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
(MR JUSTICE MCCOMBE)

		Royal Courts of Justice Strand London, WC2
		11th March 2005

1. LORD JUSTICE RIX: The applicant, Dr Jennifer Colman, brings two applications for permission to appeal. These applications arise out of the same set of proceedings, in which Dr Colman had brought a claim against the General Medical Council ("GMC").
2. The first application (which I will describe as the "2416 application" or, alternatively, as the "merits application") relates to an order of McCombe J of 2nd November 2004, whereby Dr Colman's application to amend her particulars of claim was refused and the GMC succeeded in having the particulars dismissed. As a result Dr Colman's claim was struck out in its entirety. The GMC was also given permission to apply for a wasted costs order against counsel who drafted the proposed amended particulars of claim and/or the firm of solicitors whose name appeared on the backing sheet and who represented Dr Colman at the hearing before McCombe J. She was also represented at that hearing by leading counsel, Mr Nelson QC.
3. The second application (which I will refer to as "2748" or "the procedural application") relates to an order of Gray J of 14th December 2004. At a renewed oral application for permission to appeal against the order of Master Foster dated 14th November 2003, Gray J refused Dr Colman's application for an adjournment and went on to refuse her application for permission to appeal. The order of 14th November 2003 which Dr Colman was seeking permission to appeal on that occasion was an order by which she had been ordered to pay the costs of hearings on that day, 14th November 2003, and of a previous adjourned hearing of 13th October 2003, hearings which were concerned with an application to have a stay of her claim lifted. I will refer subsequently to the background to those applications.
4. Dr Colman is acting in person before me today, as she had done on the telephone, I think, with Gray J. I am much assisted by Dr Colman's carefully and helpfully prepared bundles, her skeleton arguments and her oral submissions to me today. Dr Colman is in turn assisted, in her difficult role as a litigant in person, by her obvious considerable legal abilities. She is in fact a barrister, not a practising barrister but a barrister, and an LLM from the LSE.
5. I ought to say something about the background from which these applications arise. I do so merely as a matter of background in order to put the matters in context.
6. The claim Dr Colman has sought to bring in these proceedings against the GMC derived from the issue of a claim form dated 22nd July 2002. By the original particulars of claim of that date, Dr Colman had claimed breaches of the Data Protection Act 1998, the Public Interest Disclosure Act 1998, the Protection from Harassment Act 1997, the Disability Discrimination Act 1995, and a common law duty of care. So five heads of claim. Those original particulars of claim have been amended twice in draft. The first amendment, I think, was her own draft. The second amended draft, dated 2nd September 2004, was signed by counsel and it was those amendments that formed the subject matter of the hearing before McCombe J.
7. The facts underlying Dr Colman's claim are complex, but I will seek for the purpose of the present applications to state them succinctly. There is a fuller account of them in the judgment of McCombe J. Dr Colman is a registered medical practitioner, who was struck off by the Professional Conduct Committee ("the PCC") of the GMC in March 1987. She successfully applied to have her name restored in July 1989, and in April 2000 Dr Colman was herself elected to the GMC and wished to set the record straight about the circumstances in which she had been originally struck off. On the other hand, there were some members of the GMC who had concerns about Dr Colman's eligibility to sit on the PCC and tensions arose. In essence, it may be fair to say that Dr Colman had her supporters and her non-supporters on the GMC.
8. Be that as it may, Dr Colman was co-opted on to the PCC in February 2001. At a professional misconduct hearing of 21st June 2001 in which Dr Colman sat on the panel, Dr Colman asked questions of the practitioner which led to concern and ultimately led to Dr Colman agreeing to recuse herself from the hearing, and also to her being criticised in a letter from the legal assessor to the President of the GMC dated a few days later on 24th June 2001. As a result, the question of Dr Colman's continuing sitting on the PCC became a matter in issue.
9. These events led to a complaint by Dr Colman of serious professional misconduct against the President of the GMC on 31st November 2001. On 27th February 2002 the GMC decided that her complaint should be subject to an independent review by Mr George Staple, I think QC. Is he not Queen's Counsel?
10. DR COLMAN: Yes, but with respect, that was what not they decided. That was already closed down.
11. LORD JUSTICE RIX: He produced a report on 6th February 2003. His conclusion was that the GMC had acted correctly in dealing with Dr Colman's requests for statements to be made about her, having been struck off and subsequently reinstated, and with her complaints. He also found that Dr Colman had acted correctly in recusing herself from the PCC proceedings in 2001.
12. Dr Colman had in the meantime been re-elected to the PCC on 27th August 2002 for a period up to 30th June 2003. Following Mr Staple's report of February 2003, however, the PCC decided not to empanel her for PCC hearings, and she was not subsequently re-elected to a further period of office on the PCC.
13. The proceedings which Dr Colman has brought out of this background reflect her longstanding and anxious concern that in all these events following her restoration to registration and her election to the GMC, and one might therefore be entitled to say her complete rehabilitation, she has been treated in a way which disparaged her reputation and ability to pursue her profession, and that a leading part in this misfortune (for which no doubt Dr Colman would have a stronger word) was played by the decision to commission the independent report of Mr Staple and the terms of that report itself. Plainly Dr Colman sought by these proceedings, not only entirely to rehabilitate her name, but also to claim compensation for what she alleged were the wrongs which had been done to her under, as I have mentioned, those five separate heads of claim.
14. The GMC, however, sought to strike out these proceedings by an application notice dated 20th December 2002. There are a number of interlocutory hearings leading to Dr Colman discontinuing two heads of her five claims, namely those relating to the Public Interest Disclosure Act 1998 and the Disability Discrimination Act 1995. That was on 17th November 2003.
15. In the course of the GMC's application proceedings to have her claims struck out, Dr Colman herself applied on 1st July 2003 to amend her original particulars. That application was ordered by Master Fontaine on 4th February 2004 to be heard together with the GMC's strike-out application.
16. The amended draft particulars which were considered for these purposes were what I have already described as the second draft amended particulars. The first draft amended particulars, do not seem themselves to have been considered at the hearing before McCombe J. But in any event, both drafts alike sought to add to the GMC as defendants to Dr Colman's claim, Mr Staple and Clifford Chance, solicitors who I think had been appointed as solicitors to his review.
17. So when Dr Colman's claim came before McCombe J, there remained three heads of claim: the Data Protection Act 1998, the Protection from Harassment Act 1997, and duty of care or negligence. But the second draft amended particulars also sought to include new heads of claim under the Medical Act 1983 and the Human Rights Act 1998. So there was a full quiver of five heads of claim proposed to be restored on that occasion.
18. It is clear from McCombe J's judgment of 2nd November 2004 that in the course of the hearing before him (at which, as I have already mentioned, Dr Colman was represented by leading counsel) it was accepted that the heads of claim alleging negligence, harassment under the Protection from Harassment Act 1997, breach of the Medical Act 1983 and breach of the Human Rights Act 1998 were entirely defective. So that, as the hearing proceeded, it turned into a consideration of the Data Protection Act claim alone, as pleaded in the second draft amended particulars. In effect, the position was, although I have given further details of it in this judgment, that, as McCombe J said in paragraph 24 of his judgment:

"Even now, as will appear, Mr Nelson QC, who appeared for Dr Colman, and who was not the draftsman of the pleading, conceded that he could not properly pursue his application to amend in respect of four of the five heads of claim pleaded in the latest amended draft."

19. Concentrating therefore, as the judge had to do, on the claim under the Data Protection Act, two main breaches of the Act were alleged. The first was by reference to Mr Staple's inclusion in his report of passages from medical reports concerning a medical condition from which Dr Colman may or may not have been suffering at about the time she was struck off the GMC register all the way back in 1987. Those reports were voluntarily provided by Dr Colman to Mr Staple with the request that they should be put on the record. The second matter was some possibly late disclosure of information by the GMC in response to an access request made by Dr Colman in July 2001.
20. In respect of the first of those breaches, McCombe J said this (at paragraph 34):

"... it appears that at the time of Mr Staple's review, Dr Colman provided him with certain medical reports concerning her, extracts of which were ultimately quoted in his report. Mr Staple informed the GMC that Dr Colman had wished it to be on the record that she did not suffer from a particular health condition. The report from Mr Staple was, in the ordinary course, circulated to all Council members and a copy was given to the Charity Commissioners who had expressed an interest in the matter."

21. I would interpose here that the Charity Commissioners had become involved because they were concerned that Dr Colman's claim were "charity proceedings" for which she would need permission, either from the Charity Commissioners or from the court. I will give further details about that aspect of the matter in due course, because it concerns the other application for permission to appeal to which I will come.
22. In respect of this first alleged breach of the Data Protection Act, McCombe J found as follows:

"41. So far as the issue of Mr Staple is concerned, I agree with Mr Englehart [counsel on behalf of the GMC] again that it is fanciful to suggest that the inclusion in Mr Staple's report of passages from medical reports voluntarily given by Dr Colman to Mr Staple, with the request that it should be put on the record, could found any claim against the GMC. I can see no reason to think that any breach by Mr Staple is disclosed by such events, but still less do I see any breach by the Council members in receiving such a report addressed to themselves in the first place. I was shown no authority to suggest that mere receipt of such a report containing such material could constitute a breach of the Act. So far as the provision of a copy to the Charity Commissioners is concerned, that is nowhere relied upon in the draft pleading that has now been produced.

42. Again I cannot see that Dr Colman can hope to establish any relevant damage flowing from this alleged breach of the Act. None of the heads of damage was shown by Mr Nelson to be even arguably a result of the breach alleged. ...

43. Apart from the specific objections to the suggested cause of action, extricated with difficulty from a pleading that was accepted to be entirely defective in respect of four of the five claims, the claim which Mr Nelson seeks to maintain is wholly inadequately pleaded and wholly inadequately particularised. Even if there was any merit in the cause of action so extricated, which in my view there is not, I would have been inclined to refuse leave to adduce the amendment in such a form, with the bulk of it struck out. I would have taken that course simply on the basis that a pleading of that nature would be wholly unmanageable as a tool with which the parties and the court could work in resolving the dispute. In my discretion I would have refused permission to amend on that basis also, particularly as this draft is now the third attempt by Dr Colman to produce an acceptable statement of her case.

44. I would add that at several stages of his valiant argument, Mr Nelson was forced to acknowledge that the claim under the Act was inadequately particularised, both in respect of breach and damage. He submitted that the defects could be cured by recourse to requests for further information. With respect, the boot is on the other foot. Even in an initial pleading, a party should properly state his case with sufficient particularity for it to be clearly and properly understood. That remark applies even more so to a third attempt. It is wholly unacceptable to support a third draft of this nature by suggesting that requests for further information could resolve the deficiencies."

23. So far as the other breach complained of, late disclosure of information by the GMC in response to an Access Request made by Dr Colman in July 2001, McCombe J referred to that in these terms (at paragraph 33):

"In July 2001 Dr Colman made an Access Request to the GMC under the Act for all information held upon her. After a response in August 2001, Dr Colman complained to the Information Commissioner. In May 2002 the Commissioner concluded that the GMC were likely to have been in breach of the disclosure requirements under the Act by failing to disclose all the documents that Dr Colman could reasonably have requested. However, by 8 August, having noted the further disclosure given by the GMC, the Commissioner stated his view that the relevant obligations had been fulfilled and that no further action would be taken by him."

24. In the passages which I have already read from McCombe J's judgment, it is clear that the judge considered that there was no prospect at all of establishing any breach under the Data Protection Act in respect of either of these complaints. In addition, it is clear that the learned judge also considered that it was impossible to establish any damage.
25. Specifically as to the question of damage, the learned judge had pointed out by reference to section 13 of the Data Protection Act that a claim for distress could only lead to damages if the complainant also suffered damage by reason of the breach of the Act (see section 13(2)(a)). Although Dr Colman had pleaded that she had suffered pain as well as distress, the judge said as to that (at paragraph 39 of his judgment) that it was inconceivable that any breach of the Act could give rise to physical pain within the meaning of the draft pleading. He went on to say that there had plainly been no breaches of the Act in the respects alleged.
26. As for the rest, the judge pointed out that the draft pleading simply sought to particularise damage not by reference to real particulars of damage, but by a pleading which repeated the facts relied on as constituting the breach. In other words, the judge read the pleading as essentially saying "by reason of these matters of which I complain, I (Dr Colman) have suffered pain and distress". The judge concluded that distress by itself gave rise to no cause of action, and that as for pain it was inconceivable that these matters could have given rise to it.
27. As to that, on this application Dr Colman has challenged that particular aspect of the judge's judgment only by reference to a letter from one of her supporters on the GMC who says that she had been put under great personal pressure by these events, and, although she had no mental health problems, a weaker spirit would have collapsed under the strain.
28. It was common ground before the judge that if Dr Colman could not obtain permission to amend her particulars by reference to the draft before the judge, then the original particulars could not themselves stand and would have to be struck out, and that therefore the claim as a whole would be struck out. So the case turned upon the claim under the Data Protection Act by reference to the second draft particulars.
29. As for the test which the judge applied, he referred in his judgment to the authorities which showed that a court considering whether to give leave to amend pleadings should not give permission if there was no real prospect of the claim being made in the amendment succeeding. He reminded himself that that was essentially the same test to be found under both CPR 3.4(2) and CPR 24.2.
30. I come now to Dr Colman's grounds upon which she seeks permission to appeal against that judgment. Her essential point is that the judge failed to apply the proper test of a real prospect of success, and had instead illegitimately conducted a mini trial under which he had applied the ordinary standard of proof of the balance of probabilities and found Dr Colman's claim wanting on the evidence before him.
31. Dr Colman has properly put before me the numerous authorities in which the courts have repeatedly said -- for instance, Swain v Hillman and the Three Rivers case -- that that would be a wrong way of proceeding. I accept it would be a wrong way of proceeding, whether the judge (as he was) was considering an application for permission to amend or whether a judge was considering an application under CPR 3.4 or CPR 24.
32. In my judgment, however, it is quite plain that the judge was expressly adopting the test of a real prospect of success, which Dr Colman agrees and puts before me as the correct test, and that that was expressly so, not only from the paragraphs in which he considered the test to be applied, to which I have referred in general but to which I will refer by number now as being paragraphs 27 to 29 of his judgment, but also from those final passages from which I have read (paragraphs 39 and onwards), in which he repeatedly uses language which is referable only to the real prospect of success test and not to a balance of probabilities or trial test: language such as "inconceivable", "fanciful", "no reason", "cannot see that Dr Colman can hope" and "even arguably".
33. In my judgment, therefore, Dr Colman's first and main point on this application fails. The judge has not applied the wrong test. He has applied the test which Dr Colman says he ought to have applied.
34. I have already dealt with the question of damage.
35. Thirdly, in her skeleton argument Dr Colman submitted that the judge should have considered less draconian measures than striking out, such as giving her time or permission to make further amendments or to provide further evidence by way of further information, or indeed that the judge should have considered her first proposed amendment as well as her second. It seems to me that there is nothing in that aspect of her submissions. The judge was perfectly conscious of all three sets of particulars, even though the first draft amendment was not being relied upon in preference to the second. He was conscious, therefore, that Dr Colman had had three attempts to express her claim. He was entitled to feel that, having failed at the third attempt, her claim should be struck out. Indeed, as I have already said, it was effectively common ground that if Dr Colman could not make good her application to amend, then her original particulars were defective and would have to be struck out and therefore her claim essentially failed.
36. Fourthly, in her skeleton argument Dr Colman says that she should have been given the benefit of the doubt as a litigant in person. The court is, of course, always concerned about the difficulties that a litigant in person labours under, as I am concerned today. But nevertheless on that occasion Dr Colman was represented not merely by counsel but by leading counsel.
37. Fifthly, Dr Colman raised a number of miscellaneous reasons which she said were otherwise compelling reasons why she should be given leave to appeal. That was the other aspect of her application which she has stressed in her oral submissions to me this morning. In particular, she has complained that the judge in his judgment had referred to conclusions from Mr Staple's report. He had set out certain aspects so that "the flavour of the matter can be understood".
38. In this respect Dr Colman referred to the Three Rivers case, where the House of Lords had said that the report of Mr Bingham QC (as he then was) could not be regarded as conclusive in interlocutory proceedings concerned with the striking out of the claim in that case, in any event because they would not be admissible at any trial. She complains that, in effect, McCombe J had relied upon conclusions in Mr Staple's report for the purpose of coming to his conclusions.
39. In my judgment, however, the learned judge did no such thing. He referred to Mr Staple's report because it was part of the background of the case. Dr Colman's claim was in part a claim complaining about Mr Staple's report. It was therefore before the court, and indeed Dr Colman was seeking by her draft amendments to introduce Mr Staple, and the solicitors who had been assisting him and the General Medical Council, as defendants into the case. In any event, it is quite plain that in that part of his decision (from which I have read extensively) where the judge comes to his conclusions as to whether Dr Colman's draft amendments can pass muster or not, he was relying in no way at all upon Mr Staple's conclusions.
40. In her miscellaneous points under the heading of "Some other compelling reason", Dr Colman also referred me to the case of Merelie v Newcastle Primary Health Care Trust [2004] EWHC 2554 (QB), where a harassment claim was being considered and where there was evidence before the court that a certain party wanted revenge against the complainant in that case. It seems to me that the facts and conclusion in that case are of no assistance to me in this.
41. Finally, in her skeleton argument Dr Colman relied upon a procedural irregularity, in that she said she should have been entitled to a default judgment due to the delay in the GMC filing a defence. They never did file a defence before Dr Colman's claim was struck out.
42. It seems to me that there was no procedural irregularity there at all. Whether or not Dr Colman could have obtained a default judgment against the GMC is beside the point. She did not obtain a default judgment against the GMC. Even if she had obtained a default judgment against the GMC, it seems to me to be quite plain, from the merits of the matters discussed in McCombe J's judgment, that if the GMC had immediately sought relief against a default judgment they would have had every chance of obtaining it. As it is, it is not a question of default judgment at all. It a question under which for some considerable time Dr Colman's claim was under attack on the basis of inadequate and defective particularisation. In effect, the judge struck out the claim because there was no prospect at all of establishing any breach, no prospect at all of establishing any damage, and in any event the pleading was totally inadequate and defective.
43. I would therefore conclude that there is no real prospect of Dr Colman obtaining success on an appeal from McCombe J's judgment. For these reasons, I would dismiss application 2416, or what I have called the merits application.
44. I turn therefore to Dr Colman's second application, the 2748 application or what I have called the procedural application. This is a slightly complex procedural matter which arises out of the intervention of the Charity Commissioners to which I have previously briefly alluded, because of their concern that Dr Colman's claim against the GMC was charity proceedings requiring either their or the court's consent.
45. The Charity Commissioners raised that issue originally by their letter to Dr Colman of 29th January 2003. By a further letter of 12th March 2003, the Commissioners clarified their position, saying that at any rate the negligence claim was charity proceedings requiring their consent which they refused. Following that notification, the GMC were first in the field on 16th April 2003 with their application to stay the proceedings. Dr Colman was second in the field, a week and a bit later on 25th April 2003, with her application for a stay, but limited to two months only. On 30th April 2003 Master Foster, in effect, accepted Dr Colman's version of what should happen by ordering a stay, with liberty to apply on or after 1st July 2003 to lift the stay.
46. On 30th June 2003 the Charity Commissioners refused again their permission to Dr Colman to bring her claim. As a result, on the next day, as soon as she was able to do so under Master Foster's order, Dr Colman issued an application to lift the stay, but she did not serve it at that time. Instead, and no doubt it was because she had this in mind that she did not at that time serve her application to lift the stay, she issued a further application on 18th July 2003 asking the court's leave to bring her proceedings under section 33(5) of the Charities Act 1993. This was on the basis, no doubt, that the Commissioners were right to say that charity proceedings were involved, but wrong to decline their own permission and so Dr Colman was going to the court, as she was entitled to do in such a case, to ask the court for its permission. That application came before Hart J in the Chancery Division on 1st October 2003, when he held that the proceedings were not charity proceedings, the Commissioners were wrong about that, and therefore there was no need of his permission under section 33(5) at all.
47. Today Dr Colman has submitted to me, and I will assume she has submitted correctly to me (I think she has relied upon something said by Collins J in some other hearing before him as the basis for saying this), that it did not need Hart J to say, on the occasion when he did, that these were not charity proceedings. Any judge could have said that. The Master could have said that on any occasion. I will assume that that is the case. But the fact is that that is the way in which these proceedings have gone. Dr Colman issued her application in the Chancery proceedings. The matter was left to and brought before Hart J and he ruled as I have described in his judgment of 1st October 2003.
48. That therefore was the catalyst for Dr Colman to serve her application to lift the stay of her claim proceedings. Therefore, on 6th October 2003 she served her application of 1st July 2003 to lift the stay in the light of Hart J's judgment. She served that application on the GMC, together with four files and notice of Hart J's decision, although not a copy of a transcript of his judgment because at that time she did not have it.
49. The GMC's response to that application was that they needed more time. The application was served (I will assume, entirely correctly) with seven days notice for a hearing on 13th October 2003, and therefore it could not be said that Dr Colman's notice gave short service, but nevertheless the GMC said they needed more time. A lot of evidence had been served upon them. They had not yet seen a copy of Hart J's judgment. When the parties came before Master Foster on 13th October, there was a debate as to whether the Master should proceed immediately, as Dr Colman wished him to do, to lift the stay of her claim or whether, as the GMC asked him to do, he adjourned Dr Colman's application so that they had time or, it might fairly be said, more time for them to consider Hart J's judgment and the other material which had been served upon them.
50. I quite accept that the GMC had seven days' notice, and it may well be that there is some force in Dr Colman's submission to me this morning that that should have been enough, in light of the fact that seven days is the length of time which the rules of court set down for the service of such an application. But the issue is really whether it was enough, not whether it ought to have been enough by the rules of court, but whether in the particular circumstances and facts of this case it was enough. That issue was debated before Master Foster, and he agreed on that occasion with the GMC's submissions rather than with Dr Colman's. I am in no position whatsoever to say that Master Foster was wrong.
51. With those comments, let me continue with my chronology about this point. Following that adjournment, the GMC got down to the work of considering what they had to consider and in the light of that they consented to the lifting of the stay of Dr Colman's proceedings and that stay was removed by consent on 30th October 2003.
52. However, the General Medical Council wanted to have their costs of being brought to court on 13th October 2003 when they had succeeded in obtaining an adjournment from the court. For her part, Dr Colman was not willing to pay them their costs and was insistent that they should pay her her costs of the adjournment. It may be, I do not know, that they should have come to an agreement about that but they obviously could not come to an agreement, to say for instance that the matter of costs should lie where it stood. But at any rate they were at odds about that and so it was necessary for them to come before Master Foster again on 14th November 2003 for him to decide that issue, which he did to Dr Colman's obvious regret against her. He ordered, therefore, that she should pay both the costs of the 13th October hearing, which was his decision, and the costs of 14th November hearing because she had lost on the issue which had brought the parties to court on that day.
53. Following Master Foster's order of 14th November 2003, Dr Colman applied for permission to appeal that order on 28th November 2003. But for some reason which is not clear to me on the papers, that application for permission to appeal did not come before the court for over a year until 14th December 2004.
54. In the meantime, but only as late as 9th December 2004 -- that is to say, well over a year after the relevant orders in question -- Dr Colman added to her November 2003 application for permission to appeal against Master Foster's order that she pay the costs which he made on 14th November 2003, a further notice of appeal under which she requested permission to appeal against both the merits of the order for a stay, which Master Foster had made way back on 30th April 2003, and also against Master Foster's decision to adjourn Dr Colman's application of 1st July served on 6th October and dealt with on 13th October 2003 by ordering an adjournment.
55. As it seems to me, Dr Colman sought those further permissions to appeal and filed that further notice of appeal on 9th December 2004 probably because she realised as she approached the hearing a few days later, before as it turned out Gray J, of her application to appeal the costs order of 14th November 2003, that she would be assisted if she could, as it were, undermine the GMC's position by attacking at root the merits of the judge's order for a stay in the first place and the judge's order for an adjournment in the second place.
56. In the light of that further notice of appeal of 9th December 2004, Dr Colman applied to Gray J on 14th December 2004 to adjourn his hearing of her application for permission to appeal against the costs order of 14th November 2003. She was not well on that day and she had to make her application by telephone, which was no doubt not the most convenient way of making the application. I take that into account, and no doubt that form of making the application created difficulties for the judge as well as for Dr Colman. At any rate, that was what happened on that day.
57. In his judgment the judge clearly thought that this very belated attempt to raise a new appeal by reference to the background to the costs order of 14th November 2003 was not a suitable ground for adjourning the matter that was before him, no doubt because the whole matter was so long out of time. I think implicitly, as I read his judgment, rather than explicitly, he refused the adjournment and went on to consider the merits of the application for permission to appeal against the costs order.
58. The essential point that Dr Colman has made before me today was that seven days' notice of the hearing of 13th October 2003 was quite sufficient and was justified on the rules. I have already given my reasons for saying that, although that may be the rule, the matter in every case would have to be judged on the particular facts of the case, and that it would be almost impossible for another court to gainsay Master Foster's view of the matter as it seemed to him on that day on the question of an adjournment.
59. In fact the matter goes well beyond that, because if Dr Colman was going to appeal against the merits of Master Foster's order of 13th October 2003 of an adjournment, she should have done so within 14 days. But she did not do so within 14 days. She did not do so for well over the year, until 9th December 2004. No adequate explanation for that delay has been given, other than that she is a litigant in person. I regret to say that that is not an adequate reason. She was quite conscious (see her application against the costs order, the notice of appeal that she filed on 28th November 2003) and quite alive to the importance of timely filings of notices of appeal against orders which were not to her liking.
60. Of course the matter becomes even stronger when one considers that the underlying matter was the stay which was ordered on 30th April 2003, and that was in effect a stay which was made by consent, and there was no attempt to say that the judge was wrong to order that stay for well over 18 months, from 13th April 2003 until 9th December 2004. So, in my judgment, it is quite hopeless for Dr Colman to have sought an adjournment from Gray J on the basis of the filing of her new notice of appeal on 9th December 2004.
61. In my judgment, Gray J was plainly right not to adjourn the hearing before him on 14th December 2004 on that basis. He considered whether he should do so. He decided that he should not do so. Even though I think his ultimate decision not to adjourn is not expressed absolutely clearly, it seems to me that his instinct and implicit decision not to adjourn was absolutely right, and there can be no question about that at all which has any prospect on appeal.
62. So one proceeds to Gray J's decision as to the renewed permission to appeal from the costs order of 14th November 2003. There I have to say -- and Dr Colman has hardly sought to persuade me otherwise -- that Master Foster's order of 14th November 2003 was really, to my mind, plainly unappealable for the reasons given by Master Foster and which Gray J referred to himself, namely that the delay and the costs were essentially, as Master Foster had seen it and Gray J agreed, all Dr Colman's fault and that it was ultimately a matter of Master Foster's discretion.
63. I am anxious not to add to the length of this judgment, but I would refer to paragraphs 7 to 12 of Master Foster's judgment of 14th November 2003, in which he considers carefully and fully the reasons why he considered that, despite the notice that the GMC had been given, they were entitled to more time to consider Dr Colman's application, and therefore were entitled to the adjournment for which they had applied and which Dr Colman was unwilling to give them. As things turned out, of course, as we know, once they had considered the material, they were perfectly willing to consent to a lifting of the stay. So a dispute about that matter was ultimately unnecessary.
64. In his judgment, Gray J refers to those reasons of Master Foster at paragraphs 5 and 6 of his judgment. It seems to me that Gray J was unavoidably right to say that there could be no prospect of any successful appeal from the findings of Master Foster about the rights and wrongs of those particular hearings, or the exercise in his discretion at the first hearing to adjourn it and at the second hearing to award the costs of both hearings one way rather than the other.
65. Therefore, for those reasons, I myself can see no real prospect of success on an appeal or any other compelling reason why there should be an appeal. Therefore, for these reasons, I am compelled to dismiss this second application as well.
66. I would close by saying again that I perfectly understand Dr Colman's strong feelings about the ultimate merits of her unsuccessful claim, and also again to commend her on the very helpful way in which she has prepared the documents for me today and made her submissions to me today.

ORDER: Application for permission to appeal refused; a copy of the judgment to be supplied to the applicant at public expense.

(Order not part of approved judgment)