03 April 2018

Background

Mr A was the chairman and controlling shareholder of the claimant, a bank incorporated in Kazakhstan. It was alleged that between 2005 and 2009 he had embezzled US$6m of the bank’s funds. In 2009, the bank was nationalised and Mr A fled to the UK where he obtained asylum.

The bank brought proceedings against Mr A in the UK. Mr A was the defendant in eleven actions brought by the bank against him, either alone or in conjunction with alleged associates. At the outset of the litigation, the bank obtained a disclosure order requiring Mr A to identify and disclose the whereabouts of his assets and a world-wide freezing order preventing him from dealing with them. Recievers were appointed over Mr A’s assets and the bank obtained a number of search and disclosure orders. Mr A fled the country following being sentenced to 22 months of imprisonment for breach of court orders. His whereabouts were unknown. Default judgments were obtained against him in four of the actions, but very little had been recovered.

The bank brought the present proceedings against K (the son-in-law of Mr A), who was domiciled in Switzerland, on the basis that K had at all times been aware of the freezing order and the receivership order, and that in about 2009 he had entered into a combination or understanding with Mr A to assist him in dissipating and concealing his assets. It was alleged that both before and after Mr A’s flight abroad, K had actively participated in the agreed scheme, both on Mr A’s instructions and from time to time on his own initiative. That was relied upon as constituting the tort of conspiracy to cause financial loss to the Bank by unlawful means, namely serial breaches of the freezing order and the receivership order. K contested the jurisdiction of the English Court on the ground that: (i) there was no such tort as the bank asserted as contempt of court could not constitute unlawful means conspiracy and; (ii) there was no jurisdiction under the Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters 2007 (the Lugano Convention).

Following a decision of the High Court, the matter was appealed to the Court of Appeal. The Court of Appeal found that the UK court had jurisdiction and found that, among other things, contempt of court, in the form of breaches of court orders, qualified as unlawful means for the purposes of that tort and that it fell within the special jurisdiction conferred by art 5(3) of the Lugano Convention on the courts of ‘the place where the harmful event occurred’ as the event giving rise to the damage was the conspiratorial agreement in England. K appealed.

Appeal dismissed.

Issues and decisions

(1) Whether the cause of action in conspiracy to injure the bank by unlawful means had been made out.

Conspiracy was both a crime, now of limited ambit, and a tort. The essence of the crime was the agreement or understanding that the parties would act unlawfully, whether or not it was implemented (see [9] of the judgment).

Conspiracy being a tort of primary liability, the question of what constituted unlawful means could not depend on whether their use would give rise to a different cause of action independent of conspiracy. The real test was whether there was a just cause or excuse for combining to use unlawful means. That depended on (i) the nature of the unlawfulness, and (ii) its relationship with the resultant damage to the claimant (see [11] of the judgment).

The unlawful means relied upon in the present case were criminal contempt of court albeit that the offence was punishable in civil proceedings. The bank had not contended that the defendants’ predominant purpose in hiding Mr A’s assets had been to injure it. The predominant purpose had been to further Mr A’s financial interests as they conceived them to be. At the same time, damage to the bank was not just incidental to what they had conspired to do. It had been necessarily intended.

The freezing order and the receivership order had been made on the application of the bank for the purpose of protecting its right of recovery in the event of the claims succeeding. The object of the conspiracy and the overt acts done pursuant to it had been to prevent the bank from enforcing its judgments against Mr A, and the benefit to him was exactly concomitant with the detriment to the bank as both defendants had to have appreciated. In principle, therefore, the cause of action in conspiracy to injure the bank by unlawful means had been made out (see [16] of the judgment).

Quinn v Leathem [1900-3] All ER Rep 1 applied; Lonrho plc v Fayed [1991] 3 All ER 303 applied; Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] 1 All ER 142 applied; Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1981] 2 All ER 456 applied.

(2) Whether public policy prevented the bringing a cause of action in conspiracy to injure a bank by unlawful means.

K submitted that not only was there no right of action for contempt of court as such, but the absence of such a cause of action reflected a principle of public policy that persons in contempt of court should not be exposed to anything other than criminal penalties at the discretion of the court (the preclusionary rule). (see [18] of the judgment).

There was authority both in favour of the existence of a right to recover civil damages for contempt of court, and against the existence of that right to damages (see [19], [20] of the judgment).

It was unnecessary to resolve the question, because a case against a right of action for breach of a court order could not be based on any ‘preclusionary rule’ of public policy. There was a world of difference between the mere absence of a relevant right and a rule of law precluding such a right even if the elements to support it otherwise existed (see [22] of the judgment).

The bank’s pleaded allegations disclosed a good cause of action for conspiracy to injure it by unlawful means (see [24] of the judgment).

(3) Whether there was jurisdiction under the Lugano Convention to bring the claim in the UK, within the special jurisdiction conferred by art 5(3) on the courts of ‘the place where the harmful event occurred’.

The Lugano Convention by which both Switzerland and the UK were bound, lay down a general rule that a person should be sued in his or her state of domicile. However, it providds for special jurisdiction in further provisions including arts 5 (see [25] of the judgment).

In the present case, the only event said to have happened in England was the conspiratorial agreement. K contended that the event that was harmful was not the conspiratorial agreement but the acts done pursuant to it, which had been done outside England (see [5] of the judgment)

The expression ‘place where the harmful event occurred’ in art 5(3) of the Lugano Convention required an autonomous interpretation in order to ensure its effectiveness and uniform application (see [32] of the judgment).

However, the requirement of an autonomous interpretation did not mean that the component elements of the cause of action in domestic law were irrelevant. On the contrary, they had a vital role in defining the legally relevant conduct and thus identifying the acts which fell to be located for the purposes of art 5(3). In particular, whether an event was harmful was determined by national law. The place of the event giving rise to the damage might vary depending on whether the cause of action was an unlawful means conspiracy or a free-standing tortious act (see [32] of the judgment).

The Court of Appeal had correctly identified the place where the conspiratorial agreement had been made as the place of the event which had given rise to and was at the origin of the damage. In entering into the agreement, K would have encouraged and procured the commission of unlawful acts by agreeing to help Mr A to carry the scheme into effect. Thereafter, K’s alleged dealing with assets the subject of the freezing and receivership orders would have been undertaken pursuant to and in implementation of that agreement, whether or not he had been acting on instructions from Mr A. The making of the agreement in England had to be regarded as the harmful event which had set the tort in motion (see [41] of the judgment).

Decision of Court of Appeal [2017] All ER (D) 42 (Feb) affirmed.

Charles Samek QC and Marc Delehanty (instructed by Hughmans Solicitors) for K.

Stephen Smith QC and Tim Akkouh (instructed by Hogan Lovells International LLP) for the bank.

Tara Psaila Barrister.

In a case concerning litigation between JSC BTA Bank and its former chairman’s son-in-law (K), the Supreme Court found that, among other things, contempt of court, in the form of breaches of court orders, qualified as unlawful means for the purposes of that tort. In dismissing K’s appeal, it further held that the case fell under art 5(3) of the Lugano Convention, namely that the conspiratorial agreement in England was the place where the harmful event occurred.

 

Background

The appellant, M, was a defendant in criminal proceedings in Northern Ireland. Under a legal aid certificate, he became entitled to public funding to instruct a solicitor and two counsel. At his first trial, the jury was unable to reach a verdict. Before the retrial, B, who was described as ‘leading counsel’ for M, appeared before a disciplinary panel of the respondent Bar Council. It was alleged that he had been in breach of r 20.11 of the code of conduct for the Bar of Northern Ireland (the code of conduct). That rule stated that, in criminal cases where legal aid had been granted for two barristers, one should be a senior counsel, and an appropriate junior ought only to be instructed where the senior counsel was unavailable. B, who was a junior counsel, admitted that he had been in breach of r 20.11 and informed M that he could not act as his leading counsel.

M asserted that, if B could not appear as his leading counsel, that would breach his rights under art 6 of the European Convention on Human Rights. The Bar Council opposed that claim. M was acquitted of seven of the eleven counts against him, and the jury failed to come to a verdict on the other four. M applied for leave to issue judicial review proceedings of the Bar Council’s decision. His application was dismissed by the Divisional Court. He appealed to the Supreme Court.

Appeal dismissed.

Issues and decisions

Whether the right of an accused person to insist upon public funding of the services of a lawyer of his choice to defend him under art 6 of the Convention ought only to be interpreted with in circumstances which could be shown to be justified.

Article 6 of the ECHR did not invest an accused person with the right to demand that he had counsel of his choice at public expense, independently of the requirements of the interests of justice. If it could be shown that the interests of justice would best be served by having a requirement that, where a certificate for two counsel was issued, it would, in general, be better for an accused to be represented by both senior and junior counsel, a requirement that that should be so could not give rise to any violation of art 6. That the interests of justice would be best served in that way was beyond serious dispute. Senior counsel obtained that rank on the basis of an objective assessment of their professional expertise and experience. Rule 20.11 of the code of conduct did no more than give effect to the desirability that defendants be represented at the highest possible standard, just as r 4(3) of the Criminal Aid Certificates Rules (Northern Ireland) 2012 SI 2012/135 did (see [44] of the judgment).

Rule 20.11 of the code of conduct was obviously designed to ensure that proper representation of accused persons should be guaranteed when a certificate for two counsel had been issued. Imposing a requirement that senior counsel be engaged, unless none was available, was entirely consonant with that aim. There was no question of interference with M’s right under art 6 of the Convention. To the contrary, the rule had been designed to promote and vindicate that right (see [42] of the judgment).

The fact that the aspiration that defendants be represented at the highest possible standard found expression in a rule contained in the code of conduct of the Bar did not sound on the question of M’s art 6 rights. So far from impinging on those rights, the rule was plainly designed to uphold and vindicate them. The source of the rule was therefore irrelevant to any possible violation of art 6(3)(c). That simply did not arise (see [45] of the judgment).

Croissant v Germany (Application 13611/88) [1992] ECHR 13611/88 considered; K v Denmark [1993] Application No 19524/92 considered; Nunes and de Matos (criminal proceedings against): C-186/98 [1999] All ER (D) 753 considered; Mayzit v Russia (App no 63378/00) [2005] ECHR 63378/00 considered; Addison v HM Advocate 2015 JC 107 considered; Dvorski v Croatia (App no 25703/11) [2016] 40 BHRC 659 considered.

Aidan O’Neill QC and Anita Davies (instructed by KRW Law LLP) for M.

David Scoffield QC and Donal Sayers (instructed by Elliott Duffy Garrett Solicitors) for the Bar Council.

Toby Frost Barrister.

Article 6 of the ECHR did not invest an accused person with the right to demand that he had counsel of his choice at public expense, independently of the requirements of the interests of justice. The Supreme Court held that a rule contained in the code of conduct of the Bar did not sound on the question of the appellant’s rights under art 6 of the European Convention on Human Rights. So far from impinging on those rights, the rule was plainly designed to uphold and vindicate them.

 

Background

The claimants had worked for the respondent company (the company) in factories making catalytic converters. Platinum salts were used in the production process. In breach of its duty under the health and safety regulations and at common law, the company had failed to ensure that the factories had been properly cleaned and, as a result, the claimants had been exposed to platinum salts, which had led them to develop platinum salt sensitisation. Platinum salt sensitisation was, in itself, an asymptomatic condition. However, further exposure to chlorinated platinum salts was likely to cause someone with platinum salt sensitisation to develop an allergic reaction involving physical symptoms such as running eyes or nose, skin irritation, and bronchial problems. Sensitised people could not work in jobs which involved the potential for further exposure.

When the claimants’ sensitisation was detected, through routine screening by means of a skin test, they were no longer permitted by the company to work in areas where they might be further exposed to platinum salts and develop allergic symptoms. One of the claimants had taken up a different role with the company but, he claimed, at a significantly reduced rate of pay. The other two had their employment terminated. Each claimant therefore asserted that he had suffered financially as a result of his sensitisation to platinum salts, being unable to take work in any environment (whether with the company or with any other employer) where further exposure might occur. The claimants brought claims against the company for damages for personal injuries caused by the company’s negligence and/or breach of statutory duty. Alternatively, they claimed damages for economic loss under an implied contractual term and/or in negligence.

The claimants lost at first instance, following a trial of the question of liability. The judge held that they had sustained no actionable personal injury and that their claim was for pure economic loss, for which they were not entitled to recover in tort. He also rejected their alternative claim in contract. The Court of Appeal, Civil Division, dismissed the claimants’ appeals, deciding that the claimants had suffered no actionable personal injury and were claiming for pure economic loss. It regarded the physiological change of platinum salt sensitisation as ‘not harmful in itself in any relevant sense’ and concluded that it was not converted into actionable injury by the resulting removal of the claimants from their jobs, with detrimental financial consequences. The Court further dismissed the claim for damages for economic loss under an implied contractual term and/or in negligence.

The claimants appealed.

Appeal allowed.

Issues and decisions

Whether the claimants had suffered actionable personal injury on which they could found claims for negligence/breach of statutory duty.

Negligence and breach of statutory duty were not actionable per se. In order to make out their claims in tort for negligence or breach of statutory duty, it was necessary to establish that there had been damage, in the form of actionable personal injury. Nowhere in the authorities was there a definition of actionable personal injury, although there was some guidance as to the attributes of it (see [11], [12] of the judgment).

First, it seemed to have been accepted that the concept of personal injuries included a disease or an impairment of a person’s physical condition. Second, in order to be actionable, the damage had to be more than negligible. Third, the fact that a particular physical condition might properly be described as an ‘injury’ did not necessarily mean that it constituted damage of the requisite kind (see [24], [25] of the judgment).

The company’s attempt to class the claimants’ condition as just the development of another benign antibody in the body, not a true departure from the normal, and not damaging the claimants’ health or physical capability, was not persuasive. Some antibodies could do their job in the body without producing any adverse consequences. What mattered, however, was the behaviour of the particular antibody which was produced in an individual who had been sensitised to platinum salts. When the claimants became sensitised, through the company’s negligence and/or breach of statutory duty, that change to their bodies meant that they lost the safety net which had initially protected them from allergy and therefore their capacity to work around platinum salts (see [37] of the judgment).

The physiological changes to the claimants’ bodies might not be as obviously harmful as, say, the loss of a limb, or asthma or dermatitis, but they were undoubtedly harmful. What had happened to the claimants was that their bodily capacity for work had been impaired and they were therefore significantly worse off. They had suffered actionable bodily damage, or personal injury, which, given its impact on their lives, was certainly more than negligible. The concept of actionable personal injury was sufficiently broad to include the damage suffered by the claimants, which was far from negligible (see [40], [48] of the judgment).

The claimants did have a cause of action in negligence/breach of statutory duty against the company. It was therefore unnecessary to say anything further about their alternative argument (see [49] of the judgment).

Cartledge v E Jopling & Sons Ltd [1963] 1 All ER 341 applied; Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; Topping v Benchtown Ltd (formerly Jones Bros Preston Ltd) [2007] 4 All ER 1047 distinguished.

Decision ofCourt of Appeal, Civil Division [2016] All ER (D) 207 (Apr) Reversed.

Robert Weir QC and Patrick Kerr (instructed by Leigh Day) for the claimants.

Michael Kent QC and Peter Houghton (instructed by Weightmans LLP, Leicester) for the company.

Neneh Munu Barrister.

The concept of actionable personal injury was sufficiently broad to include the damage suffered by the claimants, which was far from negligible. The Supreme Court so held in allowing the claimants’ appeal against the decision of the Court of Appeal, Civil Division, to reject their claims against the employer company for damages for personal injuries caused by the company’s negligence and/or breach of statutory duty following the exposure to platinum salts while working in the company’s factories, which had led the claimants to develop platinum salt sensitisation.

 

Background

The claimant was employed by the defendant NHS Trust (the Trust) as a consultant anaesthetist, under the terms of a consultant’s contract (the contract, see [36]-[42] of the judgment). The Trust brought disciplinary proceedings after it was alleged that he had inappropriately hastened the death of patients in his care. Alongside investigations by the Trust and the police, the claimant’s conduct was subject to scrutiny by the General Medical Council (GMC).

The claimant sought an injunction restraining the Trust from: (i) proceeding with its disciplinary processes in relation to the deaths of two patients under his care, pending a decision by the Crown Prosecution Service (CPS) as to whether to press criminal charges in relation to those deaths; and (ii) ceasing to pay the claimant’s salary, on the basis of an order by the Interim Orders Panel (the IOP) of the Medical Practitioner’s Tribunal Service, suspending his registration to practice.

The Trust counterclaimed, seeking a declaration from the court that it was entitled, by the terms and conditions which supplemented the contract of employment, to convene a hearing to consider whether to terminate the claimant’s employment on grounds of his ‘failure to hold or maintain a requisite qualification registration or licence to practise’.

Issues and decisions

(1) Whether the Trust was in breach of the implied term of mutual trust and confidence, in the contract, in refusing to adjourn its disciplinary processes into the deaths of the two patients under the claimant’s care, pending a decision by the CPS as to whether to charge him in connection with the deaths.

It was an implied term in all contracts of employment that an employer would not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. The conduct in question was assessed objectively, in that it did not require an assessment of the intention of the parties. Discretionary decisions taken in an employment context had to be exercised in a way that was rational and not capricious. In that context, the court was not the primary decision maker and was not second guessing the decisions under scrutiny. Its power of intervention was more restrictive. The court mighty only intervene where the exercise of discretion offended the principles of Wednesbury unreasonableness (see [78], [79] of the judgment).

Entitlement to pay was governed by the express or implied terms of the contract of employment and, in default, by the common law principle that an employee who established that he was ready and willing to work was entitled to pay (see [80] of the judgment).

The grant of an injunction was a discretionary remedy. Each case would turn on its own facts. It was not the court’s role to micro-manage the course of disciplinary proceedings. It should not intervene to remedy minor irregularities, but material breaches (see [81] of the judgment).

On the facts of the present case, the Trust’s refusal to adjourn its disciplinary processes, pending a decision by the CPS, had breached the implied term of mutual trust and confidence in its contract of employment with the claimant. Operational delay by investigating authorities was not a reason to penalise him (see [120], [144] of the judgment).

Injunctive relief would be granted to the claimant accordingly (see [144] of the judgment).

Chabbra Corpn Pte Ltd v Jag Shakti (owners), The Jag Shakti [1986] 1 All ER 480 applied; Miles v Wakefield Metropolitan District Council [1987] 1 All ER 1089 applied; Mahmud v BCCI SA (in liq); Malik v BCCI SA (in liq) [1997] 3 All ER 1 applied; Investors’ Compensation Scheme Ltd v West Bromwich Building Society, Investors’ Compensation Scheme Ltd v Hopkin & Sons (a firm), Alford v West Bromwich Building Society, Armitage v West Bromwich Building Society [1998] 1 All ER 98 applied; Makhdum v Norfolk & Sufolk NHS Foundation Trust [2012] All ER (D) 278 (Oct) applied; Arnold v Britton [2016] 1 All ER 1 applied; Harris (Ipswich) Ltd v Harrison [1978] IRLR 382 considered; R v BBC, ex p Lavelle [1983] 1 All ER 241 considered; Harris v Courage (Eastern) Ltd [1982] IRLR 509 considered; Johnson v Unisys Ltd [2001] 2 All ER 801 considered; Lakshmi v Mid-Cheshire Hospitals NHS Trust [2008] All ER (D) 353 (Apr) considered; Hendy v Ministry of Justice [2014] All ER (D) 238 (Jul) considered; McMillan v Airedale NHS Foundation Trust [2014] IRLR 803 considered; Chakrabarty v Ipswich Hospital NHS Trust [2014] All ER (D) 108 (Aug) considered; Al-Mishlab v Milton Keynes Hospital NHS Foundation Trust [2015] All ER (D) 25 (Dec) considered.

(2) The court considered the alternative procedure under Sch 19 of the claimant’s employment terms and conditions (Sch 19), which provided that a consultant’s contract might be terminated for reasons which included ‘conduct’ and ‘failure to hold or maintain a requisite qualification, registration or licence to practise’. Termination was on three months’ notice. There was no provision for a hearing under the schedule. The court considered, among other cases, Chesterfield Royal Hospital NHS Foundation Trust; Botham v Ministry of Defence[2012] 2 All ER 278.

It would be a breach of the implied term of trust and confidence for the Trust to proceed to convene an alternative disciplinary process, under Sch 19 of the claimant’s terms and conditions, to consider terminating his contract on grounds of his failure to hold the requisite registration (see [144] of the judgment).

Under Sch 19, the Trust could simply terminate the claimant’s contract on three months’ notice for his registration failure. The Trust was not, however, proposing to do that. Instead, it intended to hold a hearing to consider terminating the claimant’s contract. The Trust appeared to be proposing to set up some form of alternative disciplinary hearing. While any hearing would ostensibly be focused on the claimant’s registration failures, those failures arose from concerns about the claimant’s conduct, which had not yet been fully investigated. The interim suspension order had not been made on the basis of established facts, but on an assessment of risk, pending the establishment of the facts. The claimant had not yet had an opportunity to present his defence in those proceedings. In the circumstances, the Trust seemed to be seeking to sidestep a disciplinary process which it had contractually committed to and about which it had a detailed policy and procedures, in order to set up some form of nebulous alternative (see [122], [123] of the judgment).

While Lord Dyson’s comments in Edwards v Chesterfield Hospital NHS Trust had been directed to an express breach of contract, his assessment that the grant of injunctive or declaratory relief for breach of contract would not jeopardise the coherence of the employment laws [of England and Wales] was apt for present purposes (see [128] of the judgment).

Setting up a hearing under Sch 19, to address the Trust’s concerns about the claimant’s conduct, under the guise of terminating his contract for registration failures, was not being fair to the claimant. The Trust could not fairly switch from its formal disciplinary process, mid-way through that process, because it had become inconvenient for the Trust’s purposes, to some form of nebulous alternative disciplinary process under Sch 19 (see [131], [144] of the judgment).

Accordingly, the Trust would not be granted the declaratory relief it sought (see [132] of the judgment).

Edwards v Chesterfield Royal Hospital NHS Foundation Trust; Botham v Ministry of Defence [2012] 2 All ER 278 explained; Johnson v Unisys Ltd [2001] 2 All ER 801 considered; Eastwood v Magnox Electric plc; McCabe v Cornwall County Council [2004] 3 All ER 991 considered.

(3) Whether the Trust had been entitled by the terms of para 25 of the framework document, Maintaining High Professional Standards in the NHS (MHPS), to stop paying the claimant’s salary, on the basis of the IOP’s order. Paragraph 25 provided the Trust with a discretion to suspend the claimant’s salary on the basis he was unavailable for work (see [136] of the judgment). Under cl 12 of the contract, the Trust had contracted with the claimant not to make deductions from his salary without his express written consent, except as required by law. The ultimate question was whether the claimant should be granted an injunction as sought.

The Trust was not entitled by the terms of para 25 to exercise its discretion to stop paying the claimant’s salary in circumstances where the Trust and the GMC had suspended him. Applying the relevant principles of contractual construction, it could not be seen how the parties could have intended the contractual position to be construed differently if the Trust lifted its own suspension on grounds it was not necessary because of the GMC suspension in place (see [138], [144] of the judgment).

Paragraph 25 of the MHPS had been incorporated into the claimant’s contract of employment at Pts I and II of the MHPS had contractual effect. The provision provided the Trust with a discretion to suspend the claimant’s salary on the basis he was unavailable for work. However, the discretion did not extend to the present circumstances whereby the claimant was subject to an interim suspension order. The ordinary and natural meaning of para 25, read as a whole, was that ‘unavailability’ was to be construed as self- induced action by the employee (see [134]-[136] of the judgment).

The references to: ‘being abroad; annual leave; study leave; voluntary work; paid work’ in para 25 were all examples of actions freely undertaken by the doctor himself. In contrast, the interim suspension order had been imposed on the claimant by a statutory regulator, against his wishes. It had constituted involuntary action (see [137] of the judgment).

The threshold for injunctive relief had been met. The claimant would be granted declaratory relief accordingly (see [143], [144] of the judgment).

Miles v Wakefield Metropolitan District Council [1987] 1 All ER 1089 considered; Alexander v Standard Telephones and Cables Ltd (No 2); Wall v Standard Telephones and Cables Ltd (No 2) [1991] IRLR 286 considered.

Jeremy Hyam QC (instructed by RadcliffesLeBrasseur) for the claimant.

Mark Sutton QC and Nadia Motraghi (instructed by Mills & Reeve LLP) for the Trust.

Carla Dougan-Bacchus Barrister.

The Queen’s Bench Division granted the claimant consultant anaesthetist an injunction to restrain the defendant NHS Trust from proceeding with its disciplinary processes concerning the deaths of two patients under his care, pending a decision by the Crown Prosecution Service (CPS) as to whether to press criminal charges in relation to the deaths; and from ceasing to pay the claimant’s salary on the basis that his registration to practice had been suspended. The court held that the Trust’s refusal to adjourn its disciplinary processes, pending the CPS’ decision, had breached the implied term of mutual trust and confidence in the claimant’s contract of employment, and that the Trust was not entitled to stop paying the claimant’s salary in circumstances where it, and the General Medical Council, had suspended him.

 

Background

The appellant together with a number of co-defendants, who were all employees of Barclays Bank, had been charged with a count of conspiracy to defraud. The charge alleged that they had dishonestly rigged LIBOR. In June 2016, the appellant was convicted by jury and was sentenced to two years and nine months’ imprisonment. The jury was unable to agree verdicts with regards to two of the co-defendants. In 2017, the two co-defendants were retried and acquitted of the charge. During the retrial, the conduct of an expert witness called by the prosecution, who had given evidence at the original trial, was brought into question. The appellant appealed his conviction on the basis of the fresh evidence relating to the conduct of the expert witness. The appellant submitted that that fresh material would have permitted devastating cross-examination, as had been the case with the retrial, where both co-defendants were acquitted.

Appeal refused.

Issues and decisions

Whether in the circumstances, the fresh evidence of the expert witness’s failure to comply with his basic duties had rendered the conviction unsafe.

In the present case, the expert had failed to comply with his basic duties as an expert. He had strayed into areas in his evidence (in particular STIR trading) when it was beyond his expertise (see [58] of the judgment).

However, the expert had a general expertise in banking and finance and many of the issues he had dealt with had involved basic matters which had not been in dispute (see [59] of the judgment).

The central issue for the jury at trial had been dishonesty (see [21] of the judgment).

On the crucial issue for the jury (dishonesty), the appellant’s position would not conceivably have been assisted by a more detailed technical examination of STIR or the Stub (see [70] of the judgment).

Regardless of the events at the retrial, it was not deemed possible to make the causal link between the expert witness’s failings and the appellant’s dishonesty. The issue of the appellant’s dishonesty had been wholly unaffected by the expert witness’s evidence, even considering the expert witness’s evidence in the round (see [73] of the judgment).

In addition, the SFO had had a strong case. The appellant himself had admitted and averred seeking to move the LIBOR rate to suit his book and to favour Barclays. Accordingly, he had faced insuperable difficulty with the initial question of the genuineness of the LIBOR submissions. Concerning the key issue of the appellant’s alleged dishonesty, the appellant had made admissions which were extremely damaging here too (see [66], [67] of the judgment).

Accordingly, notwithstanding the firm conclusion reached as to the expert witness, the appellant’s conviction had been safe (see [72] of the judgment).

R v Robb [1991] Lexis Citation 3499 considered; R v Pendleton [2001] All ER (D) 180 (Dec) considered; Dial v Trinidad and Tobago; Dottin v Trinidad and Tobago [2005] UKPC 4 considered; R v Burridge [2010] All ER (D) 49 (Dec) considered.

Per curiam: This case stood as a stark reminder of the need for those instructing expert witnesses to satisfy themselves as to the witness’ expertise and to engage (difficult though it sometimes by be) an expert of a suitable calibre (see [77] of the judgment).

James Hines QC and Emma Deacon QC (instructed by the Serious Fraud Office) for the Crown

Tom Allen QC and Nicholas James (instructed by IBB Solicitors) for the Appellant

Paul Mclachlan Barrister.

The failure of an expert witness to comply with his duties had not impacted at all, or sufficiently on the key issue in the trial so as to affect the safety of the appellant’s conviction. Accordingly, the Court of Appeal, Criminal Division, dismissed the appeal, but in doing so referenced the need for those instructing expert witnesses to satisfy themselves as to the witness’ expertise.

 

Background

In March 2009, the interested party (Worboys) was convicted of 19 serious sexual offences committed between October 2006 and February 2008 involving 12 victims. He was sentenced to an indeterminate sentence for public protection, with a minimum term of imprisonment of eight years, less time spent on remand. In December 2017, the first defendant Parole Board determined that incarceration was no longer necessary in Worboys’s case and directed his release (the release direction).

The claimants sought judicial review. In the first judicial review proceedings, the Mayor of London (the Mayor) contended that the release direction was unlawful on Wednesbury grounds, and that the Parole Board’s failure to promulgate reasons accessible to those with an interest in that decision had been unlawfully brought about by r 25 of the Parole Board Rules 2016, SI 2016/1041 (r 25), which was ultra vires the enabling statute. In the second judicial review proceedings, one of Worboys’s victims and a woman who had obtained a settlement against him, although without an admission of liability (the victims) brought a challenge essentially the same as the Mayor. In the third judicial review proceedings, News Group Newspapers challenged the vires of r 25.

Applications allowed.

Issues and decisions

(1) Whether the Mayor had standing to bring the challenge.

There was no doubt as to the strength and sincerity of the Mayor’s concerns on behalf of the victims in particular and Londoners in general. However, none of those matters conferred standing on the Mayor to bring the claim. The panoply of functions to which he had drawn attention was very general in scope and did not relate in any respect, even indirectly, to the workings of the Parole Board or to its decisions in any particular case. There were situations where a very liberal approach to the issue of standing was adopted, but the present was not one of them. To deny the Mayor standing would not disable the court from performing its function to protect the rule of law (see [108]-[111] of the judgment).

Nonetheless, the Mayor’s submissions could not be put to one side. They had to be fully taken into account. It followed that the ruling as to the Mayor’s lack of standing was largely academic in terms of the present case, but not in relation to future litigation on similar facts (see [112] of the judgment).

AXA General Insurance Ltd v Lord Advocate (Scotland) [2011] All ER (D) 101 (Oct) applied; R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg [1994] 1 All ER 457 considered.

(2) Whether the release direction had been irrational.

There was considerable force in some of the submissions the victims advanced. However, not all of their arguments had been equally compelling (see [123], [128] of the judgment).

Ultimately, it was not established that the Parole Board had reached an irrational decision. It was not sufficient for the claimants’ purposes to have established that the decision was surprising and concerning. In particular, it could not be concluded that it had been irrational to fail to probe Worboys on the account he had provided, rather than to have accepted it at face value (see [130], [132] of the judgment).

Accordingly, the Parole Board’s decision had to be respected and the irrationality challenge could not be upheld (see [133] of the judgment).

Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 applied; R v Parole Board, ex p Watson [1996] 2 All ER 641 considered; R (on the application of Alvey) v Parole Board [2008] All ER (D) 95 (Feb) considered; R (on the application of Brooke) v Parole Board; R (on the application of Murphy v Parole Board [2008] 3 All ER 289 considered.

(3) Whether the release direction had been Wednesbury unreasonable on the basis of a failure to take into account relevant considerations.

In particular, despite references to ‘80+ potential victims’, the Parole Board had not taken that factor into account or obtained evidence on the issue of possible wider offending.

The distinction between relevant considerations, properly so called, and matters which might be so obviously material in any particular case that they could not be ignored, was not merely one of legal classification; it had important consequences. If a consideration arose as a matter of necessary implication because it was compelled by the wording of the statute itself, the decision-maker had to take it into account and any failure to do so was, without more, justiciable in judicial review proceedings. On the other hand, if the logic of the statute did not compel that conclusion or there was no implied lexicon of the matters to be treated as relevant, then it was for the decision-maker and not for the court to make the primary judgment as to what should be considered in the circumstances of any given case. The court exercised a secondary judgment, framed in broad Wednesbury terms, if a matter was so obviously material that it would be irrational to ignore it (see [141] of the judgment).

It was clear that s 28(6) of the Crime (Sentences) Act 1997 did not expressly set out any considerations or matters which a panel of the Parole Board was required to take into account in all cases, in determining whether or not the prisoner’s confinement was no longer necessary for the protection of the public. Nor could it be said that s 28(6) compelled the conclusion that evidence of wider offending was relevant to the statutory question (see [142] of the judgment).

Further, evidence of wider offending would often simply not be available, assuming that it ever came to police attention. Prisoners could not sensibly be asked open-ended questions by the Parole Board about whether their record gave the complete picture. Even where evidence was available, further investigation or inquiry could not be mandated in every case; there might be situations where such evidence could not be relevant to the level of the prisoner’s risk. Given that the statutory test was directed to whether confinement was no longer necessary for the protection of the public, the principal focus in the majority of cases would be on current and future risk. A prisoner’s risk factors would require identification, but the degree of risk at the time of sentencing would not necessarily require precise ascertainment (see [143] of the judgment).

It was not the role of the Parole Board to determine whether a prisoner had committed other offences, but it was not precluded from considering evidence of wider offending when determining the issue of risk. The distinction between taking account of evidence of wider offending and refraining from making determinations about it was not artificial (see [155] of the judgment).

In the circumstances of the present case, the evidence or material could have been used as a means of probing and testing the honesty and veracity of Worboys’s account. The Parole Board ought to have carried out, or have instigated the carrying out of, further inquiry. Had some basic lines of inquiry been undertaken, the material would have provided a sound platform for testing and probing Worboys’s account and psychologists would also have been asked to reconsider their assessments in the light of it. Such evidence should have been obtained (see [155], [159]-[162] of the judgment).

The submission that it had been clear to the Parole Board that Worboys had been a serial offender and that whether he had or might have committed a significant number of further offences had not been relevant, or should have carried very little weight, could not be accepted. Additional material had been so obviously material that it would have to be considered. In any event, in strict public law terms, the issue was whether the court could be confident that the additional material could make no difference to the outcome, namely, that the Parole Board would inevitably have taken the view that it was irrelevant. It would be impossible to so conclude (see [163] of the judgment).

It followed that the release direction had to be quashed and Worboys’s case remitted to the Parole Board for rehearing before a different panel (see [164] of the judgment).

Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1947] 2 All ER 680 applied; Findlay v Secretary of State for the Home Department [1984] 3 All ER 801 considered; R v Kidd, R v Canavan, R v Shaw [1998] 1 All ER 42 considered; B (a minor) v DPP [2000] 1 All ER 833 considered; R (on the application of Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2002] 3 All ER 1 considered; R (on the application of Khatun) v Newham London Borough Council [2004] All ER (D) 386 (Feb) considered; R v Farrar [2006] All ER (D) 204 (Dec) considered; R v Considine; R v Davis [2007] 3 All ER 621 considered; R (on the application of McGetrick) v Parole Board [2012] All ER (D) 39 (Apr) considered.

(4) Whether r 25 was ultra vires s 239(5) of the Criminal Justice Act 2003 because it impliedly authorised the infringement of the fundamental rights to open justice principle and the victims’ right of access to the court.

The open justice principle, or more particularly, the public’s right to receive information which flowed from the operation of that principle, applied to Parole Board proceedings. There were no obvious reasons why the open justice principle should not apply to the Parole Board in the context of providing information on matters of public concern to the group of individuals who harboured concern, namely, the public itself. There were clear and obvious reasons why the Parole Board should do so. That information could readily be provided in a fashion which in no way undermined the rights of the prisoner under art 8 of the European Convention on Human Rights and the confidentiality which attached to it (see [176], [177] of the judgment).

An inseparable part or corollary of the victims’ right of access to the court entitled them to be given some information about the release decision. The right to information, which flowed from the right of access to the court, was not absolute and would have to yield to stronger competing public interests. However, for present purposes, the claimants did not have to be particularly ambitious. All they needed to say was that their right to access to the court entitled them to some information about the release decision. Rule 25 disentitled them to any (see [186], [187] of the judgment).

Rule 25 implemented a blanket ban on the provision of information. The courts had consistently held that a rule of that nature, which did not permit of exceptions, was both unlikely to be impliedly authorised by the enabling statute and difficult to justify (see [192] of the judgment).

Applying the principle of legality, it was not possible to construe r 25 in a manner which preserved fundamental rights. Rule 25 went too far. There was no objective necessity for a rule which stifled the provision of all information relating to the proceedings of the Parole Board, regardless of the justified public interest in any particular set of proceedings and of the fact that not all information needed to be safeguarded. Accordingly, r 25(1) was ultra vires s 239(5) (see [198]-[200] of the judgment).

R v Secretary of State for the Home Department, ex p Simms [1999] 3 All ER 400 distinguished; R v Secretary of State for the Home Department, ex p Leech [1993] 4 All ER 539 applied; R v Criminal Injuries Compensation Board, ex p A [1999] All ER (D) 329 applied; R (on the application of Daly) v Secretary of State for the Home Department [2001] 3 All ER 433 applied; R (on the application of Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2002] 3 All ER 1 applied; R (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] 3 All ER 827 applied; Kennedy v Charity Commission [2014] 2 All ER 847 applied; Scott (otherwise Morgan) v Scott [1911-13] All ER Rep 1 considered; Pickering v Associated Newspapers Holdings plc [1991] 2 AC 370 considered.

Phillippa Kaufmann QC and Nick Armstrong (instructed by Birnberg Peirce Ltd) for the victims.

Dan Squires QC and Sarah Hannett (instructed by General Counsel) for the Mayor.

Gavin Millar QC and Aidan Wills (instructed by Reynolds Porter Chamberlain LLP) for News Group Newspapers.

Ben Collins QC, Robert Moretto and Tom Cross (instructed by the Government Legal Department) for the Parole Board.

Clive Sheldon QC and Patrick Halliday (instructed by the Government Legal Department) for the Secretary of State for Justice.

Edward Fitzgerald QC and Matthew Stanbury (instructed by Swain & Co Solicitors) for Worboys.

Karina Weller - Solicitor (NSW) (non-practising).

The first defendant Parole Board’s decision directing the release of John Worboys, the black cab rapist, had been irrational, as it should have undertaken further inquiry into the circumstances of his offending. The Divisional Court, in quashing the release decision and remitting the case, further held that r 25(1) of the Parole Board Rules 2016, SI 2016/1041, prohibiting the making public of information about Parole Board proceedings, was ultra vires s 239(5) of the Criminal Justice Act 2003.