England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		25th March 2013

His Honour Judge Pelling QC:

1. This is an appeal against a sanction imposed by a Fitness to Practise Panel in proceedings commenced before the Panel by the GMC.
2. The factual circumstances which gave rise to those proceedings are, in summary, these. A consultation took place in which the appellant, a GP, examined patient A on 21 December 2009. The patient was complaining of a back injury or back pain. The consultation having been concluded, there was thereafter a further request for medical assistance by the patient concerned at an NHS walk-in centre, and subsequently the patient was admitted to hospital where an operation was carried out on him. A complaint was made about the way in which the appellant had carried out the initial examination.
3. The complaints made against the appellant reduce to three. There was a complaint in relation to the consultation itself. As to that, the appellant admitted to the Panel that she had failed to provide good clinical care, because she had failed to take an adequate history, did not adequately assess the patient's condition or carry out an adequate neurological examination and in particular had failed to perform an examination referred to by medical practitioners as a PERLA examination, which involves an examination of patient's pupils in order to see whether neurological damage has occurred, and she did not arrange appropriate specialist investigations.
4. The second area of complaint against the appellant concerned some alterations to patient A's notes. The appellant admitted before the Panel that on 7 January 2010 she had amended the records maintained by her at her practice in relation to the consultation that had taken place on 21 December so as to include a reference to a PERLA examination, a reference to the absence of ataxia, and an indication that the patient was "walking okay". The insertion of a reference to a PERLA examination was admitted to be dishonest conduct. The Panel went on to find that the other matters relied on in this part of the complaint were also acts of dishonesty. The Panel concluded that the appellant had made the alterations when she became aware of patient A's deteriorating condition, which appears to have been something she learned when she interrogated the computer records maintained by her practice and found that there had been a subsequent examination of patient A.
5. The third area of complaint before the Fitness to Practise Panel concerned the appellant's conduct during the investigation and in relation to statements that she had made to various investigating doctors, which were described as untrue and misleading. There was a witness statement in particular that was signed which suggested that she had no knowledge of the deteriorating condition of patient A's health until she was told of the patient's complaint, which was found to be dishonest and misleading because, as I have already described, she had made alterations to the patient's records a few days earlier on 7 January. This the Panel found to be dishonest and misleading.
6. The Panel found that the appellant's Fitness to Practise was impaired, not in relation to the original examination of patient A but in relation to the subsequent conduct of the appellant, and following the hearing of various submissions made on behalf of the appellant the Panel decided that the appropriate penalty to impose in the circumstances was a period of suspension for six months, this being a penalty imposed primarily for the purpose of securing the confidence of the public in the medical profession.
7. This appeal is brought under section 40 of the Medical Act, which is to the following effect:

"Appeals

(1) The following decisions are appealable decisions for the purposes of this section, that is to say -

1. (a) a decision of a Fitness to Practise Panel under section 35D above giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration;

[...]

(7) On an appeal under this section from a Fitness to Practise Panel, the court may -

(a) dismiss the appeal;

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

(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or

(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court,

and may make such order as to costs … as it thinks fit."

Section 35D sets out the functions of a Fitness to Practise Panel, and includes at subparagraph (2) the following:

"(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit –

[...]

(b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction."

8. So far as the written material before the Panel is concerned, it is necessary to draw attention firstly to a publication published by the General Medical Council entitled Good Medical Practice. This is regarded by the profession as a touchstone guide to the standards required of medical practitioners in their everyday practice. Insofar as is material, Good Medical Practice says as follows:

"1. Patients need good doctors. Good doctors ... are honest and trustworthy, and act with integrity.

[...]

21. To fulfil your role in the doctor-patient partnership you must:

a. be ... honest.

[...]

56. Probity means being honest and trustworthy, and acting with integrity: this is at the heart of medical professionalism.

57. You must make sure that your conduct at all times justifies your patients' trust in you and the public's trust in the profession.

[...]

65. You must do your best to make sure that any documents you write or sign are not false or misleading. This means that you must take reasonable steps to verify the information in the documents, and that you must not deliberately leave out relevant information."

9. The General Medical Council publishes a document entitled Indicative Sanctions Guidance for Fitness to Practise Panels, the current edition of which at the time the appellant appeared before the Fitness Practise Panel was that published in April 2009 as augmented by revisions in August 2009 and March 2012. The relevant parts of this publication for present purposes are the following paragraphs:

"Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered medical practitioner ... Suspension will be an appropriate response to misconduct which is sufficiently serious that action is required in order to protect patients and maintain public confidence in the profession. However, a period of suspension will be appropriate for conduct that falls short of being fundamentally incompatible with continued registration and for which erasure is more likely to be the appropriate response ... This may be the case, for example, where there may have been acknowledgement of fault and where the panel is satisfied that the behaviour or incident is unlikely to be repeated. The panel may wish to see evidence that the doctor has taken steps to mitigate his/her actions...

74. Panels must provide reasons for the period of suspension chosen, including the factors that led them to conclude that the particular period of suspension, whether the maximum available or a shorter period, was appropriate.

75. This sanction may therefore be appropriate when some or all of the following factors are apparent...

- A serious breach of Good Medical Practice where the misconduct is not fundamentally incompatible with continued registration and where therefore complete removal from the register would not be in the public interest, but...

- No evidence of repetition of similar behaviour since incident.

- Panel is satisfied doctor has insight and does not pose a significant risk of repeating behaviour."

10. The principles which apply to appeals of this sort are well established. Although the appeal is a rehearing, the onus rests upon the doctor to demonstrate that the decision reached was a wrong one. The relevant principles that are applied by the court on hearing appeals of this sort have been summarised in a number of authorities. It is necessary to refer to a few in this judgment. In Rashid v GMC [2007] EWCA Civ 46, [2007] 1 WLR 1460, having considered a significant amount of prior authority, Laws LJ, said at paragraph 16:

"As it seems to me there are in particular two strands in the relevant learning before 1 April 2003. One differentiates the function of the Panel or committee in imposing sanctions from that of a court imposing retributive punishment. The other emphasises the special expertise of the Panel or committee to make the required judgment."

A little later he said at paragraph 20:

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

Finally, at paragraph 26, and by reference to the decisions then being considered by the Court of Appeal, Laws LJ observed:

"26. I acknowledge without cavil that Collins J's judgments are careful and humane. But I have to say that they do not in my view remotely offer sufficient recognition of the two principles which are especially important in this jurisdiction: the preservation of public confidence in the profession and the need in consequence to give special place to the judgment of the specialist tribunal. Applying these principles I am driven to conclude that there was not in either of these cases any proper basis established for overturning the sanctions set by the Fitness to Practise Panel."

11. In relation to the test that is to be applied on appeals of this sort, the position was considered in the light of the authorities since Rashid in Cheatle v GMC [2009] EWHC 645 (Admin), [2009] WL 873 at 748, where at paragraph 15 the approach to be adopted was summarised in these terms:

"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."

In relation specifically to issues concerning dishonesty it is necessary to draw attention to the decision of Coulson J in Solicitors Regulation Authority v Sharma [2010] EWHC 2022 (Admin), where the judge said this:

"34. Their first finding was that 'there was no harm to the public'. I assume that by this the Tribunal meant that no client suffered financial loss. It seems to me that that is a very narrow way of looking at dishonesty, and wholly fails to recognise the wider issues involved. In my judgment there is harm to the public every time a solicitor behaves dishonestly. It is in the public interest to ensure that, as it was put in Bolton, a solicitor can 'be trusted to the ends of the earth'."

That approach was applied in relation to nurses by Haddon-Cave J in Ajala v The Nursing and Midwifery Council [2012] EWHC 2976 and in my judgment applies equally to registered medical practitioners as it does to nurses and solicitors.

12. Finally, in relation to the submission of the appellant that the effects of suspension upon her are grossly disproportionate in the circumstances, it is necessary to refer to the judgment of Sir Thomas Bingham MR, as he then was in Bolton v The Law Society [1994] 1 WLR 512 where at page 519 he said:

"It often happens that a solicitor appearing before the Tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely to be, so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."

13. Against that background, I now turn to the approach adopted by the tribunal in this case. It has to be considered in the context of the submissions that were made on behalf of the appellant by the solicitors and counsel then acting for her. The conclusions that were reached on the primary findings of fact are not challenged in these proceedings. Counsel then instructed on behalf of the appellant accepted, as the transcript of the Fitness to Practise hearing shows at page D/7, that:

"I cannot resist on behalf of the doctor a finding of impairment to fitness to practise due to misconduct on the grounds of dishonesty."

The point that counsel made, however, was that the appellant was a doctor of hitherto unblemished character, despite a long record of practice, and thus that was a factor that was to be taken into account in arriving at the appropriate penalty.

14. Both counsel appearing in the proceedings accepted that suspension was the appropriate course to adopt. Thus the GMC's counsel submitted at page D4/6 of the transcript that the appropriate and proportionate response and sanction in the case was one of suspension. This approach was echoed by the appellant's own counsel, who said this at page D4/10 of the transcript:

"I ask the Panel, therefore, to deal with the matters on that basis. Deviation from good medical practice as shown in this case has been wholly uncharacteristic of the doctor; it was an isolated incident, or connected incidents, and committed at the time of considerable stress on the doctor, so I submit that what is appropriate to the circumstances here is an order of suspension, which should be kept to the minimum that the Panel can impose consistent with its public duty, reflecting those particular circumstances, circumstances peculiar to this case, so that any removal from practice should be short."

15. The Panel commenced its deliberations and gave its determination concerning the penalty to be imposed starting in the transcript at D4/12. At page D4/12, letter G, reference was made to the contents of the Indicative Sanctions Guidance to which the Panel had been referred by counsel for the GMC. In making the submissions that were made on behalf of the GMC, and in particular a submission that suspension was the appropriate sanction, the Panel recorded specifically the acceptance on behalf of the GMC that the appellant had an otherwise unblemished career as a doctor over a long period. At page D4/13 letter C to D, it was noted that the appellant by counsel submitted that the incident which gave rise to her appearance before the Fitness to Practise Panel was isolated, uncharacteristic, and occurred at a time when she was under stress. He submitted, therefore, that erasure was inappropriate and disproportionate, but he recognised that an order of suspension was likely to follow but that it should be kept to a minimum period in the circumstances.
16. The Panel then considered with commendable care the various issues that arose before arriving at a conclusion. The relevant part of the reasoning commences at page D4/14 in the transcript, and was to this effect:

"The Panel first considered whether to conclude your case by taking no action. In doing so, it has taken account of paragraph 48 of the Indicative Sanctions Guidance ... It found no exceptional circumstances which could justify taking no action on your registration.

The Panel next considered whether to impose conditions on your registration ... It has borne in mind that any conditions would need to be appropriate, proportionate, workable and measurable. The Panel has had regard to paragraphs 56 and 57 of the Indicative Sanctions Guidance as to when conditions might be appropriate.

Being honest, trustworthy and acting with integrity is a fundamental tenet of the medical profession. Dishonesty is difficult to rectify through training or supervision. Additionally, dishonesty is a serious finding and conditions would not be appropriate or a proportionate sanction in this case, particularly in relation to the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour. The Panel has determined that conditions could not be formulated to address the misconduct in this case.

The Panel then went on to consider whether a period of suspension would be an appropriate sanction. It has had regard to the Indicative Sanctions Guidance...

The Panel considers that your dishonesty stemmed from your attempting to cover up a misdiagnosis. When you realised that Patient A's condition had become worse, resulting in his attendance at a Walk-in Centre and subsequent referral to hospital, you panicked and dishonestly amended the record of your consultation with him in order to improve the appearance of your assessment on 21 December 2009. You compounded this dishonest act by not telling the truth when you had the opportunity to do so in May and November 2010, and also to this Panel. The Panel is extremely disappointed that you did not take these opportunities to tell the truth and set the record straight. Dishonesty undermines the reputation of the profession and the Panel has considered whether there may be a risk of repetition of such dishonesty...

The Panel was impressed that these testimonials were from patients and others who have known you for a long period of time. It is clear that you provide valuable service and are an effective doctor to the community which you serve."

17. Having set the background in the way I have described, the Panel then said this:

"The Panel accepts that you were under pressure, in that your practice might have been referred for an NCAS assessment, at the time of the consultation with Patient A on December 2009. The Panel is also aware that, from January 2009, your practice was being scrutinised and audited by the PCT due to a cold chain incident ... You subsequently panicked and amended Patient A's record and acted dishonestly when questioned about this."

The Panel then accepted that the dishonesty displayed by the appellant was "… a one-off episode relating to one patient, and there has been no evidence of repetition". The Panel acknowledged that the appellant was approaching retirement, and acknowledged that the proceedings before the Fitness to Practise Panel were themselves likely to have been a salutary lesson. The Panel then said this:

"The interests of the public in maintaining confidence in the profession, and declaring and upholding proper standards of conduct and behaviour rightly require that any case involving dishonesty is dealt with seriously. Patients must be able to trust their own doctor and the profession as a whole. To maintain this trust, doctors must make sure that they conduct themselves at all times with honesty and integrity.

Although the Panel has found that your misconduct was serious, it has considered all the mitigating factors, the favourable testimonials, the background of your unblemished career spanning over 40 years, and that there has been evidence of repetition of such dishonest behaviour. The Panel is satisfied that the risk of repetition of your dishonest conduct is low.

The Panel considers that you have demonstrated some insight by saying during the course of your evidence that you should not have amended the patient's medical records."

18. The Panel concluded that the appellant did not have a harmful or deep-seated attitudinal problem, that she had recognised the significance of her dishonesty, but nonetheless that the misconduct displayed by the appellant, whilst falling short of being fundamentally incompatible of continued registration, nonetheless required the imposition of a period of suspension of six months in order that the public interest was properly met and the confidence of the public in the integrity of the profession was maintained.
19. In making her submissions before me on this appeal, the appellant in essence has submitted that the effects of suspension on her are disproportionate and therefore the decision of the Panel was wrong. She explained in the course of her careful oral submissions that the incident arose at a particularly stressful time and that she panicked when she discovered that the patient had received further treatment or a further examination, and that all that happened after that stemmed from that sense of panic. She emphasised that it was a one-off incident, and that it was to be viewed against the background of a transfer by the practice to a new computer system, though how that impacts upon the issues that arose in this case was not made clear. She accepted before me that she should not have changed the notes as she did. She accepted the findings of fact that had been made against her by the Fitness to Practise Panel but challenged the penalty on the basis of the submissions that I referred to earlier.
20. She said, in essence, that a period of six months' suspension would in practical terms preclude her from practising medicine again. It deprived her patients of the benefit of her care and took her away from her patients without proper notice being given to those patients or without the proper opportunity to enable the patients to be prepared for the transfer.
21. In her reply submissions, she drew particular attention to the very significant number of references that had been supplied on her behalf, specifically by patients, by non-medical employees of her practice, and although they are a lot older, some reports from consultants. These sorts of references are ones which it is important to read in their context. A particular example is given by a reference provided by a Mrs Linda Ward, who was a patient of the appeallant's practice. In the course of her short written statement, Mrs Ward says this:

"My worry is that in the current political climate of greater accountability for doctors the panel were not able to view more compassionately a colleague with an unblemished 30 year record who, when ill with stress made an error in judgment."


22. The context not there referred to is the context which was clearly the primary concern of the Fitness to Practise Panel, namely the conclusions they had reached concerning dishonesty, as set out in the reasons they applied when imposing a period of suspension. Mrs Ward's reference refers to stress, and refers even to illness caused by stress and to an unblemished 30-year record, but fails to allude to the consequences concerning dishonesty. This factor does not neutralise the importance of the points made by Mrs Ward, but those points do need to be balanced against that factor.
23. The other document that I ought to draw attention to, because it was one that the appellant drew to my attention as part of a section of the bundle that she asked me to read, is a letter of 28 February 2013 addressed to the Administrative Court Office in Manchester by the appellant. I should say this letter augments skeleton submissions filed by her earlier but is part of the submissions that she wishes to have considered on this appeal. She said at paragraph 5 of the letter this:

"The error of judgment which occurred in December'09/January 2010 by me was only because of the stress I was under due to pressure from the PCT as well as personal circumstances such as the wedding of one of my daughters. I normally am an honest and hardworking person who has always put the needs of the patients first before my income and financial gain. My patients and staff would confirm this and it is also evident from the testimonials from my previous consultants already submitted to the court. I feel that one error of judgment and I do acknowledge it was too many out of the 3500 consultations each year should not end my career of 40 years in the NHS in this way. I feel very fortunate to have had the opportunity to work in an organisation like [the] NHS. I would love to have the opportunity to do Charity work for people who are less fortunate than us after my retirement."

24. The difficulty about this submission is that it focuses attention on the issue concerning stress, which was undoubtedly (and was accepted by the Panel to be) an issue in relation to the initial consultation, but fails to focus either sufficiently or at all on the dishonesty which the Panel was concerned about and which was in the end the primary basis upon which it proceeded in relation to the imposition of a period of suspension. I should also draw attention to the fact that in this letter, at paragraphs 2 to 3, the appellant sets out difficulties that she (and I think her husband) were experiencing, or are experiencing, in attempting to sell the practice in circumstances where she has been suspended, because advantage, so she suggests, has been taken of her suspension by a potential purchaser of the practice for the purpose of obtaining a sale at inferentially a lower value than would otherwise be appropriate. This again, in my judgment, fails sufficiently to grapple with the approach which is required by the case-law which I set out earlier in this judgment and fails to grapple in particular with the effect of dishonesty by professionals so far as confidence in the public is concerned, which is a primary consideration for a Fitness to Practise Panel when considering allegations such as those that faced the appellant.
25. I return in the end, therefore, to the point I started at. The case-law requires that if the appeal to succeed, it must be demonstrated that the decision reached was wrong. The court is required to give full respect to the decision of the Fitness to Practice Panel as a specialist tribunal and is particularly required to do so in relation to the imposition of sanctions, where the judgment of the profession as to what is required for the purpose of maintaining the public interest is given a special significance in the circumstances.
26. There is nothing in the submissions that have been made by the appellant in this case which leads me to conclude that there is any tenable basis on which I could conclude that the Fitness to Practise Panel's decision was wrong. Rather, the approach of the Fitness to Practise Panel, set out in the detailed reasons it gave for imposing a period of six months' suspension, shows that commendably full regard was paid to all the relevant facts and matters that were then before the Panel and displays an entirely satisfactory balancing of all the relevant factors, which are, in essence, exactly the factors that are in play before me.
27. I accept that whilst this appeal is a rehearing and not a review, I am bound to have particular regard to the conclusions reached by a Fitness to Practise Panel, which has attempted to balance all the relevant issues in an entirely proper and proportionate way, but putting proper emphasis, as in my submission it was bound to do, on the effect on the standing of the profession in the mind of the public of dishonesty displayed by any professional. In my judgment, the material that has been deployed before me does not suggest that the Panel was wrong and therefore this appeal must be dismissed.

JUDGE PELLING QC: Yes?

MR PIEVSKY: My Lord, I am very grateful. My Lord, the GMC does have an application for its costs.

JUDGE PELLING QC: Yes.

MR PIEVSKY: In terms of principle, we say the normal rules should apply. The appeal has been dismissed, and there was no basis to criticise the decision of the Panel. It may be relevant for you to know that the appellant was warned about this prospect. The reference in the bundle is page 767. It is a correspondence with one of the instructing solicitors of the GMC which worked on this case.

JUDGE PELLING QC: Do you want me to read that?

MR PIEVSKY: My Lord, yes, it is a relatively brief email.

JUDGE PELLING QC: Just give me a moment.

(pause)

JUDGE PELLING QC: Yes.

MR PIEVSKY: My Lord, that is all I would say about the principle. In terms of the amount, is this the stage --

JUDGE PELLING QC: No, I think we will just deal with the principle first. Is there anything you want to say about the costs application as a matter of principle?

DR SIDDIQUI: No.

(costs judgment 1)

His Honour Judge Pelling QC:

1. Thank you very much. This is an application by the GMC for the costs of and occasioned by the appeal. CPR 44.3 requires that the start point in deciding whether or not a costs order should be made involves ascertaining, first, who has been successful. The GMC have been successful. There is in the circumstances no basis for departing from the general rule that the successful party should recover its costs. Accordingly, I direct that the appellant pay the respondent's costs of and occasioned by the appeal.

JUDGE PELLING QC: Right, are you applying for summary assessment?

MR PIEVSKY: My Lord, yes, if that is convenient to the court.

JUDGE PELLING QC: When was the statement of costs sent to the appellant?

MR PIEVSKY: My Lord, it was sent, and I can just find the date.

JUDGE PELLING QC: Yes, well, she is required to have notice, is she not?

MR PIEVSKY: My Lord, it was 12 March 2013. A statement of costs was served, acknowledged by the appellant on 20 March (inaudible).

JUDGE PELLING QC: Thank you.

MR PIEVSKY: In relation to the amounts, we say that they are reasonable and proportionate overall.

JUDGE PELLING QC: Now just so I can be clear, this is the GMC based now in Manchester?

MR PIEVSKY: Yes.

JUDGE PELLING QC: Right, so the rates that have been adopted, £217 per hour for a Grade A fee earner is the National 1 guideline rate for a Grade A fee earner, and for a Grade D fee earner you have adopted the guideline rate as well?

MR PIEVSKY: Yes.

JUDGE PELLING QC: Very good.

MR PIEVSKY: Relevant to the --

JUDGE PELLING QC: Would you like to explain -- shall we hear from the appellant as to whether she has any objections, and then I have some observations that need to be considered as well. Yes, is there anything you want to say concerning the figures that appear in the summary assessment schedule?

DR SIDDIQUI: No.

JUDGE PELLING QC: All right. Until 1 April, the principles that apply to summary assessment, as you know, involve me applying the principles found in Lownds v The Home Office which means that I have to decide whether the number claimed at the end is proportionate. If I conclude that it is not, then each of the figures have to be justified on a necessity basis. The sum which you have claimed is £13,300-odd. Within that make-up, somewhat surprisingly is the suggestion that in excess of 25 hours have been spent on working on documents in this case. How can that be justified?

MR PIEVSKY: Well, I think that the reason for that is that the bundle had to be prepared by the General Medical Council rather than by the appellant.

JUDGE PELLING QC: It does not take 25 hours.

MR PIEVSKY: Well --

JUDGE PELLING QC: Particularly when the material is all material which would have been before the Fitness to Practise Panel in any event.

MR PIEVSKY: Yes. My Lord, can I take a moment to --

JUDGE PELLING QC: Yes.

MR PIEVSKY: My Lord, my instructions are that the number is slightly higher because of the adjournment, but in particular what happened was that those instructing me prepared a bundle, then they had to instruct me. They then had to deal with the application for an adjournment which was, as you may recall, resisted.

JUDGE PELLING QC: Well, I do not, because I was not the judge, but I understand it was, yes.

MR PIEVSKY: Yes. There then needed to be amendments to the bundle in the light of correspondence between the GMC and the appellant and that is what took the 25 hours. Those are my instructions.

JUDGE PELLING QC: Yes, but to put that in context, the attendances on opponents is put at 1.2 hours, and the attendances on counsel at 1.3 hours. So how do the points that you mention come to 25-and-a-half hours of work on documents and only another hour by the Grade A fee earner?

MR PIEVSKY: Well, I think the answer is that the larger amount was specifically on the documents, so whether it is collating the documents, putting them in the files, or drafting them to the be sent..

JUDGE PELLING QC: Yes, very good. Is there anything else that you would like add?

MR PIEVSKY: No. Does my Lord have any questions about any other aspect of the --

JUDGE PELLING QC: No, but my eye has alighted, as it very frequently does, on work on documents.

MR PIEVSKY: Yes, of course, my Lord. Those are the submissions, my Lord.

(costs judgment 2)

His Honour Judge Pelling QC:

1. This is an application for the summary assessment of costs by the GMC. The sum claimed in the aggregate, and including counsel's fees and VAT, comes to £13,303.20. This is in relation to a sanction-only appeal which has occupied the court, inclusive of judgment, for a little less than half a day. The only slightly unusual aspect of this case which takes it marginally away from the norm is that it was originally listed for hearing on 29 January 2013, when however HHJ Allan Gore QC, sitting as a judge of this court, directed that it be vacated, and various directions were given. The application is said to have been one which was resisted by the GMC, but it is worthy that I should note the observations made by HHJ Gore when granting the application for the adjournment, which were:

"The application to adjourn is not really resisted, recognising that the decision by the MPS has not been taken whether to afford the Appellant assistance ..."

2. The point was that the appellant had sought legal support from the Medical Protection Society, and the adjournment was sought pending a decision by the MPS as to whether or not support would be provided. I do not see how that could contribute materially to the costs which have been claimed, specifically by reference to one item, to which I will come in a moment.

3. The test to be applied in relation to summary assessment of costs in a case of this sort involves applying the principles to be found in the well-known case of Lownds v The Home Office. The first question I have to ask myself is whether or not the sum claimed in the aggregate is proportionate. In my judgment, £13,303 for an appeal which lasts less than half a day, and where the preparation of the bundle, admittedly by the GMC even though the respondent, involved the copying of material the vast majority of which was before the Fitness to Practise Panel, and the preparation by counsel of a skeleton argument in support of the appeal, does not suggest to me that the figure of £13,300 is proportionate.

4. In those circumstances, the next question that has to be asked is what sum was necessary, considering each and every one of the items in the statement of costs, in order to arrive at an appropriate figure. So far as rates are concerned, the rates that have been adopted are the guideline rates applicable for National 1 practitioners. National 1 includes practitioners within the City of Manchester, and therefore are justified. The hours spent on attending on the client, the appellant and on counsel in the aggregate are ones which I am prepared to accept in the circumstances were necessary, reasonable and proportionate. I do not accept that attendance at the hearing of five hours is remotely appropriate, having regard to the fact that the GMC is based in central Manchester, and the hearing has lasted less than half a day. Given, however, that it was listed at 10.30 a.m., and given, too, that I would expect parties to arrive marginally before the start of the hearing, I allow that at three hours.

5. So far as work on documents are concerned, that is a much more significant issue. The work on documents that has been claimed is 25.30 hours for the Grade B fee earner and 0.50 hours for the Grade A fee earner. This comes, in the aggregate, to significantly over 26 hours of work. Whilst it is not appropriate that I should comment on whether the work was actually done (I am satisfied that it was because of the declaration that appears on page 2 of the schedule), the real question is whether the work was necessary, reasonable or proportionate. It my judgment, plainly it was not. To spend in excess of 25-and-a-half hours' work on documents in relation to the preparation of a bundle because the appellant was in person and therefore the task was undertaken by the GMC, even in combination with the work that would have to be done, the preparation of instructions to counsel, is work that could have been done in the aggregate in very significantly less time than in fact was taken. Nonetheless, I accept that some work would have to be undertaken for the purpose of preparing the bundle. I am also prepared to accept that a minimum amount of time would have to be taken on working on the documents in order to instruct counsel sufficiently for the hearing. In my judgment, nine hours, rather than 25.30 hours, should be substituted as being the work on documents by the Grade B fee earner. I leave untouched the 0.50 hours claimed by the Grade A fee earner, accepting that it is appropriate there should be a degree of supervision applied in the preparation of material for lodging with the court.

6. Counsel's fees are in the sum of £2,375 for a conference and £5,000 for the hearing. I am grateful for the assistance received from counsel, and I am grateful for the written submissions that were supplied beforehand. However, £5,000, in my judgment, is excessive on an appeal of this sort, and I am prepared to allow in the circumstances a fee of £2,500 in addition to the fee charged for preparation of documents and advice and so on.

7. Subject to those adjustments, costs will be assessed in the sum I have mentioned. Can you let me have a figure for that, with those adjustments put in place, please, so that they can be incorporated into the order in due course? If you let me have them through the usual channels, that will be helpful.

JUDGE PELLING QC: Right, is there any other business?

MR PIEVSKY: Would you like me to draft the order and send it to you by email?

JUDGE PELLING QC: I think so, because I do not have a dedicated Administrative Court clerk today and it would help me if you could do that, and let me have it through it email. Thank you very much.

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