Korashi, R (on the application of) v Swansea NHS Trust

Dr Korashi seeks permission to appeal against a decision of Stanley Burnton J on 19 January this year, whereby the judge refused permission to this applicant to seek judicial review. This is a renewed application for permission to appeal to this court, permission having been refused on the papers by Rix LJ. The applicant wants to seek judicial review of a decision of the respondent, Swansea NHS Trust, of 7 August 2006, by which decision the Trust refused him authorisation to contact patients of a consultant, Mr Flynn, with a view to showing that Mr Flynn had treated them negligently or by medical procedures which he was not qualified to perform, with the result that patients were at risk.

As Stanley Burnton J indicated, there is a history of some antagonism between the applicant and Mr Flynn. As a result of complaints, there have been a number of investigations into Mr Flynn’s treatment of patients. Those are summarised at paragraphs 6 to 9 of the judgment in the court below and I need not repeat them now. They are familiar to the applicant. What is perhaps worth mentioning is that the General Medical Council investigated a complaint by Dr Korashi against Mr Flynn in 2005, and the case examiners reported as a result of their investigation that there had been no significant breach of good medical practice. No action on Mr Flynn’s registration was to be taken.

In those circumstances the judge below concluded that there was no basis for regarding the NHS Trust as being under a duty to contact patients because they might be at risk, and even less so was there a basis for allowing Dr Korashi to do so. The judge concluded that it was not arguable that the Trust had acted improperly or unreasonably.

Dr Korashi, who appears in person this morning as he did at the hearing below, submits that in effect a number of patients have not had cancers removed when they believe they have, are at risk and in some cases are being left to die. Whether that is a justified allegation or not is patently a matter for medical judgment. If this were an allegation that had never been investigated, it would obviously cause concern to a court of law as to any other reasonable person. But the reality is, as would have become clear from the brief summary I have already given, that these allegations have been investigated, indeed several times, and in particular with that investigation by case examiners for the GMC, who were clearly acting independently of the NHS Trust. In those circumstances I can see no basis for regarding these allegations as potentially well-founded in fact.

Dr Korashi then argues that it is wrong to rely on the existence of alternative remedies such as resort to the GMC, and he refers us to a decision of this court in the case of Smith v North East Derbyshire Primary Care Trust [2006] EWCA Civ 1291. The point that was made there in that decision is that in some circumstances the mere existence of an alternative remedy will not prevent this court granting judicial review where it regards that as appropriate, and in particular as having significant advantages over the alternative remedy which exists. I am bound to say, however, that that simply is not the situation here. This is a case not where it is being suggested that Dr Korashi should resort now to an alternative remedy such as a complaint to the GMC; it is a situation where the GMC has already investigated. That is a wholly different matter from that which was being dealt with in the case upon which reliance is sought to be placed.

I need not deal in this short judgment with the underlying merits of Dr Korashi’s complaints in any greater detail, because the thrust of his proposed grounds of appeal to this court as set out in his appeal notice is not so much based on those merits, even though he has emphasised them this morning, but rather more on what he asserts was the unfair conduct of the hearing before the judge. It is alleged that the judge was biased because he allowed counsel for the respondent to state his case first. Moreover, the judge insisted on reading the statement of case put in by the applicant, rather than leaving the applicant to read it to him, and Dr Korashi also complains that the judge only read the statement for 2 minutes 11 seconds, and could not have understood it properly in that time. Moreover, the court failed to consider the previous judgment on paper of Mr Parker QC, who heard that application as a Deputy High Court Judge.

We have had the benefit of a summary of the proceedings in the court below. There is a form of transcript; not an approved one, but one produced by Dr Korashi from a tape which he has obtained, and I am bound to say that it indicates not so much that the judge did not properly deal with this matter, but that, as is common in such proceedings in the Administrative Court, he had to seek to deal with them with a degree of dispatch. It is perfectly proper for any judge to have regard to court time when dealing with applications for permission to seek judicial review, so long as he allows adequate time for the matter to be dealt with properly. It is not the case, as one sees from that transcript, that the respondent’s counsel was allowed to go first. There is an intervention, some little way into the proceedings, by counsel for the respondent; nothing at all wrong with that.

In refusing permission to appeal on paper, Rix LJ said this on these points about the conduct of the hearing, and I quote his reasons 1) and 2) for refusal :

“1)

There is nothing to suggest and no proper allegation that the hearing before the judge was unfair or that the judge was biased. On the contrary he ignored the history of antagonism between the applicant and Mr Flynn, he reformulated the request of remedy of his own motion, see para 3 of his judgment, and he ignored the fact that the applicant’s application was out of time.

“2)

It was proper for the judge to seek assistance from whatever quarter he could obtain it. Having read the papers in advance, he would be able to extract what he needed from the applicant’s written submissions very quickly. There is no reason to say that he failed to consider the judgment of HHJ Parker (sic) but in any event the matter was renewed to him orally afresh. HHJ Parker was not in the applicant’s favour either.”

With those comments I entirely agree. Such oral hearings of applications for permission to seek judicial review are intended to be brief and to the point. With that in mind, the judge reads the papers in advance. I can see no evidence of bias, or of any improper conduct of the hearing.

On the substantive merits of the judicial review claim, as I have indicated I agree with the views expressed in Stanley Burnton J’s judgment, as I do with those made by Rix LJ on paper.

In the circumstances there was no proper basis for a judicial review claim and for my part I would refuse this application.

I agree and have nothing I can usefully add.