George, R (on the application of) v GMC South Staffordshire Healthcare NHS Trust

MR JUSTICE COLLINS: The claimant in this case, Dr George, is a medical practitioner who has been, since 1990, an accredited specialist in general, acute and community paediatrics. He is a fellow of the Royal College of Paediatrics and Child Health and has been working in the National Health Service as a medical practitioner now for some 28 years. He has generally worked, certainly in more recent times, as a locum in various hospitals and for various National Health Service trusts.

His current employment is with the South Staffordshire Health Care, National Health Service Trust. That employment commenced on 25th March 2002, but on 4th October 2002 the Trust suspended him from his duties with effect from the following day and he is still so suspended.

Originally it was alleged that he had misconducted himself professionally, but on 11th October the Trust sent him a letter, referring to allegations, which they said they were considering in the context of a disciplinary process. The British Medical Association, on behalf of the claimant, entered into correspondence with the Trust in an endeavour to discover precisely what the allegations against Dr George were, and to point out, as was their case, that the Trust had not been acting in accordance with the provisions which it ought to have followed.

On 23rd October the Trust indicated that it could not fully particularise the allegations because a preliminary investigation was needed. Subsequently, in a letter of 13th January 2003, the Trust confirmed that it would not be proceeding with the previous allegations, but that there were other allegations of personal conduct that were still pending further investigation, and that the suspension would continue, or rather that there would be a further suspension, while those matters were investigated. They included allegations of inappropriate behaviour to staff and inability to work in a team.

Following further pressure from the BMA, on 14th February the Trust indicated that there would be a possibility of disciplinary proceedings on the basis of personal conduct. But on 25th February the claimant received a letter from the GMC informing him that a number of complaints had been made to the GMC about his conduct, and notifying him that the GMC's relevant committee, that is the Interim Orders Committee, would convene a hearing on 6th March for the purpose of determining whether any interim order should be made in respect of him.

The interim order which could be made, and in due course has been made, was one which suspended him from acting as a medical practitioner. The claimant, at the same time, received a very substantial bundle of documents from the GMC, running to some 640 odd pages. The claimant approached the Medical Protection Society and they arranged for a very experienced firm of solicitors, Radcliffe Le Brasseurs, to assist him in preparing for the hearing.

The solicitor allocated was a Mr Shipway, who is, himself, undoubtedly most experienced in dealing with matters before the GMC on behalf of medical practitioners. He says that he did not see Mr Shipway until 3rd March, which was three working days before the hearing, and it was not until that meeting that Mr Shipway received a copy of the substantial bundle of documents to which I have already referred.

The allegations against the claimant dated back some 18 years and were given, in the documentation, in some detail. It was also apparent to him that at least some of the allegations had been known to the GMC for a substantial period of time, and that a number of the allegations had been made as a result of a letter sent out by the GMC, effectively asking whether there were any allegations to be made.

The hearing was, as I have said, due to be convened on 6th March and indeed was duly convened for that day. The claimant and Mr Shipway attended at that hearing and the claimant gave evidence before the Committee.

It was the submission, on behalf of the GMC, that the matter should be pursued, not as a disciplinary case, but as a case involving the professional performance of the claimant, so, in due course, the matter would go down the route of the Committee on Professional Performance, which is, I think, one of the seven committees of the GMC.

Before going further it would, I think, be convenient to refer to the statutory provisions which govern cases such as this. I am bound to say that it has not been entirely easy to determine precisely what statutory provisions are at present in force, because there have been substantial amendments to the Medical Act 1983, as a result of a statutory instrument of 2002, but no one before me was able to be sure whether those amendments were yet in force. It now seems that they are not. It fortunately does not particularly matter because the amendments do not deal with the substance of the matters which have been raised before me.

Where allegations such as these are made, the matter is first of all put before a person known as the medical screener. He is a doctor and he considers the allegations and he decides whether the matter should go forward to whichever of the relevant committees should deal with the case.

He acts in accordance with the General Medical Council (Professional Performance) Rules Order Of Council 1997. Putting it shortly, the relevant paragraphs of that order are first 2A which provides:

When the screener is considering the matter, and going through the screening process, Rule 5 provides that:

Thus, normally, in deciding whether to take action, the complaint or information must relate to events which were within the last five years, and it is not possible to deal with matters which have arisen before that, subject to exceptional circumstances. However, if one now goes back to paragraph 4, if the screener is:

Then sub-paragraph 2 provides:

Now what that all means, in my view, is this: where a complaint or information of events has been put before the GMC, and the decision has been taken not to proceed, those matters cannot be relied on in any subsequent proceedings unless the medical practitioner has been told that they might be if there are subsequent proceedings.

If, on the other hand, there has been no decision in relation to earlier matters and complaint or information is put before the GMC which includes earlier matters, then they can, in accordance with rule 4, be taken into account as a pattern of conduct. It is plain, and there is much authority to support this, that the approach before the GMC is to consider a pattern of conduct, and reach a conclusion on that, even though individual complaints may, if looked at in isolation, not justify any particular action. One has to look at the doctor's performance as a whole and decide whether that shows he is not professionally competent, and thus fitted to remain in practice and attending to the public.

It is obvious that all this is concerned with the safety of the public, and the GMC is given the power by parliament, as being the experts in the field, of deciding whether a particular doctor should or should not remain in practice and able to deal with the public and able to treat the public, subject, of course, to an appeal to this court.

More importantly, for the purposes of this case, the Interim Order Committee has to decide, when a case such as this is referred to it, whether there should be any interim order made, whether a suspension or something less, in the form of some conditions, under which the doctor may be permitted to continue to practice.

I have gone into the question of the meaning of paragraphs 4 and 5 because a point has been raised by Mr Supperstone, on behalf of Dr George, submitting that as a matter of law the Committee was not entitled to have regard to allegations and matters arising more than five years before the information was given to the GMC. But for reasons that I have indicated, it seems to me quite plain that the GMC was entitled to have regard to those matters because they fell within paragraph 4(1) and were capable of indicating a pattern of professional performance which was seriously deficient. Whether they did or not, of course, would be a matter for the Committee in due course, that is the CPP, to decide when eventually the matter comes before it.

The manner in which the Interim Orders Committee approaches its task is governed by another Order in Council, that is the General Medical Council (Interim Orders Committee) (Procedure) Rules Order of Council 2000, which is 2000 No 2053. That provides that before the initial hearing the registrar will send the practitioner a notice informing him of the referral, providing a brief statement of the matters which appear to raise the question whether his registration should be suspended or made subject to conditions, and that such action was necessary for the protection of members of the public. The notice must inform him of the date of the hearing, invite him to submit observations, and to indicate whether he proposes to attend, and inform him that he may be represented or accompanied in accordance with subsequent rules.

The Committee has power to adjourn by paragraph 7. Paragraph 9 provides that he shall be entitled to be heard, and a solicitor as well, and that he may be represented by counsel or by a solicitor or by an officer of a professional organisation, member of family, and a medical adviser if he so wishes.

Paragraph 11, sub-paragraph 4 provides that:

Sub-paragraph 9 provides:

Finally, paragraph 14(2)(c) provides that the person acting as secretary to the Committee shall:

I should therefore go, finally, to section 41A of the Act, which is headed "Interim Orders" and which was inserted by statutory instrument 2000, and it appears to have come into force in August 2000.

Section 41A(1) provides:

Sub-section 2 provides that where such an order has been made under sub-section 1, the Committee must review it within six months, beginning on the date on which the order was made, and thereafter with periods of three months for so long as the order remains in force, and:

There is provision by sub-section 6 for the GMC to apply to the court for an extension, and the court has power to extend for up to 12 months.

Then sub-section 10 provides:

The court is this court.

The finality of the decision of the court of course means that there can be no appeal from my decision. It does not mean that there can be no subsequent appeal against any further decision of any relevant committee. I say that because in a case which has been drawn to my attention, Donnelly v GMC, which was decided on 13th December 2001 by a court consisting of Kennedy LJ and Keith J, the number of the case being CO/3047/01. Keith J in giving judgment said this:

In support of those observations Keith J draws attention to observations of Newman J and Brook LJ in a case which I will have to refer to in due course, Madan v GMC. Madan's case is 2001 EWHC Admin 577.

The observations of Keith J I fear are clearly erroneous because they do not take account of the clear words of the statute. If Keith J made those observations on the basis that S41A(10) provides that the decision of the court shall be final, then, with great respect, he was clearly in error, because, as I have already said, the finality of the court's decision relates only to the application before it. It is perfectly clear from the wording of sub-section 10, that any order which provides for interim suspension or interim conditional registration is appealable, and that will include a decision made on review.

Of course, if a doctor does delay so that his application in relation to an interim order is overtaken by a review, then no doubt the court will give very short shrift to such an application, and a fresh one will have to be made if appropriate against the decision on review. But it is clearly not the case that the only right of appeal arises in relation to the original suspension order.

I should say that so much was common ground between Mr Supperstone and Mr De La Mare who have appeared on behalf of the claimant and the GMC respectively.

At the hearing no complaint was made by Dr George or his representative that insufficient time had been provided to enable them to deal with the allegations or that an adjournment was sought. As I have said, the claimant himself gave evidence before the Committee. The Committee had read the bundle of documents that were put before it, and the matter was opened by the representative of the GMC by summarising the various matters which were relied on by the GMC as showing, in their submission, that Dr George ought to be the subject of an interim suspension order. The way it was put by Miss Smerdon, who was representing the GMC, was this, and I quote from the transcript of the hearing at page 11, letter A:

She went on to say that her understanding was that it was intended that the matter should proceed along the performance route, but that the council submitted that an order of interim suspension should be made, as if he were to remain in unrestricted practice, he could pose a risk to patients.

Thereafter Dr George gave evidence, in which he disputed the matters alleged against him, and gave some explanations. He was unable to give any detailed explanations because he had not had sufficient time to deal with the detail.

At the conclusion of his evidence he was asked some questions by members of the Committee, and then Mr Shipway, on his behalf, made a short submission, the burden of which was that if the Committee decided that there was a prima facie case against him, it should not suspend, but should impose a condition confining his practice to his present appointment, and that that would be sufficient to protect the public in the meantime.

Now I should make it plain that the Committee did not, and was not required to make any findings as to whether the allegations were or were not established. It was sufficient for them to act, if they took the view that there was a prima facie case and that that prima facie case, having regard to such material as was put before them by the medical practitioner, required that the public be protected by a suspension order.

They were not making any final decision because, as I say, they were not reaching any conclusions of fact. That is important, because it must not be taken that I have made any conclusions of fact. I have not. It has not been my task in the context of this application to do so.

I merely record that before me Dr George has put forward a very lengthy and detailed statement in which he refutes most of the allegations that are made against him and explains some of the others, indicating that what may seem to be of significance, in reality is not. Those are matters which he has not yet had an opportunity of airing before any committee, the Interim Orders Committee, or any other committee of the GMC. It is submitted, on his behalf, that if all that material is taken into account, it would be wrong for any interim suspension to be made.

The problem I faced was, as it seemed to me, that that was a matter which was peculiarly within the judgment and expertise of fellow medical practitioners, and it would be only in an extreme case that this court would feel able to interfere with that judgment. Indeed, it is perhaps in some ways a somewhat unsatisfactory procedure that is before this court, because there is no specific power given, as there is in almost all other cases where an appeal lies to this court, to remit for reconsideration. That is the normal practice of this court, and indeed of the Privy Council, because it is very rare for this court and, I think, virtually unknown for the Privy Council, to hear any evidence. If it is felt that something may have gone wrong, the proper course would normally be to remit for reconsideration. But, as I say, there is no express power in section 41A(10) for the court to do that.

However, counsel have agreed, and in particular Mr De La Mare has recognised, that the court can achieve that, and it can achieve it in this way. It has power to vary the length of any suspension, and if it feels that the matter ought to be reconsidered and there ought to be a review, it can indicate as much in the judgment and can give effect to that by reducing the period of suspension with a view to their being a review of the matter within a short period of time.

That, in the circumstances of this case, has not proved necessary. I shall deal, in a moment, with the arguments that there was unfairness, and therefore the decision cannot stand, but it is plain, and it is accepted by Mr De La Mare, that for whatever reason, good or bad, the fact is that Dr George has not been able to have his case fully and properly considered by the Interim Orders Committee because of the bulk of the material and the shortage of time given to him to consider it. I make no criticism of the Committee because there was no submission made and there was no request made for any adjournment, and the only matter that was raised was a letter of 27th February from Dr George indicating he had some health problems, and requesting an adjournment, but that was not pursued on his behalf at the hearing.

As I say, in those circumstances there can, in my view, be no criticism of the Committee for having proceeded, but the other side of the coin is that Dr George has not had his case fully and properly considered.

In those circumstances, the GMC have accepted that if an application is made, as it will be, there will be a speedy review, and that will be by a fresh committee and the matters that Dr George wants to put before it can now be put before that committee.

That being so, I have not found it necessary to go into the arguments as to whether, on the facts that are put before me, the suspension should be terminated, or I should make an order reducing the period, whichever might be considered appropriate.

The very sensible approach of the GMC means, as I say, that there will be a review. I emphasise that this case must be judged on its own facts in that regard, and whether or not in another case there could be an argument as to whether the evidence produced was indeed fresh evidence within the meaning of section 41A(2), is a matter which we do not need to discuss.

The Committee's reasons were brief, but they only had to be brief. They effectively repeated what Miss Smerdon had said. It was the view of the Committee that:

They went on:

Mr De La Mare points out that this not being a conduct case, the matter will initially be dealt with following an assessment. I do not need, I think, to go into the details of the Rules or the Order which permit assessment: suffice it to say that if the screener forms the opinion that an assessment is necessary, then it is up to the doctor, when notified, to decide whether he will agree to such an assessment. If he does then arrangements are made for him to be assessed. If he is not able to work, because he is suspended, that assessment will be in a manner which is able to assess his professional competence, just as, for example, a student would have to be tested in order to decide whether he was competent to pass his exams to become a registered medical practitioner. There is no difficulty, in principle, in carrying out an assessment whilst a doctor is suspended.

If the doctor does not agree to an assessment the matter can then be put to the relevant committee, which is a different committee, which will decide for itself whether an assessment should be carried out. What normally happens is that until that assessment is carried out, the matter is not dealt with by the Committee on Professional Performance.

That is, no doubt, a sensible way of dealing with the matter, because it enables that committee to receive an informed view. It has not only to consider the allegations and to decide whether those allegations, having regard to the doctor's evidence in relation to them, amount to sufficient to justify a suspension, or indeed any other sort of action, but, in addition, it will have the views of fellow professionals having carried out an assessment. That is what is intended here, because Dr George has agreed to an assessment.

The reason why 18 months has been chosen as the period, is because the Committee was not sure how long the assessment process would take, and how long it would be before the matter came before the CPP.

That seems to me to be a reasonable approach. The Committee knows that there is a requirement for a review after six months and every three months thereafter, so the 18-month period is not 18 months certain, it is, at best, six months likely. I say six months likely, because there is also the power for a review on fresh evidence, which may mean that a period of less than six months will elapse, and, indeed, that is exactly what is happening here, a period of less than six months is elapsing before the first review. In addition, an assessment may be carried out within a shorter time so that the case can be considered by the Committee on Professional Performance before six months elapses.

Eighteen months is, of course, the limit, and it is not, in those circumstances, the necessary extent of the interim order. Indeed it would be, one hopes, remarkable, if an interim order were to have to remain in existence for as long as 18 months.

I come now to the challenges that are before me. There has been, as I have already indicated, an application under section 41A(10). Incidentally, there has been some confusion, not the fault of the complainant, as to the correct procedure to be adopted in pursuing an application to this court. A question has been raised whether it should be regarded as an appeal, or as an application to be made under CPR54. It is in fact, clearly, not an appeal, unlike virtually all the other provisions in the Medical Act giving rights to come to this court.

In Madan's case, at paragraph 74, Brook LJ made clear that it was not an appeal and should be brought under part 54 by issuing a claim form under CPR part 8, as opposed to a notice of appeal under CPR part 52.

It appears that the Administrative Court office advised the claimant that he should proceed by way of a notice of appeal under CPR part 52. That is wrong in the light of the guidance given by the Court of Appeal, guidance which, for what it is worth, I entirely agree is the correct approach.

But there was before me not only the application under section 41A(10) which requires no leave, but also an application for permission for judicial review of the decision of the IOC.

The point made by Mr Supperstone, essentially, was that the remedy provided by section 41A(10) was insufficient, because the court was unable to quash the original decision to suspend, and that would remain on the doctor's record, and would be a matter which might adversely effect his future. That being so, the remedy, by way of appeal, was, as Mr Supperstone put it in his skeleton argument, one which was entirely inadequate.

The argument against that, put by Mr De La Mare, is that Parliament has provided a statutory process, judicial review is a remedy of last resort, and where there is a statutory process judicial review will only lie in exceptional circumstances. He accepts, as he must, because the authorities are clear, that the court is not deprived of its judicial review jurisdiction merely because an alternative process is laid down. It is only if Parliament, in terms, removes the judicial review jurisdiction that that argument can run. But it is clear that the alternative power is equivalent to an appeal.

The right approach was considered by the Court of Appeal in the R v Birmingham City Council, ex parte Ferrero Limited [1993] 1 All ER, page 530. I need not consider the facts of that case, save to observe that it was a claim for judicial review of the city council who had issued a prohibition order in relation to a toy. It was a chocolate egg containing a little plastic object, and some toddler ate the egg, but unfortunately swallowed the plastic toy that was inside it, or part of the plastic toy inside it, and choked to death. As a result, under the relevant legislation, the city council issued a prohibition order. There was a specific right of appeal given to the Magistrates' Court against such an order, and one of the points taken was whether there should have been pursuit of the statutory right of appeal rather than judicial review.

At page 536 onwards, Taylor LJ reviews the authorities. He refers to observations of May LJ in R v Chief Constable of the Merseyside Police, ex parte Calveley [1986] 424, at page 435, where May LJ cited what Lord Scarman had said in Preston v Inland Revenue Commissioners [1985] AC 835 at 852:

Taylor LJ goes on at letter c page 537:

In that particular case Taylor LJ pointed out that the order was intended to be an emergency holding operation, and that the importance was protection of the public, and that if the matter came before the Magistrates they could set aside the notice if satisfied that there had been no contravention of a safety provision. Parliament had clearly intended that issues of safety were to be paramount and therefore the right of appeal was the right which should prevail and not judicial review.

I have also had referred to me a more recent case where the principle has been considered again by the Court of Appeal in Sivasubramaniam v Wandsworth County Court [2002] EWCA Civ 1738. The claimant was a persistent litigant who was trying to challenge decisions of the county court in respect of which there were rights of appeal.

It was submitted by Mr Sales, who appeared as an amicus in that case, that there was no jurisdiction to entertain judicial review, but that submission was not surprisingly rejected.

Then, at paragraphs 46 and 47, the Master of the Rolls said this:

At 47:

Those included Preston and Ferrero.

The Master of the Rolls goes on:

Those observations may be said, or may be thought, to widen the scope of judicial review on the basis that it is "less satisfactory", but that must be read in the context of the authorities which the Master of the Rolls was summarising. As I have indicated from the citations from Ferrero, it is clear, in my view, that "less satisfactory" is not intended to cover matters such as, for example, time limits or the scope of the review power, provided that there is no injustice to an applicant in seeking to appeal rather than to go by way of review.

That seems to me to be more particularly the case where Parliament has introduced a particular right of or equivalent to appeal in a situation where there existed a right of judicial review. That is the position here, because without the express right under section 41A(10) undoubtedly there would have been a right of judicial review of the decision of the IOC. Parliament has decided that there should be what amounts to a right of appeal, albeit it is not in formal terms an appeal.

We have the same, as it happens, in the new right of review against the decision of the Immigration Appeal Tribunal to refuse leave to appeal which has just come into force. That is a similar situation where Parliament has decided to introduce a particular form of review where there was in existence a right of judicial review, and that provides, as does this, that the decision of the Administrative Court judge is final.

It also, as it happens, as this does not, imposes time limits. But, as I say, where Parliament has expressly introduced limited rights, it would wholly frustrate the purpose of the parliamentary provision if, save in exceptional circumstances, judicial review were still considered a possible route.

The position here seems to me not in any way to be to the detriment of the medical practitioner. True it is that there can be no formal declaration, but frequently a court on judicial review will not issue a formal declaration because the judgment will make clear what the position is. If, in any given case, there is an argument raised that the original procedure before the Committee was flawed so that its decision cannot be a reliable one, that is a matter which might lead, on an appeal, to the court deciding that the suspension should terminate.

In so deciding the court will give its reasons, and those reasons will make clear that, if it be the case, the suspension should never have been made in the first place. So far as the practitioner is concerned, if there is any future query about such a suspension the judgment of the court can be relied on, and it can be summarised in very short form if necessary.

Accordingly, I do not regard Mr Supperstone's concerns as justifying the application for judicial review. In the exercise of discretion I would not grant judicial review. In any event, because of the failure to apply for an adjournment, or to raise the issues which are now relied on, it would have been highly unlikely that any judicial review or any application relating to the fairness of the hearing could succeed. I put it that way because I am conscious that I have not heard full argument on that matter. But I want to make it clear that, as it seems to me, the claimant would have been very unlikely to have succeeded on that point.

So far as reasons is concerned (because there was a challenge to the reasons) it seems to me that they are perfectly adequate. They do explain why the Committee decided as it did. It is quite unnecessary, in giving brief reasons, to deal with every allegation that is made and to indicate what is and what is not relied on. The whole course of conduct represented by the allegations was sufficient to persuade the Committee that a suspension order was required. It made that clear and, as I say, in my view the reasons were perfectly adequate.

There was a question raised as to the propriety of the 18 months' suspension, but for reasons I think I have already given, I am satisfied that the Committee was entitled to impose a suspension of that length.

I turn now to the case against the Trust. The point here is a short one: the Trust is proposing to consider dismissal on the ground that the doctor can no longer carry out his duties because he has been suspended from practice. The key provision is section 47(3) of the Medical Act which provides:

Sub-section (1) simply provides:

The position as it is about to be, is to limit that to persons who are practising in the public service. All the suspensions referred to in sub-section 3 are interim, in the sense that whatever committee makes the order they are of interim effect.

The submission of Mr Supperstone is straightforward: Since section 47(3) prevents the termination of the employment by the fact of suspension, it is unlawful for the Trust to consider dismissal simply because Dr George has been suspended.

Mr Jay seeks to counter that by referring to section 98 of the Employment Rights Act 1996 which provides under the rubric "Fairness", in sub-section 1:

Sub-section 2 reads:

Sub-section 4 provides:

Mr Jay draws my attention to the decision of the House of Lords in Tarnesby v Kensington and Chelsea and Westminster Area Health Authority [1981] ICR 615. That decided that within the provisions of the Medical Health Act 1956, a suspension of a medical practitioner had the effect, as a matter of law, of terminating his contract of employment.

That being so he submits that it is clear that the purpose behind section 47(3) was to overcome that decision, and to make it plain that the suspension did not automatically terminate the appointment, but, he submits, it is open, nonetheless, to the employer to consider whether in the circumstances it should, and he will have to do so, bearing in mind section 98(4) in particular, and decide whether in any given case it would be fair to do so.

That, submits Mr Supperstone, would be to get round the provisions of section 47(3) and to render them of no practical effect if, notwithstanding the provision that it does not terminate, nonetheless that sort of action could be taken. Quite apart from anything else, the unfortunate doctor would be fighting a battle on two fronts if he had to deal with possible dismissal at the same time as submitting that an interim order should not have effect.

In any event, as a matter of general approach, it is normal, where allegations are made, for an employee to be suspended pending the determination of those allegations, and so an interim suspension would not normally lead to a termination of employment. That is a general approach.

It seems to me that what Parliament was intending to do here was to recognise the need to balance the effect on the individual against the need to protect the public, and to recognise that if an interim suspension order were made, the effect would be, if the employee could be dismissed as a result of it, to deprive him not only of his registration as a medical practitioner, but also of any means of earning his living in the meantime.

It must be borne in mind that an interim order is made without considering whether the allegations are established or not. That is, of course, particularly important in the case of a conduct allegation, but it also, in my view, has importance in connection with a performance allegation as well.

It seems to me that the clear purpose behind section 47(3) was to preserve the position of the doctor, in the knowledge that an order would be only temporary.

It is not without interest to note that protection is shortly to be limited to employment in the public sector. That one can perhaps understand, but it underlines the point that, in my view, Parliament was not intending to limit this merely to automatic termination of employment, and it is not without interest to note that in the 1996 Act, section 96 refers to termination as the general basis for dismissal.

Accordingly, in my view, Mr Supperstone's submissions are correct and the decision of the Trust to consider dismissal on the ground of the suspension alone is one which would be unlawful.

I should add that even if I had been persuaded by Mr Jay that his submissions were correct, I would have had no hesitation in making an order that the position of Dr George should be protected pending the review which is going to take place, and that no action should be taken by the Trust pending that review. But that order will, in the circumstances, be unnecessary.

For those reasons I allow the claim against the Trust, but refuse the application for judicial review.

So far as the appeal is concerned, I think it would be sensible at 2.15pm to decide what order should be made.

MR SUPPERSTONE: My Lord, I appreciate the closeness of the hour, but just when I have it in mind and my Lord has just said it, Mr De La Mare has just handed to me section 47 in its old form, and it may be, once again, there has been slight confusion as to what is regards the old and what is the new. My Lord referred to the fact that the law was going to be that it would be limited to the public sector --

MR JUSTICE COLLINS: It is the other way round, is it?

MR SUPPERSTONE: -- and prayed that in aid of my argument. I think, probably, it was the other way round, and therefore I should not have that.

MR JUSTICE COLLINS: Well, no, it helps your argument. I mean I do not think --

MR SUPPERSTONE: No, I think it may still help my argument.

MR JUSTICE COLLINS: It does. Can someone, perhaps over the lunch hour, just confirm? Because it is rather unsatisfactory that we do not know which is which.

MR SUPPERSTONE: I offer Mr De La Mare.

MR DE LA MARE: I can confirm it now.

MR JUSTICE COLLINS: You can confirm it now?

MR DE LA MARE: Well, I can confirm it now because the consolidated version I have contains all of the amendments --

MR JUSTICE COLLINS: But then we have it the other way round in the --

MR DE LA MARE: I will happily go and look at one of the internet services and double check that.

MR JUSTICE COLLINS: The GMC must know surely?

MR DE LA MARE: They can check, and I will check. I will look at the statutory guide.

MR JUSTICE COLLINS: I will amend, but it does not affect my reasoning. But I will amend if necessary.

MR SUPPERSTONE: Thank you very much, my Lord.

MR JUSTICE COLLINS: All right. I am sorry that it has taken me rather longer than -- that is the trouble with ex tempore judgements, they always do take rather longer than one hopes.

MR JUSTICE COLLINS: Yes, now, have you had thoughts about the most appropriate form of order on this? I call it an appeal, it is not, of course, on the statutory application.

MR SUPPERSTONE: My Lord, one matter I should raise, and that would then form part of an order if my Lord is with me on it, and that is that we are anxious that my Lord set an outside date by which time the review should be heard and determined.

MR JUSTICE COLLINS: Yes, I mean, obviously, as I understand it, the offer was that it could be set up within a fortnight.

MR DE LA MARE: The position is as follows, my Lord: if it is just to be a simple IOC hearing we can easily undertake that it will be done in four weeks, and I reiterate the point we see no good reason, but if the claimant insists upon an entirely fresh hearing, that really puts a spanner in the works.

MR JUSTICE COLLINS: When you say an entirely fresh hearing?

MR DE LA MARE: It means an entirely fresh panel, I am sorry, and entirely fresh panel.

MR JUSTICE COLLINS: I am sorry, I misunderstood you earlier because I thought you had indicated that there could be an entirely fresh panel.

MR DE LA MARE: There can, but it is going to take very much longer to organise.

MR JUSTICE COLLINS: What do you mean by very much longer?

MR DE LA MARE: I cannot give any clear date. Let me explain the reason why there is such a problem. There is only about 15 to 20 people who are entitled to sit on IOC hearings.

MR JUSTICE COLLINS: How many sit on the panel, normally?

MR DE LA MARE: The quorum is three, generally the minimum is five and most times it is about seven, and indeed the first time around it was seven. The hearing constitutions are booked in basically by the year. The individuals in question are extremely busy.

MR JUSTICE COLLINS: I understand that.

MR DE LA MARE: They have already allocated the times that they have agreed to sit on IOC hearings, they have all been pencilled into their diaries already. So it is effectively; rip up those schedules and try and arrange a schedule for seven people or five people or three people to sit together. It is going to be a very difficult exercise, and it is not one, we say, should be undertaken in an extremely expedited form without good reason. So, what we would say to your Lordship is, effectively, the claimant has two choices; he can have a hearing almost immediately, certainly within four weeks, a panel already convened to hear the other ordinary gambit of IOC --

MR JUSTICE COLLINS: Which may contain some --

MR DE LA MARE: Which may contain one or two or three, I do not know --

MR JUSTICE COLLINS: But what I mean is, it may or may not be the same membership, or some of the same membership, as the previous one?

MR DE LA MARE: Indeed. Alternatively, if he is going to insist and, you know, we are willing to accommodate him, but not on the price of extreme expedition and disruption to others in the system, then he is going to have to wait considerably longer. It is as simple as that. We say the reasons for seeking a fresh panel can only be some kind of allegation of bias and that is unsustainable.

MR JUSTICE COLLINS: No, no, it is not altogether unreasonable, because if one panel has reached a conclusion in a particular way, I think many would reasonably take the view that if there was to be a reconsideration it ought to be by fresh minds. There is no question of bias or anything like that.

MR DE LA MARE: I am glad your Lordship says that. Can I explain why we do not accept your reasoning on that point. These panels regularly review and regularly review fresh evidence and regularly submit --

MR JUSTICE COLLINS: Yes, I take that point, so they are well used to appreciating that nothing is written in stone.

MR DE LA MARE: Absolutely, and for your Lordship to take a view that because it was something that required reconsideration would require a fresh panel --

MR JUSTICE COLLINS: No, I see the force of that. Yes, let us see what Mr Supperstone has to say.

MR SUPPERSTONE: Right up to the moment when Mr De La Mare stood up to say that to my Lord we have been proceeding on the basis that it would be a freshly constituted --

MR JUSTICE COLLINS: Well, that is what I had understood yesterday.

MR SUPPERSTONE: My Lord understood what my Lord entered into a dialogue with Mr De La Mare about yesterday, no suggestion of bias, but for the reason my Lord has stated, it would be preferable for there to be a freshly constituted panel. My Lord then referred to that point in my Lord's judgment. We proceeded on that basis. The only question has been as to how long it would take to convene such a panel. We well understand that it may take longer than one week or three weeks. Our position is this, and I can say it in open court; because up to now we have been talking about two months. If it creates a problem for the GMC we would be content by 30th July, that is 3 months. It should not be longer than that, this is an unusual situation.

MR JUSTICE COLLINS: Yes.

MR SUPPERSTONE: And one cannot think that the GMC could not get a panel together in three months.

MR JUSTICE COLLINS: It may be a panel of less than seven.

MR SUPPERSTONE: Well, my Lord, no objection to that.

MR JUSTICE COLLINS: I would be surprised if they cannot find at least three who would be able to do it within that period of time. I am not making any decision one way or the other on the point Mr De La Mare raises, about whether the same -- routinely review et cetera, but you are absolutely right, it was clearly represented yesterday, and you had approached this case on the basis that it would be a freshly constituted panel. Whether that was an error or not is nothing to the point now.

Mr De La Mare, I am afraid you are struck with that, in the circumstances of this case.

MR DE LA MARE: Very well, my Lord. Could I ask you two things? First of all, to make it abundantly clear that this is no form of precedence.

MR JUSTICE COLLINS: No, I have done that already.

MR DE LA MARE: Secondly, can I indicate also that I did indicate the difficulties I had to my learned friend very first thing this morning, and my difficulties have been getting instructions from somebody who is in a meeting --

MR SUPPERSTONE: Mr De La Mare did -- yesterday we were looking at two months. If there is mention of best endeavours, he mentioned his difficulty.

MR DE LA MARE: I am grateful to my learned friend to clarify that.

MR JUSTICE COLLINS: I think it is not unreasonable for me to set a limit of the end of July.

MR DE LA MARE: Very well, my Lord. Can I make this last point also --

MR JUSTICE COLLINS: I hope it will be earlier than that.

MR DE LA MARE: I indeed hope so as well, and I am sure that the GMC will use its very best endeavours to get as early a hearing as possible. There are two practical difficulties that remain.

MR JUSTICE COLLINS: Yes.

MR DE LA MARE: First of all, the claimant must submit an application for a review.

MR JUSTICE COLLINS: Well, that can be done today.

MR SUPPERSTONE: It is here with my instructing solicitor, he merely wants to look at it again, it will go off tonight or tomorrow morning.

MR DE LA MARE: That must indicate all of the evidence upon which it is intended to rely. It was mentioned earlier today --

MR SUPPERSTONE: No, no, this is an application --

MR JUSTICE COLLINS: It will comply with the rules Mr De La Mare, it need do no more than comply with the rules. I have not gone in to what the rules say.

MR DE LA MARE: The rules indicate that you should refer to the fresh evidence.

MR JUSTICE COLLINS: Well, in that case you must refer to the -- well, you know what the fresh evidence is. It is the two statements, together with, possibly, the third, which may be coming, but there is no reason why, I would have thought, he should not say: third statement to follow within, I do not know, two or three days, or whatever the time will be. I imagine you can probably get it tomorrow, can you not?

MR SUPPERSTONE: I am not going to commit those sitting behind me to that time limit, but most certainly can be done within a very short period of time.

MR JUSTICE COLLINS: Well, that is up to you. You do it as quickly as you possibly can.

MR DE LA MARE: The last point I would like to clarify, my Lord, is that if this matter goes any further, in terms of their further applications for review afterwards, there should be no expectation that there will be an entirely fresh panel in each case.

MR JUSTICE COLLINS: No.

MR DE LA MARE: Out of a super abundance of caution.

MR JUSTICE COLLINS: No, I fully understand that reviews cannot be expected to be by fresh panels every time, otherwise you run out of members almost immediately. Funnily enough, we had exactly this provision in the Special Immigration Appeals Commission, as you well know, that there has to be a review every six and then every three months. It has never been suggested that the review has to be by a different panel, and that is certainly not something --

MR DE LA MARE: It would be an unhappy precedence.

MR JUSTICE COLLINS: It would be a very unhappy precedent. I am not setting it, it is merely that I am afraid it was --

MR DE LA MARE: Those were my instructions yesterday, so I can apologise for the fact --

MR JUSTICE COLLINS: Mr De La Mare, I am not blaming you in the least, but the fact is that we all approached it, and I know Mr Supperstone and I did, on the basis that it was to be a fresh panel, and I think it would, in the circumstances, not be fair to go back on that for the purposes, and only for the purposes, of this case. I am not setting any precedent at all.

MR DE LA MARE: That then raises the practical question of how does one give effect to such a non-stop time, as a matter of an order. Does it need to be by way of an undertaking or --

MR JUSTICE COLLINS: I do not know. I suppose the answer is: I could do it by reducing the suspension until 30th July.

MR DE LA MARE: That would bring the other order to an end. Might I suggest that you do it by one of two other methods? Either by (inaudible) to an undertaking by the GMC with a liberty to apply. Or, alternatively, you substitute a period that the order shall run until either 30th July, or such time before 30th July that an IOC committee or panel has convened, and he is -- and substitutes any other period.

MR JUSTICE COLLINS: We do not need the second part, do we, because if there is a review the existing order will be reconsidered?

MR DE LA MARE: It will be reconsidered. I am just concerned to make it certain that they have the power to renew it or extend it for whatever period they like, in a sense to go beyond 30th July, and so long as the order is dressed in such a way that makes that clear, then that is fine.

MR JUSTICE COLLINS: Yes, I mean, I would be quite happy, I think, to do it in that way, the only trouble is, what formal order do I make on the statutory application, because, it seems to me, that probably I am saying that I make no order on the application, on either your undertaking, or on the condition which I impose that you hear it within --

MR DE LA MARE: I think an undertaking would be simplest.

MR JUSTICE COLLINS: If you are happy to give an undertaking that is --

MR DE LA MARE: In the light of what your Lordship has just said -- let me just check?

MR JUSTICE COLLINS: It does not matter to you really, which way round it is?

MR SUPPERSTONE: My Lord --

MR DE LA MARE: I think you will have to do it by way of order my Lord.

MR JUSTICE COLLINS: All right, well, then --

MR SUPPERSTONE: My Lord, when my Lord says, "Which way round," I think three options have been put forward. Our preference, so I can make it clear, is that the order which presently is for 18 months should be reduced to the time when the review is determined or 30th July, whichever is the sooner.

MR DE LA MARE: I have this suggestion, my Lord, it be reduced to a time of 30th July or for such period as the IOC do order upon a review conducted within that period, not to be longer than 18 months.

MR JUSTICE COLLINS: No, I do not think that is necessary. I mean surely all that is necessary -- because I am only hearing an application in relation to an existing order.

MR DE LA MARE: Yes.

MR JUSTICE COLLINS: Now, there is no question, but that on a review, the IOC has full power to make any order that it thinks right, does it not, to modify the existing order? Now, the only thing it cannot do is to extend the order beyond the 18 month period.

MR DE LA MARE: Yes. My Lord, that should certainly be built in, even if your Lordship does not accede to the words --

MR JUSTICE COLLINS: Wait a minute -- just let me check what the powers are on review, because this could be -- it suddenly occurs to me that since I am dealing with a existing order then the review is dealing with an existing order and --

MR DE LA MARE: That is my concern, my Lord, and precisely the reason why I sought to build into it a provision that the IOC --

MR JUSTICE COLLINS: Well, let me just check, if I may, because my powers are limited as well, are they not? Because my powers are to substitute some other period which could have been specified in the order when it was made.

MR DE LA MARE: Review powers of sub-section 10, my Lord.

MR JUSTICE COLLINS: No, Sub-section 2, shall review it et cetera. Sub-section 3, they revoke it, vary it, replace it. Is there any provision which says what the powers are on review?

MR DE LA MARE: I think it is sub-section 3, you will revoke the order, (inaudible), vary any condition...

MR JUSTICE COLLINS: It does not say -- but it cannot extend it?

MR DE LA MARE: I think that is implicit in C and D, my Lord. The fact that a condition can be changed into a suspension and vice versa.

MR JUSTICE COLLINS: Yes, but, "Having effect to the remainder of the term," you see. In each case it is having effect for the remainder of the term, if there is going to be any change in the nature of the order. If the court has power to extend, but not... Is there anything in the order? Review hearing, evidence and procedure is paragraph 12.

See, I have a feeling that if I were to reduce the period it would run out and be incapable of being extended on any review.

MR DE LA MARE: That is my concern, my Lord.

MR JUSTICE COLLINS: Which would mean that it is not appropriate for me to reduce the period.

MR DE LA MARE: Which is precisely the reason, my Lord, why I suggested that each (inaudible) should be until the 30th or such period as the IOC order on the review period within that two month period.

MR JUSTICE COLLINS: Yes, but I do not think I can do that within the terms of sub-section 10, can I?

MR DE LA MARE: I think you can, my Lord, under sub-section 10C:

MR JUSTICE COLLINS: Can I?

MR DE LA MARE: "In either case substitutes the period specified in the order, some other period which could have been specified in the order when it was made."

Given that the proposal I am putting forward is, in any event, for something that will last longer than 18 months, it must have been something that the --

MR JUSTICE COLLINS: No, but an IOC could not order that an order run effectively for 18 months, or such period as might be extended by a review, because that would give the review, or purport to give the review, a power to extend beyond the statutory limit. I do not think that can be done.

MR DE LA MARE: No, I do not think that is right, my Lord, because I was suggesting that, in any event, the order should not last longer than 18 months from the time it was originally made. So, what I am suggesting to you is an order that, at its very outer limit, will have the 18 month maximum permitted by the statute. My point is a simple one: the order should be no longer than that and given that, it must have been one that the original committee could have made, and therefore it is within your Lordship's powers to make that order.

MR JUSTICE COLLINS: I would have thought -- I am not so sure about that. It is a badly drafted provision this, no question, but it seems to me that perhaps one way round is for me to say that there will be no variation to the 18 months, but if the review has not been heard by 30th July, then that period shall be reduced, or rather the suspension order shall come to an end, on 30th July. That preserves it in being, provided there is a hearing before 30th July, and enables the review to act in accordance with whatever powers they may have under the Act, because they are dealing with an 18 month order, and they are deciding whether to review it, or what they can do with it. If they can extend it within the terms of the Act fine, but I suspect they cannot.

MR DE LA MARE: Can I take instructions on that?

MR JUSTICE COLLINS: That seems, on the face of it, to be the best way.

MR SUPPERSTONE: My Lord, I think so. I follow the problem that Mr De La Mare is highlighting.

MR JUSTICE COLLINS: It is a very badly drafted --

MR SUPPERSTONE: It is badly drafted, but I think that is a way round it which is proper for my Lord to adopt.

MR JUSTICE COLLINS: Yes, I am not happy with the suggestion he makes about enabling the review to --

MR SUPPERSTONE: No, I would agree, my Lord. One then gets into a problem down the line if there is to be a -- or may do.

MR JUSTICE COLLINS: Or may do. There does not appear to be any provision, not so far as I can see, which specifies what can be done on a review, which is rather odd.

MR DE LA MARE: I think your Lordship's suggestion is probably the most economical one. Each shall last for 18 months unless by 30th July there has not been a further hearing.

MR JUSTICE COLLINS: Yes, that is right. In which case it will come to an end at 30th July. This is always subject to -- there is always a liberty to apply, which you can specify in the order. It is implicit in any court order, but there is no reason why you should not make it explicit.

MR DE LA MARE: Absolutely, absolutely.

MR JUSTICE COLLINS: So to that extent, there will be, as it were, a conditional variation.

MR DE LA MARE: I am grateful.

MR JUSTICE COLLINS: I am being slightly negative, I think, in the approach to my powers but --

MR DE LA MARE: In a way I am encouraging you to do it and I think you should be commended for it.

MR SUPPERSTONE: My Lord, can we have liberty to apply to my Lord, because, I think, what would be unfortunate --

MR JUSTICE COLLINS: Yes, perhaps that would be sensible. Well, I am in London the whole of this term.

MR DE LA MARE: I was about to ask for the same thing. I completely agree.

MR JUSTICE COLLINS: I warn you, I shall be in Italy on 30th July. So, you will need to get to me before 30th if you want to -- well, you would anyway, because if you leave it to the 30th you have had it. At least I hope I shall.

MR SUPPERSTONE: I think that probably deals with, leaving aside costs, I think that probably deals with any order we need.

MR JUSTICE COLLINS: Can I leave you to draft up and give it to the associate?

MR DE LA MARE: I have done in the lunchtime break, my Lord, Mr Supperstone's and Mr Jay's (inaudible).

MR JUSTICE COLLINS: You are a good man. Well, you are the only junior so you should.

MR DE LA MARE: I do not know, Miss Proops was here. The long and the short of it is, my Lord, I will pass it up to your Lordship, if you want to check in the manuscript, the various confusing provisions that looked like new provisions have not even come into force yet.

MR JUSTICE COLLINS: They have not?

MR DE LA MARE: If you look at the particular notes, they say to come into force on a date to be appointed.

MR JUSTICE COLLINS: Yes, I saw that.

MR DE LA MARE: I searched the commencement orders under the words "Medical Act" and there are not any so --

MR JUSTICE COLLINS: And there are not any, no, well that is fine.

MR DE LA MARE: It is the most impenetrable order.

MR JUSTICE COLLINS: It is dreadful, is it not, really dreadful. In which case I shall have to amend the last part of my judgment.

MR DE LA MARE: No, your Lordship's judgment is now right.

MR JUSTICE COLLINS: I am right, am I?

MR DE LA MARE: Because the changes have not been made, as yet, so no changes are necessary.

That leaves the question of costs, my Lord.

MR JUSTICE COLLINS: Yes.

MR DE LA MARE: I do ask for all of the GMC's costs, you will be unsurprised to hear. On all of the points of law that you have determined, you have determined in our favour. You have dismissed the judicial review outright. The only area where there has been left some balls up in the air relates to the fairness issues. We say, in relation to that, simply two points. First of all, your Lordship gave the very strongest indication that had that been argued fully you would have found in our favour.

Secondly, the position is; this is a problem entirely of the claimant's or the claimant's advisers own making. We have done no more than be reasonable in the circumstances in proposing this review route, but this whole judicial review could have been avoided in two ways; either by seeking an adjournment which would almost certainly have been granted, given the lack of urgency as the doctor in question was already suspended by his employer, or, alternatively, by immediately seeking a review. Either of those courses would have avoided the cost of this hearing. We say that no proper explanation has ever been provided at any stage to explain why an adjournment was not sought.

MR JUSTICE COLLINS: Incidentally, were the IOC made aware that he was suspended?

MR DE LA MARE: I do not know off the top of my head the answer to that.

MR JUSTICE COLLINS: It does not appear to be explicit in the transcript.

MR DE LA MARE: I believe that they were aware of that.

MR JUSTICE COLLINS: They were. That is obviously something that they will have to bear in mind in due course, because if he is already suspended a condition that he does --

MR DE LA MARE: No, that is not correct, my Lord, because he is at liberty to take any employment in the meantime --

MR JUSTICE COLLINS: A condition that he takes no employment other than the employment he has in the NHS would seem to possibly meet the bill.

MR SUPPERSTONE: Yes, hence Mr Shipway's submission.

MR JUSTICE COLLINS: If he cannot practice outside his employment with the NHS trust, and he cannot practice in the NHS trust because he is suspended --

MR DE LA MARE: That works all very well, my Lord, on the premise that, I do not want to argue the point now, but on the premise that his Trust do not restore him. And, of course, they would be at liberty to put him back in his job at any point. The GMC was entitled to take the conclusion he should not work anywhere.

MR JUSTICE COLLINS: It may be that a certain degree of undertakings and letter writings and so on could avoid the need for any rehearing if the position is made clear that the Trust is not going to unsuspend, whatever is the antonym for suspend --

MR DE LA MARE: Reactivate his employment.

MR JUSTICE COLLINS: Yes, and a condition is imposed that he will not work outside.

MR DE LA MARE: That is a matter for the --

MR JUSTICE COLLINS: It is a matter for consideration, that is all I am saying, because if that is a way ahead it avoids the stigma, if there is a stigma of a suspension, and protects the public, if that is a possible way ahead.

MR DE LA MARE: The stigma would remain in the form of a conditional registration.

MR JUSTICE COLLINS: Well, that may be, but anyway all I suggest is that -- it is not a matter for me, but it is a matter for consideration.

MR DE LA MARE: Be that as it may, those are the reasons why we say even in relation to the points that you have not decided, the merits clearly indicate that we should be paid all of our costs in relation to that. This is a case that has been brought on many heads and the applicant, the claimant, has failed on every single one. For those reasons we would ask for our costs on that standard basis, to be assessed, I think, by detailed assessment, given we have gone into two days, and I do not know what my refresher is.

MR JUSTICE COLLINS: This is presumably the MPS behind this, yes.

MR SUPPERSTONE: My Lord it is. My Lord, we do resist that application, we lost the JR, and on the face of it we are liable for the costs of the judicial review.

MR JUSTICE COLLINS: Subject to the practice direction.

MR SUPPERSTONE: Subject to the practice direction. As for the statutory application, my Lord said, in giving judgment, that it was accepted by Mr De La Mare that Dr George has not had his case fully and properly --

MR JUSTICE COLLINS: Yes, but that was not the fault of the GMC.

MR SUPPERSTONE: My Lord, I follow the point that is taken there. It may not have been entirely the fault of the GMC, there was that matter of the letter of 27th February that my Lord has seen which -- and therefore it could well be said that the issue of an adjournment was raised, albeit on medical grounds, not on grounds of preparation, but it must have been apparent to both sides and, therefore, to this extent both sides are at fault to a certain extent, that fixing a hearing which involved the consideration of allegations going back 18 years, with documents in excess of 600-pages, was not a very sensible course to adopt. My Lord --

MR JUSTICE COLLINS: Well, yes, but the ball is in the doctor's court, is it not, when that sort of thing happens you say: well, look, I am sorry, I simply do not have time to prepare this, you must give me further time, and if they were to refuse then you would have a cast-iron case.

MR SUPPERSTONE: My Lord, I cannot put that point any higher than I have put it and I do not think I can take that further.

MR JUSTICE COLLINS: You do have, possibly, the point that they should have given you longer in any event. But, as I say, there is a need for speed, particularly if there is a well-founded view that there is a need to suspend.

MR SUPPERSTONE: My Lord, yes.

MR JUSTICE COLLINS: Although you say that in the circumstances of this case that could have been dealt with by an undertaking, for example, the doctor not to seek any other employment.

MR SUPPERSTONE: Well, I do say that, that was the brunt of Mr Shipway's submission. It may be that Mr Shipway, being an experienced advocate in this area, took a pragmatic view of the matter, knowing that he had only just seen the documentation, and feeling that his suggestion was a sensible suggestion, that was the way ahead. And what my Lord has just said supports that, in our respectful submission, as a practical course that could have been adopted.

My Lord, as far as the hearing before my Lord is concerned, there is no basis for the view that Dr George could have achieved what he has achieved before my Lord, without coming to court.

The evidence was received by the GMC a number of days ago now. The first statement was the main statement, I do not recall precisely when they received it, but certainly it was quite some time before we started before my Lord yesterday. At any time, having received that statement, they could have said: well, now that we see what you would have wished to have said if you could have said it, we take the view that a review would be a practical solution. We would then have ended --

MR JUSTICE COLLINS: You would have negotiated.

MR SUPPERSTONE: We would have negotiated and we would have ended with an agreement more or less satisfactory to either side, but not having to come to court and --

MR JUSTICE COLLINS: I am not sure, you did not, in fact, because --

MR SUPPERSTONE: It was 11th April, I am told, the first statement.

MR JUSTICE COLLINS: -- you were worried about Mr Jay's position.

MR SUPPERSTONE: That is the question of costs in relation to Mr Jay.

MR JUSTICE COLLINS: No, what I mean is that you do not agree to the review suggestion initially, because you were concerned, or your client was understandably concerned, that his employment position had to be protected in the meantime.

MR SUPPERSTONE: Certainly, my Lord, but one well knows how one would proceed in that situation.

MR JUSTICE COLLINS: There are certain "ifs" and "buts" --

MR SUPPERSTONE: An agreement subject to agreement with the Trust. If no agreement was reached with the Trust, then it would not have been necessary for Mr De La Mare to spend, no doubt the days he did, preparing this case and attending to court to argue it on behalf of the GMC. He would not have had to attend and it would have just been Mr Jay and myself for half a day.

My Lord, for all those reasons we submit that a fair course for my Lord to adopt would be to say that each side bears the same costs.

MR DE LA MARE: I bend to no one in my admiration for my learned friend's inventiveness in trying to avoid the proper and ordinary order in this case, but both of his points are fundamentally flawed. You cannot pray in aid without prejudiced negotiations that never took place on a purely hypothetical basis to avoid costs. You particularly cannot do so in a situation where, by his own admission in submission, the merits case was parked until such time as he knew the outcome against Mr Jay, at which point he was content to go down that route.

He has clearly kept his case alive in all respects, and to complain of the fact that the GMC, which has been served with these papers with no warning, with no letter before action, with an order from the court that they acknowledge service of both cases, originally for three days, which was then extended to 25th April, in a period spanning the Easter vacation --

MR JUSTICE COLLINS: Did the court order that there should be an acknowledgment of service?

MR DE LA MARE: It originally ordered an acknowledgment of service, I think, to be provided within four working days from the receipt of the --

MR JUSTICE COLLINS: Who ordered that?

MR DE LA MARE: Mr Justice Silber.

MR JUSTICE COLLINS: I am bound to say I think that is an order which the court is not empowered to make, and never should make.

MR DE LA MARE: That was extended, by consent, to 25th April.

MR JUSTICE COLLINS: The court should never order an acknowledgment of service. It should order that the matter will be considered without an acknowledgment of service, unless it is lodged within X days, but it never should and never can have power to order acknowledgment of service in my opinion.

MR DE LA MARE: The original date, my Lord, was 16th April.

MR JUSTICE COLLINS: With great respect to Mr Justice Silber.

MR SUPPERSTONE: We did notify the GMC of the application and sent them a copy of the judicial review proceedings on 7th April. The reason as my Lord appreciates for why we could not give the GMC more notice was because of the hearing that the Trust was proposing to convene on the 8th.

MR JUSTICE COLLINS: You wanted to get both in together?

MR DE LA MARE: Proceedings were issued on the 8th, my Lord, so the day after we got notice by (inaudible) draft proceedings. So we have been working under tremendous time pressure just to keep up with this case. To complain of the fact that we were not dedicating all of our attentions to invent ways to settle the case, in a case where a whole problem arose from the claimant's failure to put his own case, is grossly unfair. We ask for all our costs.

MR JUSTICE COLLINS: What about the Trust?

MR SUPPERSTONE: My Lord, we certainly ask for our costs against the Trust. My Lord, as far as any order against the Trust, I, of course, raise the question as to whether it is necessary to have a permanent injunction in the terms that Mr Justice Silber gave the interim relief --

MR JUSTICE COLLINS: I do not think it is necessary in the light of what I have -- a declaration is --

MR SUPPERSTONE: I only raise it in open court so that all the parties focus on the point.

MR JUSTICE COLLINS: Do you want a declaration? I would have thought that what I have, in terms of the judgment, indicated, but if you want a declaration --

MR SUPPERSTONE: My Lord, we would ask for a declaration.

MR JUSTICE COLLINS: What declaration do you want then? I am not going to make it up for you, you can tell me what you want.

MR SUPPERSTONE: Well, my Lord, if I may say so, that is very fair, if I am asking for it. It would be a -- perhaps I can put pen to paper, but it would be a declaration in terms.

MR JUSTICE COLLINS: You can think about it. Mr Jay, subject to you agreeing, or if you cannot agree you can send it up to me on paper and I will decide.

MR JAY: Yes.

MR JUSTICE COLLINS: There is no reason why he should not have a declaration, is there?

MR JAY: No. A declaration in terms that we do not hold a meeting to dismiss the claimant on the sole ground that he is the subject of an interim order.

MR JUSTICE COLLINS: Something along those lines would seem to be perfectly acceptable, but I will leave you two to decide on the precise wording. What about costs?

MR JAY: I suppose we have to pay those, my Lord.

MR JUSTICE COLLINS: You are always realistic Mr Jay.

MR JAY: My Lord, I do ask for permission to appeal.

MR JUSTICE COLLINS: Let me just deal with costs and I will come to appeals in a moment.

Mr Supperstone, the claimant will have his costs against the Trust of that judicial review. So far as the costs of the appeal are concerned, and of the other judicial review, it seems to me that you, on any view, must pay some of the costs, even if I acceded to any of your arguments. I take the point that you have come away from this with something of value, and that the matter was dealt with on the basis of very little time originally, in a sense that you were served with a lot of material late.

On the other hand, the fact is, I am afraid, that no application was made, and that this application is one which would normally, I suspect, have been dealt with by way of some sort of attempt, if for no other reason, than that otherwise you would have been and were in breach of the protocol, were you not, in not seeking some sort of order in advance, or some sort of review in advance.

I appreciate the problems and the time problems, and the problem with costs is that one is often, frankly, making a very broad brush and almost palm tree approach to costs.

I think in the light of the history of this and all that has happened, the fair order is that you pay three quarters of the GMC's costs, and each will, of course, be subject to a detailed assessment or whatever the expression now is.

MR SUPPERSTONE: My Lord, thank you. My Lord, I think, subject to anything Mr Jay has to say, that deals with all the matters that my Lord has to deal with in relation to the parties.

MR JUSTICE COLLINS: I think so.

MR JAY: My Lord, I do ask for --

MR JUSTICE COLLINS: Subject to leave to appeal.

MR JAY: Yes, it is a tricky little point. It is a little point, but nonetheless in my submission --

MR JUSTICE COLLINS: A little point, well, I think you might have to persuade the Court of Appeal that it is a little point worth pursuing. No, I see the argument, but I am satisfied that the matter is clear, and that there are no reasonable prospects. You will no doubt prove me wrong.

Thank you all.