England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		2nd April 2012

Mr Justice Simon:

1. This is an application to extend an interim order for suspension under s.41A(6) and (7) of the amended Medical Act 1983, for 12 months from 8 April 2012 to 7 April 2013.
2. The interim order for suspension was initially imposed by the claimants' Interim Orders Panel ("IOP") on 9 October 2009. Thereafter it was reviewed and maintained on 18 June 2010, 8 October 2010, 24 November 2010, 21 June 2011 and 28 November 2011.
3. At the hearing on 24 November 2010 the IOP directed the claimant to apply to the High Court for an extension and, on 5 April 2011, Owen J extended the interim order of suspension until 8 April 2012.
4. Part of the difficulty which is relied on by the claimants through Mr Kitching is the effect of a police investigation which took place broadly within the period from May 2010 to July 2011. The witness statements of Peter Swain, the claimant's Acting Assistant Director of Investigations, dated 19 January 2012 and 22 March 2012, show that this is a complex case with a number of strands, one of which is the strand that was the subject of a police investigation. Paragraph 8:

(document unobtainable – checked to audio)

"8. The claimant is conscious that the defendant's registration has been suspended since 9 October 2009 and that this is the second time that an application has been made to the High Court for an extension. However, on behalf of the claimant I will reiterate the submission within paragraph 61 of the first statement and stress that the application to extend the order imposed by the IOP on 9 October 2009 is not one which was taken lightly but rather out of necessity for the protection of members of the public and the public interest and in the defendant's own interest.

9. The claimant acknowledges that the progression of the three investigation cases has at times been slow, largely due to the judicial process which requires the claimant to put its own investigation on hold and also in part due to the long delays the claimant has encountered in receiving requested information from various parties. However, the severity of the allegation against the defendant necessitates the need to ensure that the concerns are investigated thoroughly.

10. Further, the claimant considers it relevant to inform the court that the defendant has on numerous occasions sought remedial proceedings against the claimant in both the civil and criminal courts. Of particular relevance is the defendant's application under s.41(a)(10) of the Medical Act 1983 and CPR Part 8. The Part 8 application is for the determination of the interim order of suspension maintained on his registration by the IOP on 21 June 2011."

5. Dr Jooste, who appears today, opposes the application because he says it is not relevant, since on 2 August 2011 he handed in a document which has the effect of de-registering him from the General Medical Council. For the General Medical Council Mr Kitching says that this is not something that can be done.
6. The matter has been considered by Silber J in relation to the Part 8 application [2012] EWHC 555 (Admin), at paragraph 4 onwards:

"4. When the matter came in front of me this morning, Dr Jooste, who appears in person, said that he does not wish to pursue the application because he now contends that he resigned from the General Medical Council by means of a letter dated 7 August 2011 to Sir Peter Rubin, the President of the General Medical Council. That resignation does not have any effect on the application which is before me today because Dr Jooste accepts that he cannot pursue it and, therefore, it must be dismissed. Dr Jooste's point is that he is entitled to resign.

5. In answer to this, Miss Callaghan submits that there is no provision enabling Dr Jooste to resign from the General Medical Council. She drew my attention to various statutory provisions in the Medical Act 1983, which sets up the powers of the General Medical Council and, in particular, that it exercises its functions to "protect, promote and maintain health and safety of the public" in section 1(1A).

6. It is unnecessary for me to deal with this matter because there is no application before the court to that effect. By the same token, there is no application either for me to deal with another submission made by Dr Jooste, which is that the Medical Act 2003 is in contravention of the European Convention on Human Rights. If he wishes to pursue those matters, he will have to do so by a separate application, but, as I have explained to him on numerous occasions, nothing I am saying is meant to give him the slightest encouragement to do so. All I have to deal with is the application before the court, which, in my view, is totally without merit.

7. It seems to me that the same is true here. Again, there is no application before the court dealing with this matter. I am satisfied that this is a proper case for extending the interim order; and that it should be extended until 7 April 2013. It may be that the Court of Appeal, as Dr Jooste says, will consider the decision of Silber J; and may come to a different view of that application, but that has no direct implication for the present application by the GMC. I propose therefore to extend the interim order.
8. I should, however, make it clear that the claimants must now progress these matters and should not assume there will be any further orders for extension. Thank you both for your submissions.

MR KITCHING: My Lord, I have an application for costs, please.

MR JUSTICE SIMON: Right. What are your costs? Is there a schedule?

MR KITCHING: There is a schedule. I am not sure I have a copy in court unfortunately.

MR JUSTICE SIMON: It may be that I have one, but the important thing is whether Dr Jooste has one.

MR KITCHING: I understand it has been served on the Doctor by email, toward the end of last week.

MR JUSTICE SIMON: Yes I have it. Do you have it, Dr Jooste?

DR JOOSTE: Yes, I have it.

MR JUSTICE SIMON: Well, they are asking for costs of £2,083. Do you want to say anything about that?

DR JOOSTE: Yes, your Honour. Can I first ask if I can get permission to actually appeal the extension order?

MR JUSTICE SIMON: Well, you can ask, but I am afraid I am not going to grant permission. In my view, there is no realistic prospect of challenging my decision today. On the basis of what I see, there is no application, just as there was no application before Silber J. The matter was simply raised in the course of argument by you. But it may be that the matter will be resolved by interlocutory relief if you get permission to appeal from the Court of Appeal.

DR JOOSTE: Okay, thank you. Regarding costs, I have got no means of an income except employment support allowance.

MR JUSTICE SIMON: Yes.

DR JOOSTE: Out of that, it is not possible for me to buy anything extra.

MR JUSTICE SIMON: Yes. Well, it may be that they will not be able to enforce the order for costs, but I think there was an order made, was there not, on a previous occasion by Owen J? You have turned up today and you have opposed this application, which I have granted. I think in principle they are entitled to their costs.

DR JOOSTE: Yes.

MR JUSTICE SIMON: Do you want to say anything about the amount of the costs?

DR JOOSTE: No, it seems reasonable.

MR JUSTICE SIMON: Well, I was going to say that it should not be more than the costs of the hearing in front of Owen J. Is there any reason why they should be?

MR KITCHING: I do not know if it is.

MR JUSTICE SIMON: Well, it is. He made an order for costs of £1,965 and yours is an application for £2,083.

MR KITCHING: Could you please bear with me, my Lord. (Pause)

MR JUSTICE SIMON: I do not want to be postponed for too long waiting for an answer. We are not talking about £100 million.

MR KITCHING: No, forgive me.

MR JUSTICE SIMON: And the costs of the various counsel waiting in court will greatly exceed that.

MR KITCHING: Yes. Not my costs unfortunately, but if your Lordship wishes to restrict it to the award for costs that was made by Owen J.

MR JUSTICE SIMON: Yes, £1,965. Okay. Anything else?

MR KITCHING: No, thank you my Lord.

MR JUSTICE SIMON: Thank you.