Michalak v Mid Yorkshire Hospitals NHS Trust

When an interim injunction may effectively determine the dispute before trial, the court must assess the applicant’s prospects of success to the extent justice requires and weigh them with the practical realities of the case. A serious question to be tried is insufficient by itself.

The balance of justice includes the interests of both parties, witnesses, decision-makers and the public. Delay and the preservation of the realistic status quo are relevant. The courts remain slow to grant injunctions which enforce contracts of personal service by requiring reinstatement.

The claimant, a consultant physician, had been suspended and excluded from work by the defendant NHS Trust. A disciplinary hearing was due to take place under the Trust’s 2005 procedure. The claimant contended that her contract incorporated the earlier HC(90)9 procedure and sought interim relief to restrain the proposed hearing and require her reinstatement.

The court considered the jurisdictional objection based on Johnson v Unisys Ltd [2003] 1 AC 518, the principles governing interim injunctions, delay, and the relative merits of the contractual dispute.

1. Interim injunction principles. The court assumed that the contractual claim raised a serious question and that damages would not adequately compensate either party. The decisive issue was the balance of justice. Where granting or refusing an injunction would probably dispose of the litigation before trial, the court must make an assessment of the claimant’s prospects of success and weigh those prospects with the practical realities. The assessment should be no more extensive than justice requires: Fellows & Son v Fisher [1976] 1 QB 122 and Lansing Linde v Kerr [1991] ICR 428.
2. The court considered the likely consequences of either course, including further delay to the disciplinary process, the Trust’s operational and public interests, the claimant’s exclusion from work, the interests of the proposed tribunal and witnesses, and the fact that the claimant had waited until June 2007 to raise the contractual issue. After that delay, the realistic status quo was the claimant’s continued exclusion and the parties’ conduct of the process under the 2005 procedure.
3. The applications for reinstatement and for deferral of the disciplinary hearing had to be advanced on a consistent basis. The claimant’s alternative cases were inconsistent for interim purposes. The court was also slow to grant relief requiring reinstatement in a contract of personal service. The authorities relied on, including Mezey v South West London and St George’s Mental Health NHS Trust [2006] EWHC 3473 (QB), [2007] EWHC 62 (QB) and [2007] IRLR 237, Kircher v Hillingdon Primary Care Trust [2006] EWHC 21 (QB) and [2006] Lloyd’s Law Reports 215, and Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust [2005] EWHC 2407, did not justify the relief sought on these facts.
4. The contractual arguments concerning HC(90)9, the 2005 procedure, the contractual documents, regulations and NHS collective bargaining arrangements required fuller consideration and possibly oral evidence. The claimant’s case was arguable, but it was not clearly right, was not shown to have better than an even chance of success, and was not disproportionately stronger than the Trust’s case.
5. The applications for interim relief, including the requested declaration and injunctions, were dismissed.