Hertsmere Primary Care Trust and Others v Estate of Balasubramanium Rabindra-Anandh and Another

Hearing date: 3 rd March 2005

APPROVED JUDGMENT

Mr Justice Lightman

The late Dr Balasubramanian ("the Deceased") practised as an optician. He worked extensively as a locum in the health authority areas administered by the statutory predecessors of the claimants. He routinely and systematically claimed from those predecessors payment for sight tests which he did not carry out and duplicated claims for payment in respect of those which he did carry out. He was arrested on the 6 ^th November 2000. He then ceased practice. He was formally charged on the 29 ^th January 2002. He died on the 24 ^th June 2002, and in consequence the prosecution was discontinued.

The claimants commenced these proceedings against the estate of the Deceased ("the Estate") on the 15 ^th July 2002 and obtained a freezing order. By an order of the Court of Appeal dated the 19 ^th February 2004, it was ordered that the claimants were entitled to summary judgment for an account of overpayments made by the claimants' predecessors to the Deceased.

I have before me: (1) an appeal (pursuant to permission granted by Lewison J) by the Estate against the judgment ("the Costs Judgment") of Master Bowman dated the 29 ^th October 2004 in relation to costs and interest consequent upon the judgment ("the Account Judgment") which he had earlier given on taking accounts and directions pursuant to an order of the Court of Appeal; and (2) a renewed application by the Estate for permission to appeal the Account Judgment, permission to appeal had previously been refused on paper by Lewison J.

I can deal with the application for permission to appeal very shortly. The basis of the application is a challenge to the Account Judgment on the ground (in a word) that Master Bowman wrongly accepted the evidence of the claimants' expert Mr Martin Topping of BDO Stoy Hayward and discounted evidence by the Estate's expert Mr George Sim of Sim Kapila. The Master had a full opportunity to form a view of the weight to be attributed to the evidence of each of the experts and, for the cogent reasons which he gave, he clearly preferred the evidence of Mr Topping. Nonetheless on the application for permission the Estate invites this court to allow an appeal against the Master's findings based on the expert evidence. For the court to undertake the exercise of evaluating the Master's judgment on this issue, it is not sufficient for the court to have before it (as it has) merely selective parts of the transcripts of the expert evidence chosen by the Estate. But that is all that the Estate has provided to the court. The critical parts have been omitted. There is a transcript of part only of Mr Sim's evidence and no transcript of the evidence of Mr Topping. The Estate made no effort before their selection to agree with the Claimants what part or parts of transcripts (less than the whole) should be provided.

In these circumstances the court is quite unable to undertake the exercise requested by the Estate. The claimants took this point at the forefront of their skeleton argument why permission to appeal should be refused, and I consider that this argument should be upheld. I appreciate that the Estate took this course to limit the expenditure of costs, but no fair hearing can proceed without the full evidence, and plainly the reality is that an application for permission and (if given) a full hearing would not make economic sense for the Estate or anyone else. I should add that I have carefully considered the detailed submissions made by both parties in their skeleton arguments based on the limited evidence before me, and (with respect) I fully agree with the decision of Lewison J that an appeal against the Account Judgment would in any event be bound to fail. I accordingly can confine this judgment to the challenge to the Costs Judgment.

Master Bowman held that the overpayments amounted to £390,201.07 and directed payment of £150,666.63 in respect of interest being calculated at the rate of 8% from the date of the overpayments up to the 26 ^th November 2004 and payment of the claimants' costs up to the 13 ^th August 2003 assessed on the standard basis. No challenge is made to those directions. But the Master went on, pursuant to Part 36.21, to direct payment of interest of £55,822.87 (representing interest at a rate of 10% above the base rate from time to time of Barclays Bank plc) from the 14 ^th August 2003 to the 26 ^th November 2004 and that the Estate pay the claimants' costs from the 14 ^th...