Smo v Hywel Dda University Health Board

For interim relief, the court applies the American Cyanamid principles: a serious issue to be tried, adequacy of damages, and the balance of convenience. Where a healthcare employer begins a working-relationships investigation during an existing professional disciplinary process, the court must assess objectively whether the investigation concerns matters within the contractual disciplinary regime or is an attempt to avoid its safeguards. A change of course covering substantially the same factual territory may amount to an arguable breach of contract. Parallel investigations may also be objectionable where they risk diminishing the efficacy, or creating the appearance of diminishing the efficacy, of the contractual disciplinary procedure. The appropriate interim remedy may be limited, preserving legitimate inquiries while restraining direct questioning of the practitioner until trial.

The claimant, a consultant colorectal surgeon employed by the defendant, had been suspended since 2016 during an investigation under Upholding Professional Standards in Wales (UPSW) into alleged conduct and capability concerns. The defendant later commenced a separate investigation into an alleged breakdown in working relationships, stating that it would not follow UPSW and seeking to interview the claimant.

The claimant sought an interim injunction restraining continuation of that investigation pending trial. The central issues were whether there was a serious issue that the investigation breached his contract, whether damages were an adequate remedy, and where the balance of convenience lay.

1. The court applied the familiar interim-injunction test in American Cyanamid [1975] 1 A.C. 396, as clarified in National Commercial Bank Jamaica Ltd v Olint Corpn Ltd [2009] 1 W.L.R. 1405: whether there was a serious issue to be tried, whether damages were an adequate remedy for either party, and where the balance of convenience lay.

2. Following Skidmore v Dartford and Gravesham NHS Trust [2003] UKHL 27 and Mattu v University Hospitals Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641, categorisation was an objective question for the court. The employer was not the final arbiter of whether the matters fell within the contractual professional conduct or capability procedure. The guidance in Mattu was equally applicable to UPSW.

3. The authorities showed that a working-relationships investigation may be distinct from a professional disciplinary investigation. However, where an employer changes course during ongoing disciplinary proceedings and investigates substantially overlapping factual matters while avoiding contractual safeguards, the court should be astute to prevent an illegitimate sidestepping of those procedures. The circumstances disclosed serious issues concerning overlap, possible pre-judgment, and at least the appearance of an unfair process.

4. It was also arguable that conducting two contractual processes contemporaneously could breach contract if it impeded, or appeared to impede, the efficacy of the UPSW process. The decisions in North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ. 387 and Chakrabarty v Ipswich NHS Trust [2014] EWHC 2735 (QB) concerned materially different parallel proceedings.

5. Damages were not an adequate remedy because the issue concerned access to contractual due process protecting matters at the centre of a medical practitioner’s professional life, whose value could not readily be assessed in money.

6. The injunction was therefore granted in limited form. The defendant and Dr Diggle were restrained from interviewing the claimant about the working-relationships investigation until trial or further order. Inquiries of other persons could continue, and directions were to be made for a speedy trial.