Jowhari v NHS England [2014] EWHC 4197 (QB)

[2014] EWHC 4197 (QB)Case No HQ13X02974
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/12/2014
Before
SIR COLIN MACKAY
Between
Dr. Haitham JowhariClaimantNHS EnglandDefendant
Suhail Nigar (employed by Directus) for C laimantVikram Sachdeva (instructed by Browne Jacobson) for DefendantHearing Hearing dates: 26 – 28 November and 1 December 2014
JudgmentSir Colin Mackay:
[1]The claimant is a dentist and brings this claim against the defendant as successor to the legal liabilities of the City and Hackney Primary Care Trust. The claim is brought in negligence and/or breach of statutory duty. It asserts that the defendant unlawfully removed the claimant’s name from its dental performers list (“the Hackney list”) and he has suffered financial losses as a result. The defendant argues that his name was withdrawn from the Hackney list with his consent and also that even if the removal of his name was unlawful it does not sound in private law damages.[2]A performers list is a register, open to public inspection, of qualified dentists who are approved to carry out NHS dentistry. It is administered locally by the PCT within whose area the dentist is intending to practise, though he is not necessarily confined to that area for the performance of his work. Without such registration a dentist who is otherwise qualified and registered with the GDC is entitled to carry out private dentistry but not NHS funded work. For NHS work he must be on a performers list and also listed as being attached to a practice which has a contract to carry out a defined amount of NHS work. It is necessary in view of the nature of this claim to set out certain relevant parts of the legislation.[3]The National Health Service (Performers Lists) Regulations 2004 SI No. 585 were in force at the relevant time. They were made by the Secretary of State for Health in the exercise of powers conferred upon him by the National Health Service Act 1977. It required a PCT to prepare and publish a list upon application to it in writing by an intending performer of NHS Dentistry. The application, on a detailed form some five pages long, has to include a great deal of information about the applicant and his personal and professional background, more particularly as set out in regulation 4. Grounds for refusal are specified at regulation 6. Neither of these needs to be recited in this judgment. The statutory scheme is plainly designed to ensure that only dentists of suitable experience, character and integrity are entitled to carry out publicly funded dentistry.[4]Regulation 10 sets out the circumstances in which a name must be removed from the list, including matters such as serious crime, disqualification and death.[5]The regulation continues by setting out discretionary grounds for removal, namely- (3) The Primary Care Trust may remove a performer from its performers list where any of the conditions set out in paragraph (4) is satisfied. (4) The conditions mentioned in paragraph (3) are that –(a) His continued inclusion in its performers list will be prejudicial to the efficiency of the services which those included in the relevant performers list perform…(b) He is involved in a fraud case in relation to any health scheme; or(c) He is unsuitable to be included in that performers list….. (6) Where the performer cannot demonstrate that he has performed the services, which those included in the relevant performers list perform, within the area of the Primary Care Trust during the preceding 12 months it may remove him from its performers list. (8) Where a Primary Care Trust is considering removing a performer from its performers list under paragraphs (3) – (6)… it shall give him – (a) Notice of any allegations against him; (b) Notice of what action it is considering and under what grounds; (c) The opportunity to make written representations to it…(d) The opportunity to put his case at an oral hearing before it if he so requests… (9) If there are no representation within the period specified in paragraph (8)(c) the Primary Care Trust shall decide whether or not to remove the performer and then, within seven days of making that decision, notify him of (a) That decision and the reasons for it… (b) Any right of appeal [to the Family Health Services Appeal Authority] under regulation 15.[6]Finally regulation 17 deals with withdrawal from performers lists by giving a performer the right to give notice of his intention to withdraw from a performers list, if he is accepted on to the list of another PCT, at least 3 months in advance of the date on which he intends to do so. When it receives such a notice the PCT is required to “amend its performers list as soon as possible”, either: - “(i) on the date notified by the dentist, provided it falls at least three months after the date of the notice, or (ii) on the date from which it is agreed that the withdrawal shall take effect, whichever is the earlier”.[7]The claimant’s name was taken off the list in May 2008 and restored to it in October of that year. He claims it was unlawfully removed and he is therefore entitled to damages in respect of lost income within that five month period, during which time he claims he was confined to private practice and unable to and did not carry out any NHS Dentistry. He also claims that he thereby lost the opportunity to purchase the practice in which he was then working which he would otherwise had done.[8]The defendant argues that these regulations do not confer a private law right to claim damages for pure economic loss, as they exist for the protection of the public not for the benefit of dentists. It claims he consented to the removal of his name and/or amendment of the list for the relevant period. It challenges the losses claimed. The parties agree that I should limit this judgment to the issues of duty breach and causation, and not deal with quantum of loss.[9]With that general introduction I must turn to the relevant chronology in this case, as I find it to be.

The Chronology

[10]The claimant qualified as a dentist in Greece and was first registered on the UK register of dentists on 23 August 2004. There is no issue in this litigation about his competence and ability as a dentist.[11]On 9 August 2005 he applied to join the Hackney list. That was successful and on 1 November 2005 he was told that he would be included on the list as from 20 October 2005. The procedure by which a dentist could withdraw from the list was set out in the letter he received.[12]In about June 2006 he started work in a practice in Stoke Newington which was owned by a Mr Manbajood. By about 21 or 22 May 2007 he had decided to move from that practice and a few days later he started work at a practice in New Addington owned by a Dr Uberoi. This practice was in the area covered by the Croydon PCT. He made an application to join the Croydon list at about this time, but it was lost by the PCT, he said in evidence.[13]On the 30 May 2007 an internal email within the defendant organisation recorded that it had received a letter from Mr Manbajood saying that the claimant was no longer working in his practice and his end date was recorded as 22 May, a date with which the claimant did not significantly disagree.[14]On 7 June 2007 the defendant says that a letter of considerable importance in this case was sent to the claimant. The claimant vehemently denies that he ever received it. I should set out its terms in full:- “I have been informed that you no longer work at the above practice [in Stoke Newington] and therefore confirm that your name has been removed from the City and Hackney dental list with effect from 31 May 2007. PLEASE NOTE: unless otherwise notified in writing that you wish to remain on the list your name will also be removed from the City and Hackney Dental Performer List. This means that if you wish to continue to provide NHS dentistry and you have not already done so you should apply to the PCT where the majority of your work will be carried out”. That was signed by Tracey Murphy, a dental contracts officer, who was an administrator of the Hackney list, albeit employed by the North East London Family Health Services Consortium; an entity to which that work was outsourced. PLEASE NOTE: unless otherwise notified in writing that you wish to remain on the list your name will also be removed from the City and Hackney Dental Performer List. This means that if you wish to continue to provide NHS dentistry and you have not already done so you should apply to the PCT where the majority of your work will be carried out”.[15]This letter was directed to be sent to the home address at which the claimant was living at the relevant time. There was no response to it. The claimant says that was because he never received it. His wife in her witness statement said that at a later meeting with a Mr Rattan, acting on behalf of the defendant, she may have said that they had received it “in my naivety” as she put it in her witness statement, or to “calm her husband down” as she said in evidence. I found that a strange answer given the claimant’s temperament, of which more below. For reasons I will set out below I find it is more likely than not that this letter was sent to and read by the claimant.[16]The claimant applied for inclusion in the Croydon PCT list on 12 November 2007. That application was never resolved due to grave delays in the administration of that Trust. Meanwhile he worked in Croydon.[17]By February 2008 the claimant had stopped working in the Croydon area and was attracted to the prospect of joining the Well Street Dental Practice in the jurisdiction of Hackney PCT, owned by Mr Pirouznia.[18]He had obviously notified the defendant of this intended move and on 4 February 2008 Tracey Murphy sent him by fax an application form for an “on line number” at the Well Street practice (an administrative step necessary for him to obtain electronic payments for NHS work at the new practice) and asked him to complete that form “if you are on another PCT performer list.” She concluded “Once I have received the application and documents and have confirmed your inclusion in a PCT list then you will be attached to Mr Pirouznia’s contract within a couple of days” (emphasis added).[19]The language of that covering letter is obviously entirely inconsistent with the claimant’s name still being on the Hackney list at that date.[20]In the application form itself was a question “Are you included in a PCT performer list?” and the box for Yes was ticked. The form continues “if Yes, which PCT” and there was a blank. That form is signed by the claimant, as he accepts, on 8 February 2008 but he says he never read it, his wife filled it in and he left all that sort of thing to her. He started work at Well Street on about 11 February 2008.[21]The remarkable feature of this is that the claimant did not respond to the defendant’s covering message by saying, as one would have expected if he still believed he was on the Hackney list, that he did not understand what the writer was talking about because he was on the list and he did not need to apply to be on it. The defendant says that he was silent on that point because he knew perfectly well that his Hackney registration had been effectively withdrawn eight months before. He said it was because he did not look at the document before signing it but left it all to his wife.[22]It is of interest that in his claim form he had said he had been first told that he had been “de-listed” by the defendant on 6 May 2008. He said in his evidence to me that that was wrong and that he was told in May 2008 by Tracey Murphy to stop working, with no reason given, and I stopped he said without protest or without questioning what she had said. I am unable to accept that evidence given his personality as exhibited in his evidence and the contemporaneous documentary exchanges. He was not told of any de-listing until his lawyers told him about it in about September 2008.[23]On 21 February 2008 there began an important email chain. Having received his application to be attached to the Well Street practice Tracey Murphy emailed the claimant stating that before she could do this she would - “…need to confirm if you are on a performer list anywhere in the country. You have stated that you are on a performer list but not on which one. Could you please let me know ASAP”?[24]The claimant replied in these terms - “My performer number is 36758 which is for Stoke Newington” She responded that he had been removed from the Hackney performer’s list w/e/f 1 Jun 2007 “therefore you are not on the list in this area. If you are on a performers list elsewhere in the country please let me know which one. If you are not on a list anywhere it is illegal to work in NHS dentistry”. The response to that from the claimant was that he had made his application to Croydon some time ago and they “should be advising me of my performer number very soon”. Tracey Murphy followed this up asking him to let her know when he had been accepted by Croydon and then she could add him to the contract and she repeated “until you are on a list you cannot carry out any NHS dentistry”. He replied that he thought it would be quicker if he made a new application “through you as Croydon have been so slow”. He asked her if she could expedite the application for which he would be extremely grateful and added “meanwhile I will continue with my private dentistry”. She sent him an application while expressing the view that it would probably not be quicker than waiting for Croydon because the application could take between 10-12 weeks from a standing start.[25]On 2 May he told her that Croydon were “very near” to completing the process and asked what she recommended. She advised him to stay with Croydon for the time being.[26]On the same date the claimant signed the form applying to join the Hackney performer list. In it he said that he had been withdrawn from the Hackney list in June 2007 when he moved to work in Croydon.[27]It will be noted that at no stage did the claimant protest that he could not understand what the problem was because as far as he was concerned he was still on the Hackney list. He said that this was because he had no knowledge of the contents of any of these emails, he cannot operate a computer, he did not read or answer emails but his wife did and “she knows all the answers” though she never discussed the content of these with him. His practice was 99% NHS work, he said (though in correspondence he had said 80-90 %.) That meant that the inability to do such work would have been financially disastrous for him, if that is a true description of his practice, although one of the emails as has been seen contemplates his relying on his private dentistry while any new application was processed.[28]On 6 May Tracey told Dr Pirouznia that the claimant should cease working as he was working illegally, and the claimant reported to her superior that he had called her saying he did not think he was on the Croydon list as “they told him to work under the provider’s number!!!!!” [original emphasis]. The next day in a letter she confirmed that he must stop work immediately as he was “not registered currently on a performers list”.[29]On 3 June in a letter to Tracey’s superior, Caroline Gilmartin, the claimant repeated that Croydon had told him it would be acceptable for him to work under “his (sc. Mr Pirouznia’s) performer number until my own was made active”. On 6 June for his part Pirouznia claimed that the claimant primarily worked with private patients, and that he Pirouznia treated his NHS patients in the presence of the claimant, a bizarre scenario. I must remember that in due course Pirouznia was erased from the register of dentists for making numerous fraudulent claims for treatment he had never carried out, so his credibility is very low.[30]The PCT then instructed Mr Rattan, a freelance dental advisor, to fact find, as he put it, as to what had happened. The claimant told him that the Croydon practice manageress had said that he could start work at the practice while his application to join the performers list was being processed “using the providers number” which must have meant his old number, which would stay with a dentist as he moved from one PCT list to another. It was at this meeting that the claimant’s wife thought she might have told Mr Rattan that they had received the 7 June letter, for the reasons recorded above.[31]The final stage was when the claimant involved Dental Protection and in due course Berrymans Lace Mawer, experienced solicitors in this field, to make representations on his behalf. Their long letter to the trust dwelt on the letter of 7 June 2007 and attacked it on the grounds that it did not constitute a legal removal. What it did not say, and what would have been an even stronger point in the circumstances, was that the claimant had never received it. At all events the solicitors were successful in persuading the trust to restore the claimant to the list on 30 October 2008, though their subsequent attempts to extract compensation on his behalf were not successful and were abandoned by them.[32]As for my view of the witnesses, the claimant was a passionate and at times hot-tempered witness, who believes strongly that all this was a fraudulent attempt by the PCT to use its superior understanding of the law to harm him. I was quite unable to accept his claim not to have seen the letter of 7 June 2007 and not to have been aware of the application form and emails his wife was sending on his behalf in 2008 which I have set out above. She would surely have consulted him about them, once there was a suggestion that he might not be able to practise on NHS cases. He would have been incandescent with rage, as he was more than once in the witness box, if told he had been taken off the list with his knowledge if that had not in fact been the case.[33]His wife of 26 years was a very different personality. She is an intelligent and able person, with a full time job of her own, and loyally devoted to her husband. I accept she typed and sent the emails, as he was not computer literate, but that he received and read all letters addressed to him, all of which he kept together with their envelopes, a practice which she said drove her mad. It is all too easy to see how this arrangement meant that she had never been shown the letter of 7 June 2007. She was at pains to blame herself for writing the emails and filling in the application forms in the way she had, but I find that the strong likelihood is that, knowing as she did of the importance of the performers list, she would have consulted and checked the contents with her husband and did do so. Her evidence to the contrary was tentatively expressed, I thought.[34]Tracey Murphy was not due to be called as a witness in the case, though still working in this field albeit in another area. It has never been suggested she had any improper motive for her actions and it was known well before trial who the Defendant was calling as witnesses. When I asked him, but not before, Mr Nigar said he would like to ask her questions and the defence said they had her contact details and could arrange her attendance for cross examination if it was asked for, even if the trial might have had to be adjourned for a day or two to do so. Mr Nigar on reflection did not ask for this to be done. I draw no adverse conclusions from her absence. Analysis[35]Mr Sachdeva for the defendant does not seek to suggest that what happened here was either a valid removal of a name from the performers list under regulation 10 or a withdrawal under regulation 17. I agree. What happened was that Tracey Murphy on hearing of the claimant’s intended move decided to remove his name from her list in anticipation, assuming on the basis of what the claimant had told her that Croydon was on the brink of adding him to their list and/or that he would confine himself to non-NHS work in the meantime. She appears to have thought, as he raised no objection despite her invitation to him to do so and, in the light of what he said in his emails, that she had made that clear to him and that he was content for the matter to proceed in that way. She was wrong to do this, in the sense that it was outside her powers on a true analysis. As Ms Gilmartin accepted in evidence the real problem was that she did not require him to give positive assent to her proposed removal of his name. If he had that it could have been justified as a withdrawal by him, which required no particular formality bar an application by the claimant. Instead said she put the onus on him and said she would do it unless he objected.[36]From the point of view of the claimant there was little or no discernible advantage to him in proceeding along this route. As he put it, rightly, he had the benefit of the “12 month rule” as he called it. He was referring to regulation 10(6), set out above, which gave a trust the discretionary power to remove from the list a dentist who had not performed the services within its area during the preceding twelve months. He would have had a right of appeal to the FHSAA against such a decision, by way of a rehearing.[37]This therefore was a piece of maladministration, no more and no less, on the part of Tracey Murphy who acted outside the letter of the scheme. The claimant was aware of it at the time and carried on, as he believed as a result of what the manageress at the Croydon practice and/or the Croydon PCT itself told him that he was free to do so, and he was not troubled one way or the other about what Tracey had proposed. He is I am sure a man who is intolerant of bureaucracy and keen to get on with his work. The next question is whether he was owed a duty of care, either under the regulations themselves, or under a common law duty of care in tort, and if so whether that was broken and caused him loss. The Relevant Law[38]The claim is pleaded as a breach of regulation 10 alternatively as common law negligence in removing the claimant from the list. The defendant denies that he was removed, and asserts that if he was the statutory duty on it does not give rise to a private law claim in the hands of the claimant nor is there a duty of care to be imposed on the defendant to take reasonable care to prevent economic loss.[39]The first question is therefore whether the claimant has proved that the statutory scheme in play here itself creates a private law duty on the PCT to take reasonable care to protect the claimant from foreseeable economic loss. The starting point is that ordinarily it will not do so unless on a proper construction the statute is seen to show an intention to confer a duty to the person aggrieved as opposed to a duty owed to the public – see the discussion at Charlesworth: Negligence 12-27 et seq.[40]The defendant argues that this is plainly a scheme designed to protect members of the public from harm, including in particular physical injury, at the hands of “unsuitable” dentists or those who present a physical or moral hazard of some sort to patients. It affords no protection for applicant dentists, bar a procedural right of appeal against adverse decisions, and specifically does not set out to protect their economic interests. There is no indication here of any type which would require a departure from the starting position I have described.[41]The second question is therefore whether a private law duty exists at common law whereby the claimant can show that there is a sufficient relationship of proximity, reasonable foreseeability of damage to him, and it is fair just and reasonable to impose such a duty in all the circumstances as discussed in Caparo v Dickman [1990] 2 AC 605.[42]Again the important question is the purpose of the statute. In Jain v Trent Strategic Health Authority [2009] UKHL 4; [2009] 1 AC 853 the House of Lords considered the liability in private law of an authority with responsibility for the registration of nursing homes under the Registered Homes Act 1984 which had, as a result of reliance on inaccurate information and a slipshod investigation, obtained an order from magistrates ex parte the effect of which was to close the applicant’s home and ruin his business. The House of Lords upheld the Court of Appeal’s decision that the authority owed no duty of care to the claimant because the purpose of the statutory power granted to it as a registration authority was the protection of residents in nursing homes, and the imposition of a tortious duty of care to those whose interests might be adversely affected by an exercise of that power, which could potentially inhibit the exercise of the power to the detriment of those who it was designed to protect.[43]Giving the leading judgment Lord Scott of Foscote reviewed the previous authorities including particularly D v East Berkshire Community NHS Trust [2004] QB 558; [2005] 2 AC 373. He concluded in these terms - “The 1984 Act conferred statutory powers on registration authorities. These powers enable the registration of authorities to entertain applications for registration of nursing homes…to refuse such applications…to cancel registrations...and to apply ex parte to a magistrate for an order cancelling registrations with immediate effect…. The exercise of the powers … may often, perhaps usually, cause economic damage to the proprietors of the nursing homes or …the intended nursing homes. The purpose of these powers, however, is to protect the interests of the residents in nursing homes. The interest of the proprietors of nursing homes that the homes should remain open for that use “are in potential conflict with the interest of …” the residents: see D. v East Berkshire NHS Trust [2004] QB 558 Para 86”[44]In Mohammed v Home Office [2011] EWCA (Civ) 351; [2011] 1 WLR 2862the Court of Appeal held that the Home Secretary did not owe a common law duty of care to two applicants for leave to remain in the UK to avoid maladministration in the exercise of her power. The courts said that common law negligence could occur in the course of exercising a statutory duty or power but it could not on principle occur on the actual discharge of the function. The example given by Sedley LJ at paragraph 12 was of an environmental health officer breaking the restaurant’s china while conducting his inspection. He held that the common law had not recognised the concurrent duty of care outside or alongside the statutory framework. Neither did it pass the Caparo test as to whether it was fair just or reasonable that it should do so when other recourse is in fact available (in that case to the Parliamentary Ombudsman).[45]In the instant case the defendant makes the point that if this had been a true removal there existed a right of appeal under the regulations themselves. It is also the case that the claimant could have sought judicial review of any FHSAA appeal decision and its attendant remedies.[46]This principle, for such I consider it to be, was confirmed in Desmond v Chief Constable of Nottinghamshire Police [2011] EWCA (Civ) 3; [2011] PTSR 1369 where the Court of Appeal held that the duty of a Chief Officer of Police to provide information to the Criminal Records Bureau did not give rise to cause of action and that in acting pursuant to that duty the Chief Officer did not assume a responsibility which the statute did not oblige him to undertake. Sir Anthony May P concluded his judgment in this way at Para 40:
“But if Parliament stopped short of imposing a private law duty in favour of individuals, sufficiently compelling special circumstances are required beyond the mere existence of the duty or power to make it fair and reasonable to impose a duty to an individual of a scope to be derived from the special circumstances”
[47]The factors to be taken into account, he held, were the subject matter of the statute and its intended purpose and whether a concurrent private law duty might inhibit the proper and expeditious discharge of the statutory functions and whether such a duty would expose the authorities budgetary and other discretionary decisions due to judicial enquiry. It was also relevant, he thought, that there were other remedies available to the claimant if he was aggrieved – see Para 51.[48]Mr Nigar in his closing submissions directed my attention to Phelps v Hillingdon London Borough Council [2001] AC 619 in support of his argument that Tracey Murphy was engaged in an operational role in relation to the claimant’s exclusion from the list and not one related to social policy therefore the defendant could be held liable for a careless operation of the scheme. As noted above the Court of Appeal in Mohamed at paragraph 12 accepted that common law negligence could occur in the course of exercising a statutory duty or power, hypothetical examples being given, one of which I cited above. But while I acknowledge the ingenuity of Mr Nigar’s submission this is not such a case. As Sedley LJ said the duty of care “cannot on principle occur in the actual discharge of the function” which in my judgment describes what she was purporting, rightly or wrongly, to be doing at the relevant times in this case, and which is therefore not a function which ought in my judgment to attract the imposition of a duty of care given the purpose of the statute.[49]It is in my judgment plain that the statutory scheme did not itself create a private law right in the hands of persons suffering economic loss as a result of a failure on the part of the authority to exercise its powers carefully. Nor in this case are there any special circumstances of the kind referred to in the authorities which would warrant the imposition of a duty of care at common law. The position is rather reversed, namely that the whole performer list scheme is plainly designed to give a local overview of the suitability of a dentist to carry out publicly funded dental work on those within the area of the authority (and elsewhere for that matter).[50]I therefore conclude that no duty of care was owed to the claimant either under the statute or at common law to protect him from economic loss. If I am wrong in that then there was in my judgment no breach, as having made her initial mistake Ms Murphy acted reasonably in concluding as she did that the claimant was acquiescent or content to proceed without being on the Hackney list; alternatively the claimant did not rely on her breach the existence of which she had disclosed by her emails of 21 February and 2 May at the latest in the face of which the claimant accepted the position without demur, but carried on working, as a matter of probability under his principal’s performer number both at Croydon and Well Street.[51]For the reasons I have endeavoured to give this claim must be dismissed.