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
		5th May 2009

1. MR JUSTICE PLENDER: On 14th November 2008 the General Dental Council suspended from practice for a period of 6 months a dentist named Kristian Reza Kalhor Sadighi. No allegation against Mr Sadighi was made to the effect that his standard of dentistry was in any way defective. The burden of allegation made against him, which was found proved by the General Dental Council's Professional Conduct Committee, was that he, together with his sister, Miss MM Kalhor Sadighi, re-wrote part of the dental records of a patient who made a complaint against the practice, and presented the partially re-written record to the General Dental Council as though they were original records made in respect of the patient, contemporaneously with her treatment. It was alleged that Mr Kristian Kalhor Sadighi did this intending to deceive the patient, the General Dental Council and the public into believing that the re-worded records were contemporaneous records relating to the treatment of the complainant. It was alleged that this conduct was inappropriate, liable to bring the dental profession into disrepute and dishonest.
2. Against that finding and penalty, he appealed to the High Court, where he is represented by Mr Beaumont of counsel. Mr Beaumont first submits that the decision of the Professional Conduct Committee is defective and should be set aside, because the members of the Professional Conduct Committee were appointed by the General Dental Council, and the Professional Conduct Committee was under the chairmanship of one Dr Leitch, who had been an elected member of the General Dental Council from 2001-2003. Mr Beaumont makes it clear that there is no allegation of actual bias against Dr Leitch, but he says that as Dr Leitch was an elected member of the General Dental Council, he would be taken by a reasonable observer to be associated with it and have a degree of allegiance to it and would, therefore, be taken to have allegiance with the body prosecuting Mr Sadighi.
3. Referring to R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119, he quotes Lord Browne Wilkinson, saying that in such a case as this "there is no room for fine distinctions". But at the point in his judgment where he said there is no room for fine distinctions, Lord Browne-Wilkinson was referring to the distinction that might otherwise be made between Amnesty International, Amnesty International Ltd and Amnesty International Charity Ltd, Lord Hoffmann having been formally involved in only the last of those three. Formal distinctions between those three entities were, in Lord Browne-Wilkinson's view, inappropriate, because an objective observer might reasonably infer that a person interested in, and supporting, the last of those three entities would be more than usually sympathetic to the first, which was the party intervening in the procedure, intervening in the person of Lord Hoffmann's fellow trustee of the third of those entities.
4. In the present case, however, Dr Leitch ceased to be an elected member of the General Dental Council no less than 5 years before the institution of the proceedings. An observer might well infer that Dr Leitch, as a former member of the General Dental Council, had more than a usual interest in upholding high standards of competence and probity among dentists, but would not reasonably infer that Dr Leitch favoured the prosecution of a dentist in every, or any, particular case in which the General Dental Council might formally bring such proceedings.
5. Dr Leitch did not play, nor, as I have been told by counsel for the General Dental Council, did he ever play, any part in determining whether a prosecution should be brought; nor is it easy to see a rational basis upon which an informed observer might imagine that Dr Leitch, or somebody in Dr Leitch's position, would always favour the prosecution of dentists. Dr Leitch, after all, was such a dentist, and subject to the discipline along with others.
6. Moreover, by a letter dated 30th October 2008 the General Dental Council supplied to the appellant's solicitors details of members of the Professional Conduct Committee to hear the complaint, including Dr Leitch, along with an extract from his curriculum vitae, which stated that he had been an elected member of the General Dental Council from 2001-2003 and had sat on the Conduct and Health Committees at the time, before becoming a member of the Fitness to Practise Committee. Solicitors for the appellant replied: "None of the proposed committee members are known to our client". From this I infer that there is likely to have been discussion between the solicitors and the client about the members of the Committee.
7. Furthermore, at the opening of the hearing Dr Leitch asked if there were any objections. None were made. Mr Beaumont says this is not enough. Dr Leitch, he says, should have pointed out that he had been a member of the General Dental Council and asked if there were objections. To say that Dr Leitch should have put matters in that way is to presuppose that a reasonable outsider might suspect bias in favour of the prosecution by reason of the fact that 5 years previously Dr Leitch had been an elected member of the General Dental Council. For the reasons that I have given, I do not accept that a reasonable outsider might come to that the view. I do not, therefore, find any fault in the way in which Dr Leitch first inquired whether there were any objections to members of the Committee.
8. Mr Beaumont's next point was that under the General Dental Council (Constitution of Committees) Order of Council 2006, "the Professional Conduct Committee is composed of members appointed by the Appointments Committee composed of members appointed by the General Dental Council". Quoting Lord Steyn Lawal v Northern Spirit [2003] UKHL 35, Mr Beaumont submits that the public perception of the possibility of unconscious bias is the key. Members of the public might suspect an unconscious bias in a committee, like a professional conduct commit, composed of individuals appointed by an appointments committee, in turn appointed by the General Dental Council.
9. I very much doubt that the interposition of the Appointments Committee is insufficient to resolve any doubt that an objective bystander might have in the impartiality of the Professional Conduct Committee. In determining whether an impartial observer might have such doubts, I looked to the terms of the General Dental Council (Appointments Committee and Appointment of Members of Committees) Rules Order of Council 2006. Rule 3 of these rules provides:

"(1) There shall continue to be a committee of the Council known as the Appointments Committee.

...

(4) The Chairman and members of the Appointments Committee shall be persons who are not members or employees of the Council."

At rule 7 we read:

"(1) The term of office of a member of the Appointments Committee shall be five years from the date of his appointment."

10. Rule 8 provides that the Appointments Committee shall select appropriate persons from among those applying for appointment as members of the Committee. They may place advertisements, receive applications and conduct interviews. By rule 8(3)-(4):

"(3) The Appointments Committee shall not enter in the list maintained under paragraph (1) the name of a person who has been selected by the Council under rule 13 to be a member of the panel referred to in that rule.

(4) Subject to paragraph (5), the Appointments Committee shall remove from the list maintained under paragraph (1) the name of any person—

...

(b) who in the opinion of the Appointments Committee has ceased to be an appropriate person."

11. Rule 9(2)(b) provides that in making nominations the Appointments Committee shall have regard to the rules of natural justice. It was urged on me by Mr Beaumont that the impartial observer is not to be presumed omniscient and may come to the conclusion that the interposition of the Appointments Committee is insufficient. While I accept that the impartial observer is not to be presumed to have a detailed knowledge of the facts and matters upon which his judgment is to be taken into account, I do not accept that the impartial observer must be a person who is ignorant or unaware of central matters relating to the impartiality or otherwise of a body, such as the Appointments Committee.
12. In Anthony Peter Sadler v General Medical Council [2003] WL 21492013 a committee of the Privy Council said:

"There is no general principle of Convention jurisprudence which prevents professional self-regulation".

The present case is not based upon the European Convention on Human Rights, but on questions of domestic law. Nevertheless, it appears to me that what is said by the Privy Council in that case is equally true of common law. Professional self-regulation is not prohibited. To say that a body lacks impartiality when its members are appointed by an Appointments Committee set up in accordance with Statutory Instrument 2006 No 1664, because the Appointments Committee is itself composed of individuals nominated by a professional body, is very close to advancing the proposition that professional self-regulation is no longer permitted.

13. Mr Beaumont's second ground of appeal was that the Professional Conduct Committee was inconsistent in concluding, on the one hand, that the appellant was guilty of dishonesty, while adding, on the other, that he lacked insight into his conduct. Counsel submitted that a person who lacks insight cannot be dishonest.
14. That is not the way in which I read the Panel's wording at all. As not infrequently happens with bodies which are bound to resolve disciplinary and criminal matters, the Panel first looks at the question of dishonesty. That had to be judged by the standards of ordinary honest people. On the facts before it, the Panel had evidence, mostly unchallenged, that the notes which purported to come from Miss Kalhor Sadighi were in fact composed by her and by her brother, Dr Kristian Kalhor Sadighi, after the event, and were supplied to the General Dental Council so that the GDT was liable to draw the mistaken inference that these were contemporaneous notes.
15. These facts, by themselves, formed a basis on which it was open to the Professional Conduct Committee to conclude that there was dishonesty, but the Professional Conduct Committee did not reach its conclusion on that basis alone, but after hearing from Mr Kalhor Sadighi, of whose prevarication, to use the Professional Conduct Committee's word, that Committee complained. In the light of his conduct during the hearing, as well as the central facts alleged, the Committee found that there was dishonesty.
16. Turning to the question of lack of insight, the Committee, as I read it, is making the point, which is familiar to those who have to deal with criminal matters, that a person who has acted dishonestly, measured by the standards of ordinary, honest people, may nevertheless fail to appreciate the essential dishonesty of the deception in which he was engaged. This was an aggravating factor because it made it more likely that the dishonest conduct which the Professional Conduct Committee found proven might recur. This was a factor which the Professional Conduct Committee was entitled to take into account when determining the appropriate sanction.
17. When reading the present case in some detail, and with interest, as I have done, I was at first sight much concerned by the gravity of the penalties imposed in the present case. Here I understand there is a brother and sister maintaining a joint practice. The sister has been subjected, in respect of the same sequence of events, to a period of suspension for 6 months, which period is shortly to come to an end. The imposition of a period of suspension upon the brother at the present juncture cannot fail to have a serious impact upon the viability of the practice. I have therefore considered whether, in these circumstances, the imposition of the penalty upon the brother, Mr Kalhor Sadighi, is excessive.
18. I have, however, been referred to the judgment of Law LJ in Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46, where his Lordship says:

"... the views of the Fitness to Practise Panel [in that case the GMC] are what Parliament has decided primarily are the ones that should prevail."

The professional body is best placed to determine the sanction to be applied to unprofessional conduct.

19. Bound as I am by the judgment of the Court of Appeal in this matter, I conclude, not without some reluctance, that I cannot properly substitute my own judgment of the appropriate penalty for that which has been imposed in the present case by the Professional Conduct Committee.
20. Apart from that, it has been submitted to me that the conduct complained of here is serious misconduct, of which the Professional Conduct Committee could have taken the view that erasure was appropriate. The nearest analogy in criminal law, he said, is conspiracy to pervert the course of justice. The potential effects of the dishonesty, which the Professional Conduct Committee found proven in this case, were serious. It was liable to lead to a loss of confidence in the profession.
21. Guidance as to the effect of dishonesty is given in paragraph 3 (sic) of the Guidance for the Professional Conduct Committee, which states:

"Dishonesty, particularly when associated with professional practice, is highly damaging to a registrant's fitness to practise..."

22. I conclude that the question that I have to address is whether the penalty imposed was manifestly excessive. My conclusion is that it was open to the Professional Conduct Committee to take the view that the breach in this case was of sufficient gravity to merit the sanction that they imposed. Accordingly, this appeal will be dismissed.
23. MS PASCHRES: My Lord, I am instructed to make an application for costs. Has my Lord had a statement of costs from the respondent?
24. MR JUSTICE PLENDER: I have not — from either side.
25. MS PASCHRES: May I hand my copy up? (Handed). It has been supplied to the respondent in advance of today's hearing. The sum sought is £9,829.51. It is broken down as my Lord sees.
26. MR JUSTICE PLENDER: Yes, I do.
27. MS PASCHRES: I apply for the full sum, my Lord.
28. MR JUSTICE PLENDER: Mr Beaumont, what do you say about this?
29. MR BEAUMONT: I cannot resist an application for award of the costs, so the only question is quantum. I take no issue with my learned friend's fees at all. As far as the solicitors' costs are concerned, I do take issue with the need for the solicitors to use three solicitors. As a matter of principle, that is unnecessary and disproportionate. I remind your Lordship that this was not the respondent's appeal; it was our appeal raising points of law, which were uniquely a matter for counsel. She admirably dealt with them in her skeleton argument, and apparently gave advice, according to this note, as well. The solicitors — the firm that is — had to read what I produced and had to read what she produced.
30. They did not need to produce the first two bundles. As far as the third bundle is concerned, that was, on the face of it, capable of being produced by counsel. I note that it has a Capsticks reference on its spine, but the authorities were very much part and parcel of my learned friend's work. It does not require all these hours for three solicitors to reproduce the barrister's work, in my respectful submission. I note that there is a claim for 10 hours' attendance at the hearing. The reasonable charge is the attendance of one solicitor behind my learned friend. I say that despite not having any solicitor myself, because I am on direct access, but the reasonable charge is for one solicitor, not however many they have.
31. MR JUSTICE PLENDER: Your very first point was about three solicitors. However, I find the number of hours charged to each can of course be an economy — to use a paralegal instead of a qualified solicitor.
32. MR BEAUMONT: The solicitor I thought was dealing with it was Mr Rogers. His involvement alone is entirely reasonable. One cannot say that it was sufficient for a paralegal to do this; nor was it necessary for a partner to act when Mr Rogers was involved.
33. MR JUSTICE PLENDER: Where do I find Mr Rogers' fee?
34. MR BEAUMONT: The three solicitors are named at the top. I thought Mr Rogers was conducting the matter.
35. MR JUSTICE PLENDER: I see his hourly charge.
36. MR BEAUMONT: That is a perfectly reasonable hourly charge. Attendances on client.
37. MR JUSTICE PLENDER: 3.4 hours for Mr Rogers.
38. MR BEAUMONT: 4.5 hours, or whatever it is. Again, no indication as to what that was. Work on documents. 6.5 hours on documents is totally unreasonable. The work in this case, because they were the respondent and not the appellant, was counsel's work and not the solicitors' work. All they had to do was read it — they did not have to draft anything, as far as I recall — so what they were doing for 6.5 hours plus 0.8 hours plus 3 hours is really open to doubt. So, whilst, as I say, counsel's fees are entirely reasonable, the solicitors' fees are not reasonable or proportionate. The correct charge is however long it would take Mr Rogers to read my skeleton argument and my learned friend's skeleton argument. That is about it. Your Lordship will know, having come to this fresh, how long it took your Lordship to read the material. Query: is it reasonable for the solicitors to read every single case, not having the conduct of the matter as an advocate? I question that. Travel time? Well, we do not know where Mr Rogers lives. I suppose he has charged for the travel from his office. Again, disproportionate for my client to have to pay for Mr Rogers to jump in a taxi or travel on the London Underground. So by all means I invite your Lordship to take a broad brush, but -- I have not actually added up. It looks as if the solicitors' costs are about £5,600, including VAT, and it is quite wrong that they should be more than counsel's fees in circumstances in which plainly counsel has done all the work. So there we are.
39. MR JUSTICE PLENDER: Thank you, Mr Beaumont. I shall take a broad brush. I think that justice will be done if the appellant is ordered to pay costs of £8,250.
40. MR BEAUMONT: Does that include VAT?
41. MR JUSTICE PLENDER: Yes. I think the figures I have been given include VAT.
42. MS PASCHRES: My Lord, I have not yet responded. I know it is late to do so. My Lord, I think, is unaware of the figure that the appellant would have sought, had the case gone against the respondent. The appellant's figure, given that it was only counsel, was in excess of £16,000.
43. MR JUSTICE PLENDER: I would not have allowed that.
44. MS PASCHRES: So the preparation, and what is reasonable preparation, has to be seen against that. My Lord, part of the preparation, which will not be apparent on the face of it, is my Lord will have seen from some of the authorities that the chairman who a complaint of apparent bias had been made about had actually made a statement. Part of the figure that my Lord sees is because from our side we had to consider the question of whether we should invite Dr Leitch to make a statement, with all the ramifications if that took place. So, my Lord, that will not be apparent from the papers, but it was certainly something that we had to consider, and that my solicitors were very heavily involved in, liaising with both myself and then with the General Dental Council.
45. MR BEAUMONT: Can I come back on three points, please? First of all, your Lordship has already determined the costs, with the greatest of respect, and your Lordship has named a figure. That is my first point.
46. The second point is, so far as Dr Leitch is concerned, protestations of the absence of actual bias in a case of apparent bias are legally irrelevant. So the work that was done in that respect rightly led nowhere. If a statement was taken, it was not necessary work. Therefore, that would not be recoverable. As far as my fees are concerned, I am not the one applying for costs. So the figure is irrelevant, save that my degree of responsibility, is, and is acknowledged by costs experts to be, that much higher in a case where I do not have an instructing solicitor, quite apart from the fact that I was the appellant and had to do most of the running.
47. The other thing I was going to say is that, in all honesty, I do not think my learned friend charged enough.
48. MR JUSTICE PLENDER: Well, I shall raise my broad-brush figure from £8,250 to £8,500, but I do not think I got an answer to the question whether this includes VAT, which is probably the more substantial figure.
49. MS PASCHRES: I have given the piece of paper away.
50. MR JUSTICE PLENDER: It does not say.
51. MR BEAUMONT: I am sorry. I have written all over it.
52. MS PASCHRES: It does include VAT, my Lord.
53. MR JUSTICE PLENDER: It does say it. £8,500 it is.
54. Thank you all very much for your assistance.