Home > Cases > Primary Health Investment Properties Ltd & Ors v Secretary of State for Health & Ors [2009] EWHC 519 (Admin)

The first claimant (PHIP) was the freehold owner of a medical centre in Lincolnshire (the premises) at which four general medical practitioners, grouped together for the purposes of the instant set of proceedings as the ‘third claimant’ (the doctors), practised, pursuant to agreements which they had each entered into with the interested party primary care trust (the PCT). The doctors were also the tenants of the premises under a lease of which PHIP was their landlord. The second claimant was the holding company of PHIP and had a financial interest in relation to the premises, as well as other similar medical premises. In about 2004, a dispute arose between the doctors and the PCT concerning the rent which was payable in respect of the premises (the rent issue). It was commonplace that under the agreements in question, the doctors would, initially, claim reimbursement of rent paid by them for the premises from the PCT, and, thereafter, the PCT would be required to pay to the doctors a sum representing the lower of the actual rent payable under the doctors’ lease of the premises and the ‘current market rent’ for the premises. In the event, the PCT instructed the District Valuer (DV) – an emanation of the Valuation Office Agency, an executive agency of HM Revenue and Customs – to advise it. The doctors were represented by a firm of surveyors. As at May 2006, no agreement had been reached between the DV and the surveyors as to the rent issue, and, in consequence, the ‘appeal process’ was initiated. The claimants contended, inter alia, that the involvement of the CEO VOA ‘tainted’ the DRP with apparent bias, on domestic principles, given the prior involvement, at least at the initial stages of the dispute in respect of the rent issue, of the DV in acting on behalf of the PCT, which was a party to that same dispute and of which, in negotiation with the doctors’ surveyors to fix the current market rent, continued to act on the PCT’s behalf in submitting representations to the Appeals Unit under the DRP.

Held: Application allowed. Applying settled principles to the facts of the instant case, it could be said that the perception of a fair minded observer would be that the VOA in its two roles, the DV on the one hand and the CEO VOA on the other, was no different from any other expert surveyor whose role was to advise a client. In the circumstances, the DV had advised and represented the PCT, as correctly pointed out a party to the dispute in respect of the rent issue, and the CEO VOA had advised the ‘decision maker’, the Appeals Unit. The independence of the respective advisers could be regarded as no more than a ‘qualified’ independence.

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