdiction. However, I prefer to consider the applications on their merits, and not to decide the issue of jurisdiction unless it is necessary to do so. I am comforted in reaching this conclusion by Mr White having candidly informed me that Simon J was inclined to the same view in Fodden v Mid-Yorkshire Hospitals NHS Trust, an unreported case heard on 10 June 2005.

Is there a serious question to be tried?

[21]This is normally the first question to be addressed. But both parties have asked me to consider the strength of their respective arguments on the merits, and have submitted that this is one of those cases where the grant of the injunctions sought requires the heightened scrutiny of the merits referred to above. It is convenient to return to the strength of the parties' cases at a later stage. At this stage I shall assume that the claimant has a sufficiently serious case to be tried.[22]Neither side suggests that damages would be an adequate remedy for the claimant, if she were to succeed at trial, for the loss caused by the refusal of the injunctions sought. There is no measure of damages for an employee who has been disciplined in breach of contract. A remedy might be to bring legal proceedings to challenge any sanction that the employer intimates that he is about to impose in purported reliance upon the outcome of such proceedings. Another might be to bring proceedings for unfair dismissal, but that would not compensate the claimant for the loss of her career.[23]Nor could the Trust be compensated by an award of damages under the cross-undertaking, if an injunction were granted, and if the claimant were to fail at trial. The reasons for this are considered below. Accordingly, the next question to be considered is what is known as either the balance of convenience, or, more accurately, the balance of justice.

The balance of justice

[24]The claimant's case is advanced on the footing that if the hearing is to be deferred by injunction, then the second injunction should follow, bringing to an end her suspension. Whether she is right about that needs consideration. If she is right, then that might make me more ready to order the deferral of the disciplinary proceedings fixed for 2 November. If she is not right, then that might make me less ready to do that. The length of the claimant’s suspension so far is long. She complains of it. The Trust say that it is attributable to her own lack of co-operation with their inquiry. I cannot resolve that issue, but either way it is regrettable. Further prolongation of her suspension and exclusion from work is to be avoided if possible. An order that did not result in such prolongation would thus be preferable (other things being equal) than one that did.[25]One alternative (if the second injunction would not follow upon the first) is that the grant of an injunction to restrain the holding of the disciplinary hearing is going to prolong the period of the claimant's exclusion from work until a new hearing can be held (following the determination of the court as to the procedure to be applied at that hearing). On that footing, to restrain the holding of the disciplinary hearing may cause prejudice to her. After all, although she clearly fears the outcome of the hearing, the outcome may be favourable to her (her vindication), or, at least, not be as unfavourable as she fears it might be. She might come to recognise after the event that the outcome of the November disciplinary proceedings is one that she could not expect to have been different, even if HC(90)9 had been the procedure adopted. On that scenario, there may never be a need to resolve (as between the claimant and the Trust) the question of what is the true effect of the contract of employment. This scenario would tend to count against restraining the holding of the disciplinary proceedings in November.[26]The alternative scenario, which the claimant contends for, is that the grant of an injunction is likely to lead to the re-instatement of the claimant through the grant of the second injunction. If that is so, then the claimant will be at work during the significant period which she recognises is likely to be needed before the new disciplinary tribunal. Being in work is better from her point of view than being excluded. From her perspective, this scenario would tend to remove one argument against restraining the holding of the disciplinary proceedings in November. It would still be necessary to consider this scenario from the Trust's perspective.[27]A third scenario is that contemplated by Mr White in his skeleton argument, namely that the grant of an interim injunction would effectively end these proceedings. This scenario is not considered in the witness statements of Diane Nichols. For that reason I have difficulty in accepting it as realistic. It embraces at least two possibilities.[28]One possibility is that the present High Court action would not proceed because the Trust would reschedule a disciplinary hearing under the 2005 procedure, without the court having ruled upon the contractual issue. The other possibility might be that there would, for whatever reason, never be a disciplinary hearing at all, if an injunction were to restrain the holding of the disciplinary proceedings in November. This possibility is not what is contemplated by the wording of the second injunction sought (“pending the conclusion of the disciplinary process”). If the effect of my granting an injunction were to be render it impractical ever to hold the disciplinary proceedings, that would tend to count against my granting the injunction. It is in the interests of the Trust and the public interest (and the claimant’s, if she is innocent) that the allegations be the subject of a determination. If the effect of my granting an injunction were to be that the proceedings would be rescheduled to be held under the 2005 procedure (without there being a resolution of the contractual issue), that too would tend to count against my granting the injunction. Unless I were persuaded that the claimant's case is so strong that I ought to grant to her what is the equivalent of summary judgment, I would be in effect be giving summary judgment when she might not be entitled to judgment at all.[29]The Trust in its evidence does not in terms address the consequences to it of deferring the hearing fixed for 2 November. But in the course of submissions Mr White told me on instructions that five and a half days had been set aside, and that the tribunal was to consist of a number of very senior persons whose time was very valuable and who were not readily available to be reconvened. They have had to be reconvened once already, following the June adjournment required by the claimant on grounds of her ill health. Meanwhile, the work that the claimant should be doing for the Trust is being done by temporary appointees. So the Trust is paying twice for the same work, and the long term arrangements for patient care which they would normally make cannot be made. Moreover, there is always a public interest in proceedings being conducted as expeditiously as is consistent with the other requirements of justice, and that applies to disciplinary proceedings as much as to legal proceedings. The court must have regard to the interests, not only of the claimant, but also of the Trust, the members of the tribunal, and of the witnesses and the public. Only the fact that the Trust is paying twice for the same work can be met by the cross-undertaking in damages.[30]The Trust, through the witness statement of Diane Nichols at para 109, states that serious consequences would follow if the court were in effect to order the re-instatement of the claimant. The claimant disputes these in her second witness statement. I cannot resolve the disputed issues of fact in relation to this.[31]Where other factors appear to be evenly balanced, it is a counsel of prudence to preserve the status quo. The status quo when the claimant first intimated a possible claim (that is in June 2007) is that since January 2006 the claimant had not been at work. And in that period both parties were proceeding (as appears from the correspondence between them) on the basis that the proceedings would be conducted in accordance with the 2005 procedure. Had the claimant commenced these proceedings early in 2006, but after her suspension, I might have taken the status quo to be her being at work. But after such a long delay, it is not realistic to approach the matter in that way.[32]If there were to be an injunction deferring the disciplinary hearing, I consider that it would be temporary, and that a new disciplinary hearing would in due course be arranged. So I do not accept Mr White’s submission that the grant of an interim injunction would effectively end the proceedings. On the other hand, for reason discussed below, I do take the view that if I were to refuse the injunctions sought, that probably would effectively end the proceedings. So I should not refuse an injunction before considering the strength of the claimant’s case on the merits.[33]Since I cannot grant a declaration at this stage as to what is the contractual position, if I were to grant the first injunction (deferring the hearing) there would have to be a trial of the contractual issue. That trial might reasonably be expected to take place in one or two months. Whatever the outcome of that trial, the disciplinary hearing would thereafter resume (under whatever is held to be the right procedure). Subject to there being an appeal, the resumed hearing might be expected to take place early in the new year at the earliest. This timetable may be optimistic.

Should there be an injunction to re-instate the claimant temporarily?

[34]I ask myself whether the claimant should, on that scenario, be reinstated pending the new hearing. Mr White submits that no injunction should be granted that would have the result that the claimant be reinstated.[35]One submission for the Trust on this point is that the claimant is advancing her case for the first injunction (deferring the disciplinary hearing) on a basis inconsistent with that for her case on the second injunction (lifting her exclusion from work). The former is based on the contention that the HC(90)9 procedure applies (see the Particulars of Claim paras69.1 to69.2 ), whereas the latter is based on the alternative basis, namely that the Trust are correct and that it is the July 2005 procedure that applies, but that the Trust have been acting in breach of it (see Particulars of Claim paras69.3 to 69.33). It is, of course, common ground that I cannot resolve any of the issues of fact, including issues as to whether the Trust has acted inconsistently with the 2005 procedure.[36]Mr Gilroy submits that a party is always entitled to plead a case in the alternative. That is so at trial, but in my judgment at this hearing the claimant's submissions in support of her application for interim injunctions must be on a consistent basis.[37]Another submission for the Trust is that there are formidable arguments against the grant of an injunction to restrain the continued exclusion of the claimant from work. The allegations against the claimant relate to her conduct at work. Mr White submits that there is no precedent for an injunction restraining continued exclusion of a consultant by a Trust. An apparent exception is the decision of Underhill J in Mezey v South West London et NHS Trust [2006] EWHC 3473 (QB) and [2007] EWHC 62 (QB); [2007] IRLR 237 (permission to appeal was refused: [2007] EWCA Civ 106), but in that case the claimant voluntarily submitted to her continued exclusion from clinical duties, confining her claim to work on research and administration. That is not the claimant's stance in this case.[38]Mr Gilroy accepts that the Courts are slow to intervene by way of granting injunctive relief to enforce contracts of personal service. He refers to Kircher v Hillingdon Primary Care Trust [2006] EWHC 21 (QB); [2006] Lloyds Law Reports 215 as an example of a case where a senior doctor did obtain an interim injunction to restrain the Defendant Trust from terminating his employment. But in that case the injunction granted was not intended to direct the Claimant's reinstatement (paras 80, 82).[39]Mr Gilroy also refers to the injunction granted by Gray J in Gryf- Lowczowski -v- Hinchingbrooke Healthcare NHS Trust [2005] EWHC 2407. But in Kircher Mr Foskett QC (as he then was) remarked (at para 62) that Gray J 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 he heard some oral evidence in the case. I respectfully agree with those observations. Moreover, in Gryf-Lowczowski at paras 67 and 73 Gray J, in considering this point, records that it was accepted that Mr Gryf-Lowczowski would not resume his contractual duties until the conclusion of the relevant contractual disciplinary procedures. The object of the injunctive relief sought was not to restore him to active employment but rather to prevent any dismissal being put into effect prior to the conclusion of those procedures.[40]Further, Mr Gilroy submits that the purpose of suspension was exhausted once the investigation had been completed. Against that, there is evidence that the exclusion has been formally reviewed by the Private Trust Board at regular monthly meetings listed in para 70 of the witness statement of Diane Nichols, including eighteen such meetings on and between 10 February 2006 and 4 September 2007. I note also the adversarial tone of the correspondence that has passed between the parties. It is hard to see how a satisfactory working relationship could be established if the claimant were to return to work at this stage of the procedure.[41]I conclude that I should not grant an injunction that might have the effect of requiring the Trust to re-instate the claimant pending the rescheduling of a fresh disciplinary hearing. There is nothing in the evidence before me that takes the case out of the ordinary rule that the Courts are slow to intervene by way of granting injunctive relief to enforce contracts of personal service. I also accept the submission that the claimant's case on the second injunction (reinstatement) is inconsistent with that on the first injunction.[42]My conclusion that I should not grant an injunction to require the claimant to be reinstated pending the rescheduling of a fresh disciplinary hearing tends to count against my granting an injunction that would defer the hearing. For the reasons I have given, if the outcome of the hearing is favourable to the claimant, or less unfavourable than she fears, that outcome might be the end of the disciplinary proceedings and leave no further purpose to this litigation. This litigation would have a purpose for her only if she were to remain dissatisfied with the outcome of that hearing, and be advised that a better outcome could be achieved by seeking a fresh hearing under the 2005 procedure.[43]So I turn to Mr Gilroy’s submission that, given the timescale, if no interim injunction is granted, the claimant may well be dismissed before the material issues could be decided at trial. This submission assumes that the outcome of the disciplinary hearing may be such that the Trust could decide to dismiss the claimant. It is, of course, the claimant's primary case that she has done nothing to deserve dismissal. She refutes all charges against her.[44]Subject to the point on delay, I consider that if the outcome of the disciplinary hearing were to be as unfavourable to her as the claimant fears, and if the Trust were then to intimate that they were minded to dismiss her, and if the issue of which is the right procedure (HC(90)9 or the 2005 procedure) has not been resolved at that time (whether by agreement or by some other means), then the claimant should have another opportunity of applying to this Court for an injunction to restrain her threatened dismissal pending the determination of what is the right procedure for a disciplinary hearing. A judge hearing such an application at that stage might be much better placed than I am now to assess the merits of such an application. He would know what the findings of the tribunal were, and to what extent those findings were accepted, or disputed, by the claimant and the Trust.[45]However, given my conclusions set out below on the issue of delay, it may well not be open to the claimant to make another application to the court at that stage. It would, of course, be for the judge hearing any such application to decide that point. But delay would be a factor counting against her, and for that reason I accept Mr Gilroy’s submission that if I refuse the injunctions sought, that may effectively end the proceedings.[46]For these reasons, and subject to the case of the claimant on the merits being so strong that an injunction ought to be granted for that reason, in my judgment the balance of justice, or convenience, weighs against granting each of the injunctions sought.

Delay

[47]The Trust also submit that the injunctions ought to be refused on grounds of delay.[48]The Trust point to the long correspondence starting on 16 January2006. In that letter the Trust clearly stated that the meeting held that day had been held in accordance with the 2005 procedure, and that the outcome of the meeting was a decision that the claimant should be excluded from clinical work pending the conclusion of a formal investigation into the allegations made against her. The exclusion at that stage was until 13 February 2006, but it was extended from time to time. The claimant did not accept that her exclusion from work was proper, and she complained. For example, by letter dated 7 June 2006, she wrote referring to the 2005 procedure, and complaining that the Trust were acting in breach of its terms. Her complaint was not that the Trust ought to be following HC(90)9. In this connection it is to be noted that the claimant has had the benefit of advice from a BMA representative who herself was involved in the process in which the 2005 procedure was discussed between the Trust and its staff and in which (as the Trust say, but as the claimant denies) the adoption of the 2005 procedure was agreed. The relevance of this is that it cannot be supposed that the claimant was unaware of the position between the BMA and the Trust.[49]It was not until after the disciplinary hearing had been fixed, and shortly before it was due to take place, that the claimant asserted for the first time in a letter dated a year later, that is 1 June 2007, that HC(90)9 should be followed on the basis that the 2005 procedure had not been incorporated into the her contract of employment. The terms in which she did this are as follows: “... in view of the corruption of the MHPS procedure in my case, I wish to invite the Trust to restart the process against me using the proper HC90(9) process because to proceed on the basis of Dr McInerney's flawed and prejudiced investigation is to perpetuate the victimisation of me. I also make the request for an HC90 (9) process because the MHPS framework is not incorporated into my employment contract and the investigation and disciplinary process are therefore not defined within the Terms and Conditions of my employment contract. The correct disciplinary procedure enshrined within the Terms and Conditions of my employment contract is the HC90(9) and I have never been notified, nor indicated my acceptance, of a change to the Terms and Conditions of my employment in this regard”.[50]This letter implicitly accepts that up to that point the claimant had been content that the Trust should adopt the 2005 procedure. The claimant's letter of 1 June 2007 was written within days of the letter of 26 May 2007 in which the Trust had confirmed that the dates 27 to 29 June had been arranged for her case to be heard. On 14 June 2007 the Trust sent to her two copies of the Statement of Case against her, one for her and one for her BMA representative.[51]On 25 June the Trust wrote to her confirming that the hearing was postponed due to her ill health and would be re-arranged. On 29 June 2007 Diane Nichols replied for the Trust that HC(90)9 no longer exists and that it is the 2005 procedure that is referred to in the claimant's employment contract.[52]On 23 July solicitors for the claimant wrote a closely typed five page letter before action, including citation of authority. The letter stated that in the absence of immediate confirmation by the Trust that it would act in accordance with the claimant's contract of employment, by which was meant HC(90)9, they had instructions to seek injunctive relief, and to issue proceedings “forthwith”.[53]On 30 July 2007 the Trust replied through solicitors that the postponed disciplinary hearing would go ahead when new dates were arranged, which they anticipated would be in September. The letter stated that the 2005 procedure would be followed, and that procedure, and not HC(90)9, was in the claimant's Terms and Conditions of service.[54]In response to questions from the bench, Mr Gilroy explained that the reason why the Claim Form was not issued until 5 October was because the vacation intervened. I accept Mr Gilroy's explanation that it was the understanding of himself and the claimant's solicitors that this matter could not have been brought on during the vacation. For this reason I take no account of the delay between the end of July and the beginning of October. However, I should not be taken as accepting that the view of the claimant’s advisers was correct. If it had been material, I would have required some persuasion that the Claim Form could not have been issued some weeks before in fact it was, and that reasonable attempts to have the matter listed in September would not have been successful. (If it had been listed in September, it would almost certainly have had to be heard in London). I bear in mind that in the letter before action much of the material advanced in the Skeleton argument before me was already deployed. There has been no investigation of whether, if that had happened, it would have made any material difference. A difference that might have been material (if an earlier date could have been fixed) is that the court might have had evidence more fully prepared, and so been able to grant whatever may be the appropriate declaration.[55]No time has been wasted since 5 October, but it is regrettable that this matter came before the court for a substantive hearing so soon before the date fixed for the start of the disciplinary hearing on 2 November.[56]I consider that 1 June was very late indeed for the claimant to raise her case for the first time. It was nearly eighteen months after she had first been informed, in January 2006, that the 2005 procedure was being followed. The fact that she considered that the 2005 procedure was not being correctly followed is the only explanation proffered for the delay in raising HC(90)9 until June 2007.[57]In my judgment it is not a good reason. If I had not reached the conclusion that I have reached in relation to the balance of convenience, I would, subject to the point as to the strength of the claimant's case, have rejected her applications for injunctions on grounds of delay. This point should have been raised, if at all, in good time so as not to necessitate adjournment of the disciplinary hearing. All the more is this the case, because the adjournment that it is sought to cause is the second one.[58]I say it should have been raised “if at all” to make clear that I make no judgment as to whether or not the point ought to have been raised. It may well be that, whatever the strength of the claimant’s arguments on the contractual issue, the more prudent course was to either to agree to, or to acquiesce in, what the Trust were doing, whichever of these she did. But in my judgment the price of following that course is that she cannot now obtain the injunction in the circumstances that have arisen.

The contractual dispute

[59]In the light of the conclusions that I have reached, I have to consider the strength of the parties’ cases on the contractual issue. The question I have to decide in relation to the merits of the contractual issue is whether the claimant's case is so strong that I ought to grant her an injunction. Following Fellowes v Fisher this would not be so unless it is apparent upon the facts which cannot credibly be disputed that the strength of her case is disproportionate to the strength of the Trust's case. But it seems to me that the basis for my approaching the merits is the Lansing Linde line of cases. In that case Staughton LJ said at p 434-5 (with the agreement of Butler-Sloss LJ at p448):
“… in N.W.L. Ltd. v. Woods [1979] I.C.R. 867, 880, Lord Diplock said that a judge ought to "give full weight to all the practical realities of the situation to which the injunction will apply" and that the American Cyanamid decision "was not dealing with a case in which the grant or refusal of an injunction at that stage would, in effect, dispose of the action finally in favour of whichever party was successful in the application, because there would be nothing left on which it was in the unsuccessful party's interest to proceed to trial." Lord Diplock continued: "Cases of this kind are exceptional, but when they do occur they bring into the balance of convenience an important additional element." …. If it will not be possible to hold a trial before the period for which the plaintiff claims to be entitled to an injunction has expired, or substantially expired, it seems to me that justice requires some consideration as to whether the plaintiff would be likely to succeed at a trial. In those circumstances it is not enough to decide merely that there is a serious issue to be tried. The assertion of such an issue should not operate as a lettre de cachet, by which the defendant is prevented from doing that which, as it later turns out, he has a perfect right to do, for the whole or substantially the whole of the period in question. On a wider view of the balance of convenience it may still be right to impose such a restraint, but not unless there has been some assessment of the plaintiff's prospects of success. I would emphasise "some assessment," because the courts constantly seek to discourage prolonged interlocutory battles on affidavit evidence. I do not doubt that Lord Diplock, in enunciating the American Cyanamid doctrine, had in mind what its effect would be in that respect. Where an assessment of the prospects of success is required, it is for the judge to control its extent”
.

Lord Diplock continued:

[60]On that line of cases what I am required to do is assess the claimant’s prospects of success to the extent I find just and to weigh those prospects in the balance.[61]The contract between the parties is dated 3 September 2004. It is on a form headed “Consultant Contract of Employment” which I take to be at least substantially in the Trust’s standard form. It is common ground that it refers to and incorporates a document called “Terms and Conditions” which is a reference to a document entitled “Terms and Conditions Consultants (England 2003)”. This is a document of some sixty pages which, on page 1, bears the following: “The terms and conditions set out in this document shall incorporate, and be read, subject to any amendments which are from time to time the subject of negotiation by the appropriate negotiation bodies and are approved by the Secretary of State after considering the results of such negotiations. Any amendments should be published”.[62]Two of the clauses in the Contract of Employment to which I have been referred in particular are: “16 Policies and Procedures You are required to comply with the Trust’s policies and procedures as may from time to time be enforced … 18 Disciplinary Matters Wherever possible, any issues relating to conduct, competence and behaviour should be identified and resolved without recourse to formal procedures. However, should the Trust consider that your conduct or behaviour may be in breach of Trust Policy, appropriate action will be taken in accordance with the Trust’s disciplinary/ exclusion Procedures for medical and dental staff”.[63]The Terms and Conditions include Schedule 20 which is headed “Incorporated General Council Conditions of Service”. That schedule lists “those General Whitley Council (or successor body) agreements which apply under the contract except where otherwise indicated in these terms and conditions”. In Schedule 20 there is listed at S42 “Disciplinary and Disputes Procedures (subject to the adoption of the proposed new framework for disciplinary procedures)”. In the definition sections there appears the following: “General Council Conditions: the National Health Service Staff conditions of service of general application as determined by the General Council of the Whitley Councils for the Health Services (Great Britain) as may be amended from time to time, or any provisions which may be agreed by a successor body to the General Council and may reasonably be considered to have replaced the current conditions of service”.[64]Mr Gilroy sets out in his skeleton argument the statutory instrument giving the Trust power to contract with its doctors. He submits that power derives from Schedule 2 paragraph 16 of the National Health Service and Community Care Act 1990 as amended by the Health and Social Care Act 2001. So far as material that provides: “(3) An NHS Trust may employ such staff as it thinks fit; (4) subject to paragraph (5) below, an NHS Trust may – … (b) Employ [its staff] on such other terms and conditions as it thinks fit; (5)….(a) in exercising its powers under subparagraph (4) above and(b) otherwise in connection with the employment of its staff, act in accordance with regulations and any directions given by the Secretary of State”.[65]Mr Gilroy submits that upon the Claimant entering the Trust’s employment, the Trust’s then procedures necessarily incorporated a disciplinary procedure which was consistent with Annexe B of HC (90)9 by virtue of regulation 3 of the National Health Service (Remuneration and Conditions of Service Regulations 1991) SI 1991 No. 481 (“the 1991 regulations”). The Department of Health had issued Health Circular (90) 9 in March 1990. It was entitled “Disciplinary Procedures for Hospital and Community Medical and Dental Staff”. It was addressed to Regional, District and Special Health Authorities. Under the heading Action it included: “With effect from 19 March 1990 Authorities are asked to introduce the changes detailed in the annexes [which included Annexe B]”.[66]Subsequently regulation 3 of the 1991 regulations had the effect of imposing the Annexes to that Circular upon the parties to contracts of employment between the NHS and doctors: see Skidmore v. Dartfordand Gravesham Trust [2003] ICR 721 HL per Lord Steyn at paragraph 13.[67]Regulation 4 (2) of the 1991 regulations provides that the Secretary of State may revoke any approval given under regulation 3. Mr Gilroy submits that revocation of the approval of HC (90) 9 did not have the effect that the procedure in Annexe B was no longer incorporated into the Claimant’s contract of employment. As he put it the revocation “would not excise or remove from contracts such procedures where they had been included by agreement”. Mr Gilroy submits that the Trust did not rely on regulation 3 of the 1991 regulations to import HC (90) 9 as one of its disciplinary procedures, but instead, it complied with regulation 3 by reaching a local agreement in relation to that circular which the contracts of employment with its consultants adopted.[68]The provision of Annexe B upon to which the claimant refers as a safeguard is paragraph 8. This provides that “no member of the panel should be associated with the hospital (s) in which he works, or, in the case of a doctor in the Public Health medicine in the Health Authority in which the practitioner works. In all cases the panel should be small normally of three persons, including a legally qualified chairman, not being either an officer of the Department of Health or a member or officer of the Authority concerned…”[69]The MHPS Framework was issued by the Secretary of State for Health in 2005 in exercise of the powers conferred upon him by Section 17 of, and paragraph 10 (1) of Schedule 5 and paragraph 8 (3) of Schedule 5A to, the National Health Service Act 1977 and paragraph 16 (5) of Schedule 2 the National Health Service and Community Care Act 1990. They were stated to come into force on 17 February 2005 and all NHS bodies were required to implement the framework by 1st June 2005: See the directions at para 3. Para 4 of the directions provided that the scheme set out in HC (90) 9 were withdrawn. But Mr Gilroy submits that MHPS did not bind employees until it was implemented by the employing Trusts. It is his submission that neither the MHPS nor any local procedure based upon it has been incorporated into the claimant’s contract.[70]The Claimant relies on the Gryf-Lowczowski case referred to above. However, as already noted that decision concerned a trial on evidence. In addition Mr White submits the contract of employment in question was materially different. He refers to paragraph 7 of the judgment of Gray J which may be read as indicating that HC (90)9 was expressly referred to in the contract.[71]In addition Mr White submits that in the present case the Trust (unlike the defendant in the Gryf-Lowczowski case), has implemented the 2005 procedure and that it has been incorporated into the claimant’s contract. He argues that there are two routes by which this conclusion can be reached.[72]The first route is the submission that the words in Schedule 20 of the Terms and Conditions quoted above (“disciplinary and dispute procedures (subject to the adoption of the proposed new framework for disciplinary procedures)” is a reference to the 2005 procedures and has the effect that they are the procedures referred to by the Terms and Conditions. No argument upon these lines is referred to in the judgment of Gray J and such an argument may not have been open to the Defendant Trust in that case.[73]The second route by which it is said on behalf of the Trust that the 2005 procedure is incorporated into the claimant’s contract is through incorporation at local level through the established mechanism of the Joint Local Negotiating Committee on which consultants (including the claimant) are represented by BMA negotiators.[74]Mr White took me through the numerous documents which are part of the exhibits of Diane Nichols in support of these submissions.[75]Diane Nichols states that the General Whitley Council was abolished in 2005 and was replaced by the NHS Staff Council, but that body does not deal with terms and conditions relating to doctors. These, she states, are negotiated at national level, in the case of consultants between the NHS and the BMA. She states that on 17 July 2003 the Department of Health had reached heads of agreement with the BMA and the NHS Confederation on a framework for the new consultant contract. Para 26 of that document records that there had been progress in agreeing key elements for the new disciplinary procedures to replace HC(90)9 and that there would be joint discussions between the parties to finalise the details. She exhibits minutes of the Trust’s meeting with the Joint Local Negotiating Committee held on 28 September 2005. This was attended, amongst others, by a BMA representative (who also happens to be the representative assisting the claimant in the present dispute) and Diane Nichols’ Assistant Director, Mrs Smyth. Item 9 is headed Disciplinary Procedure. It records a comment regarding juniors from the BMA representative, and that “Mrs Smyth agreed that the document would be signed off …”[76]Diane Nichols exhibits print-outs from the BMA website marked “updated June 2007” which state that the BMA has sole bargaining rights in respect of all employed doctors.[77]There is in the second witness statement of the claimant a number of paragraphs addressed to Diane Nichols evidence. There is no evidence from the claimant or from the BMA addressing Diane Nichols’ evidence relating to the agreement between the Trust and the BMA. In the absence of evidence, Mr Gilroy submits that on their face the documents exhibited do not disclose an agreement with the BMA. Given that the claimant must, in principle, have available to her information from the BMA as to whether they say there is an agreement or not, this “not proven” stance taken by the claimant is something less than might be expected. Nevertheless, I draw no inferences, in the light of the short time available to the claimant to respond to the Trust’s evidence. Had the parties had more time to prepare for the hearing, I might have been in a position to draw an inference adverse to the claimant from the absence of such evidence.[78]Mr White submits that in the light of the circumstances in which the 2005 procedure came into existence, it would be surprising if the procedure did not apply as it was apparently intended to apply to all consultants’ contracts including the claimant. I agree with this observation, although cannot be determinative of the issue. He also referred me to Gray Dunn & Co Ltd v Edwards [1980] IRLR 23 in support of the proposition that where employers negotiate a detailed agreement with a recognised union they are entitled to assume that all employees who are members of the union know of and are bound by its provisions (para 3), and do not have to deal with each employee separately: Birmingham City Council v Wetherill [2007] EWCA Civ 599; [2007] IRLR 781 para 43.[79]I do not find it necessary to go through all the documents in the exhibits of Diane Nichols. It appears to me that if a sure conclusion was to be reached as to whether or not the contentions of one party or the other in relation to these matters was correct, it is likely that it would be necessary to hear oral evidence in particular as to the second route. But in any event these arguments require careful consideration of the effect of Regulations, and other documents, which have come into existence against a background of collective bargaining within the NHS. Detailed though they were, for submissions on an interim injunction, the arguments submitted to me have not left me in a position where I feel that it would be possible for me to reach a clear view as to the respective merits of the party’s positions. The matter was listed for three hours, and I heard it over a whole day, and then reserved judgment.[80]The upshot is that it is not apparent to me on the evidence which cannot credibly be disputed that the strength of the claimant’s case is disproportionate to that of the Trust’s (the Fellowes test). I am not persuaded that the claimant’s contentions are clearly right, nor even that the claimant has a better than even chance of success at trial. The strength of her case is not such as tip the balance of justice in her favour (the Lansing Linde test). On the other hand, I would not have refused her relief on the ground that she lacks a sufficiently arguable case to pass the threshold test in American Cyanamid.[81]In these circumstances and given the fact that these arguments can be (and as I understand it may already have been) raised in similar disputes between NHS Trusts and other doctors, I do not think it would be helpful or wise for me to express any further opinion.[82]It follows that these applications on behalf of the claimant are all dismissed.

Cited in 1 later judgment