Regina (Malik) v Waltham Forest NHS Primary Care Trust: [2007] EWCA Civ 265

CA: Auld, Rix and Moses LJJ: 28 March 2007

The claimant, a general practitioner, was unlawfully suspended from its performers list by the defendant trust, acting pursuant to regulation 13 of the National Health Service (Performers Lists) Regulations 2004. Though his contract as an NHS provider remained in force during his suspension, he was no longer able to perform medical services under the NHS. The trust continued to pay him under the contract at 90% of the normal contractual monthly payment, being his full pay less working expenses, which he was no longer incurring. During the suspension the trust also provided locum cover for the claimant's practice. He was still at liberty to perform services for private patients at his surgery outside the NHS. The claimant was granted judicial review of the suspension on the basis that his inclusion on the list of authorised practitioners was a "possession", so that his unlawful suspension violated article 1 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms.

The trust and the Secretary of State for Health, an interested party, appealed.

The Court of Appeal held:
While the assets of a business might include possessions for the purposes of article 1 of the First Protocol in the form of clientele or goodwill, where such clientele/goodwill did not exist, the mere prospect of future loss could not amount to a possession for that purpose. Where the possessory right relied on was, as in the present case, to some intangible entitlement conferred by a licence or other form of permission to the grantee to follow an activity to his advantage, some additional factor, such as the existence of some present economic value, was necessary to render it a possessory entitlement, and an individual's monetary loss of future livelihood could not on its own constitute a possession. Since regulation 3 of the Primary Medical Services (Sales of Goodwill and Restrictions on Subcontracting) Regulations 2004 prohibited the claimant from selling the goodwill in his practice, including that element of goodwill arising from patients coming to him because of his personal reputation or qualities, his goodwill had no economic value. Accordingly, the claimant's personal right to practise in the National Health Service flowing from his inclusion in the performers list was not a "possession" within article 1 of the Protocol.

The appeal was allowed.

Appearances: Jason Coppel (Capsticks; Solicitor, Department of Health) for the defendant trust and the Secretary of State; Philip Engelman (Edwards Duthie) for the claimant.