QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
|- and -
|The General Dental Council
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Neil GARNHAM Q.C. (instructed by Capsticks, Solicitors) for the Defendants
Crown Copyright ©
Mr Justice Collins:
"(i) he has been trained in the United Kingdom in the appropriate speciality and that having complied with the requirements relating to training in that speciality current in the United Kingdom at the time he undertook it;
(ii) he has qualifications awarded in the United Kingdom in such a speciality that are equivalent to a CCST in that speciality'; or
(iii) he has acquired experience in that speciality which has given him a level of expertise he might reasonably be expected to have attained if he had a CCST in that speciality".
A CCST is a certificate of Completion of Specialist Training in Orthodontics.
"A person shall not act as … member of an appeal panel if that person …
(c) is a Fellow of a medical or surgical Royal College … who holds the prescribed distinctive title in the same branch of dentistry in which the appellant has received specialist dental training".
This provision, which although not directly applicable where as here the appellant has received no specialist training in orthodontics, was applied and meant that the appeal panel contained no specialist orthodontist. This seems somewhat curious since one might have expected that at least one of the members should indeed have specialist knowledge. I was told that the reason behind it was to avoid any suggestion that established orthodontists could achieve specialist listing on the basis of some sort of favouritism from fellow orthodontists.
"1. I enclose the Curriculum Vitae on which I rely in support of my application.
Your CV might include details of the following: relevant clinical practice; teaching experience; continuing professional education (including any overseas courses); professional standing.
2. I enclose original documentary evidence of my experience on which I rely in support of my application.
This original documentary evidence might include structured references from consultants, referring practitioners and colleagues; abstracts of referred publications; logs of treatments undertaken; course materials written by you from courses you have led; materials relating to congress and seminars you have attended.
3. I enclose original documentary evidence of any supervised training on which I rely in support of my application.
This might include training by books; course prospectuses and syllabuses; evidence of successful completion of training programmes; names and qualifications of training supervisors".
There is a footnote which applies to all the boxes and which reads: -
"These are suggestions for the sort of material that ought to accompany your application, if the material is relevant to the speciality and you want it to be taken into account in the assessment process. These suggestions are indicative, not prescriptive, and the lists of material suggested are not exhaustive".
"These three elements – training qualifications and experience – cannot be aggregated to satisfy the required standard but must be considered separately. Any one element may therefore in itself be sufficient to satisfy the requirement.
In assessing experience, the critical factor will be the expertise acquired. Indicators of such expertise may include scope of practice and the source and type of referrals, professional publications and involvement in continuing professional education and professional standing in the dental community. Training or qualifications which are not in themselves of a level to satisfy the requirements of (i) or (ii) above [i.e. training or qualifications] may be useful indicators of expertise, for the purpose of assessing an applicant's experience".
I think there is some confusion in this. The regulation requires that the applicant in question has acquired experience which has given him or her a particular level of expertise. The expertise must result from the experience, not the other way round, but it is in my view apparent that experience, as I have said, can include experience obtained in any relevant way, whether by obtaining qualifications or undergoing training or practising as an orthodontist. In that sense, there can be a form of aggregation.
"I write to confirm that Mark Lynch … works as an orthodontist for Whitecross Dental Care and has done so for three years".
The claimant, submits Mr. Havers Q.C., was entitled to assume that he had gone about things in the correct way because of the notes of guidance on the form. Nowhere was it suggested that any more detail was needed. The claimant reasonably believed, it is said, that his record spoke for itself and should have been sufficient to entitle him to succeed in his application.
"I believe I am deserving to be included on the Orthodontic Register because of a number of reasons. I outline these below:
Accept referrals from our wide network of Whitecross practices across Greater London
33 Whitecross practices, with the majority in London (25 practices in Greater London)
Nearly 200 dentists work with the Whitecross Group.
I have been Whitecross Dental care's nominated orthodontic practitioner since April 1997.
I have been practising Orthodontics since 1989.
Whitecross Dental Care has now merged with Integrated Dental Holdings who have over 130 practices with over 1,000 dentists.
I have enclosed evidence of many practitioners' referrals coming to me.
Treat nearly 1000 cases per year.
Treat NHS and private patients".
The appeal hearing was held on 30 October 2001. The chairman was a retired circuit judge, His Honour Ronald Howe, and the other members were Dr. Margaret Hunter, a clinical Senior Lecturer and honorary consultant in paediatric dentistry and Professor Martin Addy, Professor of Periodontology and Head of Applied Clinical Research Group in the Department of Oral and Dental Science at the University of Bristol. Dr. Hunter and Professor Addy had, I note, collaborated in publishing a number of research reports, including one concerning orthodontic tooth extraction in a group of adolescents. While neither were, because of the regulations, specialists in orthodontics, it is clear that each knew what was required to qualify as a specialist. They were looking for expertise in the more complicated procedures which would be carried out by specialist orthodontists rather than the simple procedures which could and would be carried out by dentists who had an interest in orthodontics.
"Mr. Lynch indicated that he was effectively acting as a specialist in Australia from 1992, but he has produced no corroborative evidence in support of his contention, nor is there supporting evidence for the period up to April 1997. It was at that time he joined Whitecross Group as a general dental practitioner with a specialist interest in Orthodontics, but we understand from Dr. Moulder that within six months he converted his practice to that solely of treating Orthodontic cases.
The written and verbal support from his professional colleagues in this respect is of marginal assistance. We have insufficient evidence or authenticated evidence that he covers the full range of procedures expected of a specialist Orthodontist.
As I have said, this is an appeal based on the experience route. The level of expertise he has achieved must be judged in the requirement of Regulation 5(1)(g)(iii). Applying this Regulation, we are unanimously of the view that he has not demonstrated, either from his evidence or in the documentation produced, that he has sufficient expertise or experience to be included on the Specialist List. It is therefore with regret that we must reject this appeal".
"The reason for my action is that I wish to present further corroborative evidence in respect of my orthodontic experience in Australia which dates back to 1989, and in particular from colleagues practising Orthodontics.
I would also like to submit further evidence that I do treat the full range of orthodontic cases as a practitioner for Whitecross dental Group, where I have for the past four and a half years limited my practice to treating solely orthodontic cases".
On 8 February, his application was rejected. This was said: -
"Following the decision of the GDC, Mr. Lynch filed notice of appeal on 26 January 2001. He had over 11 months to obtain all necessary evidence for his appeal on 30 October. Since that date a further period of about 3 months has passed.
He now wishes to submit further evidence from Australia and from his practice.
There are no grounds indicated to justify its submission in point of time. The application is refused".
"This looks like a classic case for not receiving fresh evidence in judicial review proceedings for the reasons given by the judge. It falls within none of the Powis [R v SSE ex parte Powis  1 W.L.R. 584] categories. Insofar as it indicates that the panel may not have taken account of relevant evidence it adds nothing to what counsel may submit. Insofar as it seeks to advance an opinion that the panel was irrational, it is usurping the function of the Court. However attenuated, there are still distinctions between judicial review and appeal on a point of fact which must be taken into account in the operation of any legislative scheme".
"Finally there was an application on behalf of the tenant to admit fresh evidence which the Divisional Court had refused to admit. Like the Divisional Court we considered the evidence de bene esse. What are the principles on which fresh evidence should be admitted on judicial review? They are (1) that the Court can receive evidence to show what material was before the minister or inferior tribunal: Ashbridge Investments Ltd v Minister of Housing and Local Government  1 W.L.R. 1320, 1327, per Lord Denning M.R.; (2) where the jurisdiction of the minister or inferior tribunal depends on a question of fact or where the question is whether essential procedural requirements were observed, the Court may receive and consider additional evidence to determine the jurisdictional fact nor procedural error: see de Smith's Judicial Review of Administrative Action, 4th ed.(1980), at pp.140, 141 and cases there cited; and (3) where the proceedings are tainted by misconduct on the part of the minister or member of the inferior tribunal or the parties before it. Examples of such misconduct are bias by the decision making body, or fraud or perjury by a party. In each case fresh evidence is admissible to prove the particular misconduct alleged: see Reg v West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd  QB 24, 39, 43 per Orr and Lawton L.JJ".
"The purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose".
But this dictum and the language used in Ermakov does recognise that each case must depend on its own facts and the original reasons must be shown to have been truly defective or, to use the expression approved by Hutchison LJ, 'manifestly flawed' for this court to refuse to act on the subsequent statements.
"In my opinion, Dr. Lynch had done nothing to dispel my concerns that had arisen on my reading of the written evidence he had brought to support his case. He had produced no testimonials by senior orthodontists with first-hand experience of his work, nor had he produced any case studies with evidence from moulds or studies".
The point is made that the first part of the second sentence is factually inaccurate since it ignores Dr. McNulty's letter.
MR JUSTICE COLLINS: Mr Havers, Mrs Outhwaite, you have obviously seen the advanced copies of the judgment to be handed down. I am grateful for the indications of some errors. I have spotted one more in paragraph 36, the third line, the "if" should be "in". It should be, "not in itself", rather than, "not if itself".
MR HAVERS: Yes, my Lord.
MR JUSTICE COLLINS: Otherwise I did not spot any reading through it again, but there may well be others.
MR HAVERS: I am just having another one pointed out to me. At the end of paragraph 30.
MR JUSTICE COLLINS: It is remarkable, however many times one reads through, one misses the odd typo.
MR HAVERS: Yes. It is four lines down, paragraph 30, it is "Dr Moulder", rather than "Dr Moulden".
MR JUSTICE COLLINS: Yes, it should be Moulder, should it not? I am grateful. Subject to those two corrections, Mr Havers, I am deciding, as you see, in favour of the claimant.
MR HAVERS: Yes.
MR JUSTICE COLLINS: Now what order?
MR HAVERS: Well, my Lord, I would invite your Lordship, first, to quash the two decisions which the claimant has challenged in these proceedings. They are conveniently set out, if your Lordship still has the bundle --
MR JUSTICE COLLINS: Somewhere, yes, remind me which...
MR HAVERS: It should be a green bundle of documents for use for judicial review. That is it, yes. If your Lordship goes to page 6 behind tab 1. Those are the two decisions which Mr Lynch seeks to challenge and I invite your Lordship to quash both of them. Secondly, I invite your Lordship to remit the claimant's appeal to be heard and determined by a fresh appeal panel.
MR JUSTICE COLLINS: Yes.
MR HAVERS: Obviously that will be a fresh hearing at which he can put before the appeal panel whatever further evidence he would wish to put before it.
MR JUSTICE COLLINS: Yes. Do I need to make any directions on timing? That is a matter, presumably, for the appeal panel?
MR HAVERS: Yes, it is, my Lord. Then, thirdly, I seek an order as to the claimant's costs of his application, my Lord, to include the costs which Mr Nigel Pleming QC directed should be costs in the case on 12th September of last year. Then your Lordship reserved costs on 6th October, when we came before you on the preliminary hearing in relation to expert evidence. I would respectfully submit that I have won on that issue, and your Lordship has held in your judgment that expert evidence may be given in judicial review proceedings in rather broader circumstances than was contended for by Mr Garnham.
In those circumstances I would invite your Lordship to direct that those costs also should be the claimant's costs.
MR JUSTICE COLLINS: There will be, obviously, a set off of the costs that were awarded against you.
MR HAVERS: My Lord, they have already been paid.
MR JUSTICE COLLINS: They have already been paid, have they?
MR HAVERS: The costs in the case have already been paid, so there is nothing to set off.
MR JUSTICE COLLINS: There is nothing to set off, right. Yes?
MRS OUTHWAITE: My Lord, obviously I come to this case new, so my apologies if I get any facts wrong.
MR JUSTICE COLLINS: Do not worry. I did hear there were difficulties. This had been fixed because I thought that your mutual clerk had chosen an appropriate date, but unfortunately I gather that Mr Garnham is in Chelmsford.
MRS OUTHWAITE: I am afraid so, my Lord. But obviously I have studied the judgment carefully and it seems to me that the point on which Mr Havers succeeded was the point that was raised, I believe by your Lordship and adopted by Mr Havers, on 6th October, which was that the reasons that were given were inadequate. Up until that point my understanding was that the argument was that the decision was irrational and that the reasons that had been given were, frankly, just plain wrong. That is the point on which he has succeeded. On the expert evidence --
MR JUSTICE COLLINS: Well, I am sorry to interrupt you, but I am not sure that that is strictly correct. What I said, true, was that I thought the reasons were inadequate. But if it had merely been inadequacies of reasons, but the subsequent statements had fleshed out those reasons and were themselves adequate, he would not have won on that ground. He won because, not only were the reasons inadequate, but, underlying, there was a failure to have regard to material matters and one or two mistakes made, particularly in relation, as you appreciate, to whether there was corroboration from Australia.
MRS OUTHWAITE: Yes.
MR JUSTICE COLLINS: So it was not merely reasons, it was reasons plus, if I may put it that way. So I think the underlying claim of irrationality, not perversity but irrationality on a failure to have regard to all relevant material, succeeded. I do not think it is right to say that it was as limited as you suggest.
MRS OUTHWAITE: On the matter of expert evidence, if I can deal with that issue, my understanding was that Mr Garnham, at the hearing, accepted the proposition that expert evidence would be admissible in order to explain, in terms, but that expert evidence would not be admissible to deal with, effectively, traditional opinion expert evidence to challenge. That is the decision which your Lordship also came to. So, to that extent, I say that the claimant has not succeeded.
MR JUSTICE COLLINS: Well, again, the battle, originally, over expert evidence, when it came before me back in October, was that there should not be any at all. When we eventually came -- because, as you know, the order I made was, effectively, to pass the ball down the line to the trial judge who turned out, in the end, to be me. But it was accepted, when the matter came to be considered, that expert evidence would be admissible to explain technical terms. I do not think that that is likely to be in the least contentious. But that did leave an area of contention, which was whether it went further than that, and expert evidence could be adduced to explain the significance of the technical matters.
I mean, in the context of this case, as you appreciate, what was the significance of the treatment which was carried out by the claimant? Was it the sort of treatment that only a specialist could be expected to carry out or was it one that a gifted amateur, if I may put it that way, would be able to carry out? That was contended. Admittedly the argument was limited, because it was not necessary to go into it once the evidence from Mr Thompson was produced from your side, and Mr Havers had accepted that if such evidence was forthcoming from a reputable expert which effectively challenged the approach of his experts, he would not be able to rely on that.
So the issue did not, in the end, arise, except to a very limited degree. Back in October there was an all-out attempt to stop any expert evidence, if I recall correctly, I am sure I am right --
MRS OUTHWAITE: Yes.
MR JUSTICE COLLINS: -- and that did not succeed.
MRS OUTHWAITE: That did not succeed, but neither did the whole expert evidence on the entirety of the matter.
MR JUSTICE COLLINS: Well, true.
MRS OUTHWAITE: My Lord, may I just take instructions for one moment.
MR JUSTICE COLLINS: Yes.
MRS OUTHWAITE: My Lord, the application that I have to make to you is in relation to the remedy. I recognise, of course, that in the final page of your judgment you do mention a fresh application to an appeal tribunal. What I would say is this: that the determination that your Lordship has made is that the decision that was made was not irrational and it was open to be made on the material that was available, and that in those circumstances the proper remedy would be to quash the latest decision and using --
MR JUSTICE COLLINS: What do you call the latest decision?
MRS OUTHWAITE: The appeal to the Director of Appeals, Mr Howe.
MR JUSTICE COLLINS: Yes, the rehearing claim.
MRS OUTHWAITE: Yes. So that the claimant is effectively put in the position that he should have been in, that is that he has reasons, he knows now, what he should have done and he can now make an appeal to the Director of Appeals and then, of course, the Director of Appeals will either remit it to a freshly constituted appeal tribunal or, alternatively, refuse it. Given your Lordship's findings on the rationality of the decision, and the fact that the decision could be made, that is as far back as the court should go in allowing remedy.
MR JUSTICE COLLINS: Yes, well, one of the problems is that it seemed to me that the way this thing was approached was to disable, to an extent, the claimant from realising what he had to put forward originally. It is, with respect, something of a waste of time and money to do as you suggest, because if the Director refuses to accept that it should go back we are all going to come back here, are we not? No, it seems to me that the only sensible course, in the light of my judgment, is that the claimant should have his appeal heard again on the basis that it is his last chance to produce all the material that is available and which he now knows must be made available to establish his claim.
I made it clear, and I repeat, that this decision does not mean that he will necessarily, in the end, succeed. That is a matter entirely for the fresh appeal tribunal. But it will hear it on the basis of all material that the claimant now knows he ought to have available. If he does not succeed on that, so be it, but that will be a matter for their expertise and not for me, assuming their decision is a proper one. I think, with respect, what you are suggesting is a recipe for further costs and delay.
MRS OUTHWAITE: Would your Lordship indicate that the material that should be made available then is the material up until the date when the appeal was heard?
MR JUSTICE COLLINS: Why?
MRS OUTHWAITE: Because if it is a new decision being made on the same basis it should be up to that date. I do not know what the claimant's practice is in 2003.
MR JUSTICE COLLINS: He should not take advantage of any further experience he has acquired since the hearing?
MRS OUTHWAITE: It is a remitted decision, so going back to the decision-making process being reheard rather than a fresh application.
MR JUSTICE COLLINS: That seems somewhat artificial.
MRS OUTHWAITE: My Lord, I am so sorry, I am taking instructions.
MR JUSTICE COLLINS: Please, do not worry, I do not blame you at all. I know the difficulties.
MRS OUTHWAITE: The regulations that govern this are transitional provisions and there is some significance in the deadline passing. I am afraid I cannot tell you what the deadline is.
MR JUSTICE COLLINS: It was two years, I think, if I remember correctly, from the coming into force of the relevant regulations, which was September -- it took us to September 2000, I think. Again I am speaking entirely from memory.
MRS OUTHWAITE: I am grateful. But, in effect, if he is going to use that window of opportunity, the window of opportunity should be limited to the same period as the --
MR JUSTICE COLLINS: I see, otherwise he is getting an advantage as a result of taking these proceedings, is that the argument?
MRS OUTHWAITE: My Lord, yes.
MR JUSTICE COLLINS: It seems, as I say, totally artificial, but I understand why you make that submission. Yes. I will have to hear what Mr Havers says about that. Anything else?
MRS OUTHWAITE: Well, my Lord, on the issue of costs: there has, as your Lordship says, been quite a battle in relation to the expert evidence. Although, of course, I have listened carefully to what your Lordship has just said, and I take that on board, the fact is that the claimant has not succeeded in toto, in having, I understand, his four experts' reports put in on the merits where opinion expert evidence has been allowed to challenge, effectively, the decision-making.
MR JUSTICE COLLINS: You have your costs of the matter before the Court of Appeal and, substantially, before Mr Pleming, I think.
MR HAVERS: My Lord, those were costs in the case.
MR JUSTICE COLLINS: It was just the Court of Appeal, was it? It did not say costs here and below, it just said costs in the Court of Appeal?
MR HAVERS: Costs in the Court of Appeal.
MR JUSTICE COLLINS: I see. The Court of Appeal could have ordered costs before it and below, could it not, if it had wanted to do so? It did not. It left Mr Pleming's order intact, and, again, Mr Pleming could have, but did not, order costs in any event.
MRS OUTHWAITE: My Lord, that is right, and in the same way, now that the matter comes before you, you obviously have discretion to determine what to do on costs. In relation to the experts, as I understand it, there are a number of separate issues. The issue as to whether any expert evidence should go in at all since -- for some time it has not been in dispute, insofar as it relates to being a dictionary definition.
MR JUSTICE COLLINS: You can submit, I think, properly, that in the end the expert evidence did not help because it was negatived by the expert evidence produced on behalf of the defendant. Therefore it did not, in the end, do any good to the claimant's case. It was a battle which -- well, it was a Pyrrhic victory, if you like, so far as they were concerned.
MRS OUTHWAITE: I just ask that the costs order reflect that. Also, my Lord, insofar as -- and again I have listened to what you say -- the major portion of the judgment turns on the irrationality, albeit with a plus issue, I would ask that the costs order reflect that. That up until 6th October, which is quite late in the case of these proceedings, the point had not been taken. I understand it does not appear in the grounds of the application, although it was properly addressed at the trial and Mr Garnham did not take any issue on that --
MR JUSTICE COLLINS: Well, that is, I think, clear from what I say in the judgment.
MRS OUTHWAITE: But it is a late point, taken on the hoof, and that is the one that, ultimately, is the most important one in the case. So I ask that it is reflected. I suggest that the approach that this court take is either on an issue base or a flat percentage, or no order as to costs from 6th October or any other way in which your Lordship thinks is appropriate.
MR JUSTICE COLLINS: Yes. Mr Havers, two matters I would like your help on. First, in relation to what material should be put before the appeal. Should it be limited to what was available so as to establish his experience as at, presumably, the date of the hearing, rather than the date of the application? So it would be -- I think that is right, is it not, you do not suggest that you have to go back to the date of the application, do you?
MRS OUTHWAITE: No, my Lord.
MR JUSTICE COLLINS: The date of the hearing which -- I forget, when was the date of the hearing, October 2001, was it?
MR HAVERS: Yes, the hearing was on 30th October.
MR JUSTICE COLLINS: Yes, presumably that is the date. So one goes back, effectively, two years, it is said.
MR HAVERS: Yes.
MR JUSTICE COLLINS: Well, by the time it is reheard it will be about 2 and a half years, I suppose.
MR HAVERS: My Lord, three points. Firstly, it would, in my submission, be wholly artificial to restrict the evidence in that way. What the panel is concerned to do is to assess the expertise of the dentist in question by reference to his experience, and for them to ignore, and for him to ignore, the further experience and expertise that he has built up since then, would create a wholly artificial basis for not only the hearing, but also their decision.
In particular if he were to decide to bring to the appeal panel hearing, moulds and x-rays and the rest of it, as plainly they expected him to do on the first occasion, again to restrict him, or for him to be bound to restricting himself to such examples of his work going back beyond the --
MR JUSTICE COLLINS: I appreciate there may be difficulties in getting the stuff from Australia.
MR HAVERS: It may be difficult. He may now get advice that the best possible type of evidence he can produce is what he is doing now and what he has been doing more recently. That, of course, will represent, for the appeal panel, the very best evidence as to where he has got to in terms of both experience --
MR JUSTICE COLLINS: Yes, although past experience will be important, obviously.
MR HAVERS: It will, but, ultimately, what they are being asked to do is put him on the list, as of now, by reference to all his experience and expertise. My Lord, that is the first point. The second is this: there cannot be any question of him trying to take advantage of the additional time he has been given, in this sense, that the only reason why that additional time has elapsed, is because, as your Lordship has found, the determination was in the first place defective. So it would be exceedingly unfair if, as a result of the GDC's own failures, he was deprived of the opportunity of putting before the panel his most recent experience.
My Lord, the third point is this: that one of the decisions your Lordship is going to quash is the decision of the Director of Appeals to hold a redetermination. If that decision had been otherwise then there would have been a further hearing at some stage. I do not, obviously, suggest that it would have been as late as it is going to be.
MR JUSTICE COLLINS: No, but you say that it is quite plain that that hearing would have had to have considered the position as at the date of that hearing.
MR HAVERS: Exactly, that is the point.
MR JUSTICE COLLINS: Yes.
MR HAVERS: So, my Lord, that is what I would say on the first point on what your Lordship asks for assistance on.
MR JUSTICE COLLINS: The other question is on costs. I appreciate that Mr Pleming did not make an any event order. He left it to be costs in the case. On the other hand, as it transpired, and you recognise that there was this risk, because they might put in nullifying evidence, it did not actually achieve anything very much, did it? The decision I made on evidence is, in one sense, I suppose, obiter, because it was not a matter that directly arose and I am wondering whether, in the circumstances, the fair order might be, rather than you getting those costs, simply to say no order for costs in relation to the costs before Mr Pleming.
MR HAVERS: Well, my Lord, the argument, on principle, has always been a clear-cut one. The GDC have, throughout, resisted the proposition that the claimant should be entitled to adduce any expert evidence at all. That, as your Lordship pointed out to my learned friend in argument a few moments ago, was still the position as before your Lordship. It was very much the position before Mr Pleming as well.
MR JUSTICE COLLINS: Certainly.
MR HAVERS: Your Lordship's judgment records at paragraph 21 the position that Mr Garnham took, which was that the categories set out in the authorities were exhaustive.
MR JUSTICE COLLINS: That was certainly his primary argument.
MR HAVERS: That was then his primary argument and always had been. On the basis of that argument it was contended that the claimant was not entitled, as a matter of legal principle, to adduce any expert evidence on this application at all. Well, that argument failed, ultimately, before your Lordship. It did not just fail on the limited basis that eventually Mr Garnham, I accept, himself accepted at the main hearing before your Lordship, which is that it can be admitted to explain technicalities or the technical processes involved. But your Lordship went, significantly, a stage further, and held that it could be admitted to explain the significance of technical material.
MR JUSTICE COLLINS: Yes, I kept that within pretty tight limits.
MR HAVERS: Your Lordship did, but, nonetheless, that was a quantum step further than, even at the late stage, Mr Garnham had been prepared to accept when pushed by your Lordship in argument at the main hearing. So, contrary to the contentions that the GDC had advanced throughout, until the hearing before your Lordship, which were that none of that expert evidence was admissible, your Lordship has held that it is admissible, albeit on the narrow basis that your Lordship --
MR JUSTICE COLLINS: Yes, but it did not help in the context of this case, really, did it?
MR HAVERS: What I do not know is whether, even to a limited extent, the expert evidence assisted your Lordship in understanding some of the technical side of it and some of the significance of the material that was put before your Lordship.
MR JUSTICE COLLINS: What I had was the contentions on your side by the experts that this did mean that he had carried out specialist treatment, and pointed in the direction of saying that this was a decision which was clearly wrong, but the other side was, no, there is nothing there which in any way suggests that the decision was wrong. Indeed, in my view, the decision was right. So, it really, as it transpired, did not assist. I agree it might have done. One simply did not know until we saw the statement on behalf of the defendants. But, in the end, as I say, it did not help. Can you remember, Mr Havers, at all, why Mr Pleming made the costs order that he did, rather than an in any event order?
MR HAVERS: My Lord, I cannot, because I was not then --
MRS OUTHWAITE: My Lord, I think I might assist.
MR JUSTICE COLLINS: If you can.
MRS OUTHWAITE: My instructions are that the reason why he did not make a costs order was that neither party had prepared a statement of costs and I also --
MR JUSTICE COLLINS: That seems a rather poor reason for not making a costs order.
MRS OUTHWAITE: Well, there it is.
MR JUSTICE COLLINS: With the greatest possible respect to Mr Pleming.
MRS OUTHWAITE: Also I am told that the claimants had made an application for those costs in the Court of Appeal was which unsuccessful.
MR HAVERS: My Lord, that last point is of some significance. As Miss Outhwaite rightly points out, and I think your Lordship had hinted at, the GDC applied for the costs below, as it were.
MR JUSTICE COLLINS: Yes, and the Court of Appeal said no.
MR HAVERS: They said no and left them as they are, which is costs in the case.
MR JUSTICE COLLINS: The Court of Appeal's decision was a somewhat strange one.
MR HAVERS: The reason it was somewhat strange was that by the time we got to the Court of Appeal we, on this side, had rather reformulated the expert's reports, recognising that their original reports were much too discursive and addressed, head on, the question of rationality which they really should not have done at all. So by the time we got to the Court of Appeal, the Court of Appeal said we were stuck not being able to adduce the earlier reports in their broad discursive sense, but they would not hold that we could not seek to adduce the later, tighter, more closely focused reports which were the ones that came before your Lordship.
MR JUSTICE COLLINS: I understand that, but I am slightly wondering about the jurisdiction of the Court of Appeal to refuse leave to appeal but to direct that the order of the court below be varied. The Court of Appeal can do what it likes I suppose.
MR HAVERS: Well, my Lord, it did not.
MR JUSTICE COLLINS: It is a slightly curious order, is it not?
MR HAVERS: Yes. My Lord, perhaps the important thing is that the Court of Appeal refused the application to vary the costs order of Mr Pleming, and thus that costs order remains in force.
MR JUSTICE COLLINS: Well, I can understand that it might have been part of its reasoning that we should wait and see whether any expert evidence actually did make any real difference.
MR HAVERS: I think, probably, its reasoning was that it should wait and see what the trial judge at the substantive judicial review hearing decided on what the Court of Appeal held should be the holding of a preliminary hearing as to that question of admissibility, which is why it came before your Lordship as a preliminary case.
MR JUSTICE COLLINS: I remember, and again that was a slightly -- I will not say anything about that.
MR HAVERS: That was the plan the Court of Appeal laid down should be followed and it was followed. I just make the simple point that in due course your Lordship acceded to my application to allow expert evidence in this case, albeit that I accept that --
MR JUSTICE COLLINS: What I, effectively, decided back in October was that the Court of Appeal's order did not really help, except to increase costs, because it is a matter that should be dealt with at trial.
MR HAVERS: Yes, but when your Lordship did deal with it at trial --
MR JUSTICE COLLINS: Yes, I mean, in one sense I came down in your favour on that narrow issue, but, as I say, at the end of the day, it was something of a non-event.
MR HAVERS: It was, but we had always accepted that it might be if the GDC put in a report --
MR JUSTICE COLLINS: What you are really saying is that there was no need for the battle. Well, there was a need for the battle, perhaps, because you went too far in your initial reports. But there was not really any need for the principal battle. It simply could have been negatived by the report they put in. But I think there is some importance in their knowing that this is not something that can be done routinely. I have made it clear that this is not something that should be done routinely or should be admissible routinely. It is only in an exceptional case where this should happen and in very well defined circumstances.
MR HAVERS: I do not dissent from that at all, but the short point is they lost on that there issue.
MR JUSTICE COLLINS: Yes, well I see the argument.
MRS OUTHWAITE: My Lord, might I just come back on some of those points?
MR JUSTICE COLLINS: Yes.
MRS OUTHWAITE: First of all, my understanding is that the Court of Appeal -- I am sure it is just a slip of the tongue -- but it was not the GDC that made an application for their costs, it was the claimant that made an application for costs.
MR JUSTICE COLLINS: That is slightly surprising, because if leave to appeal was refused -- I mean the Court of Appeal can do many things but they would not normally award costs in favour of someone who was trying to appeal, whose application failed. Nor, I think, would even Mr Havers try it on.
MR HAVERS: Well, you never know.
MRS OUTHWAITE: The costs schedule that was produced by the claimant included the costs before --
MR JUSTICE COLLINS: Yes, but that is standard. You produce schedules, do you not, in advance on the basis that you are going to win?
MRS OUTHWAITE: That is right. It did not feature in the GDC's costs --
MR JUSTICE COLLINS: That is nothing.
MRS OUTHWAITE: As far as my instructions are concerned, the claimant withdrew the existing reports before the Court of Appeal --
MR JUSTICE COLLINS: Yes, I know.
MRS OUTHWAITE: -- and then said they were going to put in fresh reports. The Court of Appeal said, quite reasonably, we cannot make any determination on these fresh reports until we have seen them and they are not there. Although it is right that there has been a partial lack of success, the fact is that the claimant's experts' reports, as they stand, have not gone in in their totality for the very reason that your Lordship takes the view, quite rightly, that they should not go in except in a very --
MR JUSTICE COLLINS: Well, they went in in the sense that I looked at them, but I was not influenced by them. They did not help me as things turned out.
MRS OUTHWAITE: My Lord.
MR JUSTICE COLLINS: Yes. The order that I propose to make following the judgment is that the two decisions which are referred to in the amended claim form, namely the decision of 30th October 2001, which was the original appeal, and the refusal by the Director of Appeals who set aside that determination in February 2002. Both those decisions will be quashed.
Mrs Outhwaite submitted that I should only quash the latter decision, and that it was a matter then for the Director, having regard to the judgment, to decide whether there should be a fresh hearing. It seems to me that that is a recipe for delay and for the increase of costs unnecessarily. The fact is that, as I hope my judgment makes clear, I took the view that the hearing before the original panel was unsatisfactory in a number of respects, quite part from the inadequacy of the reasons that were given for reaching the conclusions. In those circumstances it seems to me that the only appropriate order is, as I have said, to quash both the relevant decisions and to direct a rehearing of the appeal, obviously as soon as may be, before a fresh appeal panel.
Mrs Outhwaite has submitted that since these are transitional provisions the hearing before the fresh appeal panel should be limited to the state of affairs, as it were, as at October 2001. That is to say, that the claimant's expertise and experience should be judged at that date and any further experience that he may have obtained in the succeeding two years should be ignored.
That seems to me to be wrong in principle. It is accepted, as it must be, that the original hearing in October 2001 would consider the situation as at that date. Now, an application under the transitional provisions had to be lodged by September 2000, as indeed it was. It took over a year for the matter to come before the appeal panel. I do not criticise anyone for that, one knows that sometimes these things do take time. The hearing was not satisfactory, and, as a result, the decision has had to be quashed. It seems to me, in those circumstances, that when it comes back it must be treated as the hearing of that appeal. The fact that it has been delayed may benefit the claimant, so be it. He is entitled to have his experience and expertise judged at that date, because the decision will be whether or not he is now fitted to be on the specialist panel. Accordingly I reject the suggestion that the claimant's appeal should be limited in the way that is suggested.
So far as costs are concerned: overall, the claimant has won. There was, however, a substantial issue relating to the submission on his behalf of expert reports. Originally those reports, in effect, stated that the decision of the appeal panel was perverse and that the expert's view was, on the material before the panel, that they should have decided that the claimant succeeded.
An application was made on behalf of the defendant that those reports should be treated as being inadmissible. That came before Mr Pleming QC, sitting as a Deputy Judge in this court, and he agreed with that conclusion and decided that the reports should be excluded. He then made an order that the costs should be costs in the case. He did not order that they should be the defendant's costs in any event.
Regrettably neither counsel has been able to provide a satisfactory reason why that happened. Mrs Outhwaite's instructions are that he took the view that he would not order costs because there were not proper schedules of costs available. I am bound to say that seems to me to be an unlikely reason for a refusal to order costs. Be that as it may, that was the order that was made.
The claimant sought to appeal to the Court of Appeal against Mr Pleming's decision. Mr Havers tells me that it was appreciated that the statements, in the form in which they were originally served, were not likely to persuade the Court of Appeal to overturn Mr Pleming's order. So, there were prepared fresh statements which did not go so far as to assert that the decision of the appeal panel was irrational.
The Court of Appeal refused leave to appeal, but varied Mr Pleming's order to the extent that instead of refusing all experts' statements relating to the case, it simply excluded the existing experts' reports and left it to the trial judge to decide, on an application being made in advance, whether a fresh statement or statements could be used.
The fresh statements were served and the matter came before me back in October. I decided that that issue should be decided at the hearing, but I gave leave for the defendants to produce a statement of their own. This they did and that statement, effectively, went the other way and gave the opinion that the experts on behalf of the claimant were wrong, and that the appeal decision was correct.
In the light of that, as Mr Havers had really accepted in advance, the reports which he sought to rely on were neutralised. In the end the reports that had been produced did not assist me in reaching my conclusion.
There was some argument about the circumstances in which any further evidence, in the form of experts' reports, could be introduced in judicial review proceedings. Mr Garnham submitted that the Powis decision was to be followed, and that, in effect, no such evidence could ever be admitted. Although he did accept, in argument, that it would be possible to introduce evidence to explain technical terms, so that the why judge was not groping in the dark when seeking to understand the technicalities, if technicalities existed in a particular claim.
Mr Havers' submission went a bit further than that and decided that, in principle, such evidence was admissible to explain not only what the techniques were and what the various technical terms meant, but their significance in the context of a case such as this. That was, I suppose, strictly speaking obiter because, as I say, the question of expert evidence did not directly arise.
The question now is really what order I should make in relation to the costs that were ordered to be costs in the case by Mr Pleming. I see the force of Mr Havers' submission that he has won on the technicality, in the sense that he has won on the basis that such reports can, in limited form, be admitted. On the other hand in the end they did not assist and extra costs were incurred as a result.
Doing the best I can, and adopting, as one has to, to some extent, a rather broadbrush approach when dealing with costs, it seems to me that the fair order is to say that the claimant should have all his costs in relation to this claim, including the proceedings before me on 6th October of this year, but that there should be no order for costs in relation to the costs which Mr Pleming ordered to be costs in case.
That, of course, means that the claimant will not recover those costs, but equally the defendant will also not recover them.
MR HAVERS: Thank you, my Lord.
MR JUSTICE COLLINS: The costs, of course, will be subject to a detailed assessment if not agreed. Mrs Outhwaite, anything else?
MRS OUTHWAITE: My Lord, yes. May I ask for permission to appeal on the issue of remedy in relation to the quashing of the decision of the appeal panel, on the basis that your Lordship already indicated that it was not irrational?
MR JUSTICE COLLINS: You may ask, but you will not get.
MRS OUTHWAITE: Also, I am instructed to make an application for permission to appeal in relation to the costs generally.
MR JUSTICE COLLINS: In relation to?
MRS OUTHWAITE: The costs order generally.
MR JUSTICE COLLINS: Costs, you are trying it on, no. You will have to persuade the Court of Appeal if you want to try to appeal that.
MR HAVERS: Thank you very much, my Lord.
MRS OUTHWAITE: My Lord.