England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
THE HON MR JUSTICE HOLROYDE
[2017] EWHC 2038 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/08/17

Lord Justice Hickinbottom :

1. The Applicant Roderick Ewan Irvine seeks to appeal the Order of Holroyde J dated 14 August 2017 dismissing his appeal against (i) various findings of a panel of the Medical Practitioners Tribunal ("the Tribunal") in a determination dated 6 December 2016, including a finding of impairment of fitness to practise by reason of misconduct due to dishonesty; and (ii) the sanction of erasure from the register imposed by the Tribunal in a determination dated 21 December 2016.
2. Later on the day of the hearing before Holroyde J, on a without notice out-of-hours application by the Applicant, Beatson LJ ordered that "the terms of the injunction granted by Jeremy Baker J on 16 January 2017" be continued until 17 August 2017, when he expected the application for permission to appeal to be considered at an oral hearing. He also directed that the Applicant file and serve an appellant's notice and skeleton argument, and that the application for permission to appeal be heard on notice. The following day, on papers which had by then been lodged by the Applicant, Beatson LJ gave further directions, setting down the oral hearing for today rather than 17 August, and extending the "injunction" until the new hearing date.
3. There are now before the court three formal applications, namely (i) an application for permission to appeal, (ii) an application for a stay pending the outcome of the appeal and (iii) an application based upon an alleged contempt of court by the Respondent ("the GMC") for breaching the Order of Jeremy Baker J as extended in time by Beatson LJ by erasing the Applicant's name from the register immediately following the hearing before Holroyde J at which he dismissed his appeal. There are issues as to whether there has indeed been a breach – Mr Mant for the GMC not only denies any breach, but submits that the erasure resulted from the dismissal of the appeal as a result of statutory provision which was unaffected by the Orders of Beatson LJ – but, in any event, Mr Stockinger today has said that the Applicant does not seek any relief in respect of any past breach. The Applicant simply wishes to have a positive order from this court allowing him to continue to practise in the National Health Service ("the NHS"), pending the full appeal, if he is successful in obtaining permission to appeal. It can therefore be considered together with the application for a stay, if and when necessary.
4. The application for permission must be considered first. This is a second appeal (see Clark (Inspector of Taxes) v Perks [2001] 1 WLR 17 at [13]); so that the provisions of CPR rule 52.7 apply. Permission can only be granted if the appeal would both have a real prospect of success and raise an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it.
5. There is no doubt that the issues raised before the Tribunal and then Holroyde J, and their conclusions, are important. They are clearly important to the Applicant, who is an experienced medical practitioner in obstetrics and gynaecology, and a consultant since 2002. The findings of the Tribunal, upheld by the court below, include findings of dishonesty against him. Erasure from the record would mean that he would be unable to continue to practice. They are also important because, if the allegations against the Applicant are made good, that may have a significant impact upon his fitness to practice medicine; and so there is a considerable public interest involved too.
6. These important issues have occupied much time and effort. The hearing before the Tribunal occupied 46 sitting days, and involved 66 factual allegations. There were 23 grounds of appeal before Holroyde J. His judgment extended to nearly a hundred paragraphs. The grounds of appeal to this court are no less than 28 in number, and they are accompanied by a skeleton argument of 137 paragraphs and many pages of supporting documents.
7. And yet, the essence of the allegations against the Applicant is simple. To practise, a doctor must have indemnity cover. Outside the NHS, cover is obtained by joining one of the medical defence organisations, such as the Medical Protection Society ("the MPS") or the Medical Defence Union ("the MDU"). The Applicant had a substantial private practice. It is said, and the Tribunal found, that he was not a member of such an organisation for the period 1 October 2007 and 23 February 2012, and he was dishonestly aware that, as result, he was not insured for the work he did privately. The Applicant's primary contention is that he had insurance at all times, notably with the MPS for the period 2007-10. He also says that, insofar as he did not have insurance for any period, he was unaware of that fact; and was certainly not dishonest in any way at any time.
8. I can deal with the background facts shortly. Until he became a consultant, the Applicant was a member of the MDU. In 2002, he changed allegiance to the MPS. He produced to the Tribunal MPS membership certificates for the five years to 30 September 2007, during which period his annual subscription rose from £665 to £19,135. The Applicant paid the MPS by direct debit; but, the Tribunal found, that means of payment became inactive by 2007. The last payment was on 20 December 2006. It seems that the direct debit was not revoked, and the Applicant did nothing to prevent the MPS drawing on it. However, there was evidence that, on 21 May 2007, the MPS wrote to the Applicant informing him that his membership had been terminated for non-payment of his subscription; but no copy of that letter can be found and, before the Tribunal, whilst not denying he received it, the Applicant said he could not remember seeing it.
9. In October 2009, Ms A, a former patient of the Applicant, commenced a claim for damages against him for alleged professional negligence in respect of treatment in 2006. He sent the papers to the MPS; but apparently they did not deal with the claim. In March 2010, Ms X obtained judgment in default, which a later application by the Applicant failed to set aside. In correspondence with the MPS, the Applicant demonstrated that he had made subscription payments to the MPS to December 2006; and so, he said, he was covered by their insurance in respect of Ms A's claim. In a letter to the MPS dated 12 December 2010, he confirmed unequivocally that his indemnity with the MPS ended in January 2007.
10. As a result of all of that, in late 2010, he applied for membership of the MDU. In his application form, he did not insert dates of his membership of the MPS in the space for that information; and he indicated that he knew of no claims or complaints that had been brought against him, and that no medical defence organisation had refused or terminated his membership. The form itself made clear that completion of the form did not constitute acceptance of the application by the MDU. The Applicant confirmed to the MDU by telephone that all his work since 2005 had been indemnified by the NHS and he had done no other work. In the form, he indicated that he would pay by direct debit, but no direct debit mandate was completed or, at least, drawn on. In any event, on 25 January 2011, the MDU cancelled his application, because of non-payment of the subscription; and they wrote to him to that effect. It is uncontroversial that he received that letter.
11. He made another application to the MDU in early 2012, which was accepted on 27 April 2012 subject to payment of the annual subscription of £23,923. He provided a bank mandate to them on 30 April 2012. His cover with the MDU was effective from 23 February 2012.
12. Professional action against the Applicant was triggered in March 2011, when Ms X reported him to the GMC as his professional body, complaining about his lack of insurance to meet her claim, which had resulted in delay in her being compensated. That resulted in an inquiry, and the allegations made against him based upon the proposition that he did not have indemnity cover, not in 2006 when he treated Ms X, but from 2007.
13. In respect of the primary factual issue as to whether the Applicant was a member of a medical defence organisation from 2007 to 2012, Holroyde J summarised the Tribunal's findings (at paragraphs 67-74 of their determination) at [38]-[40] of his judgment. By way of explanation, I should say that Mr Cardno is an employee of the MDU, who gave evidence to the Tribunal.

"38. … They [i.e. the Tribunal] accepted that on 21 May 2007 MPS wrote to [the Applicant] informing him that his membership had been terminated for non-payment of his subscription. They accepted [the Applicant's] evidence that MPS had acted in error, because he had not cancelled his direct debit. Partly for that reason, and partly because the precise terms of the letter of 21 May 2007 were not available, the Tribunal did not accept the argument that the effect of that letter was to cancel [the Applicant's] membership with retrospective effect as from December 2005. The Tribunal were however satisfied that the letter had conveyed to [the Applicant] that MPS no longer regarded him as a member; that MPS was under no obligation to continue his membership after the then-current certificate of membership expired on 30 September 2007; and that no further payments were made after a payment taken by direct debit on 20 December 2006. They therefore concluded that [the Applicant] did not have insurance as a member of MPS after 30 September 2007.

39. [The Applicant's] evidence was that he sent a completed direct debit mandate when he applied for membership of MDU. The Tribunal however accepted Mr Cardno's evidence that no such mandate was received at MDU. Having made that finding, the Tribunal at paragraph 76 found –

'You were sent a chaser letter on 17 January 2011 and a further letter on 25 January 2011 stating that your application for membership was cancelled. No actual payment was ever made and no certificate of membership was issued to or received by you. In the Tribunal's judgment you never became a member of the MDU at this period. Mr Cardno confirmed that in January 2012 you again enquired about joining the MDU: this application was successful and you became a member on 24 February 2002.

77. Accordingly, the Tribunal rejects Mr Stockinger's argument that the MDU was obliged to indemnify you in relation to any period before February 2012'.

40. The effect of those findings, clearly, was that the Tribunal found that Mr Irvine had no insurance in respect of his private practice between 1 October 2007 and 23 February 2012."

14. It is worth noting from this that the Tribunal found as a fact that (i) no subscription payment had been made by the Applicant to the MPS after a payment made by direct debit on 20 December 2016; (ii) on 21 May 2017, the MPS sent the Applicant a letter clearly indicating that his membership with them was being treated as having ceased, and the Applicant had received that letter and had understood from it that that was the case; and (iii) the Applicant consequently did not have insurance after 30 September 2007 when the last certified period ended.
15. Holroyde J dealt with the issue of insurance coverage at [74] of his judgment:

"I therefore turn to the important issue of whether the Tribunal were wrong to find that Mr Irvine was not covered by adequate insurance during the period 2007-2012. It is in my judgment entirely clear that they were not wrong so to find. The evidence pointed overwhelmingly to the simple conclusion that insurance with MPS ended in 2007 and insurance with MDU did not begin until 2012, and the Tribunal were undoubtedly entitled to make the findings they did."

In the immediately following paragraphs, with patent care, the judge dealt with Mr Stockinger's particular submissions on the facts, concluding that none drove him to a different conclusion.

16. In respect of whether the Applicant had been dishonest, the judge summarised the Tribunal's reasoning in paragraphs 109-119 of their decision, in [42] of his judgment. I need not repeat that here. Later in his judgment, Holroyde J dealt with the issue of dishonesty. I should say that Mr Harris is the Executive Director of Blackheath Hospital, one of the hospitals where the Applicant had worked with private patients.

"82. As to impairment/dishonesty, I see no error on the part of the Tribunal in their application of the Ghosh test. The correspondence to which I have referred fully justified the Tribunal's finding that [the Applicant] had not merely been slipshod in dealing with paperwork but had been dishonest. Mr Harris began making requests for documentary evidence of insurance in mid-2010, at a time when [the Applicant] knew that he had not been insured with MPS since 2007…, and knew that he had not yet even applied to MDU. He knew that he could not provide the evidence which [the Applicant] needed, because, as he later stated in his letter to the CEO of the Lister Hospital...: 'I can confirm that 2008-2010 I did not have indemnity'. There was in those circumstances an overwhelming inference, which the Tribunal were entitled and correct to draw, that [the Applicant] had not simply overlooked Mr Harris' repeated requests, but was making a determined effort to avoid having to respond to them. The fact that [the Applicant] nonetheless continued to book patients in for treatment at the Blackheath Hospital and elsewhere suggests a worrying attitude to his professional obligation. That attitude was one of the factors amply justifying the Tribunal's decisions as to impairment and sanction. When [the Applicant] belatedly did supply a document to Mr Harris, it was MDU's letter of 9 December 2010 which said in terms that it was not confirmation of membership. Mr Stockinger submitted that by sending a copy of that letter, [the Applicant] was merely providing such documentary evidence as he had received from MDU, and leaving it to the hospital to assess the sufficiency of that evidence. I reject that argument as disingenuous. [The Applicant's] covering letter asserted that he was 'fully covered' when that was not the case. In my view, Mr Harris' acceptance of MDU's letter as proof of cover – mistaken though it was – is an indication of the trust placed in [the Applicant] by the hospitals at which he held practising privileges. The breach of that trust was one of the factors which the Tribunal were entitled to consider in making their decisions as to impairment and sanction.

…

85. … Moreover, the Tribunal were entitled, and in my view correct, to take the view that the correspondence and application forms which I have quoted did show the pattern of inaccurate, disingenuous and untruthful statements which Mr Mant [on behalf of the GMC] suggested…".

17. Finally, in respect of sanction, the judge set out the Tribunal's reasons for considering that nothing less than erasure would be appropriate, and, at [84], found that those reasons were unassailable.
18. In this court, most of the 28 grounds of appeal are focused on the factual findings of the Tribunal and, in his turn, Holroyde J. I pause to note that the judge clearly understood his role on appeal from the Tribunal (see [14]-[15] of his judgment). The appeal before him was by way of rehearing, but rehearing which does not involve the hearing again of the evidence; and, in the absence of any serious procedural irregularity – not alleged here – the Tribunal merely has to consider whether the Tribunal decision was "wrong" (CPR rule 52.21(3)). Given that the Tribunal heard all the evidence, over many days, unless their approach was wrong, their findings of fact are "virtually unassailable", particularly if founded on an assessment of the credibility of witnesses (Southall v General Medical Council [2010] EWCA Civ 407 at [47]).
19. The grounds of appeal to this court are, I regret to say, too numerous and too lengthy. Some are, to be as polite as I can, at best, peripheral. For example, as Ground 1, it is submitted that the judge erred in recording in [70] of his judgment that "it is common ground that if [the Applicant] had been a member of one of the professional organisations during the relevant period, the GMC would have accepted his membership as providing adequate insurance for his private practice". Despite some concerns expressed by Mr Stockinger about the manner in which the MPS dealt with Ms A's claim, that proposition was, or should have been, entirely uncontroversial. Raising it in this court certainly does not contribute to any argument as to the prospect of this court upsetting the Order of Holroyde J on appeal. Other grounds fly in the face of the evidence. For example, Ground 19 is to the effect that the judge erred in finding that the tribunal were entitled to reject the Applicant's evidence that he did not notice that "significant monthly sums" were no longer being taken from his bank account for MPS subscription payments, because the annual premium of hundreds of pounds was not replaced with a much higher sum until 2010. However, the annual subscription certificate for 2006-7 (which the Applicant accepts he received, if not by 1 October 2006, in 2017) was in the sum of £19,135.
20. I need not go through the grounds seriatim. I can best deal with them by considering five matters upon which they focus.
21. First, Grounds 7-13, 18 and 19 are based upon the proposition that Holroyde J erred in supporting the Tribunal's finding that the Applicant did not have cover after 2007. Before me, Mr Stockinger conceded that the indemnity contracts with the medical defence organisations were annual. That concession was properly made. However, he submitted that, once having been accepted by one of the organisations, the annual membership and indemnity contract continued on a rolling basis, automatically renewing year-by-year, so long as the member tendered payment and the organisation did not terminate the arrangement by notice. Here, the Applicant did tender payment: his direct debit was never revoked, and the MPS could have drawn down subscriptions on it at any time. His account was always in credit. The Applicant could do no more to effect a direct debit payment. And, whilst failing properly to deal with Ms A's claim, the MPS never indicated to the Applicant that they were no longer covering him, until 2010 when it became apparent from the fact that she had entered judgment against the Applicant in default that they were not dealing with Ms A and not covering the Applicant. Alternatively, it is said that, if the contract did not automatically renew as a matter of law, the Applicant was reasonably entitled to believe that it had and that he was thus covered until October 2010.
22. Holroyde J dealt with those arguments, also made to him, in [77]-[79] of his judgment. He found them to be wanting. He found that, as a matter of law, each renewal was a new contract, limited in time to one year; and the Tribunal were entitled to find that the last contract was to 2007.
23. The judge was unarguably entitled to – and, in my view, probably bound to – conclude as he did, for the reasons he gave. The fact that the contracts were annual is no longer in issue. It is also not sensibly arguable that the Tribunal were not entitled to find on the evidence that the MPS brought that contractual arrangement to an end by their letter of 21 May 2007. Mr Stockinger complains that the evidence in respect of that letter is less than optimal: for example, a copy had not survived, there was no MPS witness called to give evidence and the Applicant said he could not recall seeing it at the time. However, there was a statement from an MPS employee to the effect that such a letter had been sent; and, on all the evidence, the Tribunal were entitled to conclude it had both been sent by the MPS and received by the Applicant.
24. In addition, as Mr Mant submitted:

i) The Applicant had, by 2010, himself accepted in correspondence with the MPS that his contract with them ended in 2007, a concession he repeated to the Interim Orders Tribunal. In 2013, he confirmed to a hospital that he had no insurance from 2008-10.

ii) Although no renewal documents are now available, if there had been renewals of the MPS insurance contract, these could not have occurred without the MPS sending out a renewal notice each year. There is no evidence that any such documents were sent. The Applicant appears to accept that there are no certificates for those years.

iii) Importantly, on the evidence, the Tribunal were entitled to find that the Applicant made no subscription payments to the MPS after December 2006; and that the Applicant knew that he was not paying any subscriptions because they were so large and, if paid, would have featured in his bank statements and, indeed, in his tax returns as expenses. The Applicant accepts that, by 2007, he was knew the MPS subscription/premium was nearly £20,000, as set out in the 2006-7 certificate that was sent to him. It is therefore not correct to say, as Ground 3 says, that the "MPS gave no indication to [the Applicant] that they were not insuring him… This led [the Applicant] to believe that he was insured…". On the findings of fact made, the MPS gave a clear indication that they were not insuring the Applicant by, to his knowledge, not taking or requesting any subscription or premium. The suggestion that the Applicant was under the belief that he was covered by an indemnity from the MPS in the absence of paying any subscription or premium is, at best, disingenuous. It was not open to the Applicant, knowing that payments were not being collected, merely to continue working in the belief that either he was not covered by insurance (as the Tribunal concluded) or that he was obtaining cover for nothing (as Mr Stockinger suggested). The contention made in both Grounds 3 and 15 that the MPS are estopped from denying that they were insuring the Applicant from 2007 to October 2010 is legally hopeless.

25. Therefore, in respect of the factual finding by the Tribunal that there was no MPS cover from 2007, the judge made no arguable error in approach or conclusion.
26. Nor is there any force in the submission that, even if there had been no cover in fact, the Applicant reasonably considered that there was. Of course, as Mr Stockinger submitted, some of the evidence relied upon by the GMC to show that there was in fact no cover after 2007 (e.g. the Applicant's own assertions in 2010) does not directly support the different proposition that the Applicant knew of that absence at the time. However, the Tribunal and (as I have described) Holroyde J both considered that the Applicant must have known there was no cover. On the evidence (including the 21 May 2007 letter, and the evidence that he was aware that he was not paying any premium), they were fully entitled to make that finding as to his knowledge and understanding.
27. The second matter covered by the grounds of appeal is an argument that is alternative to the contention that there was indemnity cover. It is a short point. It is said that the judge erred in not accepting that the Applicant was adequately "covered" in respect of professional claim, because, irrespective of an indemnity, he had realisable assets which could be used to satisfy professional claims (Ground 20). That submission has no merit. The relevant obligation was, at the relevant time, found in the GMC guidance "Good Medical Practice". That guidance made clear that, where the term "You must…" was used, that was an "overriding duty" of a doctor. Paragraph 34 provided:

"You must take out adequate insurance or professional indemnity cover for any part of your practice not covered by an employer's indemnity scheme, in your patients' interests as well as your own."

The obligation was thus to take out insurance, not simply to have sufficient assets to cover any likely claim.

28. The third area of focus of the grounds concerns the relevance of Ms A's claim. It related to a period before, and thus outside, that which formed the GMC's case against the Applicant. The judge found that the issue of whether the MPS were entitled to refuse cover for the claim was not directly relevant; and, whilst it may have been of theoretical relevance as to the Applicant's knowledge and understanding of whether he was covered by the MPS or not, it was not in fact material to that issue because the Tribunal both found, on other evidence, that he was aware that he had no cover, a finding with which the judge agreed. I have already dealt with that issue. Evidence concerning how the MPS handled Ms A's claim clearly could have had no material bearing upon it, because the Tribunal and judge were both satisfied that the Applicant must have been aware that he was not paying a subscription to the MPS from other evidence such as the 21 May 2007 letter and the fact (as they found it to be) that he knew he was not paying any premium.
29. Fourth, Mr Stockinger submits that the judge erred in upholding the tribunal's finding that the Applicant had been dishonest (see Grounds 6, 16-17, 21-22 and 26). Dishonesty can, usually, only be inferred from the actions of a perpetrator. In [82], which I have already quoted (paragraph 16 above), the judge set out the evidence upon which, like the Tribunal, he considered dishonesty was an overwhelming inference. Furthermore, in [85] (also quoted in paragraph 16 above), the judge held that the Tribunal were entitled to take the view that the documents and other evidence showed a "pattern of inaccurate, disingenuous and untruthful statements" by the Applicant, a finding with which he agreed. The Tribunal and judge were entitled to draw that conclusion. It is not one with which I could properly disagree.
30. I understand that the Applicant does not accept these findings of dishonesty; but there is no arguable legal error in the judge's approach, or in his conclusion. On the facts as found, the inference that the Applicant had been dishonest was, indeed, overwhelming.
31. Fifth and finally, it is said that the sanction of erasure was wrong in law, as being disproportionate and contrary to authorities such as Bijl v General Medical Council [2001] UKPC 42 (Grounds 23-25, and 27). However, it is well-established that, as a professional disciplinary tribunal, the views of the Tribunal on sanction are worthy of particular respect, because it is a matter that peculiarly requires the exercise of professional judgment which Parliament has assigned to the Tribunal. The court is therefore slow to interfere with a sanction imposed by a Tribunal panel, and will do so only where the panel's decision is "clearly inappropriate" (see Cheatle v General Medical Council [2009] EWHC 645 (Admin) at [15] and [35]).
32. In this case, the judge applied well-established principles and concluded that erasure was warranted. Given the findings of dishonesty, which the Applicant still refuses to accept, and the risk of further misconduct as found by the Tribunal, that conclusion was perhaps unsurprising. It is certainly unimpeachable. Bijl is of no assistance to the Applicant's cause, being easily distinguishable on its facts (see Holroyde J's judgment at [85]).
33. I have focused on the merits of the grounds of appeal. I have covered the main propositions upon which they rely. I have specifically covered most individual grounds. I have considered them all, and with particular care. Having done so, I do not consider any of the grounds stands any real prospect of success. The application for permission to appeal therefore fails at the first hurdle; although I should say that none would arguably satisfy the second hurdle (general importance) either. There is no possible compelling reason why the Court of Appeal should otherwise entertain the appeal.
34. For those reasons, I refuse permission to appeal on all grounds. As a result, it is unnecessary for me to consider the other two applications before me: they are swept away with the refusal of permission. I should only add that, although I have not heard full argument on the contempt application, nothing I have seen on the issue has persuaded me that the GMC committed any breach of the Orders of either Jeremy Baker J or Beatson LJ.
35. Each of the Applicant's applications is refused.