R Vinayagamoorthy v The NHS Litigation Authority
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANSTON |
| Judgment Date | 14 December 2011 |
| Neutral Citation | [2011] EWHC 3690 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4078/2011 |
| Date | 14 December 2011 |
[2011] EWHC 3690 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Cranston
CO/4078/2011
MR SACHDEVA appeared on behalf of the Claimant
MISS MORRIS appeared on behalf of the Defendant
MR CHILDS appeared on behalf of the Interested Party
This is a renewed application for permission to apply for judicial review. The claimant is a doctor, as is her husband, who is the interested party. For convenience I shall refer to "the claimant" and "the claimant's husband" in the course of the judgment.
In brief, the claimant's husband was imprisoned in the United States on terrorism charges in 2006. In this judicial review the claimant challenges the decisions of the Family Health Services Appeal Unit (the first defendant, "the Appeal Unit") and of the second defendant (the PCT). The latter decided to terminate a contract it had with the claimant's husband and the Appeal Unit upheld that decision. That contract was a Personal Medical Services (PMS) agreement.
The grounds in the judicial review were that the PCT had terminated the contract with the claimant's husband without entering into any negotiation with the claimant and that the appeal was determined in breach of natural justice without offering the claimant an opportunity to appear.
The papers for this case arrived with the papers for three other cases for yesterday's renewal list. They arrived with me on Monday afternoon. There was an application with these papers that this case be adjourned. The renewal application had been made on 16 September 2011. The court notified the listing of the permission hearing on 30 September. The application for the adjournment was dated 9 December; in other words the claimant had had over two months in which to obtain legal advice.
In the adjournment application the claimant's solicitor said that the claimant first spoke to him in relation to the judicial review proceedings on 25 October. In addition, the claimant's husband, in a letter to the PCT dated 25 November, referred to "his solicitor and counsel". Given the background, and the enormous pressure on this court, there was no way that this case could be adjourned. The claimant issued the proceedings more than seven months ago. The renewal application, as I say, was two months ago and it was quite unacceptable for there to be an adjournment at such a late stage. The claimant has had ample time in which to prepare. She has had the benefit of legal advice for at least two weeks. Her solicitors have had sufficient time to obtain instructions to evaluate the issues and to prepare for the hearing.
Yet yesterday when I arrived at court Mr Sachdeva handed in a skeleton argument and amended grounds of review which recast this case completely. He had been instructed about 3pm the day before yesterday.
I heard the case for an hour yesterday. It was listed for 30 minutes. At 4.15pm Mr Sachdeva indicated that he needed another 20 minutes. It was obvious I could not deal with the matter and give judgment so I adjourned it until this morning. Expensively paid lawyers must give some consideration to court staff, even if not to judges. They cannot expect courts to sit late as a matter of course.
The background facts are these. As I have said, in mid 2006 the claimant's husband was imprisoned in the United States on charges relating to terrorism. Ultimately, in June 2009 he pleaded guilty to charges of conspiracy to provide material support to the Liberation Tigers of Tamil Ealam ("the LTTE"). That is a designated terrorist organisation in the United States and a prescribed organisation under the United Kingdom Terrorism Act 2000.
A United States Department of Justice press release at the time explained that he had attempted to bribe a State Department official to remove the LTTE as a terrorist organisation under the United States law and had laundered LTTE funds through Switzerland to fund an US Congressman's visit to LTTE controlled territory in Sri Lanka. At the sentencing hearing, which finally occurred on 27 April 2011, the prosecution said this:
"The claimant's husband not only spoke about the bribery evidence on tape, I think it is notable that he also communicated the details regarding that bribery scheme to LTTE leadership in Sri Lanka. So the government's position is that he was clearly and knowingly engaged in the bribery scheme. I think another point of note is that not only was he involved in a bribery scheme, but he also himself procured items for the LTTE and in particular he procured satellite phones and computers which he smuggled into LTTE territory and that is included in the government's brief."
The prosecution submitted that a sentence of 15 years was appropriate for sentencing the claimant's husband. The judge in effect imposed a sentence of some five years, with three years of supervision. In imposing the sentence, the judge said that he was impressed by the sincerity of the claimant's husband, albeit that he was misguided. His motivation was to help the Tamil people of Sri Lanka, but he had made a misjudgement.
As a consequence of the claimant's husband's imprisonment, the claimant took over the management of the PMS contract. There was a general power of attorney granted to her by her husband in August 2006. The PCT consented to that arrangement. However, at the time the PCT had concerns surrounding the day to day running of the practice and the claimant's clinical performance. In 2005 she had been subject to a GBC performance assessment, which identified areas as being unacceptable and giving rise to concern. In 2006 the GBC had found that her fitness to practice was impaired by reason of her deficient professional performance. It imposed conditions on her registration for a period of 2 years 2 months. There was a second performance assessment in December 2009, which was the subject of a final report by the GBC assessment team in early February 2010. A GBC fitness to practice panel considered that report on 27 May 2010 and determined that a new set of conditions should be imposed, including a condition that the claimant must not hold a PMS contract. The claimant appealed those conditions, but eventually after this judicial review was instituted, she withdrew that appeal.
As a result of the conviction of the claimant's husband in the United States, and also the GBC's determination, the PCT addressed the issue of the PMS contract which the husband had with it. In its view, the husband's position fell within the terms of paragraph 105(1) of schedule 5 to the National Health Service (Personal Medical Services Agreements) Regulations, SI 2004, No. 627 ("the Regulations"). That provides that the PCT may terminate an agreement if the person falls within sub-paragraph 105(3):
"(3) A person falls within this sub-paragraph…
(g) subject to sub-paragraph 6, he has been convicted elsewhere of an offence…
(ii) which would,...
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