Waltham Forest NHS Primary Care Trust & Anor v Malik, R (on the application of)

Article 1 of the First Protocol protects existing and vested assets. It does not protect a professional’s unmarketable personal capacity to earn future income. Goodwill or clientele may be a protected possession where it is an existing asset with economic value. A personal regulatory permission to perform services is not, without more, a possession merely because it enables the holder to work.

Accordingly, an NHS doctor’s inclusion on a performers list was not an Article 1 possession where the doctor’s patient list and goodwill could not be sold, the NHS contract remained in force, and the claimed value depended on future earnings. The court must identify an existing asset or enforceable entitlement, rather than recast anticipated income as a property right.

Dr Malik was a sole-practitioner general practitioner with an NHS contract. He was included on the primary care trust’s performers list, which was a condition of his personally performing NHS medical services.

The trust suspended him from that list. Collins J in the Administrative Court held that the suspension was unlawful and that it interfered with a possession protected by Article 1 of the First Protocol. The finding that the suspension was unlawful was not challenged on appeal.

The trust and the Secretary of State appealed on the sole issue whether inclusion on the performers list, and the ability to perform NHS services flowing from it, was a protected possession. Dr Malik’s NHS contract continued during suspension, with replacement payments and locum arrangements for his patients.

1. Appeals allowed. The court unanimously held that Dr Malik’s personal inclusion on the performers list was not a “possession” for the purposes of Article 1 of the First Protocol.

2. Article 1 distinguishes existing, vested assets from a future income stream. Business or professional goodwill, including an established clientele, may be a protected asset. However, an unmarketable personal ability or reputation that can only be exploited to earn income in the future is not a possession. The court followed the approach in R (Countryside Alliance) v Attorney General [2006] EWCA Civ 817, and rejected a separate intermediate category based on livelihood or legitimate expectation.

3. Regulation 3 of the Primary Medical Services (Sales of Goodwill and Restrictions on Sub-contracting) Regulations 2004 prevented Dr Malik from selling the goodwill of his practice or his patient list. His claimed NHS goodwill therefore had no separate economic value capable of amounting to a possession.

4. Inclusion on the performers list was a personal regulatory condition for performance of NHS services. It was not a transferable asset or property right in itself. The court distinguished licences capable of transfer or of conferring value on an underlying business asset. It declined to follow the broad, unargued treatment of a road-haulage operator’s licence in Crompton v Department of Transport [2003] EWCA Civ 64.

5. In any event, Auld LJ observed that there was no evidence of material interference with an existing asset. Dr Malik retained his NHS contract, received 90% replacement payments, and his patients continued to receive services through a locum. The loss of notional rent and any loss flowing from patient numbers concerned anticipated income, not a vested possession. Any financial remedy lay, if at all, under the NHS contract rather than Article 1.

• Court of Appeal (Civil Division) Allowed the appeals and held that inclusion on the performers list was not a possession under Article 1 of the First Protocol: [2007] EWCA Civ 265.
• High Court, Administrative Court Collins J held that the doctor’s unlawful suspension from the performers list interfered with a protected possession. That ruling was reversed on the Article 1 issue. No citation for the lower-court ruling was stated in the judgment.