Manchester Civil and Family Justice Centre
1 Bridge Street West
Manchester
Greater Manchester
M60 9DJ
B e f o r e:
MR JUSTICE STUART-SMITH
Between:
GENERAL MEDICAL COUNCIL
Claimant
v
"DR E"
Defendant
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Mr GarsideQC (instructed by the General Medical Council) appeared on behalf of the Claimant
Mr Hurst (instructed by Berryman's Solicitors) appeared on behalf of the Defendant
J U D G M E N T
MR JUSTICE STUART-SMITH: This is the claimant's application pursuant to section 41A of the Medical Act 1983 as amended, for an extension of 8 months, up to 22nd December 2014, to the interim order of conditions currently imposed upon the defendant, to whom I refer to as "Dr E". The application is opposed. I direct that any copy of this judgment and order of the court shall refer to the doctor as Dr E and that he shall not be identified until further order.
The application is supported by a witness statement from Mr Colin Rafferty, made on 20th March 2014. Dr E has submitted a short witness statement from his solicitor but that takes matters no further.
Factual Background
It was initially alleged that Dr E had raped a vulnerable patient and conducted an inappropriate sexual relationship with her over years. Dr E denies all wrongdoing, but it is not in dispute that he did have a sexual relationship with the complainant during which he fathered a child. The complainant alleged that she had become pregnant for a second time as a result of her relationship with Dr E and that he had forced her to terminate that pregnancy against her will. As has been said before, these allegations were some of the most serious that could be faced by a medical practitioner. Taken at face value they fully justified the restrictions placed upon Dr E by the Interim Orders Panel and latterly by this court in late 2013.
The factual background is set out in considerable detail in a judgment given on 17th October 2013 by His Honour Judge Pelling QC, sitting as a judge of the High Court [2013] EWHC 3425 (Admin), when he varied the conditions that had previously been imposed and extended the IOP for a period of 6 months to 22nd April 2014.
In briefest summary the chronology to October 2013 was as follows. In 2010 a complaint was made by North Staffordshire NHS. No action was taken. In November 2011 the General Medical Council was notified of the allegations by Derbyshire police. In February 2012 the police decided that they would take no further action. In March 2012 the ex-patient, who I shall refer to as "the complainant" made her complaint. In April 2012 further information was received from the police. Also in April 2012, at a meeting of the Interim Orders Panel, conditions were imposed upon Dr E's registration.
There were then three more IOP hearings on 3rd October 2012, 8th March 2013 and 19th July 2013 at which the conditions were maintained. After that the General Medical Council was obliged to apply to the High Court for a further extension which it did, the hearing being on 17th October 2013.
A more detailed chronology is set out in Dr E's skeleton argument which shows a marked lack of urgency in investigating allegations of the greatest seriousness. The General Medical Council's application in October 2013 was for an extension of 12 months. The learned judge's decision to extend the IOP order for only 6 months was informed by his concern that the matter been subject to delays, some of which appeared to be responsibility of the General Medical Council.
In the course of his judgment the learned judge said, first at paragraph 22:
"... not all the delay that has occurred can be explained by reference to [the complainant's] vulnerability. On the contrary, large parts of it can be explained only by inactivity on the part of the GMC for prolonged periods."
At paragraph 28 he said:
"As was accepted by counsel for the GMC, conditions that are proportionate when they are first imposed can become disproportionate with the passage of time and thus delay is a material consideration in deciding whether it would be proportionate to continue the interim conditions order or relax it in whole or part. There has been significant delay here. The delay that has occurred is not something that I alone have been critical about. The IOP that considered the conditions again in March 2013 was critical of the delay that had occurred too, for it said as follows:
'The Panel has had regard to length of time that the GMC investigation has taken and was disappointed at the apparent lack of progress....'"
Again at paragraph 32 the learned judge said:
"The final question that I have to consider is the length of the extension. I am prepared to extend the conditions as varied in the way I have described for a further period of 6 months. By then the defendant will have been subjected to an interim order of conditions for 2 years. By then the claimant will have or ought reasonably to have decided whether it wishes to proceed and, if so, on what basis. If [the complainant] gives a statement and if that necessitates further enquiries which require additional time then there will have to be a further application. Had the GMC not delayed in the way I have described I would have expected that this case could have been much more advanced and possibly even concluded by now."
The learned judge, without making any findings of fact, reviewed the initial allegations that had been made against Dr E and the evidence that had been gathered in support by that time. He concluded, for reasons set out in his judgment at paragraphs 9 to 21, that some of the complainant's evidence fell to be discounted as unreliable and that other of her evidence was suspect. I agree with his analysis for the reasons he gave and do not repeat it here.
Since 17th October 2013 one significant development has taken place which is that the complainant stopped co-operating with the General Medical Council in about November 2013. The evidential consequences of this are obvious. But no indication is given by Mr Rafferty in his witness statement of how, if at all, the General Medical Council has addressed the altered evidential landscape or proposes to do so. Nor was any indication given at the IOP meetings on 8th January or 18th February 2014 when the conditions were subsequently extended further or were reviewed.
On 8th January 2014 counsel for the General Medical Council told the IOP:
"In effect there had been no, aside from the High Court extension orders, material changes since the hearing in July in [2013]."
All that was said by counsel on 18th February 2014, no doubt on instructions was that the Panel was told:
"Sir, the position is, in summary that the investigation is ongoing. I am instructed that the GMC believes they would be in a position to issue the Rule 7 letter within about two weeks so progress can be made and the doctor will know the proper formulation of the allegations at that stage in more detail."
On 8 January 2014 the IOP imposed conditions that had previously been formulated by His Honour Judge Pelling QC on 17th October 2013 with minor adjustments. They were:
You must notify the GMC promptly of any professional appointment you accept for which registration with the GMC is required and provide the contact details of your employer and The NHS England Area Team on whose Medical Performers List you are included, or seeking inclusion (at the time of application), or the local Health Board/Health & Social Care Board if employed in Scotland, Wales and Northern Ireland.
You must allow the GMC to exchange information with your employer or any contracting body for which you provide medical services.
You must inform the GMC of any formal disciplinary proceedings taken against you, from the date of this determination.
You must inform the GMC if you apply for medical employment outside the UK.
You must not undertake any out-of-hours’ work.
a. You must not treat or have any personal contact with any female patient other than in a consultation fixed by prior appointment at a GP’s surgery or other NHS unit.
You must not have telephone contact with any female patient other than to respond to calls from patients to the GP’s surgery or other NHS unit at which you are employed and/or contracted to work.
You must not make contact with any female patient by email other than to respond to emails received from a patient sent to a GP’s surgery or other NHS unit at which you are employed and/or contracted to work.
Except in life threatening emergencies you must not undertake a consultation with any female patient more than 3 times in any 3 month period.
Save to the extent provided by sub paragraphs (a) to (d) above you must not make contact with any female patients or visit or meet with such patients.
Except in life threatening emergencies, you must not undertake consultations with female patients without offering that patient a chaperone.
a. You must maintain a log detailing every case where you have undertaken a consultation with a female patient. If a chaperone is present, the log must be countersigned by the chaperone.
You must maintain a log detailing every case where you have undertaken a consultation with a female patient in a life threatening emergency, without a chaperone present.
You must provide a copy of these logs to the GMC prior to any review hearing of this Panel or, alternatively, confirm that there have been no such cases during that period."
Those are the conditions that are now in place in which the General Medical Council wishes to extend for a further 8 months.
The IOP's reasons for imposing the conditions included that:
The Panel has determined that, based on the information before it today, there may be impairment of your fitness to practise which poses a real risk to members of the public and which may adversely affect the public interest. After balancing your interests and the interests of the public an interim order remains necessary to guard against such a risk.
In reaching its decision, the Panel has noted the serious sexual allegations which you face and the inherent risk to patients and the public interest that these may pose.
The Panel has very carefully considered the whole of the judgment of HHJ Pelling QC dated 17 October 2013 and his order dated 22 October 2013. The Panel is of the view that you should not undertake and out-of-hours’ work as this could make it difficult for you to comply with condition 6d. It has made a number of other alterations to the conditions to reflect the substance of HHJ Pelling's judgment and order. It has amended condition 7(a) to enable you to provide proof of compliance with condition 6(d). The Panel has decided that it was not appropriate to amend condition 6(e) as this was not part of HHJ Pelling's judgment or order.
Whilst the Panel notes that the order has restricted your ability to practise medicine it is satisfied that the order imposed is the proportionate response to the serious concerns raised. The Panel considers that the order of conditions will protect the public and the wider public interest whilst permitting you to continue in clinical practice."
It is not clear whether the IOP was referring to the initial allegations including the allegation of rape or was excluding those allegations where His Honour Judge Pelling QC had formed the view that the complainant's evidence seemed unreliable.
Despite the indication that it would be sent out "within about 2 weeks" and the comments that had already been made about unacceptable delay, the rule 7 letter was not sent until 11th March 2014. Sending it in 3 weeks rather 2 may not be significant when viewed in isolation but, set in the context of the previous delays, it appears to be entirely typical of a lack of urgency exhibited by the General Medical Council throughout. Of equal concern Mr Rafferty's witness statement gives no explanation of what steps the General Medical Council took to progress matters between 17th October 2013 and the issuing of the rule 7 letter on 11th March save to say that the General Medical Council attempted to contact the complainant "by e-mail and telephone on 8th November 2013 but was unsuccessful" and that it "continued to chase the complainant for a finalised statement but has been unsuccessful in this regard."
The combined effect of what was said on 8th January and what is and is not said by Mr Rafferty is that the General Medical Council took no active steps to progress these proceedings against Dr E between July 2013, at the latest, and 11th March 2014, a period of 8 months, other than applying for extensions and attempting without success to obtain a finalised witness statement from the complainant who was known not to be co-operating by November 2013. It is not an adequate response to say that those investigating the case were trying to do so thoroughly. The complaint is of a lack of urgency and expedition, both of which should go hand in hand with thoroughness.
What is plain is that the General Medical Council's position on the allegations that may be sustainable has now changed. The draft particulars attached to the Rule 7 letter read as follows:
“Annex A
Draft Particulars
…
That being registered under the Medical Act 1983 (as amended):
1. Between 1 January 1991 and 1 April 2010 you were employed as a General Practitioner at The John Kelso Practice, Leek, Staffordshire (“the Practice”).
2. Patient A;
a. Was registered as a patient of the Practice between May 2004 and November 2006,
b. attended the Practice as a patient on 28 March 2008.
3. You undertook consultation with Patient A;
a. during the period outlined at paragraph 2a,
b. on the date outlined at paragraph 2b.
4. As a result of your consultations with Patient A, you were aware that patient A had vulnerabilities, which included a history of mental health problems.
5. You were involved in a sexual relationship with Patient A;
a. following patient A’s departure from the practice,
b. on the date outlined at paragraph 2b,
6. The relationship referred to at paragraph 5 above, was inappropriate due to;
a. Your previous professional relationship, and,
b. Patient A’s known vulnerabilities as referred to above at paragraph 4.
7. In or around February 2010, you;
a. informed colleagues at the Practice that you had conducted an extra marital relationship with a former patient whose identity you refused to reveal,
b. falsely denied that the former patient was Patient A, on two occasions, when specifically asked by Dr Oxtoby.
8. Your conduct at paragraph 7b was;
a. misleading,
b. dishonest.
And that, by reason of the matters set out above, your fitness to practise is impaired by reason of misconduct.
It is immediately apparent that the allegations of rape and pursuing an inappropriate relationship with the complainant while she was his patient are not being pursued. On any view that involves a significant reduction in the seriousness of the allegations against Dr E from those that were previously being advanced as justification for the restrictions placed on his ability to practice by the IOP and the court. That said the remaining allegations are far from trivial. I am not in a position to form any view about the quality of the evidence supporting the allegations since I have not seen it.
Dr E's response to the rule 7 letter was originally due or was due after extensions had been granted on 28th April 2014 but I was told that it was in fact sent and received last, Friday 12th April 2014.
The Relevant Principles
The making of interim orders is governed by section 41A of the Medical Act 1983. Subsections (6) and (7) provide:
The General Council may apply to the relevant court for an order made by an Interim Orders Panel or a Fitness to Practise Panel under subsection (1) or (3) above to be extended, and may apply again for further extensions.
On such an application the relevant court may extend (or further extend) for up to 12 months the period for which the order has effect."
The applicable principles were authoritatively decided by the Court of Appeal in General Medical Council v Hiew [2007] EWCA Civ 369. The judgment of Arden LJ establishes the following principles. First:
"the exercise in decision-making is to be performed by the court as the primary decision maker."
Second:
"... the criteria for the exercise by the court of its power under [section 41A(7)]... must be the same as for the original interim order under section 41A(1), namely the protection of the public, the public interest or the practitioner's own interests. This means ... that the court can take into account such matters as the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to the practitioner if an interim order is continued. The onus of satisfying the court that the criteria are met falls on the GMC as the applicant for the extension under section 41A(7)."
Third:
"The judge must... reach his decision as to whether to grant an extension on the basis of the evidence on the application. He will need to examine that evidence with care ... In my judgment the witness statement should fairly explain, in summary, but as a self-standing document, the reasons for the application for an extension."
Fourth:
"... it is not the function of the judge under section 41A(7) to make the findings of primary fact about the events that have led to the suspension or to consider the merits of the case for suspension. There is, moreover, no express threshold test to be satisfied before the court can exercise its power under section 41A(7), such as a condition that the court should be satisfied that there is evidence showing that there is a case to answer in respect of misconduct or any other matter. On the other hand, if the judge can clearly see that the case has little merit, he may take that factor into account in weighing his decision on the application. But this is to be done as part of the ordinary task of making a judicial decision, and a case where a statutory body makes an application on obviously wholly unsupportable grounds is likely to be rare."
Fifth:
"The evidence on the application will include evidence as to the opinion of the GMC, and the IOP or Fitness to Practise Panel, as to the need for an interim order. It is for the court to decide what weight to give to that opinion. It is certainly not bound to follow that opinion. Nor should it defer to that opinion. All that is required is that the court should give that opinion such weight as in the circumstances of the case it thinks fit."
Finally:
"... the function of the court is to ascertain whether the allegations made against the medical practitioner, rather than their truth or falsity, justify the prolongation of the suspension. In general, it need not look beyond the allegations."
I turn to apply those principles to the facts of this case. I remind myself that I am carrying out an exercise of primary decision maker applying the same criteria as for an original interim order. I also bear in mind that it is not my function to make findings of primary fact about the events that have led to the imposition of the interim order, or to consider the merits of the case being brought against Dr E, save to the extent that I can properly form a view whether or not there is evidence to show there is a case to answer in respect of misconduct or any other matter.
That said, the starting point is that it is for the General Medical Council to satisfy the court that the protection of the public or the public interest requires the conditions that are now in place to be extended. The court is to take into account the gravity of the allegations, the nature of the evidence, the seriousness of the risk of harm to patients, the reasons why the case has not been concluded and the prejudice to the practitioner if an interim order is continued - see Hiew at paragraph 28. Following paragraph 29 of Hiew, I look to the witness statement of Mr Rafferty to see if it "fairly explains, in summary, but as a self-standing document, the General Medical Council's reasons for an application extension." The following features emerge.
First, Mr Rafferty does not address the seriousness of the allegations. This might be explicable if the evidence and procedural landscape was the same as when the initial allegations were made and the GMC started its investigation but that is not the case here. The witness statement was produced nine days after the rule 7 letter was sent, the effect of which was formally to abandon the most serious of the allegations that had been made against Dr E. It follows that the court cannot look with confidence at the previous opinions of the IOP since, for example, the reference to "serious allegations which you face and the inherent risk to patients and public interest these may impose,” did not address the current state of affairs.
Second, Mr Rafferty does not address the nature of the evidence that is available. All that is known is that the General Medical Council took statements in mid 2013 from three people who worked at Dr E's practice. It can be deduced that the charge of misleading his GP colleague must be based upon her evidence but there is no information about the nature of the evidence from the other two witnesses or even whether their evidence will be relied upon, which is the real question given that some of the allegations being investigated have now been dropped.
It can also be deduced from dropping of the allegations of rape and of conducting a sexual relationship while in the doctor/patient relationship that the General Medical Council shares some or all of His Honour Judge Pelling QC's assessment of the complainant's evidence or has now given the prospect of calling her but Mr Rafferty's witness statement does not address that point at all.
Third, there is no evidence of the risk of harm to patients. Here again, the dropping of the most serious charges is important. The significance of this change should have been clear without being drawn to General Medical Council's attention by the court. As it was His Honour Judge Pelling QC explained the significance at paragraph 29 of his judgment, where he gave his reasons for varying one of the conditions that had previously been in place. The learned judge said:
"... whilst condition 5(a) would undoubtedly be an appropriate one to impose where the allegations made were of physical assaults in the course of medical examinations, it may not be appropriate to adopt that approach where as here the medical practitioner is alleged to have groomed a single vulnerable patient over time, with a view to cultivating a relationship which became physical in consequence."
I respectfully agree with the thrust of that analysis. It applies with even greater force where the allegation now is that the relationship started when Dr E was no longer in a doctor/patient relationship with the complainant. Dr E has been in practice for many years and there is evidence that no complaint of inappropriate or improper behaviour has ever been made against him in relation to any other patient. That being so, it is not self evident that all of these conditions are necessary for the protection of the patients or the wider public. They might be, but there is no relevant analysis by and IOP and no other evidence on which the court can rely.
Mr Garside QC, who presented the application for the General Medical Council with immaculate clarity, economy and realism, pointed out to paragraph 27 of Judge Pelling's judgment, where the learned judge said that:
"It remains the case however that the claimant commenced a relationship with someone who was, on his own case, a former patient and who he knew or must have known was a vulnerable adult by reason of her mental health issues. It also remains the case that the defendant is credibly alleged to have actively misled his former partners on the question of whether the former patient he admitted having a relationship with was a vulnerable person. Whilst I would regard it as unsafe and unsound to extrapolate from that isolated allegation, which concerns conduct which arose in circumstances that must on any view have been highly pressured, a conclusion that the defendant is so untrustworthy that he ought not to be permitted to practise at all. However, simply looking at the allegations that are made rather than arriving at any judgments concerning their truth or accuracy, it does mean that there is a risk that he might attempt to develop a relationship with a vulnerable patient and, if the only control was a log, that he would seek to disguise or conceal such an occurrence."
I accept that there is the theoretical risk but it can be overstated. As I have said, Dr E has been a registered medical practitioner practising as a general practitioner for 30 years. It has never been suggested that he has behaved inappropriately with anyone other than the complainant in this case. Furthermore the risk must be balanced against the effect of the conditions on the doctor, a point to which I shall return.
Fourth, Mr Rafferty's evidence does not address the reasons why the case has not been concluded. He gives no explanation of why the rule 7 letter was not sent out until 11th March 2014. His evidence was that on receipt of Dr E's response the case would be referred to the General Medical Council's case examiners for a decision as to how the matter should proceed in accordance with rule 8 of the Fitness to Practise Rules. In the event, the court has been told that Dr E's response was received last Friday, 10th April and the case examiners will consider it in the next two days. Mr Rafferty's evidence is that if they refer the case to a determination by a Fitness to Practise Panel then "the MPTS will aim to list a hearing within 6 months of any such decision." The witness statement does not provide any information to show whether the delays that have already occurred have been taken into consideration or why the matter could not be listed before then. The court is therefore not in a position to assess whether the time frame being proposed by the GMC is reasonable.
Fifth, Mr Rafferty's evidence does not address the prejudice to Dr E. It merely asserts that the General Medical Council:
"is of the view that interim order remains necessary and is proportionate to the serious concerns relating to [Dr E's] fitness to practise"
He does not give any reasons or conduct any form of balancing exercise as between the risk to patients on the one hand and the prejudice to the doctor on the other.
The defendant's skeleton for today's hearing lists consequences which it says have flowed from the imposition of these conditions in the following terms.
“It remains the case for Dr E as it was in October 2013 that he has not worked in clinical practice since late April 2012: He is becoming decision skilled..., he is unable to demonstrate his integrity and/or clinical confidence in an up-to-date manner. He is and has been suffering acutely financially because he has lost two incomes totally £74,000 per annum and his work is being restricted.... He has had to remortgage his home... He is in debt... He is suffering from mental stress such as ability to concentrate at work is compromised and he suffers from insomnia."
No witness statement evidencing these consequences is before the court today. But I was told and I accept that either identical or very similar assertions were evidenced by a witness statement for the hearing before His Honour Judge Pelling QC. This highlights that it was for the General Medical Council to balance the risks to patients against the consequences for the doctor. As I have said, Mr Rafferty's evidence does not show that this was done at all and it is difficult to see how any assessment of proportionality could be carried out by the IOP or now this court without the General Medical Council having identified and taken into account what were the consequences for the doctor.
Sixth, Mr Rafferty's statement does not address the question of public interest other than to say:
"The IOP first considered [Dr E's] case on 23rd April 2012 and determined that it was necessary... in the public interest, to impose the order of conditions on Dr E's registration for a period of 18 months."
That was of course when the allegations being investigated included an allegation of rape which is no longer pursued.
It follows that Mr Rafferty's evidence fails to address any of the matters identified by Arden LJ at paragraph 28 of Hiew as being the matters that the court should take into account. This failure is all the more regrettable given the General Medical Council has already had two warning shots about the unacceptable delay in this case. These warnings appear to have been ignored completely. It is also clear that the unacceptable delays in this case are not an isolated problem - see General Medical Council v Jooste [2013] EWHC 1751 (Admin). On the information that is available today the lack of urgency is as astonishing as it is regrettable. If, as appears to be the case, unacceptable delays such as have occurred in this case are common, the General Medical Council needs to conduct a significant review of its resources and procedures. Any cost of increasing the resources available to ensure the prompt prosecution of these important enquiries will be offset, at least to some extent, by savings in costs incurred by the need for repeated applications to the IOP and the court for extensions of orders.
What is the court to do in these circumstances? To my mind two courses of action are available. The first would be simply to refuse any extension at all. The second is to grant an extension of one or two weeks, to enable the General Medical Council to make good the deficiencies in its evidence on the next application, if it can. I am conscious that the residual allegations are serious and, just as it is not self evident that prolonged extension of the current conditions is necessary, it is also not self-evident that neither these or any other conditions are justifiable. However, applying the principles established in Hiew, there has been a total failure by the General Medical Council to address the matters on which the court must be satisfied if it is to grant an extension. In these circumstances, it would be wrong in principle to grant any extension at all and I decline to do so.
There remains the question of costs on which I will hear counsel.
MR HURST: My Lord, thank you. May I raise two matters essentially of clarification and thereby reassurance? Firstly, my Lord has it right that the rule 7 response was submitted on 10th April.
MR JUSTICE STUART-SMITH: Thank you.
MR HURST: Secondly, so far as the assertions made by the defence as to the impact on Dr E is concerned, I am very helpfully reminded by instructing solicitor on the last occasion - I should remember this - we provided a signed impact statement, it was described as, from Dr E setting out precisely those concerns which appear.
MR JUSTICE STUART-SMITH: When the transcript of the judgment comes through, which I suspect it probably will and I will be asked to correct it, I will try to remember that.
MR HURST: My Lord it is entirely my fault... Somewhere it should be on the court file.
MR JUSTICE STUART-SMITH: It may well be on the court file. I could not find anything in the bundle. I am very grateful. Costs?
MR HURST: My Lord, there is an application. There is a schedule.
MR JUSTICE STUART-SMITH: Have the General Medical Council seen it?
MR HURST: I do not know.
MR GARSIDE: Yes, I have.
MR HURST: Whilst it comes to you before I forget, can I thank the court particularly for the indulgence in this listing this matter not before 11.30. It was entirely for my personal convenience. Matters I had long-standingly arranged for yesterday. I am extremely grateful.
MR JUSTICE STUART-SMITH: I know how difficult it is when one comes back from holidays Mr Hurst. I hope it did not cause anyone any great inconvenience.
MR HURST: My Lord I was not away away but nonetheless I was booked out for purely personal and domestic reasons.
MR JUSTICE STUART-SMITH: That sounds a bit rum (inaudible) but thank you very much. Let me have a quick look at this (Pause).
Is the General Medical Council not able to recover VAT on the fees? I suppose it is Dr E who is probably not registered for VAT?
MR HURST: I will have to take instructions on that.
MR JUSTICE STUART-SMITH: How does this work?
MR HURST: My Lord, I am afraid the situation is this. It is the MPS who pays the totality of the costs. There is no contribution by Dr E because he has appropriate indemnity himself but whether the MPS is VAT registered I am afraid I do not know.
MR JUSTICE STUART-SMITH: What I will do is direct that alternative figures and if your solicitor certifies that the MPS cannot recover, then you can have the VAT and if she does not, if it goes like that...
MR HURST: I expect probably the MPS is registered for VAT.
MR JUSTICE STUART-SMITH: I would have expected so. Mr Garside?
MR GARSIDE: First of all my Lord, whether or not VAT is payable it seems impossible to reconcile a figure of £250 with any of the --
MR JUSTICE STUART-SMITH: With £2,000.
MR HURST: Whether it is VAT on counsel and solicitors fees as is stated or whether it is just VAT on counsel's fees or just VAT --
MR JUSTICE STUART-SMITH: Even on counsel's fees you are getting away lightly, are you not?
MR HURST: My Lord, the point is that the clock striking 13. Mr Hurst has been involved in this case from the very beginning. He was at the last IOP hearing, he was at the last hearing in front of the High Court. He appears - I do not know what his hourly rate is and I do not wish to enquire. He seems to be charging £2,000 for what is already agreed a cut and paste job of a skeleton and appearing today.
Similarly, I invite your Lordship to consider whether there is overlap in the solicitor's costs between the various matters which have been raised today which have also been raised before. It is my submission that the costs of course would cover the costs of today and preparing today but not for cost of the last IOP hearing and the last High Court hearing. I invite your Lordship to assess costs with that in mind.
MR JUSTICE STUART-SMITH: Did you submit a schedule?
MR HURST: Yes.
MR JUSTICE STUART-SMITH: Could I see it please?
MR HURST: Yes of course. My Lord, those are my submissions about costs. I do not know whether or not VAT was recoverable.
MR JUSTICE STUART-SMITH: Do not worry. As I have already made clear, I take the view that there has been a serious failure by the General Medical Council in this case. So serious that if I were sending this off for a detailed assessment, I would direct that you should have your costs on an indemnity basis. That being so, I am going to resolve any possible doubts that I might have in favour of the receiving party and I will assess those costs in the sum of £3,000, plus whatever Berryman's certify to be the correct amount of VAT if the VAT is certified as being irrecoverable or simply £3,000 if VAT is recoverable. Does that make sense?
MR GARSIDE: My Lord, yes.
MR JUSTICE STUART-SMITH: The important thing is that your solicitor is nodding so I am assuming... Is there anything else? Thank you very much. Thank you, both of you, for your skeletons and Mr Garside I meant what I said about the manner in which you presented it.
MR GARSIDE: I am very grateful my Lord. Thank you.