[2025] EWHC 2684 (KB)

Mr Prior (who is now Baron Prior of Brampton) was the Chairman of Chancellor Care Limited from May 2005 to September 2006 (and from 2003-2006 an investor having been introduced to Mr Chancellor who was looking to raise money through his accountants). He was the MP for North Norfolk from 1997 to 2001. In 2002 he was appointed the Chairman of the Norfolk and Norwich University Hospital NHS Trust.

He was also arrested on 14^th November 2006. He stated that “the Police had tipped off the press which I felt was disgraceful and outrageous”. He was interviewed (not being impressed with the quality of the questions put) and then released.

Mr Prior stated that:

“I instructed…solicitors and over the next several weeks (they) and I sought to persuade the police that I could not possibly be implicated in this imaginary fraud. I recall the rudeness and complete disdain that the officer in charge DI Cunningham showed me and my solicitor. He refused to take a call from me and engage in any way. I remember at one point being told that if we carried on as we were, the Police would apply for a restraint order against me, as they had with Andrew and Dominic. Then on around the 15th of February 2007 my solicitor received a telephone call to say that I was no longer under suspicion.”

And

“A month so later, I complained to the then Chief Constable Ian McPherson… there was no hint of an apology and no expression of regret. He appeared to have no understanding of the havoc his officers had caused to my life and career. I have one further recollection from that meeting which is that when discussing Andrew and Dominic the clear cut impression Ian McPherson gave me was that the case against the two men was a cut and dried case. My statement to the Police made it absolutely clear that there was no fraud at Chancellor Care and yet they paid no regard to that and called me as a prosecution witness. If they had even remotely open mind they would never have proceeded with the case relying on my evidence. The interview with McPherson confirmed the view that they simply closed ranks and were not open to fresh thinking.”

Although it was not a specific issue in this claim, and therefore not the subject of detailed submissions, I found it difficult to understand the justification for the arrest of Mr Prior (as opposed, if thought necessary and given the evidence which had been obtained which did not directly implicate him, to a request that he attend for questioning on a voluntary basis). Further it is not in issue that the Press were tipped off and that DI Cunningham was rude and disdainful; both being improper conduct. Overall it is my judgment on the evidence before me that Mr Prior was dealt with in an unacceptable manner that fell below the conduct that could be expected of the officers involved. I am also sure that the unchallenged evidence of Mr Prior is accurate in that Ian McPherson was of the view (given what he had been told by his officers) that the case against the two men was a “cut and dried” case. However such matters are of limited assistance to the Claimants’ claim and yet again the impression formed was that the relevant officers thought that the Claimants were guilty; not that they were not guilty and/or that there was insufficient evidence to support a successful prosecution.

Within his police witness statement Mr Prior stated about the PWC report that;

“I find it incredible that, if the fraud was going on, they did not find out at the time and also that, if Andrew and Dominic were involved, they would have allowed the due diligence process to happen.”

He explained that one of his roles as chairman would be to attend monthly board meetings and to read the pre meeting board pack which would involve financial report. He stated of Dr Barker:

“The idea that he was caught up in some commercial fraud knowing the man as I do is risible, he just wouldn't understand it. One could be critical in more recent times of his commitment to the business as he was looking forward to retirement but he would not have been involved in any sort of pricing discussions or anything like that. He was more on the patient side of things.”

In relation to Mr Deveney he said;

“He was a big, charismatic, impressive man. He was much stronger in personality then Andrew Breeze. I find it staggering that as I understand it, Mark says he was suborned into doing things he didn't want to do. That is utter nonsense. He is a big tough bloke. If anything it was the other way around. Andrew was a person who wouldn't tackle a problem. Mark did a lot of things that were totally unsatisfactory but Andrew did not have the courage to fire him a lot earlier. I think they went back a long way together and have been good friends but I think the whole dealing with Mark Deveney in November/December 2005 was extremely poor and exposed Andrew as not being up to the job of Chief Executive. The whole “Mark Deveney thing” was very messy. We had instructed lawyers as it's very hard to dismiss someone these days, even if they had done what he had done, but he actually resigned just prior to the disciplinary hearing. He was a key part of the team. He was head of care, he was assessing all the new patients coming in. He was very much involved in the extra care concept and had the day-to-day running of the organisation, effectively doing what Andrew should have been doing.”

Mr Prior then explained that LDC (Mr Bull) were unhappy about the Claimants’ performance as:

“…They were not very happy with the occupancy levels on the financials, which were OK but not as good as Andrew and Dominic had forecasted. As a result I had a number of meetings with Andrew and Dominic and expressed my reservations about their ability to do the job…”

And

“By Christmas 2005, the business was not doing as well as had been predicted in May so Andrew was under quite a bit of pressure.”

Mr Prior stated of Mr Breeze and extra care;

“I never had any reason at all to believe he was anything other than a man of integrity. I never got any indication that he was aware of doing anything wrong. As far as ‘Extra Care’ is concerned, I don't really know what his role was.

As I understood it, ‘Extra Care' centred on the principle that Cawston Park took in a range of people. Some were much more difficult than others and some were so difficult that no one else wanted to have them. Indeed some were so difficult that they would have had a number of staff with them all the time in other establishments making sure that they did not kill themselves or someone else, The whole concept of 'Extra Care’, as I understood it, was that we charged more for those people who were difficult to care for.

The mechanism, I think, was that the individual patient was assessed before they came to Chancellor and if they were considered to be very difficult the PCT's would be charged 'Extra Care’ for them. I think that the 'Extra Care' charge was always agreed with the PCT before they came. Anecdotally, I don't think we would have charged 'Extra Care’ for someone unless they were "specialled" elsewhere and again, anecdotally, I understand that it was a lot cheaper to have a patient at Cawston Park than where they had come from in the NHS, which is why the PCTs were so keen to send them to us. My understanding is that it was a clinical assessment which determined whether someone was eligible for 'Extra Care’.”

And

“In relation to 'Extra Care' my understanding was that it was a charging mechanism to reflect the difference between a standard and a very difficult patient.

The way the difficult patients were looked after in more traditional settings is what you could call “man to man custodial marking". They would have one or two people (or more) with them all the time, twenty four hours a day. We did not do that as we tried to put in place an infrastructure which obviated the need for that kind of treatment which we felt was not conducive to them getting better.

I accept that the term "Extra care" was probably not the best term to have chosen. I don't think the company could say that it put three people on a person at £15 per hour, twenty four hours a day for three months. Instead we had an 'extra charge’ for people who were complex and difficult and as I understand it this was fully disclosed and understood by the Primary Care Trusts.

I think this is where there is a misunderstanding. I accept it is a slightly confusing area, but it was a different model of care than other companies and the NHS were used to operating.”

And

“The service level agreement with Norfolk, I have to accept, is pretty imprecise. It is not a nice clear cut legal agreement but it does set out the basis on which "Extra Care" is charged. I cannot recall it ever being brought to my attention that a PCT had raised a query in relation to these charges.

Again, with the benefit of hindsight I think the label 'Extra Care’ was not the right one. On reflection, a better description in my view would be a “responsibility allowance" - both a risk premium and a care premium reflecting the severity of the patient's condition. At the time I knew that it was being applied to patients with difficult psychiatric conditions by agreement with the PCTs but that is all 1 knew at the time and that is all I really know now.”

And

“I appreciate that the definition of "Extra care" is being treated as central to this investigation but I do not feel qualified to comment further. The irony of it all is that the person who came up with the idea of using this term was Mark Deveney who, I believe, had introduced the term in to the NHS in Norfolk.”

And

“After Lesley Denton found out that there was an investigation from speaking with the Suffolk PCT the matter was discussed at Board level and we thought we should carry out an internal investigation. So we asked Dominic and Andrew to put together a paper on ‘Extra Care' which was reviewed by our solicitors DLA Piper. We read that paper and came to the view that the concept had not been precisely defined but also that there was no dishonesty involved and that there was no evidence to suggest that the PCTs did not understand the Chancellor Way and the charging mechanism. I should say that as soon as we found out about the investigation we wrote immediately to the police to ask if we could be of any assistance.”

In summary DS Brownsell said;

“David Prior is an ex-MP and the chairman of Norfolk and Norwich University Hospital. David Prior invested in the acquisition of the Cawston Park site with an investment of £120,000.”

In the MG6 he stated:

“David Prior

In the early stages of the enquiry we could not ascertain Prior’s involvement with the day to day running of Cawston Park. We were aware that he was the non-executive Chairman and that he benefited considerably from the MBO, as had the other suspects. Det Insp Cunningham policied that Prior was to be arrested with the other suspects on the day of action: 14^th November 2006.

Subsequent enquiries showed that Prior had in fact resigned from Cawston Park.

Prior had been in dialogue with Anthony Bull from LDC. Bull had written to him expressing concerns over the competence of Breeze as the Chief Executive as the company was not meeting projected targets. Indeed, Prior was later subject of some criticism that he had not done enough at Cawston Park in his capacity as Chairman.

Prior was also aware of the enquiry into Extra Care.

In September 2006 the HCC performed their inspection which resulted in statutory notices being served, a considerable embarrassment to Prior.

Richard McKenzie was contacted by Prior and asked whether he would be the Chief Executive. Prior at the Board meeting demanded that Breeze step aside to allow Mackenzie to be Chief Executive or he would resign. During this Prior mounted a personal verbal attack on Andrew Breeze. The Board accepted Prior’s resignation.

There was no evidence to link Prior to the Extra Care fraud in terms of its pseudo application or invoicing. Prior was not linked to the drugs fraud. Det Insp Cunningham policied that he was to be released from his bail obligation and treated as a witness. This decision was ratified by CPS. Prior has provided a witness statement.”

Apart from this he did not feature in the analysis save as regards to documents found on a search of his home which related to the sale of the property. This was a surprising omission given the significant matters set out above which gave an insight into the individuals at the centre of the operation of the hospital, an explanation of an understanding of extra care which was supportive of the Claimants’ case and undermined the evidence of Mr Deveney. Mr Prior’s overview was, in effect, that there were deficiencies in management (indeed in line with the view of Mr Bull he clearly did not believe that Mr Breeze was up to the role he was filling) but that there had been no dishonesty. Not having heard DS Brownsell directly cross-examined on the omissions from the summary I have been deprived of his reasoning for not setting out more fully the content of Mr Prior’s statement (which accompanied the summary; so was there to be read). As with the evidence of Ms Gaisford I have carefully considered the likely explanation for the failure to highlight the views of Mr Prior as set out in his statement. For the avoidance of doubt I have also considered the omissions (as I have found them to be) cumulatively. Having considered the entirety of the lengthy summary document, the number of witnesses referred to and its focus, also having heard DS Brownsell (although not cross-examined directly on the content of the summary) I am satisfied on balance that omissions (including in relation to Mr Prior) were not due to a deliberate attempt to mislead or suppress evidence.

Mr Tarrant’s advice also did not cover the views of Mr Prior. In my view this was also an error in his advice.

Given the content of his witness statement I cannot understand why Mr Prior was called as a Prosecution witness without detailed consideration of what he had set out in his statement (but that was not a decision for the investigating officers).

Two witnesses set out their surprise at not having been contacted by the Police, and the failure to do so is relied upon by the Claimants as evidence of malice.