HANS HUSSON v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2020)

[2020] EWCA Civ 329

CA (Civ Div) (McCombe LJ, Nicola Davies LJ, Simler LJ) 10/03/2020

EUROPEAN UNION – NEGLIGENCE – DAMAGES – CIVIL PROCEDURE – IMMIGRATION – HUMAN RIGHTS

DAMAGES : DELAY : DISCRETION : DUTY OF CARE : HUMAN RIGHTS CLAIMS : JURISDICTION : RESIDENCE PERMITS : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

 

An individual who had been granted limited leave to remain in the UK was entitled to seek judicial review of the secretary of state’s two-year delay in sending him a biometric residence permit confirming his entitlement to work in the UK. He had established an arguable case that the secretary of state owed him a duty of care to issue the permit promptly, giving rise to a claim in damages for breach.

 

 

The appellant appealed against a refusal of the Upper Tribunal to permit him to apply for judicial review of the secretary of state’s delay in sending him a biometric residence permit confirming his entitlement to work in the UK.

The appellant was a Mauritian national who had been granted limited leave to remain and work in the UK. During court proceedings arising from the leave-to-remain application, the secretary of state had entered into a consent order whereby he agreed to reach an effective decision on the application within three months. That meant that the ultimate decision to grant indefinite leave to remain should have been followed by the prompt issue of a residence permit. However, there was a two-year delay before the permit was issued. The appellant claimed that he had suffered loss by reason of being been unable to work in the UK during the delay period, having no stamp on his passport evidencing his right to work. Within his claim for judicial review he raised the question of whether he was entitled to damages for breach of duty of care, breach of statutory duty and breach of ECHR art.8. The UT refused him permission to apply for judicial review.

The issues were whether (1) the UT lacked jurisdiction to award damages because no public law remedy was being sought; (2) the appellant had an arguable claim for damages for breach of art.8; (3) it was arguable that the secretary of state owed the appellant an actionable duty of care; (4) the UT had refused a discretionary remedy at the permission stage.

HELD: Jurisdiction to award damages – The UT had jurisdiction to award damages to the appellant. Its power to award damages was circumscribed by the Tribunals, Courts and Enforcement Act 2007 s.15(1), s.16(1) and s.16(6) and, for there to be an award of damages, the claimant had to be seeking a public law remedy (a mandatory order, a prohibiting order, a quashing order, a declaration or an injunction). The claimant was seeking declaratory relief in relation to the alleged unlawful delay in issuing the permit and, as the foundation for a damages claim, that relief was not academic (see paras 24-28 of judgment).

Article 8 – The appellant had an arguable case for judicial review on the basis of a breach of art.8. The consequences of the delay fell within the scope of art.8 and constituted an arguably sufficient interference with the rights it guaranteed. Without the permit or a stamp in his passport evidencing his right to work, the appellant had been unable to take up lawful employment in the UK. Although there was no direct authority establishing that a right to work was of itself protected by art.8, Strasbourg authority demonstrated that art.8 was arguably engaged where an individual was wholly or substantially deprived of the ability to work, R. (on the application of Atapattu) v Secretary of State for the Home Department [2011] EWHC 1388 (Admin) applied. Damages could be awarded under the Human Rights Act 1998 s.8 where necessary to afford just satisfaction, Anufrijeva v Southwark LBC [2003] EWCA Civ 1406 followed. Although the appellant had produced limited evidence of loss of employment and earnings, the secretary of state’s own policy documents made good that aspect of his case: given that no UK employer could lawfully have employed him, the inevitable inference was that he had been deprived of all available employment opportunities (paras 32, 35-41).

Actionable duty of care – When determining whether the law imposed a tortious duty of care in respect of a public authority’s exercise of its statutory powers or performance of its statutory duties, the court had to focus on the facts and the particular statutory background, Gorringe v Calderdale MBC [2004] UKHL 15 followed. The statutory scheme under consideration in the instant case did not create a statutory cause of action that sounded in damages, so the appellant had to establish that the delay also constituted a recognised tort or breach of contract. A critical question was whether there had been any voluntary assumption of responsibility by the secretary of state, Rowley v Secretary of State for Work and Pensions [2007] EWCA Civ 598 considered. Such an assumption of responsibility would arise where, but for the absence of consideration, there would be a contract; so, where there was a relationship equivalent to a contract, there would be a duty of care, Poole BC v GN [2019] UKSC 25 followed, W v Home Office [1997] 2 WLUK 338 and Home Office v Mohammed [2011] EWCA Civ 351 considered (paras 42-53). The appellant had an arguable case that the secretary of state owed him a duty of care. There was force in his argument that he was entitled to the prompt issue of a permit and it was foreseeable that a prolonged delay would prevent him obtaining employment in the UK. Although it was doubtful whether a duty of care could be derived from the secretary of state’s entry into the consent order and pledge to make an effective decision within three months, the threshold was merely arguability, and the law was complex and evolving (paras 54-64).

Refusal of discretionary remedy at permission stage – The UT had not refused to exercise a discretionary remedy at the permission stage. It had simply held that the appellant had not established a prima facie case to support a claim for damages (paras 65-66).

Appeal allowed

Counsel:
For the appellant: Russell Wilcox
For the respondent: Richard Evans

Solicitors:
For the appellant: Dylan Conrad Kreolle Solicitors
For the respondent: Government Legal Department

KUMAR ANTON ROHITHA BULATHWELA v (1) EDWARD THOMAS (2) ANN NILSSON (JOINT TRUSTEES IN THE BANKRUPTCY OF RANI MALATHI SAMARAKKAODI BULATHWELA) (2019)

 

[2019] EWHC 1947 (Ch)

Ch D (Snowden J) 20/05/2019

INSOLVENCY – REAL PROPERTY

BANKRUPTCY : BENEFICIAL INTERESTS : LEGAL CHARGES : WITNESS STATEMENTS

 

The court granted permission to appeal against a district judge’s finding that the applicant did not have a beneficial interest in a property that was registered in his wife’s sole name. The judge had not properly dealt with the implications of a charge against the property in favour of the Legal Services Commission that had been executed by both the husband and wife.

 

The applicant husband applied for permission to appeal against a county court decision that a property was solely owned by his wife and that he had no beneficial interest in it.

The property was purchased in 2004 and was registered in the wife’s sole name. The wife was subsequently made bankrupt. The respondents were her trustees in bankruptcy. The husband claimed that he had a beneficial interest in the property, primarily because he had contributed towards the deposit and the mortgage. The district judge had no documentary evidence to support those assertions, only the wife’s similar assertions. The only documentary evidence considered more specifically was a charge executed over the property in favour of the Legal Services Commission (LSC), executed by both the husband and wife. The district judge found that the terms of the mortgage deed were insufficient to establish an inferred common intention on the part of the parties.

The husband argued that the district judge had erred in her analysis of the evidence, and applied to admit a witness statement from the parties’ daughter.

HELD: Analysis of evidence – There was a real prospect of establishing that the district judge ought to have dealt more fairly with the parties’ evidence and the implications to be derived from the LSC charge.

Witness statement – The form of the witness statement was inadequate. It consisted of unattributed assertions and statements of legal conclusion. It did not fulfil the second and third criteria of the Ladd v Marshall test as being evidence which probably had an important influence on the result of the case and which was apparently credible. There was no material before the court to explain why that material, which plainly could have been available at the hearing before the district judge, was not relied upon at the time. Permission for admission of the witness statement was refused. Any further application for similar or other evidence should be made within a limited timescale, for which the instant court gave directions.

Application granted

Counsel:
For the appellant: Arfan Khan
For the respondent: No appearance or representation

Solicitors:
For the appellant: DCK Solicitors

UDODIRI OKPARA v GENERAL MEDICAL COUNCIL (2019)

[2019] EWHC 2624 (Admin)

QBD (Admin) (Julian Knowles J) 09/10/2019

HEALTH – PROFESSIONS

BURDEN OF PROOF : DELAY : DOCTORS : FITNESS TO PRACTISE : MEDICAL PRACTITIONERS TRIBUNALS : REGISTER OF MEDICAL PRACTITIONERS : REMOVAL

 

The Medical Practitioners Tribunal had not erred in upholding allegations of sexually motivated misconduct by an accident and emergency doctor towards a nurse over a two-year period. It had also been entitled to find that the doctor’s erasure from the register of medical practitioners was the appropriate sanction.

 

 

A doctor appealed against decisions of the Medical Practitioners Tribunal by which it upheld allegations of his sexual misconduct towards a nurse, and held that his fitness to practise was impaired as a result. He also appealed against his erasure from the register of medical practitioners.

The appellant had been accused of misconduct between 2014 and 2016 when he was a locum registrar in an accident and emergency department. The complainant in each case was a staff nurse at the hospital. The allegations related to a number of occasions when the appellant was said to have made inappropriate sexual and other remarks to the complainant and/or to have made unwanted sexually motivated physical advances to her. The tribunal determined that the facts found proved amounted to misconduct and that erasing the appellant’s name from the Medical Register would be the only proportionate sanction in order to serve the public interest, maintain public confidence in the medical profession and to send a message to the medical profession that such behaviour was unacceptable.

The appellant submitted that the tribunal:

(i) erred in law on the burden and standard of proof in that it reversed the burden of proof;

(ii) did not scrutinise the evidence with sufficient rigour;

(iii) erred in law by failing to take into account and/or give sufficient weight to the prejudice arising out of delay in making the complaint;

(iv) was wrong to impose the sanction of erasure when the lesser sanction of suspension was reasonable and appropriate.

HELD: Burden of proof – The tribunal had had well in mind that the burden of proof lay upon the General Medical Council (GMC), and not the appellant. Although slightly clumsily expressed, it had not erred in saying that because it doubted the credibility of one part of the appellant’s case, that caused it to doubt the credibility of the other part of his case (see paras 78-84 of judgment).

Scrutiny of evidence – In respect of each allegation, the issue was whether the GMC had proved to the civil standard that the allegation happened in the way the complainant alleged. In each case, the tribunal had competing accounts from the complainant and the appellant together with, in some instances, evidence of complaints to other persons. The tribunal had been expressly directed by the Chair in accordance with the principles in B (Children) (Sexual Abuse: Standard of Proof), Re [2008] UKHL 35, H (Minors) (Sexual Abuse: Standard of Proof), Re [1996] A.C. 563, and D, Re [2008] UKHL 33, and had had the right test in mind, Re B, Re H and Re D applied. Given the nature of the issues involved, it was not necessary for the tribunal to address every single forensic point made on behalf of both sides. That it did not do so did not mean that it did not scrutinise the evidence with sufficient care or rigour. In respect of each allegation, the tribunal set out what the allegation was; the competing evidence in relation to it; and gave reasons for concluding why it found the allegation proved or not proved. The reasons it gave were sufficient and did not indicate any lack of care or adequate scrutiny. Overall, reasons in straightforward cases would generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment was not required, the reasons would need to contain a few sentences dealing with the salient issues,Southall v General Medical Council [2010] EWCA Civ 407 considered (paras 86-93).

Delay – The allegations related to the period 2014-2016. There was nothing remarkable about that timescale, and R. v PS [2013] EWCA Crim 992, which concerned allegations of alleged sexual misconduct decades previously, was not relevant, PS considered. The tribunal was addressed on the absence of CCTV and other matters, and so would have had those forensic points in mind when it considered whether the GMC had proved its case (para.97).

Sanction – The assessment of the seriousness of the misconduct was essentially a matter for the tribunal in the light of its experience. The tribunal was best qualified to judge what measures were required to maintain the standards and reputation of the profession, Bawa-Garba v General Medical Council [2018] EWCA Civ 1879 applied (para.100). In the instant case, the tribunal had correctly characterised the appellant’s conduct as sexually predatory behaviour towards the complainant over a sustained period of two years. It had correctly stated that his conduct fell within paras 148, 149 and 150 of the sanctions guidance and therefore erasure had been an appropriate sanction. It had been entitled to find that the appellant’s conduct was fundamentally incompatible with continued registration, and for that reason suspension was not appropriate. As a specialist tribunal, it was entitled to conclude that sustained sexually predatory behaviour towards a colleague whilst on duty, once in the presence of a patient and once following deception that he wanted to discuss a patient, was fundamentally incompatible with his continued work as a doctor. Furthermore, the tribunal had taken into account the public interest and matters of personal mitigation, such as the fact that the appellant had some personal difficulties and was the sole breadwinner. It had also been entitled to attach little weight to unverified testimonials put forward by the appellant and, in any event, given the very serious nature of the misconduct, the testimonials were not capable of requiring the tribunal to order suspension rather than erasure (paras 108-115).

Appeal dismissed

Counsel:
For the appellant: Arfan Khan
For the respondent: Alexis Hearnden

Solicitors:
For the appellant: DCK
For the respondent: In-house solicitor