England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		17th September 2008

1. HIS HONOUR JUDGE INGLIS: This is an appeal by Dr Christopher Edward Daniel Lamming against the decision of the Fitness to Practise Panel of the General Medical Council, made on 13th December 2007, to order his erasure from the Medical Register under section 35D(2)(a) of the 1983 Act.
2. The grounds of appeal in the appeal notice are:

"Having regard to all the circumstances of the case, including mitigating circumstances in particular my personal circumstances applicable at the time; the fact my clinical competence has never been in doubt or questioned; the fact that I have already suffered penalty by reason of dismissal from my employment with Leeds Teaching Hospital Trust, the sanction imposed of erasure is disproportionate and draconian when it is possible for the matter to have been disposed of by way of sanction of lesser severity, for example by way of suspension or a specified period."

There is now argued a second ground, namely that the Panel should have adjourned the proceedings to enable Dr Lamming to seek legal advice and representation at the point when they were considering the penalty of erasure. It seems to me that the second ground should be considered first, since, if the decision making process of the Panel was tainted by unfairness, one outcome could be that the case is remitted to the Panel for them reconsider the outcome in the light of further submissions and material that they may have seen.

3. The hearing had begun on 3rd December 2007 and ran over some seven days. Some of the allegations made against Dr Lamming were admitted by him at the outset, some were found proved and some were dismissed. At the next stage the Panel found that as a result of the matters proved or admitted, Dr Lamming's fitness to practice was impaired pursuant to section 35C(2)(a) of the Act (misconduct). Then they went on, having heard submissions from the GMC and Dr Lamming, to consider what the outcome should be and made the order for erasure. The appeal is brought only against the decision about erasure and not against the antecedent decisions. It is possible therefore to state the facts shortly.
4. In 2000, Dr Lamming was employed by the Leeds Teaching Hospital NHS Trust as a specialist registrar. He took a period of unpaid study leave in the United States of America in January of that year. The allegations admitted or proved are summarised in the Panel's reasons for determining that his fitness to practise was impaired and they are as follows:

"In or about March 1997 ... your contract of employment was transferred to the Yorkshire Deanery and you were appointed to the training post of Specialist Registrar in Paediatric Medicine at Huddersfield.

In or around December 1999, you commenced an Out of Programme Experience (OOPE) in Minneapolis, USA. By a letter dated 10 November 1997, Dr Lealman, Regional Adviser in Paediatrics, informed you that before commencing your training in the USA you were required to complete the necessary documentation and obtain the agreement of the Postgraduate Dean. The Panel found that before you commenced your OOPE in or around December 1999 you did not complete the necessary documentation or communicate your intention to the Medical Personnel Department and/or the payroll manager and/or the Trust (the relevant departments), but you did obtain the agreement of the Postgraduate Dean.

From about January 2000 to November 2000 you received monthly payments of net salary in the total sum of £31,275.80 (the monies). You were not entitled to receive the monies. The Panel found that you knew you were not entitled to receive them.

Between December 1999 and December 2000, you did not disclose to the relevant departments that you were receiving the monies. The Panel found that your conduct in this regard was dishonest, unprofessional and likely to bring the medical profession into disrepute.

By a letter dated 18 December 2000, the Trust's payroll manager requested repayment of the monies.

By a letter dated 12 March 2001 to Mr Tugwell, Revenue Manager of the Trust, you stated words to the effect that you believed that the monies represented funding for your first year's study leave granted by the Postgraduate Dean. The Panel found that your conduct in this regard was dishonest, unprofessional and likely to bring the medical profession into disrepute.

You also stated words to the effect that you would be returning to complete two years training at St James' Hospital and would repay the monies by accepting deductions from your salary upon resuming your training in Yorkshire.

In about December 2002, your OOPE in Minneapolis was interrupted. You accepted a training placement at the Leeds Teaching Hospitals and payment of your salary resumed at the full rate.

From about 1 April 2003 to about 30 June 2003, you were employed by the Trust as a Clinical Fellow in paediatrics in a locum position at a net salary of £3,075.06 per month. In July 2003, you worked as a locum at the Trust and elsewhere.

By a letter dated 7th April 2003, the Medical Personnel Department of the Yorkshire Deanery requested you to contact the Postgraduate Dean or the Manager-Medical personnel.

In about July 2003, the Trust erroneously paid £3,075.06 to you as salary for the month of July.

You have repaid £8,750 of the monies owed. However, £25,600.86 of the monies has not been repaid."

5. The essence of the case thus was that the doctor received, in error, over several months salary payments totalling over £31,000 and he kept the money knowing that he should not have received it and falsely asserted in a letter that it represented funding for study leave that had been granted to him. He had paid back in the intervening years only £8,750. The findings, which are not appealed, was that this was a dishonest course of conduct.
6. The history that had to be considered by the Panel, when it came to what sanction to apply, included the fact that in August 2004 the Professional Conduct Committee, that is the predecessor of the present Panel, found serious professional misconduct against Dr Lamming in that he had dishonestly represented his qualifications and experience, including that he had a Phd degree that he had not got and including representations about the nature of his clinical experience in particular posts he had held which were untrue. His registration had been suspended for three months. The decision of that committee is in the bundle. It is plain that it was a serious matter which resulted in Dr Lamming not being subject to erasure but possibly not by a great margin.
7. I consider first whether there was unfairness in the circumstances of which Dr Lamming came to represent himself when it came to deciding on the sanction. The hearing at which he represented himself had lasted seven days and no complaint is made about that generally, even though the matters that he faced were plainly serious in a procedure that might well end in erasure from the Register. Although the Panel carefully dealt with the decision making process separately, that is the findings on the allegations and the impairment of fitness to practice and sanction, and interrupted their findings at each stage, the concluding steps took place, as it seems to me, on 13th December. After the determination that fitness to practice was impaired, the chairman said:

"The Panel will now invite submissions as to the appropriate sanction, if any, to be imposed on your registration. Submission on sanction should include reference to the Indicative Sanctions Guidance, using the criteria set out in the guidance to draw attention to the issues which appear relevant in this case.

Mr Atherton [that was the representative for the GMC], before I ask you to make your submissions I am just going to the inform the doctor of the process involved. Dr Lamming, it is at this stage when you make your submissions that you are able to adduce further evidence as to your character and that can be written evidence, or indeed, you can produce character witnesses. You may wish to produce testimonials and you may wish to inform the Panel of any mitigating circumstances. That is the procedure..."

Mr Atherton for the GMC then made submissions to the effect that the appropriate sanction was erasure from the medical register. He disclosed the circumstances of the previous finding of professional misconduct. He referred to the Indicative Sanctions Guidance, which is the document issued by the GMC, and he made submissions in support of the GMC's position. There was then this exchange:

"THE CHAIRMAN: Thank you. It is now ten-to-eleven. Dr Lamming, you may wish to have a little time to prepare your submissions. I would think it appropriate that the Panel now has a shortish adjournment. Legal assessor?

THE LEGAL ASSESSOR: Before you do, Dr Lamming, I would like you to see the advice that I shall be giving the Panel when you have given your submissions so that you can again know what it is that you need to be looking at. Of course, a copy for Mr Atherton as well.

THE CHAIRMAN: How long do you think you will require, Dr Lamming?

DR LAMMING: Half an hour.

THE CHAIRMAN: Shall we resume at half-past eleven so that will be 40 minutes in fact."

8. Dr Lamming then made his submissions. He developed them cogently and at some length. They included, firstly, that some allegations had been admitted from the outset, others were found proved and some were not. Secondly, he accepted that he had been the subject of a sanction before. Thirdly, there was a range of sanctions: he could give undertakings especially about the payment and, depending on the sanction that the Panel decided upon, his ability to repay the money might be affected. Fourthly, that there had been turmoil in his life, with divorce, constant withdrawal within himself without looking for outside help and in a private period of session he produced evidence of the circumstances and treatment for depression. Fifthly, he handed in a bundle of references of other documents and spoke to them in detail. Sixthly, he accepted he had made a serious mistake and apologised for it. He never denied that the money was not his and he had entered into an arrangement to make amends and then the final peroration of what might be described as mitigation went as follows:

"I wish to assure you that I have well and truly learned from the lessons of the last few years, in particular the importance of paying attention to detail and making sure there is a clear understanding by persons, in particular myself, of who is doing what, when and how so that to the extent that it is possible for me to do so I have eradicated the possibility of being any [re]petition of the matters which have resulted in two referrals to the GMC. Further, and more importantly, perhaps, I have learned that being a good medical practitioner is not simply about being competent medically but also demonstrating honesty, trustworthiness and integrity so both the public, including patients and the medical profession can have confidence in me who possesses all the necessary attributes to make a good doctor.

I am conscious that a second referral to the GMC could result in the possibility of my being struck off. If such a situation were to arise I believe that it would deprive me of a career that I have striven so hard to develop not for any personal wealth or vanity, as my current level of income demonstrates, but for the health and advancement of medical science and the benefit of my patients, many of whom have nothing.

Furthermore, to be struck off would seriously damage my employment prospects, almost certainly resulting in my loss of income making it almost impossible for me to ever discharge my outstanding debts to the Trust with the likely consequence of personal bankruptcy.

I would urge you to conclude that it would be a disproportionate outcome to something that commenced so positively, that is the pursuit of the medical research, which has concluded with me having an unenviable disciplinary record and undergoing further disciplinary action whilst the matter of my clinical competence or the care of my patients has never been questioned."

The Panel then withdrew to consider the sanction.

9. Mr Qazi, for the doctor, in his skeleton argument submits:

"The Appellant, throughout the proceedings before the Panel acted in person. It is respectfully submitted that once the Panel had excluded conditional registration, suspension, and were minded to determine that erasure was the appropriate sanction it should have adjourned the proceedings to afford the opportunity for representations in mitigation.

It is respectfully submitted that this would have been the fairest way forward as

(i) the direction as to erasure was the most severe sanction available

(ii) in considering the determination on immediate sanction there were compelling reasons to which the Panel did have regard such as health and state of mind which could or ought to have been properly addressed through legal representation had the Appellant so wished."

10. Those submissions were developed orally by Mr Qazi and he said, once the Panel were considering erasure, an opportunity should have been afforded to the appellant to seek further advice. Material might have been marshalled and presented better, in particular about the appellant's own health and the part that ill health had to play, both in 2000 and at the time the Panel were considering the position, and an opportunity for more information should have been taken and legal advice. The effect was absence of detailed medical evidence and, since his credibility was already undermined by the findings against him already made, legal representation might have had more force and an analogy is drawn with a serious criminal case in which the defendant represents himself at the trial and is convicted, when it is submitted that it would be usual and right for the trial judge then to give the defendant, who might be facing a long sentence, an opportunity for legal representation at that stage.
11. Mr Hare for the GMC submitted both in writing and orally that there was nothing wrong with what had happened. In the submissions that he listed in the end, he said there were no authorities in support of this approach; that a general practice of adjournment at the third stage would be difficult administratively and is unusual; and, thirdly, the rules are a detailed procedural code and they give power to adjourn for the information of the court if required and do not include a reference to adjournment to obtain legal representation. Fourthly, there has to be a reason for adjournment. Fifthly, the doctor did not request one when he knew that erasure was on the cards. Sixthly, he was able to put forward his case plainly and, seventhly, what the additional material that the Panel would have had the advantage of hearing would have been, had this course been taken, has not been revealed, so that, for example, there is no new medical report which might have cast a different light on the position for the Panel.
12. This is not a ground of appeal, in my judgment, upon which the appeal should succeed. The Panel has to act fairly at all times and that is an overarching requirement in addition to the detailed rules, as I accept, and therefore there are cases where at particular times in proceedings an adjournment is called for, even though inconvenient and unexpected, in advance, even perhaps in some cases an adjournment to allow for legal representation, for example when it is plain that the respondent is unable to grapple with the complexities and details of the case that he is facing and the proceedings could not fairly carry on. But in my judgment that is not this case. Dr Lamming was ably conducting his case, as he had done for some days. He was able fully to put forward his case on penalty. Nothing is pointed out in the subsequent decision of the Panel or in the process at which they arrived at their conclusion that is said to be a deficiency because of failure to take into account something that could or should have been advanced on behalf of Dr Lamming. Where it is said that there may have been further material, for example medical evidence, none has now been produced to enable the court on this appeal to weigh whether the Panel was deprived of material they ought in fairness to have been able to consider and that might have made a difference to the outcome. In my judgment, no procedural unfairness is demonstrated.
13. On the main ground, which I think Mr Qazi has described as the main ground at one stage, Mr Qazi in his written submissions said:

"It is respectfully submitted that the imposition of erasure as sanction in the light of the whole of the circumstances of the case was disproportionate as:

(i) the Panel failed adequately or at all to attach due weight to personal mitigation, insight to the behaviour giving rise to the Misconduct and the very clear evidence of clinical competence to a very high standard.

(ii) had sufficient weight been attached to factors cited at 3(i) herein then a balanced and reasonable conclusion as to sanction should have been other than that of erasure.

(iii) by failing to attach the appropriate weight to relevant considerations the decision ultimately reached on sanction was manifestly wrong.

(iv) in consideration of the competing interest of both the Appellant and the Public, insufficient weight was attached to the clinical competence and the presentation of no risk by the Appellant in the discharge of such duties since his registration.

4. In considering the overall evidence, the Panel ought to have on careful analysis followed the principle adopted in Dr Bijl v GMC (PC Appeal No.44 0f 2001) - where it would not have been necessary to erase as the Misconduct findings albeit of dishonesty were neutralised by the following features, insight, willingness to repay and the fact that the Appellant did not initiate any of the overpayments leading to findings of dishonesty."

14. Developing those submissions orally, Mr Qazi said firstly this conduct would be regarded as at the lower end of the scale of dishonesty: he did not initiate the mistaken receipt of the money. Secondly, there was some insight into the seriousness of the conduct. Thirdly, the weight accorded by the Panel to dishonesty was excessive. Fourthly, it is not a case where his competence as a doctor was in any way in question and therefore not a case where the patients were at risk. Fifthly, he accepted the balancing exercise in which public interest comes into the scale against the interests of the doctor but said that the result of the exercise was a disproportionate sanction being arrived at.
15. Mr Hare made submissions in writing and developed a number of points from them in oral argument. Firstly, this is the decision of a specialist panel which deals with the public interest with regards to the status of the profession and dishonesty in that regard is particularly important. Secondly, the aggravating features were serious ones -- the amount of money, dishonesty over several months -- compounded by a dishonest letter when the facts became known to the Trust. Thirdly, there was another course of conduct which had led to a hearing in 2004 which the Panel were entitled to take a particular view of. Fourthly, the Panel had seen the appellant over a number of days and were in a better position than an appellate court to decide about him and his nature and his personality and propensities. Fifthly, when considering proportionality, which comes into play, it is necessary to consider the other alternatives, as the Panel did (that is no action, conditions on registration and undertakings and suspension of up to a year), and it is submitted that they do not meet the seriousness of the case and the Panel were right to take that view and they did expressly consider the other possibilities. Sixthly, personal mitigation: illness and accidents, adverse circumstances including divorce were taken into account, but it is not right to say that that should be given more weight as against the public interest and such serious features.
16. The Panel, when they came to make their own decision, had referred to the Indicative Sanctions Guidance of April 2005. That is not a statutory guideline and was produced, Mr Hare told me, by the GMC, apparently, as it seems to me, to draw together the considerations shown by previous decisions, including those before 2004, as being in accordance and so some consistency of approach when Panels are considering sanctions for misconduct or shortcomings in the behaviour of medical practitioners. The particularly relevant features of the sanctions guidance are in paragraph 13. The public interest is set out, including, amongst other things, the protection of patients, maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour. Particularly serious matters which may have from time to time to be considered are identified, at paragraph 39: sexual misconduct, dishonesty, failing to provide an acceptable level of treatment or care. Dishonesty is dealt with at paragraph 44, where the indicative guidance says:

"Dishonesty, even where it does not result in direct harm to patients but is for example related to the doctor's private life, is particularly serious because it undermines the trust the public place in the profession. Examples of dishonesty in professional practice could include defrauding an employer, improperly amending patient records or submitting or providing false references, inaccurate or misleading information on a CV and failing to take reasonable steps to ensure that statements made in formal documents are accurate. The Privy Council has emphasised that:

'... Health Authorities must be able to place complete reliance on the integrity of practitioners; and the Committee is entitled to regard conduct which undermines that confidence as calculated to reflect on the standards and reputation of the profession as a whole."

17. The Panel, when it considered this case against the background of that guidance, had before them and considered the various alternatives, that is no order, conditional registration, suspension of up to 12 months and erasure and it is plain they also had in mind the possibility of undertakings, underpinning one or more of the first three at least of these sanctions. In their determination they gave the context, saying:

"The Panel has a duty to protect the public interest. This includes the protection of patients, the maintenance of public confidence in the medical profession, and the declaring and upholding of proper standards of conduct and behaviour as set out in the GMC's document Good Medical Practice. The Panel recognises that the purpose of sanctions is not to be punitive, although they may have a punitive effect."

18. They summarise the findings of the material part put before the Panel, including Dr Lamming's final submissions, which they dealt with some length. They then said:

"The Panel considers that the mitigating factors in your case are outweighed by the very serious concerns raised by the Panel's findings in this case, which represent a serious breach of the principles and standards of conduct which the public expect from registered medical practitioners..."

The Panel noted Mr Atherton's submissions that erasure was the appropriate outcome. They said:

"However, having regard to paragraph 19 of the Indicative Sanctions Guidance, the Panel has formed its own independent judgement as to the appropriate sanction in this case."

19. I have been referred to the case of Bijl. Submissions have been made dealing with another point about how the court should approach the appeal under section 40. The Act itself in section 40 is silent as to the nature of the appeal. The practice direction CPR PD Part 52, paragraph 22.3, says that the appeal will be by way of rehearing. It is my understanding from reading the authorities that that was in fact the position under the previous regime, although the outcome was different in that the Privy Council advised Her Majesty what the result should be. Under the previous regime, there was a long line of authority explaining the reluctance of the court to alter the judgment of a specialist disciplinary tribunal, exemplified, for example, in Dad v the General Dental Council [2001] WLR 1538; Bolton v Law Society [1994] 1 WLR 512; Gupta v General Medical Council [2002] 1 WLR 1691; and Marinovich v General Medical Council [2002] UKPC 36. There have been two decisions of the Court of Appeal since the present regime came into effect in 2003 that are thought possibly to give different guidance. They were both decided within a short time of each other but the first case was not referred to in the second. The first is Meadow v GMC [2007] QB 462 in the Court of Appeal. Auld LJ analysed the statutory provisions and referred to the line of authorities and attached importance to the fact that the appeal under Part 42 was by way of rehearing. Nonetheless, the single test of "wrong" or possibly "clearly wrong" as approved at paragraph 125 has to be read with paragraph 197, where, dealing with the outcome of that particular case, he said:

"On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors:

i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;

ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;

iii) The questions of primary and secondary fact and the over-all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."

The other authority is Fatnani and Raschid v GMC [2007] 1 WLR 1460 and was concerned directly with the section 40 approach on cases where a sanction is in issue. Unfortunately, there was no reference to the Meadow case in that case. The leading judgment was given by Laws LJ. He says:

"As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations at paragraph 34 of Ghosh v GMC [2001] 1 WLR 1915, page 1923G:

'The board will afford an appropriate measure of respect to the judgment in the committee whether the practitioner's failing amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee's judgment more than is warranted by the circumstances.'

These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.

... In my judgment the test which he applied, namely whether the decision of the Panel was clearly wrong, is with respect not helpful or adequate, at least unless it is very clearly understood in the context of the two principles or strands, which I have described, which emerge from the Privy Council cases."

20. No doubt, if the later court had been referred in terms to the case of Meadow, the reconciliation in what may be a difference in emphasis at least would have been expressly achieved. Since it is plain that the actual approach of Auld LJ was that the status of the decisions of the Panel has to be accorded respect for the reasons that he gives in paragraph 197 and, since he expressly refers in that paragraph to the fact that the approach of the court as to whether a decision is wrong is informed by authorities, it seems to me that the difference in approach, if any, is very slight and unlikely to have a practical effect in many cases, even if it exists. That there is a potential difference has been recognised, for example, by Silber J in Cohen v GMC [2008] EWHC 581 (Admin). As in that case, I do know think it necessary to state the legal principles to the right approach to section 40 where there is no need to do so, beyond recognising the general approach that emerges from both Court of Appeal cases and has arisen since the new regime came into effect. That the court is concerned with whether a decision appealed was wrong is a truism and is confirmed by Part 52 itself. In deciding whether it was wrong, the court, as Auld LJ expressly says, has regard to the authorities so that particular respect must be accorded to the judgment of the appropriate Panel or Tribunal, whose task it is to maintain the standing of the profession concerned in the public interest in dealing with what sanction to apply to misconduct. Applying that approach here, I do not find it possible to say that the Panel were wrong in their conclusion. As a matter of form, they applied all of the considerations fully and in a highly structured way. In particular, they balanced the public interest considerations with the effect of serious dishonesty against the personal position of mitigation of the appellant, including his health at the material time and at the time of their decision. They were entitled to take a particularly serious view of this course of conduct and I do not accept Mr Qazi's categorisation of it as at the lower end of the scale of dishonesty. It was a large sum and the period involved was a long period and compounded at the end by a dishonest letter.
21. They were entitled to have in mind the proceedings in 2004. It would be wrong and it would have been wrong to treat them as sequential. This is not a case of a new course of dishonesty embarked upon after already being in trouble but they were entitled, and indeed bound, to have regard to the fact that the 2004 case illustrated itself a serious course of dishonest conduct and they were entitled to take that into account. In their assessment of the depth of the appellant's behavioural problems, they properly considered the alternatives and they properly considered the personal mitigation. In explicitly balancing his interest and position against the interests of the public, they came down decisively in favour of erasure as the only appropriate remedy. Contrary to Mr Qazi's submission, I do not find it possible to say that the conclusion that they arrived at in striking that balance was wrong. Indeed, such a course of conduct would be likely to lead any panel to the conclusion the erasure was necessary, despite the disastrous consequences for the doctor. In my judgment, the conclusion reached was the right inclusion and for the right reasons and this appeal must be dismissed.
22. MR HARE: My Lord, I am obliged for that. My Lord, the GMC applies for its costs of today. There has been a schedule served on the other side and I hope a copy of that is in the papers before your Lordship. If not, I can hand up a spare copy.
23. HIS HONOUR JUDGE INGLIS: What is the position about the funding of this appeal, Mr Qazi?
24. MR QAZI: Well, Dr Lamming funds himself for these purposes. Clearly he is not currently in any form of employment. My Lord, I have had sight of the statement of costs of the General Medical Council --
25. HIS HONOUR JUDGE INGLIS: I think the principle of costs, really, unless there is something that you can draw to my attention, follows the event. That is the effect of Part 44. Whether the GMC get any money is entirely another matter, about which they may maintain little confidence, but I do not think the actual making of the order can be affected by possible impecuniosity.
26. MR QAZI: My Lord is quite right and in the circumstances I do not seek to persuade you in any other way.
27. HIS HONOUR JUDGE INGLIS: So the general rule of costs must be made against the doctor. What do you say about the schedule? I have looked at it myself.
28. MR QAZI: My Lord, I have seen it. It is commensurate to the doctor's costs in any event but I understand my friend has amended it slightly insofar as his side of the disbursements are concerned.
29. HIS HONOUR JUDGE INGLIS: He has not in mine.
30. MR HARE: No, I apologise for that, my Lord. The matter only came to light yesterday. It was essentially my error in that my fee for drafting the skeleton argument was not included in the fee as entered here. That fee amounts --
31. HIS HONOUR JUDGE INGLIS: When was the skeleton done?
32. MR HARE: September, my Lord.
33. HIS HONOUR JUDGE INGLIS: Well, it is September now.
34. MR HARE: 4th September, 2008, it is dated.
35. HIS HONOUR JUDGE INGLIS: If it is your preparation for the case, I am reluctant to -- I think I look at the amount of the skeleton and the brief fee together, because that is really the immediate preparation for the presentation of the case, is it not?
36. MR HARE: Well, it is. The only point is that the matters were billed separately. As my learned friend said, it does not lead to there being any excess over what he would have been claiming had the role been reversed.
37. HIS HONOUR JUDGE INGLIS: What is the figure?
38. MR HARE: It is an additional £850, my Lord, so it brings the total to £7,995.40.
39. HIS HONOUR JUDGE INGLIS: Right. What do you say about the statement generally, Mr Qazi?
40. MR QAZI: Well, my Lord, again, all I can say is that, insofar as these costs are concerned, the overall position is not significantly greater than that of Dr Lamming's costs and, of course, without seeking to disturb my learned friend's preparation of the case, I understand skeleton arguments and so on and so forth are often billed separately in any event.
41. HIS HONOUR JUDGE INGLIS: Well, that does not mean they are allowed separately. One looks at the figure in the round.
42. MR QAZI: Yes, but, again, I am going to take a neutral position because my Lord is perhaps best placed in the sense that you of course will know from your overall assessment of costs generally and experience that brief fees often do come with various built-in packages, as it were. But I am not going to take any issue with it.
43. MR HARE: My Lord, could I just refer to two aspects very briefly. They relate to my instructing solicitors' costs.
44. HIS HONOUR JUDGE INGLIS: I will tell you what I am thinking overall -- you are leaving it to me, are you?
45. MR HARE: Well, my Lord, that is the fairest way forward.
46. HIS HONOUR JUDGE INGLIS: All right, but it is my decision, because I have to assess it and I am not going to -- right, what about the hourly rate? £203 a hour.
47. MR HARE: Yes, well, that is the standard rate. My solicitors are from Manchester. That is the standard rate for grade 1. That relates to the other matters, my Lord, that I wanted to raise. That is, of course, the travel time. Unfortunately --
48. HIS HONOUR JUDGE INGLIS: I am on the hourly rate at the moment. Why do you have a grade 1 for this appeal? Do you always have a grade 1 for this appeal? (pause)
49. MR HARE: I understand that most of the solicitors in the GMC who deal with these matters are in fact at grade 1. There is no policy discussion that it must be at grade 1 but obviously is what happened in this case.
50. HIS HONOUR JUDGE INGLIS: Well, I think if you are going to have grade 1 in particular I have to look at the number of hours spent, because the bundles presumably have been done by the appellants --
51. MR HARE: No, they have not. That was the point I was going to make, my Lord. The reason for over eight hours on documents is that the bundles have been produced by the GMC.
52. HIS HONOUR JUDGE INGLIS: What, with an index agreed or what?
53. MR HARE: Yes.
54. MR QAZI: I understand it was a joint effort with contributions to index by both parties.
55. HIS HONOUR JUDGE INGLIS: Still, what do we have: work done on documents is always the killer, is it not? It is over ten hours. That is quite a long time. I mean, apart from getting the transcript and seeking your advice about the merits of the case, if something about the case ought to be acknowledged or dealt with it is an administrative job really, is it not?
56. MR HARE: There were also the authorities to collate and include within the bundle, which was done in this bundle, which is not always done. Clearly the parties often --
57. HIS HONOUR JUDGE INGLIS: You mean copied and put in the bundle, do you?
58. MR HARE: Well, identify what they --
59. HIS HONOUR JUDGE INGLIS: That is not a grade A's job. You have eight hours of grade A's time.
60. MR HARE: Well, all we say, my Lord, is the vast majority of that work was done by the respondent's instructing solicitors and the bundles are quite voluminous, as your Lordship has seen, and, notwithstanding those hours spent on those documents, as my learned friend has candidly admitted, the fees on the other side are very close to these, so --
61. HIS HONOUR JUDGE INGLIS: Well, maybe.
62. MR HARE: -- we say in those circumstances they are not disproportionate. The other matter, of course, my Lord, relates to travel time and, as I indicated, my solicitor is based in Manchester.
63. HIS HONOUR JUDGE INGLIS: Why do they have to come? Because they do not on quite important cases, just counsel, if they do not involve the possibility of taking instructions or dealing with evidence.
64. MR HARE: Well, as your Lordship saw in the course of the hearing this morning, there was a reason why my instructing solicitor left court in order to obtain information about the sequence in relation to the 2004 committee and then the subsequent Panel, which is not a matter I would have been able --
65. HIS HONOUR JUDGE INGLIS: You do not need a grade 1 to do that, do you?
66. MR HARE: Well, my Lord, it may not do so but the point is that Ms Yates had conduct of this matter and she was therefore the obvious person who was familiar with the file to attend the hearing. She did so on that basis, my Lord.
67. HIS HONOUR JUDGE INGLIS: And you say that the number of hours should go up, do you? Three hours and then six hours travel.
68. MR HARE: Yes.
69. HIS HONOUR JUDGE INGLIS: You are not adjusting that? I thought there was some adjustment.
70. MR HARE: No, I was not going to make any adjustment, although, of course, my instructing solicitor has been here for longer, but we do not seek any adjustment for that.
71. HIS HONOUR JUDGE INGLIS: Yes, thank you very much.
72. I need to assess the costs which the unsuccessful party be ordered to pay of the GMC. I do not in the end say that the recoverable costs ought to be restricted overall to a grade 2 or a grade 3 solicitor. It is matter of some importance so, at the charging rate of £203 a hour, this is a case where advice was obtained for counsel and it seems to me a great deal of work is administrative work, and so I do not allow more than six hours on documents, as opposed to the eight hours and ten. That is plain.
73. The solicitors come from Manchester to be with counsel. On reflection, I do not think it is unreasonable to have someone with counsel on this appeal. Even though grade 1 has conduct of the case, it is not really foreseeable that anything is going to arise that requires expertise of a high level to help counsel on the day. Accordingly, I allow three hours at the hearing and six hours travelling at a rate that reflects a lower grade fee earner at £175 an hour.
74. As far as counsel's fees are concerned, Mr Hare advised and the fee of £1,000 is acceptable. The brief fee was £1,500, but he tells me that separately billed is the skeleton argument. Skeleton arguments have of course been of use and he has spoken to it in the course of this hearing but I think it right that, when the skeleton argument, as here, has been prepared within a few days of the hearing itself, the overall amount charged for the preparation of the hearing, that is the presentation including the skeleton argument, needs to be reviewed, so the overall amount I allow for conducting the hearing and the skeleton argument on a aggregate figure is the sum of £2,000.
75. With those adjustments, the appellant pay the costs and someone will tell me what the resultant figure is.
76. MR HARE: I will in a moment work that out, my Lord. (pause)
77. My Lord, I make those deductions add up to a total of just over a thousand pounds, £1,008, making the overall total £6987.40.
78. HIS HONOUR JUDGE INGLIS: Thank you. The appeal is dismissed. The appellant pay the respondent's costs, summarily assessed, at £6,987.40.