[View without highlighting]
[Printable RTF version]
||Neutral Citation Number:  EWHC 460 (QB)
||Case No: QB/2015/0391
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE FOSKETT
|| Human Fertilisation and Embryology Authority
||- and -
Jenni Richards QC (instructed by Carter-Ruck LLP) for the Appellant
Pushpinder Saini QC and Adam Solomon (instructed by Fieldfisher LLP) for the Respondent
Hearing date: 10 February 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Foskett:
- This appeal from an order of Master Kay QC of 27 July 2015 represents another chapter in the long-running saga of disputation between the Appellant and the Respondent.
- The Respondent (the Claimant in the proceedings) is the Human Fertilisation and Embryology Authority ('HFEA'), a body corporate established by section 5 of the Human Fertilisation and Embryology Act 1990 (the '1990 Act').
- The Appellant (the Defendant in the proceedings) is the limited company under or by virtue of which The Assisted Reproduction and Gynaecology Centre ('ARGC') and The Reproductive Genetics Institute ('RGI'), both of which are fertility clinics based in Wimpole Street and Weymouth Street, London, respectively, are operated.
- ARGC is referred to in the Respondent's designation as "Centre 0157" and RGI as "Centre 0206".
- The driving force behind each of the clinics is Mr Mohammed Taranissi, a Consultant Obstetrician and Gynaecologist who specialises in the provision of IVF and other fertility services. He is the statutory Person Responsible ('PR') for both centres, a role required by section 17 of the 1990 Act (see paragraph 17 below).
- I have been told by Ms Jenni Richards QC, who represents the Appellant, that the "clinics are internationally renowned, highly reputable and successful" and have, since their inception in 1995, consistently achieved very high success rates, often achieving twice the national average rate of success and some of the highest reported statistics in the world. So far as the UK is concerned, the statistics published by the Respondent in October 2014 confirm what is claimed. It is no part of my task to decide on these matters, but I have no reason to question what I have been told.
- The Respondent issued Particulars of Claim in August 2014 seeking a total of £131,289.50 (plus interest) for alleged unpaid fees in connection with the Appellant's provision of IVF treatment cycles and donor inseminations provided by ARGC between August 2009 and February 2011. The basis for charging these fees will appear later (see paragraphs 18 and 19).
- A formal request for payment of those fees was made in a letter from Mr Mark Bennett, the Director of Finance and Facilities of the Respondent, to Mr Taranissi dated 22 October 2012 (the 'October 2012 letter'). Although there now remains no dispute about the liability of the Appellant for those sums (and indeed I have been told that the sum claimed plus interest has now been paid), another feature of that letter lies at the heart of the present dispute between the parties. I will return to it below (see paragraphs 56 - 73).
- Notwithstanding the ultimate resolution of that issue, the Appellant had served a Defence and Counterclaim in response to the Particulars of Claim in October 2014, at that stage putting the claim for unpaid fees in issue and raising a cross-claim. By an application notice dated 11 December 2014 the Respondent applied for summary judgment on its own claim for the unpaid fees and for summary judgment/strike out in respect of the Appellant's Counterclaim.
- The hearing before the Master took place on 15 April 2015. By a letter dated 2 April 2015 the Appellant conceded that it would raise no argument in respect of the fees claimed on liability or quantum, but said it would seek to set off the sums due under its Counterclaim.
- At the hearing on 15 April 2015 summary judgment was entered on the claim and the Respondent was awarded its costs. The Master struck out the part of the Counterclaim based on the Human Rights Act on the basis that it was bound to fail, but reserved judgment on the balance of the Respondent's application concerning the Counterclaim. The reserved written judgment was delivered on 27 July 2015. The Master's attention was drawn shortly after the hearing to the case of Arcadia Group Brands Ltd v Visa Inc  EWHC 3561 (Comm) and he received written submissions from both parties about it. That case has subsequently been considered by the Court of Appeal: see paragraph 89 below.
- As I have indicated, the Master's written judgment was delivered on 27 July 2015. He struck out the Appellant's counterclaim and ordered that there be summary judgment on the counterclaim. He refused the Appellant's application for permission to appeal, but Picken J granted permission to appeal on the papers on 9 October 2015.
- Before turning to the issues raised, it would be convenient to highlight the relevant statutory provisions.
The statutory provisions
- The provisions generally concerning licensing are fully described by Patterson J in The Assisted Reproduction and Gynaecology Centre and The Reproductive Genetics Institute v Human Fertilisation and Embryology Authority  EWHC 3087 (Admin) at  -  and I gratefully adopt that analysis.
- For the purposes of this case the provisions that need to be highlighted are as follows.
- Section 8ZA, introduced with effect from 1 October 2009, specifies certain duties in relation to HFEA carrying out its functions as follows:
"(1) The Authority must carry out its functions effectively, efficiently and economically.
(2) In carrying out its functions, the Authority must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed)."
- Section 17 provides for the "person responsible" as follows:
"(1) It shall be the duty of the individual under whose supervision the activities authorised by a licence are carried on (referred to in this Act as the "person responsible") to secure
(a) that the other persons to whom the licence applies are of such character, and are so qualified by training and experience, as to be suitable persons to participate in the activities authorised by the licence,
(b) that proper equipment is used,
(c) that proper arrangements are made for the keeping of gametes, embryos and human admixed embryos and for the disposal of gametes, embryos or human admixed embryos that have been allowed to perish,
(d) that suitable practices are used in the course of the activities,
(e) that the conditions of the licence are complied with,
(f) that conditions of third party agreements relating to the procurement, testing, processing or distribution of gametes or embryos are complied with, and
(g) that the Authority is notified and provided with a report analysing the cause and the ensuing outcome of any serious adverse event or serious adverse reaction.
(2) References in this Act to the persons to whom a licence applies are to
(a) the person responsible,
(b) any person designated in the licence, or in a notice given to the Authority by the person who holds the licence or the person responsible, as a person to whom the licence applies, and
(c) any person acting under the direction of the person responsible or of any person so designated."
- Section 35B relates to fees and the relevant part is as follows:
"(1) The Authority may charge a fee in respect of any of the following -
(d) the exercise by the Authority of any other function conferred on it by or under this Act or by or under any other enactment
(i) in relation to a licence,
- It is by virtue of the authority conferred by this provision that the Respondent was entitled to charge the Appellant for fees for work carried out whilst the Appellant was licensed by the Respondent.
- If a fertility clinic is not licensed, it (and anyone providing those services) is committing a criminal offence if it provides fertility services: section 41 of the 1990 Act.
- Section 23 confers on HFEA the power to give directions:
"(1) The Authority may from time to time give directions for any purpose for which directions may be given under this Act or directions varying or revoking such directions.
(2) A person to whom any requirement contained in directions is applicable shall comply with the requirement.
(3) Anything done by a person in pursuance of directions is to be treated for the purposes of this Act as done in pursuance of a licence
- Section 24 contains provisions relating to directions concerning specific matters and subsections (5)-(7) are as follows:
"(5) A licence committee may from time to time give such directions as are mentioned in subsection (7) below where a licence has been varied or has ceased to have effect (whether by expiry, suspension, revocation or otherwise).
(6) A licence committee proposing to suspend, revoke or vary a licence may give such directions as are mentioned in subsection (7) below.
(7) The directions referred to in subsections (5) and (6) above are directions given for the purpose of securing the continued discharge of the duties of the person responsible under the licence concerned ("the old licence"), and such directions may, in particular -
(a) require anything kept or information held in pursuance of the old licence to be transferred to the Authority or any other person, or
(b) provide for the discharge of the duties in question by any individual, being an individual whose character, qualifications and experience are, in the opinion of the committee, such as are required for the supervision of the activities authorised by the old licence, and authorise those activities to be carried on under the supervision of that individual,
but cannot require any individual to discharge any of those duties unless the individual has consented in writing to do so."
The background history to the events of 2006
- As will appear, the period from the beginning of January 2006 until 19 June 2006 is an important period in the context of the Counterclaim. For the purposes of deciding the issues arising on this appeal it is necessary to consider what occurred - or, more accurately, allegedly occurred, although a number of matters are not in issue during this period.
- It is right to note at the outset that none of the fees claimed in the Respondent's Particulars of Claim relate to events occurring during this period (see paragraph 7 above). Nonetheless, the period is itself important.
- The treatment licence granted in 2002 by the Respondent to the Appellant (under paragraph 1 of Schedule 2 to the Act) in respect of the RGI (which was established in 2003) was due to expire on 31 December 2005. At that time the Respondent's usual practice was to grant licences for a maximum 3-year period and fertility clinics were required to apply for renewal of their licence. The Appellant applied for renewal, but on 19 December 2005 the Respondent's Licence Committees decided to issue a notice of proposal to refuse to grant a new licence for the RGI. It appears from the Minutes of the meeting that the decision was influenced substantially by the perceived reluctance of Mr Taranissi "to comply with requests for information" and to submit appropriate documentation supporting the licence application. The Notice of Proposal to Refuse Licence set out the failures relied upon.
- However the committee issued special directions (under sections 23 and 24(7)) allowing the RGI to continue to provide licensed treatments until 31 March 2006 in respect of patients who had already commenced drug treatment prior to 1 January 2006, the purpose being to permit Mr Taranissi to make representations (pursuant to section 19(4) of the Act) concerning the proposal.
- He did so, but the issue was not concluded by 31 March 2006 and on 1 April 2006 the Licence Committee made a further direction to similar effect that would remain in force "until the date on which the final determination is made by a licence committee". An interim inspection of the ARGC premises was undertaken by Dr Bloor (see paragraph 34 below) on 13 February 2006.
- Dr Bloor conducted an inspection of the RGI premises on 13 June 2006 and, according to her report, "it was reported that between
January to May 2006 embryos had been fixed under the auspices of [the licence for the RGI] on the premises of [ARGC]." I do not believe this precise feature of the documentation was mentioned during the submissions of counsel and it may be that a research licence is different from one permitting treatment. However, I assume that what is being noted here is that Mr Taranissi told Dr Bloor that certain actions that he regarded as having taken place under the appropriate licence for RGI had been carried out at ARGC. His position, as I understand it, is that the existing treatment licence continued whilst his representations were being made. This, according to him, was the position taken by the Respondent generally in relation to renewals of licences for fertility clinics in the past and in respect of ARGC which had held a storage and treatment licence since 1995. However, the report prepared by Dr Bloor mentioned the suggestion that the activity he admitted might be in breach of the Act and the final sentence of the relevant paragraph in her report said this: "The PR of the research licence confirmed that no further fixation of embryos would be carried out at the ARGC." This appears to relate to work that was not carried out at the RGI during the relevant period, but work said by Mr Taranissi to have been covered by the relevant licence for those premises, but carried out at ARGC.
- Whilst these are matters that might fall to be investigated at any trial of the counterclaim if this appeal is allowed, it would at least seem to suggest that (a) work believed by Mr Taranissi to be carried out under an extant licence for the RGI was being carried out (albeit at the ARGC) during the period from January through until about 13 June 2006 and (b) that this had been drawn to the attention of the Respondent no later than 13 June 2006.
- Whether that is correct or not, and whether or not it supports the Appellant's pleaded case, there is a pleaded averment as follows in paragraph 13 of the Counterclaim as follows:
"On the other hand, throughout the relevant period from about June 2006 [the Appellant] has maintained that it did inform [the Respondent] of the treatments being carried out at the RGI, in particular by sending the relevant patient treatment forms to it as it was required to do. [The Respondent's] knowledge is evidenced, for example, by [Dr Bloor's report of 13 June 2006] in which she stated:
"The PR of centre 0157 [ARGC] and 0206 [RGI] may wish to consider requesting the variation of the licences of both centres to ensure that both licences allow the same treatments. The PR may also wish to consider reporting all treatments carried out at centres 0157 and 0206 through one centre. This would presumably simplify the completion and submission of treatment forms."
- Ms Richards draws attention to what the Master said about this, namely, that there was nothing about the extract from the report quoted in the Counterclaim "which indicates that the [Respondent] had actual knowledge that the [Appellant] was carrying out licensed work at RGI in 2006." She submits that this is one example of where the Master went on to express his view on a factual issue and thus went beyond the permissible boundaries of a strike out/summary judgment application.
- There is, as it seems to me, some force in what the Master says about the extract relied upon if looked at entirely in isolation, but there is other evidence upon which reliance may be placed and, as Ms Richards says correctly, this would be a matter for any trial rather than for a conclusive decision at this stage. A point she suggests is arguable is that Dr Bloor's report contains a suggestion that the PR could apply to vary the licences (in the plural) of the RGI and the ARGC and that a non-existent licence cannot be varied.
- At all events, a further Licence Committee meeting was held on 15 June 2006 as a result of which the Appellant was offered a 3-year treatment and storage licence for the RGI, subject to one additional condition, namely, that Mr Taranissi (as the Person Responsible) "must ensure that no three-embryo transfers are carried out at [the] centre". This decision was communicated to Mr Taranissi on 19 June 2006.
- Mr Taranissi signed a form dated 20 June 2006 in which he accepted, or purported to accept, the licence and its conditions by ticking the relevant box, but in a handwritten endorsement on the face of the form he said this: "I would like to make representations regarding the condition attached to this licence." He had spoken that day to Dr Debra Bloor, then the HFEA inspector responsible for the inspection of his clinics, and confirmed to her that he wished to accept the licence and to make representations in relation to the additional condition.
- On 20 July 2006 a meeting (or interview) took place at the Respondent's offices attended by Mr Taranissi, Angela McNab (the then Chief Executive of HFEA), Dr Bloor and David Tellis, HFEA's Director of Information. The meeting was tape-recorded by agreement and a transcript of the conversation was produced subsequently by the Respondent. It is said on behalf of the Appellant that the transcript when compared with the tape recording is misleading in a number of important respects. It is not part of my task in these proceedings to determine whether that is so, but given that the transcript was provided to the police at a later stage (see paragraph 43), the Appellant is concerned about the impact this may have had.
- It emerged during that meeting that licensable treatment had been carried out at the RGI at least since the offer of the new licence had been accepted. Mr Taranissi maintained that he had accepted the licence, but wanted to make representations about the additional condition. His past experience, he explained, was that the licence remained valid pending the outcome of the representations process. The position was maintained by Ms McNab that unless the condition had been accepted, there was no valid licence. This was reflected in a letter she wrote the following day, the material part of which is as follows:
"During the course of the interview you stated that you had been carrying out treatment of patients at Centre 0206. This is despite the fact that the Centre does not currently have a Licence. You indicated that you believed that the Centre was now licensed after receiving an offer of a licence following a meeting of a Licence Committee on 15 June 2006. I must make it clear that a Licence has not been granted. The offer of a Licence was made subject to an additional condition and you have given verbal indication of your wish to make representations in relation to that condition. In these circumstances, Regulation 7 of the Human Fertilisation and Embryology Authority (Licence Committees and Appeals) Regulations 1991 precludes the Authority from granting a Licence until representations have been considered.
I would point out to you that, since the offer of the Licence was made, letters have been written to you on 2 occasions pointing out that there is currently no Licence for Centre 0206. As you are aware, Special Directions were made by the Licence Committee on 15 June 2006 requiring you to continue to perform the duties of Person Responsible in relation to storage of gametes and embryos. However, no provision was made in relation to treatment and no licence has been issued authorising treatment.
I must point out that the 1990 Act prohibits the creation or use of an embryo without a licence. Section 41(2) (a) of the Act provides that a person who acts in contravention of section 3(1) is guilty of a criminal offence and is liable, on conviction on indictment, to imprisonment to a term not exceeding 2 years or a fine or both and, on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both.
This apparent breach of the Act will be referred to a Licence Committee for consideration as to whether any regulatory action should be taken. The Licence Committee may also consider whether any action should be taken in relation to the apparent breach of section 41 of the Act
- I need not deal with all aspects of what occurred over the next few months or so concerning the RGI. Mr Taranissi maintained at various Licence Committee meetings that he was entitled to continue offering treatment at the RGI (on the basis that it was licensed) whereas the HFEA maintained that there was no licence in place.
- However, the culmination of various steps taken by the HFEA and its Licensing Committee was that on 14 November 2006 the Committee resolved to issue a "Notice of Proposal to revoke Licence" in respect of the ARGC. The reason for taking this step, as set out in the Notice dated 22 November 2006, was that Mr Taranissi was, in the Committee's view, no longer suitable to be the Person Responsible because he had failed to comply with certain special directions issued on 21 July, 27 July and 2 August 2006, those directions relating to the RGI which, in the Committee's view, was unlicensed. The Notice suggested that he had continued to provide unlicensed treatment at the RGI and that he appeared to lack insight into and an understanding of the legal framework within which licensable activities must be undertaken. On that basis he was no longer fit to be the Person Responsible for ARGC. There was a suggestion in the Notice that he may have committed a criminal offence in relation to the treatment given at the RGI.
- Mr Taranissi sought to make representations in relation to this Notice and the meeting of the Licence Committee took place on Wednesday, 10 January 2007. He was accompanied by his lawyers, including, I believe, counsel. It was said on his behalf that about 250 cases had been treated at the RGI in the period from 21 July to 10 November 2006. In a witness statement prepared for the judicial review proceedings to which I will refer below (see paragraphs 48 and 49), Ms McNab said that his counsel "did not indicate at any stage that any treatment had been carried out prior to 19 June". In any close examination of the facts, if it were to take place, that assertion might need to be tested by reference to what appears in paragraphs 28 and 29 above. Furthermore, I note that in the judgment of Holman J in the judicial review proceedings, he recorded the submission made by counsel then acting on behalf of Mr Taranissi that at the meeting on 20 July (see paragraph 35) Mr Taranissi had been "frank and upfront" that he had been treating at the RGI prior to 19 June 2005 and that he pointed to various passages in the transcript that supported this.
- On the following Monday, 15 January 2007, two events occurred of significance. A BBC Panorama programme entitled 'IVF Undercover' was broadcast that day concerning the work undertaken at the ARGC, presumably broadcast at the usual time that Panorama is broadcast in the evening. Earlier that day, following an application made without notice to Mr Taranissi by the Respondent to the City of Westminster Magistrates' Court for search warrants of the two clinics (supported by a short witness statement from Ms McNab), HFEA representatives, accompanied by the police, executed the warrants granted at the premises of the ARGC and the RGI. Ms McNab's statement in support of the application for the warrants said that Mr Taranissi had informed her "that he has continued to treat patients at [the RGI] whilst the centre is unlicensed" and that an extract from an interview with him by the Panorama team broadcast as a trailer that morning (and indeed on the previous day) showed him admitting that patients were treated there when the clinic was unlicensed. She went on to say that she had been informed by the producer of the programme that a patient whose interview was to be shown said that she received an embryo transfer in March 2006 "when the centre did not have a licence and had not been offered a licence." She asserted that a warrant "is required to obtain relevant records to establish the number and detail of treatments carried out when the centre was not licensed", records she believed to be stored at the ARGC.
- Ms McNab issued a Press statement that day to which I will refer below (see paragraph 47). This suggests that there was considerable publicity about the events that took place that day and indeed there is other material in the papers before the court to suggest that there was considerable media coverage.
- It emerged subsequently that Ms McNab had been interviewed by the Panorama team on 8 January 2007 having received an invitation to do so on 21 December 2006. It was on the occasion of that interview that she was told about the patient who, she said, "might have been treated at the RGI in March 2006." There had been quite considerable contact between HFEA and the Panorama team going back to about October 2005.
- It appears also that the Respondent decided early in December 2005 that the police should be approached because of the possibility of criminal offences having been committed and Ms McNab indicated in her first witness statement for the judicial review proceedings that she (along with HFEA's Legal Adviser) attended a meeting with Detective Inspector Dee Bain of the Specialist Crime Operations Team of the Metropolitan police on 18 December 2005 seeking advice having first made contact at the beginning of December. There was further liaison thereafter. It is clear from the documentation put before the court (although the precise chronology is not clear) that 9 cases were referred by HFEA to the police.
- It is also the case that two cases were referred by HFEA to the GMC, the body responsible for disciplinary matters concerning Mr Taranissi. I do not have the chronology of that contact, but it would seem that initial contact at least had been made before 15 January 2006.
- Mr Taranissi sought to challenge by way of judicial review the decisions of the Respondent leading to the application and subsequent grant and execution of the warrants on the basis that they were unjustified and unlawful and done for an improper purpose. He sought the quashing of the warrants. A fully argued application for permission to apply for judicial review was heard before Holman J in late March 2007 (a hearing that had been expedited). He gave his judgment on 26 March 2007.
- I have been provided with a transcript of the judgment and subsequent rulings. In summary Holman J granted Mr Taranissi permission to apply for judicial review on the basis that he had a good case for establishing that the Respondent's action in applying for and executing the warrants was "unjustified, disproportionate and unlawful". The justification relied upon by the Respondent for acting as it did on 15 January 2007, namely, that there was a fear of destruction of documents by Mr Taranissi in light of the Panorama programme, was one which, in Holman J's view, was arguably impossible to sustain given the Respondent's knowledge for some time that the programme would be broadcast. He also regarded the statement of Ms McNab in support of the application for the warrants to have been seriously misleading in a number of respects. However, he rejected as unarguable the proposition that the application had been made for an improper or collateral notice.
- The statement of Ms McNab had contained the assertion that the RGI "has not been licensed by the authority for treatment and storage since 1 January 2006" and the press release to which I referred in paragraph 41 above also asserted that the RGI "was licensed to treat IVF patients until 31 December 2005 but has not had a treatment licence since that date". This theme was continued in subsequent statements made by Ms McNab for the purposes of the judicial review proceedings.
- Furthermore, the position was maintained that the Respondent did not know of the treatment carried out at the RGI in the period between January and June 2006. In her first witness statement for the purposes of the judicial review proceedings, Ms McNab, said as follows:
"It came as a complete surprise to me to learn that licensable treatment was taking place at the RGI. My understanding of the position on the basis of Mr Taranissi's explanation during the interview [of 20 July] was that he had started treatment again as a result of the offer of the licence on 19 June 2006."
- In her second witness statement she said this:
"Mr Taranissi has never submitted any treatment forms relating to treatment between 1 January 2006 and 19 June 2006. As I have already said in my first statement, at the Licence Committee meeting on 10 January 2007 Mr Taranissi's counsel did not indicate at any stage that treatment had been carried out prior to 19 June 2006. Also, although Mr Taranissi submitted a large amount of treatment information to the Committee at that meeting, none of that Information related to treatment between January 2006 and 19 June 2006. These failures reinforced the concern I had at the time that he was not proposing to reveal any such treatment to the HFEA."
- Ms Richards submits that statements such as these "were the dominant basis for the regulatory actions taken by the Respondent against the Appellant throughout this period, including the referral to the police and the attempted revocation of the licence of its other clinic, the ARGC." Whether or not that assertion is justified, it mirrors paragraph 12 of the Counterclaim where it is averred that "[the] common theme
from in or about June 2006 to October 2012 is [the Respondent's] denial that [the Appellant] held a licence for treatments at the RGI and
that it knew that [the Appellant] was carrying out licensed treatment in considerable numbers, particularly during the period 1 January 2006 to 19 June 2006."
- The Master, when referring to this averment, said that "what is said to be a common theme is the [Respondent's] denial from June 2006 to October 2012 that the [Appellant] held a licence for treatment at the RGI and its denial that the RGI was carrying out licensed treatments in 2006 between 1st January 2006 and 19th June 2006". Ms Richards says that the second feature of the pleaded "common theme" was not the Respondent's denial that the RGI was carrying out licensed treatments in 2006, but the Respondent's denial that it knew that treatments were being carried out at the RGI during that period in considerable numbers. That does seem to me to be a justified comment by Ms Richards because it bears on the central issue for which she contends (see paragraph 53 below).
- In due course, in June 2007, the warrants were (by consent) quashed and the Respondent agreed to pay the Appellant's costs.
- The case sought to be advanced in the Counterclaim (leaving aside for the present its basis in law) is that the core reason given by the Respondent for opposing the grant to the Appellant of a licence to carry out treatments at the premises of the RGI, the purported basis for asking the police to investigate the activities at the RGI and the principal basis upon which the Respondent sought to revoke the ARGC's licence has been shown by the October 2012 letter (see paragraph 61 below) to have been untrue and known by the Respondent to be untrue and unfounded. The core reason given in each of these instances was, it is said, the alleged lack of disclosure by the Appellant of treatments carried out at the RGI during 2006 (particularly during the period from January to June) with the consequent ignorance, it was said, of those treatments on the part of the Respondent.
- At this stage (where the court is considering a strike out/summary judgment application), the question is simply whether the proposition contended for reaches the appropriate level of arguability specified in the well-known authorities on the topic. It seems to me that this threshold has been crossed in relation to this issue.
- How is it said that the October 2012 letter revealed the true position?
The October 2012 letter
- Between 2006 and 2011, there were a good number of contested issues between the parties as well as defamation proceedings against the BBC. I am told that the BBC relied in its defence on the alleged failure of the Appellant and Mr Taranissi to file treatment forms with the Respondent in relation to treatments carried out at the RGI during 2006. Those proceedings were settled in 2009. The police had said there was no basis to take criminal proceedings and the GMC had dismissed the disciplinary proceedings.
- By 2011 both the ARGC and the RGI were licensed again and it would seem that at least some of the dust of battle had settled. The position concerning the RGI appears to have been resolved by no later than March 2010 because on 12 March 2010 the Respondent's then new Director of Finance and Facilities, Mark Bennett, wrote to the Appellant as follows:
"You will appreciate that now that the licensing issues in relation to the RGI have been resolved, it is important to regularise all matters in relation to that centre. In this regard, we note that there are a number of hitherto unbilled fees in relation to treatments that took place at your centre in 2006. Please find enclosed Invoice 910891 which details these treatment fees."
- Invoice 910891 was enclosed with the letter. To it was attached a schedule running to 15 pages containing a list of 405 IVF cycles (at £104.50) each the earliest treatment date of which was 11 January 2006 and the last one being 7 November 2006 carried out at the RGI. There were treatments in each of the months from January through to November inclusive. There was one 'DI Gamete' treatment on 17 February 2006.
- I have no direct evidence before me of what took place in response to the letter, but Ms Richards' Skeleton Argument contained the following passage:
"The Appellant queried this and asked Mr Bennett to look into the matter, which he agreed to do. The Appellant then heard no more about the matter from the Respondent for over a year until Mr Bennett met with Mr Taranissi in May 2011, at which point Mr Taranissi reiterated his request for further information about the fees sought and the basis upon which the billing was made. Mr Bennett subsequently wrote to the Appellant on 14 June 2011, confirming that the treatment dates (for which the fees were sought) were recorded as being in 2006 at the RGI (i.e. the very period during which the Respondent had previously maintained that the RGI did not have a licence). Mr Taranissi asked again for clarification about the basis upon which the fees were raised at this late stage."
- The e-mail from Mr Bennett dated 14 June 2011 is in the court papers and the invoice relating to the RGI was sent again with a reiteration that the treatment dates recorded were 2006. There was no further communication until the October 2012 letter.
- In the October 2012 letter, in addition to the fees that formed the subject of the claim in these proceedings (see paragraph 7 above), payment was expressly sought for fees previously invoiced relating to treatments at the RGI for the period "11 Jan 06 7 Nov 06" and "17 Feb 06". By way of explanation the letter from Mr Bennett said this:
"The invoice is for statutory treatment fees for chargeable cycles at the approved rate then applicable and, in summary covers:
- 405 IVF cycles £104.50 each 11 Jan 06 - 7 Nov 06
- 1 DI cycle £52.50 17 Feb 06
The dates refer to treatment dates reported, although the forms themselves were not received until some time after the treatment cycles. I enclose copies of the original paperwork. These are the reasons why this HFEA invoice is payable:
1. In performing regulated treatments, you, as the PR, were satisfied that valid, licensed arrangements were in place.
2. The fees are for all the licensed treatments which were reported to the HFEA by you, as the PR, in accordance with the applicable requirements.
3. The HFEA invoiced these fees once it was satisfied in respect of both the licence arrangements and the completeness of the treatment information reported."
The request for payment was thus the same as had been made in March 2010 and again in June 2011, but on this occasion there was an explanation of the reasons why the treatment in 2006 was said to be the subject of legitimate charge.
Ms Richards submits that the letter contains the first acknowledgement by the Respondent that it had the treatment forms (and therefore knowledge of the treatments) for the period from January 2006 to November 2006 when, certainly in respect of the period from January to June of that year, there had been repeated assertions to the contrary. The letter, she says, contains no explanation of how the Respondent came to be "satisfied in respect of both the licence arrangements and the completeness of the treatment information reported" during 2006 and when it came to be so satisfied. She argues that the only plausible basis for the raising of an invoice covering treatments at the RGI in 2006 is that the Respondent accepts that the Appellant was licensed to provide treatments during that period despite what had been said previously.
I do not, with respect, think it can be said that this was the first time that the Respondent acknowledged that it had treatment forms for the period from January to November 2006. On the basis that I accept that it is properly arguable that the Respondent had for a number of years denied having received any such forms and being aware of the treatments taking place during this period, it seems to me that the first time there was an acknowledgement to the contrary was when Mr Bennett sent his letter of 12 March 2010. As I have indicated, the schedule sent with that letter spelt out fully and clearly the identities (by identification number) of the patients concerned, the date of their treatment and the nature of the treatment they received at the RGI. It also, at least by implication, asserted that the fees were properly chargeable. That means that the Respondent was saying that there was statutory authority to seek those fees.
The same observations may be made of Mr Bennett's e-mail of 14 June 2011. The only difference between those two communications and the October 2012 letter is that in that letter Mr Bennett sets out expressly why the Respondent considered the sums to be payable. The justification given was that the Respondent was satisfied that the treatment was complete and that "licence arrangements" were in place.
The expression "licence arrangements" is not very revealing and I can see that, certainly for the purposes of where the proceedings currently stand, there are two potential views as to what it means. The Appellant would contend, I apprehend, that the licence that "expired" on 31 December 2005 continued whilst his representations about its terms continued (see paragraph 28 above), the same applying to the offer of the new licence in June 2006 (see paragraphs 34 - 36 above), whilst the Respondent's position is that all that was permitted to be carried on at the RGI during 2006 was what was permitted by the special directions (which, if carried out, were treated "as done in pursuance of a licence": see section 23(3) at paragraph 21 above) and did not amount to the premises being "licensed". Fees would be chargeable for work carried out under special directions notwithstanding the absence of a licence.
The Respondent's position would seem persuasive if the treatments actually carried out were treatments authorised by the special direction. However, the argument of the Respondent in the judicial review proceedings was that any drug treatment that had been commenced before 1 January 2006 (which was the treatment authorised by the special direction) ought to have ended within 46 days (thus by about 17 February 2006: see paragraph 16 of Holman J's judgment). If this position was maintained, even allowing for some extension to the 46-day period, it is difficult to see how many of the IVF cycle treatments carried out from, say, March/April 2006 onwards could be said to have been carried out under the authority of the special direction.
There is plainly a question mark over the basis upon which the Respondent claimed justification for charging the fees for 2006. Although no explanation has been given, it is presumably because of that that these fees, despite being sought in the October letter, were not made the subject of the claim advanced in these proceedings.
However, the issue for present purposes is the status of the October 2012 letter. Is it the source of an arguable admission by the Respondent that the RGI was licensed during 2006, that this was known by the Respondent at all material times and that it also knew that treatment forms had been supplied by the Appellant for this period? And the question that follows that one, if the answers are in the affirmative, is to what extent does it afford the Appellant a cause of action against the Respondent and, if it arises, an answer to the limitation argument advanced by the Respondent?
The Master concluded that "there is no real prospect of [the Appellant] establishing that there was a licence in place for the period between 2006 -2010." In fact the relevant period for this purpose is January to November 2006, but nonetheless the period is included in the conclusion. He arrived at this conclusion by the following process of reasoning:
since the Authority was entitled to levy fees in respect of all treatments performed it is difficult to see upon what basis Mr Taranissi questioned the claim. In fact it appears that the Authority were content to consider the treatments as having been performed under the previous licence because if that had not been the case Mr Taranissi must have been performing unlicensed treatments and therefore have committed a criminal act or acts as the Authority had previously thought in 2007. On the 22nd October 2012 the [Respondent] wrote to the [Appellant] with respect to outstanding fees payable for 2006 which followed a report made by the [Respondent] in September 2011. Upon the basis of these documents the [Appellant] states that it inferred that the [Respondent] had accepted that the [Appellant] had held a valid treatment licence in 2006. In my view there is no sensible basis for drawing such an inference because it is common ground that the previous licence had lapsed, and therefore ceased to exist in 2005, that although the [Respondent] offered a new licence in June 2006 for three years that licence was subject to an additional condition but that Mr Taranissi had questioned the additional condition. He was entitled to do so but there is no evidence that this process was ever put in to place or that it was resolved or that a new licence was ever actually conferred. The conclusion reached by the Licence Committee in March 2010 indicates that no new licence was given in 2006
Ms Richards has attacked this reasoning by contending that the Master was wrong to say that the Respondent was "entitled to levy fees in respect of all treatments performed" because it could only levy fees authorised by statute. As a pure proposition of law that must be correct. She also says that he was wrong to say that "it appears that the Authority were content to consider the treatments as having been performed under the previous licence" because the Respondent has never made any such claim, its position always being that the previous licence had expired on 31 December 2005. Again, I think she is right about that. She also attacked the suggestion that if this was not the case Mr Taranissi "must have been performing unlicensed treatments and therefore have committed a criminal act or acts", drawing attention to the fact that the police decided there was no basis to proceed against him. I am not sure that the position is as black or white as either the Master or Ms Richards suggested. I am anxious not to be drawn into speculation myself, but it may be that the police were of the view that Mr Taranissi genuinely believed (albeit mistakenly) that the RGI continued to be licensed during 2006 and that it would not be appropriate in those circumstances to proceed with an allegation of a criminal charge.
Ms Richards criticises the Master for concluding as recorded in the first sentence of paragraph 70 above because, she contends, it reveals his fundamental misunderstanding of the Appellant's claim. I do not think that this aspect of the Master's reasoning betrays any misunderstanding of the Appellant's claim because he plainly understood that at the heart of the case that the Appellant wishes to advance is the contention that, contrary to the position maintained at the time by the Respondent, the treatment carried out during 2006 was licensed or was treated by the Respondent as licensed. However, I am more troubled by the fact that he records in at least two places in his very full and thorough judgment that he perceived the claim advanced in the Counterclaim to be based on establishing "that no licence was put in place in 2006" and that the claim advanced could only be made good if it was established that the Respondent "was in breach of a duty to renew the licence in 2006" (paragraph 13). In paragraph 14 of his judgment he said this:
it is clear that the Defence has not disclosed reasonable grounds for putting forward a claim for damages based upon the non-renewal of the licence in 2006. Moreover on the case pleaded and the evidence available there is no real prospect of the [Appellant] being successful on a claim that the [Respondent] was in breach of duty to renew the licence in 2006. It is to be noted that there is no allegation in the Counterclaim that the [Respondent] should subsequently have renewed the licence sometime after 2006. In my view to make good such a claim the [Appellant] would need to plead and establish on the evidence that it had made a subsequent application for renewal or taken up the consideration process relating to the condition contained in the [Respondent's] offer of 2006. No such allegation has been pleaded and there is no evidence at all to support such a case. In this respect the underlying premise behind the claim for damages for the period from 2006 to 2011 simply does not have any foundation."
Ms Richards accepts that the way the Counterclaim was pleaded (not by her or by other Counsel) was in some respects inadequate. The Master was critical of the drafting and it has to be said that it was not of the best quality (and Ms Richards has produced a re-draft that certainly reads better). However, it is necessary to give the existing pleading a fair reading and the reason that there was no allegation pleaded along the lines mentioned by the Master is that that was not the claim advanced. The claim advanced (whether as pure breach of duty, misfeasance in a public office or as interference with the Appellant's rights under Article 1 of the First Protocol) is based on the "common theme" referred to in paragraph 50 above. That theme did not involve the suggestion that the Respondent wrongfully failed to renew the RGI's licence for 2006.
The basis of the claim alleging misfeasance in a public office as advanced in the Counterclaim
I identified in paragraph 73 the essential nature of the claims now sought to be advanced. The primary case sought to be advanced is misfeasance in a public office.
What the Appellant sets out to allege is that the Respondent knew (i) that the Appellant was carrying out treatment at the RGI during the period from January to June 2006 that had to be licensed and (ii) that the Appellant was in fact licensed to carry out that work. If that can be established, then the Respondent's assertions to the contrary (which founded the actions summarised in paragraph 53 above) represent the factual basis upon which, in particular, the claim for misfeasance in the public office and interference with the A1P1 rights of the Appellant are advanced.
There is no dispute about the law in relation to misfeasance in a public office: Three Rivers DC v Bank of England (No. 3)  2 AC 1. Targeted or untargeted malice must be alleged and established, the former involving conduct specifically intended to injure a person or persons and the latter involving proof that the public official acted with reckless indifference to the illegality of his act and its consequences, the recklessness requiring a subjective element. As to the former, bad faith must be demonstrated in the sense that the power is exercised for an improper or ulterior motive and in respect of the latter the identity of those said to have acted with subjective recklessness must be established and their bad faith also established: London Borough of Southwark v Dennett  EWCA Civ 1091.
In his judgment the Master said that, in relation to misfeasance in public office (and indeed the claim for breaches of the Human Rights Act) "there are probably factual issues relating to these matters
which would require judicial consideration for their resolution". The Appellant does not, of course, complain about that assessment. Indeed I respectfully agree that there is sufficient material for at least the makings of a case to be advanced on either of the bases established in the Three Rivers case. That is merely a statement that a case could be advanced; it is not a statement that it would necessarily succeed.
The essential issue on this matter (or any other tortious way of advancing such a claim) is whether the Master was right to conclude that (a) the cause of action was statute-barred and (b) that the Appellant could not rely upon section 32 of the Limitation Act 1980 to rescue that position.
The Claim Form was issued 19 August 2014 and the Counterclaim is dated 31 October 2014. It was stamped by the QBD Action Department as having been received on 3 November 2014. If the cause of action accrued (see section 3 of the 1980 Act) before, say, 31 October 2008, it would prima facie be statute-barred.
Ms Richards submitted to the Master that a limitation defence should be pleaded: see CPR PD16, para. 31.1. No Defence to Counterclaim had been served and, accordingly, the issue had not been pleaded formally. It is right to say, however, that the witness statement of Mr Colin Gibson, the solicitor for the Respondent, dated 11 December 2014 and served in support of the strike out/summary judgment application raised the issue fairly and squarely. I respectfully share the view of the Master that this issue can be taken in this way in a summary judgment application and that approach is affirmed, albeit largely on the basis of pre-CPR authorities, in Brazier v News Group Newspapers Ltd, etc.,  EWHC 125 (Ch). Ms Richards did not renew the argument in her Grounds of Appeal.
Ms Richards submits that the "most fundamental point in relation to limitation is that the Master has erred in his approach to section 32 of the Limitation Act." This suggests that she accepts that any tortious claim (including misfeasance in a public office) is prima facie statute-barred. Indeed her Skeleton Argument contained the following passage:
had the Respondent revealed in March 2010, when it first communicated with the Appellant about fees, that it had the treatment forms and accepted that licensed treatments had been provided in 2006 at the RGI, rather than waiting until October 2012 to do so, a claim could have been brought within the primary limitation period."
As will be apparent from what I said at paragraph 64 above, I do not accept that construction of the first request for these fees, but nonetheless the Skeleton Argument appears to recognise that the claims are out of time although elsewhere there is reference to alleged continuing breaches of duty and losses sustained "beyond the events of 2006 and 2007".
It is well-established that in the normal course of events a cause of action does not accrue until damage occurs. The way the damages claim was advanced in the Counterclaim appears in paragraph 33 as follows:
"33. As a consequence of those breaches of duty and rights of the Defendant as set out above, the Defendant has suffered loss as follows:
33.1 Loss of profit caused by the Defendant being forced to stop carrying out treatments at the premises of the RGI and adverse press coverage estimated to be in excess of £10 million. A schedule of these losses will be served separately, and
33.2 Unrecovered legal fees consequent upon the warrant the Claimant obtained and executed on 15 January 2007, the Claimant's press conference on that date, relating to the RGI part of the BBC's defence of the defamation action brought by the Defendant and Mr Taranissi in relation to the Panorama programme broadcast on 15 January 2007, the judicial review proceedings and the licensing matters as set out above, estimated to be in excess of £3 million. A schedule of these expenses will be served separately."
Further particulars were given in a separate document where some alleged loss of profits were referred to and some unrecovered legal and public relation fees itemised.
The alleged loss of profits arose from the year ending 31 August 2007 through until the year ending 31 August 2011. The sum claimed was approximately £23 million.
So far as the unrecovered legal fees and public relation fees were concerned, sums were apparently paid to various firms of solicitors and to PR consultants. Against the name of each firm is a set of figures itemised against certain dates which indicate when various payments were made to the various firms. Many of the payments were made well before October 2008, though some post-dated that time. The way in which the document is produced is wholly unspecific and vague. The Master said that these matters had not been "properly or adequately pleaded" to such extent that they were "embarrassing". He struck them out as an abuse of process.
I have very considerable sympathy with that approach and, subject to what follows, I agree with it. Ms Richards says it is the wrong approach.
What seems to be being alleged in this very unspecific schedule is that from sometime in 2006 onwards losses started occurring as a result of the Respondent's alleged misrepresentation of the Appellant's position in the period between January and June 2006. The reality is that if any loss is attributable to this kind of misrepresentation of the Respondent's knowledge of what was happening at the RGI in that period, it started occurring when the need arose for the Appellant to take judicial review proceedings, to respond to the disciplinary and criminal proceedings, to bring the defamation proceedings and to deal with the further representations made about licensing arrangements. A great many of those "losses" occurred before October 2008 and, as it seems to me, they could not be recovered unless the limitation period was in effect extended to at least October 2008. It might have been arguable that losses arising after October 2008 could be recoverable if they could properly be said to have arisen from the "continued misrepresentation" of the Appellant's position thereafter, but they are completely un-particularised in the pleading. Even in Ms Richards' reformulated draft it appears that the £1.9 million paid to Clifford Chance was all paid prior to the end of October 2008, £1.6 million paid to Carter-Ruck was paid before that date, virtually all of the £340,000 paid to Bevan Brittan was paid prior to that date, £49,000 was paid to BCL Burton Copeland before that date and £64,500 was paid to Weber Shandwick before that date. All those "losses" were items of damage that occurred before the 6 years commencing on 1 November 2008. Even allowing for a continuing misrepresentation of the Appellant's position until that date (which may not be a justified position to adopt), any cause of action arising from the continuing misrepresentation would be statute-barred.
Could those claims be "rescued" through section 32? I do not think so. Ms Richards says that until the October 2012 letter the Appellant could not properly allege the bad faith necessary to support the misfeasance in public office allegation. However, if the Appellant's case is that the Respondent had received the information about the treatment carried out at the RGI during the period January to June 2006 and was deliberately (or recklessly) misrepresenting the licensing status of the RGI in, say, late 2006 into early 2007, the Appellant was in a position to make that allegation. The Appellant's case has to have been that the information concerning the treatment was passed over to the Respondent. As I understand it, for some reason, the Appellant was not able to prove that this information was supplied although the Appellant was clear that it had been so provided, certainly before January 2007. But simply because it was not possible to prove that the information had been conveyed does that mean that the allegation could not properly have been made. I do not understand why proof of this fact was not possible: someone within the Appellant's organisation must have been able to say that the information was conveyed to the Respondent if it was. However, be that as it may, the first request for payment of the outstanding fee (which was made in March 2010: see paragraph 64 above) was the first recognition by the Respondent that it had the information, and to that extent it offered the Appellant assistance in proving what otherwise could not have been proved, but that is not sufficient for section 32 to bite. The same can be said of the October 2012 letter. This is a reflection of the "statement of claim" test recently reaffirmed in Arcadia Group Brands Ltd and others v Visa Inc and others  EWCA Civ 883. The Master put it thus and I respectfully agree:
"In my view although the letter of the 22 October 2012 may have provided the [Appellant] with helpful evidence it did not provide a fact which it needed to establish a cause of action. In so far as it might prove to be relevant that was information which was always known to the [Appellant]."
Although the Master viewed the time at which loss occurred as January 2006 (which appeared to be the way the Counterclaim was pleaded), my view is that if loss occurred, it occurred later. However, I respectfully agree with his essential conclusion that all losses prior to October 2008 based upon misfeasance in a public office (and any other breach of a tortious duty arising from the alleged misrepresentation of the position between January and June 2006) are statute-barred and that any losses occurring thereafter are insufficiently particularised to save them from being characterised as "embarrassing".
Breach of section 8ZA and/or common law negligence
The terms of section 8ZA are set out in paragraph 16 above.
Ms Richards submits that by virtue of this section the Respondent was under a specific statutory duty to exercise its functions effectively, efficiently and economically and to act in accordance with best regulatory practice (including the principles under which regulatory activities should be transparent, accountable, proportionate consistent and targeted only at cases in which action is needed). She suggests that these statutory duties encompass duties to act in good faith and fairly when granting licences to IVF clinics, dealing with conditions of any licences granted by it and when exercising its functions towards licensed clinics (and not to favour one clinic over others or to disadvantage one clinic over other clinics). She submits that there are a number of considerations (including the fact that the sole statutory remedy in respect of specific licensing decisions is the procedure for making representations provided by the Act) that point in favour of finding an actionable duty.
Although this section was only effective from 1 October 2009 (see paragraph 16 above), and thus the Appellant's claim based upon the alleged specific breach of statutory duty can only be based on the Respondent's actions after that date, Ms Richards submits that section 8ZA merely puts into statutory form that which must in any event have been the position and is an indicator of a common law duty of care in negligence in any event. In that connection she submits that there is a special relationship between the Respondent and a licensed centre because of the considerable power which the Respondent can wield over the licensed centre. She contends that it is, at the very least, arguable that the Respondent owed it a duty of care to the Appellant as a licensed centre to act in good faith, fairly and transparently and that this duty was breached by reason of the repeated false assertions about what occurred at the RGI between January and June 2006.
The contention of Mr Pushpinder Saini QC and Mr Adam Solomon is that the duties set out in section 8ZA are at most "target duties" which, they contend, leave a wide discretion to the public authority as to how they should be pursued and fulfilled: R v Inner London Education Authority, ex parte Ali  2 Admin LR 822 and X (minors) v Bedfordshire County Council  2 AC 633.
They further argue that the duties set out in section 8ZA are expressed in sufficiently wide and general terms that they could not possibly give rise to an action for breach of statutory duty by a private individual. They also rely upon the approach of the House of Lords in Jain and another v Trent Strategic Health Authority  AC 853 in support of the proposition that statutory powers designed for the benefit or protection of a particular class of persons (which, they say, this section provides) will not give rise to a tortious duty of care on the part of those responsible for exercising those powers towards those whose interests may be adversely affected by the exercise of those powers.
The Master accepted those submissions.
Given that this is still, in effect, a strike out/summary judgment application, I have hesitated about whether I should come to a conclusion on that basis or leave the matter for more sustained argument and submission at a trial and treat this as a developing area of the law. However, it does seem to me that these arguments are sufficiently compelling for me to conclude, in agreement with the Master, that the converse is not reasonably arguable.
In my view, the position obtaining before the implementation of section 8ZA was not materially different. There could not have been any claim based upon breach of statutory duty because the express statutory duty did not exist. However, in the absence of bad faith (which could, in principle, found a claim for misfeasance in a public office) a common law duty of care in negligence was unlikely to be found to have existed because of the procedures provided for under the Act to challenge decisions made that adversely affected parties such as the Appellant. If that view was wrong, then, so far as this case is concerned, the opportunity to bring such a claim arose no later than early in 2007 and the limitation period had expired well before the Counterclaim was brought. For the reasons given previously, that position is not "rescued" by the October 2012 letter and section 32 of the Limitation Act.
The A1P1 claim
Finally, there is the claim based on the alleged interference with the Appellant's rights under Article 1 of the First Protocol.
The Master appears to have accepted (and I did not understand Mr Saini to argue otherwise) that, in principle, there might have been an arguable claim (or at least one that ought not to have been struck out) based on A1P1, but that it was significantly out of time and there was no basis for extending the short limitation period provided for under section 7(5) of the Human Rights Act 1998 which provides as follows:
"Proceedings under sub-section (1)(a) must be brought before the end of:
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question."
The Master said this:
"In my view the same considerations applied to the issue of whether there should be an extension to the one year time limit pursuant to section 7(5)(b) of the Human Rights Act 1998. The claim should have been brought within one year of the act complained of. For the reasons already given the [Appellant] had the information necessary to plead a case within the prescribed period and the [October 2012] letter did not provide new facts necessary for the [Appellant's] case to warrant the exercise of the discretion contained in the Act."
Again, I did not understand Ms Richards to suggest that any such claim was not out of time (although she did refer to the suggestion that where there is a continuing violation the time runs from when the breach was ended rather than when it began: see A v Essex  1 AC 280), but she complains that the Master's approach to the implications of the October 2012 letter was wrong for the reasons previously advanced. However, as I have indicated (see paragraph 89), I consider that the Master's analysis of the impact of that letter when properly applied to the facts was correct.
Nonetheless, the question remains as to whether focusing solely on the implications of the October 2012 letter was a sufficient discharge of the exercise of discretion called for by section 7(5). Ms Richards said that the Master failed to consider all the circumstances.
There is no doubt that the discretion to extend time in the particular circumstances of any case is a wide one: Rabone v Pennine Care NHS Foundation Trust  2 AC 72, per Lord Dyson JSC at . The words of section 7(5) are themselves wide. On that basis, I think that the Master's focus was too narrow which means that I must consider whether the circumstances are such that it is appropriate for the issue to be considered at a trial (or some other preliminary hearing) or whether the position is so clearly unarguable that it is appropriate to strike out the claim.
The starting point is the normal period for bringing a claim. As Jay J said in Bedford v Bedfordshire County Council  EWHC 1717 (QB) at  -
it is clearly the policy of the legislature that HRA claims should be dealt with both swiftly and economically. All such claims are, by definition, brought against public authorities, and there is no public interest in these being burdened by expensive, time-consuming and tardy claims brought years after the event."
Plainly, some good grounds must be shown for extending the time. Mr Saini has argued that the Appellant has failed to explain why it did not bring its claim for almost two years after the October 2012 letter (which is said by the Appellant to have been the trigger for appreciating the existence of the claim). But that starts from the premise that it was that letter that can fairly be said to have been the trigger. For reasons given previously, I think that the makings of this case existed much earlier. However, what Mr Saini has submitted goes more to the length of the delay rather than to the full extent of the reasons for not taking any steps until the Counterclaim was served. The reason for the delay in bringing the Counterclaim was spelt out in paragraph 9 of the Counterclaim as follows:
"This Counterclaim is advanced because of the Claimant's decision to issue these proceedings. Prior to the issue of these proceedings the Defendant made it clear to the Claimant in meetings that if the Claimant was prepared to let historical matters remain as matters of history and to focus on the future, it would be prepared to do likewise. The Claimant, however, has chosen to proceed to issue these proceedings. The catalyst for the Claimant's decision to issue proceedings appears to have been an adverse costs order against the Claimant and in the Defendant's favour. In June 2014, the Claimant's solicitors proposed that the allegedly outstanding fees be off-set against the legal costs owed to the Defendant. This proposal was rejected, and these proceedings were then issue by the Claimant."
Ms Richards sought to argue that the serious allegations relating to the conduct of the Respondent as a public authority (and the impact that its conduct had upon the Appellant over a prolonged period) was such that the substantive merits of the A1P1 claim made it equitable to extend time. She had no real answer to the obvious conclusion to be drawn from paragraph 9 of the Counterclaim, namely, that the Appellant only decided to launch the claims set out in the Counterclaim because the Respondent decided to sue for the outstanding fees.
A further reflection of this attitude can be seen in a letter of 15 September 2009 from Mr Taranissi's then solicitors (Clifford Chance LLP) when they wrote to the Respondent asking that documents and other materials were retained by the Respondent because "[our] client is contemplating bringing a claim for misfeasance in public office against certain individuals within the [Respondent], both past and present, in relation to their conduct towards our client in recent years." Since it was another 5 years before the Appellant sought to bring any such proceedings, it would seem that Mr Taranissi's "let sleeping dogs lie" approach governed his thinking for a good many years. Whatever other circumstances might be put forward for consideration as reasons for extending the time limit, and despite Ms Richards' valiant efforts to put forward cogent reasons, they will always be over-shadowed by the approach to which I have referred. That approach would never be a ground for extending the time limit, but always a weighty factor in not doing so. There is nothing to overcome that weight and for that reason I also am of the view that it is unarguable that the time limit should be extended.
Given my conclusion on these issues, I do not need to consider the argument advanced by Mr Saini concerning absolute privilege.
Although I have differed from the Master in some aspects of my assessment of this case, and there were one or two passages in his judgment where I respectfully consider his reasoning to have been flawed, overall I agree that this case should be struck out and that summary judgment for the Respondent should be entered.
Accordingly, the appeal is dismissed.
I should like to record my appreciation for the helpful submissions I received from Ms Richards and Mr Saini.
Copyright Policy |
Donate to BAILII