Dr Michael Kircher v Hillingdon Primary Care Trust
| Jurisdiction | England & Wales |
| Judgment Date | 13 January 2006 |
| Neutral Citation | [2006] EWHC 21 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim No. HQ 05X01391 |
| Date | 13 January 2006 |
[2006] EWHC 21 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
David Foskett Qc
(Sitting as Deputy High Court Judge)
Claim No. HQ 05X01391
I direct that pursuant to CPR PD 39A, paragraph 6.1, no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
By this application the Claimant, Dr Michael Kircher, a Consultant Psychiatrist, seeks interim relief against the Defendant, his employers, the Hillingdon Primary Care Trust, in relation to a letter dated 26 May 2005 terminating, or purporting to terminate, his contract of employment.
In essence, by his Application Notice he seeks an interim injunction until trial preventing the Defendant from acting further upon that letter until the disciplinary procedures provided for within his contract of employment have been exhausted if that route is the route it chooses to resolve the current difficulties. He also says that there are other options they might choose to pursue in the meantime. The Defendant resists the application saying in a nutshell (a) that it is not obliged to go through the disciplinary procedures, (b) that the notice provision within the contract (upon which it says in effect it relied when writing to the Claimant on 26 May) takes precedence over any provision concerning disciplinary procedures, (c) he has been dismissed in a way that has brought to an end his contract such that there are no disciplinary procedures left to employ and (d) in any event, damages will constitute a suitable remedy for any breach of contract on its part and that, accordingly, no injunctive relief is appropriate. There is an issue about whether I am to apply the American Cyanamid principles to this application or those referred to in the judgment in Zockoll Group Ltd v Mercury Communications Ltd [1998] FSR 354. The principles enunciated in the latter case concern the approach to granting an interim mandatory injunction.
I will turn to these issues below, but I should record briefly two matters that are themselves preliminary to the substantive application.
Preliminary matters
First, the Claimant's case in support of the interim application relied in part on certain material that was arguably "without prejudice" and thus privileged from disclosure. The Defendant took objection to the use of that material and invited me to rule on its admissibility as a preliminary issue. It was accepted that in order to fulfil that task I should, in accordance with usual practice, read and consider the relevant material de bene esse on the established basis that should I rule against its admissibility I would put that material out of my mind on the substantive application. I heard argument from Mr Moon for the Defendant and Mr Sutton for the Claimant on these issues and gave an ex tempore judgment in which I acceded to certain objections from the Defendant and rejected others. It followed that certain material that I had read and considered for the purposes of making this ruling became inadmissible on the substantive application. I invited the parties to agree a redacted version of the Claimant's main witness statement to reflect my ruling. This was, in due course, done and in accordance with standard judicial practice I have taken into account on this application only the admissible material.
Second, and somewhat surprisingly in the light of the approach that the Defendant agreed I should adopt, after giving my ruling I was then invited to recuse myself from further consideration of the application because I had seen material that I had ruled inadmissible. I heard argument from Mr Moon and Mr Hendy QC (for the Claimant) on this issue and in a further ex tempore judgment declined the Defendant's invitation to recuse myself.
Essential background
Since this is merely an interim application I will confine myself to what seems to me to be the essential factual background for the purposes of determining that application. Regrettably, even the shortened version of the story is quite lengthy and complex, but the full story is probably even more complex and may yet need to be unfolded in due course.
The Claimant studied in Germany and the Netherlands and is, as I understand it, registered as a medical practitioner in each country. His specialities were in the fields of psychiatry and neurology. He was appointed to the UK Specialist Register as a psychiatrist and also trained as a GP before being appointed to the position of Consultant Psychiatrist with the then Hillingdon Hospital NHS Trust on the terms referred to in paragraphs 8 and 9 below.
In July 1998 the Claimant was offered appointment as a Consultant Psychiatrist at Hillingdon on the basis of a six-month contract with effect from September 199In March 1999 this appointment was converted into a permanent post.
The appointment was subject to the Terms and Conditions of Service of the Trust Hospital Medical and Dental Staff. Those terms and conditions contained two material conditions for the purposes of this application:
(a) paragraph 7 of the letter of appointment states that the employment "is subject to three months' notice on either side";
(b) whilst there is some difference between the parties about whether paragraph 2 or paragraph 13 of the letter of appointment is the operative paragraph for this purpose (and nothing turns on this), it is accepted that by virtue of one or other of those paragraphs certain disciplinary provisions were incorporated into the contract, one feature of those disciplinary provisions being what is known as the HC(90)9 procedure concerning matters of professional conduct and professional competence. I will return to this procedure below.
Although there had been rumblings prior to May 2002, the difficulties which have given rise to the present application first surfaced in an unsigned letter, apparently emanating from the "South West Community Mental Health Team", dated 28 May 2002 and addressed to the Claimant. It was apparently handed to him by Mrs Noreen Rice, to whom I will refer in paragraph 11. I need not quote the whole letter, its essential flavour being clear from the first two paragraphs which I do quote:
"We would like to express our concerns regarding the difficulties that have arisen in our multidisciplinary referral meeting. This focuses on the team's working relationship with you.
Some team members have felt that there is a lack of respect for their clinical judgments and opinions with regards to case discussion. Views are not listened to when the team is discussing an appropriate course of action and some team members have expressed feelings of intimidation and bullying behaviours. This leads to members feeling unable to contribute to the discussion and decision-making process."
The letter concluded with an invitation to the Claimant to express "any views that [he] may have with regards to resolving these difficulties."
The Community Mental Health Team ('CMHT') of which the Claimant was a part moved to a unit called Mill House in August 2000. Mill House was a Community Mental Health Resource Centre and Mrs Noreen Rice became its Locality Manager at this time. An internal inquiry commissioned in June 2002 prepared a report dated 4 November 2002. The investigation that led to this report and the report itself are the subject of considerable criticism on the Claimant's part for reasons to which I will refer later, but it is worthy of note that its authors concluded that the Mill House working environment was "extremely stressful", that "proper team working was never established after the move to Mill House" and that "the team has been very dysfunctional at many times during the last year or so." It concluded that the reasons for the difficulties were "complex" and that responsibility lay "with many team members and service managers." Amongst other things, the report drew attention to conflicts that had arisen between the medical team and the management team referring to it as a "power struggle". Whilst the report was critical of some aspects of the Claimant's style and conduct, it recorded that he was regarded "as a good doctor by everyone we have interviewed". The report also concluded that the letter of 28 May "was written without the knowledge, involvement and support of many senior members of the [CMHT]."
I interrupt the chronology to record that the full report of this inquiry was not made available to the Claimant and his advisers until 14 August 2005 although a summary of certain matters contained in the report was made available to him in December 2002.
Although the letter of 28 May was addressed to the Claimant personally and marked "private and confidential", it is clear that its contents had become known more widely. According to the Claimant, the Chief Executive of the Trust, Mr David McVittie, was in possession of a copy the day after the Claimant had received it. On 16 July the Human Resources Manager – Medical Staff, Carole Band, wrote to the Claimant informing him that, in the light of the letter of 28 May, a decision had been made by Dr Julia Palmer (a Consultant Psychiatrist), who was the Associate Medical Director for Mental Health, to appoint Dr Diz Shirley, Associate Medical Director, to investigate the allegations of "personal performance, conduct and behaviour" on the Claimant's part in accordance with section 3 of the Trust's Disciplinary Policy. Dr Shirley is (or was at the material time) a Consultant Radiologist with the Trust.
On 24 July the Claimant wrote an open letter addressed to the "South West Community Mental Health Team" in which he referred to "serious difficulties" that existed within the team arising from a number of matters including the...
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