Shalaby v London North West Healthcare NHS Trust

An appellate court should not retry factual disputes. It should review the trial judge’s decision and interfere only where the findings lack evidential support, result from a misunderstanding of the evidence, or are ones no reasonable judge could have made. A trial judge may determine contractual working arrangements from the whole evidential record, including agreed variations and subsequent working arrangements, even where no formal job plan has been finalised. Under CPR 36.17(3), failure by a claimant to beat a defendant’s Part 36 offer normally attracts costs from the end of the relevant period on the standard basis. Indemnity costs require an additional circumstance taking the case out of the norm.

A doctor employed by the respondent NHS Trust claimed contractual underpayment for participation in an on-call rota between September 2012 and June 2015. The High Court rejected the claim, finding that his contractual arrangements required 10 ordinary programmed activities plus two on-call activities, and dismissed the claim on 27 January 2017.

The Trust had made a Part 36 offer which the appellant failed to beat. The High Court ordered costs on the indemnity basis from 1 November 2015. The appellant appealed both the dismissal of his substantive claim and the costs order. The central issues were whether the trial judge had erred in reviewing the evidence and contractual documents, and whether indemnity costs followed under CPR 36.17.

1. Substantive appeal dismissed. The Court of Appeal applied the appellate restraint described in Weymont v Place [2015] EWCA Civ 289. The function of an appeal court is to review the trial decision, not rehear the factual dispute. Interference is justified only where there was no evidence to support the findings, the judge misunderstood the evidence, or the findings were ones no reasonable judge could make.
2. The trial judge was entitled to find, on the documentary and oral evidence, that the appellant’s 2009 Job Plan was historic and no longer governed his employment after his return from secondment. The May 2012 Staff Variation Form recorded a 40-hour basic week and 10+2 sessions. The absence of a later formal standing Job Plan did not prevent the judge finding that weekly plans, with some flexibility, governed the appellant’s duties under that contractual framework.
3. The criticisms concerning the Trust’s failure to provide updated written terms, the Working Time Regulations opt-out material, the fee-remission issue, and various job-planning documents did not undermine the central findings. The judge was entitled to prefer the Trust witnesses’ evidence and to conclude that the on-call duties fell within the agreed 10+2 basis.
4. Costs appeal allowed. It was common ground that the appellant had failed to beat the Trust’s Part 36 offer, so CPR 36.17(1)(a) and (3) applied. Those provisions require costs from the relevant date unless unjust, but do not automatically require indemnity costs. Following Excelsior Industrial and Commercial Holdings v Salisbury Hammer Aspden and Johnson [2002] EWCA Civ 879, an indemnity order requires conduct or another circumstance taking the case out of the norm. No such case was advanced or established.
5. The costs order was substituted so that the costs below were payable on the standard basis. The appellant was ordered to pay the respondent’s appeal costs, except that the respondent was to bear the costs of its own Respondent’s Notice. Permission to appeal to the Supreme Court and an extension of time were refused.

• Court of Appeal (Civil Division) — The appeals were heard from orders of Andrew Baker J dated 27 January 2017. The substantive appeal was dismissed. The indemnity-costs order was set aside and replaced with an order for costs on the standard basis: [2018] EWCA Civ 1323.
• High Court of Justice, Queen’s Bench Division — The appellant’s breach-of-contract claim was dismissed. Costs were ordered on the indemnity basis from 1 November 2015.