Abertawe Bro Morgannwg University Local Health Board v Korashi [2012] EWHC 121 (QB)

[2012] EWHC 121 (QB)Case No HQ08X03428
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/02/2012
Before
MR JUSTICE EDWARDS-STUART
Between
ABERTAWE BRO MORGANNWG UNIVERSITY LOCAL HEALTH BOARDClaimantDR. IHAB KORASHIDefendant
Mr Alistair McGregor QC and Mr Simon Forshaw (instructed by Morgan Cole LLP) for ClaimantMr Chris Close assisting the DefendantHearing Hearing dates: 24 & 25 January 2012
Judgment

Introduction

[1]This is an application by the defendant, Dr Korashi, to set aside an order following a hearing in his absence giving summary judgment against him, striking out his counterclaim and granting a Norwich Pharmacal application for disclosure. Since it is accepted that he has now complied satisfactorily with the application for disclosure, that part of the application has fallen away.[2]The judgment was given on 27 May 2011 by His Honour Judge Peter Clark, sitting as a judge of the High Court. Dr Korashi was not present because he was ill and, in addition, his wife was terminally ill with cancer and he felt that he could not leave her. The judge concluded that Dr Korashi could have attended the hearing and (for that and other reasons) refused to grant an adjournment. The Claimant’s application was issued as long ago as 29 January 2010 but, for reasons that I will have to explain in more detail later in this judgment, was not heard until 25 May last year.[3]Between January 2002 and 4 March 2008, when he was dismissed for gross misconduct, Dr Korashi was employed by the Claimant, a local health board, as a Staff Grade doctor in Obstetrics and Gynaecology.[4]In about September 2003 Dr Korashi made complaints against a fellow doctor, to whom I shall refer as Mr A. That was the first of a series of complaints made by Dr Korashi against that doctor, the thrust of most of which was that he was neither trained nor qualified to carry out certain types of operation or to treat patients suffering from cancer and that these facts were never disclosed to the patients whom he treated or upon whom he operated.[5]In the course of his employment Dr Korashi had access to medical records held by the Claimant, both in hard copy and in the form of a database known as “Theatre”. It is quite clear from claims that Dr Korashi has made in various proceedings that he has copied material from this database and has deployed it in support of his complaints against Mr A and in statements of case in various legal proceedings including this action.[6]The Claimant submits that Dr Korashi has threatened, and still threatens, to use this information in order to contact the various former patients of Mr A (or, in the case of those who have died, their relatives) in order to tell them that they (or the relevant deceased relative) had been treated or operated upon by a doctor who was neither trained nor qualified to do so. Accordingly, the Claimant seeks a final injunction restraining Dr Korashi from using the information obtained from the database and requiring him to deliver up all confidential information in his possession relating to patients who have been treated in the Claimant's hospitals.[7]On 2 (or 3) September 2008 the Claimant obtained an interim injunction from Teare J by which Dr Korashi was prevented from using the confidential information to contact patients. Unsuccessful applications to vary or discharge the order were made by Dr Korashi on 12 February 2009 (to Nicol J) and on 9 November 2009 (to Eady J).[8]Dr Korashi's position is that the former patients of Mr A are entitled to know that they were treated or operated upon by a doctor who was not qualified or competent to do so and that they were misled, when giving their consent to any treatment or operation, as to the qualifications and training of Mr A. Since the Claimant has refused to tell them, Dr Korashi says that he is entitled, and indeed under a duty, to do so. The real issue at the heart of this application is whether Dr Korashi is entitled to do this.[9]Although Dr Korashi has brought his application under the wrong provision of the CPR, it is accepted by Mr Alistair McGregor QC, who, together with Mr Simon Forshaw, appeared for the Claimant, that a party is generally entitled to apply to the court to set aside a judgment obtained in his absence and that Dr Korashi is entitled to make such an application in this case.

Procedural matters

[10]I was invited by both sides to conduct this hearing in private. I declined to do so because I could see no compelling reason why this application should not be heard in public in the ordinary way. However, I directed that nothing was to be said that might disclose the identity of Mr A or that might reveal the identity of any patient or the nature of the treatment that she had received.[11]In addition, I made an order under CPR 31.22(2) that no use was to be made of any document that had been read to or by the court that might result in the disclosure of the identity of Mr A or reveal the identity of any patient or the nature of the treatment that she had received.[12]However, for the avoidance of any doubt, this judgment is a public document and may be shown to or read by anyone provided, of course, that does not lead to the use or disclosure of any confidential information relating to a patient.[13]Dr Korashi attended the hearing accompanied by a Mr Chris Close, who applied to act as a McKenzie friend. Mr Close told me that he had trained as a solicitor but had since decided to move into the field of mental health by advising vulnerable people. As I understood the position, he is not a practising solicitor and does not have any right of audience in the High Court. Dr Korashi had provided the court with a letter from his general practitioner, Dr Lewis, dated 17 January 2012, which said that "he is not currently well or fit enough to attend a Tribunal or Court Proceeding, give evidence, defend himself because of his current Mental Health . . . I suspect that he will not be able to do so for the foreseeable future until some improvement in his condition has taken place.”[14]In these circumstances, and since neither party wished to have the hearing adjourned, I decided to allow Mr Close to speak for Dr Korashi. Mr McGregor, very courteously, had not opposed this course. Unfortunately, the terms of the injunction were such that it was arguable that Mr Close was not entitled to see some of the material in the case and Dr Korashi said that for that reason he had not showed the Defence and Counterclaim to Mr Close before the hearing. I therefore allowed Mr Close a little over an hour so that he could read himself more fully into the documents.

The facts

[15]As I have mentioned, the first complaint against Mr A was made by Dr Korashi in about September 2003 (although it is Dr Korashi's case that he had raised concerns about patient safety with Mr A himself from about March 2003 onwards). This concerned Mr A's treatment of six patients. In two of the cases only had Dr Korashi also been involved.[16]The Claimant decided to carry out an internal investigation and a Mr Peter Bowen-Simpkins, a Consultant Obstetrician & Gynaecologist, was asked to investigate the six cases. Unfortunately, in one of the cases the notes appeared to have been lost and Mr A had very little recollection of it. As a result, Mr Bowen-Simpkins was not able to investigate that case.[17]At the time of this investigation one of the cases was the subject of an existing claim for clinical negligence arising out of an operation or operations performed by Mr A. Mr Bowen-Simkins noted that Mr A accepted that he should have sought advice from another specialist before carrying out the second operation, but since the claim was the subject of litigation he considered that it would be inappropriate for him to make any further comments. In three of the remaining four cases, Mr Bowen-Simkins found no fault on the part of Mr A. In the fourth case, Mr A accepted that he may have used an incorrect technique but Mr Bowen-Simkins found that the operation in question was within the capabilities of a gynaecologist such as Mr A.[18]Dr Korashi alleges that before Mr Bowen-Simkins was called in, Mr John Calvert, the Claimant's Medical Director, had asked Mr A to find examples of treatment by Dr Korashi that could be the subject of criticism. I suspect that there is some truth in this because Dr Korashi has produced an e-mail from Mr A to Mr Calvert dated 31 August 2004 in which Mr A gives examples of four cases in which it was said that there was either a breach of unit guidelines or some other form of alleged medical malpractice by Dr Korashi. According to the e-mail, one of the cases had by then become the subject of litigation. Dr Korashi alleges that it was very shortly after this e-mail was sent that he was suspended and was made the subject of a disciplinary investigation. He says that this suspension was the subject of a successful claim in the Employment Tribunal.[19]In 2005 two or three consultants, together with Dr Korashi, raised concerns about Mr A's ability to undertake some of the work that he was being required to carry out. At the instigation of the General Medical Council ("GMC"), this was investigated by two assessors from the Royal College of Obstetricians and Gynaecologists, Mr John Murdoch and Mr David Oram, both of whom were Fellows of that college. Their terms of reference were "To investigate the concerns about [Mr A's] Gynaecological Surgery in respect of complex and malignant conditions expressed by his colleagues from other disciplines."[20]They interviewed various consultants and other members of the Claimant’s staff. Putting it very simply, they concluded that a period of mentorship and training was required because Mr A was trained to the level of a general Obstetrician and Gynaecologist but not to the level of a radical pelvic cancer surgeon. They concluded that Mr A, another senior consultant and the Clinical Director of the hospital were all equally responsible for the historical failures in relation to mentoring. They felt that the Claimant’s management had been insufficiently robust in addressing the issues in-house and ensuring that remedial action was taken. Whilst they expressed the view that the concerns of the surgeons were appropriate, they said also that "within the limits of his training and expertise [Mr A] is an effective obstetrician and gynaecologist with good relations with all the staff members and patients". They said it was clear that he enjoyed substantial good will from both his supporters and critics and that there was a general wish to find a constructive resolution of the problems he faced.[21]Mr Murdoch and Mr Oram made various recommendations in relation to the further training of Mr A and, as I understand it, these were largely adopted. As far as I am aware, Mr A’s treatment of patients after 2006 has not been the subject of any complaint by Dr Korashi.[22]In late 2005 Dr Korashi made further complaints against Mr A. They were to the GMC, who appointed two case examiners, one medical and one non-medical. By this time Dr Korashi had brought the proceedings against the Claimant in the Employment Tribunal to which I have already referred in which he made allegations of discrimination. I have been told little about that claim except that it is apparent from the papers that it resulted in an award in favour of Dr Korashi for £33,962.50 for loss of earnings and £8,609 as compensation for injury to feelings. The case examiners appointed by the GMC did not regard the findings of the Tribunal as being relevant to the registration of Mr A (from which I infer that some of the allegations had been made against him). They noted also that the issues of his performance had been “investigated andmanaged appropriately using local and national resources”. They noted that Mr A had been reminded that he had to “recognise and work within the limits of [Mr A's] professional competence” and be willing to consult colleagues. In a letter written in February 2006 an Investigation Officer of the Fitness to Practice Directorate notified the Claimant that the GMC would not be taking any action on Mr A's registration as a result of the complaint.[23]It is alleged by the Claimant, but denied by Dr Korashi, that in response to this Dr Korashi brought proceedings against the GMC for racial discrimination in 2006. Whether or not that is so, it is a matter of record that Dr Korashi did bring proceedings in 2006 against the GMC and the Claimant in the Central London County Court This is apparent from the number of the claim, but since the hearing I have had it confirmed by the Central London County Court that the proceedings were started in 2006. and that those proceedings were settled in September 2011 when the claim was withdrawn, with each party paying its own costs and a confidential undertaking being given by Dr Korashi. As far as I can see, the only concession that Dr Korashi obtained from these proceedings was the agreement by the defendants to bear their own costs. At any rate, those proceedings are now concluded.[24]In about May 2006 Dr Korashi went to the South Wales police alleging that Mr A had been negligent in relation to the treatment of four patients who had subsequently died. The complaints were referred to an independent expert for investigation and a Professor Shepherd, a Consultant Gynaecological Surgeon and Oncologist at St Bartholomew's Hospital in London, was asked to review the notes in the four cases. This he did in July 2006. He said that he did not believe that Mr A “had been negligent in any way whatsoever”. However, he was slightly critical of Dr Korashi's involvement in one of those cases.[25]In July 2006 (according to the Claimant), Dr Korashi gave the police details of a further 120 patients whom he alleged had been treated by Mr A and asked the police to investigate their treatment: he made allegations of gross negligence and fraud against Mr A (he says this himself - see page 78 of the exhibit to Mr Fisher's 4th witness statement). In March 2007 Professor Shepherd was asked to investigate 10 of these cases, which were said to have been randomly selected - although Dr Korashi asserts that the information in relation to some of these sample cases had been manipulated. Whilst Professor Shepherd did not express a concluded view, he said that he had concerns that Mr A may have been carrying out and, probably, may have been expected to carry out, procedures for which he was not adequately trained. He expressed concern also regarding the departmental arrangements at Singleton Hospital, where Mr A was working.[26]On 26 July 2006 Dr Korashi was suspended from duty for making these allegations to the police in respect of Mr A. This was the second occasion on which Dr Korashi was suspended from duty.[27]At some time after this, but in 2006, Dr Korashi issued a claim for judicial review against the Claimant in which he sought the following orders:(1) That the Claimant should inform the patients of Mr A that he was not trained, equipped or qualified to treat, plan management or perform radical cancer operations on them as a sub specialist gynaecological oncologist and as a radical pelvic cancer surgeon (this to include patients who are alive as well as the families of those who have died).(2) That the Claimant should inform patients who had been operated on by Mr A in areas and diseases outside the scope of his speciality e.g. general surgery etc that Mr A, as a gynaecologist, should not have operated on them.(3) That the Claimant should lift its order restraining Dr Korashi from exercising his professional duties as a doctor and his rights under the Public Interest Disclosure Act 1998 and the Medical Act (sic) to inform the patients that Mr A was not trained or equipped to treat or operate on them.[28]Permission to make this claim was refused on paper by a single judge of the High Court. Dr Korashi unsuccessfully renewed his application for permission to appeal orally to Stanley Burnton J. Dr Korashi then applied for permission to the Court of Appeal, where it was dealt with on paper by Rix LJ. In refusing permission Rix LJ said this: “3. The judge had to decide whether there was, arguably, any real prospect for the Claimant seeking judicial review, and he considered, quite rightly in my judgment, that there was not, for all the reasons given in his judgment. In particular, there had already been separate investigations of the applicant's complaints carried out on behalf of both the GMC and the respondent Trust, who had appointed experts to report. Those investigations found nothing to make the Trust’s impugned decision inappropriate or unreasonable. 4. I agree with the judge that there is no basis on which it could be argued that in refusing the applicant permission to contact Mr A's patients the Trust acted unreasonably or in breach of duty or in anyway inappropriately. On the contrary, to have acceded to the applicant's request in the face of the investigations’ results would itself have been highly questionable. There is no reasonable prospect of any success on appeal or any other compelling reason for permission to be granted and I must therefore refuse this application."[29]Not being prepared to take no for an answer, Dr Korashi renewed his application to the court by way of an oral hearing. It came before Keene and Jacob LJJ on 27 April 2007. In his judgment, with which Jacob LJ agreed, Keene LJ said this:
“2. As Stanley Burnton J indicated, there is a history of some antagonism between the applicant and Mr A. As a result of complaints, there have been a number of investigations into Mr A's treatment of patients. Those are summarised at paragraphs 6 to 9 of the judgment in the court below and I need not repeat them now. They are familiar to the applicant. What is perhaps worth mentioning is that the General Medical Council investigated a complaint by Dr Korashi against Mr A in 2005, and the case examiners reported as a result of the investigation that there had been no significant breach of good medical practice. No action on Mr A's registration was to be taken. 3. In those circumstances the judge concluded that there was no basis for regarding the NHS Trust as being under a duty to contact patients because they might be at risk, and even less so was there a basis for allowing Dr Korashi to do so. The judge concluded that it was not arguable that the Trust had acted improperly or unreasonably. 4. Dr Korashi, who appears in person this morning as he did at the hearing below, submits that in effect a number of patients have not had cancers removed when they believe they have, are at risk and in some cases are being left to die. Whether that is a justified allegation or not is patently a matter for medical judgment. If this were an allegation that had never been investigated, it would obviously cause concern to a court of law as to any other reasonable person. But the reality is, as would have become clear from the brief summary I have already given, that these allegations have been investigated, indeed several times, and in particular with that investigation by case examiners for the GMC, who were clearly acting independently of the NHS Trust. In those circumstances I can see no basis for regarding these allegations as potentially well-founded in fact. . . . 10. On the substantive merits of the judicial review claim, as I have indicated I agree with the views expressed in Stanley Burnton J's judgment, as I do with those made by Rix LJ on paper.”
[30]While these events had been taking place Dr Korashi had also brought further claims against the Claimant in the Employment Tribunal. Apart from the successful claim to which I have already referred, it seems that all of the other claims that have been heard were dismissed (although there is still an outstanding oral application for permission to appeal pending in the Court of Appeal, previous applications having been refused, and there are still some other claims that still remain undetermined). In the Employment Tribunal proceedings Dr Korashi alleged that he had made protected disclosures as a whistleblower, but the Tribunal rejected this submission because it found that the allegations had not been raised in good faith.[31]In the course of those proceedings Dr Korashi wrote a letter, said by him to have been on a "without prejudice" basis, in which it is said that he threatened to write to 237 patients, or families of patients, to explain "the whole situation” in relation to Mr A. There is a hotly contested issue as to whether or not it is legitimate to refer to this letter given its without prejudice marking. The Claimant submits that it was not a document that could properly be marked as without prejudice, and so there can be no protection for what was said in it. Dr Korashi disagrees.[32]For reasons which will become clear later in this judgment, I do not find it necessary to rely on or refer further to the contents of this letter. I suspect that the Claimant may be right, but I have not seen the letter itself and so I can express no concluded view.[33]In November 2009 the GMC heard a number of charges against Dr Korashi. Most of these arose out of Dr Korashi's complaints about Mr A that were made to the police in 2006. Many, but by no means all, of the allegations were found to have been proved. The GMC's Fitness to Practice Panel concluded that Dr Korashi was justified in having concerns about the safety of Mr A’s patients and accepted his evidence that his behaviour was motivated by patient safety. It found, contrary to the Employment Tribunal, that malice had not been proved.[34]In particular the Panel made the following findings: “Whilst the Panel is satisfied that Dr Korashi behaved as he did as a result of genuinely held concerns regarding Mr A's ability, it is of the view that the way in which he went about raising his concerns was not always proper. The Panel considers that his contacts with the Police demonstrate a serious lack of judgement and were unprofessional. Dr Korashi decided to go to DI Hughes without substantial evidence of sufficient quality or detail to support his allegations. It was unprofessional to go to the Police in those circumstances. . . . The Panel is of the view that Dr Korashi's conduct in providing the Police with details of the four deceased patients when he did not have their relatives’ consent to do so could bring the profession into disrepute. The Panel considers that he breached the fundamental principle of confidentiality. On this basis the Panel was satisfied that Dr Korashi's conduct was sufficiently serious to constitute misconduct.[35]By the time of this hearing before the GMC, Dr Korashi had already been dismissed by the Claimant.

The law in relation to patient's records

[36]It has been established for well over 100 years that it is an implied term of a contract of employment that an employee will not use, to the detriment of his employer, confidential information to which he has access in the course of his employment: see Robb v Green [1895] 2 QB 1. The confidential information that was the subject of that case was the employer's order book, which contained the names and addresses of the customers of the business and, I assume, the dates and details of orders that they placed. It was argued by the employee that much of the information, such as the address of a particular business, might be acquired by reference to directories and other similar publications or even pamphlets published by the employer containing the names of customers who had sent him favourable testimonials. But the court held that this was no answer. As Hawkins J commented, "It is the compilation which made the book and the list so valuable to the defendant, and facilitated his endeavours to entice his master's customers to the detriment of the latter".[37]In Ashworth Hospital Authority v MGN [2001] 1 WLR 515, an employee of a secure hospital, in breach of his duty of confidentiality under his contract of employment, supplied to an intermediary medical information held on the hospital computer database relating to a secure patient, the notorious Moors murderer, Ian Brady. The judge held that the hospital had no right to confidentiality in the information disclosed, as distinct from the confidentiality belonging to the patient.[38]The Court of Appeal disagreed. In his judgment Lord Phillips MR said, at paragraphs 52 and 53: “52. . . . The Department of Health published, on 7 March 1996, Guidance on the Protection and Use of Patient Information. This includes the following guidance under the heading, "Who has a duty of confidence?": "Everyone working for or with the NHS who records, handles, stores, or otherwise comes across information has a personal common law duty of confidence to patients and to his or her employer". (Emphasis added.) 53. This guidance accurately states the position. Both Ashworth and its patients shared an interest in the confidentiality of patient records."[39]Accordingly, the hard copies of patient records held by the Claimant and the contents of its Theatre database contain material that constitutes confidential information about patients, the confidentiality in which is shared by both the Claimant and the individual patients.[40]It follows from this that neither Dr Korashi nor any other employee of the Claimant had any right to copy or use this information otherwise than in the course of his or her employment. It was no part of Dr Korashi’s duties as a doctor employed by the Claimant to take information about patients from the hospital's records in order to disclose to those patients information about the qualifications of another doctor who had been treating them. I accept that a doctor is under certain duties to his own patients, but I know of no authority, and none has been cited, for the proposition that he owes any duty to notify the patients of another doctor of any shortcomings in his or her treatment - still less so if he is no longer employed by the relevant health authority . This is not to say that he may not be under a duty to disclose to his employer, or to another appropriate medical authority, an incident of medical malpractice by another doctor of which he is aware, but that is quite different from disclosing it directly to the patient concerned. Further, once his employment had ceased, he had no right to retain or to use such information without the consent of both the hospital and the patient concerned.[41]It is also clearly established, ever since the decision in Robb v Green, that one ground of relief against a party who is in wrongful possession of confidential information, whether in the form of hard copy documents or, these days, electronic documents, is an order for delivery up of the relevant documents.

The claim

[42]The Particulars of Claim set out in some detail the history of events between 2002 and 2008. Paragraphs 13 to 20 set out a number of matters in support of the general allegation that Dr Korashi has threatened and still threatens to make use of the confidential information to contact former patients of Mr A without the Claimant's permission. It also sets out what the information is and why it is confidential. As I have indicated, the principal remedies sought are an injunction to restrain Dr Korashi from disclosing to any person or making any use of the confidential information and an order for delivery up of all confidential information in his possession relating to patients that have been treated in the Claimant's hospitals.[43]The confidential information is described in the Particulars of Claim as "patient's medical notes in hard copy format" and the Claimant's electronic database, Theatre, for recording and retaining patient's medical records which contains, amongst other things, patients’ dates of birth, addresses, hospital numbers and medical information including details of operations they had had and which doctor performed each operation.[44]In my judgment, there is no room for dispute about the issues raised by this claim. They are:(1) Is the information on the Claimant’s Theatre database about its patients and their treatment information that is confidential to the Claimant?(2) Does Dr Korashi have such information in his possession? And, if so,(3) Is he entitled to have it?(4) If Dr Korashi would otherwise be bound to return all documents containing such confidential information in his possession and not be entitled to make any use of it, are there any factors which outweigh this so as to enable Dr Korashi to retain the information and make use of it in order to contact former patients of Mr A?[45]These issues were correctly identified by the judge. He concluded that Dr Korashi had no reasonable prospect of success on any of these issues and that there was no other compelling reason for a trial. He therefore gave summary judgment for the Claimant on the claim.

The counterclaim

[46]The counterclaim is a very lengthy document setting out Dr Korashi's complaints against Mr A, describing the Claimant’s conduct towards him and giving certain details of the treatment of over 100 patients and other personal information, such as their hospital number and date of birth. As I have already indicated, it was struck out by the judge as disclosing no reasonable cause of action.[47]It is instructive to look at the relief sought by Dr Korashi in the counterclaim. He sought 14 different orders. The first was an order that the police should be directed to investigate "the uninvestigated issues" in relation to the invalid/void consents and the alleged misrepresentation about Mr A’s qualifications. As pointed out by the judge, the court has no power in these proceedings to make such an[48]The remaining claims were for various orders that the Claimant should contact Mr A's patients and tell them that he had been operating outside his speciality, or offer them further treatment or advice if they felt they had been subjected to substandard medical treatment, or that the Claimant should start an internal enquiry or investigation in relation to the consents given to treatment by Mr A, or to provide information about "the current situation" or to issue a balanced public statement, and so on. For the sake of completeness, I have set out these claims in full in Annex A to this judgment.[49]In short, most of the orders sought against the Claimant were for directions that it should, in one way or another, notify the former patients of Mr A that he may have treated or operated on them without obtaining valid consent so that, if they felt they had been the subject of poor treatment, they could make a formal complaint.[50]It is important to note that, save for two cases, there are no allegations that the patients suffered any injury or damage as a result of their treatment by Mr A. Apart from those two cases, the allegation in relation to each patient is made in one of two standard forms. The first is: “The issue of the alleged fraudulent and/or void/invalid Consent and the issue of misrepresentation of training, skills and qualifications by [Mr A] never investigated by the Claimants, nor by the Police, nor by the GMC." The second is: 51. "The issue of the alleged fraudulent and/or void/invalid Consent and the issue of misrepresentation of training, skills and qualifications by [Mr A] never investigated by the Claimants, nor by the Police, nor by the GMC. Also, the issue that [Mr A] operated on her at a time when he was not trained nor skilled enough to do that was never investigated."

The second is:

[51]The only assertion that comes anywhere near being an allegation that injury or harm resulted from treatment by Mr A is in the following terms (at paragraph 21.44): “I believe that the patients would arguably might (sic) have had less complications, better outcomes and less deaths but for the alleged breach of duty by [Mr A]."[52]In my view, such a general assertion, couched as it is in speculative terms - "would arguably" or "might", is not capable of raising a triable issue, particularly since the breaches of duty alleged were the general ones of not disclosing the limitations of his training and qualification and, in some cases, carrying out operations that may have been beyond his capabilities - not that any particular (and identified) operation was poorly carried out so as to cause injury to the patient, apart from the two incidents identified. These generalised allegations are just too vague and in any event amount to no more than a statement of Dr Korashi's belief, not to an allegation of fact.[53]Further, whether or not any particular operation carried out by Mr A outside his capabilities actually caused injury is not a question to which the answer was directly relevant to the relief sought. Dr Korashi's case is that each patient has a right to know that she was treated or operated on by a doctor who was not qualified to do so, and therefore may have given a consent to that treatment or operation which was not properly informed, irrespective of the eventual outcome. It is not a case that only those patients who were actually caused injury have a right to know this. In any event, one might think that if any patient had suffered injury in this way, she would be likely to have made a complaint about it. So far as I am aware, there was only one such complaint and that was the subject of litigation (it is possible that the second of the two complaints to which I refer in the next paragraph may also have given rise to a complaint - I do not know). For the reasons that I give below, I do not consider that either of the two patients who have suffered injury from allegedly negligent treatment by Mr A would need to be told of Mr A’s want of qualifications.[54]Each of the two specific cases in which harm or injury is alleged were the subject of the investigation in October/November 2004 by Mr Peter Bowen-Simpkins, a Consultant Obstetrician & Gynaecologist, to whom they were referred along with the four other cases. As I have said, the first had given rise to a claim for clinical negligence by Mr A which was eventually settled by the Claimant, and so Mr Bowen-Simpkins declined to comment on it save to note that Mr A accepted that he should have sought the advice of a colorectal or general surgeon when carrying out the second operation on the patient. In my view this patient does not need to be told now that Mr A might have acting outside his capabilities: liability was either admitted or accepted and the claim would have been settled for a sum that reflected the pain, suffering and loss of amenity sustained by the patient. In any event, Mr A's want of qualification was inherent in the nature of some of the allegations made against him, in particular that he should have sought the opinion of a Consultant Colorectal Surgeon following the patient's admission to hospital and subsequently on 10 December 2003. Further, I do not see how any want of qualification on Mr A’s part, once it was accepted that the operation was negligently performed, would have added to the claimant’s damages: I cannot see that there could have been any realistic case for aggravated or exemplary damages.[55]In the case of the second, whilst Mr Bowen-Simpkins recorded that Mr A had no doubts about his ability to perform the procedure although he accepted that in using the technique of using cutting diathermy he "may have been at fault", he expressed the view that the repair of an incisional hernia was not outside the abilities of a gynaecologist (which Mr A was). In other words, any error that Mr A may have made was not the result of any want of training or qualification on his part.[56]In the second of these cases, therefore, no question can arise of any need to tell the patient that Mr A was not trained or qualified to carry out the operation in question because that was not the position. It was a straightforward surgical error by a doctor acting within his area of competence.[57]In the submissions prepared for this hearing Dr Korashi accepted that such disclosure to the patients might cause considerable stress to them. However, he submitted that "the stress caused is outweighed by the benefits of such disclosure in that her human rights would be respected" (paragraph 53). The point was also made that the patient's right to confidentiality would not be breached by disclosing the confidential information to the patient herself. This is true, but the disclosure that Dr Korashi is seeking to make is of Mr A’s lack of qualification or training to treat or operate on the patient concerned. From an ethical point of view, the course that Dr Korashi proposes to take does not involve asking the patient whether or not she wishes to know about this: she will simply be presented with this potentially stress inducing information without having any choice in the matter. The sole arbiter of this will be Dr Korashi.[58]More significantly, from a legal point of view, it is inherent in Dr Korashi's case that he will have to make use of confidential information - such as the patient's name, address or telephone number, the fact that she was Mr A’s patient and the details of the treatment or operation that she underwent - in order to contact the patient in the first place. That involves making use of the confidential information without the prior consent of the patient.[59]In my judgment, the views of the judges of the Court of Appeal that I have set out above are themselves probably more than sufficient to dispose of the counterclaim, leaving aside the additional reasons for doing so that I have now given. Dr Korashi is for all intents and purposes seeking to raise the very same issues that he raised unsuccessfully in the judicial review application. There is no new relevant material before the court. He has failed to make out any case to justify the use of confidential information without the consent of the patient concerned and the Claimant or to raise any other triable issue. The judge was quite right to strike it out.

The position of Dr Korashi

[60]In an Affidavit sworn on 30 June 2011, Dr Korashi stated, admittedly under protest, that there were "no documents or materials to deliver up to the Claimants under the terms and the provisions of the Order by the set date and time". He was therefore apparently asserting that, as at 30 June 2011, he had no information in his possession relating to patients or their treatment in hospitals under the control of the Claimant.[61]Unless it were the case that Dr Korashi had destroyed or thrown away his copies of his Defence and Counterclaim in this action, and his claim form and statement of grounds in the judicial review proceedings, this statement in his affidavit could not be correct. The Defence and Counterclaim, and the documents attached to it, contain a mass of confidential information about patients in the Claimant's hospitals. For example, pages 7 and 8, forming part of paragraph 18 of the Defence, give a detailed account of the treatment of and operations on one particular patient. Paragraph 21.13 gives brief details of some other operations. Pages 57 to 89 comprise a list of 116 patients (although they are numbered up to 120, three numbers are missing and two concern the same patient) giving, in each case, the date of the operation, the patient's hospital number and date of birth and a short description of the operation carried out by Mr A.[62]The documents attached to the Defence and Counterclaim include the following:(1) Correspondence between Mr A and other medical practitioners about individual patients, which show the patient's name, date of birth and address and contain details of her treatment (at pages A22, A26, A34, and A37).(2) Letters from Mr A to individual patients discussing their treatment (at pages A33 and A35 - the former has the name and address redacted).(3) Professor Shepherd's findings on 10 cases that he investigated (pages A1-A5). These do not give the names or addresses of the patients. The documents in (1) and (2) must have been taken from the patient's file in the hospital records. It is not clear how Dr Korashi came into possession of (3), but I accept that it may have been disclosed in the course of the litigation.[63]These particular examples of confidential information must still be in the possession of Dr Korashi, not least because he told the court at the hearing before me that he had not provided Mr Close with a copy of the Defence and Counterclaim on the ground that he thought he was prevented from doing so by the terms of the injunction, not because he did not have them.[64]Further, there would be absolutely no point in Dr Korashi insisting, as he did in the judicial review claim and still does, that he should be permitted to contact Mr A's former patients, or their relatives, in order to tell them about Mr A's lack of qualifications and training, unless he had the means of contacting them - in other words, an address or a telephone number for each patient.[65]The last point also disposes of any issue about the likelihood or risk that Dr Korashi will contact Mr A's former patients unless restrained from doing so by order of the court. It is quite clear from the fact that his Counterclaim included a claim that the interim injunction should be discharged, reinforced by his passionate assertion to the court at the hearing before me that Mr A's former patients were entitled to know of his lack of qualifications and training, that Dr Korashi has every intention of contacting Mr A's patients if he is not prevented from doing so.[66]I therefore have no hesitation whatever in concluding that:(1) Dr Korashi is and has been in possession of confidential information relating to patients treated at the Claimant's hospitals to which he has no legal entitlement, including patients’ names, addresses and the nature of the operation or operations carried out on them by Mr A.(2) There is every likelihood that Dr Korashi will, unless restrained by order of the court, contact those patients in order to tell them that Mr A treated them or operated on them when he did not have the qualifications or training to do so. In fact, I strongly suspect that he would go further and tell them that any consent that they gave to being operated on by Mr A was void or invalid with the consequence that they had been deceived and/or would be entitled to make a claim for damages for assault or battery. Allegations against Mr A of fraud or dishonesty have been a recurrent theme of Dr Korashi's complaints.[67]This only leaves the question of whether there is any principle of law that outweighs the right that the Claimant would otherwise have for the return of its confidential information in the possession of Dr Korashi and for an order to restrain him from using it to contact Mr A's former patients or their relatives. I have already set out my reasons justifying the striking out of the counterclaim based on an analysis of that document and the reasons expressed by the judges of the Court of Appeal in the judicial review proceedings. However, in deference to the submissions made before me by Mr Close and Dr Korashi I propose to explain in my own words why I consider that there is no other compelling reason for a trial.[68]Mr Close submitted that what had been going on within the Claimant's organisation was scandalous. He submitted that there is a strong public interest in the disclosure of medical malpractice and that the Claimant's real objective in pursuing these proceedings was to prevent public disclosure of the fact that it had permitted an unqualified and inadequately trained doctor to perform operations on patients that were beyond his capabilities and, in doing so, had permitted him to hold himself out (or had itself held him out) as having qualifications that he did not possess. The High Court, submitted Mr Close, should not permit such an abuse of process by allowing the Claimant to stifle Dr Korashi.[69]Mr Close submitted also that it was the very person who had appointed Mr A, namely the Claimant’s Medical Director, who was behind the vendetta against Dr Korashi. He was the person responsible, said Mr Close, for the fact that the Claimant had spent very large amounts of public money in order to prevent Dr Korashi from speaking out. He submitted that the allegation that Dr Korashi was in possession of confidential information was simply an excuse to seek an injunction to prevent Dr Korashi from speaking out. He said that there should be a trial so that the court could hear properly from both sides and could investigate whether or not these proceedings were being used to conceal things. He submitted that Dr Korashi should be allowed to have his day in court so that he could defend himself.[70]I agree that there is a strong public interest in the disclosure of any systemic medical malpractice. Indeed, this has been recognised by the NHS which is seeking to prevent doctors from entering into agreements that amount to "gagging orders" with a view to prevent them from disclosing incidents of medical malpractice.[71]However, it is quite clear that the qualifications and training of Mr A, and his capability to perform the work that he was expected to do, have been the subject of extensive investigation by persons and organisations independent of the Claimant. It has resulted in Mr A receiving special training and monitoring and closer control over the work that he is carrying out. I cannot see how any criticism can be made of that.[72]Apart from the two cases that I have mentioned, Dr Korashi has not produced any example of medical malpractice by Mr A resulting in harm: his case in respect of it is based on speculation. As I have already said, it does not raise a triable issue. As Keene LJ observed in the Court of Appeal, there is no basis for regarding these allegations as potentially well-founded in fact.[73]The real case advanced by Dr Korashi is that the patients treated or operated on by Mr A, particularly the cancer patients, are entitled to know that Mr A was, or might not have been, suitably qualified or trained to treat them or to operate on them.[74]It is my view, like that of Rix LJ, that it is highly questionable as to whether the disclosure of this information to former patients (or to the relations of deceased patients) would be beneficial. Dr Korashi accepts that "such disclosure might cause considerable stress to any patient” (paragraph 53 of his Skeleton Argument), but his case is that such stress would be outweighed by the benefits of such disclosure in that the patient's human rights would be respected, her right to know what happened to her would be satisfied and that "her right to start any necessary civil or criminal procedures (sic) against the Claimants will be respected".[75]In my judgment, one thing that is absolutely clear is that the last person to make any judgment about the benefits to be gained from such disclosure is Dr Korashi. He complains bitterly that his campaign of complaints against Mr A, which he contends he had every right to start and carry on, has resulted in his financial, and possibly professional, ruin. It is clear to me, having heard Dr Korashi speak in court, that, however genuinely he may believe that the Claimant or Mr A has behaved badly, he has lost the objectivity required to form a balanced view about the need for or benefit of disclosure to Mr A’s former patients.[76]Having said that, I can see some force in the point that there are grounds for questioning whether the Claimant too, or more accurately those of its officers who are in the position to take the relevant decisions, is a suitable body to decide whether or not to make disclosure to former patients of potential misconduct by one of its former employees in circumstances where there has been criticism of the Claimant in its own management and administration in permitting this to happen. It might fear, not unreasonably, that such disclosure would result in unfavourable publicity and may prompt a flood of litigation, possibly ill considered, by patients who feel outraged but who have not in fact suffered any physical or mental harm (at least, not before the disclosure of the information about Mr A).[77]Nothing in this judgment can prevent Dr Korashi from communicating his concerns in confidence to the GMC, or to any other professional body to whom he thinks they should be referred, provided that in doing so he does not disclose confidential information in relation to any particular patient. The GMC Panel, to which I have already referred, took the view that Dr Korashi was justified in having concerns about the safety of Mr A's patients. In these circumstances, I see no ground for assuming that the GMC would not give responsible and proper consideration to Dr Korashi's concerns. I should add that, whilst the GMC has imposed a condition on Dr Korashi’s registration that he must discuss any concerns about issues of patient safety “with his appointed mentor”, so far as I am aware Dr Korashi is not presently employed and has no appointed mentor - at least, that is his stated position and the Claimant is not in a position to contradict it.[78]Further, I am firmly of the view that this is not a decision that should be taken by the court. Disclosure of the relevant information to former patients is pre-eminently a matter of medical judgement. It will be in rare cases that it would be appropriate for a responsible medical organisation’s judgement in such a matter to be challenged in a court. For the reasons given by the judges of the Court of Appeal in the judicial review proceedings, this is not one of them.[79]For these reasons I can discern no principle of law or other factor that outweighs the Claimant’s common law right to the return of its confidential information in the possession of Dr Korashi and to an order to restrain him from using it to contact Mr A's former patients or their relatives. I realise that in reaching this conclusion I am largely echoing the observations that have been made in the Court of Appeal that I have already quoted, but for the reason that I have given I thought it appropriate to express my conclusion in my own words.

Abuse of process

[80]Mr Close submitted that the Claimant should not have been permitted to pursue its application for summary judgment so long after taking out its application in January 2010. This was a bold submission, to say the least.[81]The main reason why it has taken so long for this application to be heard is because of the repeated applications by Dr Korashi to have previous hearings adjourned, either on the ground of inability to obtain legal representation or, more often, on the ground of ill health. A full chronology of this litigation is set out in the table in paragraph 23 of the 4th witness statement of Mr Fisher. In two instances where Dr Korashi sought to appeal against orders relating to adjournments, his application was certified by the Court of Appeal as being totally without merit. Even if any of those applications was well founded, the reason for it was not one that could be laid at the door of the Claimant. A particularly unsatisfactory example of delay during the latter part of 2010 and the early part of 2011 was brought about by Dr Korashi's refusal to authorise the disclosure of a report following a medical examination by an independent consultant ordered by the court in order to assess his fitness to attend or conduct a hearing. The reason he gave for doing so was described by Bean J as "spurious". That was no overstatement.[82]There is absolutely nothing in this point. I should add that the opinion of the doctor who said in the letter dated 17 January 2012 to which I have already referred that Dr Korashi was not currently well or fit enough to attend a court proceeding was not correct. Not only did Dr Korashi attend the hearing before me, but also he was very quick to interrupt Mr McGregor, or indeed Mr Close, if there were something that he wished to correct or to explain. When he did so he was articulate and fluent. I am not prepared to go so far as to say that he could have conducted the hearing himself, merely that I saw nothing to suggest that he could not have done so.

The refusal to adjourn the hearing of 25-27 May 2011

[83]At the outset of the hearing I was referred to a briefly reported decision of Neuberger J, as he then was, in Riverpath Properties v Bramall (2000) TLR 108. He said that, whilst the court had a wide discretion when considering an application to set aside an order made when one of the parties had not been present at the hearing, it was unlikely that the court would exercise its jurisdiction to set aside where it was satisfied that there was no real prospect of it changing its original order.[84]It seemed to me that if I took the view that there was any real substance in Dr Korashi's case, there might be grounds for setting aside the judgment having regard to the medical evidence and, in particular, the compelling compassionate reasons relating to his wife's illness given by Dr Korashi for being unable to attend the hearing. It therefore seemed to me appropriate to start by considering the underlying merits of Dr Korashi's case, because if I formed the view that there was no prospect that Dr Korashi could have succeeded at an adjourned hearing any further adjournment would simply be a waste of time and costs.[85]Accordingly, in the light of the conclusions that I have already reached, it is unnecessary for me to consider whether or not the judge should have adjourned the hearing. Although I have given my own reasons for concluding that Dr Korashi has no real prospect of successfully resisting the claim for an injunction and the delivery up of the confidential documents, they are, albeit differently expressed since I have heard the submissions of Mr Close on behalf of Dr Korashi, in substance much the same as those given by the judge in his careful judgment. Similarly, for the reasons that I have now given, Dr Korashi's counterclaim was bound to fail.[86]To the extent that Dr Korashi was entitled to his day in court, he has now had it. There is no reason, compelling or otherwise, for setting aside the judgment of His Honour Judge Peter Clark in order that there can be a trial. The issues raised by Dr Korashi's concerns are ones for the appropriate medical authority, not the court.

Conclusion

[87]The application by Dr Korashi to set aside the judgment of His Honour Judge Peter Clark of 27 May 2011 is dismissed.

Further applications made by the Claimant

[88]In addition to the application made by Dr Korashi, there were before me two further applications by the Claimant. The first was for a Limited Civil Restraint Order in order to prevent him from making any further applications against the Claimant in these proceedings without the permission of a judge. The second was for permission to enforce outstanding costs orders made by Nicol J on 12 February 2009 in the sum of £16,388.29 and Eady J on 9 November 2009 in the sum of £14,500.[89]So far as the first application is concerned, in the light of this judgment I consider that it is unnecessary. Dr Korashi can only apply for permission to appeal, and that application must be made to me in the first place and, if I were to refuse it, then to a judge of the Court of Appeal. In these circumstances, I am not sure that much is to be gained by making a Civil Restraint Order at this stage, although Dr Korashi must be under no doubt that such an order might be made in the future if it should prove necessary.[90]As to the application in respect of the costs orders, from what I have been told by Dr Korashi it sounds most unlikely that in the present circumstances there is any prospect of the Claimant achieving any recovery of these costs. However, if the Claimant wishes to pursue this application and, in addition, to make an application for the costs of Dr Korashi's application that is the subject of this judgment, I will hear the parties further.[91]It would probably save time and costs if the Claimant would submit brief submissions in writing within 14 days, and Dr Korashi would respond, also briefly, within 14 days thereafter. In his submission in response, Dr Korashi may well wish to give details of his financial position, but that is a matter for him. However, if either party wants to have these matters dealt with by way of an oral hearing, then the court must be notified within 7 days of receipt of the approved judgment and a hearing will be arranged. ANNEX A - RELIEF SOUGHT IN DR KORASHI’S COUNTERCLAIM And the Claimant Claims: (1). An Order to South Wales Police to investigate the uninvestigated issues of the alleged Fraudulent and/or invalid/void Consents and the issue of misrepresentation of qualifications and training in the hundreds of signed letters and medical notes signed by Mr A in relation to all the patients listed in Category 1 and Category 2 above during the period from 12/12/2022 to 18/05/2005. (2). Order for Injunctive relief of 19/03/2009 be discharged. (3). An order to the Trust to Contact all cancer patients treated by Mr A immediately and inform them about all the negative and positive aspects found about the clinical care they have received including the various investigations and findings, not the least that he was not trained to do his job. (4). An Order to the Trust to Contact all other patients whom he operated on in areas outside his area of speciality and outside the scope of his clinical expertise and explain all the negative and positive aspects. (5). An Order to the Trust to Contact all next of kin of the dead patients and inform them about the Care received by their deceased relatives. (6). An Order to the Trust to Contact all the patients and the GPs that Mr A contacted between December 2002 and December 2005 with tens and tens of letters describing himself as a “Specialist in Gynaecological Oncology” and as a “Consultant in Gynaecological Oncology” and inform them that these descriptions are wrong and that was a misrepresentation of his status and was an error. (7). An Order to the Trust to Offer the patients any form of Clinical Review, Clinical Investigations, Second Opinion Consultations, and any form of treatment or operation they might need. The patients have the Right to Life and protection from harm. (8). An Order to the Trust to Start an immediate internal inquiry including interviews with the patients to make sure that the Consents taken by Mr A from them were not taken by deception and/or fraud as Claimed. (9). An Order to the Trust to start an internal investigation to investigate the complaint that Mr A had allegedly obtained Consents by misrepresenting himself to them and that the Consents were “Void” and “Invalid”. It would be extremely inappropriate to argue that a doctor who was not trained to do his job was able to secure proper Informed Consents. (10). An Order to the Trust to Report Mr A and Dr Calvert to the GMC with all the new information and findings and the various reports that the Trust has not previously disclosed to the GMC and ask the GMC to investigate them as it is evident that they might have breached the duties of Good Medical Practice, in particular in relation to the validity of all the Consents taken by Mr A and the letters he wrote to tens and tens of patients describing himself as a “Consultant and a Specialist in Gynaecological Oncology” and ask the GMC whether there were any breaches of Good Medical Practice in him doing that and failing to contact these tens and tens of patients and GPs again and explain to them that these letters were sent in error. (11). An Order to the Trust to Give the patients and the families adequate information bout the current situation and inform the patients and the families that they have the right to seek advice on the matter and if they feel that they were subjected to negligent and/or substandard medical treatment, they have the right to complain about that to the Trust and/or to issue medical negligence claims. (12). An Order to the Trust to Inform all the above patients, excluding the Schauta’s patients, about the Police Investigation into the care they have received and the findings to date and to Give all the patients and families concerned that contact details of ACC Collette Paul and the Senior Investigating Officer CI Dane Richards who were in charge of investigating the complaints to the Police about the alleged criminal offences committed against any of these patients. (13). An Order to the Trust to Give the patients and the families adequate information about the current situation and inform the patients and the families that they have the right to seek advice on the matter and if they feel that there was a possibility that they were the victims of Crime, they have every right to report the Trust to the Police and request an investigation. (14). An Order to the Trust to issue a balanced Public Statement about the matter and properly staffed dedicated Helpline for the patients. And/or further a dedicated Window in their Website to the families and the patients.

order

the police were not a party to them. The second was for the discharge of the interim injunctive relief that was continued on 19 March 2009.