Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE FORBES
Between :
Bernard Palmer | Claimant |
- and - | |
East and North Hertfordshire NHS Trust | Defendant |
John Hendy QC and Mark Sutton (instructed by Clyde & Co) for the Claimant
Gerard Clarke (instructed by Bevan Brittan) for the Defendant
Hearing dates: 12th, 13th, 14th, 15th, 16th, 19th and 22 June 2006
Judgment
Mr Justice Forbes :
Introduction. The claimant (“Mr Palmer”) is a Consultant Surgeon, having been appointed a Fellow of the Royal College of Surgeons in 1973. He holds the qualifications of BChir (1969) (Cantab), MRCP (1972), FRCS (1973) and Master of Surgery (1981) (Cantab). Along with his extensive experience in general surgery, Mr Palmer has a particular interest in surgical oncology and gastroenterology.
On 1st April 1983, Mr Palmer commenced his appointment as Consultant in General Surgery at the Lister Hospital in Stevenage, employed by the NW Thames Regional Health Authority. Thereafter his contract of employment was transferred to the Defendant (The E and N Hertfordshire NHS Trust – hereafter “the Trust”).
Mr Palmer’s claim arises out of the alleged breach by the Trust of an agreement (“the agreement”) whereby certain alleged concerns relating to his professional practice as a surgeon were to be subject to an assessment by a body now known as the National Clinical Advisory Service (NCAS), formerly the National Clinical Assessment Authority (NCAA).
However in August 2005, the Trust withdrew from the agreement, essentially on the grounds that NCAS had failed to identify a hospital in which Mr Palmer could take a 6 month clinical placement as part of the agreed assessment process.
Mr Palmer also complains that, having withdrawn from the agreement, the Trust then sought to convert the process from one of performance assessment into one of disciplinary complaint, even though the Trust had expressly agreed that no such disciplinary process would be pursued.
It is Mr Palmer’s primary case that the Trust’s action in withdrawing from the assessment process and purporting to mount a disciplinary complaint against him broke the agreement that had been made in principle in March 2004 and reaffirmed and formalised in 2005, whereby the parties committed themselves to undertake the NCAS assessment procedure in accordance with the written terms of reference agreed, signed and exchanged by the parties.
Mr Palmer contends that the agreement was contractually binding on the parties. On Mr Palmer’s behalf, Mr Hendy QC submitted that the agreement could either be regarded as a freestanding agreement or as a consensual variation of the underlying contract of employment. It is Mr Palmer’s case that the agreement fundamentally affected certain essential features of his employment contract and that the Trust was obliged to honour its terms.
For its part, the Trust contends that the agreement never had the status of a binding contract. It is said that there was no intention to create legal relations, the terms of the agreement are too uncertain, it is unsupported by consideration and, in any event, if it was a contract it was discharged by frustration.
It is appropriate to mention at this stage that Mr Palmer’s secondary argument is that, whether or not the agreement was binding in itself, the Trust’s conduct in unilaterally terminating the agreement is capricious and unfair such as to amount to a breach of the mutual trust and confidence obligation that is implied into every contract of employment: see Malik ~v~ Bank of Credit and Commerce International SA (1997) IRLR 462. In the course of his speech in that case, Lord Steyn formulated the term as follows (see paragraph 54)
“The employer shall not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee ”
The Relief Sought. The principal relief sought by Mr Palmer is appropriate injunctive relief (i) to restrain the Trust from breaking its contractual obligation to adhere to the assessment process and (ii) to restrain the Trust from purporting to commence or continue any disciplinary process in respect of the issues that gave rise to the agreed NCAS performance assessment. To the extent that Mr Palmer may be entitled to any award of damages, it is agreed that the assessment of those damages should be adjourned to be dealt with separately.
The Issues. It was common ground that the main core issues in the case are as follows.
Was there an enforceable contract that the matters of complaint against Mr Palmer would be dealt with by way of an NCAS assessment?
If so, did the Trust act in breach of that contract in withdrawing from the assessment process in August 2005 or was the contract frustrated or otherwise discharged so that the Trust was entitled to withdraw?
Was the Trust entitled to instigate disciplinary proceedings against Mr Palmer following its withdrawal?
In the event that this claim succeeds, what is the appropriate form of relief to which Mr Palmer is entitled?
The Facts. I now turn to set out the relevant factual circumstances of this case as I find them to be in the light of the evidence that I have heard, read and considered. I should say at once that I do not find Mr Palmer to have been an evasive and unhelpful witness as suggested by Mr Clarke on behalf of the Trust. Undoubtedly there were occasions when he was circumspect and cautious in his approach to a question. However I have no reservations about his basic integrity and truthfulness. In my view he was a witness of truth and his recollection of events is accurate and reliable.
Since the central issue in the case is the efficacy of the agreement, the factual circumstances can be limited mainly to those necessary to deal with that issue.
Unfortunately, for some time there had been a somewhat unpleasant atmosphere in the Department of Surgery at the Lister, apparently caused by professional rivalry and hostility between some of the surgeons. I accept that Mr Palmer genuinely believes that he has been subjected to a great deal of this unfortunate rivalry and hostility and that one of the departmental colleagues who had been particularly antagonistic towards him has been Mr Hilary Thompson, another Consultant Surgeon.
On 27 November 1998, Ms Heather Lawrence (then the Trust’s Chief Executive) wrote to Mr Palmer in the following terms:
“Dear Mr Palmer,
Thank you for meeting with Dr Farrington and myself today to discuss a number of issues arising out of your current situation. This letter aims to summarise the points for you:-
I understand that Community Hospitals will be referring your private practice to the GMC. I explained that we had taken advice and as a consequence would be writing to the GMC to inform them of the action taken here at the Lister Hospital to investigate your NHS practice. The file will be available to the GMC should they wish to see it as part of their investigation.
We discussed the impact of the decision made by Community Hospitals on your NHS practice. You explained that referrals had reduced but you fully expected these to rise again over time. As you have a heavy caseload, this does not present a problem at present.
We explained that we would like to meet you with your general surgical colleagues to discuss the implications this may hold for general surgery.
We requested that you cease to take any gynaecological work”
Ms Lawrence’s letter appears to have been prompted, at least in part, by a complaint that had been made against Mr Palmer in respect of an operation he had recently carried out at the Pinehill Hospital (the Community Hospitals referred to in the letter) as part of his private patients’ practice. It is not necessary to go into any detail relating to the complaint, save to say that it was not made by the patient and was later dismissed by the GMC at a preliminary stage without the need for any formal hearing.
Having received Ms Lawrence’s letter, Mr Palmer was understandably concerned to have received, in effect, an instruction to cease undertaking all gynaecological work. He discussed the matter with various colleagues and then replied in writing on 4th December 1998. There is no doubt that the views he expressed were those of his colleagues as well as his own. What he said was this:
“Thank you for meeting Julia Hollywood of the BMA and myself on Friday 27th November. In your letter following this meeting you included the statement - “We requested that you cease to undertake any gynaecological work”. I would be interested to know why this specific request was made.
I have discussed this request with Mr Tom Holme, the lead clinician of General Surgery, Mr Hilary Thompson, Chairman of Lister MAC and General Surgeon, and Mr Selvakumar, General Surgeon, and we feel that this request is unreasonable for several reasons.
1) Like all general surgeons, we are referred many patients with lower abdominal pains. This can be caused by gynaecological, urological or other causes. As general surgeons we must be involved in diagnosing and excluding gynaecological causes and have been trained to do so. It is not practicable or to the patients’ advantage for all such patients to be seen by ourselves and another team in order to undertake relevant examinations in order to make a correct diagnosis.
2) In theatres we often come across other conditions that could be included in the work of another subspeciality. Thus a carcinoma of the rectum may involve gynaecological structures and most general surgeons have been trained to, are competent to and do perform a hysterectomy at the same time. A coincidental ovarian cyst may be drained or excised. Operations for varicose veins may involve vulval varices. Laparotomies for intra abdominal malignancies may involve excision of a wide variety of structures such as large or small bowel, omentum, ovaries etc. It is not in the patients’ best interest to abandon operations or have long delays so as to involve another specialist if the surgeon is competent, confident and experienced in the area involved. This week I was asked to go to help a Gynaecologist in theatres because of uncontrollable intra-abdominal post partum haemorrhage.
3. If the Health Service is to go down this road of “boxing”, i.e. saying which structures or conditions are to be treated by which subspecialist, then the experienced gynaecologists would also need to cease to have anything to do with structures outside their designated area.
Thus they should not, as most do, remove the omentum for carcinoma of the ovary, resect or dissect tumour of the bowel or even perform simple extras such as removing skin polyps. Gynaecologists are known to band haemorrhoids and have performed haemorrhoidectomies, and take patients back to theatre for post-operative complications such as intestinal obstructions or wound dehiscences with good results.
It is both impracticable and goes against the practice of subspecialists throughout the country to request surgeons not to work outside their “box”. There is no end to the problems such demarcation would cause. Should plastic surgeons work on parotids and perform block dissections of lymph nodes? Should gynaecologists do cystoscopies? Should urologists repair herniae, should ENT surgeons perform rhinoplasties? Should surgeons, not recognised as breast specialists, treat breast conditions?
Such demarcation is both unnecessary and would be very expensive to implement. What is needed is for all surgeons to know their own limits and training.
4. Advances in medical care often involve individual clinicians investigating overlaps between various specialities. For example, the results we have been having in patients with irritable bowel problems would not have been obtained if that condition had been” boxed” as a medical condition, where the anal problems are often thought of as secondary to a stress induced condition of the bowel. In the past these anal problems have often been over looked, and proctoscopies not even performed. Practical advantages for the Health Service have also resulted from this approach. The advances in the cosmetic treatment of patients with breast problems would never have occurred if breast surgeons had not been aware and then become trained in those areas where advances were being made in plastic surgery, and applying them for their patients’ advantage. The development of day case treatment of haemorrhoids would not have been possible without regional blocks to reduce what is otherwise often severe post operative discomfort. Strict demarcation would greatly inhibit medical advance.
Up until relatively recently General Surgeons were trained in all areas of surgery, and many senior surgeons have competently treated a wide range of conditions depending on their experience and confidence throughout their careers. Unless there is evidence of patients having excessive complications or other problems, what reason is there for these surgeons to be asked to change their established practices?
I hardly ever treat primary gynaecological conditions. These patients are not referred to me. Unrelated gynaecological abnormalities found routinely are referred on to gynaecologists. It is very rare indeed for a patient to particularly request me to treat a gynaecological condition and even then I would only do this after a frank discussion with the patient with the full support of the GP and if I am confident I can treat the condition well.”
Miss Lawrence’s response was both prompt and succinct. By letter dated the 8th December 1998, she replied to Mr Palmer in the following terms:-
“Whilst I have no desire to “box” Surgeons, it is important to ensure that where a sub-speciality or speciality does exist and is available on site then referral should be made appropriately.
As you say in your letter, you hardly ever treat primary gynaecological conditions and that normally these patients are not referred to you. Should such a referral occur, all I am asking is that you consult with a Consultant Gynaecologist.”
I accept that Mr Palmer endeavoured to adhere to this instruction from Ms Lawrence. However, during the four and a half years prior to his suspension, Mr Palmer did occasionally undertake major abdominal surgery (such as the de-bulking of tumour obstruction of the bowel), which incidentally involved gynaecological structures. He did this because he considered himself fully competent, trained and experienced to undertake such procedures and he did so entirely openly. At no stage during this period was it ever suggested to Mr Palmer that he was transgressing the boundaries that Ms Lawrence had instructed him to observe in the correspondence to which I have already referred.
Between 1998 and Mr Palmer’s suspension in 2003, the unpleasant atmosphere within the department appears to have continued. I accept that Mr Palmer genuinely believes that there were a number of episodes of obstructiveness and an “orchestrated attempt” by some of his departmental colleagues to undermine his professional standing. However, it is not necessary for the purposes of this judgment to express any concluded view as to whether Mr Palmer’s belief is well founded.
It was against this background that, in June 2003, the Trust’s Deputy Medical Director Dr Thiagarajan, asked Mr Thompson to comment in writing upon the management of two patients under the care of Mr Palmer and upon whom he had carried out operations in the early part of that month. The source of any complaint that gave rise to Dr Thiagarajan’s request remains obscure, although the Trust have acknowledged that there are no records of any oral complaint, nor was there any letter of complaint from either of the patients in question.
However it seems that the Trust’s senior management took an early view that Mr Palmer had transgressed Ms Lawrence’s 1998 instructions. Mr Thompson’s resulting written report date 19 June 2003 is headed “Re: Operations performed for gynaecological pathology by Mr Bernard Palmer”. After giving what appears to be an accurate factual summary of the medical history in each case, Mr Thompson concluded his report with the following comments:
“The imaging and raised tumour markers in both these patients are consistent with the diagnosis of ovarian malignancy and this appears to be the diagnosis made by Mr Palmer. However no referral was made to a Gynaecologist. It is accepted practice that such patients should be referred to a Gynaecologist, even though the expertise of a Gastrointestinal Surgeon may be required if the tumour is causing intestinal complications. Cancer management is multidisciplinary and, with ovarian cancer, the lead would be a Consultant Gynaecologist. Patients should be referred to specialists in their disease and then management co-ordinated by the Multidisciplinary Team.”
Mr Palmer has always acknowledged that he carried out the operations in question. However, he has always maintained and still maintains that in carrying out those operations he did not transgress the instructions given to him by Ms Lawrence in November 1998, as amplified or explained by her letter dated 8th December 1998. In particular, Mr Palmer has always maintained that neither case involved treatment of a primary gynaecological condition and that there was, therefore, no requirement that he should consult with a Consultant Gynaecologist.
I accept that Mr Palmer’s views are genuinely held and are not ones that can be easily dismissed as ill founded. However, I also accept that it is the Trust’s firmly held opinion that Mr Palmer did contravene Ms Lawrence’s instructions. It is common ground that, in the absence of expert guidance in the matter, it is not possible for me to express any concluded view on this aspect of the matter (other than to acknowledge the opposing genuinely-held views of the parties) nor is it necessary to do so for the purposes of this judgment.
Having considered Mr Thompson’s report, the Trust’s Medical Director, Dr Jane McCue, came to the conclusion that it raised a number of serious concerns with respect to Mr Palmer’s clinical practice. She carried out her own review of the records and decided that “the way forward” was to discuss the matter at a meeting with Mr Nick Carver (the Trust’s Chief Executive), Mr Danny Mortimer (Director of Human Resources), Mr Noel Scanlon (Director of Nursing) and Dr Thiagarajan (Deputy Medical Director). That meeting duly took place on 3rd July 2003.
Mr Carver was only present for part of the meeting on 3rd July 2003. However, notwithstanding Mr Carver’s evidence to the contrary, I am satisfied that the decision to suspend Mr Palmer was taken at the meeting on 3rd July 2003. In my judgment, it is clear that the decision to suspend Mr Palmer was taken before Mr Mortimer and Dr McCue contacted NCAS (then NCAA) on the same day in order to seek its assistance.
The NCAA representative who discussed Mr Palmer’s case with Mr Mortimer and Dr McCue on 3rd July 2003 was Mr William Beaumont. In his letter to Mr Mortimer dated the same day, Mr Beaumont recorded their discussion in the following terms:
“Re: NCAA advice summary and follow up arrangements.
Dear Mr Mortimer
Following your request for NCAA advice on 03.07.2003, I am writing to provide, for your records, a brief summary of the issues and action points that we discussed on that date.
Brief Summary of concerns
You have concerns about the clinical practice of your colleague Mr Bernard Palmer, with particular reference to:-
1) Mr Palmer operating outside his area of expertise.
2) His apparent difficulties in functioning within a multi disciplinary setting.
3) Informed patient consent not being sought or obtained.
4) These issues are considered to be serious and repetitious.
5) Significant concerns regarding patient safety.
Agreed Action
It was agreed that:-
1) The trust will seek from Mr Palmer, at a meeting to be held in week commencing 14.07.2003, a voluntary restriction on all UK surgical practice pending a decision as to the appropriateness of an NCAA assessment. This restriction is being sought in the interests of patient safety, and as alternative to suspension.
2) The Trust will provide NCAA with the documented evidence of the previous G.M.C. and Royal College interventions.
3) Dr McCue and I will review the case again by telephone on Friday 11.07.2003, to consider any other actions which may be required.
…
I hope you have found the process so far to be informative and helpful.”
It is clear from the terms of Mr Beaumont’s letter, that NCAA’s preference was that there should be a voluntary restriction on all Mr Palmer’s UK surgical practice, rather than his suspension. Mr Beaumont was clearly under the impression that the Trust had agreed to seek Mr Palmer’s agreement to such a course being taken, pending a decision as to the appropriateness of an NCAA assessment. However, it was apparent from the evidence of both Dr McCue and Mr Mortimer that both considered that they had not agreed to seek Mr Palmer’s agreement to a voluntary restriction. Notwithstanding the discussion with Mr Beaumont, the Trust’s decision to suspend Mr Palmer remained unaltered. Accordingly, for that reason, no steps were taken to seek Mr Palmer’s agreement to the voluntary restriction mentioned by Mr Beaumont.
Mr Palmer was informed of the decision to suspend him on 14 July 2003 at a meeting he attended with Mr Mortimer and Mr Carver. Again, no minutes were taken of the meeting, although the purported reasons for the suspension were confirmed in a letter from Mr Carver to Mr Palmer dated 14th July 2003, as follows:-
“I write to confirm the details of our meeting on the above date, at which Daniel Mortimer, Director of Human Resources Organisational Development was also present.
I explained the Trust has serious concerns regarding the treatment of two patients on 5th and 10th June 2003- and There are three areas of concern:-
• You operated outside your area of expertise, by carrying out gynaecological procedures
• The consent of the patients
• Failure to manage the patient in a multi-disciplinary framework
These areas of concern have been raised with you in the past, and are areas where it appears that the Trust has issued clear instructions to you. You acknowledged correspondence with previous Chief Executives but rejected any suggestion that you were not competent to carry out these procedures. You also noted that the patients had not themselves complained to the Trust.
I explained that, in light of the serious nature of the concerns I had outlined, I was placing you on suspension. This was pending an investigation during which you will have the opportunity to respond to the allegations made. We explained that the decision to suspend reflected the serious nature of the concerns and would ensure that you were protected from any further allegations. It would also enable proper time for full investigation.
I confirmed that the Trust had requested the assistance of the NCAA in investigating this matter and we hoped to meet with them in early August to discuss this request. Your suspension would therefore be initially for one month, and you would be updated on the progress of the investigation.”
It is to be noted that under the terms of the disciplinary procedure that was then current the maximum period of suspension was 96 hours, subject to extension by the suspending officer after consultation with one of the Disciplinary Assessment Group. Although there was no provision for any strict overall time limit for the total period of the suspension, there was an express obligation to keep the suspension under review.
It is therefore clear that the Trust’s approach to Mr Palmer’s suspension was not in accordance with the then current procedures. However, the apparent reason for that was the Trust’s preference for dealing with the case by means of an NCAA assessment as opposed to disciplinary action. In a letter dated the 15th August 2003, addressed to the Chair of the Trust’s Medical Services Committee, Mr Mortimer explained the Trust’s approach in the following terms:-
“B Palmer
I write further to our meeting 12th August 2003, when I was representing the Chief Executive.
I confirmed that the Chief Executive had suspended Mr Palmer for an initial four week period pending an NCAA assessment. I explained that the arrangements for this were taking longer than expected, and the Trust wished to extend Mr Palmer’s suspension.
We discussed the arrangements in place and you registered your desire to see this matter quickly resolved. In response to point you raised I confirm that the Trust was not seeking to pursue disciplinary action against Mr Palmer but was seeking the involvement of the NCAA.
We agreed that the suspension of Mr Palmer should continue until the NCAA process was clear. We agreed that a DAG would be convened at that point to consider the suspension, and that at that point you would agree a third member with the Medical Director. We noted that this was a variation to the procedure set out, but also noted that this was not a disciplinary matter.
I hope that the process can move forward during September, and will update you shortly.”
In the period that followed Mr Palmer’s suspension and the Trust’s decision to deal with the matter by way of an NCAA assessment, there were protracted negotiations between the parties as to the terms of reference of the proposed NCAA assessment. In my view it is not necessary to go into the details of those negotiations, except to say that it is clear that Mr Palmer did not consider that the complaints against him justified any such assessment. However he was prepared to consider undergoing an assessment, provided that the terms of reference were broad enough to address the problems in the Department of Surgery which he considered were fundamental to a proper consideration of the complaints in question. In all the circumstances, I do not regard his attitude and approach as being unreasonable.
Ultimately, Mr Mortimer accepted on behalf of the Trust that the NCAA assessment should address not only Mr Palmer’s personal position but the wider issues within the Department of Surgery. In a letter to Mr Beaumont dated 1st October 2003, Mr Mortimer wrote as follows:
“Neither Mr Palmer nor Mr Mitchell has offered any information to substantiate statements made regarding the Surgical Department at the Lister Hospital, and neither have they offered further details regarding their assertion that Mr Palmer is subject to victimisation by his colleagues. Nonetheless the Trust would welcome an assessment of organisational and team issues, as part of a NCAA assessment of Mr Palmer. We are also happy to discuss any role the NCAA feel CHI/CHAI might be able to play.”
Negotiations with regard to the principle of there being an NCAA assessment and its likely terms of reference continued throughout the latter part of 2003 and the beginning of 2004. I accept that the approach adopted by Mr Palmer and his legal advisers was cautious. It is not necessary, for the purposes of this judgment, to go into any detail with regard to the reasons for that caution. Suffice it to say that, having regard to Mr Palmer’s genuinely held belief that there was no need for an assessment and that he was a victim of Departmental hostility, his cautious approach to the matter is understandable. However, what is important is that agreement in principle was eventually reached at a meeting that took place on the 23rd March 2004. The meeting was chaired by Professor Alastair Scotland, the Chief Executive and Medical Director of the NCAA, and Mr Palmer and Mr Carver were amongst those present. The minutes of the meeting recorded the matters that were agreed in principle, as follows:
“Minutes of meeting held at the NCAA on 23 March 2004
Present – Alistair Scotland – NCAA Medical Director & Chief Executive (Chair)
William Beaumont - NCAA adviser
Tinku Mita – Case manager
Nick Carver – Chief Executive East & N Herts NHS Trust
Mr B Palmer – Consultant surgeon
Mr Mitchell – Clyde & Co
Agreed Points
All parties to the discussion agreed that the NCAA assessment is the appropriate way to progress an overall clinical re-entry programme for Mr Palmer to the East and N Hertfordshire NHS Trust subject to the following conditions:
Mr Palmer’s agreement is dependant on discussions with his family.
Mr Palmer, the Trust and NCAA will formally agree the Entry into Assessment, the Terms of Reference, and the members of the assessment team. All these stages should occur concurrently. The target date is 30 April 2004 subject to (1) above.
The Trust agree to lift Mr Palmer’s suspension from the date that formal agreement of the above steps is reached..
With the NCAA’s assistance, Mr Palmer will be found a suitable clinical attachment for a period of six months.
The Trust agrees to Mr Palmer returning to work at the Lister hospital within the framework of the overall clinical re-entry programme no later than six months from the date on which the formal agreement to an assessment is signed.
The Trust agrees to forgo disciplinary action relating to any matters which occurred prior to 23 March 2004.
Next steps
Tinku Mitra to circulate a note of the agreed points to all parties
All parties to formally accept agreed points in writing
William Beaumont to explore possible placements, and the bespoke assessment with NCAA Assessment Experts
Mr Palmer and NCAA to meet to discuss placements and the assessment process in further detail.”
It is to be noted that that the parties agreed that there should be a formal agreement with regard to the assessment and its terms of reference (see points 2 and 5) and that the Trust agreed to forgo disciplinary action relating to any matters that had occurred prior to the date of the meeting (see point 6).
In the period that followed, there were further protracted negotiations with regard to the precise wording of the terms of reference. By its letter dated 22 December 2004, the Trust reaffirmed its acceptance of the “terms agreed” at the meeting on 24th March 2004, but required Mr Palmer to sign the NCAA terms of reference by 4th January 2005. Mr Palmer did so on 4th January 2005. For its part, the Trust signed the terms of reference on 9th February 2005. The signed and dated written terms of reference were then duly exchanged between the parties. So far as material, the terms of reference provided as follows:-
“TERMS OF REFERENCE FOR NCAA ASSESSMENT
Case 764
1.1 Summary of concerns
Concerns have been raised by East and North Hertfordshire NHS Trust (the Trust) about the performance of Bernard Palmer (the practitioner), consultant general surgeon, with regard to the following issues:
• The issue of the practitioner’s acceptance of and adherence to Trust protocols in respect of the need for Consultant Surgeons to operate only within their own recognised area of competence and expertise. In respect of cancer management procedures for patients with ovarian cancers, the practitioner’s practice with regard to the involvement of Consultant Gynaecologist Colleagues, and his acceptance of the need for Consultant Gynaecologist Lead should be reviewed even in cases where expertise of gastro-intestinal surgeon may assist where intestinal complications exist.
• The issue of the practitioner’s acceptance of the concept of clinical governance, and of the need for multi-disciplinary team working as the basis for all surgical practice within the General Surgery department at the Trust. Attention should be paid to practice in facilitating, and coordinating, the practitioner’s management of patients by reference to the Multi-Disciplinary Team.
• The Trust has raised the issue of the practitioner’s failure to obtain informed consent, and of the need to ensure that he complies with, and puts into effect, Trust policies and protocols with regard to the provision of information to patients, and of the obtaining of their informed consent to procedures.
1.2 Immediate work context
• The assessment will pay particular attention to the immediate working environment including working relationships between members of the multi-disciplinary team. The assessors will also consider the wider functioning of the department as it directly affects Mr Palmer’s practice.
Aims of assessment
The aims of an NCAA assessment are to:
clarify any areas of concern about the practitioner within the wider context of his/her clinical performance
identify factors that may be contributing to these concerns
make recommendations for addressing any difficulties identified
Assessment method
The NCAA assessment will normally consist of the components listed below which will be carried out in accordance with NCAA practice and procedures:
An occupational health assessment
A behavioural assessment
Review of information provided by the referring body and the practitioner
Medical records review
Direct observation of practice
Interview with the practitioner
Feedback from colleagues and patients
Review of the work environment.
…
Roles and responsibilities
The NCAA undertakes to:
conduct an assessment of the practitioner’s performance in accordance with these terms of reference and the NCAA’s procedures, using trained/briefed assessors working within NCAA guidelines
clarify strengths of the practitioner’s performance as well as areas for improvement
identify factors that may be contributing to the concerns
make recommendations to address any concerns identified about the practitioner’s performance
inform the practitioner and referring body prior to the assessment if any variation from the standard assessment process is required to ensure the NCAA undertakes a fair and effective assessment
provide the trust and practitioner with a report that brings together the findings from all the assessors and makes recommendations for a way forward
send a copy of the draft and final report in strict confidence, to a named individual in the appropriate post-graduate deanery, where educational recommendations are made
take into account comments on the draft report from the practitioner or the referring body, correct any factual inaccuracies and append to the final report the comments received
offer to facilitate a meeting between the trust and the practitioner to help the parties concerned to agree an action plan based on the recommendations of the NCAA report.
The Trust and the practitioner undertake to:
comply fully with the NCAA assessment process
provide any information requested by the NCAA that is necessary for the proper conduct of the assessment
work together to agree a reasonable action plan to implement the recommendations made by the NCAA following the assessment.
The practitioner undertakes to:
be available to take part in the various assessment components on the dates arranged by the NCAA
travel to the locations specified by the NCAA for assessment components which are carried out away from the practitioner’s normal place of work; for example the occupational health assessment and the behavioural assessment
agree to the NCAA contacting an agreed lead in the work place to make arrangements for the assessment
provide a medical certificate covering any period of ill health which prevents the practitioner from undertaking any component of the assessment.
Failure of the practitioner to comply with the terms of reference without reasonable cause may be interpreted as non-compliance with the NCAA assessment. In such a case, the NCAA may refer the matter to Trust.
The Trust undertakes to:
take any reasonable action that may be required and/or recommended by the NCAA
take responsibility for the arrangement of adequate locum cover to allow for the assessment to take place, in consultation with the practitioner.
In the exceptional case that locum cover is not available, the assessment will proceed subject to the NCAA making such adjustments to the process as deemed necessary.”
I am satisfied that the parties to the agreement, comprising the matters agreed in principle in March 2004 and the agreed terms of reference, intended that it should be contractually binding. At the 24th March 2004 meeting, the parties agreed the need for a written formal agreement and, once the written terms of reference had been agreed, each of the parties signed the written terms of agreement and carried out a formal process of exchange. As it seems to me, the parties’ intention to create legal relations between them is very apparent from those facts. Furthermore, in the course of his evidence, Mr Mortimer very frankly agreed that he regarded the agreement as legally binding upon the parties. I therefore reject Mr Clarke’s submissions to the contrary effect.
Mr Clarke also submitted the alleged contract was fundamentally uncertain because: (i) its performance was dependant entirely on the cooperation of a unknown and unknowable third party (i.e. the hospital at which the clinical placement would take place), (ii) the time scale originally proposed was inherently contradictory and no replacement timescale was ever agreed and (iii) the parties themselves were uncertain as to who was responsible for finding a placement for Mr Palmer.
I am not persuaded that the contract was void or ineffective for uncertainty for the reasons put forward by Mr Clarke or at all. The fact that the identity of a hospital willing to accept Mr Palmer’s placement for an assessment had not been established by the date of the agreed terms of reference, does not seem to me to create any uncertainty as to the material terms of the contract itself, it is a contingency that must be satisfied in the due performance of the contract.
Although there is a degree of tension between points 4 and 5 of the matters agreed at the 23 March meeting, it was perfectly clear from the evidence that the parties accepted that the clinical placement had to be found and the assessment completed within a reasonable time of the signing of the terms of reference. To the extent that there was no specific agreement between the parties to that effect, I am satisfied that such a term would be implied into the agreement in order to give it business efficacy.
I accept that there was no express provision in the agreement that specified the party who had the main responsibility for securing a clinical placement for Mr Palmer. However, that does not seem to me to be an uncertainty as to the terms of the contract, rather it is an indication that each of the parties had a responsibility for securing such a placement. Accordingly, if necessary and in order to give business efficacy to the contract, I am satisfied that a term should be implied into the contract that each of the parties was responsible for taking reasonable steps to secure a clinical placement for Mr Palmer.
Mr Clarke also submitted that Mr Palmer had provided no consideration for the supposed contract, because the Trust could lawfully require him to participate in the assessment process and he was contractually obliged to comply with that requirement.
I do not accept that submission. In my view, this contract was supported by consideration. I am satisfied that Mr Palmer’s agreement to submit to a temporary change in work place and to undergo a period of assessed practice in a different hospital, that would involve living away from home if necessary, and his agreement to undergo an assessment for which consent was obligatory constitute sufficient consideration. I therefore reject Mr Clarke’s submissions to the contrary effect.
The NCAA standard procedure and the Terms of Reference required that the first steps of the assessment process were to be occupational health and behavioural assessments. In conformity with his obligations under the terms of reference, Mr Palmer duly attended an occupational health assessment on 20th April 2005 and a two part behavioural assessment with an occupational psychologist on 20th and 27th April 2005. I am satisfied that Mr Palmer was anxious to progress the process of assessment, that he used his best endeavours to do so and that he still remains willing to complete it.
On 7th June 2005 NCAS wrote to Mr Palmer’s solicitors and stated that “we have not yet reached the stage of appointing assessors”. In the same letter, NCAS stated that it had “encouraging news” of a possible placement at Bedford. In the event, the opportunity of a placement at Bedford did not materialise, although there were some limited discussions between Mr Carver and his opposite number at Bedford.
Both the Trust and Mr Palmer appear to have assumed that the lead role in seeking a clinical placement was to be taken by Mr Beaumont at NCAS. However, I agree with Mr Hendy’s submission that the Trust was well placed to contact other Trusts at Medical Director and Chief Executive level in order to arrange a suitable placement. In my judgment the Trust was not entitled to assume that the burden in this regard rested solely upon NCAS’s shoulders. I accept Mr Hendy’s further submission that the Trust’s efforts in finding a suitable placement were, on any view, minimal.
On 21st July 2005, a meeting took place between Mr Mortimer and Dr McCue on behalf of the Trust and Professor Scotland and Dr Peter Old on behalf of NCAS. The lack of progress in identifying a placement was discussed. Professor Scotland advised the Trust that it was still technically possible to complete the NCAS assessment without the need for a placement, although he acknowledged that such an assessment might be of limited usefulness to the Trust. The Trust indicated that it would consider a response to the issues discussed and that it would contact Dr Old in due course.
Later the same day (i.e. during the afternoon of the 21st July 2005), there was a meeting between Mr Mortimer, Dr McCue, Mr Carver and the Chairman of the Trust. Although no minutes of that meeting were kept, it was at this internal meeting that the Trust made its decision to withdraw from the agreed assessment process. On 22nd July 2005, Mr Mortimer indicated to Dr Old on the telephone that the Trust would write to NCAS on the following Monday (i.e. 25th July) in order to outline its intentions.
The Trust’s promised letter appears to have been prepared in draft on 25th July 2005, but not sent until the 3rd August 2005. In his letter dated 3rd August, Mr Mortimer notified Dr Old of the Trust’s decision to withdraw from the process of assessment in the following terms:-
“I write further to our meeting on 21st July 2005 regarding the above clinician. Jane McCue, Trust Medical Director and Alistair Scotland, NCAS Director were also present.
We reviewed the agreement reached between the NCAA, Trust and Mr Palmer in March 2004. This agreement had been approved in January 2005 and linked the completion of a NCAA/NCAS assessment to the identification of a clinical placement for Mr Palmer and the lifting of his suspension. We noted that two elements of the assessment had been completed to date.
A number of efforts had been made to identify a suitable clinical placement for Mr Palmer. These included potential placements at Chelsea and Westminster Hospital, Bedford Hospital and Kings Lyn and Wisbech Hospitals. The NCAS had also had a number of discussions with the Royal College of Surgeons. However no placement has been identified.
The Trust asked Professor Scotland whether it was possible for an assessment to be completed without a clinical placement. He made clear that it was. He did however advise that there might be questions over the value of such an assessment as Mr Palmer had not been in clinical practice for two years. The NCAS position was however that it possible to complete the assessment, and that a partial assessment (based on the two elements already completed) was not appropriate.
Jane McCue and I have reviewed our meeting and the advice given by Professor Scotland with Nick Carver, Chief Executive. In light of there being no clinical placement for Mr Palmer we have taken the view that the assessment cannot be properly completed and we are therefore withdrawing our request made on 8th July 2003 that the NCAA/NCAS carry out an assessment of Mr Palmer.
The Trust has asked Mr Palmer to attend a meeting week commencing 15th August 2005 when it will inform Mr Palmer of this development and will outline the way forward.
Thank you for your assistance in this matter.”
On the 10th August 2005, Mr Mortimer wrote to Mr Palmer in the following terms:-
“Dear Mr Palmer.
Meeting 19th August 2005
I write to ask you to attend a meeting with Nick Carver, Chief Executive on Friday 19th August 2005 at 10.00am in his office, Lister Hospital.
The purpose of the meeting is to discuss the progress of the NCAS assessment and outline the way forward. I will accompany Mr Carver at the meeting and you may, if you wish, be accompanied by a friend or colleague, or by a trade union representative.
…
If you have any questions relating to this meeting please do not hesitate to contact me. I would be: grateful if you could confirm your attendance at this meeting with my office …”
In my view, given that the purpose of the meeting was to inform Mr Palmer that the Trust had decided to withdraw from the process of assessment (the decision to that effect having been taken nearly three weeks earlier), the terms of Mr Mortimer’s letter were less than helpful, if not actually misleading.
As it happened, on the 13th August 2005, Mr Palmer was notified by Mr Robert Greatorex, Regional Adviser to the Royal College of Surgeons, that a firm candidate for a clinical placement for the purposes of the agreed NCAS assessment had finally been found at Peterborough District Hospital. Mr Palmer was informed that the placement had been agreed in principle by the surgeons in the colorectal surgery unit at Peterborough as well as by the Medical Director of the relevant NHS Trust. The very promising nature of the potential placement at Peterborough has recently been confirmed in writing by Mr Alan Wells, Consultant Colorectal Surgeon at Peterborough, in the following letter to Mr Palmer’s solicitors dated 12 June 2006 (the truth and accuracy of which I accept):
“Dear Mr Mitchell
Re: Mr Bernard Palmer
I can confirm that 1 had a telephone conversation with you last year regarding the placement of Mr Bernard Palmer on the Colo-rectal Unit at Peterborough Hospital for a period of retraining and assessment. My fellow Colo-rectal surgeons, who would also have been involved in this exercise, were aware of the possibility of Mr Palmer coming to Peterborough. I also indicated to Mr Alan Turner, the Medical Director at the time and Mr Chris Banks, Chief Executive of Peterborough Hospitals, that I was in preliminary discussions regarding the aforementioned placement of Mr Palmer. I did point out to you, and everybody was fully aware, that my final decision would be made following a meeting with a representative from the NCAS in order that I may ascertain what was required from me before making my final decision but in principle the Cola-rectal unit, Mr Turner and Mr Banks were happy for me to consider accepting Mr Bernard Palmer”
Mr Palmer duly passed on the information with regard to the possible Peterborough placement to his solicitor Mr Mitchell. On 18th August 2005, Mr Mitchell wrote to Mr Wells concerning the placement, in the following terms:-
“Dear Mr Wells,
Re: Mr Bernard Palmer
I confirm that I am instructed by the Medical Protection Society on behalf of Mr Bernard Palmer, a Consultant General who is currently suspended from the Lister Hospital.
First of all, could I please thank you very much again for your constructive interest in this case and for kindly discussing with me on the telephone the proposed placement of Mr Palmer with your team, by way of a secondment from the Lister. I should perhaps add that it has previously been agreed that the Lister will lift Mr Palmer's suspension prior to the commencement of any placement. Whilst Mr Palmer, Mr Bob Greatorex and I are all very keen for this placement to, be confirmed, we also appreciate that it is of course subject to further discussion as to the precise arrangements and, in particular, the agreement of your Chief Executive.
As agreed when we spoke on the telephone, the next step was for me to contact the NCAS with a view to arranging a meeting in Peterborough with Mr Palmer, the NCAS and yourself to discuss the proposed arrangement. I would also like to attend that meeting primarily because, if Mr Palmer (or anyone else) wishes to have my advice on any particular point, I could provide that advice there and then, and without delaying matters; I can assure you that my presence would not turn the meeting into a legalistic process, and I would not of course interfere in clinical or organisational issues, save for providing advice, if required, on how these placements have worked (and worked successfully) in other cases in which I have been involved.
I have now spoken to the person concerned at the NCAS, Mr Bill Beaumont, but only briefly because he is in fact on leave this week. However, I have explained that there is now a proposal for a placement in Peterborough and the need for a meeting to discuss this, and Mr Beaumont and I are going to speak again early next week following his return from leave.
In the meantime, Mr Palmer has been asked to attend a meeting at the Lister Hospital this Friday, 19 August, at 10 a.m. "to discuss the progress of the NCAS assessment and outline the way forward". This meeting was in fact arranged before either Mr Palmer or I was aware of the proposed placement in Peterborough. We did suggest to Mr Palmer's Trust that perhaps, in view of the proposal now made, it might be sensible to postpone the meeting for a short time, but they have just told us that they want to go ahead with this meeting in any event.
So far, we have not identified Peterborough to those at the Lister as the location of the proposed placement. As I mentioned on the telephone, the reason for this temporary secrecy is simply and solely because, in my respectful view, it might be preferable for your Chief Executive to be told about this proposed placement by you, rather than for him to hear about it for the first time as rumour or on the grapevine. However, I think it is now going to be difficult to avoid telling the Lister Trust on Friday where this proposed placement may take place and, that being so, could I please leave it to your judgement as to whether or not you would wish to say anything to your Chief Executive at this stage, rather than risk him hearing a garbled account of the proposal on the grapevine. As I say, I am of course entirely happy to leave whether or not you do say anything at this stage to your judgment.
Finally, I mentioned to you on the telephone another case of mine in which the placement of a very competent surgeon had worked particularly well, and it occurred to me that you might find it helpful to speak to the Clinical Director and/or Medical Director of the "host" Trust about how it worked for them. If so, then subject to the necessary consents (which I feel sure will be forthcoming) I can pass the relevant names on to you.
Thank you very much again for your interest in and help with this case, and I hope to be in touch with you again next week, after I have discussed the matter in more detail with the NCAS, and have obtained some possible dates for a meeting.”
I am satisfied, that the proposed placement at Peterborough was a very real possibility. In my view, had it not been for the Trust’s withdrawal from the process of assessment, it is very probable that the placement would have gone ahead within a relatively short period of time. The fact that it did not do so was entirely due to the Trust’s decision to withdraw from the assessment process.
In the meantime Mr Palmer had replied to Mr Mortimer’s letter of the 10th August and confirmed that he was willing to attend the proposed meeting. He also informed Mr Mortimer that a suitable placement had been found for him, although he did not identify the Peterborough hospital. The reasons for not disclosing the identity at that stage were those indicated by Mr Mitchell in his letter to Mr Wells (see above) and were, in my view, perfectly sound ones. Mr Palmer made it clear that he was willing to go ahead with the proposed placement once it was finally confirmed and the necessary arrangements agreed. Mr Palmer suggested that the proposed meeting was no longer necessary in those circumstances. Mr Palmer’s letter was in the following terms:-
“Thank you for your letter of 10 August which I have now had an opportunity to discuss with the MPS.
I confirm that in principle I am of course happy to attend a meeting and that I am available on Friday. As I do not know Mr Rimmer, and the BMA are not familiar with the history and background to my case, I will be accompanied to any meeting by Dr Sherry Williams of the MPS and John Mitchell who has of course attended all previous meetings.
However, I am pleased to say that I was informed at the weekend that with the help of the Royal College of Surgeons, a suitable placement has at last been found for me and that, subject to final confirmation and agreed arrangements it should be possible for me to start this placement within the next few weeks. I hope to be in a. position to let you have details of the proposed placement within the next seven days or so. In the meantime, the MPS and I feel that it would be sensible to postpone Friday's meeting for a short time and indeed that meeting may not now be necessary at all.
I look forward to hearing from you and would be grateful if you could please confirm as soon as possible that Friday’s meeting has been postponed.”
On 17 August 2005, Mr Mortimer replied to Mr Palmer’s letter and confirmed that the meeting was to proceed. Again, characteristically, no indication was given that the Trust had decided to withdraw and Mr Mortimer made no comment about Mr Palmer’s news of the possible placement. I am satisfied that neither Mr Palmer nor his solicitor, Mr Mitchell, had any idea that the Trust was proposing to announce its withdrawal from the process of assessment at the meeting of the 19 August; see for example, Mr Mitchell’s letter of the 18th August 2005 to Mr Mortimer, which was in the following terms:-
“I understand that you and Mr Carver wish to go ahead with a meeting tomorrow at 10 a.m. and notwithstanding that it does now look as though a placement has been found for Mr Palmer.
As you will be aware, I have telephoned on two occasions and tried to speak to you, just to clarify the purpose of this meeting, so that we can make our final arrangements and preparations for it. However, assuming the position remains, as stated in your letter of 10 August 2005, that the purpose of the meeting is to discuss the progress of the NCAS assessment and to outline the way forward with regard to this assessment, then it has been decided that there is no need for Dr Williams from the MPS to attend as well as myself. However, if there has been any change to the purpose or scope of the meeting, and any other matters are to be discussed, could you please let me know immediately so that we can review the position with regard to who should attend.”
At the 19th August meeting, Mr Palmer was informed for the first time that the Trust had withdrawn from the process of assessment. I accept Mr Palmer’s evidence that Mr Carver showed no interest whatsoever in Mr Palmer’s views that a possible placement had been found. The decision to withdraw had been made and Mr Carver was determined to proceed down that course. He was not interested in finding out anything about the possible placement and so he asked no questions about it. I fully understand why, in those circumstances, neither Mr Palmer nor Mr Mitchell saw any point in going into the details of the possible placement. In my view, neither is to be criticised for not revealing the identity of the hospital in question. The Trust was simply not interested and made its disinterest very clear.
On the same day Mr Carver wrote to Mr Palmer setting out the Trust’s position in writing. So far as material, the letter was in the following terms:-
“Further to our meeting today I am writing to confirm the matters discussed. You were accompanied to the meeting by John Mitchell, Clyde & Co. Daniel Mortimer, Director of Human Resources was also present.
The Trust requested that the NCAA carry out an assessment of your practice in July 2003. A meeting in March 2004 between the NCAA, the Trust and you outlined a way forward for that assessment to take place over a six-month period, including the identification through the NCAA of a suitable clinical attachment for you so that your practice might be properly assessed. Sign up to the assessment process occurred in January/February 2005. To date a clinical attachment has not been confirmed and the assessment has not been completed. The Trust has therefore withdrawn its request of 8th July 2003 to the NCAS for an assessment to take place, as, in the circumstances, we do not consider that this is a course of action that can now be properly completed.
There remains, however, the serious issue concerning the procedures that you undertook on 8 and 9 June 2003. Under the new performance management procedures applicable to clinical staff (copy documents enclosed), Jane McCue, Medical Director, has been appointed manager. Having carefully considered the matter she has decided that a formal investigation under the disciplinary procedure is necessary to consider the allegation that you failed to follow a clear instruction, dated 27th November 1998 from the then Chief Executive, that you cease to undertake any gynaecological work.
Miss McCue has appointed Nick Drew, Consultant in Obstetrics and Gynaecology at the QEII Hospital as the “Case Investigator”. Mr Drew will be in touch with you shortly to indicate the people that he intends to speak to and will arrange a meeting with yourself. You will also be provided with all relevant documents. You have the right to be accompanied at any stage of this process by a companion and you will see from the enclosed document who may attend in that capacity.
Please note that we consider that the matters under investigation are matters of conduct and, if the outcome of the investigation is that disciplinary proceedings are considered necessary, those will take place under Part 3 of the enclosed procedure.
During this investigation, I consider that your exclusion from work should continue due to the need to protect the interests of patients pending investigation. During this time you may not attend Trust premises, other than to obtain treatment, but you should remain available for work. I confirm to you that you would of course be able to visit friends and family who might be patients at the Trust, but asked that you inform either the case manager or investigating officer of such visits. I confirm that the Trust would review your exclusion from work every four weeks, in line with the national procedure. I also confirm that the Trust would seek to identify a mentor by 16th September 2005 who can support your continuing professional development.”
As is apparent from the terms of Mr Carver’s letter, the Trust had also decided to carry out a formal investigation under the disciplinary procedure into the original complaints with a view to disciplinary action being taken if considered necessary. In my view, that proposed course of action was a clear breach of point 6 of the points agreed at the meeting of the 23rd March 2004.
On 23rd August 2005, on behalf of Mr Palmer, Mr Mitchell replied to Mr Carver’s letter in the following terms (inter alia):-
“I refer to your letter of 19 August 2005, with enclosures, addressed to my Client Mr Bernard Palmer.
As we made clear at our meeting with you on Friday, Mr Palmer and I are extremely disappointed that the Trust has suddenly decided to withdraw its request to the NCAS for an assessment, because you do not consider that this is "a course of action that can now be properly completed." Mr Palmer has cooperated fully with the NCAS assessment process, and the requirements of the NCAS, and you may recall that you repeatedly threatened him with disciplinary proceedings if he did not undergo assessment! Furthermore, prior to our meeting on Friday, and before we knew what you were intending to say at that meeting, Mr Palmer had of course informed Mr Mortimer that, subject to final confirmation, a suitable placement had now been found. However, you were not interested in this, and refused to reconsider the Trust's position in the light of this development. That being so, I confirmed that I would be taking urgent advice from Counsel on Mr Palmer's behalf, with a view to an application to the Court to prevent the Trust from now proceeding with a disciplinary investigation, and to compel the Trust to continue to cooperate with the NCAS process. Whilst we will of course pursue any application to the Court as quickly as possible, I do know that Leading Counsel, Mr John Hendy QC, already instructed by me on Mr Palmer's behalf will be on leave until next week, and so there may be some slight delay.
For the avoidance of doubt, I confirm that we do not accept either your summary of the procedural position, or of the basis of the allegation against Mr Palmer, but I am not proposing to address those matters further in this letter.”
For the reasons already indicated, I am satisfied that the agreement between the parties was legally binding and still subsisting as at 19th August 2005. Mr Palmer had done everything within his powers to fulfil his part of the agreement. He had already carried out part of the assessment process. He had succeeded in finding a strong candidate for a suitable clinical placement that would have enabled the entire process to be completed within a reasonable timeframe. In my view, there was no justification for the Trust’s decision to withdraw from that process in July 2005 and its purported withdrawal in July/August 2005. The contract was not discharged by effluxion of time nor was it frustrated.
A helpful summary of the principles which apply in determining whether a contract has been frustrated is to be found in the Judgment of Gray J in the recent case of Gryf-Lowczowski ~v~ Hinchingbrooke Healthcare NHS Trust (2006) IRLR 100. At paragraph 49 of his Judgment, Gray J cites the guidance of Lord Simon in Panalpina as follows:-
“Frustration of a contract takes place when there supervenes an event “without default of either party and for which the contract makes no sufficient provision” which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the new circumstances.”
I accept Mr Hendy’s submission that there is nothing in the evidence to sustain a finding that a frustrating event of the type identified in Panalpina occurred in this case. Furthermore there is nothing in the evidence to suggest that the Trust’s decision to withdraw and its purported withdrawal from the process was on the basis that it considered that the agreement had been frustrated. I accept Mr Hendy’s submission that this argument is an attempt at an ex post facto justification for a precipitate decision taken by the Trust without regard to its contractual obligations.
I am also satisfied that the evidence indicates that, far from being frustrated, the contract was perfectly capable of successful completion. Not only had Mr Palmer secured a strong candidate for the clinical placement but, on 28th July 2005, Dr McCue had turned down the offer of help from Mr Donaldson, a surgeon who responded to the RCS’s appeal, to try and identify a suitable placement for Mr Palmer.
I am therefore satisfied that the Trust has acted in breach of contract in purporting to withdraw from the assessment process and in seeking to implement a disciplinary investigation. Mr Palmer is entitled to damages for the losses that he has suffered as a result and there will be judgment accordingly, although the assessment of those damages is to be adjourned to a separate hearing.
Furthermore, I also accept Mr Hendy’s alternative submission (see paragraph 9 above) that, whether or not the agreement for an NCAS assessment was contractually binding, the Trust’s conduct in unilaterally terminating the agreement without good reason (which, for the reasons given above, I am satisfied is the case) is both capricious and unfair and such as to amount to a breach of the mutual trust and confidence obligation that is an implied term of Mr Palmer’s contract of employment with the Trust. Accordingly, Mr Palmer is entitled to appropriate relief for breach of contract on that alternative basis.
As I have already indicated, Mr Palmer remains willing to continue with the assessment process. Although the Trust’s actions amount to a repudiatory breach of the agreement to undergo an assessment and/or his contract of employment, Mr Palmer has not accepted that repudiation and the contract and/or contracts have not been determined and remain undischarged. Accordingly, I am satisfied that Mr Palmer is entitled to appropriate injunctive relief to protect and/or implement his contractual rights that have been threatened or infringed by the Trust’s repudiatory breach. I do not accept Mr Clarke’s submission that the short period of delay between the Trust’s breach of contract and the issue of proceedings is of such length as to disentitle Mr Palmer from the injunctions that he seeks.
Conclusion. For the forgoing reasons, I am satisfied that this claim succeeds. Mr Palmer is entitled damages for breach of contract and to appropriately worded injunctions to reinstate the assessment process and to restrain the continuation of the disciplinary investigation. There will be judgment accordingly. I will hear further submissions from counsel as to the appropriate wording of the injunctions in question and the terms of the Order.