England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		18th September 2012

JUDGE GOSNELL:

1. On the 24 April 2012, the Interim Orders Panel of The General Medical Council suspended Dr Rashid's registration for 18 months. In these proceedings, he asks the court to exercise its power to terminate that order. He had only three working days' notice of that hearing, although he was able to instruct counsel to represent him. I have permitted him to file further evidence in relation to this appeal by a statement he made dated 6 August 2012 and by a subsequent statement from his solicitor.
2. The law in relation to these appeals is somewhat complex and it is necessary for me to set it out in a little detail. But the power to suspend is set out in section 41A of the Medical Act 1983, where (1) states:

"Where an Interim Order Panel or a Fitness to Practise Panel are satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions, the Panel may make an order—

(a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding eighteen months as may be specified in the order (an 'interim suspension order')."

The right to appeal is set out in (10) of the same section, where it says:

"Where an order has effect under any provision of this section, the relevant court may—

(a) in the case of an interim suspension order, terminate the suspension […]

and the decision of the relevant court under any application under this subsection shall be final."

The definition of a relevant court is set out in section 40(5)(c), which states:

"In the case of any other person (including one appealing against a decision falling within subsection (1)(c) above), means the High Court of Justice in England and Wales."

3. The next question, having established what the jurisdiction of this court is to consider an appeal, is whether this is a review or a rehearing. In that respect, this was considered in the case of Sandler, which is a decision of Nicol J in the case of Martin Sandler v GMC [2010] EWHC 1029 (Admin). I am going to read some extracts from paragraph 12 of his decision. I am not going to read the whole paragraph because not all of it is helpful, but both parties have referred me to different parts of Nicol J's judgment, and I am going to read into this judgment those parts which both parties consider relevant. He said:

"Both parties agreed that the role of the Court was not confined to exercising a judicial review type jurisdiction. In other words, the power to terminate Dr Sandler's suspension (or to substitute a different period) is not dependent on showing some error of law on the part of the IOP. That is the point that I understand the Court of Appeal to have made in GMC v Hiew [2007] 1 WLR 2007 where at [27] Arden LJ said 'the powers conferred by s.41A (10) are also original powers and not merely powers of judicial review.' In that case, the Court was directly concerned with an application to extend a doctor's suspension. The maximum period for which an IOP can suspend a doctor is 18 months. Any longer extension can only be granted by the Court under s.41A (7). In such a situation, the only order or orders by the IOP will have expired (or be about to expire). If nothing further is done the suspension will come to an end. It is unsurprising in these circumstances that the Court of Appeal characterised the Court's jurisdiction as 'original'. The position with an application under s.41A(10) is different. The IOP has suspended Dr Sandler. His application is for that suspension to be terminated. My consideration of the application must surely start from the position that the IOP has thought that interim suspension is the right course. I also note that s.41A(10) applies 'where an order has effect under any provision of this section'. One of the previous subsections is s.41A(7). Thus, it is open to a doctor whose order for suspension has been extended by the Court under that provision to apply for the suspension to be terminated under s.41A(10). There, too, the Court would surely have to start from the position that a suspension was currently in place before deciding whether that position ought to be altered. In R (Stephen James Walker) v GMC [2003] EWHC 2308 (Admin) Stanley Burnton J. (as he then was) was also considering an application to terminate a suspension under s.41A(10). He said at [3] 'The terms of subsection 10 indicate that the appeal to the Court is a full appeal, that is to say, the Court does not interfere on a review ground but itself decides what order is appropriate.' To describe the process as an 'appeal' may not do full justice to the power of the Court. It would seem to me that the Court does have power to consider subsequent developments and (where appropriate) fresh evidence. However, in my judgment the term does correctly acknowledge that in this context, unlike an application under s.41A(7), the Court is faced with an extant order of the IOP which it would only terminate if it thought that order was wrong."

4. The next issue is how high the bar is set in terms of the standard that has to be met before the Interim Orders Panel should impose a suspension, and assistance in relation to that issue is given in the decision of Davis J in Shiekh, the full title of which is R (Shiekh) v General Dental Council, [2007] EWHC 2972 (Admin). What Davis J said there was in paragraph 15 and 16:


"15. As a matter of strict language, no grammatical interpolation of the word 'necessary' falls to be applied to the phrase 'or is otherwise in the public interest'. But that is not the end of the matter because it does seem to me that if 'the public interest' is to be invoked in this context, under the statute, then that, to my mind, does at least carry some implication of necessity; and certainly it at least carries with it the implication of desirability. I think it is of some note in this context that the statute was amended, as I gather, to introduce a power to impose interim suspension or conditions where it was in the public interest in the aftermath of the Shipman case. It seems to have been the case that the General Dental Council, and indeed the General Medical Council, did not feel the need for such a public interest power before that happened; although Mr Bradly did make the point that it may be that they simply had been prepared to tolerate a not very satisfactory position.

16. At all events, in the context of imposing an interim suspension order, on this particular basis, it does seem to me, adopting the words of Mr Winter, that the bar is set high; and I think that, in the ordinary case at least, necessity is an appropriate yardstick. That is so because of reasons of proportionality. It is a very serious thing indeed for a dentist or a doctor to be suspended. It is serious in many cases just because of the impact on that person's right to earn a living. It is serious in all cases because of the detriment to him in reputational terms. Accordingly, it is, in my view, likely to be a relatively rare case where a suspension order will be made on an interim basis on the ground that it is in the public interest. I do not use the words 'an exceptional case' because such language is easily capable of being twisted and exploited in subsequent cases; but I do think, as I say, it is likely to be a relatively rare case. Ultimately, of course, all these things have to be decided on the facts of each particular case."

Those comments, of course, only apply to a case where the only ground which has been put forward is that it is otherwise in the public interest and would not apply where there was evidence that a suspension was necessary for protection of members of the public. Counsel for the defendant in this case has very helpfully conceded that he places his case on the basis that there is evidence to justify a suspension in the public interest.

5. It is fair to say that what Davis J said in Shiekh was not entirely accepted by Nicol J in some ways, where in paragraph 14 he said:

"I certainly agree that a doctor could not be subject to an interim suspension unless this was at least desirable in the public interest. I also agree that the panel must consider very carefully the proportionality of their measure (weighing the significance of any harm to the public interest in not suspending the doctor, against the damage

to him by preventing him from practising), but I do with respect think with respect that the Court must be cautious about superimposing additional tests over and above those which Parliament has set"

6. The next issue upon which I have gained some assistance from previous decisions is the relevance of the fact that this is an interim suspension, and not a suspension after a final hearing before the Fitness to Practise Panel. There I gain assistance from another decision by Davis J in Sosanya, the title of which is R (Dr Julianna Sosanya) v GMC [2009] EWHC 2814 (Admin). At paragraph 26, Davis J says:

"The statutory test is there, and that is the one to be applied. One would like, all the same, to think that in all these kinds of cases of potential interim suspension an interim orders panel would at least be asking itself, as part of its thought process, the following: will it be acceptable for us not to suspend in a case of this kind if at the end of the day the charges are proved and the guilt of the applicant is established? That is one aspect. Another part of the thought process should be: will it be acceptable for us to suspend an applicant in a case of this kind if, at the end of the day, the applicant may be acquitted of all charges? Those considerations should form at least part of the thinking of an interim orders panel, as it seems to me."

Davis J went on to deal with the issue so far as it related to Dr Sosanya in paragraph 27:

"Why then was it thought necessary in the public interest to suspend Dr Sosanya from practice when she was facing charges, which can be described as serious charges no doubt but which were not of the gravest kind and which were charges which she was denying? She had been convicted of nothing. No risk in her continuing to practice in the interim was identified. Why, it may be asked, was it necessary to suspend her from practice? It may well be that if she was convicted at the end of the day a fitness to practise panel at that stage could impose the appropriate sanction as it thought necessary. But that does not meet the point as to whether it was necessary to suspend her on an interim basis." [emphasis in original]

7. This hearing is not intended to hear evidence and make findings of fact, nor indeed was the Interim Orders Panel. It is, however, necessary for me briefly to consider which facts they took into account, and what the reasons for their decision were. What I intend to do is to summarise the official determination, in order to give respect to the decision and to set out those matters which were though relevant by the panel.
8. The panel had received a letter from Dr Pitcairn, the Deputy Medical Director of the PCT to which Dr Rashid was contracted, and this was referred to in the determination. In that initial letter, the GMC were informed that the claimant had been arrested by West Yorkshire Police, who were investigating an alleged significant conspiracy to defraud. The panel also took it into account that there had been a recent dispute between Dr Rashid and his former partner, Dr Temperley. The panel also noticed that this was an acrimonious split, and since that time he had held a temporary GP contract with the PCT, and was in fact in dispute with the PCT over contractual arrangements. They confirmed there were no clinical concerns concerning the doctor, and there was no current performer's list investigation.
9. The panel mentioned an investigation in 2010 by a Practitioner Quality Assurance Team, which dealt with certain complaints which were wide-ranging. Those complaints were specified in the decision. It was confirmed, however, that the complaints were investigated at the time, and no substantial evidence was found to proceed to the formal performer's list action, and that Dr Rashid had provided evidence which contradicted the allegations. The panel noted that there had been a conversation between Dr Rashid and Mr Coulter, who was head of primary care contracting at the PCT, and part of this conversation was recorded by Dr Rashid without Mr Coulter's consent. This was then published on the YouTube website, and the attention of the directors of the PCT was drawn to it. This was in breach of the information governance policies of the PCT. The PCT confirmed that the dispute with them was ongoing, and was causing considerable concern to the PCT and patients. It was also recorded that Dr Rashid had declined to give any commitment that his premises could continue to be used in a successor practice which took over the NHS services. The panel also recorded that two recent articles had appeared in a local newspaper, which was a result of contractual and factual matters relating to the PCT and Dr Rashid being given to the press, and information which the PCT would say was confidential being drawn to the press's attention.
10. The panel returned to the issue of the allegations of fraud, and pointed to an email from a Detective Constable Lunn which gave further details of the investigation called Operation Thatcham, which is a large-scale investigation into vehicle insurance fraud in West Yorkshire. The investigation remained ongoing. The determination states:

"The Panel is particularly concerned about 'one line of enquiry which has been identified as the role of one particular Doctor and he is the main focus of today's operation.' The Panel is concerned that you may be this Doctor."

11. The panel also referred to an allegation that patient notes were strewn around the doctor's house and car, and that eight packets of medication prescribed to five different people other than the doctor and his family were seized from his bedroom. The panel recorded supportive testimonials and documents which had been filed which attested to his continuing professional development, and appraisals provided to date. The panel recorded submissions made by counsel for Dr Rashid, which confirmed there were no clinical concerns about his conduct, and that the submission was made that there was woefully inadequate information about the allegations made against him.
12. There was complete denial of wrongdoing by Dr Rashid. His case was that he gave only a factual account of matters to journalists, out of primary concern for patient safety, and whilst he accepted that the uploading of the illegally recorded conversation on YouTube was unwise, the intention of it was to ensure that it was brought to the attention of the Directors of the PCT. He provided explanations in relation to the old and unrequired medications which were found at his house, and also indicated that any patient notes had been strewn in the course of the police's search. The panel were reminded by Mr Pleeth, the doctor's counsel, of the cases Sandler, Shiekh and Sosanya to which I have referred, although it is fair to say the panel did not require them read to them.
13. The panel, having taken into account the complete denial of wrongdoing by Dr Rashid, then went on to record its decision, and that is contained at page 27 of their decision, and starts at paragraph D. I am going to read the next three paragraphs into the record of this judgment, because this is a direct reference to the panel's reasoning process having set out, I think very fairly, both the case for the prosecution in a sense against Dr Rashid and the case for the defence. The panel said as follows:

"The Panel is satisfied that there may be impairment of your fitness to practise which poses a real risk to members of the public or which may adversely affect the public interest or your own interests and, after balancing your interests and the interests of the public, an interim order is necessary to guard against such a risk.

The Panel has had regard to the public interest, which includes the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour. The Panel recognises that it is a relatively rare case where a suspension order will be made on an interim basis on the grounds that it is in the public interest. However this is one such case. The panel considers that the matters alleged give rise to serious public concerns that only an order of suspension would be sufficient to maintain confidence in the profession, and to declare and uphold proper standards and conduct within the profession.

The Panel has taken account of the principle of proportionality and has balanced the need to protect members of the public, the public interest and your own interests against the consequences for you of the suspension of your registration. Whilst it notes that its order has removed your ability to practise medicine it considers that, in the light of the seriousness of the allegations, and whilst the investigations are ongoing there are no conditions which would adequately protect the public interest. It is therefore satisfied that the order of suspension is a proportionate response.

In deciding on the period of eighteen months, the Panel has taken into account the uncertainty of the time needed to resolve all the issues in this case."

14. The panel does appear to rely on eight allegations in support of their decision to suspend Dr Rashid. They were: first, the uploading of the secretly recorded conversation onto YouTube; second, the revealing of financial information to the local newspaper; third, the dispute with Dr Temperley; fourthly, the dispute with the PCT; fifth, the failure to offer his surgery to the incoming GP practice when he ceased to practice there; sixth, the medication found at his home; seventh, the medical records found at his home; and finally, his arrest by West Yorkshire Police in relation to the cash for crash inquiry. The panel appeared to have decided that all three of the limbs under section 41A of the Medical Act 1983 applied in this case. Counsel for the GMC at the hearing before the Interim Orders Panel contended that both protection of members of the public and the public interests applied, but today they have accepted that only the public interests limb can be justified, a concession with which I respectfully agree.
15. The somewhat formulaic nature of the last few paragraphs of the decision, and the failure to analyse the parties competing cases before coming to a decision, make it somewhat difficult to give the type of respect for the decision which the authorities envisage are necessary. In their own guidance to the Interim Orders Panel, the GMC at paragraph 42(c) said as follows:

"Where an order is made primarily because it is desirable in the public interest to uphold public confidence and there are no concerns about clinical practice specific reasons should be given for why this is appropriate."

It is clear that no specific reasons were given in this case, save that 'the matters alleged give rise to such serious public concerns that only an order for suspension will be sufficient to maintain confidence in the profession. The following paragraph dealing with proportionality has all the hallmarks of a generic pre-prepared statement not tailored to the facts of the particular case.

16. Even though I am critical of the way the decision is expressed, I have to accept that it was made in good faith by the panel, and I will have to examine for myself whether it was in fact objectively justified. The panel appear to have taken into account all the matters which were raised before them. Whilst counsel for the defendant today seeks to argue that they are experienced in ignoring evidence which is unfairly prejudicial or irrelevant, their decision does not actually state that they have done so. I therefore ought to consider those issues briefly, and ask whether either singularly or cumulatively they are serious enough to justify suspension. Counsel for the claimant suggests I test the seriousness of the allegations, and then apply the balancing exercise of proportionality between the public interests and the consequences for the claimant of suspension. I prefer, however, to see proportionality as part of the overall test to decide whether suspension is actually necessary, or at the very least desirable. The bar is clearly set high in this respect, as the claimant is 40 years of age, the main breadwinner in his family, and has no income while suspended.
17. Turning to the individual reasons which the panel appear to have taken into account, the uploading of the secretly recorded conversation onto YouTube clearly showed a lack of judgment on his part, but perhaps arose as a consequence of the desperation he was feeling with the serious dispute he had with the PCT at the time. As I say it shows lack of judgment, but of itself would not be sufficiently serious to justify suspension. A similar argument applies in relation to the revealing of financial information to the local newspaper. The claimant will seek to argue that this should be a protective disclosure, but in my view that would only apply in relation to employment proceedings between him and the PCT, but I take on board the general thrust of that argument. In any event, the same argument applies.
18. So far as the dispute with Dr Temperley is concerned and the dispute with the PCT, it seems to me these are entirely neutral considerations, and are entirely irrelevant. If two partners fall into dispute, the right way to resolve it is either by negotiation or litigation. It does not really matter which of them is eventually successful; that is the civilised way to resolve business disputes. Whilst it might be a relevant consideration for someone who is thinking of going into partnership with Dr Rashid, it is entirely irrelevant to any consideration as to whether he should be suspended. Similarly, the failure to offer up his surgery to the incoming GP practice is again completely irrelevant. Firstly, I am not convinced that he has any obligation to do so in circumstances where he is one of five joint owners, and he no longer intends to use it as a practice. And secondly, in fact he had agreed, I now know, to let the new practice use his surgery for a commercial rent.
19. So far as the medication found at his home, and the medical records, there are explanations for those failings. This is not a fact-finding exercise. Even if the explanations are not particularly strong, it goes nowhere near to justifying immediate suspension.
20. The final reason is the arrest by West Yorkshire Police, and I think it is fair to say that both counsel feel that the case turns upon whether this allegation is sufficiently serious to justify suspension. This leaves only allegation that he is part of a "cash for crash" fraud. What was the evidence in support of this assertion, given that he denied his involvement? That can be found at page 48 of the bundle, which is an email from Detective Constable Lunn which was provided to the GMC with a view to providing more information as to what the nature of the allegations were. The email went on to explain what the nature of Operation Thatcham was, which was an operation intended to prevent a crush for cash operation run effectively by the claimant's management organisation. That operation had been ongoing since 2008, and the first arrest took place in October 2011. The arrests of certain clients of the organisation took place in December 2011, and 63 suspects remained on police bail. The part which related potentially to Dr Rashid read as follows:

"One line of enquiry which has been identified is the role of one particular Doctor, and he is the main focus of today's operation."

It then went on to describe what the normal practice of Dr Rashid, or any other doctor, I think, would be. It then said:

"Experts are working with the inquiry and together have identified serious areas for concern in how this Doctor is handling the examinations & subsequent reports. Direct links have also been established between the Doctor & the main organised crime team as well as another Bradford nominal well known to [West Yorkshire Police]."

Somewhat bizarrely, the email does not actually name Dr Rashid.

21. In their determination, the panel effectively inferred that Dr Rashid was the doctor referred to. In this statement, the police are concerned with who may be this doctor. I am not saying they were not entitled to draw that inference, because it would be odd if they did not consider it, but the fact that is an inference rather than a proven fact is something that should have been placed into the balance perhaps. I now know the claimant has been interviewed twice, and to date no specific allegation has been put to him. Also, disclosure by West Yorkshire Police pursuant to an application for third-party disclosure has revealed the claimant was not arrested on the basis of a specific allegation made by an individual outside or within West Yorkshire Police.
22. The assessment of whether an allegation is serious enough to raise such public concerns as to warrant the suspension of a doctor seems to me to involve two elements. Firstly, the nature of the offence, and the secondly the cogency of the evidence against him. Whilst the panel are not making findings of fact, they are assessing risk and clearly the stronger the evidence against the doctor the more likely he is to be convicted. This helps the alternative result assessment, which was set out in paragraph 26 of Sosanya by Davis J. The risk of an injustice is all the higher where the evidence is weak. Here, the evidence is sparse. No charges have been brought, no specific allegations have been put to the claimant, and the police have not even identified him as the doctor at the centre of their inquiry. He could be involved in one case, or a 101 cases, or indeed as he would say in none at all. This also makes it difficult to assess the seriousness of the offence.
23. Dr Sosanya in her case was charged with money laundering, and was due to stand trial, her husband having already been convicted. Her plea of not guilty, however, was instrumental in the court overturning her suspension, as Davis J explained in paragraph 27 of his judgment, which I have already read. Mr Shiekh was a dentist, who was charged with a conspiracy to defraud in relation to dishonest claim for payments. He pleaded guilty on the basis of a plea. His interim suspension was lifted by Davis J, making the distinction between the need for suspension on an interim basis against the powers of the Fitness to Practise Panel on a final basis. Dr Sandler's suspension was confirmed, but he had made substantial admissions, and there were 116 occasions when he had dishonestly signed cremation certificates. It seems to me that Dr Rashid's case is much more in common with Dr Sosanya's case than Dr Sandler's, and in fact is less serious than both, because there is very little evidence against him; he has not even been charged, still less committed for trial.
24. In assessing whether an offence is serious, the GMC provide guidance to the panel in the following terms:

"Risk to patients/public confidence: non-clinical issues

12. These are cases not directly related to clinical practice but where, if the allegations are substantiated, the doctor poses a risk to patients if allowed to continue in unrestricted practice.

13. This category includes cases where the doctor faces allegations of a nature so serious that it would not be in the public interest for the doctor to hold unrestricted registration whilst the allegations are resolved even though there may be no evidence of a direct risk to patients. The question would be whether public confidence in the profession may be seriously damaged by the doctor concerned holding unrestricted registration whilst the allegations are resolved.

14. Matters of this kind, which would normally already be under investigation by the police, would include very serious alleged offences including murder, attempted murder, human trafficking, blackmail, manslaughter, rape, attempted rape, sexual assault and sexual abuse of children. Relevant offences may include abuse of children through grooming, prostitution or pornography and any offence by an adult relating to a child under 13 or person with a mental disorder..."

It is significant, although not conclusive, that fraud is not mentioned as an example.

25. There are no concerns about Dr Rashid's clinical fitness, and he had produced a number of positive references to the tribunal. The panel relied on the seriousness of the matters before them, without going into any assessment of which were the more serious, and why they took that view. No risk in Dr Rashid continuing to practice on an interim basis was identified, save for serious public concerns which were not otherwise defined.
26. I must give a degree of deference to the panel's decision as Parliament has entrusted them to make it, and they are aware of the demands and expectations of the medical profession. With respect, I do not think the panel in this case has given sufficiently cogent reasons why Dr Rashid should be suspended as an interim measure. Exercising my own jurisdiction, I am not satisfied that the allegations, either individually or cumulatively, are sufficiently serious to justify his suspension. Such a sanction is neither necessary, desirable or proportionate in this case.
27. For those reasons, I intend to exercise my discretion to terminate the suspension.

Order: Appeal allowed.

MR WILBY QC: Thank you, my Lord. My Lord, first of all obviously you are going to make that order, and may I say we are very grateful for that decision, and for your very careful and cogent way in which you expressed it. I do not think your Lordship will have our costs schedules, have you?

JUDGE GOSNELL: Somewhat oddly, they were submitted in a sealed envelope as if I could not be interested to read it.

MR WILBY QC: I do not think that is the --

JUDGE GOSNELL: I would not mind, I do not normally assess the whole costs of the appeal, and determine who pays them. The answer to that should be relatively simple. But I would not normally assess the whole costs of the appeal.

MR WILBY QC: No, but first of all we would ask that you order that the GMC pay the costs of these proceedings, and if I may, and I hope I should not be guilty of doing a little bit of boilerplating here, just remind you of the criteria in 44.5(3). Your Lordship, I know, is very aware of them, but could I just dictate them by action? Conduct before as well as during the proceedings, you have already made during the course of the proceedings some slightly more critical comments than you made in your judgment. My junior wrote it down, at one stage you said it does not seem as if any of these lessons, i.e. what has been said in the earlier cases, from the case law have been learned, and it is I think I am right in saying so, you have been extremely gentile in the way in which you have made your criticisms. The fact in reality is that there is no satisfactory reason for the decision.

Secondly, the efforts made if any before and during the proceedings in order to try and resolve the dispute. I have to say, it should have been pretty obvious to anybody with any good legal training that if it was not when we issued our application and served our skeleton argument, it must have been shortly after that, that anybody with any intelligence would have worked out that this was a pretty poor case for the GMC. I know you made a slightly whimsical comment about our initial skeleton, which was prepared principally though not exclusively by Mr Pennock, but the fact is it gave a very clear and detailed set of reasons as to why the decision was wrong, and although they may not have been quite the same order and in quite the same way as your Lordship's judgment, there is a very high percentage in what your Lordship said in your final judgment in that skeleton argument, and they were there and ready for the GMC to read, and should have identified to a competent reader what the situation was. If there had been any doubt about the situation, and the relevance and importance of any of those other matters, and therefore the extent to which the decision was defective and unlikely to be upheld, if that was not apparent with the original application it should have been obvious from his very detailed witness statement with supporting documents, which was served on 6 August. One might say that it was pretty obvious to anybody by that stage.

The next matter, it says it is the amount or value of money. I do not think one looks at it in this context, but if you read that and see the importance of the matters to the parties together, it is difficult to conceive of such proceedings which are more important to a party than these in Dr Rashid's case. The (inaudible) involves responsibility, and the responsibility of the panel in this case is central, and then obviously the circumstances et cetera. And what we would say, my Lord, is that if you look at this case (a) we won, (b) and more importantly it was obvious, or should have been obvious, that the prospects of the GMC upholding these proceedings were pretty limited, and that a great deal of time and money has been expended, as it transpires, virtually needlessly, and that therefore we would respectfully submit it is difficult to think of a more obvious case in which costs should follow the event, and all the costs should follow the event.

I do have a separate submission in relation to indemnity costs, but perhaps I should wait until whether or not you make an order for costs in our favour.

JUDGE GOSNELL: Okay. I will ask Mr McDonagh about that.

MR McDONAGH: My Lord, I make no representations in relation to costs against the General Medical Council. The sums asked for in the costs schedule are far beyond those that would normally be in a case which was described by my learned friend more than once in his submissions to you as simple and straightforward. In those circumstances, it is not a case which I would invite your Lordship to summarily assess right here and now.

JUDGE GOSNELL: Yes. I will take your word for that, although at this stage I do not know what the costs are.

MR McDONAGH: I have no problem with your Lordship opening the envelope, and having a regard to the costs it is entirely a matter for your Lordship. But if your Lordship is with me in relation to the detailed assessment in due course, I need say no more in reaction to my learned friend's submissions.

JUDGE GOSNELL: Would you like to --

MR WILBY QC: Yes, your Lordship used the word "jurisdiction". The reality of this case, if one is being absolutely honest, I said it was simple; it is simple when you understand it. It takes an awful lot of organising to understand what it is actually about, and it is the old story that when somebody comes up with a not very cogent and not very well expressed decision, trying to work out why it is wrong and then explain why it is wrong is not always as easy as if it is a better expressed and more cogent decision. The same criteria apply whether it is an indemnity order or a non-indemnity order for the matters I have already identified for you. As to whether it is an indemnity order, your Lordship will be aware of the authorities and in relation to it there is a small amount of guidance in the White Book.

In my respectful submissions, there are three really important points here. The first is this: your Lordship would be entitled to come to the conclusion here that these proceedings, and the necessity to set aside this order, should never have arisen at all, and therefore the costs of these proceedings should never have been required to be incurred. That, I respectfully submit, is the single most important. If this panel, which my learned friend spent ten minutes trying to impress upon you, are so competent and so experienced, had simply carried out any sort of even the most basic evaluation of the evidence that there was in relation to the criminal allegations, it should have been obvious to them that the evidence was not sufficiently cogent, and the nature of the allegation was not sufficiently serious, that the question of suspension just never arose. They should have been in the position, with the assistance of their assessor, to evaluate the other allegations in exactly the same way your Lordship has. And if they cannot do that, frankly they should not be doing this job. It is as simple as that.

So what has happened as a consequence of their erroneous decision, as your Lordship has found it, where they have not bothered to learn from past experience, I paragraph what your Lordship said during this argument, is that this man has been put out of work for five months needlessly, and he has had to incur the costs of these proceedings needlessly. One has to ask the question, why should he have to bear any of the costs of these proceedings? The whole idea of indemnity costs is that the party who is responsible for the wrong, having put it as a way of describing that situation that exists, pays for doing it. Why should he have to make a contribution to his costs? Why should he have the responsibility, and your Lordship knows the difference between indemnity costs and non-indemnity costs, normal costs you have to prove your expenditure is reasonable; in relation to indemnity costs, effectively the other party has to prove the expenditure is unreasonable. It does not mean that you get all your costs, but what it does mean is that the onus of proof changes.

In this situation, where this has been brought upon Dr Rashid solely, and I emphasise this, solely by the actions of the GMC, because it was they who wrote the first letter, it was they who made the decision to bring it before the panel, and it was the panel who made this decision, which in my respectful submissions your Lordship decided was wrong, then why should he have to pick up any part of his costs? I would respectfully submit it is clearly a case in which indemnity costs are appropriate.

I think third, and I may be stretching my neck out, but I am happy to say I am quite content to do this in this case, somebody needs to indicate to the GMC that this sort of exercise which has happened in this case, and the way in which they have dealt with this, should not happen. You cannot just suspend people in the way in which this happened, and in the sort of less satisfactory way in which they considered the evidence; I hope I have put that in a measured way, my Lord. It is just not appropriate. This is a professional man who potentially his career has been already ruined by an action which should never have happened.

My Lord, there are other matters I need to draw to your attention which I mentioned earlier but which are subsidiary. This application was made; they had an opportunity when the application was made to stop. So there may be a point at which, if you do not make it the whole of the indemnity costs, it is when the application was served. Alternatively, if there was any issue later, on 6 August his witness statement was served. If there is any doubt as to the relevance of all the evidence, what the issues were, what the strengths or weaknesses of the GMC's case was, even when they do not have it when the application was issued with Mr Pennock's lengthy skeleton argument, they certainly could not really have missed it when they got his witness statement. Only last Friday, they got the witness statement from Mr Singh; may I add that they have had roughly the same amount of time to consider that witness statement as my client had to prepare his defence to the IOP case. One might have expected, when they saw that piece of information in conjunction with the agreed order from the West Yorkshire Metropolitan Police, that somebody in the GMC might have come to the conclusion, if I can use an unpleasant phrase, that the game was up, and that they might admit the proceedings. At that stage, the costs of Mr Pennock and I of attending would have been avoided. I did not prepare that additional skeleton argument until over the weekend. We had rather hoped that they might have changed their minds, so we held off doing any more work in case that might occur. The last opportunity was today. They have availed themselves of none of those opportunities, and they have allowed the costs in this case to be accumulated and to roll on wholly unnecessarily.

Somebody has to take responsibility. This is a public body. And I respectfully submit that your Lordship, it is about time that one of Her Majesty's judges explain to this particular body that they have to conduct themselves in a proper way. There are plenty examples of where they have been told what to do; they have the guidance, and your Lordship has already made an observation about how they might have learnt some lessons from the earlier cases, and sadly they have not. And if they are as good and as responsible and as well trained as my learned friend suggested to you for nearly ten minutes this morning, then their conduct is all the more reprehensible, and the conduct of the GMC is all the more reprehensible, and I respectfully submit that my lay client, who has had to incur these costs, should not have the responsibility for doing so.

JUDGE GOSNELL: Okay, thank you. Yes, Mr McDonagh?

MR McDONAGH: If your Lordship is minded to ask for a detailed assessment of costs, and gives no indication in relation to indemnity costs at this stage, I need not address you at all.

JUDGE GOSNELL: No, that is the whole point of the application your opponent has made.

MR McDONAGH: Yes, well the figures that my learned friend has put forward reflect work done which does not -- calls into question a number of matter which are claimed for. I can take you through, if you wish to go through that process.

JUDGE GOSNELL: We will have to do that. I do not think you understand the way this works, and I apologise if I appear patronising at this point.

MR McDONAGH: Not at all.

JUDGE GOSNELL: But the way it works is this. I decide who pays the costs; I then decide on what basis; and then eventually, because on a detailed assessment the District Judge will go through the exercise, and you are going to say that was too much, he did not need to do this, et cetera.

Your opponent is right in this sense: the effect, if I make an indemnity costs order, is that it shifts the burden of proof from one side to the other.

MR McDONAGH: I understand. I was not sure if my learned friend was trying to reopen the idea of detailed assessment at this stage.

MR WILBY QC: No.

JUDGE GOSNELL: No.

MR McDONAGH: I am grateful. It was not immediately clear, bearing in mind the extent of the --

MR WILBY QC: I apologise. I spent four and a half weeks doing the Buncefield costs, I know a little about them.

MR McDONAGH: I hope I was not being obtuse.

JUDGE GOSNELL: Not at all.

MR McDONAGH: Indemnity costs; we are dealing with a regulator. We are dealing with an organisation which has the public interest at the forefront of its concerns. Your Lordship will be aware of the costs against a regulatory body, which primarily deals with first instance decisions in relation to matters, but the distinction is that this is not a civil litigation case commonly found before these courts when a regulatory body is involved. It is dealt with at page 1272.

JUDGE GOSNELL: 1272.

MR McDONAGH: Yes, I find it much easier, 1272. I am actually on 2011, I apologise.

JUDGE GOSNELL: That is where the difficulty lies.

MR McDONAGH: 44.3.8.1: "Costs against a regulatory body".

JUDGE GOSNELL: Yes, you are right, it is the same reference.

MR McDONAGH: Yes, and your Lordship will see there the principle, which is that because a regulator brings proceedings in the public interest in the exercise of its public function which it has to perform, the principle is applicable to an order of costs different from that in relation to private civil litigation. May I say that many of the criticisms my learned friend has made are more akin to that of a civil litigation, where there has been that type of contest. What we have here, on your Lordship's ruling, is absent of dishonesty or lack of good faith. Costs should not be made against a regulator unless there is good reason to do so, and the reason for that is this, that the regulator must not shy away from difficult decisions in relation to those it regulates, bearing in mind its role with regard to the public interest. To say the time has come for one of Her Majesty's to send a message to the General Medical Council really flies in the face of General Medical Council and its role in the public interest; it flies in the face of the fact that costs orders are not made in relation to General Medical Council hearings at first instance, bearing in mind they are regulating doctors who appear before them, so it is their involvement in that decision making process. They represent the doctors who pay the fees for what is now the Medical Practitioners Tribunal Service.

But your Lordship has the point; there are wider issues rather than the fact that the General Medical Council stood behind in this hearing the order made at first instance. And to say that a shot must now be made across the bow of the General Medical Council really forgets the actual public interest that the role of the General Medical Council and the involvement of doctors within the General Medical Council, and their funding of it, and the fact that costs are not made at first instance absence mal fides, bad faith or dishonesty. And it has never been suggested, whatever the criticisms made by my learned friend, however detailed they are, that there has been bad faith in this case.

JUDGE GOSNELL: No, as you say, the provision you draw my attention to relates to first instance decisions, not appeals.

MR McDONAGH: Yes, accepted.

JUDGE GOSNELL: But it has a relevance, that point I accept.

MR McDONAGH: Yes, and moving forward, you have in this case recognised the criticism of the determination at first instance. If the panel had gone on to set out in one extra sentence the basis for that decision --

JUDGE GOSNELL: You will still have lost.

MR McDONAGH: I may still have lost, but the criticisms would not necessarily have attracted the same opprobrium that they have attracted. And so it returns to felicity of language, and I do not want to repeat the representations on motivations for that.

JUDGE GOSNELL: No, just to help you with that, I would hope that as part of your role through your instructing solicitors to reflect what I have said, or whether you choose to obtain a transcript or not, because I think it is something that would be helpful, that certainly the legal advisor should have been more helpful to colleagues at the time, I think. Whilst I think that had the determination been more felicitously expressed, your opponent's case would not have been as strong, but the result would have been the same. But it makes it a lot harder for everyone when formulaic paragraphs are used, whether they were directly cut and pasted or not, they looked a lot like they were. So I was hoping you were going to take that message back either way.

MR McDONAGH: Your Lordship can rest assured I am assisted by my instructing solicitor who sits behind me, who has a direct line to those more senior within the Council.

JUDGE GOSNELL: That is what I was hoping would happen.

MR McDONAGH: Yes, absolutely.

JUDGE GOSNELL: Anything else you want to mention?

MR McDONAGH: My Lord, no. I would be repeating the points I have made, and I have tried not to do that.

JUDGE GOSNELL: No, that helps, thank you.

28. In relation to the issue of costs, I am going to order that the defendant pay the claimant's costs of the proceedings, to be assessed by a detailed assessment if not agreed. The only real issue is whether they should be on the indemnity basis or on the standard basis. I have helpfully had explained to me what the distinction between those two bases is. I do not intend to go into a great deal amount of detail, because this decision is one which is taken by many judges up and down the country, and although there are a number of decisions that help the thought processes, it really is one of those things that a judge can usually feel whether it is an indemnity costs case or not at the end of the hearing, obviously respecting what both parties say.
29. Usually the situation for an indemnity costs order is either where there has been a reliance on a Part 36 order, where it follows from the rule, or alternatively where there has been misconduct by one of the two parties during the course of litigation, or perhaps unreasonable conduct to a high degree, and I take those two phrases from the notes in the White Book. There has been no misconduct in this case, in that the GMC have chosen not to concede the appeal, they have chosen to dispute the appeal. I am sure in part they do that for policy reasons to support the panels.
30. Was it unreasonable of them to do so, and was that unreasonableness to a high degree? I have to say it was misguided, because this was not a difficult case to decide. It seems to me an objective assessment of the quality of the decision, coupled with an assessment of the facts of this case when compared with the facts of the other three known cases on similar issues, would in my view have led a sensible assessor to the conclusion that it was a case perhaps that should be reviewed and looked at again.
31. Having said that, I am not sure I can say that their maintaining opposition to the appeal was unreasonable conduct to a high degree. The additional costs which have been incurred as a result of the hearing actually taking place will have to be paid by the defendants on the standard basis. The rhetorical question is posed: why should the claimant have pay anything? If all his cost are objectively decided to be reasonable, with the onus being on the receiving party to convince the District Judge of that, there is no reason he should lose anything. And in my view, having indicated informally through counsel what my comments are, and I think in a reasoned judgment which is capable of being understood what my thought processes were, I am hopeful and confident that this will be taken back to the GMC without the necessity for me to make some sort of example of them in this particular case.
32. So for those reasons, I am going to order that the assessment be on the standard basis.

MR WILBY QC: My Lord, may we have an interim payment on account of our costs, pending that assessment process? Sorry, I apologise, that was very rude of me.

JUDGE GOSNELL: In theory you are entitled to it, I suppose now, a bit like the game show, I shall open the envelope --

MR WILBY QC: It is a lot of money, my Lord. I think it is £58,000 on the second page. I have to say my personal involvement, as you see, has been relatively limited.

JUDGE GOSNELL: You are right, it is a lot of money.

MR WILBY QC: It is a lot of money. My Lord, let us not worry about that top-end figure, whether that is correct or not. Obviously, as in all -- if I tell you the grand total of the regulatory authorities' costs is £13,500 -- they have done very little, as you know. They have not made any of the running. They have not done any of the work. It is the typical difference between a claimant's and defendant's costs, which again if I might say so with a judge of your Lordship's experience you are fully aware of the distinction between claimant's and defendant's costs, applicant's and respondent's costs. We would respectfully submit as a fair figure by way of an interim award would be £30,000.

JUDGE GOSNELL: Okay, thank you.

MR McDONAGH: I would say a fair figure would be half of that, which would be the normal sum available in a case of this kind. There is a real issue here of whether work has been duplicated, bearing in mind the third-party application, bearing in mind the statements were served very late in the day, they were not served with the original application, and the fact that the statement refers to judicial review proceedings, which as I understand it were different solicitors in any event.

JUDGE GOSNELL: That has nothing to do with this. I have already explained this to my learned friend.

MR McDONAGH: The point is that in those circumstances, a figure of £15,000 would be fair and appropriate. If my learned friend is right, and the rest of the costs are reasonable, in due course they will be assessed accordingly.

JUDGE GOSNELL: Okay, thank you.

33. I will make an order for the defendant to make a payment on account of the claimant's costs in the sum of £20,000. It seems to me that on any view, particularly given the amount of the defendant's costs, I might expect the claimant's costs to be 50 per cent more than them, and that so that would work out to just above £20,000, so I am confident that the claimant will recover more than £20,000 in a detailed assessment.

MR WILBY QC: Thank you, my Lord. Thank you, if I might say so, for the alacrity and speed with which you determined --

JUDGE GOSNELL: Both of you gentlemen helped me with that, and I very much appreciate it. Mr McDonagh, I realise that Mr Wilby as part of his old school charm has utilised the acknowledgment of both the court and the tribunal, but I do assure you that the fact that you were elsewhere made no difference at all. I would like to think I have treated you with as much courtesy that I treated Mr Wilby.

MR McDONAGH: I never thought anything other than the absolute courtesy which your Lordship refers to was coming in my direction.

JUDGE GOSNELL: Very good.