Waltham Forest NHS Primary Care Trust & Anor v Malik, R (on the application of)

These are appeals by the Waltham Forest NHS Primary Care Trust (“the PCT”) and the Secretary of State for Health (“the Secretary of State”) from the ruling of Collins J on 17^th March 2006 in favour of the Respondent, Dr Zafra Iqbal Malik. In his ruling Collins J held that Dr Malik had suffered an interference with his possessions contrary to Article 1 of the First Protocol to the European Convention on Human Rights (“ECHR”), incorporated into United Kingdom law by the Human Rights Act 1998, when the PCT unlawfully suspended him from the medical performers list maintained by it pursuant to the National Health Service (Performers Lists) Regulations 2004 (SI 2004/585) (“the Performers Lists Regulations”).

The central issue is whether a general practitioner providing National Health Service (“NHS”) services for a Primary Care Trust under the Performers Lists Regulations has a possessory right under Article 1, by virtue of his inclusion on the list, to perform such services. If so, every general practitioner included on such a list has a potential claim under Article 1 in the event of unlawful removal from it in addition to whatever other claims might flow from it.

Article 1 provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided by the law and the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

I take the statutory and regulatory background from the summary prepared by Mr Jason Coppel, for the Secretary of State, of Collins J’s helpful analysis of the relevant provisions of the Performers Lists Regulations.

For a doctor to perform services for which an NHS Primary Care Trust is responsible he must be included on a “performers list” maintained by that Trust under regulations 3 and 22 of the Performers Lists Regulations and section 28X of the National Health Service Act 1977.

Inclusion of a doctor on the list depends on various criteria as to his capacity, conduct and good character, and is personal to him (regulations 6 and 24 of the Performers Lists Regulations).

The distinction between the contractual right to “provide” services and the right to “perform” them is important. Once on a Primary Care Trust’s list, a doctor cannot “perform” medical services under the NHS unless he is also engaged contractually by the Trust to “provide” such services, either as a sole practitioner, partner in a practice or as an employee or sub-contractor to a doctor engaged by a Primary Care Trust to provide such services; National Health Service (General Medical Services Contracts) Regulations 2004 (SI 2004/291 (“the GMS Regulations”), Sch 6, para 56. These contractual arrangements have their own mechanisms for payment, variation and termination independently of the suspension or removal of a doctor from a performers list. In this case, Dr Malik entered into a contract with the PCT as a sole practitioner, and his contract remained in force throughout the period of his suspension.

The Performers Lists Regulations provide a mechanism for removal of a doctor from the list, principally on grounds of inefficiency, unsuitability or fraud (regulations 10 and 11), and for suspension, normally up to six months, “where the Primary Care Trust is satisfied that it is necessary to do so for the protection of members of the public or is otherwise in the public interest” pending the completion of investigations of his conduct (regulation 13).

The effect of suspension is that a doctor is to be treated as not being included in the list, although his name still appears on it (regulation 13(9)), and to prohibit performance by him of any medical services under the contract (the GMS Regulations, paragraph 53(1)). However, he retains his contractual right to provide services, either through a locum on the performers list whom he engages or one whom his Primary Care Trust engages on his behalf.

The Performers Lists Regulations provide, by regulation 13(17), for the making of payments by a Primary Care Trust to a suspended doctor in accordance with the terms of a determination made by the Secretary of State. In the case of Dr Malik the determination provided for the Trust to make replacement payments to him at the rate of 90% of his normal contractual monthly payment, the 10% reduction taking account of savings in working expenses that he would otherwise have incurred.

Dr Malik practised as a general practitioner from an east London surgery, which he owned, from 1978. He was a sole practitioner there on his suspension in January 2005, when he had a NHS list of some 1,400 patients.

On 30^th March 2004, while included on the performers list, Dr Malik entered into a contract with the PCT to provide medical services in accordance with the GMS Regulations. Thereafter and until his suspension, the PCT paid him his NHS remuneration monthly under his contract, assessed every three months by reference to the number of patients on his list. The PCT also paid him notional monthly rent in respect of his surgery premises.

On 21^st January 2005 Dr Malik was suspended from the list by the PCT pursuant to a series of decisions that Collins J has held to be unlawful. The PCT does not appeal that aspect of his decision. During his suspension, and thereafter when he voluntarily refrained from practice, the PCT continued to pay him pursuant to his contract with it, subject to the 10% deduction that I have mentioned. It also provided locum cover, not at his surgery premises because of their unsatisfactory condition, but through another nearby medical practice for patients registered with him. Because those locum services were not provided at his own surgery premises, the PCT discontinued the notional rent for them that it had previously paid.

Thus, the effect of suspension was to prevent Dr Malik from using his surgery premises for performing services to his NHS patients and from performing NHS services anywhere else in the country. However, he remained free to provide services for any private patients at those premises or elsewhere.

The sole issue in the appeal is whether the PCT’s unlawful suspension of Dr Malik amounted or gave rise to a deprivation of a “possession” so as to engage Article 1 of the Protocol. If it did, there is no dispute, given the Judge’s unappealed finding[s] as to that unlawfulness, that it was unjustified.

If the claim were to proceed to the next stage of assessment of damages, there would be issues as to whether it was necessary to afford “just satisfaction” by way of an award of damages, pursuant to s. 8 of the Human Rights Act 1998 (“HRA”) and, if so, how much, if any, loss Dr Malik had suffered as a result of his suspension, given that the PCT continued to pay him pursuant to reg. 13(17) of the Performers Lists Regulations.

Collins J’s reasons for concluding that Dr Malik’s inclusion on the performers list was a possession within Article 1 of the Protocol were, in summary as follows:

The Secretary of State’s case on the appeal is that inclusion on a performers list is not a “possession”, and that suspension from it is not interference with it within Article 1 of the First Protocol. Mr Coppel submitted that:

Dr Malik’s case was that his patient list represented the goodwill in his practice, which, in the form of the income it represented, had a value that would be diminished by his suspension from NHS practice.

Mr Philip Engelman, on behalf of Dr Malik, drew parallels with his pre-suspension entitlement to inclusion on the performers list, enabling him to perform NHS services for those on his list of patients, with the valuable goodwill of a practice or business identified in Strasbourg jurisprudence as a possession for the purpose of Article 1. He also relied on certain English cases. On the question of deprivation caused by suspension of that entitlement, Mr Engelman sought to rely on Dr Malik’s loss of the right to perform his NHS services, loss of use of his surgery for the provision of them, loss of notional rent from the PCT for his use of his surgery, loss of 10% of his NHS income, and loss of about 360 patients from his patients list. He submitted that:

in what respect may future income be an Article 1 “possession” – goodwill and legitimate expectation?

It is well established, and appears to have been common ground before Collins J, that Article 1 protects a right to existing, that is to vested, possessions, but not a future right to receive possessions; see Marckx v Belgium (1979) 2 EHRR 330, at para 50. More precisely, in the context of the issues raised by this case, the Court of Appeal, in The Countryside Alliance v Attorney General, 17 October 2006, [2006] EWCA Civ/2006817, have upheld the reasoning of the Divisional Court [2005] EWHC 1677 at paras 169 to 174, that a person’s livelihood in the sense of a future right to income, as distinct from a vested right to it or some separate element of goodwill, cannot amount to a possession within Article 1 of the Protocol. The Divisional Court, in its reasoning, had regard to Strasbourg jurisprudence, in particular to the Court’s decision on admissibility in Wendenburg v Germany (Appplication No 71630/01; 6 February 2003), at pp 20 and 23, to the effect that an element of goodwill bound up with a claim in respect of loss of future earnings may amount to a possession within Article 1. However, it expressly declined to follow the approach of the Inner House in Adams v Scottish Ministers 2004 SC 655, at paragraph 97, suggesting that a self-employed person’s economic interest in making his livelihood qualified for Article 1 protection.

As the Court observed in Wendenburg, at page 23, goodwill as a qualifying element for Article 1 protection had been present in a number of cases previously before it where the proprietors of businesses had claimed interference with possessions in the form of goodwill and/or physical assets resulting from state action, namely: Van Marle & Ors, - the practice of accountants hitherto untrammelled by a statutory requirement of registration; Tre Traktorer Aktiebolag v Sweden (1991) 13 EHRR 309 – the withdrawal of a licence to serve alcohol in a restaurant; and Karni v Sweden (1988) 55 DR 157 - the removal from affiliation of a medical practice with the state social security system. The reasoning of the Court in Van Marle in holding that Article 1 was engaged in the case of established accountants who were required by a new statute to register to enable them to continue in their practice, is a good example of the goodwill approach. The Court observed at paragraphs 41 and 42:

“41.

… the right relied upon by the applicants may be likened to the right of property embodied in Article 1: by dint of their own work, the applicants had built up a clientele: this had in many respects the nature of a private right and constituted an asset and, hence, a possession within the meaning of the first sentence of Article 1. …

42.

The refusal to register the applicants as certified accountants radically affected the conditions of their professional activities and the scope of those activities was reduced. Their income fell, as did the value of their clientele and, more generally, their business. Consequently, there was interference with their right to the peaceful enjoyment of their possessions.”

As Mr Coppel acknowledged, goodwill in the sense of an established client-base with its own inherent market value along with other existing assets of a business, may often not be readily distinguishable from future earning prospects from existing trading circumstances, since the existence or valuation of goodwill will turn at least in part on projected future earnings. However, no such blurring of the line can occur here, since Dr Malik’s clientele in the form of the patients registered with him has no economic value and so cannot constitute a “possession” because of statutory denial to him of any marketable goodwill in his patients list. That denial is to be found in the prohibition imposed by Regulation 3 of the Primary Medical Services (Sales of Goodwill and Restrictions on Sub-contracting) Regulations 2004 (SI 2004/906), which, subject to immaterial exceptions, prevent a doctor from selling any “goodwill” or patients lists to a third party. Collins J, in paragraphs 5, 36 and 37 of his judgment, seemingly acknowledged that that provision prevented Dr Malik from relying on goodwill as a relevant possession for the purpose of his claim.

Wendenburg, unlike Van Marle and other such cases, did not, on its facts, turn on loss of goodwill and/or diminution in value of physical assets, but on what the Court appears to have regarded as a sort of acceptable middle position, one of a legitimate expectation of future earnings. The case concerned a decision of the German Federal Constitutional Court removing advocates’ exclusive right of audience in certain appellate courts. The Court concluded that the effect the removal of that right on the level of earnings that the advocates could have continued to enjoy but for it constituted an interference with their Article 1 possessions. It did so, not on the basis that they represented a species of goodwill, but because it considered that the advocates had had a legitimate expectation of continuing to enjoy such level of earnings. This is how the Court put it at page 23 of its judgment:

“… Article 1 … is not applicable to future earnings, but only to existing possessions, that is to say income once it has been earned or where an enforceable claim to it exists … The applicability of Article 1 however extends to law practices and their clientele as these are entities of a certain worth that have in many respects the nature of a private right and thus constitute assets and therefore possessions within the meaning of the first sentence of Article 1 …

In this context, it does not matter whether the applicants acquired the possessions by taking advantage of favourable position, or solely through their own activities. When dealing with the protection of privileges accorded by law, the Convention is applicable where such privileges lead to a legitimate expectation of acquiring certain possessions. That is the case here.”

However, and with respect to the European Court, the shadowy nature of such possessory entitlement is evident from the way in which it disposed of the case against the applicants. It held - assuming without deciding that the German Court’s decision had the effect of interfering with that entitlement – that the interference would have been justified under the second paragraph of the Article as being in the general interest. At page 24 of its judgment, the Court stated:

“The Court is not entirely persuaded that the Federal Constitutional Court’s decision interfered with the applicant’s possession within the meaning of Article 1 … the applicants have not submitted any concrete evidence that they depended on other lawyers’ recommendations for most of their clientele, e.g. by furnishing the Court with lists of clients or the like. However, the Court is not required to resolve this problem as, even assuming an interference with their property rights, such interference was justified under the second paragraph of Article 1 …”

In my view and with respect, the Divisional Court and the Court of Appeal in Countryside displayed a surer touch, both of principle and practicality in rejecting the possibility of any such middle position between goodwill as a possession and future income which is not. The Court of Appeal stated, at paragraph 114 of its judgment:

“ … we reject the breadth of the ‘claims as to the loss of their “livelihood”. Strasbourg case law, while stating that a professional man’s clientele may form part of his possessions, as may the goodwill of his business, has very clearly ruled that any element of a claim that relates to loss of future income does not qualify in this respect, unless an enforceable claim to future income already exists. The Divisional Court set out the relevant Strasbourg case law in paras 170-172 of its judgment. We agree with their approach, including their unwillingness to follow the judgment of the Inner House of the Court of Sessions in Adams at para 97, in so far as it may have been suggested that the livelihood of a self-employed person occupies some middle position between marketable goodwill and future income. ….”

In Dr Malik’s case, Collins J did not rest his decision in his favour on the issue of either goodwill or legitimate expectation. In paragraphs 36 and 37 of his judgment, he appears to have acknowledged that goodwill was not an argument available to him. Legitimate expectation does not appear to have been argued before him, and he certainly did not rely on it in resting his decision on the likeness of inclusion on a list to a licence. Although Mr Engelman mentioned such a possible argument in his submissions to this Court, he did not, understandably in the circumstances of this case, put it at the forefront of his argument. If he had done so, it would quickly have become apparent that such a notion as an indicator of an Article 1 possession would not be readily separable, on the facts of this case, from the further issues of interference and justification, as happened in Wendenburg. Hence Collins J’s resort to the “licence” solution.

Mr Engelman sought to distinguish the broad principle in Countryside of a clear distinction between a vested and future right to income from this case on the basis that Countryside was concerned with the livelihood of self-employed persons not linked to land or goods, whereas Dr Malik’s inclusion on the performers list was intimately connected with his practice, premises and equipment. I say straightaway that I can see no meaningful distinction between the reasoning of both courts in Countryside, drawing as they did on the Strasbourg jurisprudence as to what could and could not amount to goodwill and hence an Article 1 possession, in cases of outside interference with professional practices and businesses operating from their own premises and equipped for the purpose.

In summary on the issues of goodwill and legitimate expectation, there is clear Strasbourg authority, in Wendenburg and other cases, and domestic authority, in Countryside, that the assets of a business may include possessions for the purpose of Article 1 in the form of “clientele” or goodwill of the business. Where such clientele/goodwill goodwill exists, measures that diminish its value, as, for example in Van Marle, interference with professional practice, may engage Article 1. But where it does not exist, as it does not here, the Court of Appeal’s decision in Countryside upholding the reasoning of the Divisional Court is also clear authority for the proposition that, without it, mere prospective loss of future income cannot amount to a possession for the purpose. Equally, any consideration of a further category of Article 1 possession based on a notion of legitimate expectation in this context would unacceptably blur that distinction of principle. It would also, as I have indicated, lead to great difficulties of practical application in the next stages of the Article 1 exercise of identifying precisely what legitimately expected “possession” had been interfered with and to what extent, and in considering the “legitimacy” of the expectation against considerations of the general interest on the issue of justification.

Before leaving the issue of goodwill and moving to that of a licence to practise, I should note that, of course, Dr Malik’s practice had assets other than goodwill, including premises, equipment, furniture etc., all of which were capable of constituting possessions, as in Karni. But there was no evidence before Collins J to indicate that suspension from the performers’ list of itself damaged or devalued those physical assets. Moreover, it was very much a “make-weight” argument to the main complaint, which was as to loss of a future “income stream”; it was introduced at a late stage of the appeal, and seemingly not argued before Collins J, who said at paragraph 39 of his judgment:

“… if the claimant can establish that he has suffered recoverable damage he may be entitled to some sums to recompense him for such loss. Since he should have been receiving payment which should have maintained his income, he may have difficulty in establishing any loss. However, I am not in a position to decide that issue.”

whether a personal permission, in the form of inclusion on a professional list, or a licence, is an Article 1 “possession”

Collins J, as I have said, was content to put aside the issue of goodwill and to follow another avenue towards treating Dr Malik’s right to practise as a possession, namely by regarding his inclusion on the performers list as “akin to the possession of a licence”. Notwithstanding the reasoning of the Strasbourg jurisprudence as understood by the Divisional Court in Countryside and without the benefit of the Court of Appeal’s confirmation of it, he extracted from two domestic authorities the broad proposition that “[t]he right to practise a profession can be regarded as a possession”. The effect of his approach was to confer Article 1 protection on Dr Malik, as Mr Coppel put it, for PCT payments that he hoped or expected to earn in the future but that he had not yet earned.

The authorities on which Collins J relied for this purpose were the Court of Appeal decision in Crompton v Department of Transport [2003] EWCA Civ 64, which concerned the revocation of a road haulage operator’s licence because of his loss of good repute, and one of his own judgments, R (Quark Fishing) v Secretary of State [2003] EWHC 1743, [2006] All ER 71, about a direction not to grant a fishing licence. At paragraphs 37 and 38 of his judgment he said:

“37.

In Crompton … the Court of Appeal was concerned with the revocation of a licence which enabled the appellant to operate heavy goods vehicles. At paragraph 19, Kennedy LJ, who gave the only reasoned judgment ,said:

‘An operator’s licence is a possession for the purposes of Article 1P1.

That conclusion did not depend on goodwill. My attention was also drawn to a decision of mine, Quark … in which I decided that a licence to carry out an economic activity could amount to a possession within the meaning of Article 1P1. That is clearly correct: whether it would amount to a possession might depend on the facts of a given case.

38.

In this case, inclusion in the list is akin to the possession of a licence. While the goodwill of the practice is not marketable, the inclusion has an intrinsic value in that it enables the doctor to practise. Since the amount of his remuneration will be affected by his patient numbers, suspension may well affect the economic value to him of his practice. Thus inclusion in the list has a present value apart from the right to future income and, as it seems to me, the decision in Van Marle … supports the view that it can and does amount to a possession. The Countryside … case is distinguishable since it was concerned with a self-employed person’s livelihood and not with his possession of a licence or its equivalent which enabled him to work. I think the approach of the Court of Appeal in the Crompton case was correct.”

In Crompton Kennedy LJ, in paragraph 19(5) of his judgment, said that he regarded as “non-contentious” the proposition that an operator’s licence is an Article 1 possession, seemingly without argument and in the absence of any appearance by the respondent to argue to the contrary.

Mr Coppel acknowledged that a licence to carry out an economic activity might amount to an Article 1 possession in circumstances in which it is not personal to the grantee and in which the grantee could dispose of it as an economic asset. He instanced the licence considered by the Judge in Quark as a good example, one typical where fishing quotas are involved, that is, attached to a fishing boat which itself could be transferred. But where, as here, the right in question, whether a licence or inclusion on a list of persons entitled to follow a profession or business, is not transferable, he submitted, it cannot of itself be an Article 1 possession, as distinct from any underlying assets of the business that may be affected by the loss of the licence or inclusion in the list, as in Karni.

On Mr Coppel’s approach, marketability of the right, in whatever instrumental form it is granted, is all. However, it seems to me that that is a return, in all but name, to the goodwill issue on which the decisions in Van Marle, and Tre Traktörer turned. If there is no such goodwill - as there is not here – and no legal or factual basis for an Article 1 possession on the strength of legitimate expectation - as, in my view, there is not here - the broad question is whether a right to practise a profession, conduct a business or follow an occupation, in whatever instrumental form it is granted, is itself a possession distinct from the future likely material consequences of its grant. That is a metaphysical exercise, and one which, to the extent that it has been considered by our domestic courts, has been treated with some scepticism.

However, before looking at the jurisprudence, it may be helpful to step back for a moment to remember that possessions may be tangible or intangible and that the reach of human rights goes beyond economic protection. In the case of tangible objects, such as land or goods, and also in the case of certain intangible assets, an individual’s right to enjoy them as possessions may not be, or not just be, of an economic nature. Something may have value to a person though it may have no value in the market. One cannot comprehensively define possession for this purpose by reference to a person’s ability or wish to sell it. Thus in Chassagnou & Ors v France (1999) EHRR 615, the “possession” in issue was the claimants’ land on which they sought to exclude others from hunting and to use for a purpose other than hunting. Likewise, in the case of property other than land, objects that may be of no economic value to their possessors – wholly unmarketable –may have a sentimental or other personal value to them for the protection of their enjoyment of which Article 1 should, if necessary, provide.

In the case of tangible property, no elaborate argument based on analysis of its value is needed to establish whether it comes within the protection of the Article, only the possessory right and the interference with it by reference to which the individual invokes Article 1.

Where, however, the possessory right claimed is, as here, to some intangible entitlement conferred by a licence or other form of permission to the grantee to continue to follow an activity to his advantage, it seems to me that some additional factor is necessary to render it a “possessory” entitlement as distinct from the broader concept of a legal right to do so. In many or most cases, such identification is likely to depend on the existence of some present economic value of the entitlement to the individual claiming it conferred by a licence or other form of permission.

The questions of principle in this case – which is concerned with potential loss of livelihood - is, therefore, whether economic value is a distinguishing feature of a possessory right and whether it can only be identified in the sense of marketability. If it is not so confined, where, in any given case is the boundary between an Article 1 possession and some other and broader Convention right not amounting to such a possession?

In my view, good sense and the Strasbourg and domestic authorities require separate consideration of claimed future monetary entitlements from a claimed future entitlement based on a personal interest in enjoyment of it but not involving any monetary claim. When considering a claimed future monetary entitlement derived from an instrument such as a licence or permit, a court should focus first on whether the entitlement has a present economic value to him in the sense of being marketable by him. Thus, in Legal and General Assurance Co Ltd v Kirk [2002] IRLR 124, which was not cited to Collins J, this Court rejected the notion that a licence was itself capable of being an Article 1 possession. The Court was primarily concerned to distinguish the facts of that case, where the “possession” claimed was the right to seek employment of a particular type, from cases where a public authority has granted a licence to carry on a particular trade. In making that distinction, Jonathan Parker LJ, with whom Ward LJ and Harrison J agreed, noted, at paragraph 41 of his judgment, that in licence cases “the economic interests which derive from the grant of such a licence may fall to be treated as, in effect, rights of property.” The corollary of that reasoning would appear to be that the licence itself is not the “possession” and that whether the economic interests that flow from it are a possession depends on the facts, one of which may be the marketable goodwill that can flow from the exercise of a licensed trade, in effect, the Van Marle or Tre Traktorer type of case.

In R (Royden) v Wirral MBC [2003] LGR 290, which concerned the claimed “premium value” of hackney carriage licences, Sir Christopher Bellamy QC concluded at paragraph 120, after considering Van Marle, Tre Traktörer and other Strasbourg cases, that, while he could accept that the withdrawal of a licence could amount to the determination of a “civil right” for the purpose of Article 6 of the Convention, he had “some difficulty in accepting that an authorisation granted by the State under public law to carry on a particular activity is, in itself, “property” or a “possession” within the meaning of Article 1”.

A case more closely in point is Nicholds & Ors v Security Industry Authoriy & SSHD [2006] EWCH 1792 (Admin), a decision in which Mr Kenneth Parker QC, sitting as a Deputy High Court Judge, held that the introduction of licensing criteria for door supervisors pursuant to the Private Security Industry Act 2001, preventing them from continuing to work as such because of their previous convictions, did not deprive them of any rights amounting to Article 1 possessions. Mr Parker, after noting, in paragraphs 70 and 71 of his judgment, the broad range of property rights connoted by the word “possessions” – “biens” – as recognised in the Strasbourg jurisprudence, took two “firm fixed points”. The first was that goodwill may constitute an Article 1 possession. The second was that “an expectation of future income is not”. He then went on, in paragraph 72, to consider “goodwill” in a broad monetary sense (Footnote: ¹) as a marketable asset, that is, “the capitalised value of a business or part of a business as a going concern … best understood as the expected free future cash flows of the business discounted to a present value at an appropriate after tax weighted average cost of funds”. In a powerful analysis in paragraphs 73 to 77 of his judgment, he explained why he considered that goodwill in that sense could be considered as capable of being an Article 1 possession:

“73.

The business has a capital value or goodwill only if the entity can be, and is, organised in a way that allows future cash flows to be capitalised. … it is clear on Strasbourg jurisprudence, now confirmed by high domestic authority, (Footnote: ²) that .., [Article 1] protects only ‘goodwill’, as a form of asset with a monetary value, and does not protect an expected stream of future income which, for mainly organisational reasons cannot be or is not capitalised. In other words, the Convention, differing perhaps in this respect from the law of the European Union, protects assets which have a monetary value not economic interests as such.

How should a licence or permission be treated under … [Article 1]? It seems to me that certain licences or permissions are ‘assets’, that is, they have a monetary value and can be marketed for consideration, either through outright sale, ‘leasing’, or sub-licensing. Milk quotas would fall within this category as well as certain spectrum licenses which Ofcom allows to be assigned or sub-licensed for consideration. … ”

74.

However, there are other licences or permissions that are neither marketable nor have been obtained at a ‘market’ price, that is, a price representing what is thought to be the value of net discounted future cash flows that the licence might generate. Such a licence in one sense has a value to the holder because, without it, he cannot carry on the licensable activities. However, such licences do not seem to me to be ‘assets’ having monetary value in the sense required by … [Article 1]. Such licences do not as such represent a distinct asset having monetary value.

75.

Furthermore, to treat such licences as ‘possessions’ would, in my view, risk introducing unjustified distinctions into what is already a fairly complex area of law. Once a ‘possession’, the licence enjoys a status under … [Article 1]; any interference must be justified as proportionate and damages may be awarded if the interference is not justified. The damages are likely to be substantial because economic interests have been putatively destroyed or impaired. That higher protection would, however, depend solely upon whether the economic activity in question, which has been the subject of interference, was a “licensable” one. But I have difficulty in seeing any rationale for giving a higher protection by reason of that fact alone. … It is true that commentators have often observed that licensing may constitute a barrier to entry and thus raise industry profits above the competitive level, but that could hardly be a good reason for according higher protection under the Convention and HRA to licensable activities. If licensable activities enjoyed higher protection, the result in Countryside Alliance (that the expectation of future earnings was not a possession) could have been different if hunting had first been a licensable activity and the effect of the ban in the Hunting Act 2004 had been to make such licences worthless. However, such a distinction would seem largely fortuitous and I cannot see merit in a system which would treat these two situations differently. …”

In paragraph 81 of his judgment, Mr Parker expressly disagreed with Collins J’s decision in this case, stating that, in his view, Dr Malik’s inclusion on the performers list, not being a marketable asset and, therefore, not a distinct asset with a monetary value, would not be an Article 1 possession.

Mr Engelman submitted that Mr Parker’s reliance on transmissibility as a necessary pre-requisite of monetary value is unsupported and contradicted by Strasbourg authority, and asked why it should be so where a licensing system removes what would otherwise have been a bien? To an extent, Mr Engelman is, in my view, correct if his criticism is directed to the point that transmissibility cannot always be the touchstone of a possessory entitlement under Article 1. But, as I have said, where the possessory interest claimed is purely a monetary one, how else is it to be identified and valued for the purpose of determining whether there has been interference with it and, if so whether that interference is justified in the general interest?

The matter has, in any event, been put beyond doubt in my view by the ruling of this Court in Countryside, which binds us, upholding the reasoning of the Divisional Court that an individual’s monetary loss, in the sense of loss of future livelihood, unless based on loss of some professional or business goodwill or other present legal entitlement, cannot constitute a possession attracting the protection of Article 1.

The only possibly non-distinguishable authority, Crompton, in which this Court treated a road haulage operator’s personal licence as an Article 1 possession, is, with respect of little weight. As I have said, the Court accepted, in the absence of the defendant and without argument, the proposition that the operator’s licence was a possession for the purpose of Article 1 (see per Kennedy LJ at paras 19(1) - (5). The real point in the case was whether revocation of the licence was in the circumstances proportionate (see per Kennedy LJ at paras 24 and 25). Moreover, the issue as to whether the licence was an Article 1 possession, if taken, would have been largely academic because, with the revocation of the licence, also went Mr Crompton’s haulage business and its assets, including its goodwill, all of which, as Mr Coppel pointed out, were clearly Article 1 possessions.

Quark is also clearly distinguishable on the issue insofar as it concerned Article 1, since it concerned a licence to fish that was, as I have said, transferable along with the fishing boat to which it related. The focus on this issue, which arose on a defence application to strike out the claim as non-justiciable under the HRA was, in any event, based on a claim of a legitimate expectation of being granted a licence in the future, a claim that Collins J considered would have been arguable but, which in the light of Countryside, is now unsustainable and was not argued before him in Dr Malik’s case.

For the reasons that I have given, and on the strength of the Strasbourg and domestic jurisprudence, in particular Countryside and Nicholds, I would, therefore, hold that Collins J wrongly concluded that the personal right of Dr Malik to practise in the National Health Service flowing from his inclusion in the performers list was a “possession” within Article 1.

If I am right in that conclusion, it is enough to dispose of the appeal against Dr Malik. However, lest the matter goes any further, it may also be helpful for me to express a view on the Judge’s reasoning - on the basis that inclusion on the performers list was an Article 1 possession - that the PCT deprived him of it.

The Judge’s reliance on damage to the Dr Malik’s practice

If inclusion in a performers list is, contrary to my view, an Article 1 “possession”, it would follow that suspension from it under the Performers Lists Regulations is an interference with that “possession”. But, as Mr Coppel noted, the Judge did not reason the matter in that way. In paragraphs 38 and 39 of his judgment, he recognised the need to examine the impact of suspension on Dr Malik’s practice, and concluded that there was such interference because his inclusion in the list had “a present value apart from the right to future income” in that the amount of his remuneration was affected by his patient numbers and suspension might well affect the economic value to him of his practice. However, there was no evidence before the Judge to support such finding of interference, in particular, no effective loss of remuneration or of actual or prospective loss of patients, since he continued to receive 90% of his National Health Service remuneration by reference to his patient list, pursuant to regulation 13(17) of the 2004 Performers Lists Regulations (see paragraph 10 above), and his practice was preserved by the PCT arranging and paying for his patients to be seen by a locum. To be fair to the Judge and as I have pointed out, he recognised, in paragraph 39 of his judgment, that Dr Malik might have difficulty in establishing any such interference.

I should add that there is nothing in the further point made by Mr Engelman in the course of submissions that interference could be established in the PCT’s cessation of payment, following Dr Malik’s suspension, of payment of notional rent for the use of his premises under Directions 41 and 42 of the NHS (GMS – Premises Costs) (England) Directions 2004. (Footnote: ³) During the period of his suspension Dr Malik’s practice continued to provide services to patients on his list, but did so, as I have said, through a locum engaged by the PCT to perform those services. Because of the unsatisfactory condition of Dr Malik’s surgery premises, the PCT was obliged to refer his NHS patients to a locum at another nearby practice. However, his premises were still available for his use, for example, for the purpose of seeing private patients. More importantly, such notional rent as he might have continued to receive but for the suspension would not have constituted a possession for the purpose.

In the result, I would allow the Secretary of State’s appeal on the primary issue that, in the circumstances of this case, Dr Malik’s inclusion on the performers list was not a possession for the purpose of Article 1 of the First Protocol to ECHR.

I agree, and gratefully adopt Lord Justice Auld’s exposition of the facts, submissions and authorities which arise on this appeal.

Those authorities, here and in Strasbourg, indicate that there is a line to be drawn for the purpose of article 1 of the First Protocol (“art 1FP”) between presently vested possessions on the one hand and the prospect of future income, or what might be described as “livelihood”, on the other.

In Van Marle v. The Netherlands (1986) 8 EHRR 483, the claimant accountants relied on the goodwill of their practice as an art 1FP possession. The European Court agreed that “it may be likened to the right of property embodied in Article 1”, since the claimants “had built up a clientèle” which constituted an asset. Netherlands’ refusal to register the claimants as certified accountants had interfered with that possession because the claimants had shown that the value of their clientèle and of their business had fallen. Thus (a) there was a possession in the form of goodwill represented by an established clientèle; and (b) that possession had been shown to have been interfered with (at paras 39, 41/42). However, that interference was justified, so that there was no breach of art 1FP.

In Karni v. Sweden (1988) 55 DR 157, the claimant was a doctor who became affiliated to Sweden’s social security system. Subsequently, he was excluded from affiliation and as a result had to close down his medical practice. The Commission said that “the vested interests in the applicant’s medical practice” may be regarded as “possessions”, but that his disaffiliation did not amount to deprivation of property, since the doctor could still practice privately. At most his property was subject to “control” within the second paragraph of art 1FP, but such control was justified. Little insight is given as to the nature of the applicant’s possessions, but presumably they reflected the goodwill or clientele in his practice. At any rate, it is clear that the affiliation itself was not regarded as a possession. There was no difficulty about showing interference, since the practice had to close down.

In Tre Traktörer Aktiebolag v. Sweden (1991) 13 EHRR 30, a restaurant lost its liquor licence. The European Court found that the withdrawal of the licence had had an adverse effect “on the goodwill and value of the restaurant”. These “economic interests” connected with the running of the restaurant were possessions within art 1FP. There was therefore an interference with the right to peaceful enjoyment within the first sentence of the article. However, there was a control of use rather than a deprivation of possession and the withdrawal of the licence was justified (at para 62). Once again, the possession in question was not what the state provided (here the licence) but the restaurant’s economic interests (what in Karni had been called “vested interests”).

In Denimark Limited v.United Kingdom (2000) application no 37660/97, the applicants, who ran businesses connected with shooting or the manufacturing or selling of firearms, complained that government firearms legislation badly affected their business and profitability. The (third section of the) European Court said (at pages 8/9):

“The Court recalls its case-law that goodwill may be an element in the valuation of a professional practice, but that future income itself is only a “possession” once it has been earned, or an enforceable claim to it exists (no. 37683/97 Ian Edgar [Liverpool] Ltd. v. the United Kingdom, Dec 25.01.00, Section III, see also…Van Marle…The Court considers that the same must apply in the case of a business engaged in commerce. In the present case, the applicants refer to the value of their businesses based upon the means of earning an income from those businesses as “goodwill”. The Court considers that the applicants are complaining in substance of loss of future income in addition to loss of goodwill and a diminution in value of their assets. It concludes that the element of the complaint which is based upon the diminution in value of the business assessed by reference to future income, and which amounts in effect to a claim for loss of future income, falls outside the scope of Article 1 of Protocol No. 1.”

However, the Court did not have to make any findings relating to that distinction, nor as to whether there had been any interference with possessions properly so called, because it went on to hold that the firearms legislation was in any event a justified control of use. In this passage, the Court seems to be saying that, for the purpose of distinguishing between an existing possession (viz goodwill consisting in clientele) and a mere expectation of future income, a substantive rather than formal test will be applied. Thus there will be no interference with possessions within art 1FP if the value of a business (including, presumably, its goodwill) declines only in so far as loss of future income is anticipated. The practical difficulties of this distinction did not have to be explored in that case.

In Wendenburg v. Germany (2003) application no 71630/01, the applicants were German barristers who complained that their exclusive rights of audience in certain appellate courts had been removed by a decision of Germany’s constitutional court. The (third section of the) European Court (a) decided that the applicants’ practice amounted to a possession, and in doing so clearly distinguished between “existing possessions” which are protected and “future earnings” which are not, citing Denimark and Ian Edgar as well as Van Marle (the relevant passage at page 23 is quoted by Auld LJ at para 24 above); and (b) said that it did not need to decide whether there had been any interference with that possession because, again, any interference was justified (at 24). I would respectfully observe that the rationalisation of the decision at (a) is, as in previous cases discussed above, that a professional practice, like a business, may, by reason of its clientele, be “entities of a certain worth that have in many respects the nature of a private right and thus constitute assets and therefore possessions”. The Court then continued (at 23):

“In this context, it does not matter whether the applicants acquired the possessions by taking advantage of a favourable position, or solely through their own activities. When dealing with the protection of privileges accorded by law, the Convention is applicable where such privileges lead to a legitimate expectation of acquiring certain possessions. That is the case here.”

This is the high-water mark of Dr Malik’s case, but the passage is subject to interpretation. Mr Engelman submitted that it renders a mere legitimate expectation, if supported by a privilege accorded by law, a possession within art 1FP. I am doubtful about that, however. The whole context is that the practice and clientele are existing assets or possessions. That context is underlined in the opening words of the cited passage, which speaks of the applicants having “acquired the possessions” albeit with the aid of a favourable position (here, a privilege accorded by law). There is no sign, however, that that privilege, the exclusive rights of audience, was itself accorded the status of a possession.

In R (Countryside Alliance) v. Attorney General [2005] EWHC 1677 (Admin), [2006] EuLR 178 (the Divisional Court), [2006] EWCA Civ 817, [2006] 3 WLR 1017 (the Court of Appeal), this jurisprudence was considered by our national courts. The claimants complained that the Hunting Act 2004 had variously deprived them of their livelihoods or of the value or goodwill of their businesses, or of contractual rights or the usefulness of physical possessions. To some extent, the applicability of art 1FP was not in issue, for as the Divisional Court recorded:

“166.

The defendants accept that the Hunting Act interferes with the peaceful enjoyment of possessions or controls the use of those possessions in as much as it prevents individuals from using land, animals and goods which they own for the purposes of hunting wild mammals with dogs and to the extent that the claimants can establish that the Hunting Act has the consequence of diminishing the value of land or other property or damaging the established goodwill of a business.”

To that extent, however, the Divisional Court, upheld by this court, found that the interference, which it accepted was significant, had been justified.

For the rest, however, both courts accepted the submission of the defendants that Strasbourg jurisprudence (which included the cases cited above) did not protect the ability to earn future income. The Divisional Court accepted the defendants’ submission as follows:

“169.

Mr Sales submits that there is a clear distinction in Strasbourg jurisprudence for the purposes of Article 1 between the valuable goodwill of a business and the ability of a person to earn future income. The first is a possession: the second is not. The first is marketable: the second is not. There is no intermediate “possession”, being the livelihood of a self-employed person. A self-employed person may or may not have marketable goodwill. If he does, it will be a possession. If the livelihood of a self-employed person is in truth no more than his (unmarketable) personal ability to earn future income, that is not a possession…

174.

In our judgment Mr Gordon has no persuasive answer to Mr Sales’ analysis that there is no middle position, occupied by the livelihood of a self-employed person, between marketable goodwill and future income. In so far as the Scottish courts may have decided otherwise, we respectfully disagree. Whether individual claimants in the present proceedings who are self-employed have marketable goodwill is beyond our present competence to decide.”

The Court of Appeal expressly upheld the Divisional Court’s decision in this respect (at para114).

It may be observed that, although Wendenburg was before both courts, and the divisional court quoted from it (at para 172), it did not feel the need to refer in terms to the passage cited at para 24 above. I agree with Auld LJ that there is no intermediate ground between a vested possession and future income, whether described in terms of livelihood or glossed in terms of legitimate expectation. I do not think, however, that the European Court was minded to say that there was.

The distinction between marketable goodwill, or at any rate that goodwill which it is acknowledged is a vested possession, and what the European Court describes as being merely a present-day reflection of anticipated future income, has never had to be determined on the facts. That such a distinction may turn out to be difficult, possibly even unworkable, given that the present-day value of any business will inevitably reflect its future profit-earning capacity, has been highlighted by the analysis of Mr Kenneth Parker QC in Nicholds & Ors v. Security Industry Authority & SSHD [2006] EWCH 1792 (Admin). One solution may be that suggested by Countryside Alliance and Nickolds, looking only to marketability. I am not sure of that, however, for two reasons: one is the substantive distinction drawn by Denimark; the other is the emphasis placed by the Strasbourg jurisprudence on goodwill as a possession in the case of professionals with respect to their clientele. I suspect that such goodwill is not readily marketable: on the other hand, I can conceive that a professional practice can perhaps only or best be thought of as involving a vested possession in terms of the goodwill consisting in its clientele.

In the present case, however, this difficulty does not need resolving, for, as Auld LJ has pointed out (at para 23 above), regulation 3 of the Primary Medical Services (Sales of Goodwill and Restrictions on Sub-Contracting) Regulations 2004 (“may not sell the goodwill of their practices in any circumstances”) effectively means that an NHS doctor’s goodwill has no economic value. As such, I do not see how it can be regarded as an asset or, therefore, a possession for the purposes of art 1FP. It is neither a physical thing (land or chattels) nor a right or other chose in action, nor an asset of any kind. In Aston Cantlow v. Wallbank [2003] UKHL 37, [2004] 1 AC 546 Lord Hobhouse of Woodborough said (at para 91) that art 1FP’s “possessions” applied “to all forms of property and is the equivalent of “assets”.” See also Van Marle (at para 41): “an asset and, hence, a possession”.

Collins J did not found himself on Dr Malik’s goodwill as a possession, but on his inclusion in the performers list. He said:

“38.

In this case, inclusion in this list is akin to the possession of a licence. While the goodwill of the practice is not marketable, the inclusion has an intrinsic value in that it enables the doctor to practise. Since the amount of his remuneration will be affected by his patient numbers, suspension may well affect the economic value to him of his practice. Thus inclusion on the list has a present value apart from the right to future income and, as it seems to me, the decision in Van Marle v Netherlands supports the view that it can and does amount to a possession. The Countryside Alliance case is distinguishable since it was concerned with a self-employed person’s livelihood and not with his possession of a licence or its equivalent which enabled him to work. I think the approach of the Court of Appeal in the Crompton case was correct.

39.

I am therefore persuaded that inclusion in the list is a possession within art 1PI. If the suspension had been properly and lawfully imposed, I have no doubt that the interference in the right of peaceful enjoyment would have been proportionate and so justified. But the suspension was unlawful for the reasons I have given and so the interference was not justified. Thus if the claimant can establish that he has suffered recoverable damage he may be entitled to some sums to recompense him for such loss. Since he should have been receiving payment which should have maintained his income, he may have difficulty in establishing any loss. However, I am not in a position to decide that issue.”

The first question in the light of this reasoning and the submissions on appeal is whether the analogy between inclusion on the performers list and the grant of a licence is accurate and helpful. In my judgment it is not. As Auld LJ has shown, licences come in all forms. Some licences are valuable assets in their own right, such as a fishing licence attached to a vessel and transferable with it. It may be that planning permissions fall into that category. Other licences are valuable only in the sense that they give value or greater value to some other asset. In such a case, the jurisprudence considered above, such as Tre Traktörer itself in the case of a liquor licence, shows that the possessions in question which need to be considered are the underlying assets, not the licence. So also in Karni, which in its way is the closest authority to the facts of the instant case, it was not the affiliation to Sweden’s social security system which was regarded as the possession with which there had been interference by reason of its withdrawal, but the doctor’s “vested interests” in his practice which had had to be closed down. In Crompton v. Department of Transport [2003] EWCA Civ 64 this court was prepared to say, in the absence of any respondent, that a road haulage operator’s licence was itself a possession within art 1FP, but that does not seem to me to assist very much. There were plainly underlying assets in respect of which an art 1FP submission could be made; and see In re Muck It Ltd [2005] EWCA Civ 1124, [2006] RTR 91 at paras 52/53 and 72, where the submission that Crompton was in relevant respects decided per incuriam was made but did not have to be decided.

In Legal & General Insurance Ltd v. Kirk [2002] IRLR 124, referred to by Auld LJ at para 40 above, Jonathan Parker LJ said this:

“41.

In my judgment, the instant case is clearly distinguishable from a case in which a public authority has granted a licence to carry on a particular trade. One can readily see why, in such a case, the economic interests which derive from the grant of such a licence may fall to be treated as, in effect, rights of property. But that element is not present in the instant case. Accordingly I cannot accept that the appellant’s right to seek a particular type of employment (assuming such a right can be said to exist) can constitute a ‘possession’ within the meaning of the Article.”

That analysis is, in my judgment, consistent with the propositions that (a) licences may differ one from the other in terms of being the possible subject-matter of art 1FP; (b) a licence may itself fall to be distinguished from the economic interests which underlie or derive from it and which are themselves to be treated as possessions; and (c) a licence or permission or qualification to seek a particular type of employment may not be a possession.

In R (Royden) v. Wirral MBC [2002] EWHC Admin 2484, [2003] LGR 290, the issue was whether the “premium value” of a hackney carriage licence had been interfered with by a decision pursuant to a statutory amendment to remove the limit on the number of such licences. Sir Christopher Bellamy QC pointed out (at para 120) that there was Strasbourg authority (Pudas v. Sweden, application no 10426/83, DR 40, 234) that a licence to provide taxi services was not a “possession”, and said that he had difficulty accepting that an authorisation granted by the state to carry on a particular activity falls within art 1 FP. He also said (at para 123) that the relevant property in Tre Traktörer was not the liquor licence but the underlying assets. As appears above, I agree. But whether such a licence was a possession or not, he held in any event that it had not been shown that there was any interference because the value of such a licence was inherently subject to change.

In the present case, inclusion on the performers list is not a licence in itself, but a condition precedent to a doctor being able to perform services himself in the NHS (see para 5 above). Once on such a list, a doctor is qualified to obtain a contract to provide medical services himself (see para 7 above). If suspended from the performers list, a doctor does not thereby lose his contract, only his ability to provide services under it by his own personal performance. So in Dr Malik’s case, his suspension from the performers list did not prevent his contract continuing, only his personal performance as a sole practitioner under it. Even so, because his contract remained in force, the PCT continued to pay him his NHS remuneration, subject only to a 10% deduction to take account of expenses that he would otherwise have incurred. As the judge said (at para 6): “Thus suspension has the effect of preventing the practitioner from engaging in NHS practice so long as the suspension continues. But he will receive what is supposed to be the equivalent of his lost income in the meantime.” Dr Malik’s patients continued to receive medical services through a locum for whom the PCT paid. He continued to be entitled to practise as a doctor privately, from his surgery.

The judge did not say that inclusion on (or non-suspension from) the performers list was a licence, but that it was akin to one. In my judgment, however, this analogy does not suffice to render Dr Malik’s temporary suspension an interference with his possessions. Even a licence may not be a possession, and the analogy therefore breaks down. It seems to me that inclusion on the performers list is a matter of regulation, a condition or qualification for performing NHS services, rather than a possession or property right in itself. As Auld LJ has observed above (at para 44), one cannot readily speak of the inclusion on the list as an economic interest. It is not an asset. It has no monetary value. If one was looking for a possession in this context, one would look naturally to the NHS contract, but that remained on foot, and is not the subject matter of Dr Malik’s art 1FP claim. If there are any claims to be made under it, there are alternative means of redress (see Collins J at para 5 of his judgment).

In these circumstances, Mr Engelman has sought to bolster the claim to art 1FP interference by relying on other aspects of the case, such as Dr Malik’s goodwill, his patient list, his surgery and the rent previously paid by the PCT for it. However, it seems to me that none of these matters alters the position. For reasons discussed above, it is not possible for Dr Malik to show that his practice had any asset in the nature of goodwill separate from his anticipation of future income under his NHS contract. Reference to his patient list, which the judge made at the critical part of his reasoning (at para 38, see above), is in one sense somewhat more to the point, because at least it can be said that the numbers on his list had a direct bearing, as I understand the matter, on his NHS remuneration, since that had to be recalculated every three months in accordance with those numbers. However, even so, his patient list remained in place, continued to earn him remuneration under his contract, and even if those numbers fell somewhat during the period of his suspension, as to which there was no evidence before the judge and no findings, that seems to me to be simply a matter relating to future income rather than an interference with vested rights in possession. The judge said that inclusion on the list had “an intrinsic value” in that it enabled the doctor to practise and he went on immediately to explain that because the amount of remuneration would be affected by patient numbers, “suspension may well affect the economic value of his practice” (ibid). Although the judge then said that that reflected a present value apart from the right to future income, it seems to me that it plainly did not. The only way to measure any loss is by reference to future income.

As for Dr Malik’s surgery, there was no claim before the judge in this respect. In any event, the surgery is still available to him to practise from privately. He still possesses it. The fact that he cannot use it also to perform services under his NHS contract does not seem to me to amount to an interference in his possession of that surgery, any more than if, had his surgery been at his home, there would have been an interference with the possession of his home. It does not affect its value. The loss of the restaurant’s liquor licence in Tre Traktörer interfered with the restaurant’s “economic interests” in the form of its goodwill and business value but not in the restaurant itself, for all that liquor could no longer be served at it. In any event, the only interference now complained of is the economic effect of the loss of payment of the notional rent. There are no relevant findings in the judge’s judgment, because this aspect of Dr Malik’s claim was not before him: but Mr Coppel has informed us that upon Dr Malik’s suspension no locum could be found to perform medical services at the surgery because of concerns as to its condition. Nevertheless, the PCT sought and found a solution by obtaining locum cover at a neighbouring practice, the cost of which it has funded at very considerable expense. The payment of rent was in any event in the PCT’s discretion. In my judgment, such payments at best reflect loss of anticipated future income, and do not amount to a vested possession.

I therefore conclude that there has been no interference with Dr Malik’s possessions or right of property: no possessions within the meaning of art 1FP have been involved.

There has been no separate ground of appeal in relation to the separate question of whether, assuming that a relevant possession had been involved, there had been an interference with it for the purposes of art 1FP. It seems to me that it is strongly arguable that, if a relevant possession had been involved, then there would only have been an interference for the purposes of art 1FP if there had been material economic consequences: see Van Marle, Karni, and Tre Traktörer above. It is not as though any case of deprivation has been made. But it has not been found that there were any material economic consequences. As stated above, the purpose of the regulations was to ensure that during a period of temporary suspension the financial consequences for the doctor concerned were intended to be neutral; and there were mechanisms in place to resolve any disputes in that context.

The Strasbourg jurisprudence demonstrates in my judgment that the question of material interference is a separate question. It appears that this issue may have been side-tracked because, as the judge stated in the opening paragraph of his judgment, “it is accepted that, if he was to succeed in persuading me that the suspension or any part of it was unlawful, any subsisting claim for damages should be adjourned”. Thus it was that, in concluding, the judge observed (at para 39, cited above) that Dr Malik may have difficulty in establishing any loss. In the circumstances, however, where there has been no separate ground of appeal in this respect, I do not attach any significance to this consideration.

In conclusion, I agree that this appeal should be allowed. It is right to say that the judge was concerned, in the major part of his judgment, to deal with the PCT’s defence that Dr Malik’s suspension had been lawful. If that had been so, then, as the judge also observed in para 39 of his judgment, any interference with any possessions under art 1FP would have been justified. As it was, the judge was highly critical of the procedures adopted in suspending Dr Malik. Moreover, any suspension should have been limited under the regulations to a maximum of six months, which it was not. To that extent, Dr Malik’s complaint has been properly vindicated by the court’s judgment. However, it seems to me that Dr Malik’s financial remedies, if any, are to be found under his NHS contract rather than under human rights law. Even on the judge’s conclusion, that there had been a breach of art 1FP, he foresaw difficulties in sustaining a case for financial relief.

I agree with both judgments. But I wish to add some words, in appreciation of that which drove Collins J to his conclusion as to what was for him just one of a number of issues which he had to determine. Collins J was concerned at the damaging effect on the doctor’s practice caused by the unlawful suspension over a period of more than six months (see paragraph 38 of his judgment).

It is not difficult to understand why. It is all very well for a suspended doctor to exercise his contractual right to permit others to provide medical services on his behalf. But human nature being what it is, patients, even in the modern NHS, like to see “their” doctor and the damage to a doctor’s reputation caused by his suspension may never be rectified, even where the suspension is short and proves to be unlawful. The niceties of procedural impropriety are unlikely to weigh heavily with a valetudinarian in the East End of London.

My concern, and, I suspect, that of the judge, for any unjustified damage to the doctor’s reputation, even though, as Auld LJ points out (at paragraph 50) it was not proved, brings me to an essential issue relating to goodwill, which has arisen in the instant appeal. This court has had to grapple with the need to maintain a clear and workable distinction between goodwill which is a possession within the meaning of Art. 1 FP, and a right to future income, which is not.

Goodwill which is marketable is undoubtedly a possession, notwithstanding that its present-day value reflects a capacity to earn profits in the future. But does goodwill have to be marketable in order to be identified as a possession within the meaning of Art. 1 FP? Goodwill is composed of a variety of elements, which differs in different businesses and professions (see Lord Macnaghten in IRC v Muller & Co’s Margarine Ltd [1901] AC 217 at 233):

“It is the benefit and advantage of the good name, reputation, and connection of a business.”

The importance of the element of reputation is apparent in the Georgian Court of Appeal’s fondness for small furry animals. In considering the valuation of a business lease, Scrutton LJ recalled the division of the elements of goodwill on the cat, dog and rat basis (Whitesmith Motor Co. v Chaplin [1934] 2 KB 35 at 42). The cat will remain at the premises, even though the householder/trader has left; it represents the value to the business of the premises themselves. Maugham LJ, (at page 50), who did not find these distinctions of use, in any event thought rabbits of greater metaphorical utility than cats:

“If the cat metaphor is to be used, I would say that the cat may be attracted away by a gentle stroke on the back and the promise of a bowl of milk. But really there should be a fourth animal, the rabbit, to indicate the customers who come simply from propinquity to the premises…”

The class of customer who cares neither for the person of the trader nor the premises is the rat. But, of significance in the present appeal is the dog, who represents those customers who follow the trader because of his personal qualities or reputation. That is undoubtedly an element of goodwill, it is undoubtedly of value to a trader, and in particular, a professional, but it is not marketable (see the comments of Auld LJ at paragraph 36).

However, I agree, on the basis of the reasoning of Rix LJ (at paragraphs 59 and 66) and of Auld LJ (at paragraph 40), that that element of goodwill, “the dog”, which is founded on the doctor’s reputation, is not a possession within Art. 1 FP. It cannot be sold, it has no economic value other than being that which a professional man may exploit in order to earn or increase his earnings for the future. If the principle that the ability to earn future income is not a possession within Art. 1 FP is to be maintained, it must follow that if the element of goodwill which has or may be damaged is reputation, or the loyalty of past clients, that element is not to be identified as a possession. In Denimark terms, the doctor’s complaint is as to an unjustified loss of reputation, caused by unlawful acts. But, in economic terms, that is no more than a complaint of a risk of loss of future income. It is not possible to distinguish his claim that his goodwill has been damaged from a claim to loss of future income.

The submissions based on suspension from the Performers List fail for the reasons already given by Auld and Rix LJJ.