IN THE HIGH COURT OF JUSTICE CO/1828/1999
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Wednesday, 13th December 2000
MR JACK BEATSON QC
(Sitting as a Deputy High Court Judge)
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THE QUEEN ON THE APPLICATION OF
(1) PAUL ZIETSMAN
(2) MARIUS SCHMULIAN
DENTAL PRACTICE BOARD
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(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040/0171-404 1400
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Official Shorthand Writers to the Court)
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MR S AIREY (instructed by Titmuss Sainer Dechert, 2 Serjeants' Inn, London EC4Y 1LT) appeared on behalf of the Applicants.
MR P HAVERS, QC (instructed by Clyde & Co., 51 Eastcheap, London EC3M 1JP) appeared on behalf of the Respondent.
As Approved by the Court
Crown Copyright ©
1. JACK BEATSON Q.C.:- Introduction: Dentists providing treatment under the NHS are required to make claims for payment to the Dental Practice Board (the "Board"). This application concerns the power of the Board to suspend consideration of such claims for payment pending the outcome of police investigations as to whether those claiming payment, in the present case orthodontists, are involved in a criminal conspiracy to defraud the NHS.
2. The Board is a statutory body established by section 37 of the National Health Service Act 1977 ("the 1977 Act") for the purpose of carrying out prescribed duties "with respect to ... dental treatment and appliances, and to the remuneration of dental practitioners providing dental services" within the NHS. Provision is made for the approval of payments by the Board and payment by it in regulation 20 of the National Health Service (General Dental Services) Regulations 1992 SI 1992 No 661 ("the Regulations"). Regulation 20(2) provides:-
"The Board shall, where it approves a claim for remuneration made by a dentist, other than a salaried dentist, in respect of
(a) care and treatment under a continuing care arrangement or a capitation arrangement;
(b) treatment on referral; or
(c) occasional treatment;
completed by the dentist, pay, in accordance with the Scale of Fees, the remuneration due to the dentist in respect of such care and treatment, treatment on referral, or occasional treatment."
Prior to 1992, the functions of the Board (then known as the Dental Estimates Board) were to approve claims for payment but not to pay them (Regulation 11 of the National Health Service (General Dental Services) Regulations 1973).
3. The claims with which this application is concerned are in respect of orthodontic treatment. Since the cost of orthodontic treatment commonly amounts to several hundred pounds for a full course of treatment, which commonly takes 2-3 years to complete, schedule 4 to the Regulations requires that all courses of orthodontic treatment which it is anticipated will cost more than £600 must be given prior approval by the Board. The Board generally proceeds on the basis of the dentist's own assessment. In the case of orthodontic treatment, regulation 20(6) of the Regulations empowers the Board to make interim payments on account pending completion of the treatment. Further, since most orthodontic treatment is provided to children who are exempt from paying a "patients charge", in most of the claims with which this application is concerned, the dentist's entire fee is payable out of public funds.
4. The facts: The Applicants, Mr Zietsman, Mr Schmulian, and Mr Kruger (who is no longer a party to the proceedings) operated orthodontic practices in Bracknell, Guildford and Cambridge. On 23 November 1998, following a complaint by the Board, the Thames Valley Police raided these practices and seized the records of some 10,000 patients. The patients were mostly children who had received or who were receiving orthodontic treatment. There was suspicion that the Applicants had submitted claims for payment which were fraudulent in that the treatment had either not been provided, or that the claims related to fictitious patients, or related to treatment that was clinically unnecessary or of substandard quality.
5. Following the police raids, the Board considered what to do about claims for payment by Mr Zietsman and Mr Schmulian. On 8 February 1999, it wrote to Mr Zietsman informing him that "pending results of the police analyses and any subsequent verification" it (a) was suspending further payments in respect of treatment to patients whose records were being investigated by the police, and (b) would approve no applications for prior approval of treatment for such patients. A similar stance was taken regarding Mr Schmulian who has received no payments in respect of orthodontic work since December 1998. These decisions, which were explained more fully in a letter dated 7 May 1999 from the Board's solicitors Messrs. Clyde & Co. are the subject of the challenge. The Applicants seek the quashing of the decisions, the remission of the matter to the Board for further consideration, and an order of mandamus requiring the Board to determine that the applications for payment shall be paid pursuant to the provisions of the Regulations.
6. The application for permission to apply for judicial review was made on 7 May 1999. Following refusal on the papers by Ognall J on 8 July, the application was renewed and ultimately came before Moses J who granted permission on 31 July 2000. No point as to the delay was taken before me by the Respondent and I was informed by Miss Montgomery QC that this was in part the result of the time taken by the Dental Protection Society to determine whether these proceedings raised issues of general interest to dentists which it could fund.
7. The evidence on behalf of the Applicants consists of affidavits by Mr Frankland of Dechert, their solicitors, sworn on 7 May 1999, and 6 and 25 July 2000, and a witness statement dated 28 November 2000. The evidence on behalf of the Respondent consists of statements by the Board's Head of Information and Probity, Mr Stirling (dated 21 July 2000) and Mr Byrne, a manager in the Board's Probity Unit (dated 25 August 2000). In view of the date of Mr Frankland's most recent statement, which I admitted as evidence in the proceedings, the Respondent has not been able to submit further evidence but Mr Havers was able to obtain instructions and to comment on it.
8. The position taken by the Dental Practice Board: The position of the Dental Practice Board, both in relation to claims for payment generally and in the case of claims by the Applicants is set out in Mr Stirling's witness statement and in the letter of 7 May 1999 from Clyde & Co..
9. The Board receives in excess of 45 million claims for payment every year and it is understandable that it cannot carry out a comprehensive manual check of every claim before giving its approval. In general, provided a claim is made by reference to a valid payment code and the Board is not aware of any potential problem, the claim is entered in the Board's computer and in the majority of cases paid within one month of receipt of the claim form. The system depends on the honesty and accuracy of claimants, although the Board carries out a retrospective analysis of some claims. Where there is concern about the claims of a particular dentist, the Board states this does not mean that all claims for that dentist are simply rejected. But it does mean that the "presumption of honesty" does not apply and some or all or his or her claims are taken out of the system and subjected to manual scrutiny, a much more extensive process of "positive vetting". Where the concerns are as to the quality of the treatment or whether it has in fact been carried out, manual scrutiny involves examination of the record cards, study models and the radiographs relating to the claim. While it is clear that in view of the Board's suspicions, the normal way of processing claims was not appropriate, Miss Montgomery QC, on behalf of the Applicants, submitted that the board should have subjected the individual claims to manual scrutiny and determined them by the positive vetting process.
10. In its letter of 7 May 1999 Clyde & Co. elaborated the Board's position in respect of the claims by the Applicants. This can be summarised as follows: (a) Information passed by the police to the Board was and remained a significant factor in its assessment of the position. The view of the police was that there is evidence of wholesale endemic fraud running through many aspects of the treatment provided and the claims made by the Applicants; (b) The Board's own investigations and analysis revealed widespread cause for concern which were communicated to the police; (c) The presumption of honesty no longer applied to claims by the Applicants; (d) The Board suspended some but not all payments and it was assessing each category of claim. In the case of Mr Zietsman, it was continuing to assess and pay claims submitted for non-orthodontic general dental work. Claims not involving patients within the police investigation and not subject to prior approval would be considered on their merits; (e) The suspension of payments for all claims regarding patients whose records are being investigated by the police (whether the treatment was before or after November 1998) is reasonable given the advice of the police as to the evidence of a broadbased conspiracy to defraud the NHS; (f) Even if a claim is not fraudulent, that does not mean it should be approved because the work for which the claim is made might still be unnecessary or substandard; (g) Although in May the Board was (as it had not been in February) in principle prepared to consider new applications for prior approval of orthodontic work, it was bound to consider whether, given the number of cases and the evidence of substandard practice, it was appropriate to approve any further applications. If it did, it would require evidence of a proper standard of work and to be satisfied that the treatment was necessary and appropriate. Even if prior approval was granted, the Board would be very reluctant to agree to any interim payments until there was consistent evidence in a number of cases that the work had been completed satisfactorily.
11. After stating that the Board was investigating and assessing a very large number of claims already submitted and paid in the light of the information it then had about the practices of the Applicants and others, and that a substantial proportion of the Board's relevant resources had been devoted for many months to the investigation and consideration of the Applicants' claims, it stated that the Board was "acutely conscious that it was called to tread a narrow and difficult path". It had to balance the need to treat practitioners under investigation fairly and reasonably particularly bearing in mind the hardship which may follow from the suspension of payments in whole or in part with (a) the need for caution about approving further claims for payment from public funds from persons suspected of involvement in a conspiracy to defraud the NHS, and (b) the position of patients given apparent evidence of unnecessary and substandard treatment.
12. Mr Byrne's evidence is that the Board has analysed a large number of the records relating to Mr Zietsman, that there are 229 outstanding claims to the Board by Mr Zietsman, and their total value is £9,365. In his submissions, Mr Havers stated that there are 162 outstanding claims by Mr Schmulian with a total value of £16,036. The amount due on outstanding unpaid claims is disputed. Mr Frankland's most recent statement estimates that in the case of Mr Zietsman it is some £292,000. It is not possible to resolve this dispute in these judicial review proceedings. There are many more claims which Miss Montgomery stated the Applicants have not yet submitted to the Board because of the seizure of their records by the police and because they consider it is pointless to do so in the light of the Board's decision not to consider claims until patients have been excluded from the police inquiry. Although, on 29 August, the Applicants' solicitors wrote to the Board's solicitors stating they would be writing about all the other claims, they have not done so despite letters from the Board's solicitors who said this would enable the position to be clarified before the hearing in this Court. It is estimated on behalf of the Applicants that, taking account both of the claims submitted and those not yet submitted, the Board owes them a very large sum of money. Figures of £320,000 in respect of Bracknell, £25,000 in respect of Guildford and £145,000 in respect of Cambridge have been given.
13. Mr Stirling's evidence is, if the Board is required to decide whether to approve the Applicants' claims before the conclusion of the police investigation, since they might be tainted by fraud and there remains a reasonable possibility that they are otherwise invalid, the Board would have no option but to reject all the claims.
14. Miss Montgomery submitted that the decisions to postpone the determination of the claims (and the Board's stance concerning the prior approval often necessary for othodontic treatment) until the conclusion of the investigation meant, given the scope of the investigation, that it was impossible for the Applicants to continue in practice. As a result of the decisions of the Board, all the practices have closed; that in Bracknell on 31 March 1999, that in Guildford on 25 June 1999, and that in Cambridge on 5 July 1999. The decision in effect amounted to suspending them from NHS orthodontic practice. The Applicants were NHS orthodontists and unless they were paid for work done and were able to obtain prior approval for treatment they could not remain in practice. Mr Schmulian has not been paid for orthodontic work for two years and, save for small payments for general dental work, Mr Zietsman has not been paid for almost two years. In the case of categories of case in which the Board's decision did not rule out prior approval, by May 1999 (shortly before the Guildford practice closed), of 50 claims for prior approval only one had in fact been approved. No decision on any individual claim has been communicated since July 1999. No payment of any kind has been made since that date.
15. On 30 September 1999, Mr Zietsman wrote to the Board requesting payment of outstanding fees and, in respect of claims about which it was suspicious, invited the Board to examine each claim. Mr Stirling replied on 25 October 1999 listing all claims being held pending verification and placing the claim in respect of each patient into one of three categories. These were : "A", "... claims for which appropriate verification depends in part on the results of current police investigations into similar cases. ... The cases in this category are awaiting the conclusions of the police inquiry.", "B", "claims where we have concerns about duplication and/or linkage with the material held by the police", and "C", "claims where payment is made at the discretion of the Board. These are requests for interim payments. ... In view of the uncertainty about the successful completion of courses, we have taken the view that it would be inappropriate for us to make any payment on account until our confidence, that the treatment proposed or begun, will result in a successful outcome, has been restored. We will, of course, pay any claim where the successful completion of a necessary course of treatment can be established."
16. The difficulties that confront a body such as the Board operating a computerised payment system that depends on the honesty and accuracy of claims submitted, when faced with suspicion of a widespread fraud, are manifest. The Board had devoted much time in investigating the claims of these Applicants before deciding to refer them to the police. As the letter of 7 May 1999 states, its limited resources do not enable it to conduct an investigation in such circumstances without serious delay to its other work. Clearly the Board was in a difficult position. But so, as the Board recognised, were the Applicants. The issue is whether, notwithstanding the undoubted difficulties facing the Board, in view of the devastating effect of the decisions on the Applicants, it was either lawful or a proper exercise of the Board's discretion to defer consideration of all claims submitted, irrespective of the reason that a claim was regarded as suspicious. It was likely that the police investigation would be protracted and it was clear that deferring the Applicants' claims and requests for prior approval meant the commercial end of their practice as NHS orthodontists.
17. The position of the police investigation: Until recently, both Applicants were in the same position, but since September 2000 the criminal investigation has only concerned Mr Zietsman. By August, Mr Byrne was able to say that the police had told him that the investigation was virtually complete. In September the Crown Prosecution Service decided not to proceed with criminal charges against Mr Schmulian, but passed the evidence collected about his case to the General Medical Council for consideration of possible disciplinary action. Mr Havers QC informed me that the Board was not formally told of the decision concerning Mr Schmulian until mid November, but is now starting to determine the claims he has submitted, and estimates that it will take approximately six months to determine these claims by the positive vetting process. Mr Havers also stated that there must now be a real prospect that a decision about Mr Zietsman will shortly be taken.
18. The grounds upon which relief is sought: The grounds upon which the Applicants seek (a) certiorari to quash the Board's decisions not to determine the claims or to give prior approval for treatment for these patients pending the outcome of the police investigation and (b) mandamus to compel the Board to determine them are:-
(1) The Board has no statutory power to suspend the determination of a claim for remuneration. The Regulations do not confer a general power to suspend the determination of a claim so that once a claim is submitted, the Board is bound to consider it as soon as is practicable.
(2) Insofar as the Board argues that it has not refused to consider claims for payment or to suspend payment, the requirement that the police exclude a claim from their investigation before the Board will consider whether to pay it amounts to an unlawful delegation of its duty under the Regulations.
(3) The Board has acted unfairly and irrationally by refusing to apply its declared policy of positively vetting certain claims in the Applicants' case.
(4) The Board's decision is so oppressive that it amounts to an irrational exercise of power.
19. 1(a) Power to suspend the determination of a claim for remuneration on the assumption it is practicable to determine the claim: I first consider this issue on the assumption that it would be practicable in this case to determine the claim and then turn to the question whether, as Mr Havers submitted on behalf of the Board, it is not in fact practicable to determine the Applicants' claims during the police investigation when the police have the original records, models and radiographs relating to the claims.
20. Miss Montgomery submitted that the functions of the Board as set out in section 37 of the 1977 Act and the Regulations are narrow; that is to approve or to disapprove a claim as soon as practicable, and not to suspend, (i.e. defer consideration of a claim) because of wider considerations. She submitted that there is no express power to defer consideration of a claim and that the argument that a power to do so should be implied should be rejected for a number of reasons.
21. First, if payments are not made, dentists making claims will go out of business because apart from a limited amount of private practice there is no other supply of funding for dental services. The Board was the only "customer" of NHS dentists.
22. Secondly, the provisions for the recovery of overpayments made in error or which were not due in regulation 22 of the Regulations indicate that the purpose of the Regulations is to ensure that payments are made as soon as is practicable.
23. Thirdly, if a claim is refused, the dentist concerned has a right of appeal under regulation 30A of the Regulations to two dentists selected from a panel nominated by the Local Dental Committee. Where an appeal is lodged, regulation 30A(6) requires the Board to send the relevant Health Authority a written statement of the reasons for its decision within thirty days. The suspension of a determination of a claim prevents the dentist from having recourse to this appeal to an independent decision-maker.
24. Fourthly, the scope of the power in regulation 20(2) has to be assessed by reference to its context and the statutory and regulatory provisions governing dentists, in particular those dealing with suspension from any form of practice or from practice within the NHS. Other provisions in the Regulations show that there is no general discretion or power to suspend payments. Even where a dentist is suspended from practice, whether from NHS practice under the 1977 Act (as amended by the National Health Service (Amendment) Act 1995 by the introduction of section 49A) or from all practice under Part III of the Dentists Act 1984, Parts V and VA of the 1992 Regulations make detailed provision for the curtailment or delay of payments.
25. Where a dentist is suspended by a direction of the NHS Tribunal regulation 28A of the 1992 Regulations governs payments. The determination is to be made by the Secretary of State who, by regulation 28A(3), is to secure as far as reasonably practicable and subject to any maximum amount specified by the Secretary of State for any period, that a suspended dentist is to receive payments at the rate corresponding to his remuneration under the Regulations during the twelve months ending with the direction that he be suspended. Again, where a dentist has been suspended under the 1984 Act regulation 24(2) provides that no payment shall be made once he has received payments in respect of twelve months' such suspension. By regulation 24(4)(c) no payment shall be made for a period during which the dentist is absent from the United Kingdom and, by regulation 24(4)(e) and (f), no payment shall be made for a period during which the dentist is serving a period of imprisonment or is remanded in custody in connection with a criminal offence for which he is then or later convicted. Regulation 25 gives the responsibility for determining applications for payments by dentists suspended under the 1984 Act to the Family Health Service Authority ("FHSA") in whose list the dentist's name was included before the suspension. Regulation 26 specifies the amount and duration of such payments and regulation 26(6) provides that where the FHSA determines that a dentist is entitled to a payment, it is required to inform the board of the amount and authorise the Board to make the payment.
26. Miss Montgomery submits that it would be absurd to give regulation 20 a construction that meant that dentists who have been suspended are still entitled to payments from the Board, whereas those like the Applicants, who are uncharged and unconvicted, are deprived of any remuneration and of the procedural safeguards of a determination by the NHS Tribunal or, in cases of suspension under the 1984 Act, of their rights of appeal to the relevant FHSA. She also supported this part of her submissions by reference to the amendments to the 1977 Act introduced by the Health Act 1999. Those amendments, which are not yet in force, empower the suspension of a dentist in a fraud case where there is a significant risk that the investigation will be prejudiced or that detriment will be caused to a health scheme, and section 49E of the 1977 Act as amended empowers the making of payments to such a person.
27. Miss Montgomery also submitted that the Regulations, including the provisions concerning suspension from practice and the procedural safeguards in such cases, are incorporated into the contract between the Board and the dentists: see paragraph 2(a) of Schedule 1 to the Regulations. In these circumstances, there should be no implication allowing the Board to withhold payments at its sole discretion. She submitted no such term could be implied by the application of normal contractual rules and that, in view of the inference from paragraph 2(a) of Schedule 1 that Parliament's intention was to use the Regulations to regulate the parties' contractual relationship, no such power should be implied into regulation 20(2).
28. For these reasons, Miss Montgomery submitted that the Board is under a duty to determine applications for payment as soon as practicable and, where an application is approved, to make a payment in accordance with the relevant scales of payment as soon as practicable thereafter; and that its decision to suspend payments until the outcome of the police investigations is known amounts to an abdication of the Board's statutory functions. She relied on the decision of the House of Lords in Engineers' and Managers' Association v Acas  1 WLR 302 for the proposition that once a claim has been presented to it the Board cannot sit back and passively await the outcome of the police investigations but is required to play a more active role in operating the machinery that the Regulations provide.
29. Mr Havers made the following submissions:- (a) Parliament has chosen not to circumscribe the Board's discretion by a timetable. Since the Regulations are silent as to the mechanics and do not set out a timetable, it was for the Board to decide how to carry out its functions. The explanation of how it does so in general and how it did so in this case is given in the letter of 7 May 1999 and in Mr Stirling's witness statement; (b) The provisions governing suspension by the National Health Service Tribunal and the Committees of the General Dental Council are of no relevance in construing the Board's powers under regulation 20(2). The powers under regulation 20(2) are free standing and do not depend in any way on other statutory schemes; (c) In the present case it was essential to bear in mind that the claims relate solely to patients whose records are or were until recently being investigated by the police who have told the Board that there was in their view a broadbased conspiracy to defraud the NHS on the part of a number of orthodontists including the Applicants. It was, he said, wholly unreal to argue that the Board should not have taken account of this; (d) In these circumstances, the decision to postpone consideration of the claims was a valid exercise of the Board's power.
30. Mr Havers submitted that, in general, any delay in the Board's consideration arising from police investigations is for a far shorter time than the delay in this case. I note, however, that where the delay is shorter, as where the police investigation is narrower, it is less likely that deferring the determination of a claim or a number of claims would result in the de facto suspension of the dentist from practice.
31. Conclusions on 1(a): If Miss Montgomery's argument that the Board is under a duty to determine all applications made to it for payment as soon as practicable (i.e. it must either approve or disapprove them) is correct it would severely confine the powers of the Board. Other than a de minimis deferral, the Board would not be able to defer determining a single claim even for a short time, and even though further information that would shortly be available would result in a more fully informed decision. I have concluded that there is some discretion to defer or suspend the determination of a claim that it is practicable for the Board to determine and that, in exercising that discretion, the Board is entitled to take account of the fact that there are police investigations into suspected fraud.
32. In ascertaining the scope of the discretion under regulation 20(2) one must, however, have regard to other relevant provisions in the Regulations and the statutes. Although the exercise of the Board's functions is not expressly made conditional upon other parts of the statute and Regulations, there are connections between other parts of the regulatory scheme and the functions of the Board. For example, by regulation 28A a dentist suspended by the NHS Tribunal is to be paid by the Board in accordance with the rules, and Regulations 26(6) and 26(7) provide that where a FHSA determines that a suspended dentist is entitled to payment, the FHSA authorises the Board to make the payment and the Board is required to make it.
33. The provisions governing suspension and payment during suspension from practice outlined earlier in this judgment show one limit to the discretion under regulation 20(2). The procedural safeguards in the Regulations concerning suspension and the detailed provisions for payment during suspension demonstrate an intention by the legislation to protect a practitioner whose livelihood and reputation is threatened by such suspension. To conclude that a decision to defer the determination of claims which operates as a de facto suspension is nevertheless authorised by regulation 20 would mean that the procedural safeguards and the detailed provisions for payment during suspension could be avoided simply by deferring the determination of a dentist's claim for payment. I accept the submission that a construction with that result should be rejected because it would mean that dentists who have been suspended are still entitled to payments from the Board, whereas those like the Applicants who are uncharged and unconvicted are deprived of any remuneration whatsoever and are deprived of their right of appeal to the relevant Health Authority against the refusal of a claim. I do not consider that to be consistent with the intention of the legislature.
34. Moreover, the legislation currently in force does not empower either the NHS Tribunal or the relevant committees of the General Dental Council to suspend a dentist who is suspected of fraud. Power to do this is contained in the amendments to the 1977 Act made in the Health Act 1999. The Board's position would permit it de facto to suspend a dentist from practice by deferring the determination of claims made him in circumstances in which there is currently no statutory power to suspend him. Moreover, it would permit it to do so without any limit of time or provision for appeal as exists where suspension is authorised by the legislation. A construction of regulation 20 which would permit the Board to do this does not appear consistent with the intention of the legislature in circumscribing the circumstances in which suspension is authorised.
35. For these reasons, I conclude that where deferring the determination of a claim for payment or for prior approval of treatment which it is practicable to determine has the de facto effect of suspending the dentist from practice the Board is not authorised to defer the claim. It should, in such circumstances, consider the individual claims and, if necessary, reject them. That would enable the Applicants to have recourse to the appeal under regulation 30A of the 1992 Regulations. Mr Stirling states that if the Board is required to determine the claims before the conclusion of the police investigations it would have no option but to reject all of them. That may turn out to be so, but the Board would have to direct its mind to individual claims and, for reasons I give below, such an inquiry might lead to different conclusions with respect to different claims or different classes of claim.
36. I have reached this conclusion on the basis of the legislation that is currently in force. It is, however, also supported by the amendments introduced by the Health Act 1999. Those amendments show an intention on the part of Parliament that, even in the case of the suspension by the NHS Tribunal of a dentist in a fraud case, the suspected dentist will be entitled to certain payments.
37. A second limit to the power to defer the determination of a claim which it is practicable for the Board to determine is that the Board cannot under the guise of deferment, refuse to complete its inquiries. In Engineers' and Managers' Association v ACAS  1 WLR 302, following an adverse award by a Disputes Committee of the Trades Union Congress (the "TUC"), the Engineers' and Managers' Association (the "EMA") referred a recognition dispute between it and two other trade unions to the Advisory, Conciliation and Arbitration Service ("Acas") under section 11 of the Employment Protection Act 1975. Acas resolved to proceed with the inquiry but, after the EMA launched legal proceedings against the TUC, decided not to proceed for the time being with the recognition references and maintained its refusal to proceed for two years. The EMA sought a declaration that Acas in refusing or failing to investigate and report on the recognition issue was in breach of its statutory duty. No cut-off point or time limit was imposed by section 12 of the Employment Protection Act 1975 (see Lord Scarman at p. 318) which provided that Acas "shall prepare a written report". The House of Lords held that, although Acas had a discretion to suspend its inquiries and defer the preparation of its report if it was of the opinion that a period of suspension would promote the improvement of industrial relations, it could not under the guise of deferment refuse to complete its inquiries. Lord Edmund Davies stated (at p 310) that if, as the Court of Appeal had concluded, Acas had manifestly decided to postpone dealing with the recognition issue until such time as the EMA's case against the TUC had been finally disposed of, "virtual abandonment of their statutory duty would have been clear and EMA's entitlement to the relief sought established". His Lordship distinguished the position of a clear decision not to proceed with the references until the litigation is finally disposed of with one in which the body is "keeping the matter open, periodically reviewing it, and reaching a fresh conclusion each time in the light of the developing situation; the former involves abandonment by Acas of its statutory duty, the latter merely a reasonable and permissible postponement". On the facts of the case, however, a majority of their Lordships concluded that the Court of Appeal's understanding of the position taken by Acas was mistaken. They held that Acas had not in fact taken a final stand but had intimated its decision "for the time being", reviewed the matter periodically and kept an open mind as to how it should proceed. It was held (Lord Diplock and Lord Keith of Kinkel dissenting) that the test of whether Acas had abdicated its statutory function was whether no reasonable body with its statutory duties could have continued the deferral. On the evidence before the court it could not be said that Acas's decision to continue with the deferment "for the time being" was one which no reasonable body could take. Accordingly, relief was not granted. Their Lordships accordingly considered two questions: first, did Acas take a final stand or did it periodically reconsider, and secondly, if it did periodically reconsider, was the decision to continue to postpone one a reasonable body with its statutory duties could come to?
38. Where the original decision to postpone was not open to question and was reconsidered, the passing of time might make that which was reasonable at one stage clearly unreasonable at a later stage. Although Lord Edmund-Davies (at p. 312) concluded that, in the circumstances of EMA v Acas, the later decision to continue to postpone the inquiry was not unreasonable, he stated that it was for him a knife-edged decision. In that case, the decision to postpone was in part made because of uncertainty as to the status of one of the unions as an affiliate of the TUC. In the present case, it is because of uncertainty as to the outcome of the police investigations. Lord Diplock (with whom Lord Keith of Kinkel agreed) stated that "once it is plain that the uncertainty is likely to continue for so long a period that it will cover several rounds of negotiations of pay claims, Acas in my view would be abdicating its functions under section 12 if it did not proceed with the reference".
39. So the question in the present case is, did the Board manifestly decide to postpone dealing with the claims until such time as the police investigation had been finally concluded, or did it review the matter periodically keeping an open mind as to how it should proceed? If it did review the matter, was its decision to continue to defer determining the claims one to which a reasonable body with its statutory duties could come?
40. There was some movement in the position of the Board between the letter dated 8 February 1999 and that dated 7 May 1999, in particular in relation to its willingness in principle to consider new applications for prior approval of treatment for patients whose records were not the subject of the police investigation. There is, however, no indication in Mr Stirling's statement, given shortly before the hearing at which Moses J gave permission to bring these proceedings, that the Board had reviewed the matter since May 1999.
41. Mr Byrne's statement of 25 August 2000 describes the enquiries carried out by the Board as to the position of the police inquiry. He states that he was told the investigation was largely complete but that there would not be a case conference until mid-September. He also states the police told him they would retain all original documents and other evidence until a final decision had been made and, if it was decided to bring criminal proceedings, he understood that all records seized but not required as evidence would normally be retained by the police. Much of the statement deals with the preliminary analysis carried out by the Board of a sample of the records relating to Mr Zietsman's patients from which he concluded that the Board is not sitting on or "suspending" payment on a large number of claims.
42. It might be said, although Mr Havers did not do so, that Mr Byrne's description of the Board's enquiries about the current position regarding the police investigation and the analysis of Mr Zietsman's claims by the Board is a description of a reconsideration by the Board. Since these showed that nothing of significance had changed, it might be argued the decision to continue to defer making a decision was one a reasonable Board could make. But it is not stated by Mr Byrne that the Board did reconsider its position in the light of the long delay, the fact that it had been told that the police investigation was largely complete, and the fact that it was able to conduct an analysis of Mr Zietsman's claims from the copies of the records it had. The enquiries of the police were made because of the indication given by Moses J at the permission hearing and it appears that the purpose of the analysis was to show that the Board was not sitting on a large number of claims involving large sums of money. Mr Byrne does, however, state that, in the circumstances, the Board might be prepared to consider claims relating to patients excluded from the inquiries on the strength of copy claim forms where the original claim form has been retained by the police.
43. I conclude that, while there is evidence of some movement in the Board's position in relation to relatively minor matters, there is no evidence that it has reviewed its decision to defer consideration of claims in respect of patients who remained within the police investigation and not to give prior approval for treatment to such patients. This decision is the crucial one. In these circumstances I have concluded that the Board did not keep its position under review keeping an open mind as to how it should proceed in the way considered necessary by Lord Edmund-Davies.
44. By the middle of 1999 it was clear, if it had not been before, that the effect of the Board's decision was to end the Applicants' ability to practice as orthodontists and that the police investigation was likely to take a long time to complete. The letter of 7 May 1999 stated that the Board had to balance the need to treat practitioners under investigation fairly, bearing in mind the hardship which may follow from the suspension of payments, with the need for caution about approving further claims for payment from public funds from persons suspected of fraud. Notwithstanding the hardship to the Applicants, the fact that by August 2000 the police investigation was largely complete and, despite the access the Board had to the records for the purposes of its analysis of the claims, the central decision to defer determination until the completion of the police investigation does not appear to have been reconsidered. Since there was no periodic reconsideration of the decision, it is not necessary to consider the second of the two questions in EMA v Acas; i.e. was any decision to continue to postpone one a reasonable body with its statutory duties could come to, although I incline to the view that, for the reasons given in paragraph 59 below, while reconsideration of each individual claim was not necessary, it would not have been sufficient for the Board to reconsider all the claims as a single block.
45. 1(b) Was it practicable to determine the Applicants' claims: I turn to the question whether, in the circumstances of this case, it was practicable for the Board to determine the Applicants' claims. Mr Havers submitted that it is unrealistic for the Board to conduct concurrent investigations while the police were investigating. I note, however, that other bodies which regulate professions and businesses do this where it is possible to do so without unduly oppressing the person faced with more than one investigation. The issue more commonly arises where the person under investigation does not wish to be faced with multiple investigations. Here, however, the Applicants are requesting concurrent investigations.
46. The Board has decided to defer consideration of all the claims submitted by the Applicants and Mr Havers submitted that it is impracticable to consider any of them until the conclusion of the police inquiry. Mr Byrne's statement that the Board might be prepared to consider claims to be submitted on the basis of copies of the records in respect of patients who have been excluded from the police inquiry indicates that it has also decided to defer any further claims submitted in respect of patients who have not. In its letter of 25 October 1999, the Board placed the claims in three categories. It states in respect of category "C" that it would be "inappropriate" to make any payment until its confidence that treatment proposed or begun will result in a successful outcome has been restored. That is not a reason of "impracticability". In relation to category "A" it simply states that it is awaiting the outcome of the police inquiry, and for category "B" it is said there is concern about duplication or linkage with material held by the police.
47. In his evidence Mr Stirling gives four reasons in support of the position that it is not generally practicable for the Board to investigate claims that are subject to police investigation. He states that, to the best of his knowledge and belief, three of these are applicable in the case of the Applicants. These are firstly, that the police inquiry may throw up matters relevant to whether or not the claim is valid and should be approved; secondly, the police have the record cards, models, radiographs and other materials regarding the claims which the Board would normally wish to scrutinise; thirdly, when the police are investigating fraud they do not wish the Board actively to investigate the same matters given that the Board's normal investigation process might itself involve contacting the potential witness in a criminal prosecution or discussing with the dentist matters about which the police are likely to interview him under caution. Mr Havers's submissions as to impracticability largely relied on these reasons. Miss Montgomery submitted that while it may well be impracticable to investigate and determine some claims, the claim that it was impracticable to investigate any was too wide and not sustainable.
48. Mr Stirling's statement should be contrasted with what was said in the letter of 7 May 1999. Towards the end of that letter Clyde & Co. stated:-
"The DPB are investigating and assessing a very large number of claims already submitted and paid, at the same time as continuing to receive and assess new applications and claims, in the light of the information now available about the practices of your clients and others. The resources of the DPB are of course finite, but we can confirm that a substantial proportion of relevant resources has now been devoted for many months to this investigation and consideration of your clients' claims." (emphasis added)
It is significant that, almost 6 months after the police raids and seizure of the records, the Board stated that it was still investigating and assessing the claims submitted by the Applicants in respect of which it stated payments would be suspended. Moreover, Mr Byrne's evidence is that it is the Board's position that it "cannot properly approve further claims in respect of ... patients [whose records are the subject of the investigation] given that such claims may be tainted by fraud". Mr Byrne does not address the issue of impracticability. I now turn to each of the reasons given by Mr Stirling.
49. 1(b)(i) The police inquiry may throw up matters relevant to whether or not the claim is valid and should be approved: Mr Havers submits that, given the nature and scale of the suspected fraud and the size of the payments claimed by the Applicants, the Board is entitled to take the view that it will wait for the outcome of the inquiry. As far as the size of the payments is concerned, I note that the Board's view is that, in respect of claims submitted by Mr Schmulian, their total value is £16,036 and, in respect of Mr Zietsman, it is £9,365. But put in the way Mr Havers put it, this is not really a question of practicability but of desirability and convenience. Practicability relates to the ability of the Board to determine the claims, not whether, if it had more information, it would be easier for it to do so. It is not said in the evidence submitted on behalf of the Board why the fact that the police inquiry may throw up further information makes it impractical for the Board to determine any of the claims. It is not obvious that information from the police would be relevant to the determination of all the different categories of suspicious claim. It is not obvious, for example, why the Board, with its expertise in assessing claims by dentists, needs to await the outcome of the police investigation where the doubt about a claim concerns clinical necessity or the standard of care. These issues do not depend on expertise possessed by the police as opposed to the Board, so this reason for impracticability does not appear to apply. In these cases, the fact that the police have the models and radiographs is more likely to be the problem.
50. 1(b)(ii) The police have the record cards, models, radiographs and other materials regarding the claims which the Board would normally wish to scrutinise: Mr Byrne's evidence is that in August the police retained all original documents and records and had informed him that they would retain them until a final decision had been reached. Mr Frankland's most recent statement states that a considerable number of records have been released to Health Authorities. It is conceivable that since August, when on Mr Byrne's evidence the inquiries were virtually complete, records have been released but Mr Frankland's recent evidence is that some were released before then. The situation may have changed since August but, on the evidence before me, that is not clear and I cannot resolve any conflict of evidence in these proceedings. I have, however, noted that in view of the timing of Mr Frankland's recent statement the Board was not able to serve evidence in reply. Mr Havers, who was able to include the Board's comments on some of its contents in his submissions, stated that the police had made it clear to the Board that original documents would not be released. I indicated to Miss Montgomery that, in view of the timing of the statement and the inability of the Board to serve evidence in response, I would not rely on that statement in relation to a matter of controversy. Accordingly, for the purposes of this point, I assume that all or virtually all the records have not been released.
51. Since the Board would normally need original documentation, models and radiographs to conduct the positive vetting exercise of a suspicious claim, particularly where the issue concerns the quality of work and clinical necessity, the fact that the police have the records clearly raises a serious issue of practicability. This is particularly so since the seized records are at Reading police station while the Board is based in Eastbourne. Mr Havers submitted that it was not realistic to expect the Board to carry out manual scrutiny at the police station at Reading. Miss Montgomery pointed to the evidence that the Board has had copies of the records and submitted that they can have access to the originals, that the police's powers to retain them are limited by sections 21 and 22 of the Police and Criminal Evidence Act 1984, and that a Mr Hinman, who is an orthodontic adviser to the Board, is assisting the police and could assist the Board. Mr Havers's response, on behalf of the Board, was that Mr Hinman is acting for the police and not the Board. It is not at all clear from the evidence who he is or what his position is.
52. Irrespective of Mr Hinman's position, it is significant that the need to have access to original records and models is given as a reason for it being impracticable to investigate any of the claims. First, it is not clear that this in fact affects all claims. Where a claim is made in respect of a client who does not exist, that claim can be determined without recourse to the models and radiographs. Secondly, Mr Byrne states that in the particular circumstances of this case, where the whereabouts of the original claim form is known, the Board might be prepared to consider claims on the strength of copy claim forms (albeit only for patients whose records have been excluded from the police inquiry). There is no indication that it would not be practicable to do so because the models and radiographs are at Reading. Thirdly, the passage I have quoted from the letter of 7 May 1999 indicates that the Board was able to continue to investigate at least some of the claims submitted well after the seizure of the records.
53. I conclude that the evidence before me does not show that the need to have access to original records and models makes it impracticable for the Board to investigate and determine all the claims submitted. It would not be impracticable for the Board to consider which, if any, of the claims can be considered on the basis of copy claim forms and documentation, and in respect of how many it would need access to the original models and radiographs.
54. 1(b)(iii) When the police are investigating fraud they do not wish the Board actively to investigate the same matters given that the Board's normal investigation process might itself involve contacting the potential witness in a criminal prosecution or discussing with the dentist matters about which the police are likely to interview him under caution: Mr Stirling's evidence is not that the police have in fact asked the Board not to investigate, it is that "to the best of [his] knowledge and belief" this circumstance applies. Mr Byrne's evidence is that the police investigation is now substantially complete. So even if this ground of impracticability applied at the time when Mr Stirling made his statement in July, it is not clear that it remains applicable. The issue of practicability is, as I have noted, not addressed in Mr Byrne's statement. Moreover, it is not clear that this ground of impracticability applies to all claims, notwithstanding the different reasons for which claims might raise suspicions.
55. Conclusion on 1(b): A decision of the Board that it is not practicable to investigate the claims is only reviewable on the well established public law grounds; i.e. that the Board took into account irrelevant considerations or failed to take account of relevant considerations, or if the decision is one which no reasonable Board could make. It is not, however, clear that the Board has in fact made a decision as to impracticability. Mr Stirling's evidence is couched in general terms and, in any event, the suggestion that any investigation is impracticable is inconsistent with the Board's statement in the letter of 7 May 1999, long after the records were seized, that it "is" investigating claims. Mr Byrne does not address the issue of impracticability. There is, moreover, a difficulty even if Mr Stirling's evidence is to be understood as a meaning that a decision was taken. First, it appears to have been a "block" decision rather than one which considered how the different reasons given for it being impracticable applied to different reasons for the Board being suspicious about a claim, or about individual claims or categories of claim. Secondly, for the reasons given earlier in this judgment (see paragraphs 43-44 above), I have concluded that the Board did not reconsider its position after its letter of 7 May 1999 and, in particular after it was informed that the police inquiry was virtually over.
56. My conclusion is that the submission that it is not practicable for the Board to consider any of these claims has not been sustained. In view of the devastating effect of its decisions on the Applicants, the Board should have addressed the issue of practicability more directly than it did and in a more individuated manner. It should have considered whether it was practicable to determine specific claims or specific categories of claim, and whether, in the light of the circumstances prevailing, the reasons given for impracticability applied whatever the ground for suspicion about a claim, and whatever the type of claim. Moreover, it should have reviewed the matter from time to time, and in particular when it was told that the police inquiry was virtually over.
57. 2 The requirement that the police exclude a claim from their investigation before the Board will consider whether to pay it amounts to an unlawful delegation of its duty under the Regulations: The Applicants submit that by requiring that the police exclude a claim from their investigation, the Board has delegated to the police the decision as to when to commence considering a claim and in effect is delegating to the police part of the positive vetting process in respect of these claims. In her skeleton argument Miss Montgomery states that "the effect of the [Board's] policy is to charge the police with the task of deciding whether a claim is properly payable under the Regulations". But I accept Mr Havers's submission that there was in fact no delegation or abdication to the police of the Board's powers; all the Board wished to do was to take into account the conclusions of the police which were matters it was perfectly legitimate for the Board to take into account. The Board had made it clear that once the police investigation was complete it would undertake the positive vetting exercise in respect of these claims.
58. (3) The Board has acted unfairly and irrationally by refusing to apply its declared policy of positively vetting certain claims in the Applicants' case and (4) The Board's decision is so oppressive that it amounts to an irrational exercise of power: I can consider these two grounds together. The Applicants argue that no explanation was offered for the Board not applying its stated policy, there was nothing unique in this case because the stated policy was adopted for cases of suspected dishonesty. There is, however, an explanation in paragraph 11 of Mr Stirling's statement. This is that the policy does not apply where claims removed from the automated system are the subject of a police inquiry.
59. The problem in this case was that the Board made a block decision in respect of all claims whatever their category and, for the reasons I have found, did not thereafter reconsider and review that decision in the light of any changes in the circumstances in the period since the first half of 1999. I concluded on ground one of the challenge that where postponing the determination of claims constitutes de facto suspension of a dentist from practice and it is practicable to determine them there is a duty to do so. If this is wrong, and the matter has to be considered as a matter of the exercise of the Board's discretion, I consider the impact of the Board's decision on the Applicants and the difference between their treatment by the Board and that of dentists suspended from practice mean that the decision is flawed on Wednesbury grounds. While the letter of 7 May 1999 shows that the Board took into account the hardship to the Applicants, it did not take into account the fact that even dentists suspended from practice are entitled to some payment. Moreover, it considered all the claims together and, notwithstanding the classification given in its letter of 25 October 1999, did not adopt a more individuated approach to its exercise of discretion or reconsider it taking into account changing circumstances as time passed.
60. The position of claims for past treatment which have not been submitted: Mr Havers stated that it is open to Mr Zietsman and Mr Schmulian to lodge further claims but they have not done so and the Board cannot be criticised for not considering such claims. While it is clear that no claim can be determined until it has been submitted, the difficulty with the Board's position is that its decisions make it clear that it will not consider any further claims submitted in respect of patients whose records fall within the police investigation. Moreover, there is the difficulty that claims need to be made on original claim forms, many of which were seized. Until Mr Byrne's statement, there was no indication that the Board would consider a claim on the strength of a copy claim form. He states that the Board "might" be prepared to do this but only for patients whose records have been excluded from the investigation.
61. It is clear that substantial claims are yet to be made, even if the Board ultimately finds no substantial payment or no payment at all is due. It is also clear that, when the Board start to process the Applicants' claims by the positive vetting procedure, it will take a considerable time. In the course of his submissions Mr Havers stated that the Board assesses that it will take about six months to process the 162 claims submitted by Mr Schmulian now the police investigation of him has concluded, and about a year to process the 229 claims submitted by Mr Zietsman. But, for the reasons given earlier in this judgment, many more claims have not been submitted which will also have to be considered by the positive vetting scheme. While the Board cannot be required to determine claims which have not been submitted, any claims that will be submitted will have to be considered taking account of this judgment.
62. Relief: As far as relief is concerned, certiorari, mandamus and damages are sought. Three issues arise. The first concerns the claim for damages. This was not argued before me; it is not possible to make an award of damages at this stage and in these proceedings; and it was accepted by Miss Montgomery that any such claim would have to be pursued separately.
63. Secondly, the order of mandamus sought in the form 86A would require the Board to determine that applications for payment "shall be paid" pursuant to the provisions of the Regulations. It is, however, by no means clear that a lawful determination by the Board would necessarily result in payment.
64. Thirdly, there is, as stated in paragraph 17 above, now a difference between the position of Mr Zietsman and Mr Schmulian. Now that Mr Schmulian is not going to be prosecuted Mr Havers informed me the Board is now starting to determine the claims he has submitted. It estimates it will take approximately six months to determine these claims by the positive vetting process. The decisions reflected in the letters of 8 February and 7 May 1999 have thus been overtaken by events and it must be open to question whether certiorari or even a declaration is necessary. I shall hear counsel on this issue. In respect of Mr Zietsman, however, certiorari to quash the decision made on 8 February 1999 will be ordered. I shall hear counsel as to whether any further relief is called for, but if it is it must be upon the basis of findings that I have expressed.
MR JACK BEATSON QC: For the reasons that are given in the judgment that I am handing down this morning, and there are some spare copies here if they are needed, the application is allowed for the reasons given as I have stated in the judgment handed down.
I will hear counsel as to whether any further relief other than an order of certiorari is called for in the case of Mr Zietsman.
MR AIREY: My Lord, I am obliged. I have had the opportunity of speaking to my learned friend, Mr Havers, and we are agreed certainly to act in accordance with your Lordship's indications. We do not seek any order of course in relation to Mr Schmulian. We are content that the Board will act in accordance with your Lordship's judgment.
In addition, we take the same view insofar as Mr Zietsman is concerned, and my learned friend has indicated that in the absence of any formal undertakings, as it were, he would nevertheless act in accordance with the rulings of your Lordship's judgment.
Clearly, my Lord, certiorari would be appropriate, and we are grateful for that. My Lord, my friend has not had an opportunity to properly consider the contents of a letter which those instructing me sent to his instructing solicitors yesterday. Perhaps I might take the opportunity of handing that up, because, my Lord, it is just relevant in relation to general observations I would seek to make.
My Lord, clearly your judgment does not envisage any methodology or indeed a timescale in relation to which the Dental Practice Board should seek to comply with its obligations in accordance with your Lordship's rulings. In those circumstances that we had sought to invite answers to a number of questions postulated in that letter -- my Lord, would you like an opportunity to read it?
MR JACK BEATSON QC: Yes, please.
In regard to 5(b), to number 5, my understanding from Mr Havers was that it was said that no records were released, so I do not quite understand 5(b).
MR AIREY: My Lord, in the light of that submission and the late state of the evidence on this point, your Lordship was not able to resolve that point. We, however, are of a different view --
MR JACK BEATSON QC: I would not have been able to resolve it in any event.
MR AIREY: -- that, in fact, records have been released, and had more time been available, we might have been able to prove that by direct evidence. But it may be capable of resolution in correspondence.
MR JACK BEATSON QC: Well, I have had a chance to read it.
MR AIREY: The reason for mentioning that is as follows. Mr Havers has not had a proper opportunity to review the contents of that letter, and I would not seek to request a reply today. However, my Lord, in my respectful submission it does raise issues which may comprise practical difficulties in the future in relation to the interpretation and application of your Lordship's judgment. It is in those circumstances that I would invite your Lordship to grant a liberty to apply if a sensible compromise cannot be reached between the parties as to how your Lordship's judgment should be implemented. So, my Lord, that is the reason for drawing your attention to that letter today.
My Lord, I also will say for the sake of completeness, owing to your Lordship's embargo in relation to the release of the judgment, clearly my lay client and the Dental Practice Board have not had a proper opportunity to fully understand all the relevant ramifications, and it is in those circumstances we might take the liberty of applying.
MR JACK BEATSON QC: It is very unusual to allow the release of judgments to lay clients.
MR AIREY: My Lord, yes, indeed, but it is in those circumstances --
MR JACK BEATSON QC: Yes.
MR AIREY: -- that would support my submission for liberty.
MR JACK BEATSON QC: Well, I do not know what Mr Havers would like to say on that. Is there any issue about that?
MR HAVERS: No, my Lord. The suggestion seems to us to be a very sensible one.
MR JACK BEATSON QC: Yes. Well, in which case an order of certiorari that the decisions be quashed, and liberty to apply in relation to the practical matters that may or I hope may not arise, will not arise, in relation to implementation.
MR AIREY: My Lord, I had intended to be bold enough to seek a ruling from your Lordship that you might order expedition of any assessment of damages hearing, but, my Lord, I think in the light of your judgment, that may not now be appropriate on the grounds clearly that you have indicated that it would be appropriate on our part that we submit or resubmit any claims that are the subject of confusion.
So I think perhaps in those circumstances, we are not able even to fully quantify our claim at this stage just yet.
MR JACK BEATSON QC: In fact, the way Miss Montgomery presented the case was that it was subject to separate proceedings.
MR AIREY: My Lord, indeed it would, but an indication from your Lordship might be useful in --
MR JACK BEATSON QC: I think you are right, that it is not -- in the circumstances, I think you are a long way down from that position.
MR AIREY: My Lord, yes.
Finally, my Lord, a question of costs. Unless your Lordship has any indication, we would ask for an order for detailed assessment in the absence of agreement.
MR HAVERS: My Lord, I cannot resist the application for costs. My Lord, may I say something about appeal. My Lord, the Board have not had a chance to read, let alone assimilate, your Lordship's judgment. It, of course, addressed not only the facts particular to this case, but also the question of the Board's discretion and how wide that discretion is to postpone payment. They would not wish now to apply for permission to appeal until they have had an opportunity properly to assimilate your Lordship's judgment. Thus, I do not make an application today, but it may be -- I know not -- that they would wish me to apply for permission to appeal once they have done so.
My Lord, I think the last day of term is next Thursday. It would, in my respectful submission, be sensible, if I am to make that application, to make it, if your Lordship were to be available, before the end of this term.
MR JACK BEATSON QC: Yes. From a practical point of view and my availability, it would be much easier if it was made this week.
MR HAVERS: The reason is because one is dealing not just with an individual respondent but with a Board who will want to consult amongst each other.
MR JACK BEATSON QC: Well, the earlier part of next week may be possible; the latter part of next week is, I know, going to be difficult for me if the matter comes back.
MR HAVERS: I see.
MR JACK BEATSON QC: Is that helpful? Well, it is helpful in telling you what the difficulties are at any rate.
MR HAVERS: Indeed.
MR JACK BEATSON QC: Yes, they will want to consider it. I had obviously wanted to hear any submission, but I should say that subject to any submission and grounds that you put to me, I would have thought that notwithstanding that I do deal with the discretion, that this would be a question for the Court of Appeal to decide whether it wants to hear it. But I wanted to hear what you had to say of course.
MR HAVERS: Forgive me. Do I understand your Lordship to be indicating provisionally that this is a case where your Lordship considers it would be appropriate for the Court of Appeal to hear or it would not?
MR JACK BEATSON QC: No, it would be appropriate for the Court of Appeal to decide whether it wanted to give permission.
MR HAVERS: Yes, I follow.
MR JACK BEATSON QC: Subject to what you say, my provisional inclination -- and who knows what you might say to me and what you might put to me once the Board has studied the judgment.
MR HAVERS: My Lord, I suppose one alternative might be to make the application to your Lordship in writing.
MR JACK BEATSON QC: Well, is that possible, with a chance for response?
MR AIREY: My Lord, we would not envisage any difficulties with that, I do not suppose.
MR HAVERS: Could I leave that as a live alternative to --
MR JACK BEATSON QC: I think that is a practical and sensible alternative.
MR HAVERS: Yes. I am grateful, my Lord. It may be that I would, if I were to do so, need to invite your Lordship also to extend time for the respondent to apply to the Court of Appeal for permission to appeal. The new rules provide for only 14 days.
MR JACK BEATSON QC: Fourteen days from today.
MR HAVERS: From today, exactly.
MR JACK BEATSON QC: Well, that is another reason I think it would do well if the Board can consider this with utmost expedition for that reason.
MR HAVERS: Yes.
MR JACK BEATSON QC: Given the difficulties of a public body and a corporate body, I would not be unsympathetic to such an application, again subject to what the applicants say.
MR HAVERS: My Lord, lastly, I am not sure much turns on this, but I think your Lordship indicated in the judgment that you were not minded to grant any relief in respect of Mr Schmulian, but certiorari alone in respect of Mr Zietsman. Your Lordship actually said a few moments ago that you were granting relief, granting certiorari, in respect of both of the --
MR JACK BEATSON QC: Did I? That was a slip. That was a slip of the tongue.
MR HAVERS: I thought it had been, yes.
MR JACK BEATSON QC: It was in respect of the first applicant, Mr Zietsman.
MR HAVERS: I am grateful.
MR AIREY: My Lord, I do not think anything turns on it, but a final point, just in light of my learned friend's remarks. So far as costs are concerned, notwithstanding any form of relief that was granted in relation to the applicants, the costs order covers both applicants?
MR JACK BEATSON QC: Yes.
MR AIREY: My Lord, I am grateful.
MR JACK BEATSON QC: Detailed assessment of costs if not agreed. I am very grateful to the both of you, and I am very grateful to you for your list of corrections.
MR HAVERS: My Lord, I hope you do not think it too impertinent.
MR JACK BEATSON QC: No. It was extremely helpful. One sees what one wants to see when one reads one's own text.