England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/10/2007

MR JUSTICE FOSKETT :

Introduction

1. On 17^th December 2003 the Claimant, Dr Mohamad Al-Ruby, issued a claim form in the Watford County Court against Dr A G Hibble and the Post Graduate Medical and Dental Education Committee, of which at the time Dr Hibble was acting Director of Post Graduate General Practice, in which the Claimant sought damages for libel said to be contained in a letter dated 6^th February 1998 (generally referred to in the litigation as 'the Hibble letter'). That claim form was amended subsequently to add a claim for damages based upon negligent misstatement by the Defendant and loss and damage occasioned by the misfeasance in public office of the Defendants, their servants or agents. This claim can conveniently be referred to as the 'the Hibble Claim'.
2. On 5^th March 2004, also in the Watford County Court, the Claimant issued a claim form seeking damages for negligent misstatement (subsequently amended to include an allegation of negligence) against eight named Defendants, the first being Dr Pat Troop, the Regional Director of Public Health for the NHS Executive, Anglia and Oxford. The claim arose from a letter written by Dr Troop on 9^th March 1998. Again, for convenience, that letter has become known as 'the Troop letter' and that action has become known as 'the Troop Action'.
3. It will be apparent that each of the claim forms was issued long after the date of the letter upon which each claim was based. Limitation problems plainly were likely to arise unless the claims were progressed expeditiously.
4. The Claimant first instructed the Defendants in this action, Messrs Quist, in May 2004. For present purposes, all I need to say is that it is the Claimant's case that the Defendants negligently failed to serve each claim form during the period of its respective validity and that an application to extend the time for service failed with the result that each action is now barred from proceeding further by the Limitation Act. Whether the Defendants were in breach of duty to him in allowing this position to obtain would be in issue if this action was to proceed. However, for the purposes of the strike out application to which I will refer in more detail shortly, it has been assumed in his favour that breach of duty in this regard would be established.
5. Acting with the assistance of solicitors, the Claimant issued proceedings against the Defendants in the Watford County Court on 11^th March 2005 seeking damages for breach of contract and/or negligence arising out their failure to act, as he would suggest, in accordance with his instructions and his interests. Particulars of Claim were issued at the same time to some parts of which I will make reference later.
6. A lengthy and comprehensive Defence to that claim was served on behalf of the Defendants, one point being taken was that the two actions that he had launched were actions that were effectively doomed to fail and that, even if they had not been lost as a result of the Defendants' negligence, the Claimant had effectively suffered no loss as a result.
7. As I understand it, the trial of the action between the Claimant and the Defendants was due to be heard over an estimated period of seven days during the autumn of 2006. However, on 5^th July 2006 the Defendants issued an application seeking to strike out the claim pursuant to CPR Rules 3.4(2)(a), 3.4(2)(b) and/or Rule 24.2. The basis of the application was that the Claimant stood no real prospect of successfully establishing that any breach by the Defendants (which was denied) had caused him any loss and that the claim was an abuse of process for various reasons to which I will refer shortly. It was also asserted that the underlying libel claim was time-barred and would, in any event, have been defeated by the defence of qualified privilege and that the claims for damages arising from misfeasance in a Public Office and/or negligence were misconceived and bound to fail. The Defendants sought to rely upon certain findings made adversely to the Claimant at an Employment Tribunal hearing to which I will refer.
8. That application was heard over period of three days between 21 and 23 August 2006 by His Honour Judge Farnworth in the Luton County Court. Judge Farnworth reserved his judgment and gave a detailed judgment on 12^th September 2006 when he acceded to the Defendant's application. He struck out the Claimant's claim against the Defendants and ordered that there should be judgment for the Defendants against the Claimant. He refused permission to appeal saying that he regarded the situation "as very clear cut indeed."
9. Some considerable time after the judgment had been given the Claimant filed an Appellant's Notice drafted by him. By that time he no longer had legal representation. In February 2007 he filed a Skeleton Argument running to some fifty pages in support of his application for permission to appeal. I do not propose to detail the grounds upon which he sought to rely, save to observe that it was obvious to anyone, and in particular to Tugendhat J who considered the application for permission to appeal on paper, that as presented the appeal was doomed to fail. On 1^st March 2007 Tugendhat J refused to grant permission to appeal. The Claimant then sought to renew the application for permission to appeal at an oral hearing. Walker J gave some comprehensive directions concerning this renewed application.
10. Fortunately for him, between the time when his initial application had been rejected and the matter came before me, the Claimant had secured the services of Mr John Hendy QC who has brought some order and coherence into the presentation of the application. I am indebted to him for doing so and I am sure that the Claimant ought also to be so indebted.
11. The application for oral permission was listed with the appeal to follow if permission was granted. The Defendants were represented, as indeed they were below, by Mr Bernard Livesey QC and I have had the advantage of full argument from him and Mr Hendy on the matters which Mr Hendy felt could realistically be advanced by way of criticism of Judge Farnworth's decision.
12. It is, I think, common ground that, if permission was granted, the approach to any appeal would be by way of review of the Judge's decision having regard to the materials and evidence that he had before him. Strictly speaking, the test for determining whether permission should be granted is whether the appeal would have a realistic prospect of success. For all practical purposes, I have heard the substantive argument as though permission to appeal had been granted. However, this has been a matter of convenience and should not be taken as indicating that, had the matter been dealt with without the Defendants being present, permission would necessarily been granted.
13. With that short background to the manner in which the matters come before me I must turn to the background in more detail.

Background prior to the issue of the Hibble and Troop claims

14. The factual and procedural background prior to the issue of the proceedings to which I referred above was set out fully by His Honour Judge Farnworth and I gratefully reproduce it as follows:

"The claimant now aged 55, qualified as a doctor in 1975. He came to the United Kingdom in 1978 and worked in ophthalmology until 1989. From 1989 to 1995 he worked in optometry. He then decided to qualify as a General Practitioner. As I understand it, this meant he was required to undertake a series of six month training contracts both in hospitals and in general practice, to cover the areas of work likely to arise in general practice. In August 1997, the claimant began a six-month contract with Kings Lynn and Wisbech NHS Trust as a senior house office in obstetrics and gynaecology. Immediately before this contract, he had been working as a GP trainee at The Welland Practice in Peterborough. Dr Goodrich of that practice had raised concerns about the claimant's performance and set out his concerns in a letter to Dr Scarisbrick who is the training scheme organiser and he, in turn, forwarded the letter to Dr Hibble who was the acting director of postgraduate general practice. It is common ground that the claimant's placement at Kings Lynn Hospital did not go well, in particular, there were concerns about his suitability to work with patients. His final or summative assessment was due on 28^th January 1998. On 23^rd January, the claimant asked Dr Bone who was the consultant in obstetrics and gynaecology and the clinician manager at the hospital to act as his referee as he contemplated other work but Dr Bone told Dr Ruby that he would prefer to defer any decision about a reference until after the summative assessment on 28^th January. However, Dr Ruby thereafter did not attend for work. He cleared his locker and handed in his keys and bleep. He did not attend the assessment on 28^th January. Later this was rearranged and was conducted on 25^th February by Dr Bone and Mr Al-Taher, the consultant and speciality tutor. The outcome of the assessment was a decision that Dr Ruby had failed his training.

However, before the assessment was rearranged, Dr Hibble, having been informed of Dr Ruby's departure from the hospital and his non-appearance for the planned assessment, decided to send a letter to all course organisers in the region. Dr Hibble's letter is dated 6^th February 1998 and was referred to in the hearing before me as, "the Hibble letter"…. It is addressed to all course organisers and continues:

"Dr Mohamad Ruby – this doctor has recently left the Kings Lynn scheme to which he was attached as a self constructing general practice registrar. He has also done six months in Peterborough as a GP registrar in a training practice there. If he approaches any of your trainers or wishes to be attached to any of the schemes, please get in touch with the regional office or the course organisers at Kings Lynn before making any appointments. The Kings Lynn Hospital is considering using the grey card system to warn any prospective hospital employers. With best wishes [and so on]".

It is part of the claimant's case that he did not become aware of the Hibble letter until 19^th December 2002. This is not necessarily accepted by the defendants but for the purposes of this application, the court proceeds on the basis that that is, in fact, the position. In the last paragraph of the Hibble letter, there was reference to the Kings Lynn hospital considering using the grey card system to warn prospective hospital employers. Dr Ruby's final assessment was on 25^th February, which I have recorded already. At the conclusion of the assessment he signed the assessment form indicating agreement with his assessors that he had failed to achieve the necessary standard of competence required. Later, I am aware from the documents, the claimant tried to withdraw his signature but that does not alter the fact that he had signed.

Following the final assessment, on 9^th March 1998, Dr Troop, the regional director of health wrote a letter, which is referred to throughout as "the Troop letter", to all NHS Trust chief executives; such a letter is called an "alert" or "grey" letter. It is … in these terms …:

"Dear Chief Executive, re Dr Mohamad Ruby, [it gives his date of birth] who formerly worked at Kings Lynn and Wisbech Hospitals NHS Trust [then continues] The above person formerly worked as a senior house officer at the Queen Elizabeth Hospital, Kings Lynn. If the above person makes an application for a permanent post or locum work with your Trust, you are advised to contact the senior personnel manager at Kings Lynn and Wisbech NHS Trust on [and it gives a phone number] before offering him employment".

Dr Troop sent out the Troop letter pursuant to NHS guidelines in cases where there is a concern for patients' safety arising from a doctor working unsupervised.

There can be no doubt from the documents that the claimant was and continues to be extremely upset at the outcome of his assessment and the issue of the Troop letter. He was informed of the letter by letter dated 10^th March 1998 and protested immediately. The claimant considers the Trust acted unreasonably in sending the letter and had rushed into the decision about his future in general practice. It was agreed in argument before me that the practical effect of an "alert" letter was to damage, perhaps irredeemably, the career prospects of the subject of such a letter within the NHS.

The claimant sought legal advice and brought proceedings in the Employment Tribunal against the NHS Trust, seeking damages for breach of contract in respect of his training by the Trust and the Troop "alert" letter. He also claimed for unfair dismissal but that was withdrawn and dismissed. In subsequent litigation at both the Employment Tribunal and the Employment Appeal Tribunal, the status of this procedure was considered further but the claim for unfair dismissal went no further as the claimant lacked the necessary qualifying period of employment to sustain such a claim.

The breach of contract claim did proceed and was the subject of a two-day hearing at Norwich on 18^th and 19^th October 1999. The unanimous decision of the tribunal was that the claim be dismissed. Summary reasons were promulgated on 17^th November 1999 …. I read from those reasons the following passages. Paragraph 4:

"The tribunal unanimously dismissed the claim having regard to the following matters:

4.1 The contract of employment was contrary to the respondent's submission to the contrary, a contract to provide training. [Where it says, `respondent's submission' it must mean the 'applicant's submission] This conclusion is perfectly clear from the express reference in the contract of employment under the paragraph heading 'study' and the references in the induction programme pack to training assessments".

There is no need to seek outside supporting evidence as to the express terms of the contract but should one wish to do so it can be found in Mrs Bell's evidence at paragraphs quoted where it is made perfectly clear everyone knew the contract was a training contract within the general practice for vocational training scheme which the applicant was undertaking. That was his very reason for being at Kings Lynn. It continues:

4.2 The training contract was to provide supervised vocational training, which was needed by the applicant to satisfy the need for qualification in obstetrics and gynaecology, towards his meeting the requirements entitling him to qualify as a general practitioner.

4.3 On his final assessment, the application was found by those monitoring his period of training, both upon their own observations and upon the assessments of other colleagues not to have met the standards required so as to be said to have successfully completed the training programme. Accordingly, an "alert" letter was sent to the chief executives of all National Health Service Trusts.

4.4 The "alert" letter was generated in accordance with the guidelines promulgated by the NHS Executive, paragraph 3 in particular referring to doctors in training.

Paragraph 5 of the summary reasons deals with the applicant's claim that:

"The respondent failed to provide adequate or competent training and acted out of malice in failing him and causing the "alert" letter to be generated. The consequence of the "alert" letter, as the respondent would well know, being to blight his career [and then deals with where the substance of the complaint is set out]".

The respondent's case, at paragraph 6 was that:

"If the contract was a training contract, the training was competent and the assessment process conducted in good faith. The "alert" letter necessarily had to be generated having re^gard to the NHS guidelines".

At paragraph 7:

"The tribunal find that the training provided was competent and that the assessments were both transparent and fair. They were gleaned and considered in good faith. Once an adverse conclusion had been reached in the particular circumstances of the applicant's case with regard to his competence, it was the professional duty of the Trust to report the matter to the authorities, as a result of which the "alert" letter was sent".

The tribunal also gave extended reasons on 28^th February 2000 which … set out in more detail the issues before the tribunal, the evidence heard and the tribunal's conclusions thereon. An important conclusion, already indicated by the summary reasons, was the finding that the contract between the claimant and the Trust was, indeed, a training contract and in the extended reasons that is set out very clearly in the successive paragraphs and it also sets out the particular complaints that the claimant was making. [At paragraph 6 …] we find the tribunal saying:

"We reject the argument that this was not a training contract, manifestly it was, there can be no doubt about that. The whole purpose of the applicant being engaged by the respondent was to undertake training in the field of obstetrics and gynaecology. To complete the third of the three six month training courses permitted him to proceed to qualify as a general practitioner. He was plainly … being placed in a training position and there was both an express and implied obligation by the respondent to train".

The tribunal continued at paragraph 7 by saying:

"We fail to see that the applicant has demonstrated to us that in any material respect, the respondent has failed in its contract to him. We deal with the arguments in the following way".

They made specific findings as to which evidence they preferred where there was conflict and that was the evidence called by the respondent's witnesses as opposed to the applicant. They found also that:

"The respondent generally believed the training scheme was reasonable and on which we feel we cannot criticise and further that the programme was undertaken in good faith".

At paragraph 8 …:

"Dealing with the matter in greater detail, we have carefully considered the evidence on both sides from the documents and submissions and we are satisfied the reality of this situation lies in favour of the respondent rather than the applicant. We are entirely satisfied the respondent conducted its training obligations in good faith and that the outcome so far as the applicant is concerned was the consequence of the applicant failing to succeed rather than any failure of the respondent to offer training"

I also note a passage [as follows]:

"There is no evidence before us that there is a breach of any implied condition of trust and confidence in the actions of Mr Bone or Mr AI-Taher or indeed anybody else. The response of the consultants in charge of the obstetrics and gynaecology department and training was that the applicant was not fit for the job, that is the long and short of the matter. They were perfectly entitled to come to that conclusion within their own professional expertise. There is no evidence of malice nor is there any evidence that they failed to support the applicant. Indeed, everything points in the other direction, they did everything they could to help him. [and a side issue or one of the issues] The applicant has adduced no evidence of harassment by Sister Liddell".

At paragraph 7 on the same page:

"Mr Bone was perfectly justified in refusing to give a reference when approached by the applicant on 23^rd January. The summative assessment was to take place the next week, Mr Bone had very genuine reservations at that stage about the applicant's performance and it was only prudent to await the outcome of the summative assessment before giving a reference and he cannot be criticised for that. So far as the "grey" letter is concerned, that was the inevitable outcome of the summate assessment. We believe the applicant is the only person who has ever failed this course. The respondent, in the person of Mr Bone and the Human Resources department were bound by their National Health Service Trust guidelines to notify the authorities when they felt that a trainee was likely to put patients at risk. This was not in regard to any allegation of professional misconduct but an observation of the person's clinical effectiveness".

At paragraph 8:

"There is no evidence before us that there was any failure to offer the applicant training facilities, the applicant's allegations in this regard are a regurgitation of his earlier allegations, as indeed are his allegations that his confidence was undermined".

Finally, at paragraph 9:

"We find, therefore, that the applicant has failed to show us that in any respect the respondent has been in breach of the contract of training he undertook with it, on the contrary, we have been very impressed by the care and dedication with which the respondent approached its very difficult task of training persons to become engaged in the sensitive area of obstetrics and gynaecology and that it genuinely took the view at the end of the applicant's six months training course that he was not fit for the job. That is a decision, which was open for it to take, one in respect of which the applicant cannot complain. The application is accordingly dismissed".

The claimant appealed unsuccessfully to the Employment Appeal Tribunal whose reserved decision was given by Mr Justice Charles on 6^th June 2001 in a 42-page judgment. The claimant then appealed to the Court of Appeal but was refused permission to appeal following an oral hearing before Lord Justice Peter Gibson."

15. That, as I say, is a full factual and procedural background to the situation prior to the issue of the Hibble and Troop claims referred to in paragraphs 1 and 2 above.
16. As I have also already indicated, the opportunity to continue with those proceedings has been irretrievably lost in the circumstances to which I referred in paragraph 4 above.
17. The basis of the strike out application made by the Defendants in this action was described by Judge Farnworth in these terms:

" … the defendant asserts firstly that the reality is that in the lost litigation, the claimant would not have succeeded in recovering damages so any breach by the defendant has not caused the claimant the loss of a chance that has any value. Secondly that the claimant's claims are so lacking in particulars as to amount to an abuse of process. Thirdly, even if the Hibble and Troop claims had been served they would have been struck out as an abuse of process as the claimant was raising the same issues and relying upon the same facts determined by the Employment Tribunal, so the claimant was estopped from recovering damages. The application is also to be seen against a background of a time estimate of a seven-day trial, conservative, between now and November, carrying with it the consequences of heavy costs, employment of court time and requiring the attendance of senior medical personnel at the expense of their time with their patients."

18. Since the appeal, if permission to appeal is granted, is essentially a review of the decision from which the appeal is launched, I should record how Judge Farnworth dealt with these arguments.

The libel claim

19. Judge Farnworth isolated the libel claim against Dr Hibble first and expressed his reasons for striking it out in these terms:

"I will begin with the libel claim against Dr Hibble, as it seems to me to be beyond argument that this would have failed. A special feature of libel actions is the limitation period of 12 months. That period being from the date of publication, not the date of damage, not the date of knowledge. The Hibble letter was written and published in February 1998. For the purposes of this application, it is assumed as I have noted already, that Dr Ruby discovered the letter on 17^th December 2002 but he did not issue until 16^th December 2003, that delay seems to have been on the basis that he could wait 12 months. He did not serve within four months, rather (and before consulting the defendants it should be noted), he obtained an extension of two more months for service. At the date of issue it was over five and three quarter years from the date of the alleged cause of action accrued. No doubt an application might have been made to disapply the primary limitation period under section 32A of the Limitation Act 1980. However, there is very clear guidance from the Court of Appeal in the case of Steedman & Others –v- BBC [2001] EWCA Civ 1534 which makes it clear that an application to dis-apply the limitation in this case (that is the claimant's case here) was bound to fail. In his approach to the alleged libel, the claimant has clearly ignored one of the fundamentals to the successful prosecution of such claims, namely, as expressed by Mr Justice David Steel at paragraph 21 of the Steedman case, "Time is always of the essence in defamation claims". Even if I am wrong on the limitation issue, I have no doubt the claim would be defeated in any event by a plea that the alleged libel occurred on an occasion protected by the defence of qualified privilege. My attention was drawn to a passage in the speech of Lord Chancellor Finlay in the case of Adam -v- Ward [1917] Appeal Cases 318, which is in these terms:

"The Law of Privilege is well settled. Malice is a necessary element in an action for libel but from the mere publication of defamatory matter, malice is implied unless the publication was on what is called a privileged occasion. If the communication was made in pursuance of a duty or on a matter in which there was a common interest on the party making and the party receiving it, the occasion is said to be privileged. This privilege is only qualified and may be rebutted by proof of express malice. It is for the judge and the judge alone to determine as a matter of law whether the occasion is privileged unless the circumstances attending it are in dispute in which the facts necessary to raise the question of law should be found by the jury".

In communicating with the course organisers, in his capacity as director of postgraduate general practice, to my mind there was a common interest between Dr Hibble and them. No matter which way [Counsel] for the claimant, ingeniously and courteously sought to suggest otherwise, I have to say the circumstances really speak for themselves. Of course a defence of qualified privileged is destroyed if there is express malice on the part of the maker of the statement but there is no suggestion to that effect in the claimant's witness evidence for these proceedings. My attention was also drawn to advice given to the claimant by his solicitors, Messrs Collins at the time … where they told him that they believed an application to strike out the libel claim on the basis of qualified privilege would be successful. Incidentally, I would comment that that is the only material I have read in volume 3, though I have read, of course, the extracts from that material, which are set out in the defence in these proceedings. This volume, running to 638 pages, contains advices from various solicitors and counsel consulted by the claimant since 1998. I have made a conscious decision not to read this material as I wished to reach my own conclusions, based on the submissions made to me and to avoid, perhaps unconsciously, reflecting any views expressed in advices to the claimant elsewhere. Finally in regard to the libel claim, it seems to me that Dr Hibble would also have had a good defence on the basis of justification. It was common ground between Mr Livesey QC and [Counsel for the Claimant] that what is referred to as 'the sting of it' that is the letter, is the reference to the hospital considering the issue of the "grey alert". As such a letter was in fact issued, the comment is clearly justified. The defendant also points to the Employment Tribunal's finding that there was no evidence of malice towards the claimant by those involved in his training. On behalf of the claimant, the point is made that neither Dr Hibble nor the Hibble letter was before the Employment Tribunal nor the Employment Appeal Tribunal or the Court of Appeal as its existence was unknown to the claimant at that time. I do not see how this assists the claimant. If those directly involved had been found to have acted fairly and without malice towards the claimant, it is difficult to see how Dr Hibble could be held to be acting with malice when writing his letter, which reflected the information conveyed to him from the claimant's trainers. So for all the above reasons, I conclude that the claimant's claim for libel damages against Dr Hibble and his co-defendants was bound to fail. Therefore, it is a lost claim without any value. I am satisfied that this claim should be struck out under CPR 3.4(2)(a) as there being no reasonable grounds for bringing the action and also under CPR 24.2(a)(1), namely that the claimant has no real prospect of succeeding on that issue and there is no other compelling reason why the issue should be disposed of at trial."

20. Mr Hendy criticizes that approach on a number of grounds. First, he submits that the judge was wrong to hold that an application to disapply the primary limitation period under section 32A of the Limitation Act 1980 was "bound to fail." He argues that whilst a claimant's promptness when relevant facts became known to him is a factor in the exercise of the Court's discretion, that factor must be balanced against the availability of evidence and its cogency. He submits that the evidence was well established though he recognised that the absence of a detailed chronology of Dr. Al-Ruby's actions between his discovery of the Hibble letter and the issue of the claim might tell against him. However, he suggested that in that respect the Defendants were also at fault by failing to take that history from him.
21. Second, he submits that the judge was wrong to hold that the libel claim would in any event be defeated by a defence of qualified privilege. There were two principal parts to this argument: (a) That there was no sufficient common interest in the letter between Dr. Hibble and those to whom it was directed. He had, it is suggested, no power to write the letter since it was not a formal "alert letter" as provided for and permitted by HSG(37)96. It was not directed to prospective employers but to potential trainers. The Claimant needed further training to complete the qualifications as a GP and to address the alleged defects identified by his trainers in their summative assessment. The effect of the letter was, it is said, to bar any further training. It had no justification by way of public protection. (b) Contrary to the judge's conclusion, there was, Mr Hendy submits, evidence of malice to defeat any claim of qualified privilege. He points the fact that the Hibble letter was (apparently deliberately) kept secret from the Claimant and that only two months later Dr. Hibble wrote a letter to the Claimant essentially proposing that he should undergo further training when his original letter had destroyed any prospects of his achieving such a training position, but that he (Dr Hibble) made no mention of the fact that he had written such a letter. Mr Hendy suggested that Dr. Hibble had by his actions sidestepped the protections afforded to a doctor by HSG(97)36.
22. Third, Mr Hendy submits that the judge was in error in holding that because the Employment Tribunal had held that those directly involved had acted fairly and without malice it was "difficult to see how Dr. Hibble could be held to be acting with malice in writing his letter." Mr Hendy said that Dr. Hibble was not a party to the tribunal proceedings, was not an employee of the Respondent to those proceedings and neither the tribunal nor the Claimant knew then that Dr. Hibble had written letter. He submitted that this was an insufficient basis for concluding that there was no malice on the part of Dr. Hibble.
23. Finally, Mr Hendy submits that the judge was in error in holding that Dr. Hibble would have had a good defence on the grounds that his letter was "clearly justified". He says that this conclusion is rebutted by the GMC decision and the fact that the proper "alert letter" was withdrawn in consequence of that decision. The issue, he argues, plainly requires resolution by the hearing of evidence and suggests that there is a good arguable case that the Hibble letter was not justified.
24. Mr Livesey rejects these criticisms. He acknowledges the existence of the discretion to disapply the limitation period under section 32A, but says there has to be some material on which the court can exercise its discretion. That material ought to have appeared in the pleadings and witness statement of the Claimant served in the libel action. He submits that it appeared in neither and neither was it evident in any documentation. He says that where, as here, the issue had been raised by the Defendant in the course of the application, the material might have appeared in a witness statement served in response to the application, but nothing has emerged. The onus, he said, was on the Claimant to show a realistic prospect of success on such an application.
25. Mr Livesey submits that the letter was, in any event, not defamatory. He says that all of the representations within in it were entirely accurate and repeats the assertion, accepted by the judge, that a plea of justification would have been successful.
26. In relation to the issues of "qualified privilege" and malice, Mr Livesey argues that it is wrong to suggest that a common interest privilege at common law can be defeated only if the Hibble letter can be brought within the constraints of HSG (97) 36 relating to "alert letters" and that the judge was correct to conclude that the privilege would have applied. As with the issue of the potential disapplication of the limitation period, he asserted that there was no plea of malice and no averment, whether particularised or not, anywhere in either a pleading or in any witness evidence that Dr Hibble had acted with malice. He contended that none of the matters advanced by Mr Hendy in this appeal afforded evidence of malice.
27. In relation to the issues raised specifically in connection with the libel claim, I can express my conclusions as follows:

(i) I am, with respect, less persuaded that it is appropriate to strike out the claim based upon a perception that the claim for justification would succeed. I do not, of course, say that there may not be cases where such a course is appropriate, but it is the kind of issue that has the hallmarks of one that requires consideration of the evidential material on both sides. The defence of justification does not arise until the statement complained of is shown at least to be prima facie defamatory. Whilst, in my judgment, the Claimant would probably have faced considerable difficulty in suggesting that the Hibble letter was capable of being defamatory, I would assume in his favour for present purposes that it was so capable. If that assumption is made in his favour then the onus of establishing that it was true would have been on the Defendant to the libel action and, as I say, that would ordinarily require evidence to be given on both sides such that it would not have been appropriate to strike out the claim. However, since, in my judgment, the Claimant faces insuperable difficulties on other features of this claim it is, strictly speaking, unnecessary for me to form a concluded view about the situation. However, as I have indicated, had it been the sole issue in the appeal, I might well have been persuaded to take a different view from that of Judge Farnworth.

(ii) I am, however, satisfied that Mr Livesey's submissions concerning an application to disapply the limitation period are correct. Judge Farnworth held that an application to disapply the primary limitation period under section 32A was bound to fail and I respectfully agree. There is simply no material to which the Claimant can point to demonstrate that there was a realistic prospect of persuading a court to disapply that primary period.

(iii) I do, however, respectfully differ from Judge Farnworth on the potential influence of the Employment Tribunal findings on the issue of malice. For the reasons advanced by Mr Hendy I would, for my part, not have felt that the issue of malice, if it arose, would necessarily have been negated in relation to Dr Hibble by the findings of the Employment Tribunal in relation to others. However, the important words in that sentence are "if it arose". It seems to me that Mr Livesey's argument that no material has been put forward upon the basis of which it could be said that Dr Hibble acted with express malice in the sense required in the law of defamation in unanswerable. I do not consider that any of the matters put forward by Mr Hendy can amount to evidence of express malice.

(iv) I reject also the submission that the judge was wrong to hold that the contents of the Hibble letter, if prima facie defamatory, would have been covered by the defence of qualified privilege. Like Judge Farnworth, I too have endeavoured to consider this issue without taking into account knowledge that the Claimant had been advised by various legal advisors that this would afford grounds for striking out his claim. If anything, the issue has to be addressed on the basis of impression and, as Judge Farnworth said and with whose comment I respectfully agree, "the circumstances really speak for themselves." Whilst inevitably one would have sympathy with a trainee doctor whose personal interests and career could be affected by the writing of a letter with the contents of which he disagrees, and indeed of which remains unaware for a good while, there is plainly a wider public interest in ensuring that reservations that those responsible for his training have about him are communicated to those who may be responsible for his future training or employment. I believe it is this kind of interest that underlies the rationale for the common interest privilege as articulated by Lord Nicholls of Birkenhead in the Reynolds v The Times Newspapers Limited [2001] 2 AC 127, 195, when he said this:

"The requirement that both the maker of the statement and the recipient must have an interest or duty draws attention to the need to have regard to the position of both parties when deciding whether an occasion is privileged. But this should not be allowed to obscure the rationale of the underlying public interest on which privilege is founded. The essence of this defence lies in the law's recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of, the statement is the means by which the law seeks to achieve that end. Thus the court has to assess whether, in the public interest, the publication should be protected in the absence of malice."

(v) For the reasons given in (ii) - (iv) above, I would respectfully agree with Judge Farnworth's ultimate analysis of the position in relation to the libel action.

Misfeasance in a public office

28. The Claimant sought to rely upon this cause of action in both the Hibble and Troop actions. Again, I should record how Judge Farnworth reached his conclusions in relation to this aspect of the case:

"In Three Rivers District Council —v- The Bank of England Number 3 [2000] 3 All E R 1, the House of Lords set out the ingredients of the tort of misfeasance in public office. It is more particularly set out in the speech of Lord Steyn at pages 8 to 11 but the headnote reads in these terms:

"The tort of misfeasance in public office had two forms, namely (1) cases where a public power was exercised for an improper purpose with the specific intention of injuring a person or persons and (2) where a public officer acted in the knowledge that he had no power to do the act complained of and that it would probably injure the claimant. In the second category of cases, an act performed in reckless indifference to the outcome was sufficient to ground the tort".

It is agreed for the purposes of this application that both Dr Hibble and Dr Troop were public officers and it also seems to me beyond argument that in writing the respective letters they were exercising a public power, albeit the actual power differs. Dr Troop was writing pursuant to the NHS guidelines, Dr Hibble as the responsible officer for postgraduate training. To succeed, the claimant would have to prove either that the power was exercised for an improper purpose with the specific intention of injuring the claimant or that the public officer acted in the knowledge he had no power to do the act complained of and that it would probably injure the claimant. The defendant's argument is that if you look at the findings of the Employment Tribunal, the claimant was bound to fail on his misfeasance claims. In addition, the claimant has not pleaded anywhere nor filed evidence with allegations that either Dr Hibble or Dr Troop were acting without the power to do so and were acting with malice or in abuse of power. In other words, none of the ingredients of the tort are pleaded or evidenced. Of course claims for misfeasance in public office and negligence were not before the Employment Tribunal, indeed that tribunal does not have jurisdiction. The defendant's case though is that the Employment Tribunal, in dealing with the claimant's claims for breach of contract and in respect of the Troop letter, made a series of findings, which also apply to determination of the issues in the misfeasance and negligence claims. I was referred to passages in the judgment of Lord Justice Diplock, as he then was, in Thoday & Thoday [1964] Probate Reports page 181 and in particular the passage at 197 to 198. I do not propose reading the entire passage but it begins with the last paragraph on page 197 and I read that in and continue to the top of page 198, until I come to this sentence, which I will read in:

"The second species, which I will call 'issue estoppel' is an extension of the same rule of public policy. There are many causes of action, which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involved as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If, in litigation, upon one such cause of action, any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation neither party can in subsequent litigation between one another, upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation, determined that it was not or deny that it was fulfilled if the court in the first litigation determined that it was".

That an Employment Tribunal is a court of competent jurisdiction is settled by the decision of the Court of Appeal in Barber -v- Staffordshire County Council [1996] 2 AER 748. I am satisfied as a matter of law that if the Employment Tribunal make findings of fact which in fact also form an ingredient towards proof of a claim in another court of competent jurisdiction, then to quote Lord Justice Diplock, "Neither party can in subsequent litigation between them assert the condition [and so on]". I am also satisfied as a matter of law that this applies even if the parties to the subsequent claim are different to those in the original proceedings where the finding was made. That, to my mind, emerges clearly from the decision of Mr Justice Drake in North West Water Ltd —v- Binnie & Partners [1991]3 AER 547 and the headnote to that case sets out the position satisfactorily and I do not read it but it is read in to this judgment.

I turn now to what the claimant would have had to prove to establish his claims for misfeasance in public office. As I have noted above it is not in dispute that Dr Troop was exercising a public power when he wrote the "alert" letter nor do I think there can be any dispute that the circumstances in which he came to write it fell within the National Health Service guidelines…. Before the Employment Tribunal the claimant asserted that the final assessment was incorrect and the "grey" Troop letter should not have been issued. Before the Employment Appeal Tribunal, the claimant made his feelings known through leading counsel and Mr Justice Charles referred to this … in his judgment … where [he] said this:

"We accept that that assessment and the "alert" or "grey" letter have caused the appellant upset and have caused damage to his reputation and career. However, as we reminded leading counsel, it seems to us that the other side of the coin should not be forgotten. That is, that a doctor who fails his final assessment and who is, in the view of those assessors, someone who should not engage in unsupervised medical practice is a danger, or potential danger, to the public if he does practise on a unsupervised basis. That, of course, presupposes that the conclusion of the assessors is correct. However, unless and until it is demonstrated that such conclusion is not correct, as a matter of public policy and common sense, we see why the NHS Executive issue "alert" or "grey" letters."

However, the Employment Tribunal made an express finding … that:

"The training was competent, the assessment transparent and fair, considered in good faith. Once an adverse conclusion had been reached, in the circumstances of the applicant's case with regard to his competence, it was the professional duty of the Trust to report the matter".

So the letter was sent and that is also echoed in the Tribunal's extended reasons…. Those findings negative, in the clearest possible way, any suggestion that Dr Troop in sending the "alert" letter was exercising a public power for an improper purpose with the specific intention of injuring the claimant. Dr Hibble and his letter were not before the Employment Tribunal. However, he wrote his letter on the basis of the information provided from the hospital and the Welland Practice. Also, he wrote his letter before the claimant's summative assessment. However, the outcome of that assessment was that the claimant had failed the training course in respect of which the Employment Tribunal made specific fmdings … and the Tribunal said … how it had been impressed by the care and dedication of the hospital and that it (the hospital) genuinely took the view that Dr Ruby was not fit for the job. It seems to me as a matter of common sense and entirely consistent with Dr Hibble's responsibilities that it was incumbent on him to alert course organisers. There is no material whatsoever in any of the evidence adduced by the claimant – and it must be remembered this application is being heard where the claimant's evidence for the trial is on the file and taking it as it stands – which goes anywhere near to suggesting that Dr Hibble was exercising his power or responsibility, if you like to call it, for an improper purpose with the specific intention of injuring the claimant, nor, of course, is this pleaded. On the contrary, in part, Dr Hibble was relying on information from the hospital, which the Employment Tribunal found to have acted fairly and without malice towards the claimant. For the claimant, [Counsel] argued that Dr Hibble had no right or authority to write his letter. That, in fact, is not pleaded but to my mind the argument simply does not bear examination. Dr Hibble sets out his responsibilities, very clearly, in his witness statement … and the claimant advances no contrary case. I have reached the conclusion that the claimant, in reality, stood no chance whatsoever of establishing any claims against Dr Troop or Dr Hibble for misfeasance and consequently those claims have no value. Incidentally, examination of the particulars of claim set out at paragraph 5 of the claimant's particulars shows that none of them are, in fact, particulars of misfeasance so, effectively, the claim is un-particularised as well as not evidenced."

29. Mr Hendy realistically accepts for the purposes of this appeal that he cannot suggest that the judge was wrong in relation to this aspect of the case against Dr Troop. He submits that the situation is otherwise in relation to Dr. Hibble. The Employment Tribunal did not investigate and made no findings about the Hibble letter and Dr Hibble's intention because neither it nor the Claimant had by then been informed of its existence. He submits that although Dr. Hibble was a public officer, he had no public power to write the letter since to do so was outwith HSG(97)36 and was addressed to trainers not employers. The effect of it was, he suggests, obviously designed to destroy the Claimant's chances of further training and since it was concealed from the Claimant he could not contest it or take any step to mitigate its effect. Mr Hendy effectively repeated in this context the submissions I summarized in (b) of paragraph 21 above.
30. For reasons analogous to those I gave in paragraph 27(iv) above, I do not think that there is any evidential basis (whether directly, by inference or othewise) for the proposition that Dr Hibble was acting in a way that brought his actions within either of the two bases for a finding of misfeasance in a public office set out in Lord Steyn's speech to which Judge Farnworth referred and which Mr Hendy accepts accurately states the law. That he (Dr Hibble) was not necessarily purporting to bring himself within the NHS guidelines does not, in my judgment, affect the issue at all. He was plainly acting as a public officer with a view, as he saw it, to protecting the public from a doctor or trainee doctor who was assessed not to be competent. That represents the way I would summarize the position shortly, but I would respectfully adopt the analysis of Judge Farnworth in the final paragraph of the extract of his judgment quoted in paragraph 28 above.
31. In short, I think the Judge was entirely right in taking the view that this aspect of the claim was wholly unsustainable and should be struck out.

Claims based on negligent misstatement

32. Mr Hendy accepted that the claims based on negligent misstatement (which, I should make clear, he did not formulate personally) were misconceived and I say nothing more about them.

Negligence against Dr Troop

33. The final substantive claim considered by the judge was the claim in negligence against Dr Troop. Since establishing such a claim would not necessarily involve establishing the intention or recklessness underlying the tort of misfeasance in a public office, it remains a claim that needs to be examined.
34. The claim, of course, relates to the Troop letter. The only substantive particulars of the claim given in this (not, I emphasize, in the Troop claim itself) case can be found in paragraphs 5.3 - 5.6 of paragraph 5 of the Particulars of Claim. These read as follows:

"5.3 The [Troop letter was] sent without full or proper systems having been put in place to trigger the dispatch of the said [letter].

5.4 The [Troop letter was] sent without proper consideration having been given to the criteria set out in NHS Guidance HSG (97) 36.

5.5 Following dispatch of the [Troop letter] no attempt was made to monitor progress of the case.

5.6 The [Troop letter was] sent when there was insufficient credible evidence to indicate that the standard of the Claimant's professional performance may have been seriously deficient."

Judge Farnworth referred to and commented upon those particulars in his judgment and the basis for acceding to the Defendants' application to strike out this aspect of the claim appears in the following lengthy extract from his judgment:

"... Paragraph 5.3 might be an assertion of negligence but there is no material saying what system should be in place. 5.4 one might accept as an allegation of negligence, 5.5 though, although a deficiency is alleged, it is not set out what it is so it is meaningless. In paragraph 5.6, reference is made to, "Insufficient credible evidence", that simply ignores the finding of the Employment Tribunal which was that the claimant failed a training course which was found to be fair. However, I noted that this particular reflected language used in another strand of proceedings involving the claimant. These involve the claimant and the General Medical Council and are set out in volume 5. The proceedings took some years to conclude; effectively they ran from 1999 to 2003. There was certainly one procedural mistake and the claimant himself asked for extensions or further time but put shortly, the hospital had expressed concerns to the General Medical Council, around the times of the claimant's application to the Employment Tribunal, about his mental state, his conduct, possible breaches of patient confidentiality in his submissions to the Employment Tribunal and also his practice in obstetrics and gynaecology. The General Medical Council notified the claimant – it seems to have been in March 2002 — that the screener for his case was considering whether to invite the claimant to agree to an independent assessment of his professional performance. The claimant was not prepared to agree. I am not surprised in one sense, given the delay and the fact that he was not practising as a doctor and that the only time he had engaged in obstetrics and gynaecology was the period at the Kings Lynn Hospital. The General Medical Council then gave notice that the issue would be considered by its assessment referral committee. The committee's responsibility is to decide whether or not an assessment of the standard of the doctor's professional performance be carried out and this is set out in volume 5 at page 978 and it was also outlined or the procedure was outlined when the committee met, by Mr Ryder and that is also to be found in volume 5 in the transcript of the committee's proceedings. The hearing took place eventually on 24^th September 2003. The claimant was present and represented by counsel, instructed by the Medical Protection Society; Mr Ryder (solicitor) appeared on behalf of the GMC. The only live evidence given was that of the claimant. No one was present or representing Kings Lynn & Wisbech Hospital. In the course of his evidence in chief …the claimant was asked -

"Do I take it you are actually giving an undertaking to the GMC that you are not going to practice in gynaecology and obstetrics and that you are not going to take any general practice course, is that what you are saying? [and he replied] It is obvious my future in medicine altogether in the UK and the West is finished. [Question] I am not asking you about whether your career is finished, is that what you are telling the GMC that you have no intention and you are actually giving an undertaking that you are not going to practice? [Answer] Yes, it is obvious that it is not possible. [Question] Is it because you are not keen to undertake an assessment or is it because of the practical difficulties that you see in having to take such an assessment, practical in the sense that you are not working in obstetrics? [Answer] Yes, I do not think it would be fair for me to go through an assessment. I do not know in which direction or which specialty it was thrown at me, it would only be in obstetrics and gynaecology and only confined to the period I had spent at Kings Lynn. I still do not have any experience there. I have nobody to ask about how this is going to be conducted and what my rights are to have a fair (inaudible). Do I have to go and study obstetrics and gynaecology before the assessment happens? I do not know what to do".

There were extensive submissions made on the claimant's behalf, many critical of the hospitals who, as I have noted, were not present and had not given any evidence. The committee's determination, which we find at volume 5 page 1044, was in these terms:

"Having considered all the oral and documentary evidence and the bundle of evidence previously supplied, having regard to rule 15.3 of the GMC Professional Performance Rules, the committee consider that there is insufficient credible evidence to indicate that the standard of Dr Ruby's professional performance may have been seriously deficient. The committee has noted that although registered, Dr Ruby ceased to en^gage in medical practice five years ago, in fact, he has since 1998 been employed as an ophthalmic optician. The committee has concluded there is no need for assessment".

It was submitted on behalf of the claimant that this decision amounted to a special circumstance, which the court should consider and allow the claimant to reopen the issues determined by the Employment Tribunal. I am satisfied it is not. In the first place it is an extremely limited decision, should Dr Ruby be compelled to undergo an assessment. Secondly, it was not and could not be, given the absence of anyone from the Kings Lynn Trust, an assessment of the training contract, the manner in which it had been carried out or the integrity and good faith of those at the hospital, nor of the reliability of witnesses. Thirdly, the committee do not appear to have been made aware of the findings of the Employment Tribunal and fourthly, the committee's decision did not alter the fact that the claimant failed the course. Given the one-sided nature of the hearing, it is perhaps not surprising the committee considered there be insufficient credible evidence to indicate the standard of the claimant's professional performance might have been seriously deficient. It is certainly not a decision to the effect that he should have been passed on the course at the hospital and I draw also attention to the committee noting that the claimant had ceased to engage in medical practice five years previously and it is equally not surprising, in those circumstances, also that the committee concluded there was no need for an assessment. For these reasons, I conclude that the GMC Assessment Referral Committee's decision has no bearing on the issues raised in this application in that it did not improve the claimant's chances of recovery on any of the lost claims which I have already analysed nor is it a matter which allows the findings of the Employment Tribunal to be reopened. It does not pass the test adopted by Mr Justice Drake in the North West Water case where he posed the question at page 556:

"What is the correct test to be applied to consider whether fresh evidence should be admitted which will have the effect of overcoming issue estoppel or what would otherwise amount to an attempt to re-litigate the same issue and thus amount to an abuse of process".

He considered the arguments put to him before concluding that he felt it right to adopt the test propounded by Lord Chancellor Cairns in Phosphate Sewage Company –v- Mollison [1879] 4 A.C. 801 at page 814 and the test was in these terms:

"New evidence must be such as entirely changes the aspect of the case and was not and could not, by reasonable diligence, be ascertained before".

The decision of the GMC Referral Assessment Committee does not entirely change the aspect of the case and I have set out the reasons above.

The same principle, I would add, also applies to the Hibble letter. If the Employment Tribunal had known about that letter would it have entirely changed the aspect of the case? The answer must be no as Dr Hibble was responding to material on the position of the claimant's training at the hospital, which the tribunal found was fairly and conscientiously conducted and without malice. Counsel for the claimant drew my attention to the decision of the Privy Council in Yat Tung Inv Co Ltd Co -v- Dao Heng Bank Ltd [1975] AC 581. In particular, passages from pages 589 letter H to 590 letter H and urged that I should find that special circumstances existed here by reason of the GMC Committee decision four years after the Employment Tribunal decision and the claimant's lack of knowledge of the Hibble letter at that earlier hearing. In this connection, I took into account the passage at 590 E that the "shutting out of the `subject of litigation' — a power which no court should exercise — but after scrupulous examination of all the circumstances", as guiding me and I took the view that special circumstances are reserved — and this is how it is put in that case — special circumstances are reserved in case justice should be found to require the non-application of the rule. The conclusion I have reached that application of the test set out by Lord Chancellor Caims in the Phosphate case showed all too clearly that neither the Committee decision nor the Hibble letter entirely changed the aspect of the case that was determined by the Employment Tribunal. Special circumstances do not exist here; this is not a special circumstances case.

Returning therefore to the negligence case against Dr Troop, the particulars reviewed are themselves vague. In argument for the claimant, Mr Leviseur put his case in terms that "alert" letters were only to be issued in serious circumstances — so there is a duty of care towards the subject of an "alert" letter — as a negligently circulated letter would result in the subject being unable to get a job. Whilst that might be an arguable proposition in abstract, the facts here, which apply for the purposes of this application, are that the claimant failed the course and so could not get a job as a GP. It was not the "alert" letter that prevented him, it was the fact he was not qualified. There is a major causation problem here for the claimant, which I do not see he can overcome. In any event, given the findings of the Employment Tribunal that the "alert" letter was sent pursuant to NHS guidelines, it is truly impossible to argue that in so acting, Dr Troop was in some way in breach of a duty of care to the claimant accepting simply, for the purposes of argument, that such a duty of care existed. It follows that I am satisfied that in regard to his claim in negligence against Dr Troop, the claimant would be bound to fail as he could not point to any duty towards him which has been breached or, assuming there was such a duty which has been breached, he could not establish any loss as the cause of any loss from not working as a GP was the fact that he had failed the course and was not qualified to practice. From this, my analysis leads to the conclusion that the lost actions in their entirety have, in fact, no value and the lost opportunity of proceeding with such actions consequently has no value."

35. Mr Hendy challenged the conclusions reached by the judge both in respect of breach of duty and causation. I will deal with his argument on causation first. Mr Hendy acknowledged that there was insufficient particularity in the pleading, but argued that this did not warrant a strike out of the claim. He submitted that the judge had held wrongly that it was not the 'alert letter' that prevented the Claimant from gaining employment, but the fact that he (the Claimant) had failed the course. Mr Hendy submitted that it was wrong for the judge to have held that there was an insuperable causation problem. His argument was that had the Claimant not been prevented by the 'alert letter' to obtaining further training he might well have done so which would then have enabled him to complete his course. Mr Hendy suggests that Judge Farnworth ignored the agreement that "the practical effect of an alert letter was to damage, perhaps irredeemably, the career prospects of the subject of such a letter within the NHS".
36. I accept the force of Mr Hendy's argument in this respect. It does seem to me that if breach of duty was established in relation to the sending of the letter, and the agreed effect of the letter was as the judge acknowledged, there would certainly be an arguable case that the letter caused or materially contributed to the Claimant's inability to gain employment. The argument would not, in my view, have been an easy one in the circumstances, but nonetheless it would at least have been sustainable and ought, in those circumstances, to be permitted to proceed for evaluation at trial in the ordinary way. To that extent I would have considered, if the appeal had rested solely on this point, that it should be allowed. However, there are, in my judgment, insuperable difficulties for the Claimant in establishing breach of duty for reasons to which I must now turn.
37. As will be apparent from the extract from Judge Farnworth's judgment to which I have referred, the argument before him, as indeed the argument before me, was that issue estoppel should not apply because the decision in the GMC had changed the complexion of the case or amounted to 'special circumstances' which deprived the rules relating to issue estoppel from having their normal impact. For the reasons he gave the Judge held that the GMC hearing did not have the effect for which the Claimant had contended. (I should, perhaps, say that Mr Livesey has emphasized that he has relied solely upon the principles associated with issue estoppel and not res judicata although there were occasions during the argument when the two concepts were elided.)
38. It is, perhaps, important to note at the outset, as Mr Livesey observed, that it is conceded implicitly on the Claimant's behalf that issue estoppel can apply in principle to the circumstances prevailing in this case. What has to be considered is whether the application of the rules applicable to the concept should be set aside on either of the two bases to which I have referred.
39. Mr Hendy drew attention to, as he contended, the judge's erroneous view that the decision was 'extremely limited' in that the issue was whether the Claimant 'should…. be compelled to undergo an assessment'. I do not think that, read as a whole, that was what Judge Farnworth was saying. The ultimate decision for the GMC, if it was satisfied that there was sufficient credible evidence to indicate that there may have been seriously deficient performance on the part of the Claimant, was whether to direct such an assessment. It is, in my view, clear that Judge Farnworth appreciated the nature of the exercise being taken by the GMC.
40. The judge concluded that the GMC Assessment Referral Committees decision had no bearing on the issues raised in the application before him and that it did not improve the Claimant's prospects of recovery on any of the lost claims, nor did it permit the findings of the Employment Tribunal to be re-opened. Mr Hendy, of course, did not suggest that the finding of the committee would of itself give the Claimant a claim or that it necessarily improved his prospects of recovery. His submission was that the GMC decision 'blew a hole' in the proposition that the Employment Tribunal had finally determined the issue of the Claimant's performance and competence. He suggested that there were now in existence two determinations of two competent tribunals reaching different conclusions and that that was sufficient to dictate the need for the issue to be determined at a trial.
41. Persuasively and attractively as the submissions were put, I regret that I am unable to accept them. Essentially for the reasons given by Judge Farnworth, I do not consider that the decision of the committee meets the test of either constituting fresh evidence which changes the aspect of the case or affords grounds for saying that there are 'special circumstances' warranting the setting aside of the normal rule. The highest it could be put was that the decision was a GMC Committee's (not a court's) view on a limited part of the evidence that might otherwise be available concerning the Claimant's competence in 1998. Whilst it is true to say that the GMC Committee was made aware of the Employment Tribunal proceedings, the extent to which it took those proceedings into account is unclear, but that is not really relevant. As Mr Hendy conceded, the GMC Committee had a statutory function to carry out and it had to consider the evidence brought before it. It is plain that, in the events which happened, only the Claimant gave evidence and, of course, the Trust played no part in challenging or examining his evidence. In those circumstances it does not seem to me to require any very sophisticated analysis to say that the committee's decision can have no impact at all on the effect or validity of the Employment Tribunal's decision. That decision is consistent, and consistent only with, the proposition that the Troop letter was sent in circumstances which were entirely justified and which could not amount to any breach of duty of care towards the Claimant.
42. For those reasons, expressed shortly, and substantially for the reasons given by Judge Farnworth, I am bound to conclude that the decision to strike this aspect of the claim was entirely justified.
43. I should add that Mr Hendy indicated during his submissions that he would wish to amend the claim to embrace the suggestion that an allegation of negligence in respect of Dr Hibble would have been successful. Mr Livesey protested that this was far too late and, in any event, since the appeal was by way of review I was bound to consider the matter on the basis of the material that had been placed before the judge. I did not understand there to be a formal application to this effect, but for the avoidance of doubt I would have rejected it on the basis of Mr Livesey's approach.

Costs

44. The final issue relates to the costs incurred by the Claimant. The issue before the judge and his conclusion can be seen from the following extract from his judgment:

"The claimant also seeks to recover monies paid to the defendant and costs and expenses incurred in connection with his efforts to restore the lost actions. I understand the claimant paid the defendant £10,000 on account of costs. The defendant subsequently delivered a bill for their services totalling £29,000. The claimant objected and the bill is subject to a detailed assessment in the Supreme Court Costs Office. It is currently stayed and the claimant was ordered to pay £4,000 in court to await the assessment, which he has done. Other costs claimed, set out in the claimant's belated schedule of loss are sums of £1,553.07, being costs paid to defendants in the underlying actions and £6,310.93 to his current solicitors for their attempts to restore the underlying actions. For the purposes of this hearing, we are proceeding on the basis the defendants were in breach of their duty to the claimant by their failure to serve the underlying claims. The defendants were consulted very late in the day. It is agreed that initially they did not receive all the claimant's papers. I was told there were, in fact, in the end some 37 boxes. The defendants were starting from scratch. They are entitled to payment for work done properly and reasonably and that will be ascertained by the process of detailed assessment. The claimant is not entitled to full repayment as of right. In this case, my assessment of the underlying actions is that under all heads of claim, the claimant stood no prospect of recovering any damages. If the defendants had served the claims they would still have had to do the work for which they have claimed costs and when the actions failed, as in my view they were bound to, the claimant would have had to pay his solicitors. The claimant was determined to proceed notwithstanding advice, for example, that I had mentioned on the prospects of success on the libel action. The claimant is properly safeguarded on the costs issue as between him and the defendants by the detailed assessment process, which will determine the extent of his liability to the defendants. He is not entitled to the return of £14,000 as of right and his claim for that must fail. As to the other costs, steps taken to restore actions, which are without value cannot be the responsibility of the defendants. If the claimant had been allowed further time for service, he would almost certainly have been faced in the underlying actions by exactly the same form of application as is before this court and the claims again, almost certainly, would have been struck out. By not getting to that stage in the overall scheme of things, he has probably been saved money. I would also observe that if the court had exercised a discretion to allow further time for service, whether on an application made by the defendants or the claimant's subsequent solicitors, it is more likely than not that the claimant would have had to pay the costs as the court would be exercising a discretion in his favour, notwithstanding his delay for whatever reason. I conclude, therefore, that the claimant's chances of recovering the costs incurred of £1553.07 and £6,310.93 from the defendants must be rated as negligible as a direct cause of such liabilities was the claimant's all-consuming desire to pursue unwinnable and unmeritorious claims come what may."

45. Mr Hendy submits that the Claimant should be permitted to amend his claim to allege as an alternative argument that, if it is the case that his claims had no arguable prospect of success, the Defendant should have so advised him and he could have avoided the payment of substantial sums by way of costs. Mr Hendy says that the judge was wrong to suggest that the Claimant has protection in this regard when an assessment of costs takes place in the Supreme Court Costs Office.
46. It is certainly true that, as between the Claimant and the Defendants, the Claimant will have the protection of the assessment process in determining whether what is or has been charged is reasonable. However, I cannot, for may part, see how the Claimant would be able to contend realistically that had the Defendants told him that he had no case that he would have accepted that advice. The realities are all too plain: rightly or wrongly, the Claimant has been seeking to pursue claims arising from the two letters the subject of the original claims and has, it seems, been to very many legal advisors before arriving with the Defendants in order to try to get those claims off the ground. It is, in my view, inconceivable that he would have accepted advice that the claims were not sustainable and, to that extent, I find it difficult to see how the Defendants could possibly be criticized for failing to give him advice which he would not have accepted.
47. For that reason, and for the reasons given by Judge Farnworth, I do not think that this aspect of the case is realistically maintainable and, to the extent that it is already articulated in the case papers, it should be struck out. To the extent that it depends upon an amendment to the case papers, for my part I would not permit the amendment to be made.

Conclusion

48. Whilst I have expressed some minor reservations with some aspects of what Judge Farnworth said, I am of the view that his conclusion was correct, substantially for the reasons he gave.
49. I have been mindful throughout of the apparently draconian nature of striking out a claim in these circumstances and, of course, of the unattractive position taken on behalf of solicitors who have (on the assumptions that have to be made for this purpose) lost the Claimant the prospect of pursuing claims he wished to pursue by arguing that the claims were worthless in any event. I am also mindful of the fact that the Claimant plainly has a burning sense of grievance arising from the two letters to which the original actions related. However, there has already been some litigation about that (in the form of the Employment Tribunal proceedings) and the effect of Judge Farnworth's decision (and indeed of mine by virtue of this appeal) is to say that that concluded certain issues he wished to raise and that the others that he sought to raise were unsustainable. In those circumstances, having regard to the overriding objective, it is appropriate that the action that would otherwise be expensive, both in terms of actual cost and in terms of the human time involved, should not be allowed to proceed.
50. For convenience, therefore, I grant permission to appeal but in the circumstances and for the reasons given, I would dismiss the appeal.