Taxi Driver Online

We at TDO are always looking out for the unexpected and Alex, Dusty and I give a great deal of our time in order to empower you TDO subscribers with the rudiments of licensing law. I hope we all remember the Royden v Wirral case. Well here is a by product of that case which cites the specific meaning of possession as per Royden.

R (on the application of Malik) v Waltham Forest Primary Care Trust (Secretary of State for Health, interested party)

[2007] EWCA Civ 265
COURT OF APPEAL, CIVIL DIVISION
AULD, RIX AND MOSES LJJ

25 OCTOBER 2006, 28 MARCH 2007

Medical practitioner – Professional misconduct – Suspension – Protection of property – Medical practitioner suspended from medical performers list – Whether breach of right to protection of property – Whether inclusion in list a 'possession' – Human Rights Act 1998, Sch 1, Pt II, art 1 – National Health Service (Performers Lists) Regulations 2004, SI 2004/585 – Primary Medical Services (Sales of Goodwill and Restrictions on Sub-contracting) Regulations 2004, SI 2004/906.

The claimant was a doctor with a NHS practice. By the National Health Service (Performers List) Regulations 2004 a general practitioner had to be included in a medical performers list maintained by a primary care trust in order to practise. Once on the list a doctor had to enter into a contract with the primary care trust if he was to provide NHS services. The 2004 regulations provided a mechanism for removal of a doctor from the list and for suspension for the protection of members of the public or where it was otherwise in the public interest. In January 2005 the claimant was suspended from the list by the defendant primary care trust; the effect of the suspension was to prevent him from using his surgery premises for performing services for his NHS patients and from performing NHS services anywhere else in the country. He brought proceedings for judicial review in which the Secretary of State appeared as an interested party. The judge found that the series of decisions which had led to his suspension had been unlawful and that the suspension was in breach of the right to protection of property under art 1( Article 1 is set out at [3], below) (of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 of the Human Rights Act 1998), holding that inclusion on a performers list was akin to a licence and amounted to a 'possession' within art 1. It was not disputed that the effect of the Primary Medical Services (Sales of Goodwill and Restrictions on Sub-contracting) Regulations 2004 prevented a doctor from selling any goodwill or patient lists to a third party but the judge held that while the goodwill of the practice was not marketable, inclusion on the performers list had an intrinsic value. The defendant and the interested party appealed.

Held – The personal right of the claimant to practise in the NHS flowing from his inclusion in the performers list was not a possession within art 1 of the First Protocol to the convention as a person's livelihood, in the sense of a future right to income, as distinct from a vested right to it or a separate element of professional or business goodwill, could not amount to an art 1 possession. The statutory denial of any marketable goodwill in the claimant's patients list

[2007] 4 All ER 832 at 833 meant that the list had no economic value and could not constitute a 'possession'. A licence was not itself a 'possession' and whether the economic interests that flowed from it were a possession depended on the facts. The claimant's inclusion on the performers list, not being a distinct asset with a monetary value, was not a 'possession'. Accordingly, the appeal would be allowed (see [23], [29], [39], [40], [43], [45], [48], [52]–[54], [66], [70], [73], [74], [76], [79], [80], [82], [86], [87], below).

R (on the application of the Countryside Alliance) v A-G, R (on the application of Derwin) v A-G [2007] QB 305 applied.
R (on the application of Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWHC 1743 (Admin) distinguished.
Crompton (t/a David Crompton Haulage) v Dept of Transport North Western Area [2003] RTR 517 and R (on the application of Nicholds) v Security Industry Authority [2007] 1 WLR 2067 considered.
Decision of Collins J [2006] 3 All ER 71 reversed.
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I’m going to cut to the quick and get down to the Nitti gritty.

The questions of principle in this case—which is concerned with potential loss of livelihood—is, therefore, whether economic value is a distinguishing feature of a possessory right and whether it can only be identified in the sense of marketability. If it is not so confined, where, in any given case is the boundary between an art 1 possession and some other and broader convention right not amounting to such a possession?

In my view, good sense and the Strasbourg and domestic authorities require separate consideration of claimed future monetary entitlements from a claimed future entitlement based on a personal interest in enjoyment of it but not involving any monetary claim. When considering a claimed future monetary entitlement derived from an instrument such as a licence or permit, a court should focus first on whether the entitlement has a present economic value to him in the sense of being marketable by him. Thus, in Legal & General Assurance Ltd v Kirk [2001] EWCA Civ 1803, [2002] IRLR 124, which was not cited to Collins J, this court rejected the notion that a licence was itself capable of being an art 1 possession. The court was primarily concerned to distinguish the facts of that case, where the 'possession' claimed was the right to seek employment of a particular type, from cases where a public authority has granted a licence to carry on a particular trade.

In making that distinction, Jonathan Parker LJ, with whom Ward LJ and Harrison J agreed, noted (at [41]) that in licence cases 'the economic interests which derive from the grant of such a licence may fall to be treated as, in effect, rights of property'. The corollary of that reasoning would appear to be that the licence itself is not the 'possession' and that whether the economic interests that flow from it are a possession depends on the facts, one of which may be the marketable goodwill that can flow from the exercise of a licensed trade, in effect, the Van Marle or the Tre Traktörer type of case.

In R (on the application of Royden) v Wirral Metropolitan BC [2002] EWHC Admin 2484,[2003] LGR 290, which concerned the claimed 'premium value' of hackney carriage licences, Sir Christopher Bellamy QC concluded (at [120]), after considering Van Marle's case, the Tre Traktörer case and other Strasbourg cases, that, while he could accept that the withdrawal of a licence could amount to the determination of a 'civil right' for the purpose of art 6 of the convention, he had 'some difficulty in accepting that an authorisation granted by the state under public law to carry on a particular activity is, in itself, “property” or a “possession” within the meaning of art 1'.

Regards

JD

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