Reid & Turner (plainfiffs) v Health Services Executive

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 16 June 2010
• Neutral Citation: [2010] IEHC 292
• Court: High Court
• Date: 16 June 2010

[2010] IEHC 292

THE HIGH COURT

[No. 4478P/2010]

Reid & Turner v Health Service Executive (HSE)

BETWEEN

MARTIN REID AND JAMES TURNER

PLAINTIFFS

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT

HEALTH ACT 1970 S67

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST ACT 2009

LINGHAM v HEALTH SERVICE EXECUTIVE 2006 17 ELR 137 2005/36/7565 2005 IESC 89

BERGIN v GALWAY CLINIC DOUGHISKA LTD 2008 2 IR 205 2007/5/956 2007 IEHC 386

CAMPUS OIL LTD & ORS v MIN FOR INDUSTRY & ORS (NO 2) 1983 IR 88 1984 ILRM 85

HEALTH ACT 2004 S7

IGOTE LTD v BADSEY LTD 2001 4 IR 511 2001/12/3308

HICKEY & ORS v HEALTH SERVICE EXECUTIVE 2009 3 IR 156 2008/29/6303 2008 IEHC 290

INJUNCTIONS

Interlocutory injunction

Contract - Breach - Restraint from breaching contract - Dental Treatment Services Scheme - Viability of practice at risk - Fair question to be tried - Adequacy of damages - Balance of convenience - Whether relief claimed prohibitory or mandatory - Whether fair issue to be tried - Whether damages adequate remedy - Whether plaintiffs entitled to interlocutory relief - Campus Oil v Minister for Industry (No 2) [1983] IR 88; Igote Ltd v Badsey Ltd [2001] 4 IR 511 and Hickeys Pharmacy v HSE [2008] IEHC 290 [2009] 3 IR 156 followed - Maha Lingam v HSE [2006] ELR 137 and Bergin v Galway Clinic Doughiska Ltd [2007] IEHC 386 [2008] 2 IR 205 considered - Health Act 1970 (No 1), s 67 - Health (Amendment) Act 1996 (No 15) - Health Act 2004 (No 42), s 7 - Financial Emergency Measures in the Public Interest Act 2009 (No 5) - Relief granted (2010/4478P - Laffoy J - 16/6/2010) [2010] IEHC 292

Reid v Health Services Executive

Facts: The plaintiffs initiated proceedings by way of plenary summons and sought interlocutory reliefs including an injunction restraining the defendant from giving effect to an Circular issued by the Primary Care Reimbursement Service and an interlocutory injunction restraining the defendant from breaching the agreement entered into between the parties. The plaintiff dentists were participants in the Dental Treatment Services Scheme (DTSS). The Circular was a response in 2009 to the instruction to impose a cash limit on expenditure under the DTSS. The issue arose as to whether a fair issue to be tried had been established, whether damages were an adequate remedy and whether the balance of convenience favoured the granting of the injunction.

Held by Laffoy J. that the plaintiffs had made out a case of the grant of the interlocutory relief. There would be an order pending the trial of the action restraining the defendant from giving effect or purporting to give effect to the Circular. The Court would facilitate the parties with an early trial of the action.

Reporter: E.F

1 Judgment of Miss Justice Laffoy delivered on the 16th day of June, 2010.

1. The application

2 2 1.1 These proceedings were initiated by a plenary summons which issued on 11 ^th May, 2010. On the same day, the plaintiffs issued a notice of motion seeking the following interlocutory relief pending the trial of the action, namely:

3 (a) an injunction restraining the defendant, its servants or agents or any of them, acting howsoever from giving effect or purporting to give effect to Circular No. 008/10 (the Circular) issued on 26 ^th April, 2010 by the Primary Care Reimbursement Service of the defendant; and

4 (b) an interlocutory injunction restraining the defendant, its servants or agents or any of them, acting howsoever from breaching the agreement entered into between each of the plaintiffs and the defendant for the provision of dental treatment services.

5 3 1.2 In the period of one month between the issuance of the plenary summons and the hearing of the interlocutory application on 11 ^th June, 2009, the interlocutory application had generated paperwork running to no less than 399 pages, comprising affidavits and exhibits. In contrast, the issues on the application, both factual and legal, can be netted down to four questions.

2. The factual background

6 2 2.1 The first plaintiff is a dental practitioner practising in Moville, County Donegal. The second plaintiff is a dental practitioner practising in Baltinglass, County Wicklow. Both plaintiffs participate in the Dental Treatment Services Scheme (DTSS).

7 3 2.2 The DTSS, in broad terms, provides for the provision of dental services free of charge to medical card holders. Initially, it was brought into operation to give effect to the obligations and functions of the defendant's predecessors, the Health Boards, under s. 67 of the Health Act 1970 (the Act of 1970), following the publication by the Government of the Dental Health Action Plan in 1994 and negotiations between the Irish Dental Association (the IDA) and the Health Boards. The result was the acceptance in 1994 of a form of contract (the 1994 Contract) to be entered into between the Health Board, on the one hand, and dental practitioners, on the other hand, for the provision of dental treatment services in accordance with the DTSS.

8 4 2.3 Following a dispute between the IDA and the Health Boards, in 1999 the DTSS was revised prospectively. There was an extension of eligibility for routine treatment and a discontinuation of the "Emergency Scheme" which had hitherto existed. However, for present purposes, the significant change was that what was referred to as "above the line" treatment did not require prior approval of the Health Board, whereas in the case of "below the line" treatment prior approval was necessary. As I understand it, in broad terms, above the line treatment included routine dental treatment, whereas below the line treatment involved more complex treatment, for example, the provision of dentures.

9 5 2.4 Contemporaneously with the revision of the DTSS, the form of contract between the Health Boards and dental practitioners was revised and the revised terms introduced in December 1999 (the 1999 Revised Terms) continued to be applicable until the Circular referred to in the notice of motion issued at the end of April 2010.

10 6 2.5 There is a factual dispute between the parties as to the format of the operative version of the 1999 Revised Terms which, in due course, may or may not be material in the interpretation and determination of the contractual terms applicable between individual dental practitioners and the defendant prior to the Circular. That dispute cannot be resolved on this application.

11 7 2.6 The position of the defendant is that the correct form of the 1999 Revised Terms was that which accompanied a letter dated 23 ^rd December, 1999 from the General Medical Services (Payments) Board to each participating dental practitioner. Under the heading "Treatment Ceiling/Patient Care Plan" in that document, the following text appeared:

"The Health (Amendment) Act 1996 governs the provision of health services. Health Boards are obliged to live within their monetary allocations.

The I.D.A. acknowledge that, in the light of the above, Health Boards have the right to take whatever measures are necessary to live within budget and statutory obligation.

Prior approval will be necessary in all cases of below the line treatment (including dentures) and delivery.

Treatment can be carried out on above the line treatments without prior approval.

A patient care plan to be completed and submitted for each patient. In cases where prior approval is not required the patient care plan will be submitted with the claim. Where prior approval is required the patient care plan will be submitted in advance.

Prior approval will continue to be required for treatment on all below the line treatments and dentures in accordance with the above. While awaiting approval, above the line treatments can be carried out."

12 8 2.7 The plaintiffs do not accept that the correct or standard version of the 1999 Revised Terms was as circulated with the letter of 23 ^rd December, 1999 and contend that the correct version was the version circulated by the IDA to its members. As regards the provisions which I have quoted above, the differences between the version contended for by the plaintiffs and the version contended for by the defendant is that the fourth, fifth and sixth paragraphs in the latter (the defendant's) version appear as the first, second and third paragraphs in the former (the plaintiffs') version and are followed by an additional heading "Approval" and there then follows the first, second and third paragraphs of the latter version. On the basis of the affidavit evidence, the two versions were obviously in use and the first plaintiff signed up to the latter version and the second plaintiff signed up to the former version. It is only fair to record that, at the hearing of the application, counsel for the plaintiffs made it clear that, as regards the proper construction of the 1999 Revised Terms, he was not placing too much reliance on the presence or absence of the heading "Approval" in the operative version.

13 9 2.8 Another factual matter raised on the affidavit evidence is that a version of the 1999 Revised Terms executed by some participating dental practitioners did not include a termination clause. In any event, there was a termination clause in the 1994 Contract - clause 29. It provided:

"Either party may terminate this Agreement at any time:-"

(a) By giving to the other not less than 3 months prior notice in writing of intention to do so to the other and immediately after such termination the CEO may delete the contracting dentist's name from the dental panel. Any dental letters and charts held by the contracting dentist prior to the expiration of such notice in respect of which the dental treatment has not been commenced shall be deemed to have been cancelled. Treatment which has been sanctioned may be completed.

14 or

15 (b) on the...