Mahfouz v Professional Conduct Committee Of General Medical Council

LORD JUSTICE WALLER: As appears from the judgment of Carnwath LJ, with which Sedley LJ and myself agreed, two points arose on the Appellant's appeal from the decision of Davis J. First, the Appellant challenged Davis J's refusal to grant relief in relation to the GMC's decision to refuse to discharge themselves, following the reading of certain newspaper articles, which revealed material of which they would not and should not have been aware. We dismissed the appeal on that aspect, and confirmed the judge's decision that the Committee was right in continuing to hear the proceedings.

The second aspect concerned the Committee's ruling that they were not prepared to adjourn the proceedings for a short time to allow an application to be made to the Administrative Court to challenge their ruling to refuse to discharge themselves. On that aspect we allowed the appeal, holding that it was unreasonable in the particular circumstances of this case not to have granted a short adjournment.

The judgment clearly contemplated that the matter would go back to the original tribunal to continue with the hearing, the judgment indicating that it would be for the tribunal to deal with the practical difficulties caused by the delay due to the challenge, and that they would so decide with the assistance of the legal assessor.

Following the handing down of the judgment, however, Miss O'Rourke put in written submissions to the effect that she should be heard on the relief to which the Appellant was entitled, following the allowing of the appeal on the adjournment aspect. Her submission came down to a claim to be entitled to an order that the proceeding should now be heard by a totally fresh tribunal. In other words, what she seeks on behalf of the Appellant is the very relief which the Appellant had failed to obtain on the main appeal.

That relief is sought on various cumulative grounds, set out in paragraph 8(a) to (n) of Miss O'Rourke's written submissions. I can deal with them in categories. (a) and (b) really come to asserting that a finding that the tribunal acted unfairly in refusing an adjournment means that an informed observer would think that the tribunal cannot act fairly now in hearing the case.

(c) to (e) and (l) deal with the fact that because the hearing was not adjourned and because the Appellant chose not to attend following the ruling by the tribunal that they would not discharge themselves, certain evidence was given in the Appellant's absence. Miss O'Rourke questions whether the tribunal which heard that evidence can now deal with the matter fairly. She poses the question whether cross-examination, if it were allowed, would sufficiently protect the Appellant, and she also raises the issue as to whether it might not now be declared that certain of the evidence was inadmissible, for example, a video which was shown during that period.

(f), (g) and (m) assert that the transcript shows that in the Appellant's absence the members of the tribunal may have shown antagonism or bias towards the Appellant by remarks made or questions put.

(h) suggests that the judge, Davis J, had expressed "instinctively" during the hearing below that if he allowed the application for a review in relation to the adjournment he would have 'scrubbed' the proceedings because the position could not be retrieved.

(i) to (k) deal with convenience; first, it is said it will be inconvenient to allow the present tribunal to continue to sit, leaving the problems to be dealt with by the tribunal with the assistance of the legal assessor, because that may lead to further problems. Miss O'Rourke explained that she did not mean by that there would be further applications to the Administrative Court, but that there might be points that would arise on any appeal. Again, so far as convenience is concerned, Miss O'Rourke submits that a fresh tribunal is, in fact, available on the relevant dates and, albeit Mr Clarke cannot confirm absolutely that that is so, there appears to be very little between the parties on that.

Finally, (n) is a wrap-up submission, really saying in the light of all the above matters an informed observer would conclude that the tribunal might subconsciously misjudge him.

There are, in my view, various points to stress. The points now taken by Miss O'Rourke were never points argued before us on the adjournment aspect of the appeal. It was, in particular, never submitted that the Appellant should, by virtue of the decision not to adjourn, have the right to a fresh tribunal for all or any of the reasons now given.

The second point to make is that the 'instinct' of Davis J referred to was clearly not a decision and was also not reflected in the relief which the Appellant was claiming from the Court of Appeal on the adjournment aspect.

The third point is that we see very little merit in the suggestion that bias or antagonism was shown by the members of the tribunal as recorded in the transcript. The convenience points are obvious but it could be said that it is to prejudge the position for the Appellant to say that because these problems are going to arise they may form a basis on which he may want to appeal, or may want to make applications to the Court. It may even technically be right, as we previously thought, that if any points of unfairness are to be taken, as indicated in these submissions, the right course is to allow the tribunal, advised by the legal assessor, to decide what course to take. On any view, if this Court were now, as a matter of convenience, to order a fresh tribunal, to suggest that that should have a knock-on effect in relation to costs seems to be a very bold submission.

All that said, what is plain is that to appoint a fresh tribunal will prevent further problems. Of course, I accept that the Respondents, as Mr Clarke has accepted, can work that out for themselves and it could be said still that it should be left to them. There is clearly force in that submission.

But my view is that the right answer in a case of this sort should be a pragmatic one. One might ask, why put the Respondents and their legal advisor and others to the trouble and time of considering any of the points that may arise on the submissions that Miss O'Rourke has now made and what effect they should have on the proceedings before the tribunal as at present constituted? Is there not a risk that the Court would be putting everybody to further expense by leaving points that do not need to arise if a fresh tribunal was appointed?

It seems to me that it is possible to make absolutely clear, as I would make it absolutely clear, that it is not because the Appellant is entitled to the relief that he seeks that any order for a fresh tribunal should be made. It should be made absolutely clear that if this Court does, for pragmatic reasons, refer this matter to a fresh tribunal, that should in no way be seen as a victory for the Appellant in this Court. It should also be made clear that if this matter is sent back to a fresh tribunal, that should not be construed by the present tribunal as any criticism of them or any thought that it is because the Court does not think that they could approach the matter fairly. Clearly, the terms of Carnwath LJ's judgment demonstrate that our view is that they could have, and have so far, dealt with the matter fairly, subject only to the adjournment aspect. But my view is that, having made all those points clear, in the interests of saving costs, time and trouble in the long run, it is better to remit this matter to a fresh tribunal, and for no other reason than that seems to me to be a pragmatic solution.

So far as costs of this appeal are concerned, as already indicated, that pragmatic view does not make any dent in the proper approach to costs. However, I think that the Respondents' suggestion that they should have 80 percent of the costs is a little too high, having regard to the fact that the adjournment aspect was a matter upon which we allowed the appeal. I would order 50 percent of the Respondents' costs to be paid by the Appellant.

So far as permission to appeal to the House of Lords is concerned, no point arises in this case worthy of granting permission, at least by this Court, and I would refuse permission to appeal to the House of Lords.

LORD JUSTICE SEDLEY: I agree with my Lord on all three aspects.

LORD JUSTICE CARNWATH: So do I.

MR CLARKE: My Lords, I am grateful for that. On the costs, do my Lords wish to make a summary assessment of, say, 50 percent, or leave it to a detailed assessment? We put in the costs schedules.

LORD JUSTICE WALLER: I am extremely sorry to say I had not taken on board you were wishing for a summary assessment.

MR CLARKE: I am sorry that has not reached my Lords. I believe it was put in yesterday.

LORD JUSTICE WALLER: It is possible it was. I can say that it was not with my papers.

MR CLARKE: Sorry it has not reached you.

LORD JUSTICE WALLER: Detailed assessment may be the right answer but you may want some interim payment.

MR CLARKE: Yes, because the amount for --

LORD JUSTICE WALLER: On the basis you are getting 50 percent of your costs, what is the amount that you at present claim?

LORD JUSTICE SEDLEY: It is very substantial for the number of pages you are turning over, Mr Clarke.

MR CLARKE: Yes, because there are two parts, the costs below and the costs in this Court. They are presented separately. It comes to be around about £36,000 in total. That is the costs below and here. If my Lords are awarding 50 percent, if those figures were accepted on assessment, it would amount to around £18,000. So I would invite my Lords to award an interim payment of, say, £15,000.

MISS O'ROURKE: My Lord, as I understand from my instructing solicitors, we have quite a few comments to make on some of the costs. I do not think we object to an interim payment, but it may be more appropriate to call it £10,000 in the light of the fact that there are points to be taken.

LORD JUSTICE WALLER: So far as costs are concerned, there will be a detailed assessment, but an interim payment of £10,000. You will want some time to pay?

MISS O'ROURKE: I think as much as we can have, but I suppose in the circumstances 28 days.

MR CLARKE: 28 days would be fine.

LORD JUSTICE WALLER: 28 days. Thank you all.