Krippendorf, R (on the application of) v General Medical Council

MR JUSTICE SULLIVAN: In these proceedings, the claimant challenges three decisions on the part of the General Medical Council. Firstly, she challenges a decision by the Registrar to refer a complaint against her to a screener. The fact that the complaint had been referred to a screener was notified to her in a letter dated 8th June 2004. Secondly, the claimant challenges what she says is a refusal by the GMC to recognise her specialist German qualification in general medicine. Thirdly, she seeks an order requiring the GMC to comply with what she says is the proper interpretation of an order made by the Privy Council in its judgment delivered on 24th November 2000, in the case of the claimant against the GMC, Privy Council Appeal Number 43 of 1999.

There are a number of procedural difficulties which the claimant has to overcome. The first of those difficulties is that the challenges were contained in an appellant’s notice form N161. It would appear that initially it was intended to file the notice in the Chancery Division, but in the event it was filed in the Administrative Court office on 25th June 2004. It was obviously correct that it should have been filed in the Administrative Court, because, whatever view may be taken of the merits of the complaints, it is perfectly clear that the conduct of the GMC is being challenged in proceedings that should have been instituted by way of judicial review, since the GMC, in relation to all of these decisions, is acting as a public body. It is therefore subject to the judicial review jurisdiction of the Administrative Court.

The court has power, under part 33.5 of the CPR, to transfer proceedings into the Administrative Court judicial review list, and I am satisfied that, even though these matters were raised in an appellant’s notice, it would be right to treat the appellant’s notice as an application for permission to apply for judicial review.

On behalf of the defendant, Miss Gallafent did not object to that course. She did, however, raise the question as to what decisions were in issue. That question arises because the claim form, as originally filed with the Administrative Court, challenged just one decision, that is to say the decision of, at that stage, the medical screener, which it was said was made on 8th June 2004. The form as filed with the Administrative Court stated that the claimant sought permission to appeal. Part 8, the arguments in support of the grounds, was not completed and Part 10, which deals with other applications, was left blank. Subsequently, and it is not clear how or when this occurred, the claim form was amended apparently by the claimant.

Thus, the decision of 8th June was said to be that of the Registrar of the GMC via the medical screener, and the box “I do not need permission” was ticked. The tick against the box which indicates that an appellant is seeking permission to appeal was deleted. Various other amendments were made: certain grounds of challenge were set out, and section 10 of the claim form added the second and third claims mentioned above, that is to say the GMC’s failure to recognise the claimant’s specialist German qualification in general medicine and its alleged failure to comply with the Privy Council’s order. The amended section 6 of the claim form is date stamped as having been received in the Administrative Court office on 4th August 2004.

I have to say that the claimant has not provided me with a satisfactory explanation as to how and why the amendments occurred, but I am prepared to allow her to advance these complaints, bearing in mind the fact that, at least as from 23rd August 2004, the GMC has known that an application for permission to advance them would be made.

We therefore have three complaints in respect of which the claimant seeks permission to apply for judicial review against the GMC. The claimant must understand that this court is not an appellate court on the merits from the GMC. In order to succeed, she has to be able to identify some arguable error of law on the part of the GMC and she has to demonstrate that she has sought to raise that argument in the Administrative Court promptly and, in any event, three months after the offending decision.

Dealing, then, with the three decisions in turn. Firstly, the Registrar’s decision to refer the complaint against the claimant to the screener. In a letter dated 17th February 2004, Professor Griffiths, then President of the Faculty of Public Health, wrote to the President of the GMC saying, amongst other things, that the faculty:

“... is obviously very concerned that this serious misrepresentation of employment history is being provided to potential new employers, and would welcome your views on how best the GMC is able to prevent such misleading information from being used in future applications.”

The claimant contends that there was no misrepresentation and that this letter was wholly inaccurate. However, that is to ignore the very tightly circumscribed role of the Registrar under the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Statutory Instrument 1988 (“the Rules”). Rule 6(1) of the Rules provides as follows:

“Where a complaint in writing or information in writing is received by the Registrar and it appears to him that a question arises whether conduct of a practitioner constitutes serious professional misconduct the Registrar shall submit the matter to the President.”

Thus, the Registrar is not concerned to investigate the merits of the complaint and to decide whether or not it is well or ill-founded, he simply has to consider whether “it appears to him that a question arises whether conduct of a practitioner constitutes serious professional misconduct”. As soon as he satisfied that such a question arises, then he is under a duty to submit the matter to a medical screener.

Given the terms of the letter dated 17th February 2004 from Professor Griffiths, it is impossible to see how the Registrar could have reached any conclusion other than that a question had indeed arisen as to whether the conduct of the claimant constituted professional misconduct. In those circumstances, he was bound to submit the matter to a medical screener.

That, shortly, is the end of this complaint. The letter of 8th June 2004 explains that, when the case was referred to the screener, the screener decided that the information should be considered by the Preliminary Proceedings Committee. There is no challenge to that decision of the screener, and, plainly, if nothing else, it supports the Registrar’s view that at the very least a question had arisen. That is because the role of the screener is to refer to the Preliminary Proceedings Committee a case submitted to him:

“... if he is satisfied from the material available in relation to the case that it is properly arguable that a practitioner’s conduct constitutes serious professional misconduct.”

Dr Krippendorf contends that the complaint made against her is entirely misconceived. That is an argument which she will be able to present to the Preliminary Proceedings Committee, which will then decide whether or not the case is suitable to proceed to a full hearing. The short answer to her complaint is that it is not for the Registrar to determine the merits or otherwise of a complaint, nor, indeed, is it for the screener to do so. The screener simply has to consider whether the matter is arguable. If it is arguable, then the argument is thrashed out in front of the Preliminary Proceedings Committee. Thus, there is no arguable case for judicial review in respect of the Registrar’s decision to refer the matter to the screener.

I move on to the second matter, which is the GMC’s refusal to recognise what the claimant says are her specialist German qualifications in general medicine. It is unnecessary for the purpose of this judgment to set out the qualifications that are claimed by the claimant. The short answer to this application for permission to apply for judicial review is that, insofar as there has been any final decision which might be the subject of proceedings for judicial review, that decision was taken many years ago, as long ago as 27th April 1998 in a letter to Mrs Margaret Hodge, who was then the claimant’s constituency MP.

The GMC set out in detail its approach to the claimant’s German medical qualifications. Plainly it is far too late to challenge that decision by way of an application for judicial review. If the claimant wished to challenge that decision, she had to act promptly and in any event within three months. It is now getting on for seven years since the decision referred to in the letter dated 27th April 1998.

The documentation in the bundle is far from complete, but it would appear that this question rumbled on. Certainly there is a letter, which the claimant has produced, which suggests that the matter was being considered in 2004. The claimant has engaged in further correspondence and has, perhaps, placed further evidence before the GMC. The factual background is not at all clear, but what the 2004 letter says is this:

“I have looked at the evidence you have provided and discussed the issues extensively with our legal advisers and intend to discuss your papers with a colleague expert in the German registration system later this week. We are also consulting with colleagues in Germany. As soon as this is complete, which I anticipate being in the next 7 to 10 working days, I will write to you with a definitive decision.”

The claimant contends that that is the GMC’s last word on the subject. I am far from convinced that that is so. Miss Gallafent was not able to assist on this matter, understandably, since she had not been provided with a copy of the 2004 letter, and this issue had not been raised before the hearing. But insofar as that is a letter which is within three months of the claim form, it is plainly not a decision which is susceptible to judicial review. All it says is that the head of applications will be consulting further with colleagues and when those consultations are complete he will write with a definitive decision. It does not purport to be a definitive decision. There is no conceivable error of law in the 2004 letter. Indeed, it would appear to be an eminently sensible course to pursue.

If there has been no definitive decision, and I express no view whatsoever as to whether there has or has not been a definitive decision, then such a decision might be susceptible to challenge by way of judicial review if it disclosed an error of law and if the challenge was made promptly. If, on the other hand, there has been no definitive decision, since the GMC is obliged to take decisions within a reasonable time, there might be the possibility of applying for a mandatory order requiring the GMC to take a decision.

However, on the basis of the material before me, I am far from convinced that this is the end of the correspondence and, for that reason, I refuse permission to apply for judicial review in respect of what is said to be the second decision, that is to say the refusal to recognise the claimant’s German qualifications. Insofar as there have been any definitive decisions, it is far too late to challenge them by way of judicial review. Insofar as there has been correspondence in 2004, it does not contain any definitive decision, and is not therefore properly the subject of judicial review proceedings.

I move on to the third claim, which is the alleged failure by the GMC to comply with the Privy Council’s order. That order was made as a consequence of a challenge by the claimant to an earlier decision by the Committee on Professional Performance of the GMC on 22nd July 1999. The Committee, having determined that the standard of the appellant’s professional performance had been seriously deficient, directed that her registration on the medical register should be suspended for a period of 12 months.

The Privy Council concluded, for reasons which it is unnecessary to rehearse, that the procedures adopted had not been fair. The concluding paragraph of its judgment is in these terms:

“In the result and for the reasons stated, their Lordships decided that the appropriate course for them to take was humbly to advise Her Majesty that this appeal should be allowed and that the determination of the CPP dated 22nd July 1999 should be quashed, (pursuant to section 40(7)(b) of the 1983 Act).”

The issue between the claimant and the GMC under this head is the effect of that order. The GMC has maintained that, since the claimant’s registration was subject to immediate suspension under section 38(1)(a) of the 1983 Act, that suspension was effective from the time of the direction until the taking effect of the determination of the claimant’s appeal under section 40 of the Act; see section 38(2). The GMC has maintained that the effect of the successful appeal to the Privy Council was not to expunge that immediate suspension, but simply to terminate it.

The claimant in her skeleton argument submits, in effect, that the immediate suspension was parasitic upon the suspension which was quashed by the Privy Council. She contends that the totality of the GMC’s decisions on 22nd July 1999 were quashed by the Privy Council.

The problem with that submission is that the claimant has not supplied a copy of the determination of the CPP on 22nd July 1999, so it is not possible to be certain as to precisely what was and what was not quashed.

The further difficulty is this. The GMC made clear its view of the effect of the immediate suspension under section 38(1)(a) as long ago as 1st November 2002. In essence, its approach has not changed thereafter, despite the fact that there has been further correspondence with the claimant. Although the claimant produced a letter of 26th January 2004, and contended that her challenge to the decision contained in that letter was not particularly late, bearing in mind that the claim form is dated 25th June 2004, it is plain as soon as one reads the letter of 26th January 2004 that the GMC is simply reiterating the position that it adopted at least as long ago as 1st November 2002. Thus, the fourth paragraph of the letter says this:

“Your appeal to the Privy Council, pursuant to Section 40(1) of the Medical Act was against the CPP’s decision under section 36A(1) to direct the suspension of your registration for 12 months. By virtue of Section 38(2) the order for immediate suspension came to an end the moment you won your appeal. However the immediate suspension had still happened, in order to have the period of suspension up to 15th November 2000 removed ... you could have applied to apply to the High Court under Section 38(6) of the Medical Act but did not do so.”

Now, whether that position is right or wrong, it is precisely the same position that the GMC has been advancing for a number of years in response to correspondence from this claimant. It is now too late to raise this complaint in an application to apply for judicial review. It is the purpose of applications for permission to filter out those cases which have not been brought promptly, and it is plain that this is simply an attempt to rake over a very ancient complaint. Upon the basis that, at some stage between July and August, the claim form was amended to include the complaint that the GMC was not complying with the Privy Council’s order, the very latest decision about which the claimant is complaining was made some six months before the amendment to the claim form, that is to say in January 2004.

As I have indicated, in reality that was simply a repetition of arguments that had been put forward by the GMC for some years. So it is plain that this application for permission to apply for judicial review, as I now treat it, is very much out of time and I refuse permission on that ground.

It follows that, although I have been prepared to allow the claimant to amend her claim form, and have been prepared to treat the amended claim form as an application for permission to apply for judicial review of the three matters referred to at the beginning of this judgment, I am satisfied that either there is no arguable case and/or there has been unacceptable delay in pursuing the claims. For those reasons, the application for permission to apply for judicial review is dismissed. Thank you.

MISS GALLAFENT: My Lord, I have an application for the costs of today’s hearing. May I hand up a summary assessment and schedule, and also one to Dr Krippendorf?

MR JUSTICE SULLIVAN: Yes. What I would like to do is give Dr Krippendorf the original letters she handed in. I am not sure whether they are her only copies, so I am going to do that. (Handed) Thank you.

MISS GALLAFENT: My Lord, can I just explain what is included in the statement of costs summary assessment that you have.

MR JUSTICE SULLIVAN: Yes.

MISS GALLAFENT: These are only the costs of today’s hearing. These do not include the costs of the adjournment previously granted by Richards J, when we appeared to resist that application and there was no order as to costs on that event. They also do not include the costs of the acknowledgment of service in this matter. So this is a limited amount of the costs involved on the part of the General Medical Council in defending these proceedings. Does your Lordship have the White Book, which identifies the principles to be applied in relation to applications for costs at the permission stage?

MR JUSTICE SULLIVAN: Yes.

MISS GALLAFENT: Which most conveniently can be found at page 1539. My Lord, of course, following the decision of the Court of Appeal in Mount Cook --

MR JUSTICE SULLIVAN: I am so sorry, 1539, that is not my -- I suspect I have a hopelessly out of date copy.

MISS GALLAFENT: Perhaps 54.12.5 --

MR JUSTICE SULLIVAN: Yes, let us do it by reference.

MISS GALLAFENT: -- under the heading “Costs at the permission stage”.

MR JUSTICE SULLIVAN: I hope this is sufficiently up to date to include Mount Cook. I have it, yes.

MISS GALLAFENT: My Lord, internally within 54.12.5, it is the second paragraph starting “The Court of Appeal has reviewed the position”. Is that in your Lordship’s copy?

MR JUSTICE SULLIVAN: No, I have a 2003 White Book. I have one in my room, but I do not know if there is an up to date one in court. Do you want to read out the passage? I am not unfamiliar with it. Effectively, it is Mount Cook: in an application for permission to apply for judicial review you would not normally get your costs, there would have to be some unusual feature. The question is whether there is -- anyway, by all means read out the passage so that Dr Krippendorf knows the principles.

MISS GALLAFENT: Thank you. The principles established in Mount Cook are that you could generally, as a successful defendant to a claim for judicial review, generally obtain the costs of filing an acknowledgment of service against an unsuccessful claimant. As far as the costs of the defendant attending an oral hearing and successfully resisting an application for permission, those costs should be generally not be given except in exceptional circumstances, and the Court of Appeal identified those circumstances as the presence of one or more of the following factors:

“(a)

the hopelessness of the claim:

“(b)

the persistence in it by the claimant after having been alerted to facts and/or of the law demonstrating its hopelessness;

“(c)

the extent to which the court considers that the claimant, in the pursuit of his application, has sought to abuse the process of judicial review for collateral ends...

“(d)

whether, as a result of the deployment of full argument and documentary evidence by both sides at the hearing of a contested application, the unsuccessful claimant has had, in effect, the advantage of an early substantive hearing of the claim.”

The other matter raised is that the court may consider:

“... the extent to which the unsuccessful claimant has substantial resources which it has used to pursue the unfounded claim and which are available to meet an order for costs.”

In this matter, my Lord, I submit that it has been perfectly clear from the time at which the summary grounds for resisting the claim were served on behalf of the General Medical Council that the claimant’s application was indeed hopeless. If there had been any confusion or doubt following the service of the defendant’s skeleton arguments in response to those submitted by the claimant in January 2005, it could and should have been clear that her claim was hopeless, and she had been alerted to both the facts and the law which demonstrated that.

As I have suggested, we do not seek the entire costs of the General Medical Council in these matters, but I do submit that in these particular circumstances, because the claimant asserted that this was an appeal by way of statutory appeal, in effect, the claimant was given earlier notice than might otherwise have been the case of the hopelessness of her case because the skeleton submission was filed in response to her skeleton submission when the matter was listed as a substantive claim.

It has, of course, always been the position of the Medical Council that this should properly be dealt with by way of an application for permission for judicial review. But as the claimant’s position was that it should not, that it should listed for a substantive hearing, and that was the approach followed by the court office, the claimant had the advantage and the assistance of our response to her skeleton submissions, which of course would not usually be the case in any application for permission.

MR JUSTICE SULLIVAN: It only became an application for permission to apply for judicial review once I transferred it to myself wearing my Administrative Court hat under the CPR from being a statutory appeal to an application for permission. In a sense, this is a case where the GMC was not facing an application for permission to apply for judicial review until the judge said, yes, indeed, that is what it was.

MISS GALLAFENT: Quite, but the GMC has never sought to take a technical point that, in any event, there being no relevant statutory route of appeal, the claimant’s challenge must fail at the first hurdle. We have sought, of course, to meet the arguments that she has sought to deploy, as they have been put. So I appreciate that, of course.

But that does mean that, unlike in the customary course of events, there have been very many earlier indications, which should and could have alerted the claimant to the hopelessness of her case, with the result that costs should have been avoided in this matter. It is for that reason that we seek only the costs of today’s hearing, because we say that, at the very latest, she should have been alerted to the hopelessness of her claim after the submission of the skeleton arguments in this matter.

MR JUSTICE SULLIVAN: Yes.

MISS GALLAFENT: I am grateful.

MR JUSTICE SULLIVAN: Right, Dr Krippendorf, your chance to explain why you should not have to pay the costs.

DR KRIPPENDORF: My Lord, I took legal opinion and my appeal was with respect to the GMC’s non-compliance with the Privy Council order, and I respect the view you have taken, but, my Lord, I hope you would consider that the determination of the CPP was quashed by Her Majesty’s order. Her Majesty has not isolated determination 1, 2, 3, 4, 5, 6. She has used the words “the determination is quashed”, and indeed, sir, a statutory appeal on those grounds, from very learned counsel, both here and abroad -- I took an opinion abroad, as well, international -- and both their opinions were that there is a very good chance to succeed. So, my Lord, I would ask leave to appeal.

MR JUSTICE SULLIVAN: Anyway, what do you want to say about costs?

DR KRIPPENDORF: I would be very grateful if you would consider that there is a real problem here and the delay was because I had a fracture of the spine for two years and could not follow up. There was a limit to my human capability, and it would seem a bit unkind to put costs as well, my Lord, because this has been done with a genuine belief that -- perhaps I have used the wrong vehicle, but there is grounds for the statutory appeal, my Lord, on the aspect of enforcing the Privy Council order.

It is a grey area. Who enforces it nobody seems to be very clear after the changes of April 2002, because now the performance procedure has been amended and the appeal does not lie with the Privy Council, it is now with the High Court. So I am justified, my Lord, in seeking a statutory appeal on that. That was an appeal. The other two things were by judicial review, but that was not to be considered by judicial review, that was a statutory appeal, my Lord.

MR JUSTICE SULLIVAN: Yes.

DR KRIPPENDORF: And I would request that you would consider that, my Lord.

MR JUSTICE SULLIVAN: Thank you very much. I approach this application for costs bearing in mind the Court of Appeal’s judgment in Mount Cook that costs in applications for permission to apply for judicial review should be granted only in exceptional circumstances. I am satisfied that the circumstances here are exceptional.

First, in my judgment, it should have been plain to the claimant, if not once she had received the defendant’s summary grounds of resistance, then certainly by the time she had received the defendant’s response to her skeleton argument, that her claims really were quite hopeless. It is not insignificant that the true nature of the claims was only teased out during the course of the submissions, and as the details were teased out, it became increasingly plain, for example, that the challenge to the Registrar’s referral to the screener was fairly described as utterly hopeless.

It also became plain that the challenge to the refusal to recognise the claimant’s German qualifications was made very much out of time, insofar as there was any final decision, and, insofar as there was not, there was simply no decision that was capable of being judicially reviewed. So this claim, with the greatest of respect to the claimant, does fall well into the hopeless category.

Moreover, there is the other factor, that is to say that the claim was being pursued as a statutory appeal. Plainly, that was the wrong procedural route, as was pointed out by the defendant, but the claimant persisted, and so it was not until the matter got into court that the procedural defect could be corrected and the matter dealt with as an application for permission to apply for judicial review.

I also bear in mind that the claim is limited to the costs incurred in the period after the claimant would have received the defendant’s response to her skeleton argument. In effect, the GMC is claiming the costs of today. Thus, it is clearly costs limited to the period during which it really should have been plain to the claimant that enough was enough and that her complaints against the GMC were hopeless.

For these reasons, I think it is right that there should be an award of costs and that costs should be summarily assessed in the sum claimed, £4,630.

The claimant has asked me for permission to appeal. I refuse permission to appeal. I am not satisfied that there is a real prospect of success, for the reasons outlined in the judgment. Thank you both very much.