Court of Appeal overturned injunction, prioritised patient safety, found no strong Braganza breach and held surgeon lacked clean hands.

A series of allegations including sexual assault arose against AB, a consultant surgeon which led to a number of investigations. As a result of this, the CEO of the HSE placed AB on paid administrative leave from Hospital X.

AB sought a mandatory interlocutory injunction order requiring the HSE to restore him to his position on the basis that the consultation process leading up to the administrative leave decision was contrary to fair procedures, in breach of contract and that the decision created a substantial risk of AB becoming de-skilled.

The High Court held that there was a strong case to be tried, and ordered the HSE to restore AB to his full-time work albeit restricting AB’s service to hospitals of the HSE other than Hospital X. This was because about a month after he initiated High Court proceedings, AB had been indicted at the District Court for the sexual assault allegation and released on bail subject to a condition that he could not work at Hospital X.

The HSE brought an appeal. The Court of Appeal (CoA) examined the following factors: (i) strong case to be tried; (ii) balance of convenience/ balance of justice; and (iii) the principle that an individual seeking equitable relief should come with clean hands.

Strong case to be tried: when the right at risk is due to the exercise of the other party’s discretion conferred by the terms of a contract, the appropriate test is as formulated in Braganza v BP Shipping Limited [2015] UKSC 17. The test is whether or not the exercise of that discretion was carried out in good faith, and not of an arbitrary, capricious, or irrational nature. In assessing whether the decision was one of a reasonable decision-maker, the Court examined, whether the process failed to exclude extraneous considerations or take account of all obvious and relevant ones.

• The CoA found that the CEO acted in good faith by reason of his thorough and transparent engagement with AB throughout the consultation period leading up to the decision to place AB on administrative leave.
  
• The CoA found that while AB had reached the threshold of a fair issue to be tried, he had not reached the threshold of a strong case with respect to the Braganza test as he failed to provide a strong argument that there was an absence of fair procedure in the manner the CEO placed him on leave.

Balance of convenience or justice: The CoA held that, in the balancing exercise, the existing risks of harm to members of the public not being capable of being compensated far outweighed the issue of de-skilling identified by AB. The CoA believed damages would go a long way to compensate for de-skilling or loss of reputation of AB if he remained on administrative leave and is vindicated after the full hearing. The Court also noted the capacity for AB to re-establish his skillset, whereas adverse consequences for patients may not be capable of remedy.

Clean hands: The CoA found that AB had failed in his duty to come before the court with clean hands by failing to disclose that he had been charged with the commission of a serious criminal offence and in particular the bail conditions attached. The HSE contended that the plaintiff had engaged in a lack of candour by reason of his having sworn a misleading replying affidavit in which he sought to create the impression that the CEO of the HSE did not afford him the opportunity to address earlier concerns. The CoA noted that once the conduct of AB came to light, it was incumbent upon the High Court to refuse the relief sought, or any version of it.

The CoA overturned the High Court’s decision on the basis that the balance of justice undoubtedly favoured the refusal of the relief sought by AB even if he had established a breach of the Braganza principles or otherwise established a strong case for the granting of the relief sought.

• An applicant for equitable relief must come before the court with “clean hands” and failure to do this can result in relief being refused.
• A court will apply the Braganza principles to the decision-making process where discretion is involved.

The full case can be found here.