England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Scott Baker)

		Royal Courts of Justice Strand London WC2 Wednesday 14th February, 2001

1. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against the refusal by Scott Baker J on 24th November 2000 to grant permission to the applicant to bring proceedings for judicial review in relation to a decision of the Secretary of State contained in a letter of 5th May 2000, to the effect that he had no jurisdiction to entertain an appeal launched by the applicant under paragraph 190 of the National Health Service Terms and Conditions of Service for Hospital Medical and Dental Staff. Gibbs J had on 12th October 2000 refused judicial review permission on the papers. I refused permission to appeal to this court on the papers on 24th January 2001.
2. Scott Baker J crisply summarised the background facts as follows:

"From January 1986 until the autumn of 1998, the claimant was employed as a consultant cardiac cardiothoracic surgeon at the Bristol Royal Infirmary. He was initially employed by the Bristol and Western Health Authority, but his employment was transferred from 1 April 1991 to the United Bristol Healthcare NHS Trust. The claimant and two other doctors at the Bristol Royal Infirmary were charged with allegations of professional misconduct in respect of paediatric cardiac surgery.

On 29 May 1998 the Professional Conduct Committee of the General Medical Council found the claimant guilty of serious professional misconduct, and on 18 June directed that, for a period of three years, his registration should be conditional on compliance with the requirement that he should not undertake any paediatric cardiac surgery; so he was at liberty to continue to work as an adult cardiac surgeon. The GMC directed that the other two doctors should have their names erased from the register.

The claimant was apparently on special leave during the GMC proceedings, and following meetings with him in August and early September 1998, the Trust decided to dismiss him."

3. The applicant's contract of employment included this provision:

"The employment is subject to three months' notice on either side but is subject to the provisions of paragraphs 190 and 198 of the Terms and Conditions of Service of Hospital Medical and Dental Staff."

4. The letter of dismissal included this passage:

"In reaching my decision I should also make it clear that I recognise that your surgical results in the period before the GMC Enquiry were acceptable, as I had confirmed earlier in the meeting. I also acknowledge the many expressions of gratitude and support from patients for your past work.

However my concern has to be with the future and the question of whether you could successfully return to adult cardiac surgery practice in the Bristol Royal Infirmary. I have considered a number of factors. [I interpolate then four factors are set out in the letter.]

...

For all these reasons my judgment is, and Roger Baird and Ian Stone support me in this, that it will not be possible for you to return successfully to work at the BRI.

It is with regret that my conclusion is that I have no option other than to bring your employment in the Trust to an end with immediate effect. Your contract entitles you to 3 months notice but in the circumstances it would be appropriate to pay you in lieu of this notice. Ian Stone will arrange the necessary paperwork and ensure that the appropriate payments are sent to you as soon as possible."

5. On 15th September 1998 £12,273.51 was paid into the applicant's account as payment in lieu of notice and also to recognise, I understand, just over five weeks' annual leave which the applicant had not taken when entitled to do so.
6. There was an appeal hearing before the Trust Board on 23rd November 1998. That was dismissed by letter dated 1st December 1998. It was on 7th December 1998 that the applicant lodged an appeal against his dismissal to the Secretary of State for Health and it is this process that has ultimately brought the matter to this court.
7. The nature of the applicant's case was that his dismissal was unjustified. He had, as it has been put on his behalf, been made a scapegoat for wrongs that occurred at Bristol and he said also that he was entitled to an inquiry conducted by an independent panel pursuant to a certain circular.
8. Paragraph 190 is part of standard form Terms and Conditions of Service for Hospital Medical and Dental Staff issued by the Secretary of State and the Welsh Office. It is common ground that it formed part of the applicant's contract. The provision most particularly in point is paragraph 190(a), whose material words are as follows:

"... a consultant ... or hospital practitioner who considers that his or her appointment is being unfairly terminated may appeal to the Secretary of State against the termination by sending to the Secretary of State a notice of appeal at any time during the period of notice of termination of his or her appointment."

9. I should also refer to part of paragraph 190(j):

"In the light of the professional committee's advice, the Secretary of State shall, as far as is reasonably practicable, within the period of 3 months of the date of the professional committee having considered the case-

i. ...

ii. direct that the practitioner's appointment continue; ..."

10. Then paragraph 190(k):

"The termination of the practitioner's appointment shall not have effect while an appeal duly made in accordance with sub-paragraph (a) or a matter duly referred in accordance with sub-paragraph (d) is under consideration."

11. I should also read paragraph 197 in part:

"These arrangements shall not prevent:

a. ...

b. ...

c. either party waiving its rights to notice on any occasion, or accepting payment in lieu of it; ..."

12. There was a good deal of correspondence and consultation, but at length the Secretary of State wrote the letter of 5th May 2000 which is in form the subject matter of the prospective judicial review. In that letter this was stated:

"I am writing on behalf of the Secretary of State to confirm the decision in Jenny Watson's letter of 21st February, that Mr Dhasmana's appeal is not admissible.

The Secretary of State has considered the admissibility of the appeal carefully and reached his decision on the basis of the evidence and the legal advice available to him. The Secretary of State has noted that the subsequent opinion of Counsel confirmed that the grounds for ruling the appeal inadmissible, falls within the scope of the meaning of paragraph 190 and the legal precedent in the Guirguis decision, and that the Secretary of State, therefore, has no jurisdiction in this matter."

13. The letter is delphic because of course it refers back to earlier correspondence. But the basis for the Secretary of State's view is explained straightforwardly enough. It is simply that paragraph 190 only enables an appeal if the doctor's contract is still current and in being when the appeal is launched; and when the applicant launched his appeal on 7th December 1998 his contract had already been terminated. Thus the Secretary of State was saying there is simply no power, given the correct construction of paragraph 190, to entertain the appeal.
14. Refusing permission on paper Gibbs J said this:

"On the face of it, the terms of the dismissal indicate:

(a) that it was immediate and without notice

(b) that the employers recognised that summary dismissal was not contractually justified: thus their payment in lieu of notice would have been in the nature of liquidated damages for breach, accepted by the Applicant.

On that basis there appears to be no error of law in the Secretary of State's interpretation of paragraph 190(a) of the relevant terms and conditions."

15. Scott Baker J, if I may say so, essentially arrived at the same conclusion. He had heard argument inter partes. I take some short passages from paragraph 15 onwards of his judgment:

"By use of the words `is being unfairly terminated' and `at any time during the period of notice of termination', paragraph 190(a) is plainly, in my judgment, looking at a state of affairs where there is a continuing contract of employment, not one that has already been brought to an end, either, for example, by summary dismissal for misconduct, or, as in this case, by agreement to receipt of pay in lieu of the contractual period of notice."

16. He then refers to paragraphs 190(f) and 190(j). I have read the latter. Then:

"18. Sub-paragraph (k) is also, in my judgment, revealing, because the effect of it is to extend the period of the practitioner's notice until the Secretary of State has made his decision.

In other words, sub-paragraph (k) keeps the employment going until the Secretary of State has decided the appeal.

19. But paragraph 197 is, says Mr Michael Fordham for the Secretary of State, really the final nail in the coffin of Miss Lang's arguments. Paragraph 197 provides:

`These arrangements shall not prevent:...

c. either party waiving its rights to notice on any occasion, or accepting payment in lieu of it...' 20. That is exactly what has happened in this case."

17. The learned judge proceeded to refer to the decision of this court in R v Secretary of State for Health and Trent Regional Health Authority, ex parte Guirguis [1990] IRLR 30, to which of course the Secretary of State referred in his decision letter. In that case the court had to consider paragraph 190. The facts disclosed a clear case of misconduct justifying a summary dismissal, which is what was executed by the employers. The court held, and I need read only the first holding in the headnote:

"The High Court judge had correctly rejected the applicant doctor's application for judicial review of the Secretary of State's decision that he did not have jurisdiction under paragraph 190 of the Terms and Conditions of Hospital Medical and Dental Staff to consider the applicant's complaint that his appointment was being unfairly terminated. The judge had correctly held that paragraph 190 does not apply to a practitioner who has been summarily dismissed."

18. The case before me is not one where the applicant was summarily dismissed for misconduct. He was entitled to be dismissed on three months' notice. That being so, where he is in fact dismissed without notice there is a breach by the employer. But it is open, if an offer to that effect is made, to the employee to accept a payment in lieu of notice. If he does so, what is the position as a matter of the law of contract? Mr Fordham's skeleton argument refers to Delaney v Staples [1992] 1 AC 687, in which Lord Browne-Wilkinson at 693B endorsed an earlier statement by Lord Donaldson MR in Gothard v Mirror Group Newspapers [1988] ICR 729, at 733, as follows:

"If a man is dismissed without notice, but with money in lieu, what he receives is, as a matter of law, payment which falls to be set against, and will usually be designed by the employer to extinguish, any claim for damages for breach of contract, i.e. wrongful dismissal. During the period to which the money in lieu relates he is not employed by his employer."

19. Miss Lang for the applicant in fact accepts that the applicant's contract was terminated before he lodged his appeal on 7th December 1998. It is perhaps not necessary to go at any greater length into this aspect of the case. I need say only that it seems to me that the dictum of Lord Donaldson taken from the Gothard case and cited by Lord Browne-Wilkinson plainly applies here, as Gibbs J and Scott Baker J both held.
20. Miss Lang has also submitted that there is at least a question mark as to whether the applicant accepted the money that was proffered in lieu of notice. It seems to me, in so far as it makes any difference, that he plainly did. He was represented by lawyers at the time. It would have been open to him to object to his contractual rights being concluded in that way and to decline to accept the money proffered in lieu. But in truth it seems to me that it makes no difference, for I apprehend Miss Lang is correct to submit that the applicant's contract was terminated by the letter of September 1998 then and there, whether or not the money in lieu was accepted.
21. Seeing the difficulty arising from the construction of paragraph 190 and the fact that her client's contract was terminated before the appeal was lodged, Miss Lang in the end founds on two submissions. She says the employers were in breach of the contract of employment so they were not entitled to dismiss summarily. So far so good. From this she derives the proposition that they should not be allowed to take advantage of their own wrong in the context of the appeal lodged by the applicant.
22. It seems to me however that that submission is wide of the mark. This is not a case of one party to a contract seeking to gain contractual rights by reliance on his own wrong. The question is: what is the correct construction of paragraph 190? If its correct construction precludes any appeal by an ex-employee whose employment contract has been terminated before he seeks to commence his appeal, that is the end of the matter. There are no further equities in the case.
23. Miss Lang's other submission is that paragraph 190 should not be so construed. She submits that the words of the paragraph that appear to produce the result that the jurisdiction which it confers is limited to a case where the contract is current are, as she puts it, procedural only. In truth the paragraph is silent as to what procedure should be adopted or what should be done if the prospective appellant has been dismissed summarily but accepted money in lieu. In such a circumstance, she submits the court should be prepared to imply a term into paragraph 190 whose effect - she did not purport to draft it on her feet - would be that in a case where the employer terminates without notice unlawfully the court should deem the notice period in fact still to be current, so as to produce a result whereby an employee so summarily dismissed has in effect the same appeal rights as one whose contract remains current when the appeal is lodged.
24. One can only admire Miss Lang's tenacity, if I may say so, but it seems to me that the point simply will not run. The words of paragraph 190 it will be recalled include these:

"... a consultant ... who considers that his ... appointment is being unfairly terminated may appeal ... by sending ... a notice of appeal at any time during the period of notice of termination ..."

25. Here we have a formulation in which the words which seemingly limit the appellate jurisdiction fall within the very sentence which confers the jurisdiction. It seems to me impossible to separate out some parts of this provision that are executive and others which are procedural. In the same voice, in the same sentence, the paragraph is giving and limiting the appellate jurisdiction. That seems to me to conclude this ingenious point against Miss Lang.
26. In her skeleton argument there are some other points. She submits for instance it is difficult, if not impossible, to see any sensible policy in the promulgation of such a limited right of appeal by the Secretary of State. But this is not a challenge to the vires of paragraph 190 on some such basis as want of reasonableness. What I am concerned with is simply the paragraph's construction. As to that, I find it impossible to escape the logic of the way it has been put by Mr Fordham.
27. That concludes the matter. It would not be right for me to give permission to appeal.
28. I should add by way of postscript first this. Miss Lang says that the reasons in the decision letter of 5th May are not legally adequate. But in my judgment, for the reasons I have given, the Secretary of State was bound to decide as he did; so that any complaint about want of reasons would be futile.
29. Lastly, Miss Lang has some points under the heading in her skeleton argument "Bias and legitimate expectation". But they would only arise, as she accepts, if there was jurisdiction in the Secretary of State to hear the appeal. Since I have held there was not, I do not find it necessary or appropriate to go into them.
30. For all the reasons I have given, the application is refused.
ORDER: Application for permission to appeal refused with costs. (Order not part of approved judgment)