England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Scott Baker)

		Royal Courts of Justice Strand London WC2 Friday 7th December, 2001

1. LORD JUSTICE PILL: This is an application for permission to appeal against a judgment of Scott Baker J given on 30th July 2001. Scott Baker J refused permission to apply for judicial review to Dr Hurais Ramis Syed. The application had previously been refused on paper by Moses J.

2. The applicant was employed as a locum consultant urological surgeon by the Dewsbury Health Care Trust. By his application he seeks to challenge the outcome of an inquiry set up under a Rapid Response Scheme devised by the Royal College of Surgeons of England, and the manner in which their inquiry or assessment was conducted. There is no statutory basis for the Rapid Response Scheme. It was set up by the Royal College following public concern at events at the Bristol Royal Infirmary.
3. Scott Baker J set out in his judgment what he described as the thrust of the scheme and set out the appropriate circular from the Royal College in September 1999. I will not repeat it.
4. What is sought is an order quashing the investigation and review carried out by the defendants as being procedurally irregular, unreasonable and unfair, and that the report was seriously flawed and unreliable. Alternatively, a declaration is sought. There is also a reference to an injunction forbidding publicity which has not been pursued in oral argument. The further application is made, if the application for judicial review fails, that there should be:

"... an order/direction that these proceedings may stand and continue as a common law action for negligence and/or negligent misstatement."

5. Concern having been expressed about the professional conduct of the applicant, the Rapid Response Scheme was put into operation. The third and fourth proposed respondents were appointed one each by the Royal College of Surgeons and the British Association of Urological Surgeons, Mr Hastie FRCS and Mr Parsons FRCS. They were appointed to make the external expert assessment contemplated by the scheme. Their report to the Trust was made on 18th April 2000. It was signed by both experts and had the heading "Royal College of Surgeons Rapid Response Report". Its conclusions and recommendations were seriously adverse to the applicant. He received it, he says, on 12th May.
6. The Trust, having considered the report, did not allow the applicant to resume his employment. He says that his contract came to an end on 30th June and was not renewed by the Trust. In his statement the applicant says that the report is unfair, irrational and perverse. Substantial complaints are made about the way the assessment was conducted and about the substance of the report. It is submitted that the rapid response procedures had been misused by those conducting the assessment.
7. The application for judicial review was made on 29th January 2001. That is eight months after the applicant had the report. Before considering that delay, I mention other proceedings which have occurred.
8. First, the applicant has made a claim against the Trust of unfair dismissal and of racial discrimination. That complaint is made to an Employment Tribunal and is to be heard next spring. That will, of course, give an opportunity to challenge the substance of the decision and it will be open to the parties to give evidence as to the events which led to the loss of employment.
9. Second, the applicant has sought to be permitted to claim judicial review against the Trust. The application for permission was refused, we are told, very recently by Collins J, delay being a substantial factor in his decision. The delay in that case was greater than that before the institution of proceedings in the present case.
10. Third, there have been proceedings before the General Medical Council. Their Interim Orders Committee has made an order which substantially curtails the professional activities of the applicant on an interim basis. No appeal has been lodged against that findings, though I accept that an appeal might be difficult in the circumstances. The GMC are conducting an assessment of their own into the applicant's conduct. It is accepted that that will be an independent review, that is a review independent of the report under the rapid response procedure.
11. We are told that the full assessment and review by the GMC has been adjourned indefinitely. We have been referred to possible criminal proceedings and it is suggested that that might be the reason for the adjournment. It is, of course, open to the applicant to attempt to have that review brought forward if he considers that to be in his interest. What decision would be taken on such an attempt I cannot of course say.
12. Fourth, there is the prospect of a common law action for damages, a private law action. As I have said, if the application for judicial review is not permitted, an order that the action should continue under CPR 54.20 as a private law action is sought.
13. Mr MacCormick for the applicant submits that the applicant should have the opportunity to challenge the report, whatever results follow from the other procedures which have been and are being taken. The report under the Rapid Response Scheme, unless challenged, will be a serious blot upon the applicant's reputation, especially having regard to the prestige of the Royal College of Surgeons. It has to be accepted that any judicial review would not permit a rehearing of the evidence which led to the report. The report could be challenged only on the usual grounds permitted in judicial review.
14. Moses J gave as one of the reasons for refusing permission the delay which had occurred. There is a long statement from the applicant attempting to explain the delay. It took him a considerable time to find a solicitor who was prepared to take the case on for him. An application for legal aid was submitted on 25th August. That was refused and an appeal was dismissed. Following the decision of the GMC IOC which was on 30th November, a further application was made and that too has been refused. On the applicant's behalf Mr MacCormick submits that the delay has not been the applicant's fault, and that there was a prompt notification to the health authority that a claim was to be made.
15. Mr MacCormick refers to the statement of Woolf LJ in R v Commissioner of Local Administration ex p Croydon LBC [1989] 1 All ER 1033 at 146G:

"Whilst in the public field it is essential that the Court should scrutinise with care any delay in making an application and a litigant who does delay is always at risk, the provisions of RSC Ord 53 r 4 and section 31(6) of the Supreme Court Act 1981 are not intended to be applied in a technical manner. As long as no prejudice is caused ... the courts will not rely on those provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled."

16. Judicial review is a public law remedy. It is important that it is commenced promptly. It is important, in the public interest, as well as in that of the parties who are likely to be involved.
17. In my judgment, the explanation for the delay is in all the circumstances not a satisfactory one. This is a claim which, if it was to be brought at all, should have been brought promptly. I have referred to the other remedies which are available and the other proceedings which have followed the report. In my judgment when considering the weight to be given to the factor of delay, the court is entitled to have regard to other events occurring during the period concerned, to the existence of other remedies and to what, having regard to those other remedies, is capable of being achieved by the applicant in the action. Against the background in this case, the delay which occurred was in my judgment unacceptable and I would refuse permission on that ground.
18. The court has not heard Mr Havers QC as to the merits of a claim, leaving aside the time and other remedies factors, against the Royal College or the signatories of a report prepared on its behalf. I do not express any view as to whether a claim could be brought against those responsible for a report. The point is taken against the applicant that there is no decision against which complaint can be made, and other points are also taken. I would make no finding upon those issues.
19. I only add that I can see no basis whatever for having joined the British Association of Urological Surgeons. It is not their report. They appointed one of the reporting surgeons, but there is no suggestion that the appointee was unfitted for the task. I can see no basis upon which the Association could be the subject of judicial review in this context.
20. It is suggested that the case should nevertheless be permitted to proceed on the basis indicated. The court has power to order that, but is not obliged to do so. I would not do so in his case. I do not see advantages in that course. There may be cases where, for example, relief has been given or where the documentation is in a form and of a substance which readily permits the action to continue as a private law action. That is not the case here. In my judgment this action should be brought to an end. It is essentially a public law action. The applicant should be required, if he seeks to bring a private law action, to commence it in the usual way.
21. I also express the view that the fact that I have proposed that order does not mean that the applicant would be estopped from commencing a fresh claim. That would be considered upon the usual basis in the Queen's Bench Division if and when an attempt is made to commence a private law action.
22. For the reasons I have given, I would refuse this application.
23. LORD JUSTICE TUCKEY: I agree.
ORDER: Application for permission to appeal refused; costs adjourned to be dealt with on written submissions; Mr MacCormick's submissions and the Community Legal Funding Certificate to be disclosed to the court and to the proposed respondents within seven days; Mr Havers to serve his submissions in reply seven days thereafter. (Order not part of approved judgment)