R v East Berkshire Health Authority, ex parte Walsh
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE MAY,LORD JUSTICE PURCHAS |
| Judgment Date | 14 May 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0514-4 |
| Docket Number | 84/0199 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 May 1984 |
[1984] EWCA Civ J0514-4
The Master of the Rolls
Lord Justice May
and
Lord Justice Purchas
84/0199
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH CIURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
(MR. JUSTICE HODGSON)
Royal Courts of Justice.
MR. THOMAS MORISON, Q.C. and MR. M. BAKER (instructed by Messrs. J. Tickle & Co.) appeared on behalf of the Appellant Health Authority.
MR. J. BOWYER and MR. C. BOTT (instructed by Messrs. Hallmark Carter & Atkinson) appeared on behalf of the Applicant Respondent.
Mr. Walsh was employed by the East Berkshire Area Health Authority and its predecessor as a senior nursing officer at Wexham Park Hospital. Action was taken in September 1982 with a view to terminating his employment and he sought relief by way of judicial review. The authority raised, as a preliminary point, the question of whether such proceedings were appropriate and Mr. Justice Hodgson ruled against the authority. It now appeals. Practitioners will at once recognise that this raises issues of general interest and importance since the authority is seeking to establish what might be described as the obverse of the decision of the House of Lords in O'Reilly v. Mackman (1983) 2 Appeal Cases 237.
During Mr. Walsh's service at Wexham Park Hospital relations between the medical and nursing staff became strained and the regional health authority set up an independent committee of inquiry under the chairmanship of Mr. Camp, the chairman of the Wycombe Health Authority. The Camp Committee's terms of reference were "to enquire into working relationships between Doctors and Nurses providing psychiatric services based on the Wexham Park Unit and to make recommendations."
In August 1982 an incident occurred at Wexham Park Hospital involving a patient, Mr. Walsh and Miss Cooper, the district nursing officer. The details and the merits of the dispute are a matter of controversy, but happily are irrelevant for present purposes. Suffice it to say that on or about the 25th August, 1982 Miss Cooper suspended Mr. Walsh from duty. Miss Cooper was senior to Mr. Walsh, the nursing hierarchy in descending order being district nursing officer, divisional nursing officer and senior nursing officer.
At about the same time the Camp Committee reported. It was concerned with much wider issues than those affecting Mr. Walsh, but its findings were critical of him and recommended, inter alia, that "We are nevertheless firmly of the opinion that Mr. Walsh's conduct makes his further employment in any capacity in East Berkshire undesirable and fully justifies his dismissal. We recommend that he is immediately suspended from duty and that he is dealt with in accordance with the disciplinary policy operated by East Berkshire Health Authority in cases of serious misconduct."
On the 9th September, 1982 Miss Cooper invited Mr. Walsh to attend a disciplinary hearing in her office on the 16th September at which seven specific allegations of misconduct and the findings and recommendations of the Camp Committee in relation to Mr. Walsh were to be discussed. That meeting duly took place and by a letter dated the 27th September, 1982 Miss Cooper purported to terminate Mr. Walsh's employment. Subsequently Miss Cooper gave 23 reasons for her action. Mr. Walsh initiated the internal appeal procedures, but the appeal committee of the authority affirmed Miss Cooper's decision and the regional health authority declined to entertain any further appeal.
During the course of these appeals Mr. Walsh did two things. First in point of time, he applied to an industrial tribunal alleging that he had been unfairly dismissed and seeking compensation. Second, he applied for judicial review claiming "An Order to quash the purported dismissal of the Applicant by the Respondent Authority and acts taken in relation thereto and to prohibit the continuance of the appeal hearings by the Respondent Authority considering the said purported dismissal and to quash any determination taken at or by any such appeal hearings." The application for prohibition was abandoned when the matter came before Mr. Justice Hodgson, because the appeal hearings had already been concluded. However it continued as one for certiorari. Mr. Walsh did not claim damages, no doubt because he or his advisers took the view that the quashing of the dismissal would leave his contract of employment intact and entitle him to full pay unless and until there was a further and valid dismissal. Furthermore he made no claim for declaratory relief in Form 86A, although in his supporting affidavit he stated that he was seeking an unspecified declaration. Before this court it was suggested that such a declaration would be to the effect that his purported dismissal was void or unlawful and that his contract of employment still subsisted. It would also declare that the purported delegation to district nursing officers of power to dismiss senior nursing officers was ultra vires the authority.
The simultaneous prosecution of two wholly inconsistent proceedings, one of which alleged that Mr. Walsh's contract of employment had been terminated and one which alleged that it still subsisted, generated a certain amount of argument. On the view which I take of the main issue in this appeal, these arguments can be disregarded. However it is a situation which can arise in cases in which there is no question of relief being given by way of judicial review. Thus, for example, an employee may have a claim in the High Court or the county court for wages earned before his purported dismissal and, assuming that Gunton v. Richmond-on-Thames L.B.C. (1980) Industrial Cases Reports 755 was rightly decided and correctly overruled Sanders v. Ernest A. Neale Ltd. (1974) Industrial Cases Reports 565, a decision of Sir John Donaldson, P. which I would otherwise have found wholly persuasive, may also claim a declaration that the purported dismissal was ineffective to terminate the contract of employment, coupled with consequential monetary claims. At the same time he may well wish to protect his right to claim compensation for unfair dismissal if, contrary to his primary contention, his contract of employment has been terminated. Such a claim can only be made to an industrial tribunal and, furthermore, the prosecution of such a claim is subject to strict time limits. Where such a situation arises, the applicant for compensation for unfair dismissal should plainly state in his application that it is made to preserve his rights and that his primary contention is that his contract of employment still subsists. The industrial tribunal will then be able to decide whether to proceed with the application or to adjourn it pending the outcome of the parallel and inconsistent proceedings.
I now return to the main issue, namely whether Mr. Walsh's complaints give rise to any right to judicial review. They all relate to his employment by the health authority and the purported termination of his employment and of his contract of employment. Essentially they fall into two distinct categories. The first relates to Miss Cooper's power to act on behalf of the authority in dismissing him. The second relates to the extent to which there was any departure from the rules of natural justice in the procedures which led up to that dismissal. Both fall well within the jurisdiction of an industrial tribunal. The first goes to whether or not Mr. Walsh was dismissed at all within the meaning of section 55 of the Employment Protection (Consolidation) Act 1978. The second goes to whether the dismissal, if such there was, was unfair. Furthermore, both are issues which not uncommonly arise when the employer is a company or individual, as contrasted with a statutory authority. However, this only goes to the exercise of the court's discretion, whether or not to give leave to apply for and whether or not to grant judicial review. As the appellants seek to have the proceedings dismissed in limine, if they are to succeed they can only do so on the basis that, accepting all Mr. Walsh's complaints as valid, the remedy of judicial review is nevertheless wholly inappropriate and the continuance of the application for judicial review would involve a misuse—the term "abuse" has offensive overtones—of the procedure of the court under R.S.C Order 53.
The remedy of judicial review is only available where an issue of "public law" is involved, but, as Lord Wilberforce pointed out in Davy v. Spelthorne B.C. (1984) 1 Appeal Cases 262, 276, the expressions "public law" and "private law" are recent immigrants and, whilst convenient for descriptive purposes, must be used with caution, since English law traditionally fastens not so much upon principles as upon remedies. On the other hand, to concentrate on remedies would in the present context involve a degree of circularity or levitation by traction applied to shoestrings, since the remedy of "certiorari" might well be available if the health authority is in breach of a "public law" obligation, but would not be if it is only in breach of a "private law" obligation.
The learned judge referred carefully and fully to Vine v. National Dock Labour Board (1957) Appeal Cases 488; Ridge v. Baldwin (1964) Appeal Cases 40; and Malloch v. Aberdeen Corporation (1971) 1 Weekly Law Reports 1578. He seems to have accepted that there was no "public law" element in an "ordinary" relationship of master and servant and that accordingly in such a case judicial review would not be available. However, he held, on the basis of these three cases and,...
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