England and Wales High Court (Administrative Court) Decisions

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

		Leeds Combined Court 1 Oxford Row Leeds LS1 3BG
		23rd November 2012

1. HIS HONOUR JUDGE SHAUN SPENCER QC: The appellant, Waqar Ahmed, is 33 years of age, with a date of birth of 5th March 1979. By occupation he is a practising optometrist and registered as such as with the General Optical Council. He has been able to produce references which speak well of him as to his general and professional character.
2. He appeals against an order which was made by the Fitness to Practise Committee of the General Optical Council on 16th July 2012. The order that was made followed from a finding made by the Committee that the appellant's fitness to practise was impaired and that the appropriate sanction in those circumstances was one of suspension from practice for a period of 12 months.
3. I should set out some of the relevant legislation. By the Opticians Act 1989 (as amended) section 13D provides for what are described as allegations. Subsection (1):

"This section applies where an allegation is made to the Council against -

(a) a registered optometrist or a registered dispensing optician that his fitness to practise is or may be impaired;

(2) The only grounds upon which the fitness to practise of a registered optometrist or registered dispensing optician, or the fitness to undertake training of a student registrant, is 'impaired' for the purposes of this Act are -

(a) misconduct;

(b) except in the case of a student registrant, deficient professional performance;

(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence..."

I have left out all the irrelevant words from that section.

4. Where an allegation against a Registrant is referred to the Fitness to Practise Committee of the General Optical Council and if the Fitness to Practise Committee find that the registered optometrist is impaired in relation to his fitness to practise, then they may, if they think fit, give a direction.. I have quoted from 13F(1) and the specified directions appear in subsection (3) or (4). These are as follows:

"That the name of the Registrant be erased from the appropriate register….. and ………. that the Registrant's registration be suspended, that is to say not to have affect during such period not exceeding 12 months as may be specified in the direction."

Subsection (4) is not relevant for our purposes.

5. So far as this matter coming before the court is concerned, it is provided by section 23G(1) that the following decisions are appealable decisions and under subparagraph (a) there is listed …. a decision of the Fitness to Practise Committee (i): under section 13F above, giving a direction for erasure or suspension. The relevant court is the High Court of Justice (subsection (4)). By subsection (6):

"On an appeal under this section from a decision of the Fitness to Practise Committee the relevant court may:

(a) dismiss the appeal

(b) allow the appeal and quash the direction of variation or order appealed against

(c) substitute for the direction, or variation or order appealed against any other direction or variation or order, which could have been given or made by the Fitness to Practise Committee or (d) remit the case to the Registrar for him to refer it to the Fitness to Practise Committee to dispose of the case in accordance with the directions of the court and may make such order as to costs as the court thinks fit."

6. I now say a few words about the approach of the court under an appeal. Matters are set out in the decision of Cranston J in Cheatle v GMC. The relevant provisions there have no practical difference from those which I have to consider. At paragraph 12 it says:

"The appeal is by way of a re-hearing. The relevant practice direction offers no guidance as to what this means: see CPR 52 PD. 116 (2). Clearly it is not an appeal confined to a point of law, but neither at the other end of the spectrum is it a de novo hearing, where the court hears the witnesses giving evidence again. The basis of intervention appears to be broader than that for judicial review. On at least one view there is a tension between two Court of Appeal decisions as to the approach to be adopted. At first instance in Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462, Collins J said that an appeal was not limited to review, although the court would not interfere with a Fitness to Practise Panel's decision unless it was clearly wrong. The Court of Appeal agreed, but doubted that the word 'clearly' added anything (paragraph 125). Auld LJ said (Sir Anthony Clarke MR and Thorpe LJ agreed) (paras 69 and 282):

'… 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 from its members in matters of medical practice deserves 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 judgment to be made by the Tribunal, especially the last, are akin to jury questions to which there may be reasonably be different answers.'"

The further decision was one which was an appeal on sanctions: the case of Rashid and Fatnani v General Medical Council [2007] 1 WLR 1460. In that case Laws LJ reviewed Privy Council decisions on the appellate role in these matters. In a judgment with which Chadwick LJ and Sir Peter Gibson agreed, Laws LJ held that those decisions established two stands of learning:

"... first, that a principal purpose of a Fitness to Practise Panel was the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, and secondly, it was necessary to accord special respect to its judgment. The High Court would correct material errors of fact and of law and it would exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case (para 20). Laws LJ expressly disagreed with the approach adopted by Collins J in Meadow, unless it was read in the context of the two strands in the learning (para 21)."

Then at paragraph 15 Cranston J said this:

"In my view the approaches in Meadow and Rashid are readily reconcilable. The test on appeal is whether the decision of the Fitness to Practise Panel can be said to be wrong. That to my mind follows because this is an appeal by way of rehearing, not review. In any event grave issues are at stake and it is not sufficient for intervention to turn on the more confined grounds of public law review such as irrationality. However, in considering whether the decision of a Fitness to Practise Panel is wrong the focus must be calibrated to the matters under consideration. With professional disciplinary tribunals issues of professional judgment may be at the heart of the case. Rashid was an appeal on sanction and in my view professional judgment is especially important in that type of case. As to findings of fact, however, I cannot see any difference from the court's role in this as compared with other appellate contexts. As with any appellate body there will be reluctance to characterise findings of facts as wrong. That follows because findings of fact may turn on the credibility or reliability of a witness, an assessment of which may be derived from his or her demeanour and from the subtleties of expression which are only evident to someone at the hearing. Decisions on fitness to practise, such as assessing the seriousness of any misconduct, may turn on an exercise of professional judgment. In this regard respect must be accorded to a professional disciplinary tribunal like a Fitness to Practise Panel. However, the degree of deference will depend on the circumstances. One factor may be the composition of the tribunal. In the present case the Panel had three lay members and two medical members. For what I know the decision the Panel reached might have been by majority, with the three lay members voting one way, the two medical members the other. It may be that some at least of the lay members sit on Fitness to Practise Panels regularly and have imbibed professional standards. However, I agree with the submission for the appellant in this case that I cannot be completely blind to the current composition of Fitness to Practise Panels."

7. When assessing what is required by way of professional standards from a registered member of the optometrists profession I should refer to the code of conduct for individual Registrants. This is a code of conduct which came into effect on 1st April 2010. It says that all optometrists must abide by the code of conduct in their personal and professional conduct at all times. If a Registrant fails to comply with the duties and responsibilities set out in the code of conduct, they are putting their own registration at risk.
8. The code sets out on page 5:

"As a registered optometrist you must..."

Then it sets 19 particular 'thou shalts'. It is relevant for me in this case to cite number 10 and number 19. Number 10 says: "be honest and trustworthy" and number 19 says: "ensure your conduct, whether or not connected to your professional practice does not damage public confidence in you or your profession."

9. Since in this particular case questions of honesty and dishonesty have bulked large, I should also make some reference to an item which appears in the Fitness to Practise Panel's Hearing Guidance and Indicated Sanctions.
10. Page 27 deals with dishonesty . The Council's code of conduct for individual Registrants states that the Registrants must be honest and trustworthy. Dishonesty is particularly serious, as it may undermine trust in the profession. Examples of dishonesty are given in a number of bullet points:

• defrauding an employer, a college or an insurance company.

• defrauding the NHS

• improperly amending or changing the detail on patient records.

• submitting or providing false references and information on a CV.

• research misconduct and failure to disclose to the Council or employer or PCT criminal convictions and cautions.

There was a citation, which says this:

"The Privy Council emphasised in the case of Dr Shiv Prasad Dey v General Medical Council (Privy Council Appeal No. 19 of 2001), 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.'"

11. I now turn to the history and the facts. On 16th July 2012 the applicant appeared before the Fitness to Practise Committee of the General Optical Council. He was represented by an advocate, Mr Kevin Toomey, who it seems was assisted by Miss Fiona Mitchell. For the Council there appears Miss Nimi Bruce. There was a legal adviser present, Mr Alex Milne QC. There were five members of the Committee: Margarete Hallendorf MBE, who was a lay member and she was the Chair; Alison Hudson, who was an optometrist; Fran Jones, who was a lay member; Corina Kershaw, who was a lay member and Professor Stephen Taylor, who was an optometrist. The occasion for the hearing was that certain allegations had been laid against Mr Ahmed.These were read out at the commencement of the hearing:

"The Council alleges that in relation to you, Mr Waqar Ahmed, a registered optometrist.

(i) on the 12th April 2011 you were convicted at Calderdale Magistrates' Court of:

(a) on the 1st October 2010 driving a motor vehicle, namely a Mercedes C220 YR53WWP on a road, namely Burdock Way Halifax West Yorkshire at a speed exceeding 40 mph [and there it sets out the relevant statutory provisions].

(b) on the 1st October 2010 wilfully obstructing a Police Constable, namely PC 3346 Young in the execution of his duty."

That was laid contrary to section 89(2) of the Police Act 1996. It was alleged that by virtue of the matters set out above Mr Ahmed's fitness to practise was impaired..

12. The facts relied upon may conveniently be taken from the opening statement which was made by Miss Bruce. She presented the case as being 'very straightforward albeit a serious one'.
13. So far as the speeding is concerned, Mr Ahmed was doing 54 miles per hour in a 40 mile per hour zone. So far as the wilfully obstructing a police constable, that arose in these circumstances. The officer in question, PC Taylor, was monitoring the speed of traffic using a marked police vehicle. He measured the speed of the Mercedes at 54 miles per hour in the 40 mph zone and he caused the vehicle to stop. He said that:

"One person, a male, then provided me with details of..."

And a name was given and a date of birth. These were not the relevant particulars for Mr Ahmed. The officer's statement said:

"I noted that when the driver provided these details he hesitated unnecessarily and appeared uncertain on the date of birth, almost as if he was calculating something within his head."

14. The various checks were made on the Police National Computer, which led to some pertinent questioning of Mr Ahmed as to whether he was insured or not. On the information that the policeman had been provided with, it became apparent that the vehicle would have to be recovered by the police as an uninsured vehicle and while the policeman was on the radio arranging for the Mercedes to be towed away Mr Ahmed said:

"Hang on, I gave you false details"

and he then said that his true name was Waqar Ahmed and that his date of birth was 5th March 1979 which in fact it is.

15. So what we have there is a speeding stop, false particulars of identity given and really within minutes the driver acknowledging that he had given false details and providing the true ones.
16. That is a picture which was not maintained in the course of the interview which later took place, for in the course of the interview the Registrant, Mr Ahmed, indicated that he did not provide false details, there had been a misunderstanding and he said:

"When I realised you had the wrong details I corrected you."

So it comes to this. That he accepted he was driving at all material times and denied that he had supplied false details to the police officer. Obviously it was the provision of the false details which constituted and formed the basis of the charge of wilful obstruction.

17. Given the denial from the defendant the matter went to the Magistrates' Court and was heard by them on the 12th April 2011. The magistrates found that the defendant wilfully gave an incorrect name and date of birth when asked for this by the police officer and gave the correct details only when realising that the vehicle was to be seized.
18. After the conviction the defendant entered a notice of appeal. It may be that the notice of appeal is in his own handwriting. It is dated 23rd April 2011. He set out the issues as follows:

"It was a simple misunderstanding and there was no obstruction between myself and the PC."

19. It is apparent from considering the whole of the transcript that the course of the evidence, consistently with the manner in which it had been opened by the advocate for the Council, went considerably beyond in terms of events and time the scope of the allegation. The allegation, I reiterate, is limited to the following:

"You were convicted at Calderdale Magistrates' Court of on the 1st October 2010 wilfully obstructing a Police Constable, namely 3346 Young, in the execution of his duty contrary to section 89(2) of The Police Act 1996."

As I have recited and as was covered in the evidence, there was evidence both in-chief and in cross-examination which focused on the appearance before the Magistrates' Court and the trial on the notice of the appeal, the abandonment of the appeal, and latterly a letter which was dispatched to the Registrar of the Council which said this. It was dated 30th June 2011:

"To update on my position I have withdrawn my appeal due to the cost and my affordability... "

Signed Waqar Ahmed.

20. The effect of that particular letter, on any fair reading, was to convey the impression that the appeal had been withdrawn, not because of any acknowledgement of guilt but because of the financial considerations which prevented the appeal going forward.
21. Given the stress which has been laid in the case on dishonesty and indeed giving false details to the police officer was a dishonest act, I was myself in the course of the hearing concerned with the fact that the very large tail of the aftermath proceedings was allowed to wag the dog of the very confined and specific allegation which had been laid against the Registrant.
22. I am however satisfied by the submissions of the Council for the General Optical Council, first of all, that the mode of presenting the case was at no stage objected to by the Registrant or his legal advisors : and that no complaint is raised of it in the Grounds of Appeal or in the Skeleton Argument : and the fact is that Mr Waqar Ahmed had a very full opportunity to deal with the whole circumstances of the case.
23. It gave him the opportunity, in his evidence, to accept that he had behaved dishonestly towards the policeman, towards the court and in relation to the letter of June 2011, to the Registrar of the Council. Whilst I had those concerns ( I say this at the expense of reiteration) I am satisfied that they did not occasion any unfairness in the procedure and that had anybody said that it was necessary for the charges to be supplemented by setting out the specific items of the history which are relied upon, it would not have altered the course of proceedings other than indeed to add to the number of allegations. That sets out the history so far as is relevant.
24. Mr Milne, who appeared as the legal adviser, gave a legal direction which appears at B22. He said this:

"By virtue of the conviction, impairment, as in fitness to practise impairment, ought to be considered. The finding of the conviction does not inevitably lead to a finding of impairment but it is a finding that is open to the Committee and has rightly been observed that the decision is whether the Registrant is currently impaired regardless of what has happened in the past. The approach that the Committee should take is not to punish the Registrant for past misdeeds but to protect the public and in doing so to that extent they are look forwards not backwards. However, you are entitled to take into account his past actions or admissions, in this case admitted by the Registrant in forming your judgment."

I cannot detect any flaw nor has it been suggested that those directions are flawed.

25. Mr Gledhill, for the appellant, thinks that they could have been more detailed and I shall deal in a moment with the respects in which they could have been more detailed.
26. I now turn to the actual findings which are set out at B23. It said this:

"The Committee, having heard from the Registrant, notes that he lied to the police when stopped, that he repeated the lies in interview, contrary to the advice of his solicitor, and repeated those lies again several months later at his Magistrates' Court trial. He then lodged an appeal against the court decision and notified the GLC that the appeal was withdrawn only for financial reasons.

It follows that the first admission as to the truth has been provided today in evidence to the Committee. The explanations provided today for his behaviour, in the view of the Committee, indicate a lack of insight and judgment on the part of the Registrant. Whilst the Committee has taken into account the character references provided on his behalf, the Committee bears in mind that the Registrant is a man in his 30s and not a youth.

The Committee is of the view that his behaviour involved dishonesty over a period of months and was not an isolated incident. His response to a pressurised situation was to lie repeatedly, to attempt to avoid taking responsibility for a simple speeding fine. Such dishonesty would, in the view of the Committee, inevitably tend to undermine the confidence of the public in the profession. Coupled with the lack of insight already referred above, the Committee find the fitness of Waqar Ahmed to practise as an optometrist is impaired."

27. Points that are made in relation to those findings are as follows: first, there is the reference, which appears twice, to the lack of insight and judgment on the part of the Registrant. Complaint is made that the particular facts which could justify that finding are not specified by the Committee. That criticism is accurate so far as it goes.
28. I bear in mind however, that the Committee was speaking to an informed audience, that is to say, the Registrant himself and the various legal advisers. It is clear from the transcript that what was being referred to was the circumstance in which he came to be denying the obstruction in the course of police interview and latterly at the trial. When he was questioned, he said when cross-examined by Miss Bruce:

"Just before the police interview I went to meet my duty solicitor, the police officer was talking. He came to collect me and he said to me: 'You're in a great deal of trouble son, you're going to go down for this, I'll make sure of it.' That's why basically from that I wasn't in a good mental state."

He said that he thought he needed to avoid jail. So that is why he went through the trial.

29. That is something that had been heard only shortly before and it was dwelt on in some detail in the evidence and I do not think anybody present could have been under any delusion that that is what the Committee was driving at.
30. In those circumstances, in so far as it is suggested that Mr Milne ought to have gone into more detail in a direction relating to insight, I do not think in the manner in which the proceedings developed it was necessary for that to happen.
31. A further matter which is raised by Mr Gledhill, on behalf of the defendant, is this. In the course of questioning from the Committee, the lay Chairman, Miss Hallendorf, asked about the state of his driver's licence:

"Q. Just one question: how long have you had your driver's licence?

A. Over 10 years I would say.

Q. This was your second set of three points?

A. Yes.

Q. Had you any previous to that?

A. Previous points, no. I had three previous and that was it.

Q. That was the previous one to the first three that you received?

A. No, I've never had points before that.

Q. So you've only had ever 6 points?

A. No. I have had another 3 points since these ones so in total at the moment I have 9.

Q. So since this case you've had another 3 points? A. Yes."

Miss Jones took up the matter and got an answer:

"Q. At that point I had 3 points before, so I had 3 points after the trial but after the trial I got another 3 points"

. What was that for?

A. Speeding.

Q. What were you doing then?

A. I was just going to work again, I was a little over the limit, it was a camera. I got a fixed penalty notice.

Q. I suppose at some point the issue that you're saying you're very anxious about is going to happen, isn't it? You're going to lose your licence because it does not appear there is great learning going on here."

32. The complaint is made, understandably, that when this matter emerged and it was taken up the Committee would have been left with the impression that the Registrant was a repeat offender in the speeding stakes and was not learning his lesson.
33. This is something which does not form part of the case as it was advanced, namely, the wilful obstruction of the police. It was not suggested in the opening that the speeding really formed any part of the impairment case. It is the submission that what ought to have happened is that Miss Hallendorf either should have said : if it was the case, we were influenced by the extra 3 speeding points. Or she should have said: we weren't in the least influenced by the extra 3 speeding points.
34. It seems to me that the structure of the judgment was that the Chair was giving an account of what induced the Committee to arrive at the decision that they did. While it may have been better if it had been stated that the extra 3 speeding points were ignored, I do not regard it as in any sense fatal to the finding that there was no specific mention of it.
35. A further point which is made, this appears in skeleton argument No 2, filed by Mr Gledhill, is that the decision did not clearly state that they were addressing the question of whether the Registrant, Mr Ahmed, was currently, and I stress "currently" impaired. So far as that is concerned, the finding was: the Committee find that fitness of Waqar Ahmed to practise as an optometrist is impaired. They had adjourned to consider the case, the hearing records, at 10.40 and reconvened 35 minutes later, and the words that they would have had last heard from the hearing would have been the directions of Mr Milne telling them, as has been rightly observed, the decision is whether the Registrant is currently impaired regardless of what has happened in the past. So far as the particular criticisms are made, I do not regard them as influencing the fairness of the course of the proceedings or the relevance of the deliberations.
36. I do take the view that the case does call for some scrutiny in this court, not least because the offending is of a character which does not in any way put into question the clinical expertise of the registrant or his standards of client care. He is a qualified optometrist, with no doubt a clientele and he ought not lightly to be removed from the clientele.
37. 37.1. It is right that conduct, whether or not connected to its professional practice, can be considered. That is said as much in the code of conduct, at paragraph 19, from which I have quoted. It is not difficult to imagine serious offending which would beyond any doubt put in issue a person's fitness to practise and would result in them being impaired. Cases which have been cited to me where this has taken place have been the case cited to me by Mr Bradley for the Council, in which case the question related to a conviction of three allegations of dishonesty, which involved knowingly making to a professional colleague false representations about an investment scheme, so as fraudulently to reassure him that £188,000 had been promised would be paid. That was a case of alleged impairment and then I have been referred, in the context of the General Medical Council, to a case called Fatnani, in which a doctor had been involved in money laundering large sums to some premises in Cyprus.
38. The question is whether a false assertion of somebody else's name, persisted in throughout the court proceedings is something which is capable of amounting to impaired fitness to practise.
39. In relation to that, the respondent submits in the skeleton they provided me that it can. They say that the question whether a Registrant's fitness to practise is in fact impaired is essentially one of judgment for the Committee and they say that the Committee is obliged to have regard to the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession. My attention has been drawn to a case called Grant.
40. I have to bear in mind that we are here dealing with a specialist Tribunal, specialist in the sense that it deals with this class of case. In no way is it composed of specialist optometrists exclusively : as I have already indicated, the make up was of three lay persons and two optometrists. Therefore, arguably to call it a wholly specialist Tribunal may stretch the definition.
41. I also take the view that this is not a straightforward case. It is, I would suppose, not difficult for Tribunal's to deal with cases where medical men are engaged in sexual conduct with patients or former patients. I do not suppose it is difficult for Law Society Tribunal's to deal with cases where solicitors have been subjecting client's money to irregularities or even going the length of appropriating client's money - I cite the two principal areas which seem to arise in those two professional Tribunals.
42. But I do take the view, although I regard the case as being pretty near the line, that there are substantial grounds for Mr Bradly to submit to me that this is a case where the Tribunal was not wrong to find that there was impairment. I note that the legal adviser made clear that it was open to find impairment, if the Tribunal thought it right to do so. That particular direction has not been criticised. I take the view that when I stand back and ask myself if the Tribunal was entitled to find impairment and was not wrong to find impairment, I take the view that I should have proper respect to the fact that the Tribunal had the advantage, which I have not had, of seeing the witnesses and having on its composition two experienced optometrists. The conclusion to which I come is that the case is one where I am not persuaded that the Committee was wrong to find that there was impairment.
43. I now turn to the question of sanction. The General Optical Council is a self-regulating body and the self- regulating body has the Committee already referred to which, among other things, has the responsibility of dealing with cases in such a way as to maintain public confidence in the profession.
44. I think it relevant that when considering the sanction I should look at how the matter was presented to the Tribunal.
45. The advocate for Mr Ahmed said this and I quote from B25:

"His own personal mitigation of course must be and will be weighed I know against the gravity of the offences for which he was convicted and the findings that have been made by you and your colleagues today madam. The gravity is not lost on him. His instructions are rather, as I said, rather belatedly candid compared to the early happenings in the whole course of events. His instructions to me are very simple. If I am suspended the whole store can continue; if I am erased, it cannot.

I fall short of making a submission of anything but erasure but I fear being realistic, as we always must in these circumstances, there can be few things on your mind or the minds of your colleagues by way of sanction today commensurate and proportionate with the findings you've made other than suspension or worse.

In those circumstances madam, I think my submissions can really be as short as that."

So despite the formal disclaimer, the submission essentially was anything but erasure and if it has to be suspension, so be it.

46. In those circumstances, having obtained the suspension that was effectively asked for the submission now is that the suspension was for too long a period.
47. I think that a number of factors need here to be considered. First, there is the frankness of the Registrant with the Tribunal, subject to the point which concerns the Tribunal and which the Tribunal was entitled to regard as concerning, namely that his explanation for perpetuating the falsity involved a minimisation of his own role. I think that is a relevant matter they were entitled to take into account.
48. As with the finding of impairment however, I have to stand back. Cases of this sort are not so common that any particular tariff could be regarded as relevant. There would be no particular tariff that will be known to this Tribunal, albeit a specialist Tribunal. Whether they were influenced by the fact that any suspension would be preferable to erasure, I know not. But from my viewpoint, I do regard the fact that the maximum period of suspension was imposed as being something which concerns me. It may be said: well, clearly they were considering erasure and so suspension, even for the maximum term, reflected all the mitigating areas and the necessary protection for the public that was required and the necessary wielding of a stick in order to maintain confidence in the general reputation of the profession as a whole.
49. I take the view myself that the length of the suspension was disproportionate to the finding of impairment that was made and the fact which led to it. I take the view that it would be appropriate to reduce the period of suspension to a period of 4 months.
50. HIS HONOUR JUDGE SPENCER: Are there any applications arising out of all that?
51. MR BRADLY: May I have just one very short moment with my learned friend and my instructing solicitor?
52. HIS HONOUR JUDGE SHAUN SPENCER QC: If it helps, my current attitude is to say that there should be no order for costs but I will listen to any other application.
53. MR BRADLY: May I also, because of the time, and your Lordship has given a very long and detailed judgment, I was precisely seeking to cut through the issues by addressing my learned friend. I had not taken any instructions but it seems to me that he has won on one part of it and lost on the other.
54. HIS HONOUR JUDGE SPENCER: Well he has won something and won part of it.
55. MR BRADLY: Yes. Quite, absolutely won something. In those circumstances I was going to seek to cut through it and express the view, if I could do with his agreement, that your Lordship has just expressed. I think that as far as I can take it.
56. HIS HONOUR JUDGE SHAUN SPENCER QC: You have some Part 36 offer.
57. MR GLEDHILL: Indeed. On 26th October 2012 my instructing solicitor wrote to the General Optical Council to set out a Part 36 offer and it offered substitution suspension of 6 months, open for 21 days. That was formerly rejected.
58. HIS HONOUR JUDGE SHAUN SPENCER QC: The offer alleged the whole claim included with interest.
59. MR GLEDHILL: There has to be some benefit to the appellant for making an offer in those terms that could have saved a trial and my learned friend may, and the court may be of the view: well, some matters have been won by one side and some others by the other and may be it appears it is 50/50 on the issues leading to the view that no costs are to be paid. But, in light of that and the reluctance of the General Optical Council to properly engage to save the costs of this exercise, the appellant has been put to a lot of anguish and a lot of cost with an unknown certainty. There must be some pressure on regulators to settle when things are fairly obvious, that there has been a manifestly excessive sanction.
60. MR BRADLY: My Lord, may I say a couple of things please? My learned friend says that there be an onus on a regulator to engage. This is not a situation in which the executive of the General Optical Council can simply take a view about compromising these cases. As your Lordship noted at the outset of his judgment, the Fitness to Practise Committee is entirely separate. It and it alone is vested with these decisions. If it makes a decision the General Optical Council will support the decision in the court, to the extent that it can fairly do so. The executive will never override the decision reached by the Committee.
61. HIS HONOUR JUDGE SHAUN SPENCER QC: Yes.
62. MR BRADLEY: I am there before you, I am so sorry to interrupt; that is very rude.
63. JUDGE SHAUN SPENCER QC: I am saying "yes" to acknowledge that I have heard what you said.
64. MR BRADLY: I am not failing to engage with the process, I am obliged to be here because the executive absolutely properly will not plea bargain with a decision reached by an independent Committee. That is why, as was explained to those instructing my learned friend in a letter the GOC cannot be involved in negotiations about settling a claim. So, that is the position and in those circumstances, regardless of any Part 36 offer your Honour has a discretion and my submission would be, if I am going to be faced with an application for an order for costs, that the right order is no order. My alternative would be a very substantial part of this case has been spent on the issue of impairment and those costs ought to come in this direction if there is to be an assessment.
65. MR GLEDHILL: Very brief reply in relation to the GOC stance. Other regulators such as the NMC and my instructing solicitor contacted the NMC to understand their stance. They do make Part 36 offers. We also understand that the General Medical Council does from general experience. We therefore find it astonishing that a regulator cannot make an objective decision between the matter at an executive level that something is so manifestly excessive that there should be a settlement.
66. We on 5th November sent a further Part 36 offer, in relation to accepting the following: the determination of the FTP Committee to be set aside and the case remitted for rehearing by a differently constituted Fitness to Practise Committee. My friend's stage whisper is that this is meaningless. The CPR requires the parties to seek settlement. It cannot be right that a regulator can refuse to settle or to engage in that process. It must be right as a matter of public policy that they look at a case and take a view.
67. It is for the court ultimately to decide whether it is the correct approach in any consent order that might be entered into, so there is a safeguarding element.
68. JUDGE SHAUN SPENCER QC: Yes.
69. This is a matter in which there is an appeal to the High Court against a regulatory body. I do not take the view that the considerations of negotiation as to the outcome after a Committee has pronounced,is something which has any parallels to the discussions which might take place in an ordinary civil case relating to money.
70. I think that the bulk of the case has been addressed to the issue of impairment and in those circumstances I do not take the view that the order should be anything other than no costs which is the order which is not resisted by the General Optical Council.
71. MR BRADLY: I am very grateful.
72. HIS HONOUR JUDGE SPENCER: I am sorry to have kept you all so late. I rather winced when Mr Bradly made reference to my "very long" judgment, it was as brief as I could make it.
73. MR BRADLEY: My Lord, it was not long in the sense we have all been sitting here, that it was too long. That was not what was meant at all; it was meant to express a degree of sympathy with your Lordship having now to deal with the issue of costs.
74. MR GLEDHILL: My Lord, there is one matter before you rise. That is it is 4 months without a review that you are directing?
75. JUDGE SHAUN SPENCER QC: I have not directed a review.
76. MR GLEDHILL: I am clarifying that so there is no dispute behind the scenes. Thank you.
77. Also the order that we have been looking at sets out that the order of today does not come into effect for 28 days because of the appeal period. We can take you to the passage. My learned friend is nodding in agreement.
78. JUDGE SHAUN SPENCER QC: As I was browsing through it I had the impression if the order was made on appeal it took effect on the day of appeal.
79. MR GLEDHILL: It has to be a second appeal and that is different.
80. JUDGE SPENCER: Where are we then?
81. MR GLEDHILL: Can we review the provision?
82. HIS HONOUR JUDGE SPENCER QC: I will tell you what, I would have thought that this is susceptible to agreement by counsel. Somebody can draw up whatever the order ought to look like and e-mail it to the court and I will there endorse it whenever we see it.
83. MR GLEDHILL: I am sure we can decide between ourselves what the appropriate precise terms of the order should be.
84. MR BRADLEY: The difficulty is if the order comes into effect today the appellant needs to know about it.
85. JUDGE SHAUN SPENCER QC: Yes.
86. MR GLEDHILL: It cannot come into effect until my Lord has perfected. In those circumstances we are drafting it.
87. JUDGE SHAUN SPENCER QC: Yes.
88. MR BRADLEY: I am content with my friend's...
89. JUDGE SHAUN SPENCER QC So soon as the --
90. MR GLEDHILL: It is likely to be the beginning of next week.
91. JUDGE SHAUN SPENCER: It is entirely satisfactory but it will not reach me because I am sitting in various Tribunals, Mental Health Acts next week and it probably will not track me until I get to the Crown Court in Bradford which will be the week commencing 3rd December.
92. What do you want us to do with the bundles?
93. MR BRADLY: Could you dispose of them.
94. JUDGE SHAUN SPENCER QC: Yes. Unless there is anything else.
95. MR BRADLY: We have it. I am very grateful to my learned friend:

"Where an appeal is brought against an appeal with the wrong decision and the relevant court dismisses the appeal [which you have not done] the appealable decision shall take effect on the date the appeal is dismissed."

So that would be backdating, otherwise there is no - I say "we have it", I was getting too excited. Can your Lordship leave it with us?

96. JUDGE SHAUN SPENCER QC: Yes.