Case No:CO/2207/2002
Neutral Citation Number: [2003] EWHC 2987 Admin
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 10 December 2003

Before:

The Hon Mr Justice COLLINS

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Between:

	LYNCH		
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	The General Dental Council		

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(Transcript of the Handed Down Judgment of
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)
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Mr Philip HAVERS Q.C.  (instructed by Hempsons, Solicitors) for the Claimant
Mr Neil GARNHAM Q.C.  (instructed by Capsticks, Solicitors) for the Defendants
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Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Collins: 
1.	The claimant qualified as a dental practitioner in Australia in 1981.  In the 1980s, there was a considerable development of interest in orthodontics in Australia and the claimant began to practise more and more in that field.  By 1989 he had decided to do nothing but orthodontics and by 1992 he felt that he was able to ‘treat anything that walked through the door’.  In 1996 he came to this country and has since 1997 been working as a full time orthodontist to whom a very large practice known as Whitecross Dental Care refer most patients who need orthodontic treatment.  By the end of 2001 he was being referred to by a pool of over 100 dentists.  Those who chose not to refer to him indicated that that was because they wished to use someone who was on the specialist list and would have used the claimant had he been on that list.  In 2001 he was invited to become the resident orthodontist to the practice of Whitecross when it merged with another practice.
2.	It is apparent that the claimant is a successful and respected orthodontist.  But he cannot describe himself as a specialist unless he is entered on the specialist list which is maintained by the defendant.  There are a number of such lists covering different specialities.  Being recognised as a specialist in orthodontics enables an individual to practise as a specialist throughout the EEA and there are Regulations stemming from an EEA Directive which specify how that status can be achieved.  There are, broadly speaking, three ways.  These are by qualification, by training or by experience.
3.	The Regulations in question are the European Primary and Specialist Dental Qualifications Regulations 1998 (1998 No.811), which came into force on 14 April 1998.  It was recognised that there were existing specialists who did not require any extra qualifications and so there were transitional provisions which enabled them to apply to be on the list provided they applied within 2 years of the coming into force of Regulations to be made by the defendant pursuant to section 26(4) of the Dentists Act 1984.  Regulation 12(3)(c) enables a person to be placed on the specialist list if he has satisfied the defendant that: -
“(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.
4.	Regulations under s.26(4) of the Dentists Act 1984 have been made by the defendant.  They are the General Dental Council (Distinctive Branches of Dentistry) Regulations 1998 (the s.26(4) Regulations) which came into force on 11 July 1998.  Regulation 5 sets out a number of different ways by which a registered dentist will be entitled to use the title “Specialist in Orthodontics”.  The primary way is by being awarded a CCST, but there are others which in the main reflect the need to recognise parallel EEA qualifications.  The relevant one for the purposes of this case is to be found in Regulation 5(g), which requires an application within 2 years or “later if he/she satisfies the Registrar that there was good reason for not applying by then” which satisfies the defendant of any of the three matters set out in Regulation 12(3)(c) of  1998/811, namely training, qualification or experience.
5.	There is a right of appeal against a refusal of an application. This lies to a panel of three, the chairman of which must be a lawyer holding a 10 year general qualification within the meaning of Section 71 of the Courts and Legal Services Act 1990.  The other two members are registered dentists who are Fellows of U.K. medical or surgical Royal Colleges.  It is provided by the relevant regulations (contained in Schedule 2 to the General Dental Council Procedures Governing Appeals Regulations) that: -
“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.
6.	On 28 June 2000 the claimant applied for entry in the specialist list for orthodontists on the basis of, as the form put it, “specialist training qualification or experience requiring individual assessment”, i.e. all the grounds in Regulation 5(g) of the s.26(4) Regulations.  He was then required by the form to give further information ‘by ticking the box against each statement which applies to you and by deleting any statement which does not apply’.  He ticked three of the four boxes.  The statements read as follows: -
“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”.
7.	As is perhaps obvious, Box 1 is applicable to all applications under s.26(4) Regulation 5(g) and 2 and 3 to experience and training respectively.  Box 4 deals with qualifications.  But the claimant had attended a number of training courses (as would be expected of a practitioner in any particular field of medicine or dentistry) and so he understandably regarded Box 3 as relevant.  Although each gateway to the list under s.26(4) Regulation 5(g) is separate it is necessary to show that a level of expertise equivalent to that achieved through a CCST has been obtained by experience in orthodontics.  It is obvious that training may assist in establishing such expertise and experience is not limited to practice alone.  The guidelines issued by the defendant include the following information: -
“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.
8.	The claimant included with his application a considerable number of testimonials, some in a standard form, from dentists who customarily referred their patients who needed orthodontic treatment to him.  He also included three detailed accounts of particular treatments which he had carried out, explaining how the patient had presented, what he had done and what the result had been.   Each of the three patients referred to had been treated in Australia, as the claimant made clear when he gave evidence before the appeal panel in due course.  In addition, there was a letter from a Dr. Flutter, an Australian dentist, who had had experience of the claimant’s work in Australia.  The claimant believed that his record, coupled with the various courses and conferences he had attended over the years, demonstrated that he had the necessary experience and expected to qualify.  He relied particularly on the referral to him by so many dental practitioners all of whom were satisfied by his work and none of whom expressed any reservations about referring even complicated cases.
9.	 It was unfortunate that the claimant did not seek any expert advice on what he needed to place before the defendant.  It is apparent that the material he presented was lacking in detail and the testimonials were too general and some were of little value.  For example, a letter from a respected specialist whom the claimant did not really know simply said; -
“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.
10.	This belief was in my view naïve.  The notes made it clear that the suggestions as to what should be included were not exhaustive.  The claimant should have appreciated that he had to show that he did have the necessary expertise and that to do that it would be of obvious assistance to get confirmation of his ability to carry out the sort of treatment that would require the services of a specialist orthodontist.  General testimonials are of course of some value, but references to particular treatment and the solving of more difficult problems would be of much greater assistance.
11.	The claimant’s application was considered by an Assessment Panel set up by the Faculty of Dental Surgery in the Royal College of Surgeons.  On 31 October 2000 this Panel recommended to the defendant that the application should be refused because the applicant “does not possess training or qualifications equivalent to a CCST in orthodontics, nor does he have sufficient experience in this speciality”.  By a letter to the claimant marked ‘Date as Postmark’ the defendant rejected the application.  No reasons were given - the letter seems to be a proforma.  While reasons do not have to be given, it is obviously of no assistance to an applicant who wishes to appeal but who does not know what he needs to do to persuade the appeal panel to overturn the refusal if they are not.  All that the claimant knew was that what he had submitted in writing was not sufficient to establish his case.
12.	On 26 January 2001 the claimant lodged a notice of appeal.  He asked for an oral hearing.  On 28 February 2001 he submitted a letter which summarised his claim and which read: -
 “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.
13.	The claimant attended with two witnesses and submitted a number of additional testimonials, some of which were more detailed.  His witnesses were a Dr. Bain and a Dr. Moulder, who was the Director of Dentistry for Whitecross.  Dr. Bain confirmed that he referred all his patients (save for some whose place of residence made it difficult to keep appointments) to the claimant, but he had only been doing so for some 2 years which was ‘not a very long time’.  Dr. Moulder was most supportive, having discussed with many of his colleagues and seen examples of the claimant’s work.  He referred to a letter from a specialist who was happy that the claimant should cover for him when he was away or in case of emergency.  This Dr. Moulder regarded as a feather in the claimant’s cap.  The claimant referred to his three treatment records.  He was asked by the chairman at one stage whether he had by any chance brought with him any models of his work.  He said he had not, but would rely on the case studies, that is to say, the records of the three patients, which he had submitted.  No further reference was made to models.  The chairman did, however, make it clear that the lengthy time over which the claimant had been practising orthodontics was not of itself enough to establish the necessary expertise by way of experience.  It also appeared that in many cases the time taken in any particular treatment was very short, averaging some 10 minutes or so.  This it was later said did not show that the claimant had generally been dealing with complicated cases.
14.	The panel dismissed the appeal.  They are required to give reasons, and did so.  The reasons are short, but that is not necessarily a matter for criticism.  They certainly do not need to be lengthy.  However, they should inform the appellant why he or she has failed so that he or she can decide whether the panel has erred in law.  It is clearly insufficient merely to say that an appellant has not established his case.  An appellant must be told the important matters which have led to the dismissal of the appeal.  The reasons given were these: -
“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”.
15.	The claimant was dissatisfied with this result.  Paragraph 19 of the Schedule to the Appeals Regulations enables an application to be made to the Director of Appeals (His Honour Ronald Howe) to set aside a determination “in a case where it appears to the Director just to do so on the grounds that: - …(c) the interests of justice so require”.
16.   It was unfortunate that the same person who had chaired the appeal hearing should be the one to consider whether the interests of justice required that the determination of that appeal should be set aside.  The claimant’s application was made by letter of 20 January 2002.  In it, he said: -
“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”.
17   Following that refusal, the claimant at last took legal advice and this claim followed.
18.	In support of his claim based on irrationality, the claimant sought to rely on the evidence of two experts which showed that the tests of equivalent expertise had been met and the panel was wrong to find that it had not.  On 12 September 2002, Mr. Nigel Pleming, Q.C., sitting as a Deputy Judge, decided that that evidence was inadmissible.  An application for leave to appeal to the Court of Appeal was refused on 22 May 2003, but the Court varied Mr. Pleming’s order so that the claimant was debarred from relying on the two reports in particular and not on expert evidence in general and directed that any application in relation to expert evidence should be heard by the judge who was to hear his claim.  An application came before me on 6 October 2003.  The claimant sought to rely on the same two experts who had submitted subsequent statements.  I directed that the judge who heard the substantive matter should make the decision, and that the defendant should be permitted to lodge expert evidence in reply.  Mr. Havers recognised that I could not decide between experts on issues of fact and so if the defendant produced a report from a reputable expert which contradicted those of the claimant’s experts any irrationality argument could not succeed insofar as it depended on any matter in issue between the experts.  The defendant did produce such a report from a reputable expert.  In those circumstances, the admissibility of the claimant’s experts’ reports was not of great importance and little time was spent in arguing the point.
19.  The point is, however, of general importance.  Furthermore, if defendants are to be faced with expert evidence in cases such as this, they will have to deal with it and costs will escalate.  In judicial review proceedings, the circumstances in which fresh evidence can be received are very limited.  In refusing leave to appeal from Mr. Pleming’s decision, Hale LJ said this: -
“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 [1981] 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”.
20.  The principles to which Hale LJ was referring are set out by Dunn LJ in the Powis case at [1981] 1 W.L.R. 595-597.  I need only cite the paragraph which commences on p595 and reads: -
“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 [1965] 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 [1974] QB 24, 39, 43 per Orr and Lawton L.JJ”.
21.  Mr Garnham submitted that these categories were exhaustive and that no part of the evidence which Mr. Havers sought to rely on fell within any of them.  He drew my attention to a number of cases in which attempts to rely on fresh evidence had failed and reliance had been placed on the Powis guidelines.
22.	I have no doubt that fresh evidence involving expert evidence should in general not be admitted unless it falls within the Powis guidelines.  However, it is and has always been recognised that irrationality is an error of law which can lead to a decision being quashed.  If the decision in question is made by an expert tribunal or indeed by anyone dealing in a field involving consideration of matters which would not obviously be fully understood by a layman without some assistance from an expert in that field, it may be necessary at the very least to have some explanation of any technical terms.  Mr. Garnham accepted that expert evidence could be adduced to provide such explanations.  Without it, the Court might well be unable to consider properly any irrationality argument.  When I use the word ‘irrationality’ I am intending to include not only perversity but also a failure to have regard to a material matter or a taking into account of an immaterial matter.
23.	Mr. Havers submitted that, particularly in a case such as this, it was necessary that the Court should understand not only the meaning of the technical terms but also their significance.  The nature of the treatments which the claimant had carried out could no doubt be explained, but the Court would be unable to judge whether the decision was irrational without appreciating their significance.  Unless the claimant was able, for example, to show that they were the sorts of treatments which only a specialist would be expected to carry out, he could not establish his claim and this was manifestly unfair.
24.	It is clear that the Court’s function must not be usurped.  But it seems to me that the Court must be enabled to carry out its function.  To do this it must understand the material which is put before it.  There is in my view a real distinction between a report from an expert which seeks to explain what is involved in a particular process (in this case, treatment) and how complicated that process is and one which goes on to opine that it was irrational for the body to have reached the conclusion it did.  I recognise that in this jurisdiction the obtaining by a defendant of a report which disagrees with the views of the claimant’s expert may neutralise those views since the Court cannot and will not decide the issue of fact. However, it seems to me that in a truly technical field, where the significance of a particular process is in issue expert evidence can be admitted to explain the process and its significance.  Cases where this can be permitted will be very rare and what I have said should not be regarded as opening the door to the admissibility of experts’ reports in all cases such as this which involve judicial review of an expert tribunal or body.  Equally, the court must be careful to recognise and to apply the distinction to which I have referred, albeit in some instances it may be somewhat difficult to see where the line should be drawn.
25.	This is, I appreciate, some extension beyond that recognised by Powis of the possibility of admitting fresh evidence.  But its purpose is in reality to explain to the court matters which it needs to understand in order to reach a just conclusion.  It is difficult to see why, where such need is established, that should not in principle be permitted.  But a word of caution is appropriate.  Where the tribunal or body is itself composed of experts or has been advised by an expert assessor (which can happen in appeals in cases such as the present), it will be virtually impossible to justify the submission of expert evidence which goes beyond explanation of technical terms since it will almost inevitably involve an attempt to challenge the factual conclusions and judgment of an expert.  That is something which is inappropriate for a reviewing court.
26.	The three members of the appeal panel have made statements which expand on their reasons for dismissing the appeal.  Such evidence is permitted, but considerable caution must be exercised since the existence of defective reasons can and often will lead to the quashing of the decision: see R v Westminister City Council ex p. Ermakov [1996] 2 All E.R. 302.  Hutchison LJ at p.316c emphasised that: -
“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.
27.	 Thus before considering the statements I should consider whether the reasons were defective.  I should say that Mr. Garnham has complained that there is no explicit challenge to the adequacy of the reasons in the grounds.  In fact, in the grounds the attack is on the accuracy of the reasons given.  However, Mr. Havers submitted to me that the reasons were inadequate and Mr. Garnham did not object to the making of the submissions.  He claimed that the reasons were adequate and were certainly not defective.
28.	There are three reasons given.  The first is that there was no corroborative evidence that the claimant was working as a specialist in Australia and no supporting evidence up to April 1997, when he became the full time orthodontist used by most of the Whitecross dentists (and by some others too).  This, submits Mr. Havers, is simply wrong.  There was a letter from a Dr. Dean in general terms (“For many years Dr. Lynch has established his reputation and expertise in Orthodontics both in Australia and especially in UK”) and from Dr. Flutter who had worked with him in Australia.  The transcript of the appeal hearing shows that the chairman appeared to misunderstand Dr. Flutter’s letter and not have appreciated that he was saying that by 1989 the claimant had established sufficient skills and patient base to start doing full time orthodontics and had continued until he left Australia in 1996.  Furthermore, the three case studies were from Australia.  It is clear that the panel had failed to realise this – the statements made by the members say as much – and, although in one sense they do not amount to corroborative evidence, unless the claimant was disbelieved (which is not suggested) they show the level of his work.  It is true that the panel say that they attached little weight to the studies because of an absence of moulds, photographs or radiographs.  But to assert that there was no corroborative evidence in support of his contention was to go too far.  On the other hand, the panel was entitled to conclude that the evidence produced did not show that the claimant had the required level of expertise in that the letters referred to were in general terms and the case studies did not demonstrate the necessary breadth and depth.  However, the failure to appreciate that the case studies were from Australia and the possible misunderstanding of what Dr. Flutter was saying lead to a real concern that the panel were too dismissive of the claimant’s Australian experience.
29.	The second reason was that the written and verbal support from the claimant’s colleagues was of marginal assistance.  This is criticised as demonstratably unfair in the light of the body of evidence from colleagues who referred to him and in particular the letter from a specialist, Dr. McNulty, with whom he had an arrangement to cover patients.  The guidance in the notes on the application form did suggest that ‘structured references from consultants and referring practitioners and colleagues’ might be submitted.  I asked Mr. Garnham what was meant by ‘structured’ but he was unable to enlighten me.  The references obtained by the claimant were very general, but they did on their face show that a number of colleagues regarded him as someone who should be regarded as having sufficient expertise to be on the specialist list and that a very large number sent patients to him and there were no complaints about the standard of his work.
30.	It seems to me that the chairman should have said why the support was of marginal assistance.  A sentence or two explaining  that the references were too general and did not show a sufficient depth of experience and that Dr. Bain’s and Dr. Moulden’s evidence covered an insufficiently long period and failed to establish the necessary expertise might have sufficed.  As it was, that reason was in my view defective.
31.	The third reason was the absence of sufficient ‘evidence or authenticated evidence that he covered the full range of procedures expected of a specialist orthodontist’.   There is an overlap between this and the previous reason, but again there is an absence of explanation.  It seems from the statements that the reason was that the case studies did not include any moulds etc and there was no positive evidence of the carrying out of treatment of a specialist nature over the necessary range.  Further, there was an adverse conclusion drawn from the timing of appointments.  The claimant’s evidence was that he gave time where time was required.  In her statement, Dr. Hunter purports to carry out a calculation which showed that ‘each patient requiring a fixed appliance received about 2 ½ hours per year of Dr. Lynch’s time’  which was too short to carry out such complex work.  It seems to me that a point such as this should have been put to the claimant so that he could deal with it rather than appear in a statement supplementing inadequate reasons.
32.	I have no doubt that the reasons were inadequate.  The first reason may have been based on a misunderstanding of the evidence.  The statements made by the panel members do, however, justify the conclusion which was reached.  But I must bear in mind in accordance with the caution which, following Ermakov, I must apply that the statements do amount to a justification of the decision reached.  I do not for a moment suggest that any of the panel have said anything which they do not believe to be accurate and I recognise that the decision cannot be said to be irrational.  But I have to ask myself whether it was the only reasonable decision which could have been reached.  The answer is that it was not and so the misunderstandings in relation to the first reason are of some importance.  Where there are inadequate reasons and particularly where an important reason can be shown to have been based on a possible misunderstanding, the court will intervene if persuaded that the result might have been different.  The assertion  in statements made after the event that the result would not have been different  is of course entitled to be given weight, but it must be recognised that a reconsideration of a challenged decision in the light of subsequent knowledge is not necessarily to be regarded as wholly reliable since what matters is what would have been the decision at the time following a proper assessment of all material factors. This is not to impugn the good faith of the decision makers who understandably are concerned to  uphold their decision.
33.	It appears from the statements that the case studies were given little weight in the absence of moulds etc.  Mr. Havers submits that it was unfair of the panel to have raised this with the claimant since there is nothing in the guidance or the notes to suggest that such material should be produced.  Unless it was suggested that the claimant’s study reports were inaccurate, such material was not obviously needed.  While the panel did not reject the studies, it is clear that very little weight was attached to them.  Both Dr. Hunter and Professor Addy refer to the lack of any evidence to support the studies.  Professor Addy concludes in Paragraph 31 thus: -
“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.
34.	 It is for an applicant to establish that he has the necessary experience to fulfil the criteria set out in the Regulation.  Equally, the defendant is rightly concerned to ensure that only those with the necessary expertise are placed on the specialist list and the standard set is a high one.  The claimant should have appreciated that he could only succeed if he demonstrated from evidence and testimonials that he had expertise which was equivalent to that to be expected from one who had obtained a CCST.  He, it is said, should have known that he had to show the necessary breadth and depth of his experience and it was not for the panel or indeed the defendant to tell him how to do that.
35.	I recognise that there is great force in this. It would not be right to require the defendant or an appeal panel to advise an applicant how to establish his case or to point out deficiencies in his evidence with a view to letting him have an opportunity to remedy them.   But there is some guidance given.  The claimant was in my view entitled to believe that if importance were to be attached to a particular matter it would have been mentioned.  ‘Logs of treatments undertaken’ is fine so far as it goes, but does not make the point that an absence of supporting evidence will mean that very little weight is likely to be given to such logs.  In the hearing, the only reference to such evidence was the question whether he had ‘by any chance’ brought any models of his work.  In all the circumstances, since so much importance was attached to its absence, it seems to me that the matter should have been raised.  I appreciate that it may not have been appropriate to adjourn to enable the claimant to produce the material, but it might have been possible to permit him to produce it within a short time so that it could be considered before a final decision was reached.  It must have been obvious to the panel that the claimant was not represented and was labouring under the belief that the fact that he had experience of carrying out all sorts of orthodontic treatment over a substantial period and that he was held in high regard by his colleagues was sufficient.  It might have been that he was not doing himself justice.  Further, he was, as it seems to me, entitled to believe his case studies would be accepted to be accurate unless disabused of that belief by the panel.
36.	I have already said that it was unfortunate that the review under Paragraph 19 was carried out by the same person who chaired the panel.  But that is not if itself fatal.  It is true that no fresh evidence was presented and that might normally be a good reason to refuse a review.  In any event, the failure to produce sufficient evidence is not a good reason to reopen the matter unless there was a good reason for the failure and the fresh evidence might affect the result.  But the absence of proper reasons is material.  The claimant was unaware of the importance attached to the absence of supporting evidence.  If he had said that he had such evidence but had not submitted it because he had not been aware of the importance to be attached to its absence Mr. Howe’s decision might have been different.
37.	The claimant is able to practise as an orthodontist without being on the specialist list.  Mr. Garnham informed me, having taken explicit instructions from the defendant, that he may advertise himself as an orthodontist provided that he does not describe himself as a specialist.  He will not be in breach of the Code of Conduct if he does not use the word ‘specialist’.  This led Mr. Garnham to submit that, although no doubt it was desirable for the claimant to be on the list and it might affect to some small extent the volume of his practice if he were not, he did not lose much by his failure.  He was used by many dentists and his position so far as Whitecross was concerned assumed a steady number of patients.  But, as Mr. Havers pointed out, he might not remain with Whitecross.  He was prejudiced by not being on the list if he wanted or was obliged to practise without the Whitecross referral base.  In any event, as things stood now, some dentists who would otherwise be happy to refer to him did not do so because he was not on the list.  There is an actual effect on his earning capacity.  Although that may not be very great as things stand, it could increase and could become very significant.  He can obtain a CCST, but that would involve a 3 year full-time or 6 year part-time course.  For someone in his position, that would be difficult if not impossible to afford.
38.	Notwithstanding the criticisms I have made of the defendant, I have to consider whether to grant relief. I recognise that the panel was entitled to dismiss the claimant’s appeal on the material he put before it.  He did not produce sufficient evidence.  I see the force of Mr. Garnham’s submissions and I appreciate that a fresh hearing may well produce the same result.  Nevertheless, I am persuaded that the claimant has not had a fair crack of the whip and that he should have the opportunity to persuade a fresh appeal panel that he does indeed have the necessary experience to be on the specialist list.  He now knows what he must do to establish his case and I cannot say that he has no chance of success.  I am told, although I have not seen any of it, that he has produced some additional material.
39.	I will hear counsel on the precise nature of any relief. 
- - - - - - - - - - - - - - -
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.