Mr Emad Aldin Smo v Hywel Dda University Health Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 26 March 2020 |
| Neutral Citation | [2020] EWHC 727 (QB) |
| Date | 26 March 2020 |
| Docket Number | Case No: QB-2019-002290 |
| Court | Queen's Bench Division |
[2020] EWHC 727 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Linden
Case No: QB-2019-002290
Mr Mark Sutton QC and Ms Betsan Criddle (instructed by RadcliffesLeBrasseur) for the Claimant
Mr Giles Powell and Ms Nicola Newbegin (instructed by Blake Morgan LLP) for the Defendant
Hearing dates: 4, 5, 6, 7 February 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 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.
The Honourable
INTRODUCTION
The claimant is a consultant colorectal surgeon who has been employed by the defendant since 4 January 2016. Since 2 June 2016, he has been subject to disciplinary proceedings pursuant to a procedure entitled “Upholding Professional Standards in Wales” (“UPSW/the Procedure”) which applies to all NHS doctors and dentists employed in Wales. In those proceedings the claimant faces complaints about his conduct and aspects of his approach to clinical practice, the majority of which relate to his alleged interactions with colleagues.
The claimant was excluded (suspended) pursuant to USPW on 24 October 2016 and he has not been permitted to return to work for the defendant since then.
Although the USPW proceedings were, and indeed are, still ongoing, on 31 October 2018 Dr Philip Kloer, the Medical Director and Director of Clinical Strategy of the defendant, wrote to the claimant informing him that Dr Kloer intended to launch an additional investigation into the claimant's relationships with his colleagues with a view to determining whether they had irretrievably broken down and, if so, what should be done. These proceedings have been coined “the working relationships investigation” and I will use that shorthand in this judgment.
Dr Kloer informed the claimant that Dr Roger Diggle, then the Associate Medical Director of the defendant, had been appointed to undertake the investigation and that Dr Diggle would be in touch with him in due course to seek his views and take a statement. The claimant was also told that the matter was not being considered under UPSW as the defendant did not consider that it applied to Dr Diggle's investigation and that, although he could be accompanied during the process by a work colleague or trade union representative, he had no right to legal representation.
More than six months later, on 17 May 2019, Dr Diggle wrote to the claimant for the first time, setting out what he described as “allegations” which he had been appointed to investigate and inviting the claimant to attend an interview on 25 June 2019. The claimant responded by letter dated 21 May 2019, expressing concerns about the delay since Dr Kloer's 31 October 2018 letter, disputing the right of the defendant to initiate a parallel process and accusing it of attempting to circumvent UPSW and the procedural safeguards which the Procedure provides. He advocated postponing Dr Diggle's investigation.
The defendant was not willing to do so. These proceedings were therefore issued on 24 June 2019 in which the claimant alleges breach of contract and seeks a mandatory injunction to restrain the defendant from proceeding with the working relationships investigation (“the Claim”). He also made an application for interim relief.
On 25 July 2019 Mr Roger Ter Haar QC, sitting as a Deputy High Court Judge, made an order that there be a speedy trial which was to take place on the first open date after 4 November 2019 although, in the event, the matter did not come before me until the week of 3 February 2020. He also ordered that, in the interim, the defendant was prohibited from requiring the claimant to be interviewed by Dr Diggle in respect of the working relationships investigation. Mr Ter Haar QC set out his reasons in a judgment dated 25 July 2019.
THE BROAD ISSUES.
At the outset of the trial I canvassed with the parties my provisional view that there were three broad issues which I had to determine, and they agreed. These issues are:
i) The construction of the claimant's contract of employment: do the express terms of that contract require the defendant to investigate the matters which are the subject of the working relationships investigation under UPSW rather than by the defendant's parallel procedure? The parties agree that if they do then the defendant acted in breach of contract and the question of relief arises.
ii) Breach of mutual trust and confidence: even if the express terms of the contract in principle permitted the defendant to commence the working relationships investigation other than under UPSW, was it nevertheless a breach of the implied duty of mutual trust and confidence for the defendant to do so in the circumstances in which that investigation was commenced and/or would it be a breach for the defendant to continue to purse that investigation?
iii) Relief: if the defendant acted and is seeking to act in breach of contract, what relief, if any, is appropriate? The defendant's pleaded case was that injunctive relief should be refused on the grounds of acquiescence and/or delay but, in the event, Mr Powell indicated in closing submissions that this was no longer pursued.
I also confirmed with Mr Sutton QC that he had not pleaded, and was not alleging, bad faith on the part of the defendant. Nor, it became clear during the trial, was he challenging the evidence of the defendant's witnesses as to their subjective beliefs about the scope of UPSW or their intentions in commencing the working relationships investigations or their reasons for doing so. This is a point to which I will return.
At the conclusion of the evidence I also pointed out that Mr Sutton's pleaded case and Sections 4 and 5 of his skeleton argument dated 29 January 2020 were not in line with what I understood to be his real case i.e. that there was a breach of clause 9.2 of the claimant's “Principal Statement of Main Terms and Particulars of Employment” dated 22 December 2015 (“the Contract”) or, alternatively, even if clause 9.2 permitted the working relationships investigation, it was in breach of the duty of mutual trust and confidence term for it to be commenced or continued in all the circumstances. Mr Sutton therefore sought permission to amend the Particulars of Claim in the terms of a draft which was provided to me. His application was not opposed and I granted permission.
Finally in relation to the issues, it will be noted that although I am required to consider the nature of what is said about and against the claimant I am not asked to consider or determine the merits of the allegations against him and I do not do so. Similarly, I will consider what is said about the claimant's working relationships and about whether it is feasible for him to return to work, but I do not make any findings as to these issues. These all matters which will need to be considered by others in due course.
OTHER APPLICATIONS BY THE PARTIES
On 23 December 2019, the claimant applied for a stay of these proceedings. His application was considered by Mr Ter Haar QC on 22 January 2020 and rejected. Mr Ter Haar's reasons for doing so are set out in the transcript of his ex tempore judgement and I am grateful to him for taking steps to ensure that they have been made available to me.
Shortly before the trial commenced I received a supplemental skeleton argument from Mr Powell and Ms Newbegin, on behalf of the defendant, in which they complained about the fact that the claimant did not propose to give oral evidence but intended to rely on the witness statement, dated 24 June 2019, which he had prepared for the purposes of his application for interim relief. They indicated that, in the event that the claimant maintained this approach, Mr Powell would submit that I should disregard the claimant's written evidence and dismiss the Claim “by reason that there cannot be a fair trial and the claim is an abuse” (paragraph 13 of the supplemental skeleton argument dated 3 February 2020).
At the beginning of the trial Mr Powell indicated that he would make this submission after the trial had been opened on both sides. He duly did so and I rejected it for reasons which are set out in more detail in Annex 1 to this judgment. In short, however, I considered that the suggestion that I should dismiss the Claim was wholly misconceived. I did, however, decide that there were five paragraphs of the claimant's witness statement (paragraphs 16–19 and 25) in respect of which he should make himself available for cross-examination if he wished them to be admitted in evidence. The claimant therefore gave oral evidence for this limited purpose and answered questions from Mr Powell and the court. Paragraph 24 of the claimant's witness statement, in which he expressed his view that the defendant was “seeking to sidestep” UPSW, was also withdrawn by the claimant and was not admitted in evidence.
Mr Sutton also indicated, in his skeleton argument on behalf of the claimant, that he proposed to object to the admission of the witness statement and report of Mrs Clacey-Roberts into evidence on the grounds that this material was irrelevant. Very sensibly, however, in the event this objection was not maintained albeit after a provisional indication from me.
THE HEARING
The bulk of the hearing was taken up with “openings” from both sides and then closing submissions, in the course of which I was helpfully taken to a number...
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