R (John Botham) v Ministry of Defence

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeTHE HON MR JUSTICE NICOL
Judgment Date26 Mar 2010
Neutral Citation[2009] EWHC 2011 (QB),[2010] EWHC 646 (QB)
Docket NumberCase No: 8MA91001,Case No: HQ09XO1654

[2009] EWHC 2011 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Before:

The Hon Mr Justice Nicol

Case No: 8MA91001

Between
Michael Steven Delawar Edwards
Claimant
Chesterfield Royal Hospital Nhs Foundation Trust
Defendant

Ms Mary O'Rourke QC instructed by Ryan Solicitors for the Claimant

Mr Mark Sutton of Counsel instructed by Beachcroft Solicitors for the Defendant

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Approved Judgment

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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 HON MR JUSTICE NICOL
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The Honourable Mr Justice Nicol:

1. This is the Claimant's appeal from the decision of District Judge Jones on 25 th March 2009. He held that the Claimant's damages for wrongful dismissal could not exceed the income that the Claimant would have earned during the three month notice period which the Defendant NHS Trust could have given to bring his employment to an end. He made that order on the Defendant's application to strike out the Claimant's claim for damages above that amount or for summary judgment dismissing the Claimant's claim for more. He also gave the Claimant permission to appeal. The issue for me is therefore whether it was right that the Claimant had no realistic prospect of recovering a greater amount or whether there was some other reason why the Claimant should have been allowed to take the larger claim to trial.

2. The Claimant was appointed as a Consultant Trauma and Orthopaedic Surgeon at the Chesterfield Royal Hospital in 1998. The Defendant was formed in January 2005 and it then became his employer. In late 2005 allegations were made that the Claimant had undertaken an internal vaginal examination of a woman patient in the Hospital's A&E Department and then denied that such an examination had taken place. A disciplinary hearing was held on 9 th February 2006, following which the Claimant was dismissed for gross professional and personal misconduct on 10 th February 2006. He appealed, but, as he was told on 2 nd May 2006, the appeal was dismissed.

3. The Claimant alleges that the Defendant followed the wrong disciplinary process. He says that it should have followed the procedure in a Health Committee Circular HC(90) 9. This would have entitled him to a panel which would have included a clinician in the same medical discipline as himself and chaired by a legally qualified member. He would also have had the right to legal representation. These rights, he says, derive from clause 13 of his contract which provided:

“In matters of personal conduct you will be subject to Trust procedures. In matters of professional misconduct or incompetence, you will be subject to a separate procedure which has been negotiated and agreed by the Local Negotiating Committee and which is available on request.”

At the time of his appointment, HC(90) 9 was the procedure agreed by the Local Negotiating Committee. By 2005/2006 steps were being taken nationally to replace this with an alternative procedure known as Maintaining High Professional Standards in the Modern NHS ('MHPS'), but, the Claimant says MHPS had not at the relevant time been agreed by his Local Negotiating Committee.

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4. The Defendant denies that it used the wrong procedure. Its Defence pleads in the alternative that the Claimant waived his right (if that is what it was) to a different procedure and/or acquiesced in the Trust's procedure by participating in the disciplinary hearing and subsequent appeal. Neither the District Judge nor I have to resolve these disputes, because the Defendant accepted that for the purposes of the present application and appeal, I should assume that the Claimant's assertions in these matters may prove to be correct.

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5. I should mention two other matters as part of the background to this appeal. The first is that the same allegations were considered by the General Medical Council as a potential matter of professional misconduct. In March 2007 the GMC Investigation Committee summarily dismissed them and decided that no further action needed to be taken.

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6. The second matter is that the Claimant did initially bring a complaint of unfair dismissal before an Employment Tribunal on 15 th May 2006. However, on 25 th July 2006 the Claimant withdrew the Tribunal proceedings and on 17 th August 2006 on the Defendant's application they were formally dismissed.

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The Appellant's submissions

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7. Ms O'Rourke QC on behalf of the Appellant contends that the Trust could only pursue its complaint of unprofessional conduct against him by means of the properly constituted disciplinary procedure. It could not subvert that process by having recourse to the power to terminate the contract under clause 8 which said “The employment is subject to three months notice on either side.” She argues that the proper reconciliation of clauses 8 and 13 is that the latter prescribed the only process for terminating the contract of employment for reasons of professional (or personal) misconduct. Clause 8 was confined to termination of the employment for other reasons. The decision of the House of Lords in Skidmore v Dartford and Gravesham NHS Trust [2003] ICR 721 emphasised the importance of a proper scrutiny and investigation of allegations of professional misconduct. For senior doctors in particular, dismissal on these grounds was particularly serious 'since a specialist who has been dismissed from an NHS post on professional grounds would be unlikely to find alternative employment elsewhere.' (see 'Disciplinary Procedures for Hospital and Community Doctors and Dentists' Joint Working Party Report August 1988 quoted in Skidmore at [13] and see [20]). In the first place the employer would have to decide which procedure to invoke. However, its decision had to comply with the terms of the contract. Accordingly, if this was challenged in proceedings for unfair dismissal, it would be for the Tribunal to decide whether the correct contractual procedure had been followed. Ms O'Rourke submits that Skidmore establishes that where there are allegations of professional misconduct, the employer must use the contractually required disciplinary procedure. This leaves no room for the operation of clause 8 of the contract. A contract breaker is entitled to have damages assessed on the basis that he would have chosen the least burdensome of any options to him. However, she submits, he can only invoke options which are lawfully open to him. The Defendant in the present circumstances could not lawfully have terminated the contract under clause 8 in circumstances where the reason for termination was an allegation of professional misconduct. She also relies on two first instance decisions where doctors have obtained interim injunctions to prevent their health authorities implementing summary dismissal decisions before the contractual disciplinary procedures had taken place— Kircher v Hillingdon Primary Care Trust [2006] EWHC 21 (QB) – David Foskett QC, and Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust [2005] EWHC 2407 (QB)– Gray J.

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8. She argues additionally, that the Claimant is entitled to compensation which will put him (so far as money can do so) in as good a position as if the contract had been performed. This leads her to submit that the Appellant is entitled to plead, and an opportunity to prove, that, if there had been a properly constituted disciplinary procedure, the allegations of professional misconduct would not have been established. She points to the summary dismissal of the same allegations by the GMC Investigating Committee to show that there is solid support for the likelihood of the Appellant being able to do this.

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9. Ms O'Rourke therefore argues that the District Judge was wrong to cap the Claimant's damages for wrongful dismissal to 3 months income. The Schedule attached to the Particulars of Claim claims past losses of some £478,474 and future losses in excess of £3.8 million. In her words these are 'eye-watering' sums but they represent vividly what the Claimant has lost by the Defendant's breach of contract – namely his whole career. The adoption of the wrong procedure would have assisted him to show that the dismissal was unfair as well as wrongful (if the Employment Tribunal proceedings had been continued) but the statutory limit on damages for unfair dismissal would nowhere near compensate him for his true loss.

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10. She put forward an alternative position. In Gunton v Richmond-upon-Thames LBC [1980] ICR 755 the Court of Appeal had been faced with an employee who also had a contractual disciplinary procedure. The employer had not followed that procedure. The Court held that the employee was entitled to damages representing the salary he would have earned if the procedures had been followed and then during the one month's notice period on which the employment could have been terminated. Ms O'Rourke's alternative position, therefore, is that the Appellant should likewise be entitled to damages for the period during which the proper disciplinary process in his case would have taken plus the three months notice that the Trust would (on this basis) have had to give.

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11. In any case, Ms O'Rourke submits, the Claimant's argument did have a realistic prospect of success and, therefore, the District Judge should not have granted summary judgment.

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The Respondent's submissions

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12. Mr Sutton on behalf of the Respondent argues that the District Judge was right: the maximum which the Appellant can recover for wrongful dismissal is the income he would have earned during the three month notice period. He submits that this is a conventional application of the principle in Laverack v Woods of Colchester Ltd [1967] 1 QB 278 i.e. 'the first task is to estimate…what the Plaintiff would have gained … if the...

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