Claim No 1995 S No 1795
Neutral Citation Number: [2006] EWHC 1295 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wed 24th May 2006

Before:

JOHN LEIGHTON WILLIAMS QC
Deputy High Court Judge
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BETWEEN :

(1)	AZZIZUL HAQUE SIDDIQUI
(2)	TASNEEM PARVEEN SIDDIQUI
Claimants

and

JAMES AND CHARLES DODD (A Firm)
Defendants
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JUDGEMENT
1.	This is a claim for damages for professional negligence and breach of contract founded on a failure by the Defendants, as the Claimants’ solicitors, to take reasonable care in the pursuit of an appeal.  The appeal was against an order made by a justice of the peace cancelling the Second Claimant’s registration under The Registered Homes Act 1984 in respect of premises known as The Mini Hospital at 156 Shooter’s Hill Rd, Charlton, London SE3 8RP, where the Second Claimant had been registered to carry out 37 specified medical operations under local anaesthetic.  Although The Mini Hospital has also traded as Mini Hospital Limited and the Nursing Home for Surgeries, no point has been taken on the name employed and I shall describe it throughout as “The Mini Hospital”.  

2.	The Claimants’ case is that the Defendants failed to lodge an appeal against the order to the Registered Homes Tribunal in time as a result of which the tribunal decided it had no jurisdiction to hear the appeal.  They claim that they thereby lost the opportunity of overturning the order, their investment was wasted and they lost the opportunity of developing their business, which they contend would otherwise have prospered.  They seek substantial damages.  The Defendants say they sent the appeal notice of appeal in time but to the wrong person.  They accept their failure amounts to a breach of duty.  However, they say that even if the appeal had been heard it would not have succeeded and even if it had succeeded the registration would have been withdrawn soon after.  They say the Claimants have lost nothing.    

3.	The case has taken a somewhat unusual course.  The present proceedings were issued in 1995.  Progress appears to have been hindered in part by the Claimants’ lack of funds.  They no longer have the benefit of legal aid.  Their most recent solicitors came off the record 13th April 2006.  Cox J recently refused an application for an adjournment but delayed start of the trial by 2 days.  The Claimants were represented by their son, Ahmed, for the first 3 days, then by the First Claimant, Mr Siddiqui.  Their son, Faisal addressed me in closing.  

4.	The Claimants have relied on oral evidence from Mr Siddiqui, Dr Akramulhaq, a consultant anaesthetist, and Mr Lavelle, a consultant ENT surgeon.  Over the years they have instructed a number of experts.  Of these Mr Kabraji, an accountant has died and Mr Lawler, an accountant who followed on from Mr Kabraji has not been called, nor has Mr Keeling, a valuer.  I understand they have not been called because of lack of funds.  Mrs Siddiqui has not been called nor have the lay witnesses Dr Akinloye and Dr Odedun.  I was given no explanation why Mrs Siddiqui was not called.  I was told Dr Akinloye could not be found : his statement is unsigned.  I was told Dr Odedun was not available.  He was due to be called first on the Thursday and then on the following Wednesday but the court was not sitting that day : his statements are signed but not sworn.  In the case of all these uncalled witnesses the Defendants, whilst not agreeing the witnesses’ reports/statements (indeed they challenge much of the contents), have very fairly not sought to prevent their evidence being put before me but leave the weight of such evidence to me, reminding me that there has been no opportunity for cross-examination. 

5.	The Defendants cross examined the Claimants’ witnesses closely but were content for the most part to call their own witnesses to confirm their witness statements and then leave them to be cross-examined.  Cross-examination by the Claimant’ son, Ahmed Siddiqui and by Mr Siddiqui was polite but short.  

6.	In the result I have been left with each side relying on witness evidence contained largely in the form of written statements and documents in the agreed bundles.  Documents one might reasonably expect to have been made available are either missing or have not been produced.  In particular, there has been a surprising lack of contemporary financial documents, such as accounts from the Claimants, and there is a lack of contemporary internal notes from the local health authority,  

7.	The relevant statutory provisions

The premises would now be subject to the Care Standards Act 2000 but at the time the relevant provisions were contained in The Registered Homes Act 1984 (“the Act”).  Under the Act, premises used or intended to be used for the carrying out of surgical procedures under anaesthesia were nursing homes within Section 24(1)(c) of the Act and had to be licensed for use.  The licensing provisions were contained in Sections 24-34 of the Act.  Under Section 24 it was a criminal offence to carry on a nursing home without being registered.  By Section 25 the Secretary of State might refuse to register an applicant where he was satisfied inter alia that the applicant or any person employed or proposed to be employed by him was not “a fit and proper person” to carry on or be employed in a nursing home, as the case may be, or for reasons connected with the “situation, construction, state of repair, accommodation, staffing or equipment”, the home was not fit to be used as such a home.  Under Section 28 the Secretary of State could at any time cancel registration on any ground which would entitle him to refuse registration.  Section 30 enabled such cancellation or variation of conditions attaching or the imposition of additional conditions to be done by application to a justice of the peace who had power to cancel, vary or add to the terms of the licence as appropriate if it appeared to him “that there will be a serious risk to life, health or well-being of the patients in the home unless the order is made”.  Other than under Section 30 the Secretary of State had to give any person registered notice (I was told 14 days) of any proposal to cancel the registration or vary or add to the conditions attaching.  Section 34 provided that appeals against Section 30 orders should be made to a Registered Homes Tribunal.

These provisions have largely been retained in the Act of 2000.

8.	Under the Act the Secretary of State had power make regulations implementing the Act’s provisions.  The Nursing Homes and Mental Nursing Homes Regulations 1984 provided inter alia for : records to be kept of patients and surgical operations performed ; the provision of adequate professional technical and ancillary staff ; the provision and maintenance of adequate medical surgical and nursing equipment and treatment facilities ; the taking of adequate fire precautions; and adequate arrangements for the recording, safe keeping, handling and disposal of drugs.
 
9.	The Secretary of State authorises local health authorities to act on his behalf.  In the present case the local health authority in 1990 was Greenwich Health Authority which merged with other local health authorities in 1993 and became the Bexley and Greenwich Health Authority.  I shall describe the local health authority throughout as  “GHA”.  The Act distinguished between the person registered under the Act to operate the home and the person in charge of the home, although they might be the same person.  The person registered did not have to be clinically qualified.  The person in charge had to be either a registered medical practitioner or a qualified nurse.  Frequently the person in charge was a qualified and experienced nurse.

10.	Guidance for those running nursing homes

In 1985 the National Association of Health Authorities in England and Wales published a handbook for health authorities entitled “Registration and Inspection of Nursing Homes” (“NAHA”).  This was followed in 1993 by a supplement published by the National Association of Health Authorities and Trusts and the Society of Family Practitioner Committees (“NAHAT”).  They provide helpful commentaries on the requirements of the 1984 Act and Regulations.  In addition GHA published its own extensive guidance.	   	

11.	The Registered Homes Tribunal

Part III of the Act dealt with the constitution of the tribunal and establishing its procedures.  In 1989 the Department of Health published a commentary on the statutory provisions entitled “Registered Homes Tribunals Procedure”.  The tribunal comprised a legally qualified chairman appointed from a panel and 2 expert members also appointed from a panel and who had to have experience in social work, medicine, nursing or midwifery or other experience considered suitable.  For nursing home appeals one of the experts had to be a doctor and the other a nurse.  The Registered Homes Tribunals Rules 1984 made provision for the exchange of witness statements, representation, the calling of witnesses and like matters.  Although the procedure during the hearing was for the tribunal to decide it is apparent that it would normally follow that in a civil court.  Reasoned decisions would be provided following the hearing.

12.	I have not been referred to any statutory provision dealing with whether the appeal should be by way of review or re-hearing.  Mr Nicol for the Defendants sought to persuade me that the process was akin to that of review so that if the view taken by the justice of the peace making the order was a permissible view the tribunal ought not to interfere with it.    In Lyons v East Sussex County Council CA 18th December 1987, to which the Defendants’ solicitors kindly drew my attention following the hearing, Glidewell LJ said “When it comes to the tribunal there is a full hearing de novo” (Transcript p10, bottom lines).  Prior to the 1984 Act such appeals would have been heard by a magistrates’ court and the procedures laid down suggest rehearing is more likely be the correct approach.  I shall assume in the Claimants’ favour that the Tribunal would have reheard the case and reached its own decision on the merits.

13.	General Background

Mr and Mrs Siddiqui

Mr Siddiqui was born in India in 1938, came to the UK in 1961, pursued studies at or with Catford College of Commerce, Woolwich Polytechnic, the Institute of Management Accountants and the Institute of Chartered Secretaries and achieved a degree in economics.  He trained as a costs account clerk and worked as an assistant accountant.  In the 1970s he began developing properties, living in them whilst they were being refurbished.  He is not medically qualified and, when he embarked on this venture had, I am satisfied, little understanding of what local health authorities would require by way of facilities and services available before they would grant registration for carrying out medical operations at the premises.  It is his case that he had no detailed medical knowledge but relied on others, including GHA for advice.  He complains that GHA failed to make their requirements clear to him and says that had they done so he would have met them.

14.	Mrs Siddiqui, now aged 62, has an MSc.  In 1991 she was employed as a science teacher.  I was told by Mr Sidiqui that before 1991 they had both been concerned in the business venture.  In evidence he suggested they had both  played a part in it since 1991.  It is clear that the registration was formally in Mrs Siddiqui’s name but her written statement says that apart from this she had not taken an active part in the business since 1991.  I have heard of little active part played by Mrs Siddiqui other than the signing of formal documents, sometimes being a vehicle for correspondence concerning the venture, attending some meetings with GHA and being present on occasions when patients attended for treatment.   I am satisfied that to all intents and purposes the business was run by Mr Siddiqui.  It is not clear to me why the registration licence was obtained in her name and not Mr Siddiqui’s.  I have heard no evidence that she had any greater medical knowledge or understanding of health authority requirements for registration purposes than the little possessed by Mr Siddiqui.

15.	Early days

	In 1984 the Claimants acquired 156 Shooter’s Hill Rd, a typical 1920s/1930s semi detached suburban house, for £29,000.  It was fire damaged and required substantial restoration, which they undertook.   The premises are relatively small.  Some idea of the size can be obtained from the photographs.  It comprised a ground and first floors with a small area in the roof space and an extension at the back.  The Claimants intended to use the premises as a private nursing home.  To that end in 1985 Mr Siddiqui applied to the local health authority for the necessary approvals and sought planning permission.   There was then a change of mind when it was realised that the premises would require the installation of a lift to have residents on the first floor :  that would not have been easy to install. 

16.	The application for registration

In the early months of 1989 a Dr Ahmad, an associate of the Claimants, made enquiries of GHA about carrying out minor surgical operations at the premises.  Both he and Mr Siddiqui were supplied with the GHA Guidelines.  By this stage, or shortly after, the Claimants, or one or other of them, were in what was described as a partnership with a Dr and Mrs Hafiz with, according to Mr Lawler, the Claimants having a one third share.  It appears that Dr and Mrs Hafiz were a source of funding for the Claimants and that at some stage ownership of the premises was transferred to Dr and Mrs Hafiz.  According to Mr Kabraji, the premises were repurchased by the Claimants with a loan from the Albaraka Bank.

17.	Following Dr Ahmad’s enquiries there began a protracted process which led to the Second Claimant obtaining registration in December 1991 for the carrying out of 8 minor operations under local anaesthetic (“LA”) at the premises.  GHA visited the premises at an early stage.  On 16th June 1989 GHA wrote expressing concern that building work was proceeding on the first floor theatre when they had given no commitment to the use of such facilities on the first floor, and referred to the Guidelines.  On 17th June 1989 Mrs Siddiqui wrote to GHA complaining that there had been no response to her letter of 22nd May and stating delay was causing substantial financial losses.  As yet no formal application for registration had been made.  On 28th July 1989 Mrs Siddiqui formally applied to GHA for registration for day patients for minor surgical operations.  It is clear from the contemporaneous correspondence that the Claimants (and/or their adviser Dr Ahmad) had not taken on board until then that formalities had to be complied with : see GHA’s letter of 7th June 1989.  In the application Drs Ahmad and Singh were identified as proposed managers and officers in charge of the home.  It was said both were easily contactable and could reach the hospital within 15 minutes from their homes.  There were to be two surgeons, fully trained nursing staff, and the unit was to be highly equipped with sufficient equipment for resuscitation.   

18.	There followed much to-ing and fro-ing between GHA and the Claimants on the adequacy of what was being proposed.  On 11th December 1989 GHA wrote stating the operating theatre was much improved but pointing out many matters that needed to be attended to including under the heading “Drugs” the identity of medicines to be kept in stock, stock levels, ordering procedures etc.  The Claimants supplied a copy of their proposed Procedure on Drugs upon which GHA made comments.  In January and February Mrs Siddiqui pressed GHA about the registration and on 20th February 1990 was told the application would be put before the Health Authority at the March meeting.  That was deferred to the April meeting when a decision was further deferred pending further information and a visit by members.  That visit took place on 14th May.  On 4th June GHA wrote raising further matters.  The decision was further deferred at the June meeting.  On June 24th 1990 Mrs Siddiqui wrote to state Drs Ahmad and Singh had resigned and Dr Pothalingam had been appointed manager.  Following a visit to the clinic on 3rd July GHA raised yet further points in a letter of 6th Jul 1990.   On 10th Jul 1990 GHA agreed in principle registration for 9 procedures under LA subject to certain conditions not least that the Inspection and Registration Team was satisfied that all arrangements specified in correspondence had been carried out.  On 11th July 1990 GHA wrote to Mrs Siddiqui stating that no operation or procedure was to be carried out until the conditions were satisfied and that the certificate of registration would not be issued until this was so.  

19.	Then on 31st July 1990 GHA wrote to Mrs Siddiqui stating an air conditioning contractor had complained to the chairman of the health authority about non payment of a bill and that his letters to 156 Shooter’s Hill were being returned marked “Gone away” ; and that when GHA had telephoned the premises British Telecom had said the telephone had been disconnected.  The letter also asked whether the property had been sold.  The letter sought explanations and said that if no satisfactory reply was received the registration of the premises would have to be considered.   There is then a total lack of correspondence in the papers before me until the June 1991, at which time Mr Siddiqui was negotiating a mortgage of the premises to the Albaraka Bank to secure an advance of £275,000.   That advance came through in August 1991.

20.	On 24th June 1991 Mrs Siddiqui wrote to GHA stating she had found two doctors (in fact a Dr Parry and a Dr Sullivan) willing to start work at the premises, by now called the Nursing Home for Surgeries, enclosing their CVs and seeking GHA’s approval.  GHA observed that Dr Parry but not Dr Sullivan appeared well qualified.  Mr Siddiqui then wrote enclosing a CV of a Dr Odedun who was to be senior doctor in charge, stating Dr Parry was to be in charge of the evening shift.  On 18th September 1991 GHA wrote expressing satisfaction with the arrangements indicated and shortly afterwards arranged an inspection for 9th October, to be followed by a doctor’s inspection when a doctor was available.  On 12th October Mrs Siddiqui wrote stating she had delegated administrative responsibility to Mr Siddiqui.  On 24th Oct Mr Siddiqui wrote complaining about delay for which he held GHA responsible and stating losses were running at £258.71 daily and loss of profit at £520.55 daily.  The GHA nominated doctor, Mr Harrison, was unable to carry out an inspection and it was then arranged for Mr Field to attend on 30th October.  Mr Siddiqui said Dr Parry and Dr Pothalingam would attend but Dr Parry could not.  

21.	Mr Field attended and provided a report in which he observed :

(i)	the operating “theatre” was suitable in size ;
(ii)	if any sedation was to be administered, oximetry etc. would have to be purchased; 
(iii)	he had only met one of the doctors and would like to meet the other two ;
(iv)	circumcision in children should be omitted from the prescribed procedures ;

He noted that the proprietor admitted being ignorant of the medical aspects of the project and was dependent on the medical advice he had received.  Evidently he was referring to Mr Siddiqui.

22.	Following this visit GHA wrote to Mrs Siddiqui seeking implementation of Mr Field’s recommendations and stating registration would be for 8 listed operations.  Mr Siddiqui pointed out that earlier GHA had said it would authorise circumcision in children and sought advice from the present Defendants on whether he had a case against GHA for breach of agreement : their advice was to accept restriction to the 8 listed operations.  Mr Siddiqui accepted that advice.  On 9th December 1991 GHA wrote stating a report recommending registration would be made to the health authority.  On 20th December 1991 the certificate of registration for 8 listed operations under LA was issued.

23.	Mr Siddiqui feels aggrieved at the time it took for the certificate to be issued.  But I am not hearing a case against GHA.  I can well understand why he feels aggrieved.  GHA appears to have adopted a somewhat piecemeal approach with consequent delay.  But I do not know how long registration would normally take.  Part of the delay must be attributable to Mr Siddiqui’s own lack of understanding of the requirements.  I have been given no explanation by the Claimants for the delay between July 1990 and June 1991: GHA cannot be blamed for delay in that period.  

24.		Following registration

With registration obtained Mr Siddiqui set about obtaining patients.  Evidently he contacted or had earlier contacted a number of local GPs offering The Mini Hospital’s services.  In February 1992 a Dr Saleem wrote to The Mini Hospital stating he was sending patients to them.  On 26th March 1992 Mr Siddiqui wrote to GHA stating they were ready to perform their first surgical operation in the next few days and it would be carried out after 5.30pm “as we have not got many patients at present”.  On 7th April GHA wrote stating an inspection would take place on 6th May 1992.  Mr Siddiqui replied asking for the inspection to take place in the last week of May stating “ At present we have no patient or Matron.  Kindly advise of procedure if we wish to apply for the Licence of (sic) additional procedures”.  Inspection by Mr Field took place on 6th May and as a result he relaxed his view about child circumcision and wrote to Mr Nash, Administrative Services Manager for GHA, stating he felt a licence could be granted to Mr Siddiqui because he had met the surgeons who worked for him and was convinced of their abilities in that respect but would first want to ensure the child did not suffer.  On 27th July GHA wrote to Mr Siddiqui stating that at its last meeting the health authority had approved one trial operation for circumcision on a male child up to 6 months old in the presence of Mr Field.  On 19th August 1992 the operation was carried out by  Mr Singh in the presence of Mr Field who was satisfied.  

25.	Application for registration for further procedures

On 3rd August 1992 Mrs Siddiqui had applied to GHA for “approval” for the carrying out of further minor operations, enclosing CVs of Mr Singh, who it was said would be doing minor surgical operations in addition to Messers Odedun, Parry and Pothalingam.  She stated a Dr Chadia would share administrative responsibility for the day to day running of the hospital and that a Dr Noor would give advice on acupuncture.  On 19th August 1992 when Mr Field had witnessed Mr Singh carrying out the trial circumcision he had indicated a willingness to approve some further procedures set out in a list.  On the same day Mr Siddiqui wrote to GHA enclosing a list of minor operations including some identified as approved by Mr Field.  

26.	On 28th September 1992 GHA wrote stating approval had been given to amend the approved list by adding “Circumcision (to males aged under 6 months and 18 years and over) and stating the further operations applied for would be considered at the October GHA meeting.  Mr Nash’s witness statement says the October meeting increased the number of authorised LA operations to a total of 37.	 

27.		Application for Registration for Treatment under General Anaesthetic (“GA”)

On 2nd December 1992 Mr Siddiqui wrote stating they wished to provide GA facilities at The Mini Hospital.  He enclosed literature on portable anaesthetic equipment likely to be used, a list of operations and stated that Dr Akramulhaq had agreed to be the Chief Anaesthetist.  He added “I hope you will get these approved as soon as possible”.  On 17th January 1993 he wrote enclosing a CV for Mr Hasan, a consultant surgeon who he said would be joining shortly, and looked forward to a reply on the GA application and application for additional operations adding :

“ With limited number of procedures we have not been able to attract much business.  It is important for us to have additional facilities and procedures to earn our bread and butter.  Your speedy action will be appreciated.”	

Mr Hasan on 12th February wrote to Mr Siddiqui of Mini Hospital Ltd stating he would be willing to be “one of the medical directors of the company” and assist but wanting a retainer of £5000 pa for lending his name as well as a one off payment of £1000 as a gesture of good will. Whether his terms were accepted was not in evidence but he was named as a consultant on a proposal offering the Claimants’ services to GHA for 1993/4 and sent with a letter dated 18th February 1993.  

28.	On 30th December 1992 Mr Nash had written stating an inspection would take place on 25th March and that the team would like to meet the person in charge or his deputy.  The letter did not specify the purpose of the inspection.  In evidence Mr Nash said it was a planned inspection of the premises under its current registration and not in relation to the application for GA.  The inspection took place as planned.  Normally, any matters of note would be aired at the inspection followed up by a written report soon after.  On this occasion the report was not sent until 24th November 1993.  Mr Nash could not explain the delay.  I have not seen any report relating to that inspection.  According to the letter of 24th November no operations were being carried out at the time of inspection and the team noted that only 16 operations had been carried out since registration.

29.	On 29th March 1993 Mr Siddiqui wrote to GHA complaining of delays which he alleged had caused huge losses and stating that unless they were granted further registration speedily “we will not be able to sustain these losses”.  He accused GHA of being obstructive and threatened proceedings to recover “all the losses and loss of income during the last several years” unless granted registration to carry out operations such as circumcision of those over 6 months and under 18 years and another 220 operations under GA.  On 31st March he wrote to the present Defendants stating he wished to sue GHA observing “all our finances gone, Hospital property to be repossessed” and that “our financial position is precarious”.  On 5th April he wrote stating “I am under great financial pressure these days.  General Anaesthetic Licence can go a long way in relieving this problem”.

30.	GHA’s response on 5th April rejected the allegations of delay and obstruction and pointed out that the recent proposal to provide GA facilities and increase the approved operations by a further 220 was in the team’s opinion a major change and that there were concerns that The Mini Hospital may be overreaching its capabilities.  The present Defendants provided the Claimants with a draft of a conciliatory but positive letter the substance of which Mr Siddiqui sent to GHA on 22nd April 1993.

31.	On 15th April Dr Akramulhaq wrote to GHA stating he had visited the premises and found them “eminently suitable” for GA services.  On 17th May GHA wrote stating they had been advised that an assurance from Dr Akramulhaq would not suffice for registration purposes.  On 28th May 1993 the premises were inspected by Mr Nash and Dr Baxter, a local consultant anaesthetist.  On 21st June Dr Baxter sent a report to Mr Nash.  In it he made the following points :

(i)	The equipment shown was adequate/acceptable, and monitoring facilities adequately planned.
(ii)	The drug cupboard was inadequate.  The hospital had not planned appropriately for dispensing post operative analgesia.  Dentrolene should be on hand.
(iii)	Hiring staff for short sessions as done for LA would not be satisfactory for GA because
(a)	a greater range of drug stock was required with higher need for checking, accountability and restocking ;    
(b)	anaesthetic equipment required a substantial degree of expert care requiring maintenance schedules and defined responsibility for these items	 ;
(c)	there were no proposals for permanent staffing with supervisory responsibilities ;
(d)	it was customary in private hospitals for there to be some form of medical advisory committee and the lack of such a committee was a serious problem ;
(e)	the proposals or rather lack of them did not constitute an adequate basis for supporting GA ;
(f)	the adequacy of insurance cover. 

He formally recommended that the application be refused.  On 28th June GHA wrote to Mr Siddiqui setting out these comments and stating that until these matters were attended to the registration team could not support the application for a GA facility.   Mr Siddiqui replied on 1st July expressing horror, referring GHA to the Practice and Procedure Manual which he said covered many of the points, and agreed to meet some of the requests but, in some cases, when the GA facility was approved.  GHA responded on 13th July seeking further information.

32.	On 17th August 1993 Dr Baxter wrote to Mr Nash stating staffing requirements needed to include an identified senior nurse, an identified person responsible for anaesthetic equipment and theatre staffing comprising an experienced scrub nurse, anaesthetic assistant and runner for each case.  He mentioned the need for a plan for possible overnight admission with suggested options. Significantly he observed :

“ I must express my serious reservations that it has been necessary for me to detail these needs in such a way.  Mr Siddiqui’s protocols have been exhaustive, and have detailed job plans for staff, but have not spelt out the simple basics as outlined above. The fact that such simple priorities have not been summarised, and plans to meet them outlined at the start of the application, leads me to have reservations about the management expertise in healthcare matters especially in Hospital Management.  I have yet to be convinced that the expertise to ensure that these exhaustive protocols are used correctly has been identified, or that the workload planned will attract such a person.  However that is a commercial risk decision for Mr Siddiqui, although the authority needs to be assured of quality considerations.”
     	
	He attached to his report likely costings to achieve his requirements.  He assessed equipment and staffing costs assuming a 5 day week at £310 - £350 per day.  Evidently he queried the viability of the business.  

33.	On 26th August Mr Nash wrote to Mr Siddiqui stating the registration team would make a recommendation to the health authority provided specified conditions in addition to those already sought were met.  Those conditions were :
(i)	the employment of a permanent senior nurse holding theatre/ anaesthetic certification ;
(ii)	a maximum case load of 4 per day ;
(iii)	an experienced scrub nurse, anaesthetic assistant and runner for each theatre case ;
(iv)	adequate arrangements for emergency overnight admission ;
(v)	a minimum of £4 million insurance cover for medical negligence. 	
	
		A list of 9 approved GA operations was attached.

34.	I have to say that I regard Mr Nash’s latter as unfortunately constructed : it starts with the news that the health authority would make a recommendation for GA.  Understandably Mr Siddiqui took comfort from this letter.  The letter, recording as it does Dr Baxter’s requirements, does not pass on Dr Baxter’s general concerns, which seem to me to be most relevant and which militated against GA registration. 

35.	On 18th September Mr Odedun wrote to GHA asking them to reconsider the restriction to 9 operations and identifying 136 operations he stated were also appropriate out of the 220 originally submitted.  GHA asked him the number of days per week he was able to work at the hospital and he replied stating he was available for telephone advice at all times but operated mostly at the weekend (The Mini Hospital patient register records Mr Odedun as operating on four occasions in the July–November 1992, three times on Fridays, once on Saturday).  On 19th October GHA wrote asking whether the terms of the 26th August letter were accepted.  On 17th November GHA wrote stating the registration team would be able to support 80 of the first 104 operations proposed and an orthopaedic opinion was being sought for operations numbered 104 to 136 and again asking whether the terms of the 26th August letter were accepted.  Mr Siddiqui’s response was a letter dated 26th November criticising GLA for delay and seeking compensation.  On 8th December GHA wrote giving reasons for not having approved some of the operations, a frequent reason being that they required an overnight stay, but also giving permission for 3 further operations.  On 14th December Mr Siddiqui wrote asking when approval for the 80 operations would be put before the health authority.  On 15th December he at last answered GHA’s letter of 26th August agreeing to the conditions set out, but stating that the theatre staffing requirements were completely unreasonable, they did not foresee overnight stays and that subsequently application may be made to vary the conditions.

36.	On 20th February 1994 Dr Baxter wrote to GHA expressing serious concerns about statements made in Mr Siddiqui’s letter of 15th December 1993.  He pointed out that the theatre staffing levels were the minimum requirement for any theatre case whether in the NHS or the private sector and were based on national requirements.  He said Mr Siddiqui’s observation that he did not foresee the need for overnight stays displayed “lamentable ignorance” of the facts of day surgery both on the part of Mr Siddiqui and of his advisers.  He made further observations and reiterated his view that there were serious grounds to question the expertise and understanding being brought to the operation and stressed that his professional opinion was that the licence should not be granted.  Anyone reading Dr Baxter’s reports must have had concern over the granting of a licence for GA, at least so far as anaesthetic provision was concerned.

37.	But prior to receipt of this letter, on 11th January 1994 GHA had written to the Claimants stating that following further advice, if GA were supported a further 25 operations would be permitted, stressing the need to meet stated requirements and stating the matter could be put before the health authority for consideration on 26th January 1994.   A briefing note was prepared for the health authority meeting in which note, given acceptance of the minimum conditions imposed, the authority was asked not to object to the use of GA for the operations specified.  It was stated that the hospital’s adherence to the standards agreed would be monitored by inspection.  But at the meeting held on 26th Jan 1994 the decision was deferred pending review of the registration team’s advice.  

38.	I am surprised at the recommendation made in the light of Dr Baxter’s earlier observations.  I am not surprised the recommendation was not accepted by the health authority.

39.	The inspection on 23rd February 1994

On 23rd February 1994 the premises were inspected by Dr Baxter, Miss Whitfield, Dr Evans, Mrs Rodin and Mr Nash.  Miss Whitfield was at the time the Registration Officer for Bloomsbury and Islington Health Authority, Mrs Rodin was the Chairman of GHA and Mr Nash as Administrative Services Manager for GHA was responsible for the coordination of the registration and inspections of nursing homes carried out by a team consisting of members with relevant disciplines such as surgery, nursing, health and safety etc.  When Mr Nash became Administrative Services Manager, Mrs Siddiqui had already been registered for 8 operations under LA.   I heard evidence from all the inspectors save Dr Evans.

40.	Mr Nash told me the aim was to have consistency in the inspection team’s membership but this was sometimes not achievable due to problems with availability of, in particular, the doctor members.  This led to cancellation and delay in inspections and sometimes the need to draft in replacement inspectors.  

41.	He described this inspection as being slightly extraordinary in that it was conducted by members of the GHA and an independent expert, Miss Whitfield, in addition to Dr Baxter and himself.  He said it was unique in his experience for members of GHA to conduct an inspection.  Mrs Rodin said board members had asked for an inspection because they felt they did not have sufficient information to make a decision on the GA application, which she described as a significant step up from the LA registration.  She said it was slightly unusual for her to attend an inspection but she had done so before.  Mr Nash surmised the health authority had serious concern about The Mini Hospital despite the recommendation which had been made.  A briefing note is normally prepared for such an inspection but none has been disclosed.

42.	That there was general concern comes over from Miss Whitfield’s witness statement where she says Mr Nash told her that the inspection was of a small hospital that the health authority had some concerns about and that the impression she was left with was that the health authority had sufficient concerns that they were getting to the stage of considering whether the hospital’s registration should be withdrawn.   

43.	The inspection took place in the morning in the presence of the Claimants and   Dr Akramulhaq but not Mr Odedun, although Mr Nash talked to him over the telephone.  Mr Nash could not remember what was said.  At this time the Mini Hospital had not treated patients for a considerable time, although Mrs Siddiqui was still registered to carry out the specified operations there : Mr Siddiqui said no operations were carried out between March 1993 and 11th March 1994 because they did not want anything to go wrong nor jeopardise the application for a GA facility.  

44.	The inspecting team formed an unfavourable impression.  Its members provided reports.  Dr Akramulhaq remembered that Dr Baxter said at the time that the inspection had been disappointing.  Mr Siddiqui has been highly critical of the inspection.  He has also been highly critical of the fact that he was never shown the reports until they were disclosed in this litigation. 	

45.	I heard oral evidence from Mr Siddiqui, Dr Akramulhaq, Dr Baxter, Ms Whitfield Mrs Rodin and Mr Nash about the inspection.  Mr Siddiqui complained that he was asked medical questions which he was not qualified to answer and said that Dr Akramulhaq advised him not to answer such questions and that Mr Odedun should deal with them.  Dr Akramulhaq said that Dr Baxter said he could answer for Mr Siddiqui but primarily questions were directed at Mr Siddiqui.  He said he, Dr Akramulhaq, could only answer questions re anaesthesia, was not familiar with the surgery side and he took exception about being asked about matters such as the recovery room, and oxygen when they should have asked someone who had full knowledge.  Mr Siddiqui also complains that the reports of Dr Baxter and Miss Whitfield were factually incorrect and that Dr Baxter suffered from a conflict of interest because he was associated with the Blackheath Hospital, a nearby private hospital.  

46.	I found Dr Baxter and Miss Whitfield to be impressive witnesses.  Dr Baxter told me that in addition to his NHS consultancy he anaesthetised at the Blackheath Hospital but otherwise had no financial links with the hospital.  He had advised them in their early days but was not paid for that advice and had turned down an invitation to invest in a scanning machine to be employed there.  

47.	From an early stage Mr Siddiqui has claimed that the Blackheath Hospital was one of his competitors and that it was wrong for Dr Baxter to have carried out any inspections because he had not been independent.  He relied on Para 1.37 of the NAHAT report which states :

“It would be inappropriate for a registering authority to authorise an individual having service links with a hospital or service in the independent sector to carry out functions under the Registered Homes act on its behalf”

48.	This if applied literally would prevent many anaesthetists being inspectors since I believe few anaesthetists have no such links.  But the point is fairly made that someone associated with a local private hospital may be concerned to protect the interests of that hospital and thereby his own interests, subconsciously if not consciously.  It would have been better if Dr Baxter had not been an inspector to avoid a perception that he may be or was biased.  But having said that I am satisfied that Dr Baxter’s approach to The Mini Hospital was entirely professional and his concerns genuinely held.  He has a wealth of experience as an anaesthetist, having obtained his Fellowship in 1975 and thereafter having had responsibilities for auditing anaesthetic equipment, commissioning anaesthetics in new hospitals, one of which was Blackheath, and from 1991 and at the time of his inspections being Director of Day Surgery at Greenwich Hospital.  In my judgement his standards were high and he was not prepared to compromise on them.   Dr Akramulhaq knew Dr Baxter well and said he had the highest regard for him.

49.	Miss Whitfield also had an impressive pedigree.  She had started as a registered general nurse but progressed to a master’s degree in nursing, prior to becoming a nursing officer and in due course the registration officer, first at Bloomsbury Health Authority and then the Bloomsbury and Islington Health Authority, one of the largest in London.  I am entirely satisfied that she too was entirely professional and her views genuinely held.  

50.	Following the inspection Dr Baxter wrote immediately to GHA with the following criticisms/observations :

(i)	An oxygen cylinder was empty.  Mr Siddiqui’s witness statement asserted the cylinder was full and that the team would have needed a weighing machine or a portable gauge to test the pressure but Dr Baxter had not asked for the gauge.  Dr Baxter said a gauge showed the cylinder was empty.  I accept Dr Baxter’s (and Miss Whitfield’s) evidence on this issue.  Dr Baxter was also critical of the fact that the store for reserve oxygen was outside the premises and through two locked doors.
(ii)	The drugs procedure book which listed emergency drugs to be kept at the hospital had last been updated on 1st November 1991. No drugs were present and Dr Baxter said careful questioning of Mr Siddiqui elicited that they were not obtained for each case.
(iii)	No checking schedules were available for resuscitation and oxygen equipment.
(iv)	No resuscitation protocol was displayed.
(v)	In his view revocation, suspension or other cancellation of the licence was appropriate on the grounds of patient safety. 

51.	He followed this letter with a formal report in which he enlarged his criticisms as follows : 

(i)	The size of the operating theatre.  He said the theatre had an area of less than 13 square metres whereas not less than 37 square metres was required by “building regulations”.  He added the theatre should not have been licensed at all and was not suitable for GA.
(ii)	There was no adequate fire escape.
(iii)	There was no generator to provide general lighting in the event of a power failure although the operating light had reserve facilities.
(iv)	Staffing Requirements :
(a)	the staffing arrangements for theatre were inadequate.  Mr Siddiqui was allocating two although three had earlier been accepted ;
(b)	other staffing was required.
(v)	Drugs
Whilst no drugs required to be present when no operations were taking place, he had ascertained from Mr Siddiqui that necessary drugs had not been ordered when patients had been treated.  Further the following gave concern :
(a)	there was inadequate security for drugs ;
(b)	the oxygen cylinder was empty ;
(c)  the location of storage for spare cylinders.
(vi)	Overnight admission
Mr Siddiqui’s assertion that as only day cases were handled there was no requirement for emergency admission cast doubt on whether the potential for complications was understood or accepted.
(vii)	There appeared to be no proposals for a trained children’s nurse.
(viii)	Theatre instruments
Although an assurance had been given that they would buy all that was necessary, a very substantial capital investment was likely to be required.
(ix)	The sterilising autoclave was too small for larger instruments and Mr Siddiqui was unable to say when it had last been serviced or checked.
(x)	There were no protocols for Day Surgery, Recovery Criteria or Fitness for Discharge in the Protocol Book.
(xi)	There was no protocol for ensuring all doctors at The Mini Hospital had adequate insurance cover and the £4 million cover Mr Siddiqui said had been arranged should be per case not an annual maximum.
(xii)	The lay-out, equipping and procedures were clearly not adequate for the existing practice and The Mini Hospital could not meet the requirements of GA.

He recommended that the request for GA registration should be refused and the existing registration withdrawn.

52.	Miss Whitfield also wrote immediately to GHA. Her observations/criticisms were :

As regards LA registration
(i)	There were no resuscitation drugs on the premises.
(ii)	The oxygen cylinder was empty.
(iii)	No fire exit signs were displayed.
(iv)	The one register they were shown appeared to combine the register of patients with the register of surgical operations : a separate record had to be kept.
(v)	No maintenance record was available for the steriliser and other equipment such as the suction machine.
(vi)	If a patient were admitted today she would have serious concerns about his safety for these reasons.

As regards GA registration
(i)	The operating theatre did not conform to NAHAT guidelines and was too small.
(ii)	There was only one fire exit from the first floor which was via a narrow staircase with a sharp curve making it difficult and potentially dangerous to evacuate an unconscious patient in event of a fire.
(iii)	The corridor between theatre and recovery was too narrow for a trolley carrying a patient.
(iv)	Mr Siddiqui’s general lack of understanding as general manager of the undertaking.  During questions and answers he showed a general lack of knowledge of the requirements, regulations and guidelines concerning the Act.  She instanced :
(a)	the role and responsibilities of the clinical person in charge;
(b)	the ratio of permanent to agency nurses ;
(c)	special requirements of laser treatments ;
(d)	arrangements for autoclaving surgical instruments ;
(e)	evacuation procedures in the event of fire ;
(f)	the need for an emergency electricity supply.

She could not advise GA procedures should be carried out at the Mini Hospital.  Miss Whitfield had not been aware that The Mini Hospital was not treating patients at the time.

54.	Mrs Rodin’s witness statement said her overriding view was that this was a very ill-advised venture.  She described the premises as entirely unsuitable for day surgery procedures under GA.  She said it was obvious to her that although brand new equipment had been obtained there was a lack of appreciation by the Claimants of what was actually involved in the clinical and safety aspects of owning and managing a day surgery unit.  She asked Mr Siddiqui how the hospital could function safely without effective supervisory cover (Mr Odedun being in Ormskirk) and his response was that if there was an emergency they would send the patient to the nearby Brook Hospital.  Following the inspection she advised the Health Authority Board that The Mini Hospital was not suitable for procedures under GA.  

55.	She stood by these opinions when giving evidence.  She stated she felt that the Claimants had initiative but it had been misdirected.  She said there were certain things they might have done for GHA – she instanced cataract operations – had they approached GHA first before embarking on their path.  She could not see they had any chance at all of obtaining GA registration in view of the physical layout of the premises.  

56.	There is a surprising lack of GHA internal documentation dealing with what happened following receipt of these reports.  That is not the fault of the parties who have to rely on GHA for disclosure of such documents.  Following the inspection and receipt by GHA of these letters and reports, a draft report in Dr Evans’ name recommended cancellation of the existing registration ie for LA on the grounds that :
			(i)	the operating theatre was not of adequate size;
(i)	there was no adequate fire escape for fully anaesthetised patients in the event of fire;
(ii)	the home was not in charge of a person who was a registered medical practitioner or qualified nurse.
Whether this report ever became more than a draft and whether it was ever relied on by GHA does not appear.  Some of its contents are a little surprising.  No one had until recently criticised the size of the theatre for LA procedures.  Indeed implicit in the grant of LA registration had been the fact that it was of adequate size.  Second, no GA had yet been employed at the Mini Hospital so (ii) was inapposite.  It seems to me that although the draft report concerned itself with LA its author may have intended it to apply to GA not LA registration. 

57.	No immediate step was taken by GHA to notify the Claimants of Dr Baxter’s and Miss Whitfield’s criticisms and recommendations, nor to withdraw the LA registration.  I accept that the Claimants did not know of the detail of Dr Baxter’s and Miss Whitfield’s criticisms nor see their reports until this litigation was underway.  No reasons were given for GHA’s failure to follow up immediately the recommendations made by Dr Baxter and Miss Whitfield.  But on 7th March 1994 Mr Nash wrote to the Claimants asking them to ensure that he was informed whenever The Mini Hospital intended to carry out an operation.  Mr Siddiqui obliged the following day stating Mr Odedun would be performing an operation at 5pm on 11th March.  He (it is not clear whether Mr Siddiqui was referring to himself or Mr Odedun) could see representatives of GHA at about the same time if they wished.  In the morning of 11th March arrangements were made with Mr Siddiqui over the telephone for GHA representatives to attend the premises at 3pm that day.  

58.	Dr Baxter and Dr Evans attended.  Dr Baxter stated he arrived at about 3.15pm.  They could get no response and could not enter the premises.  They waited a short time and left at about 3.45pm.  They had not been able to confirm arrangements for the proposed operation : Dr Baxter was especially concerned about whether or not emergency drugs would be available.  They returned to GHA premises and a decision was made to apply to cancel the registration.  Application was made that afternoon to a justice of the peace and granted.  The reasons were stated to be :

“that there will be a serious risk to the life, health or well being of a patient undergoing vasectomy operation in the home unless the order is made because: 
the Hospital on inspection did not have the range of emergency drugs listed in its own safety protocols to be available at all times, which would be urgently required in the event of the patient requiring emergency resuscitation.”  

The order was served later that afternoon.  

59.	Mr Siddiqui, when giving oral evidence, accepted he had made an arrangement to meet them at 3pm but said he had been delayed.  He and Mr Odedun were at the premises when the order was served.  Dr Baxter attended when the order was served.  Mr Siddiqui said he offered at that time to show Dr Baxter what drugs were there but Dr Baxter said they were there to serve not inspect.
 
60.	The Claimants, acting through Mr Siddiqui, consulted the present Defendants for advice and were advised by Mr Charles Dodd, who had advised Mr Siddiqui in 1991 and 1993.  Mr Dodd arranged a meeting with GHA which took place on 29th March and was attended by Dr Evans, Mr Paterson (a GHA legal adviser) and Mr Nash.  Mr Dodd and his assistant kept notes of the meeting.  The notes record that he and Mr Siddiqui were told that GHA had decided to close down the Mini Hospital following the inspection of 23rd February.  

61.	Mr Dodd told me he went to the meeting feeling that Mr Siddiqui had been badly treated, misled, messed around and that the GHA had sneakily used a very draconian section to close the business down.  He went into the meeting, he said, in quite a ferocious manner, adopting the approach that what GHA had done was an utter disgrace.  These are the words he used.  He said he came out of the meeting feeling thoroughly embarrassed at the line he had taken, that he had been completely mistaken and it was quite clear he had not been given sufficient information by Mr Siddiqui, although to be fair to Mr Siddiqui he had not been told what a bad situation he was in.  He said there was no chance of the health authority agreeing anything, they adopted an extremely harsh stance and it was quite clear they had already decided to close the hospital down.  Following the meeting he advised Mr Siddiqui that he did not believe an appeal would succeed, although GLA might take him a little more seriously in the future and it might be possible to overcome the problems eventually.  I regard Mr Dodd as a reliable witness.  He was not challenged on this evidence.  

62.	Mr Siddiqui decided to appeal and in due course the appeal was dismissed on 6th December 1994.  Had the notice been properly served I am satisfied the appeal would likely have come on earlier but I have no reliable evidence of how long it takes for such appeals to be heard.  In Lyons v East Sussex County Council (supra), in 1987 Glidewell LJ said it was obviously important that such an appeal was heard as expeditiously as possible.  The booklet “Registered Homes Tribunals Procedure published in 1989 suggests an appeal would usually be heard about 7 weeks after the Secretariat receive the appeal but I note the Amendment replaces 7 weeks with “as soon as possible”, not any period shorter than 7 weeks.  A Defendants’ file note dated 29th July 1994 records a Mrs Masters of The Registered Homes Tribunal stating a hearing would be at least 2 months ahead, which I assume would apply to most cases.  Given summer holiday arrangements it may well be that the appeal would not have been heard or the decision notified to the Claimants until say September 1994.  

63.	Mr Siddiqui has been highly critical of GHA.  It may be that he has reason to feel aggrieved at the time it took to obtain registration for LA and then to enlarge the list of procedures, but that is largely history so far as the present action is concerned.  He has not sued GHA.  Indeed, he was advised by Mr Dodds, as I find, that he probably did not have grounds for suing them.  My concerns are with what has resulted from the Defendants’ admitted negligence in failing to send the notice of appeal to the correct address.  

64.	I now turn to the issues raised by this action, which have been agreed by the parties in the form of the following questions.  

65.	Was there a real as opposed to a fanciful chance of the Claimants successfully appealing the Closure Order dated 11th March 1994 ?    

Given, as I find, that GHA had concerns about the adequacy of the service at The Mini Hospital prior to the inspection of 23rd February 1993, and that those concerns were heightened following the inspection of 23rd February, it is surprising that GHA did not seek to close the Mini Hospital by earlier emergency closure or, in default, by giving notice.  But the main questions to be answered are :
(i)	whether emergency closure was justified ;
(ii)	whether the tribunal would have allowed the appeal even if closure were justified at the time.

66.	Was emergency closure justified ? 

On 11th March a vasectomy was due to take place at 5pm.  It was due to take place against a background of an unfavourable inspection on the 23rd February, following which concern had been expressed about the availability of emergency drugs, especially by Dr Baxter after he was told, as I find he was, that on some occasions a full complement of drugs was not present.  Arrangements had been made to meet Mr Siddiqui beforehand and it must have been obvious to him that one of the matters on which he might need to satisfy the inspectors would be the adequacy of the drugs available.  That ought to have been obvious to Mr Siddiqui, not from the inspectors’ letters and reports following the inspection of 23rd February because he was not sent them, but from past requirements imposed and, more particularly, the recent conversations he had had on 23rd February, in particular with Dr Baxter. 

67.	According to Mr Siddiqui the arrangements for the appropriate drugs to be present were twofold.  He used to order the drugs the day before from the local pharmacy and collect them on the day.  If one assumes these drugs included basic resuscitation drugs, such drugs should have been listed : Miss Whitfield saw no such list, although they were listed in the Protocol.  At the same time Mr Odedun, when he operated, would bring his own drugs : neither Mr  Lavelle nor Miss Whitfield had any experience of such a procedure.

68.	Mr Odedun in his statement lists the drugs contained in his emergency bag but states these drugs were also available at the hospital when he carried out an operation there and were available there on 11th March.  In his second witness statement Mr Siddiqui says that lignocaine was kept in the fridge but adrenalin was brought by Mr Odedun.  In the same statement Mr Siddiqui says (Para 138) that he was very busy that morning as he had to collect the drugs Mr Odedun had asked for from the local pharmacy but also says (Para 161) that when the vasectomy was arranged they did not arrange to get the drugs from the local pharmacy because Mr Odedun was arranging to bring the drugs himself.  Neither Mr Siddiqui nor Mr Odedudin specifically mentions Dantrolene (which I understand is a muscle relaxant) as being present although its need had earlier been emphasised by Dr Baxter and it was listed in the Protocol.  

69.	When Dr Baxter gave evidence he stressed that he was not satisfied, based on what Dr Siddiqui had earlier told him, that the necessary drugs, including Dantrolene, were going to be there and he was not impressed with the quality of the cooperation received.  

70.	Mr Siddiqui accepts he was due to meet Dr Evans at 3pm.  In fact he had suggested the time.  He does not suggest he made any attempt to contact Dr Evans when he was delayed.

71.	I am satisfied that Dr Baxter and Miss Whitfield had genuinely formed the view that standards at The Mini Hospital fell below what was required.  Each had come to the inspection on 23rd February with his/her own experiences and interests in standards of care in day hospitals.  There was nothing to suggest to Dr Baxter and Dr Evans when they attended on 11th March that earlier concerns had been attended to, since there was no-one to greet them, admit them to the premises and show what was available.  The presence of appropriate drugs was one of those concerns and one of Dr Baxter’s specific interests, he being the best qualified of the inspectors in that field.  Without appropriate drugs there would be a serious risk to life, health and well being of a patient undergoing vasectomy should an emergency arise.

72.	I am entirely satisfied that the decision to seek a closure order was justified in the circumstances as they appeared to GHA at the time.  I differ from Mr Lavelle who thought emergency closure unnecessary but owned he had no experience of these matters.  If the tribunal’s functions were limited to a review of the making of the order I am satisfied the appeal would have failed.  But I consider the appeal would be by way of rehearing.  Would this have affected the outcome ?   

73.	Was there a realistic chance that the tribunal would have allowed the appeal even if closure were justified at the time ?

In addition to having power to confirm the order or to direct that the order should cease to have effect the tribunal had power to vary any existing condition, direct that such condition should cease to have effect or direct that any such condition as it thought fit should have effect.  Neither party has referred to tribunal decisions or adduced evidence indicating how the tribunal tends to exercise its powers.  It has not been suggested for the Claimants that the tribunal would have varied any existing condition or directed that it cease to have effect.  The case has been put simply on both sides : the Claimants assert they had a realistic prospect of success, the Defendants assert they did not. 

74.	To uphold the order the tribunal would have to have been satisfied that the reasons justifying the order were sound.  They are limited in scope.  For convenience I repeat them :

“that there will be a serious risk to the life, health or well being of a patient undergoing vasectomy operation in the home unless the order is made because: 
the Hospital on inspection did not have the range of emergency drugs listed in its own safety protocols to be available at all times, which would be urgently required in the event of the patient requiring emergency resuscitation.”
     
75.	The evidence of the arrangements for the provision of drugs and the drugs provided is not consistent and is highly unsatisfactory.  On this aspect I did not find Mr Siddiqui convincing.  I had no opportunity to assess Mr Odedun and in neither of his signed statements does he swear to the truth of their contents.  Nevertheless, I shall assume his evidence contained in his second statement in which he lists the drugs he would have had present in his emergency bag, would have been before the tribunal.  These drugs are not entirely the same as those listed in the Protocol.  The listed drugs include Dantrolene : his statement does not.  But Dantrolene, as I understand it, is not a drug for emergency resuscitation.  No evidence has been put before me that the drugs referred to in the statement were not sufficient for emergency resuscitation if required during the vasectomy operation, even if they did not match the Protocol.  

76.	Making this assumption, I conclude there is a reasonable prospect that the tribunal would have given Mr Siddiqui and Mr Odedun the benefit of the doubt on this aspect and would have concluded that the necessary drugs were available and therefore would have allowed the appeal.  At the same time I would expect the tribunal to have insisted on strict provisions attending the provision of drugs for future operations.  I am in no position to decide what those conditions would be but I would expect the primary obligation for the supply of drugs to have been placed firmly on The Mini Hospital not any visiting surgeon.

77.	Given a successful appeal was there a real (as opposed to fanciful) chance that GHA or any successor would have permitted the Mini Hospital to continue to carry out operations under LA ?

Dissatisfaction with the drug arrangements is but one aspect of the adverse criticisms GHA received from Dr Baxter, Miss Whitfield and Mrs Rodin.  They had, as I am satisfied, genuine concerns on many other matters.  Dr Baxter’s concerns concentrated on clinical requirements, Miss Whitfield’s more on premises and administrative requirements, Mrs Rodin on premises, but all expressed concern over Mr Siddiqui’s understanding of what was required of The Mini Hospital, what Dr Baxter called “the simple basics” (see Para 32 above).  Dr Baxter also queried the financial viability of the business.  That, as he accepted, was not a matter for him, but it is one that may have caused GHA concern insofar as inadequate funding may have led to short cuts being taken and is a matter Mrs Rodin referred to.  Mr Siddiqui urges that he could not be expected to have such expertise.  He claims he was merely an administrator not a manager.  But the fact is that he was running the business.  He was the man dealing with GHA who regularly answered their queries.  He, not Mr Odedun, was there to deal with questions on the spot.  Dr Akramulhaq appears to have been advising more as a friend than as an officer or employee of the business.     

78.	I am satisfied that GHA, prior to the inspection of 23rd February, had serious concerns over The Mini Hospital.  What else could explain the size and composition of the inspection team ?  Following that inspection a number of failures were identified some of which were deep rooted.  Mr Siddiqui was not allowed to carry on regardless.  GHA wanted to know when the next operation was to be carried out.  

79.	It is also clear to me is that following the inspection of 23rd February, and putting aside the application for a GA licence, further requirements were going to be imposed on The Mini Hospital before GHA would allow LA procedures to continue.  Mr Siddiqui had a way to go if the requirements pertinent to LA were to be met.  It is also clear to me, although raising separate considerations, that The Mini Hospital could not afford to meet what would have been GHA’s requirements had they got to the stage of notifying him of the findings on inspection.  I deal with finance below.  Thus there would have been little to stand in the way of any determination by GHA to close The Mini Hospital.  Following the inspection of 23rd February, I consider the future of the Mini Hospital was doomed.

80.	Following the meeting of 29th March Mr Siddiqui wrote to GHA asking them to reconsider the matter, asserting that drugs had been available at The Mini Hospital on 11th March and that there had been no risk to the patient.  On 14th June 1994 Mrs Rodin replied stating that GHA had given careful consideration to the issues before taking the action and she saw no reason why the matter should be reconsidered.  At the same time GHA’s legal department was taking the point that the tribunal had no jurisdiction to hear the appeal in the teeth of indications from the tribunal encouraging a more conciliatory line.  GHA’s attitude was one of firm resistance without readiness to reconsider.    

81.	Was the Mini Hospital viable with its existing licence to carry out LA operations and without a licence to carry out operations under GA. ? 

	This is a crucial issue.  The Claimants acquired the premises in 1984.  They applied for LA registration in 1989.  Registration was achieved in December 1991 but only for 8 operations.  On 28th September 1992 GHA extended the licence to include circumcision to males aged under 6 months and 18 years and over and in October 1992 registration was awarded for a further 28 LA operations bringing the total to 37 operations.  One might have thought that so armed the venture, even if it had a slow start, would have gathered speed.  But the fact is it did not.  Following being licensed for 37 LA operations interest in LA operations appears to have been overtaken by the application made in December 1992 for registration for GA operations.  The last LA operation appears to have taken place in March 1993.  

82.	Between December 1991 and March 1993 very few operations took place.  The Defendants say the records support 12.  Mr Siddiqui says 20.  Whichever it be the number is very small.  Mr Siddiqui says no LA operations were done after March 1993 because of the works necessary for the GA licence and because they did not want to prejudice the application for the GA licence.  I do not accept this as the whole explanation.  Mr Lawler recorded that the Claimants put down the fact that it had taken time to achieve registration to the fact that they did not want to jeopardise this by doing too many operations too quickly and risking their reputation : in fact, the correspondence shows Mr Siddiqui not merely understandably attempting to obtain registration as soon as possible but seeking approval for many more operations than GHA considered appropriate.  Mr Siddiqui’s subsequent explanations sometimes do not match his more contemporaneous actions. The first LA operation did not take place until late March 1992 and in notifying GHA Mr Siddiqui said “we have not got many patients at present”.  On 2nd December 1992 when applying for GA registration he said that with a limited number of procedures “we have not been able to attract much business”.  In my judgement sufficient profitable LA work was not available or likely to become available.  If it had been available it would hardly have made business sense to abandon it.    

83.	The reason for the failure to attract LA business is not too difficult to see.  Whilst it is true that in the early 1990s NHS policy was encouraging treatment for minor operations and procedures in mini centres, those mini centres tended to be located within GP surgeries and in special units within NHS hospitals, not small private day centres.  Mr Kabraji noted that Laing’s Review of Private Healthcare (1996) states that in 1996 there were only two private dedicated day surgery units in the UK, that the level of business achieved by each was disappointing and attributed this, in particular, to failure to attract NHS contracts, the capacity of existing private hospitals to undertake day surgery, real or perceived patient resistance and the demands day surgery made on the limited number of hours most consultants could devote to private practice.  

84.	The funding of small operations in private hospitals had three possible sources:
(i)	the NHS, but the NHS acting by local health authorities would only fund referrals by GPs where a contract had been negotiated with the hospital concerned and tended to do so by block deals covering many operations ;
(ii)	private health care insurance ;
(iii)	direct payment by the patient.  

Prior to opening The Mini Hospital the Claimants had not made any arrangements under (i) and (ii) and in fact never did so beyond agreeing in one or two instances with health care insurers that their fees would be met.  The Mini Hospital never became a contracted NHS or participating private insurers’ hospital.  As to (iii) there were never sufficient self-funding patients to support The Mini Hospital.  Laing states there had been few instances of health authority purchasers making new contracts with independent providers : most were arranging block contracts with existing NHS providers.

85.	Mr Siddiqui marketed the services of The Mini Hospital to local GPs and many wrote or signed letters written by Mr Siddiqui stating they would patronise The Mini Hospital.  But in fact few did so.  One can only assume they had little call for the operations permitted and/or their patients were NHS funded and/or they preferred to refer in practice to local NHS hospitals.  Laing states that GP fundholders appeared to be showing a high degree of loyalty to existing NHS providers. 

86.	He offered the services of the Mini Hospital to GHA but the furthest he got was that his proposal was to be considered for 1994/1995.  With limited LA registration I consider there was little chance of obtaining approval and if The Mini Hospital had been put on the GHA list I doubt whether there would have been a significant call for such operations.  In a letter dated 16th March 1993 GHA stated that in 1992/1993 they commissioned a total of only 1784 episodes of day surgery from all providers. 

87.	Mr Siddiqui sought to persuade me that his charges were low and that he would have been left a healthy profit after meeting expenses.  This may be, although I suspect he underestimated his expenses, not least the cost of running the premises and staff.  Business opportunities in theory, summarised by Mr Kabralji at Para 2.6.1 of his report did not manifest themselves in practice.  The business never got off the ground as a business.  It had not proved to be viable by March 1994 and in my judgement with its limited existing registration had no realistic prospect of doing so.

88.	Given that in my judgement the business was inherently weak in its existing form it is not necessary to consider in detail the Claimants’ indebtedness to the Albaraka Bank and the impact of that indebtedness on the business.  In August 1991 the Claimants had mortgaged the premises to the Albaraka Bank for £275,000.  Interest as such was not payable but in the first year the Bank was to obtain a return of 13% on its outlay, in the second year it was 12%.  In the first year repayments were £6,369.09 pcm (£76,429.08pa), in the second year £6,216.54pcm (£74,598pa).  The Claimants soon fell behind with repayments.  First the Bank appropriated their deposit of £25,000 to meet arrears and monies due.  In September 1992 the Bank issued proceedings for possession of the premises.  Shortly afterwards the Claimants instructed Christie and Company to value the business with a view to sale.  It is clear that by the end of March 1993 Mr Siddiqui regarded their position as precarious (see letter of 31st March 1993 to the present Defendants).  Although the Bank obtained judgement for possession on 9th December 1993 they did not enforce the order until December 1995 and did not sell the property until December 1996.  Such indebtedness made the business even less viable.

89.	Mr Kabraji has concluded that because the Albaraka Bank had been tolerant, and because the immediate overheads were small as instanced by the small number of operations which had taken place, trading could have continued backed by sufficient financial resources such as family funding from Mrs Siddiqui who was working as a teacher, their daughter who was a trainee doctor and their son who was an engineer (Mr Lawler says he was a doctor), had the existing registration been restored in June 1994.  He reached this view without any information on any business creditors, ongoing expenses such as business rates and the family’s financial state, their income, living expenses and commitments.  In the absence of reliable financial information showing such a view is sound I am afraid I am not prepared to accept it.

90.	I conclude therefore that The Mini Hospital was not viable with its existing licence to carry out LA operations.  I reach this view for reasons similar but not identical to those advanced by Mr Hobbs, the accountant instructed by the Defendants.  I deal below with the prospects of obtaining GA registration. 

91.	Was there a real as opposed to fanciful chance that GHA or any successor would grant the Claimants a licence to carry out operations under GA and if not was there a real as opposed to fanciful chance that any such refusal could be successfully challenged ?

Operations under LA and GA are in different leagues.  Operations under GA require an anaesthetist and his equipment; extra space in theatre for the anaesthetist and his equipment; extra space generally for the manoeuvring of trolleys carrying patients ; more staff; different and more expensive drugs; time and space for patients to recover etc.  

92.	I have easily been persuaded that the premises, although adapted by the Claimants for GA operations were nevertheless inadequate for that purpose.  A few examples will suffice.  

(i)	The operating theatre was the same room as that used for LA procedures.  It measured, as I find, 167 inches by 127 inches by 107 inches high.  I take these precise measurements from a letter from Mrs Siddiqui to GHA dated 22nd May 1989.  They are close to Dr Baxter’s assessment of less than 13 square metres and the Pinders’ record of 130 square feet.  Given that the NAHAT recommended area is 37 square metres it is not too difficult to note the inadequacy.   
Mr Lavelle, a retired consultant ENT surgeon with experience as a clinical director, of private practice and of performing many day surgery procedures, called by the Claimants to deal with the suitability of the facilities at the premises, said in his witness statement he  regarded 13 square metres as “smaller than ideal and certainly not comfortable” for GA.  He repeated that view in evidence.  I was not persuaded by Dr Akramurhaq’s opinion that the area was large enough to accommodate an anaesthetist and his equipment as well as other staff, nor by his statement that he had seen smaller theatres in the NHS.  I am sure there have been and may still be smaller theatres but that is no good reason for finding this theatre to be of acceptable size.  He accepted it would not meet the NAHAT description “acceptable modern standard” if, as he said, you interpreted that strictly.   
(ii)	The theatre was on the first floor.  No lift was installed.
(iii)	Access to the first floor had to be by staircase which had an awkward bend in it.  It can hardly be desirable to carry patients on stairs by stretcher. 
 
93.	I have also been persuaded that The Mini Hospital’s overall service fell short of what was required for GA operations.  In particular, the initially proposed staffing arrangements, which included temporary employees, were inadequate.  Although Mr Siddiqui in his letter of 15th December 1993 wrote accepting the staffing conditions required by Dr Baxter and GHA, he expressed the view that these requirements were “completely unreasonable”, that he did not foresee overnight stays and that subsequent application might be made to vary the conditions.  It was these observations that produced Dr Baxter’s comment of “lamentable ignorance”.  I consider Dr Baxter was right to question the expertise and understanding being brought to the operation.  Mr Lavelle considered the eventual employment of permanent theatre trained staff to be a reasonable condition on which the health authority should insist and thought it nonsense that day to day clinical responsibility should be exercised by someone in Mr Odedun’s position ie spending the majority of his working time 200 miles away.

94.	GHA had earlier expressed concern to Mr Siddiqui that The Mini Hospital in applying for GA and seeking a further 220 approved operations was overreaching its capabilities.  I consider that view was likely to have been maintained.  It was reinforced by the views of Dr Baxter and Miss Whitfield.  Mr Lavelle considered that when a health authority acts it is obliged to follow specialist advice unless it was blatantly wrong.  Mrs Rodin said the same with regard to the advice of their Director of Public Health, Dr Evans.  The chances of Dr Baxter and Miss Whitfield changing their minds was, I consider, so small as to be negligible. 

95.	Nor did the Claimants on their own evidence get close to demonstrating that it was appropriate that they should have been granted GA registration.  Dr Akramulhaq, whose general support for GA operations at the premises had initially been relied on by Mr Siddiqui, accepted in evidence that different doctors could have different views on this.  He never went so far as to say that Dr Baxter’s opinions were unreasonable or wrong.  Mr Lavelle, agreed with Dr Baxter’s opinion that registration for GA was not appropriate. 

96.	Mr Siddiqui, as was his wont when confronted with difficult points, sought to argue that the difficulties could be accommodated.  For example, the theatre on the first floor could be enlarged by moving a wall, or if necessary the theatre could be relocated on the ground floor.  These changes in turn raised other problems.  He never suggested a lift could be installed. I consider the building was and was likely always to remain unsuitable for GA operations.  

97.	I consider it wholly unlikely that a decision to refuse registration for GA at the premises could have been challenged successfully.

98.	Was there a real as opposed to fanciful risk that the Claimants could have continued with their business in the Autumn of 1994 on the assumption that :
            (a)	The Claimants’ licence to carry out LA operations was restored; or
(b)	The Claimants licence to carry out operations under LA was restored and was extended to permit operations to be carried out under GA
 
	It would inevitably have taken some time (my best assessment is probably to September 1994) before the tribunal would have reached/announced a decision on the appeal.   A delay of a some 5 months or so was therefore inevitable before LA procedures could have been resumed, had registration been restored.  Given that I consider that GHA was no longer supportive of The Mini Hospital it is reasonable to assume that no further LA operations procedures would have been licensed beyond the existing 37, which in my judgement had already proved insufficient to support the business.  This 5 month delay, together with the fact that I see no realistic opportunity of increasing the client base during that period – GHA had allocated its day cases for 1994, no other health authority had been approached or if approached had agreed to fund day cases, neither BUPA nor any other insurer had accorded The Mini Hospital accredited status and self funding cases were few and far between, when added to the accumulating debt burden – made the chances of success even more remote.   My view would be the same if the hearing had taken place in June.  The only let up for the Claimants was that Albaraka Bank appears to have been in no hurry to sell the premises.  The Claimants sought to make the premises pay by allowing medical examinations to take place there but that proved insufficient.  On the evidence before me I cannot conclude that restoration of registration, whether in June, September or December 1994, would have made any difference.

99.	Given my findings that there was no realistic prospect of the Claimants’ being awarded GA registration, whether the granting of a GA registration in addition to restoration of the LA licence would have enabled the Claimants to continue in business is hypothetical.  In my judgement the premises were unsuitable for GA operations and only substantial reconstruction at considerable cost could have made them suitable.  Further, the establishment of a permanent staffing structure, which Mr Lavelle accepted was necessary, would have necessitated considerable financial outlay.  The Claimants could afford neither.  Mr Siddiqui sought refuge in the fact that he could have borrowed more from Albaraka Bank.  But Mr Kabraji in his report (at Para 4.3.25) said “…one should certainly draw the conclusion that the Albaraka Bank would not have provided any additional finances to Mr and Mrs Siddiqui…”.  And why should friends have lent more money ?  And for GA as for LA operations, they still needed NHS, private insurance or self-funded patients.  Where were they to come from ?

100.	Did the existence of (a) a licence to carry out operations under LA; or (b) a  licence to carry out operations under GA increase the value of the either the Claimants’ business or their property at 156 Shooters Hill Road, London SE3?

These questions are another way of asking what value, if any, would have been attached to the business with LA registration had it continued or GA registration had it been granted,  

101.	The Defendants urge me to find that no extra value attached to either the business or the premises because in each case the registration would have attached to a person not premises or an identifiable business.  That is too simplistic a view.  Section 23(4) of the Act states that an applicant for registration shall be registered “in respect of the home named in the application”.  All things being equal, I see no reason why on a sale of the premises/business as a going concern, GHA would refuse to register a new applicant, provided, of course, that person was suitable.  Further the business could have been sold registered in the Second Claimant’s name. 

102.	I conclude that the grant of registration in each case would, in theory, have enabled some extra value to be realised.  But I consider it impossible to assess such a value on the facts of this case.  The value of a business depends largely on its capital assets, past and projected income and its goodwill.  There are many different methods of valuing a business.  Some of those methods are set out in Mr Kabraji’s report.  Mr Kabraji considered the EBITDA (Earnings before interest, tax, depreciation and amortisation) method appropriate.  Indeed it would appear that the immaturity of the business coupled with its indebtedness and lack of regular income would make other methods inappropriate.  

103.	With LA registration restored

Mr Kabraji pointed out that there could be no basis for relying on historic earnings in the present case as there were no accounts or accounting records  which could reasonably be relied on.  Likewise there were no contemporaneous financial forecasts.  This made the task “all the more subjective”.  He therefore took other hospitals as comparators and assumed that once The Mini Hospital was fully operational it would carry out no more than 1364 operations pa.  He also assumed the business would have to be relaunched in June 1994 and that referrals in due course would be 50% from the NHS, 25% from fundholders and 25% from private insurance or self funding.  He assumed a gradual approach towards 50% NHS funded patients.  He then applied charges for each patient and deducted staff and other operating costs to produce £283,558 pa to which he applied an EBITDA multiplier of 4.5 producing £1,276,001.10.  He then adjusted this figure to allow for the fact that full income would not, on his assessment, be achieved until Year 4 and produced a valuation of £786,141.00.  He considered this figure should be further discounted for risk but left this assessment to the court, stating the court would be in a better position to assess Mr Siddiqui’s credibility and how a prospective purchaser would have perceived the risks of buying the business.   

104.	Mr Lawler considered the EBITDA approach was valid in this case and considered Mr Kabraji’s assessment of 1364 operations pa with only 25% of this number carried out in the first year as a reasonable starting point. But he considered Mr Kabralji was wrong to discount further for risk : he said this was already allowed for in the multiplier.  His approach to valuation was slightly different.  Although he considered the EBITDAs used by Mr Kabralji reasonable and supportable ones he reduced them by applying percentage probabilities to them, in effect discounting them.  He produced a weighted average EBITDA of £98,300 which x 4.5 produced a valuation of £442,000 compared with Mr Kabraji’s £786,141.     

105.	With GA registration

	Mr Kabraji adopted a similar approach for GA registration but with differing assumptions some of which were based on what Mr Siddiqui said.  Mr Siddiqui was assuming a 50/50 split between LA and GA operations.  I do not propose to set out all the assumptions.  He reached an EBITDA multiple of £300,880 pa to which he applied an EBITDA multiplier of 5 producing £1,504,400.00.  Again he adjusted this figure to allow for the fact that full income would not be achieved until Year 4 and produced a valuation of £873,553.00, leaving it to the court to adjust the figure for risk.      

106.	Mr Lawler adopted a similar approach to that he had adopted with LA registration but adopted different percentage probabilities taking the view that with GA registration the picture was more encouraging.  Using a multiplier of 5 he reached a valuation of £830,000 compared with Mr Kabralji’s £873,553.
    
107.	On the facts of this case I consider these valuations are unreal and highly speculative.  Neither Mr Kabralji nor Mr Lawler was expert in valuing or marketing businesses in this field.  Mr Lawler deferred to the Pinder reports of 1990 and 1991 made for the purposes of raising finance and valuing (cautiously one would expect) the business as a going concern as £500,000 and £600,000 respectively but these reports assumed successful trading with registration for GA operations.  The Kabralji and Lawler reports are founded upon one uncertainty after another.  In fairness to Mr Kabraji he was asked to make many of the assumptions and the others he based on published material, sometimes of a general nature.  Mr Lawler adopted many of Mr Kabralji’s assumptions.  So far as their assessments were based on Mr Siddiqui’s assertions I am quite satisfied they were hugely and unrealistically over optimistic.  

108.	Valuation also depends on the perceptions of any purchaser.  Any purchaser of the business with restored LA registration would have to consider where his business was to come from.  There he would likely be faced with the same problems as had, in my judgement, rendered the business unviable for the Claimants.  The only advantage he would have had would have been premises already adapted for LA procedures.  The extra value for the adaptation is inherent in Mr Keeling’s report and remained for the Claimants.  If the business would have to be relaunched, as Mr Kabralji considered, any new purchaser would be starting all over again.  Why in such circumstances should he pay for the business as opposed to the premises ?

109.	Valuation of the business with GA registration would have to reflect the operations for which registration had been granted.  Although I know what operations GHA had indicated might be approved, such approval was never given, and I have no evidence enabling me to decide what extra value is inherent in having registration for such identified operations.  I am not prepared, in the absence of such evidence, to alight on some valuation of my own. 

110.	Can the Claimants establish that they have suffered any loss caused by the admitted breach of duty by the Defendants and if so what is the quantum of that loss.

	The Statement of Claim alleges that as a result of the negligence the Claimants have suffered disappointment, anxiety, humiliation and distress.  It also particularises damage suffered as including expenditure incurred since 1985 and salaries of £250,000 due to Mr Siddiqui and £194,000 due to Mrs Siddiqui which had been “invested in the business”.

111.	The claim has been presented before me on the basis of loss of business income resulting from the breach.  That was Mr Kabraji’s approach and Mr Lawler accepted that to award both expenditure since 1985 in establishing The Mini Hospital and lost profits would amount to double recovery. The Claimants also assert that loss of registration led to repossession of the premises and an ultimate forced sale at a reduced valuation.  They have not sought to argue that they are entitled to recover expenditure incurred since 1985 nor the salaries invested in the business.   Had they done so, on the facts of the case they would have had an uphill task. 

112.	It will be apparent from my findings that I cannot accept that any business losses have been proved to have resulted from the Defendants’ admitted negligence, as opposed to the loss of registration.

113.	So far as the value of the premises is concerned, they were valued by Mr Keeling in 2001 for the purposes of this action.  He reached a June 1994 valuation of £134,000 assessed by reference to 1994 rental values for nearby doctors’ surgeries and capitalisation of the achievable rent, assuming the premises were to be used as a doctor’s surgery, consulting rooms, or similar. He considered the premises had a valuation of £100,000 for residential use after making only a nominal allowance (he did not say what it was) for conversion from a mini hospital.  I have not been told whether or not the premises were in fact sold as a surgery or for conversion to residential use.  They appear from the photographs to be in residential use today.  I was told that property values were at a low ebb in the period 1994-1996.  In fact the premises were sold for £90,000 in December 1996.

114.	The problem the Claimants face in claiming a loss under this head is that they were in the hands of the Albaraka Bank so far as sale of the property is concerned.  The property was never at the material time theirs to sell, except with the bank’s cooperation, and given my earlier findings, was going to be sold in due course in any event.  I am not satisfied any loss has been made out under this head.

115.	That leaves the question of damages for disappointment, anxiety, humiliation and distress.  I was not addressed on this and I do not recall any oral evidence being addressed to the point.  Mr Siddiqui says in his second statement (Para265) that the events resulting from the Defendants’ negligence have caused them “much financial and emotional loss” but did not enlarge on this in evidence.  Mrs Siddiqui made no mention of these matters in her witness statement.  

116.	As a proposition of common sense, it is easily foreseeable that the loss of opportunity to argue the appeal could cause distress and disappointment even if not anxiety and humiliation.  But decided law does not measure recoverability in terms merely of forseeability.  In Watts v Morrow [1991] 1 WLR 1423 Bingham LJ stated damages for distress should only be awarded where “ the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation”.  This was adopted by the House of Lords in Johnson v Gore Wood and Co (A Firm) [2001] 2WLR 72.  In Farley v Skinner [2001] UKHL 49 (11th October 2001) the House of Lords held it was sufficient if a major or important part of the contract was to secure pleasure, relaxation or peace of mind.  I do not consider it can be said in the present case that a major or important part of the Defendants retainer was to secure pleasure, relaxation or peace of mind, although such emotions might have followed had the appeal been heard and been successful as might have distress and disappointment had the appeal failed.  In my judgement damages are not recoverable under these heads on the basis of the retainer and the facts of this case.  Had I been able to take a different view my award to Mr Siddiqui would have been very modest.  In Mrs Siddiqui’s case I would have made no award as the assertion was unsupported by any evidence and, on her own evidence, she played no part in the business from 1991 on.  	

117.	On the facts of the present case, the only loss suffered would appear to be any costs incurred in pursuing the appeal which have been wasted by the breach, Neither party addressed me on this.
 
118.	Did the Claimants act reasonably to mitigate any loss that they may have suffered as a result of any actionable act or omission on the part of the Defendants ?

As a longstop argument the Defendants have argued that the Claimants should have mitigated any losses by reapplying for a licence for LA procedures and pursuing their application for GA procedures.  Following the tribunal’s decision on 6th December GHA had sent the Claimants an application form lest they wished to reapply for LA registration.  The Claimants’ response is that reapplying for LA procedures would have cost £10,000 which they could ill afford.  Although this sum seems excessive to me, it has not been disputed by the Defendants.  

119.	Given the Claimants’ precarious financial state, which was known to the Defendants, I consider it unreasonable to have expected them to lay out further monies in the circumstances of this case.

120.	Generally

My findings will disappoint the Claimants who have lost considerable sums as a result of their venture at 156 Shooters Hill and who have, I am sure, hoped for a favourable outcome to ease their position.  Their venture failed not from any lack of enthusiasm and effort on their part but because they were setting up in a field where they had no personal experience and, sadly, may not have had appropriate advice.  I consider they never understood until too late that tight control and supervision was exercised over nursing homes and that approvals would take time to achieve.  That time was compounded by delay in the present case.  

121.	I do not know what advice they sought.  They do not appear to have been helped appropriately by those who advised them.  I suspect these failures were due to the advising doctors’ lack of familiarity with the requirements needing to be met before registration could be achieved.  Mr Odedun’s support for carrying out significantly more operations than were ultimately allowed hardly suggests that matters were fully thought through.  I am surprised he was prepared to take on day to day responsibilities for The Mini Hospital when based in Ormskirk.  Dr Akramulhaq supported the provision of the GA facility in these premises without adequate consideration of what would be required : he was not familiar with the NAHAT guidelines.  GHA’s attitude appears initially to have been one of encouragement, albeit qualified by observations that conditions would need to be met.

122.	Against this background it is not surprising that Mr Siddiqui’s ambitions were not contained.  This case demonstrates that those wishing to set up day centres for medical treatment under LA or GA need these days to take full professional advice from those experienced in the relevant fields before embarking on such a venture.  Modern regulation means that considerable financial backing is likely to be necessary for such projects.
  
123.	I would like to end this judgement by expressing my thanks to Mr Ahmed Siddiqui, Mr Faisal Siddiqui, Mr Siddiqui and another member of the Siddiqui family, name unknown, who has been beavering away assisting in the presentation of their case.  They have all done so with patience and politeness and I have benefited from their efforts.  Their closing submissions demonstrated that they had mastered the facts of the case and were aware of the weaknesses.  It is not often one can say that when litigants appear in person.  I would also like to thank Mr Nicol for his assistance.  

		

				JOHN LEIGHTON WILLIAMS QC
				Deputy High Court Judge