Edwards v Chesterfield Royal Hospital NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Lloyd,Lord Justice Ward |
| Judgment Date | 26 May 2010 |
| Neutral Citation | [2010] EWCA Civ 571 |
| Docket Number | Case No: A2/2009/1834 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 May 2010 |
[2010] EWCA Civ 571
(Mr. Justice Nicol)
Before: Lord Justice Ward
Lord Justice Lloyd
and
Lord Justice Moore-Bick
Case No: A2/2009/1834
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Ms Mary O'Rourke Q.C. and Mr. Oliver Williamson (instructed by Ryan Solicitors) for the appellant
Mr. Mark Sutton and Mr. Marcus Pilgerstorfer (instructed by Beachcroft LLP) for the respondent
Hearing dates: 21 st and 22 nd April 2010
Lord Justice Moore-Bick:
Background
The appellant, Mr. Michael Edwards, was appointed as a consultant trauma and orthopaedic surgeon at the Chesterfield Royal Hospital in 1998. The contract under which he was employed provided by clause 8 that either party could terminate it on three months’ notice to the other. It also provided by clause 13 that in matters of personal conduct Mr. Edwards would be subject to the hospital's general procedures and that in matters of professional misconduct he would be subject to a procedure agreed by the Local Negotiating Committee in respect of medical practitioners.
The respondent, Chesterfield Royal Hospital NHS Foundation Trust (“the Trust”), was formed in January 2005 and then became Mr. Edwards’ employer, but on 10 th February 2006, following a disciplinary hearing, he was summarily dismissed from his post for gross professional and personal misconduct. He has since been able to obtain work as a locum with another NHS Trust, but has been unable to obtain a permanent consultant post and says that he will not be able to do so in the future because of the finding against him. He says that he has therefore been unable to pursue his medical career in the manner which he would have wished. The Investigating Committee of the General Medical Council later summarily dismissed a complaint against him based on the same allegations.
Mr. Edwards has consistently maintained that the Trust failed to follow the contractual disciplinary procedure correctly, in particular, by failing to appoint a person with legal qualifications to chair the panel which considered his case, by failing to appoint as a member of the panel a clinician of the same medical discipline as himself and by refusing to allow him to be legally represented at the hearing. He also maintains that if the procedure had not suffered from those defects no finding of misconduct would have been made against him. Accordingly, on 15 th August 2008 he commenced proceedings against the Trust in the Manchester District Registry seeking damages for breach of his contract of employment in the sum of a little under £4.3 million.
The damages claimed by Mr. Edwards include a sum of £478,474 in respect of various expenses and loss of earnings up to the date of the issue of proceedings, future loss of earnings in a sum in excess of £3.8 million and future loss of pension in an amount still to be quantified. The claim was made on the basis that if he had not been wrongfully dismissed for misconduct his employment by the Trust would have continued until his retirement in 2022 at the age of 65. The Trust, however, considered that the most he was entitled to recover, if his claim succeeded at all, was loss of earnings for the three months’ period of notice to which he was entitled under his contract of employment. On 17 th February 2009 it applied for an order that his claim for damages be struck out insofar as it exceeded that amount. At a hearing on 26 th March 2009 District Judge Jones accepted the Trust's arguments and granted it a declaration that Mr. Edwards’ claim was limited to loss of earnings for the contractual period of three months’ notice.
Mr. Edwards’ appeal against the District Judge's order was heard by Nicol J. The judge held that if his substantive claim succeeded Mr. Edwards would be entitled to recover loss of earnings in respect of his contractual notice period and also in respect of the period during which he would have remained employed while a disciplinary procedure which complied with the terms of his contract ran its course. He based his conclusion on the decision of this court in Gunton v Richmond-upon-Thames London Borough Council [1980] I.C.R. 755. Accordingly, he allowed the appeal and varied the order of District Judge Jones accordingly.
Mr. Edwards now appeals to this court. He does so because the effect of the judge's order is to restrict the damages which he will be able to recover, even if his case otherwise succeeds in full, to a small proportion of his total claim. Indeed, Ms O'Rourke Q.C. suggested that the claim might not be worth pursuing on such a restricted basis.
The nature of the appeal
This is a second appeal from an order made under CPR Part 24. Moreover, it arises on an application by the defendant expressed to be for an order striking out part of the claim (though more properly, since made under Part 24, for summary judgment). Formally, therefore, the issue to be determined is whether Mr. Edwards has any real prospect of recovering after a trial damages in excess of loss of earnings for the contractual period of notice and the period required for contractual disciplinary proceedings. However, since the only issue before the court concerns the measure of damages recoverable in law, Mr. Sutton accepted that the court must proceed on the assumption that Mr. Edwards will succeed in establishing all the allegations made in the particulars of claim. In those circumstances the application has been treated as amounting to the trial of a preliminary issue. The question is whether, if the allegations made on the particulars of claim are established, Mr. Edwards’ entitlement to damages is as limited as the Trust contends.
Most applications under Part 24 turn to some degree on the facts. For example, the claimant says that the defendant has no real prospect of successfully defending the claim and the defendant puts forward in his defence evidence of facts which he says provide a defence in law. The first, and often the only, question for the court in such cases is whether there is a real prospect that the defendant will establish at trial the facts on which he relies. If there is, the matter must be tried. Sometimes, however, the claimant says that the facts on which the defendant relies do not provide a defence in law. In such cases the court will often consider whether, notwithstanding what the claimant says, facts may be found at trial that will have a bearing on the question of law. If there is no real prospect that that will occur, however, the court will generally decide the question, unless it is of such difficulty and complexity that it calls for fuller argument than can be accommodated on the hearing of the application.
In the present case Ms O'Rourke sought at one stage to persuade us that the issues that arise on this appeal were too difficult and complex to be determined on an application under Part 24 and that the appeal should be allowed on that ground alone. At one stage I was attracted by that submission, but since it is common ground that we must approach the arguments on the assumption that all the allegations made in the particulars of claim will be established, it is difficult to see how the judge at trial could be in any better position to decide the point than we are. Moreover, we have had the benefit of extensive argument and citation of authority at least as ample as that which the trial judge could expect to have. In those circumstances I do not think that it would be right to allow the appeal on this ground. In my view the court should grasp the nettle and decide the points of law raised by the application.
The basis of the claim
It is necessary at this stage to describe in a little more detail the basis of Mr. Edwards’ case as set out in his particulars of claim. In summary it is as follows:
(i) that in matters of personal conduct he would be subject to the hospital's general procedures and that in matters of professional conduct he would be subject to a procedure agreed by the Local Negotiating Committee in respect of medical practitioners;
(ii) that he was accused by the Trust of personal and professional misconduct;
(iii) that because of the nature of the allegations made against him he was contractually entitled to a formal disciplinary hearing by a panel which included a clinician of the same discipline as himself and a legally qualified chairman, before which he would have the benefit of legal representation, if he so wished;
(iv) that the disciplinary hearing which resulted in the findings of misconduct was not conducted in accordance with the terms of his contract of employment because the panel did not include a clinician of the same discipline as himself, nor a legally qualified chairman and because his request to be allowed legal representation was refused;
(v) that following the panel's findings he was dismissed for personal and professional misconduct;
(vi) that if the proceedings had been carried out in accordance with his contract of employment the panel would not have found that he was guilty of personal and professional misconduct and he would not have been dismissed;
(vii) that because he was dismissed on the grounds of personal and professional misconduct (including dishonesty) he has been unable to find comparable alternative employment.
As I have said, it is common ground that in order to determine the limited question...
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