England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		25th July 2005

1. MR JUSTICE MCCOMBE: Today is the day fixed for the hearing of an application for Judicial Review brought by Dr Zafar Iqbal Malik against the Waltham Forest National Health Service Primary Care Trust. The application for review is brought with permission of the court given by Wilson J on 20th May of this year.
2. What I have to deal with first is an application made on Dr Malik's behalf to amend the claim form in the proceedings to add certain additional grounds and heads of relief. To understand the application for amendment, it is necessary to say a few words about the nature of the proceedings as originally constituted and as proposed now to be constituted.
3. The difficulty in the present action arises out of hearings sought to have been conducted by the defendant care trust since January of this year, whereby they have sought to consider the question of whether or not to suspend Dr Malik from practice in the light of observations as to his manner of practice, viewed by a doctor enquiring into a totally different matter at Dr Malik's surgery.
4. Following the consideration and suspension of Dr Malik in January 2005 and then later in March 2005, proceedings were brought to challenge the procedural fairness of the course of action taken by the Primary Care Trust with the result that, in the early part of May of this year, an application was brought not in the Administrative Court but in the ordinary civil list in the Queen's Bench Division, seeking to impugn the action that had been taken to suspend him. At that stage, it seems to have been resolved, partially by agreement at least, that the matter was one for dealing with in this court, the Administrative Court, being a public law matter. On 5th May 2005 the proceedings were transferred to this court by an order of Roderick Evans J.
5. At the time of that order, the claimant, Dr Malik, was given permission to amend his claim form to set out grounds for Judicial Review of the proceedings that had occurred to date under the auspices of the Primary Care Trust. As so amended and served, pursuant to Roderick Evans J's order, the claim omitted to make any claim for financial compensation pursuant to the alleged breach of the Human Rights Act 1998 and, in particular, Article 6 of the European Convention on Human Rights. The claim, as so formulated, proceeded essentially to allege that the procedures conducted by the Primary Care Trust suffered from procedural unfairness and that the main decision, if I may call it that, of 16th March 2005 should be set aside accordingly. In correspondence, the claimant, Dr Malik, or those advising him, indicated that they were wishing nonetheless to pursue matters of compensation and the possibility of an amendment to the claim form was ventilated in correspondence on 8th July by the Care Trust solicitor's, but no such amendment at that stage was forthcoming.
6. Having regard to the proceedings as originally formulated, it appears that in the latter part of June or early July of this year the Care Trust, seeking to avoid the need for Judicial Review proceedings, proposed a fresh hearing of the suspension matter and, after an initial protest by Dr Malik that he was being given inadequate notice of the still further hearing to be conducted into his suspension, the arrangements were made for the new hearing to be held on 3rd August of this year, ie next week. In the course of argument about the setting up of the new hearing, I have been told that Dr Malik's representatives continued to argue that the suspension hearing would have to be fully compliant with Article 6 as they wanted every possibility to cross-examine witnesses and they wished to have a legally qualified chairman in charge of the hearing and so forth, namely maintaining their position that Article 6 properly applied to the proceedings for Dr Malik's suspension. However, it was envisaged nonetheless that the hearing on 3rd August would go ahead with that caveat, nonetheless with the proceedings in the present form unamended.
7. A proposal to amend proceedings for Judicial Review requires 7 days notice to be given to the respondent or defendant to the proceedings. In this case the proposed amendments to the claim form were not provided to the Care Trust's advisers until some 6 days before the hearing fixed for today. That is clearly short notice within the meaning of the rules and the express words of the practice direction and there is a policy, which does not need reciting in any great detail, to the effect that the court is cautious in permitting amendments where late notice has been given in proceedings which are intended to resolve public law matters on material which all parties have been given adequate notice. However, the question of whether an amendment should be permitted in any given circumstances will always be a discretionary matter for the court.
8. The amendments now raise fairly and squarely a claim to damages for breach of Article 6 of the European Convention on Human Rights which, as I say, did not appear in the original claim form in this court. Indeed, such a claim appeared initially to have been abandoned, because it had been raised in the proceedings in the Queen's Bench Division but not here. Mr Hyam, on behalf of the defendant, objects that he has been given inadequate notice to prepare for the argument now raised once more and to consider the wider ramifications of a claim for compensation and the application of Article 6.
9. In addition to the point raising Article 6, the proposed revised claim form, raises two other matters: the question of whether the decision made by the Primary Care Trust on March 2005, apart from being procedurally defective, was unreasonable in the Wednesbury sense, ie a decision which went well beyond the bounds of rationality of the properly advised Tribunal or body of this sort. Finally, there is sought to be raised a certain further point concerning the treatment at the hearing of certain practice notes of Dr Malik. The proposed amendment reads as follows (it gives the gist of what is being sought to be raised, and I quote paragraph 28.B of the proposed amendment):

"Further, in breach of the express promise contained in the Defendants' letter of 11th March 2005 the Defendants failed to provide copies of the 24 sets of records of the patients upon which they rely."

Underlying that proposed amendment is a factual dispute as to who indeed has the sets of notes and that is of course a factual matter of some difficulty for the court to resolve, although it may be that it might be capable of having some resolution by recourse to the records or papers in this case.

10. In short Mr Hyam says that this application to amend is raised far too late but, if it is to be permitted, it should only be permitted to be raised on the basis of an adjournment for him to consider the amendments, to consider the further evidence, which on one of the grounds is sought to be adduced, namely an expert report by a Dr Cranfield, relating to the rationality arguments in the decision. He says that he has certainly had inadequate notice to prepare himself for the raising of these issues.
11. I have sympathy with Mr Hyam's predicament in the light of the very late proposal for amendment of this claim. However attractively Mr Engelman puts the argument that essentially all these matters have been in the background of this case, and indeed on the age of the claim as originally pleaded, it seems to me they were not so raised, otherwise he would not be asking for permission to amend and certainly the amendments raise substantially different grounds of challenge. Each of the amendments, however, seems to me to be arguable and the question as to the applicability of Article 6 is obviously an important one. Mr Hyam, I do not think, is inclined to say that it is a totally unarguable point, although at the end he will be arguing that, properly understood, Article 6 does not apply to proceedings of this sort. Those are all debatable matters.
12. So far as Dr Malik is concerned, if his complaint about the nature of these proceedings and the question as to whether he is entitled to compensation is a matter of importance to him, he should be allowed, it seems to me, to raise it. The sums of money that are quoted as to potential loss are not insignificant and it seems to me to be wrong that he should be barred from raising those points, if indeed they are good ones.
13. I do therefore propose to permit Mr Engelman to amend the claim form of Dr Malik to include the paragraphs in the draft before me but it will be at the cost of adjournment to enable the Health Care Trust to put its house in order in the light of those amended materials. It is only fair that matters obliquely raised, now clearly raised, should be matters of proper consideration by the Health Care Trust.
14. I am also attracted to that view because of a further feature of the case, namely that the hearing now fixed for 3rd August is imminent. This has been fixed for some time and fixed for the convenience of all parties in the face of objection to an earlier hearing raised by Dr Malik himself. It must have been envisaged that those proceedings would go ahead. That was the whole purpose of fixing the hearing for 3rd August and to hijack that hearing now, simply because of the late amendment, seems to me not to serve the justice of the case. The point about the applicability of Article 6 will still be there. However, it could still be open to the Primary Care Trust to deal with all other matters of procedural unfairness that have been alleged by Dr Malik and to achieve a satisfactory hearing subject to the points that he wishes to raise about the applicability of Article 6.
15. For those reasons I would permit the amendments to be made. I propose to adjourn the Judicial Review application, at least until after the hearing of 3rd August has been concluded and its conclusions are known, and, in reality, probably until the new sittings of this court in the beginning of October of this year. It would be open to any party, however, to apply to expedite that hearing if there is any significant urgency. For those reasons, therefore, I permit the amendment and I adjourn these proceedings for a new date in accordance with the guidelines I have tried to set out.
16. MR HYAM: The consequence are costs, I think, because effectively this Judicial Review is going to go off and come back when these matters can properly be argued. In the interim there are going to some procedural points. I think it is likely the Department of Health would be notified if they wish to be joined as part of any Article 6 issue. There is no point at all in my submission in proceeding on the old claim, unamended, because of the necessary duplication of the new hearing. So the question is: why has there been an adjournment? Answer: because of the late amendment of the claim form.
17. MR JUSTICE MCCOMBE: Well, there is the cost of the adjournment first. The amendment would be granted on usual terms anyway; the costs of and incidental to the amendment will be paid by the amending party. So we can move on to the question of the costs, really, of today.
18. MR HYAM: Well, my simple point is that the costs thrown away today are in consequence of the late amendment. The calculation of time is 6 days, though that does include a Saturday and Sunday. The letter I referred you to showed that we were writing to the claimant on 8th July saying, "you told us you were going amend on the 4th". But that amendment did not actually arrive until 8th July. Had the matters been properly put forward earlier, this amendment may not have been necessary and it has become an issue because of the late service and today's hearing is now going to be aborted. So I do ask for my costs of today.
19. MR JUSTICE MCCOMBE: Let us hear what Mr Engelman has to say about that.
20. MR ENGELMAN: I have nothing to say about the costs of the amendment.
21. MR JUSTICE MCCOMBE: Of and occasioned by the amendment of your clients.
22. MR ENGELMAN: As to costs of today, I find my friend's version a little rich, if I may say so. These matters, as your Lordship rightly observed in his judgment, have been in the background for some time. Your Lordship has decided in the event that there ought to be at least 7 days' notice, not 6 days.
23. MR JUSTICE MCCOMBE: Well, more than that, Mr Engelman.
24. MR ENGELMAN: The law says 7 days but anyway -- but your Lordship has decided that--
25. MR JUSTICE MCCOMBE: But for the application to be made. My point is that, having made them, the adjournment -- what flows from the adjournment is a different matter, is it not -- from the amendments, a different matter.
26. MR ENGELMAN: Well, I understand, but nonetheless, as I have said to your Lordship, and this is relevant to costs, the issue of the HRA is a matter of legal argument, not a matter of fact -- no facts are in dispute. The issue of the patient records: again no factual dispute that can be resolved by Administrative Court. It is only the issue of Wednesbury unreasonable in relation to Dr Cranfield's report that might have required the Trust to seek further factual evidence about that but, as I have agreed, if it came to that then it may be that particular submission or issue should have been hived off. Putting my submission very shortly, we are all familiar with the issues, I submit the proper order to be costs to be reserved until the further hearing of the Judicial Review application while we can see precisely what disadvantage the trust has been placed in. I suspect, I do not know at the moment, that it is very little.
27. MR JUSTICE MCCOMBE: Thank you very much. Do you wish to respond?
28. MR HYAM: Only very briefly. The idea that costs should be reserved so that the court will have a better view of the future does not actually wash because the court has a very good idea now as to why the adjournment is necessary. The adjournment is necessary so that the defendant can have proper time to deal with what are effectively new claims brought after permission was originally granted. The effect of today's decision, in effect, is to give the claimant permission to proceed with three new and separate points not raised on 8th July. My simple point is that costs that the adjournment thrown away should be paid by the claimant.
29. MR JUSTICE MCCOMBE: I am clearly of the view that the reason for this adjournment was because of the amendment and the claimant will bear the costs of today.
30. MR HYAM: You may find it difficult to do a summary assessment on the basis of --
31. MR JUSTICE MCCOMBE: A detailed assessment then.
32. MR HYAM: The only question then is whether you would wish to make an interim payment on account of such costs.
33. MR JUSTICE MCCOMBE: No, I think not. I think I will see where we go. There is a claim for compensation outstanding, it might be right that it should all come out in the wash.
34. MR HYAM: So detailed assessment, my Lord.
35. MR JUSTICE MCCOMBE: Yes, thank you both very much for your submissions.