Court of Appeal

Published April 10, 2007

Regina (Malik) v Waltham Forest Primary Care Trust and Another

Before Lord Justice Auld, Lord Justice Rix and Lord Justice Moses

Judgment March 28, 2007

The ability to earn a living was not a right of possession such as was capable of protection under the European Convention on Human Rights.

The Court of Appeal so held allowing an appeal by the defendant, Waltham Forest NHS Primary Care Trust and the interested party, the Secretary of State for Health, from a decision of Mr Justice Collins in the Queen’s Bench Division ( The Times May 26, 2006), allowing an application by the claimant, Dr Zafar Iqbal Malik, for judicial review of the defendant’s decision to suspend him from practice on full pay pending investigations.

Mr Jason Coppel for the defendant and the interested party; Mr Philip Engelman for Dr Malik.

LORD JUSTICE AULD said Dr Malik, a general practitioner in east London since 1978, had been suspended unlawfully from the National Health Service performers list under the National Health Service Performers List Regulations (SI 2004 No 585) by the defendant in January 2005, preventing him from performing NHS work anywhere in the country.

The sole issue on appeal was whether the suspension gave rise to deprivation of a possession so as to engage article 1 of the First Protocol to the Convention.

The judge had concluded that the right to practise a profession was capable of being a possession, as was a licence to carry out economic activity, and that inclusion on the performers list was sufficiently akin to a licence.

It was common ground before the judge that article 1 protected a right to existing, vested possessions, but not to a future right to receive possessions.

The Court of Appeal in R (Countryside Alliance) v Attorney-General ( The Times June 30, 2006; [2006] 3 WLR 1017) had held that a person’s livelihood could not amount to a possession, declining to follow the approach of the Inner House in Adams v Scottish Ministers (2004 SC 655).

In Wendenburg v Germany (Application No 71630/01) (Reports of Judgments and Decisions 2003-II, 347) the European Court of Human Rights at Strasbourg appeared to regarded a legitimate expectation of future earnings as a species of article 1 possession. That was a shadowy type of possessory entitlement and the Court of Appeal’s approach in Countryside Alliance was preferable.

Goodwill might be form of article 1 possession, but that did not apply to Dr Malik’s case because regulations prevented a doctor selling goodwill. Without goodwill mere prospective loss of future income could not amount to a possession for article 1 purposes.

Could a personal permission, in the form of inclusion on a professional list, be an article 1 possession? The judge had extracted from two domestic authorities the broad proposition that the right to practise a profession could be regarded as a possession, conferring article 1 protection on Dr Malik for payments he hoped or expected to earn from the defendant in the future but had not yet earned.

His Lordship distinguished one of the two authorities: R (Quark Fishing) v Secretary of State for the Foreign and Commonwealth Office (unreported [2003] EWHC 1743 (Admin)) affirmed on appeal ([2005] QB 93), and treated the other, Crompton v Department of Transport ( The Times February 7, 2003) as of little weight.

He preferred the view taken by Mr Kenneth Parker, QC, sitting as a deputy High Court judge in Nicholds v Security Industry Authority (unreported [2006] EWHC 1792 (Admin)) and held that the judge had wrongly concluded that the personal right of Dr Malik to practise in the NHS flowing from his inclusion in the performers list was a possession within article 1.

Lord Justice Rix and Lord Justice Moses gave concurring judgments.

Solicitors: Capsticks, Solicitor, Department of Health; Edwards Duthie

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