Anandh, Estate of & Anor v Barnet Primary Health Care Trust & Ors

A statutory prohibition on an unqualified person performing sight tests does not, without more, make the related service contract unlawful or void. The court must examine the statutory language, scope and purpose, the mischief addressed, public policy and consequences for innocent parties. Where a regulatory body has approved a practitioner, an arguable case may remain that the approval is effective unless set aside, even if the approval was mistaken. A person shown on the relevant list may also fall within the regulatory definition of contractor, which does not expressly require doctor status. Restitution or constructive-trust claims may require avoidance of the contract. If liability for separate overpayments is admitted, judgment on liability may be entered while factual accounting issues are determined.

The estate of Dr Anandh appealed, with limited permission, against an order of Lloyd J dated 11 April 2003. The order required repayment of fees received for sight tests and maintained a judgment in default. The Trusts alleged that Dr Anandh had not been entitled to registration under the National Health Service (General Ophthalmic Services) Regulations 1986, and that payments were recoverable for mistake, ultra vires payment, illegality or constructive trust. They also claimed separate overpayments for tests and visits not carried out.

The appeal concerned whether the contracts or payments were unlawful or void, whether restitution required avoidance of the contracts, and whether judgment could be entered on the admitted overpayments despite factual disputes.

1. Disposition. The appeal on the repayments claim was allowed. The appellant was given permission to defend that claim. The appellant’s appeal on the overpayments claim was dismissed, but the respondents’ cross-appeal was allowed so that judgment could be entered on liability for any overpayments, with an account and enquiry directed.
2. On summary judgment, the relevant question was whether the proposed defence had a real, rather than fanciful or imaginary, prospect of success. Disputed factual issues, including what the parties knew about Dr Anandh’s registration, could not be resolved summarily. Points of statutory interpretation that had not been fully argued were also left for trial.
3. There was a real prospect that approval by the Ophthalmic Qualifications Committee under regulation 4 of the National Health Service (General Ophthalmic Services) Regulations 1986 was effective unless and until set aside, notwithstanding the Committee’s error. The definition of contractor on the face of regulation 2 required an undertaking to provide services and inclusion in the ophthalmic list. It did not expressly require the person to be a doctor. The validity and effect of the approval therefore required further consideration.
4. Section 24 of the Opticians Act 1989 criminalised the performance of sight tests by an unqualified person. It did not, of itself, render contracts for the provision of sight tests unlawful or void. Applying the reasoning in Phoenix General Insurance Co of Greece SA v Halvanon Insurance Co Ltd [1988] 1 QB 216, the question depended on the statutory language, purpose, public policy and consequences for innocent parties. The court also relied on Tinsley v Milligan [1994] 1 AC 340 in considering those consequences.
5. If avoidance of the contracts was necessary before restitution or a constructive-trust claim could be brought, the Trusts had not avoided them. If avoidance was no longer possible, their remaining claim might be one for damages for breach of contract. The estate also had a substantial change-of-position argument, subject to issues including Dr Anandh’s knowledge of his lack of entitlement.
6. Liability for the overpayments was admitted. Entering judgment on liability would reduce the issues for trial, while detailed factual questions as to the amount could be determined by the Master under the overriding objective.

1. Court of Appeal (Civil Division) — [2004] EWCA Civ 5: allowed the appeal on the repayments claim, dismissed the appellant’s appeal on the overpayments claim, and allowed the respondents’ cross-appeal on overpayments.
2. High Court of Justice, Chancery Division — Lloyd J, by order dated 11 April 2003, ordered repayment of fees and maintained judgment in default. The judge’s conclusions on limitation and quantum meruit were not challenged on this appeal.