QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| BEATA KIRSCHNER
|- and -
|THE GENERAL DENTAL COUNCIL
Rebecca Harris (instructed by Blake Morgan) for the Respondent
Hearing date: 5 & 8 May 2015
Crown Copyright ©
Mr Justice Mostyn:
"Subject to exceptions, every appeal is limited to a review of the decision of the lower court. ... The review will engage the merits of the appeal. It will accord appropriate respect to the decision of the lower court. Appropriate respect will be tempered by the nature of the lower court and its decision making process. There will also be a spectrum of appropriate respect depending on the nature of the decision of the lower court which is challenged. At one end of the spectrum will be decisions of primary fact reached after an evaluation of oral evidence where credibility is in issue and purely discretionary decisions. Further along the spectrum will be multi-factorial decisions often dependent on inferences and an analysis of documentary material. Rule 52.11(4) expressly empowers the court to draw inferences ... Submissions to the effect that an appeal hearing should be a rehearing are often motivated by the belief that only thus can sufficient reconsideration be given to elements of the decision of the lower court. In my judgment, this is largely unnecessary given the scope of a hearing by way of review under rule 52.11(1) ... On ... a rehearing the court will hear the case again. It will if necessary hear evidence again and may well admit fresh evidence. It will reach a fresh decision unconstrained by the decision of the lower court, although it will give to the decision of the lower court the weight that it deserves. "
"There is, in my opinion, a further consideration which supports the view that for liability as an accessory to arise the defendant must himself appreciate that what he was doing was dishonest by the standards of honest and reasonable men. A finding by a judge that a defendant has been dishonest is a grave finding, and it is particularly grave against a professional man, such as a solicitor. Notwithstanding that the issue arises in equity law and not in a criminal context, I think that it would be less than just for the law to permit a finding that a defendant had been "dishonest" in assisting in a breach of trust where he knew of the facts which created the trust and its breach but had not been aware that what he was doing would be regarded by honest men as being dishonest."
And at para 36:
"… dishonesty requires knowledge by the defendant that what he was doing would be regarded as dishonest by honest people, although he should not escape a finding of dishonesty because he sets his own standards of honesty and does not regard as dishonest what he knows would offend the normally accepted standards of honest conduct."
"Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant's mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards."
At paras 15 and 16 Lord Hoffmann held that there was "ambiguity" in para 20 of Twinsectra (per Lord Hoffmann himself) and in paras 35 and 36 (per Lord Hutton). The statements at para 20 of Twinsectra that the defendant must have "consciousness that [he] is transgressing ordinary standards of honest behaviour" and at para 35 that "the defendant must himself appreciate that what he was doing was dishonest by the standards of honest and reasonable men" only meant that "his knowledge of the transaction had to be such as to render his participation contrary to normally acceptable standards of honest conduct. It did not require that he should have had reflections about what those normally acceptable standards were."
"It is common ground that whether the respondents procured or assisted in any breach of trust in a manner which the law will regard as dishonest must be assessed in the light of the conduct to which the respondents were party and their actual state of knowledge at the relevant times. But it also common ground that, if objectively no honest person would in that light have acted as they did, it is unnecessary to show that the respondents actually recognised that what they were doing was dishonest."
"…this was a professional disciplinary hearing and it seems to me that in future it would be right and proper for the first part of the direction to be adapted to read that the panel should decide "whether according to the standard of reasonable and honest doctors [not people] what was done was dishonest". There may be a not unimportant difference between the two as shown by the decision of the judge in this very case."
"153. In our judgment, the decision of the Court of Appeal in Bultitude stands as binding authority that the test to be applied in the context of solicitors' disciplinary proceedings is the Twinsectra test as it was widely understood before Barlow Clowes, that is a test that includes the separate subjective element. The fact that the Privy Council in Barlow Clowes has subsequently placed a different interpretation on Twinsectra for the purposes of the accessory liability principle does not alter the substance of the test accepted in Bultitude and does not call for any departure from that test.
154 In any event there are strong reasons for adopting such a test in the disciplinary context and for declining to follow in that context the approach in Barlow Clowes. As we have observed earlier, the test corresponds closely to that laid down in the criminal context by R v Ghosh; and in our view it is more appropriate that the test for dishonesty in the context of solicitors' disciplinary proceedings should be aligned with the criminal test than with the test for determining civil liability for assisting in a breach of a trust. It is true, as Mr Williams submitted, that disciplinary proceedings are not themselves criminal in character and that they may involve issues of dishonesty that could not give rise to any criminal liability (e.g. lying to a client as to whether a step had been taken on his behalf). But the tribunal's finding of dishonesty against a solicitor is likely to have extremely serious consequences for him both professionally (it will normally lead to an order striking him off) and personally. It is just as appropriate to require a finding that the defendant had a subjectively dishonest state of mind in this context as the court in R v Ghosh considered it to be in the criminal context. Indeed, the majority of their Lordships in Twinsectra appeared at that time to consider that the gravity of a finding of dishonesty should lead to the same approach even in the context of civil liability as an accessory to a breach of trust. The fact that their Lordships in Barlow Clowes have now taken a different view of the matter in that context does not provide a good reason for moving to the Barlow Clowes approach in the disciplinary context."
"Q: Was anything said to you while you were in Nottingham about the interval before you could submit a further claim for treatment?
A: Yes that I can open the new course of treatment after 62 days.
Q: Who said that to you?
A: Now, I do not remember, but probably I got this information from other colleagues or … and they got this information from our provider. I do not remember exactly who told me this. I remember when I came to Oasis Dental Care, to Lincoln, I got this information from the practice manager. This I remember. But in Nottingham, there were so many dentists, probably from …Because maybe I was not at this day at work when the provider told to the dentists this information, passed this information to the dentists, so when I came on another day maybe I got this information from my colleague. I do not remember exactly now.
Q: All right. When did you move from Nottingham?
A: December 2006.
Q: When you moved from Nottingham, where did you then go?
"Q: From where did you obtain the information that after 62 days you could open a new course of treatment?
A: That was in practice in Lincoln. In Nottingham and Lincoln. In both practices I was told that I can open a new course of treatment in 62 days.
Q: By whom?
A: By another dentist or practice manager.
Q: Have you ever sought to verify it in the regulations or anything of that nature? Have you seen that 62 days anywhere in any documentation?
"The Committee however, taking into account the whole of the evidence, formed the view that whilst you had persuaded yourself that splitting claims was acceptable, in part because it did not harm your patients, you knew, at that time, that you were making claims to which you were not entitled under the contract".
"You confirmed in evidence that you are familiar with the definition of a course of treatment within the regulations. Furthermore you demonstrated this understanding by explaining how the system works for a complex Band 3 treatment carried out over many appointments, which is still one course of treatment until all the identified work has been completed. You had worked under the new contract since its inception (2006) and the Committee does not accept that you did not understand the meaning of a course of treatment in relation to simpler procedures such as sealant restorations.
Although the Committee recognises that you may have received inappropriate advice from colleagues in the past, it does not consider it plausible that this would have been confirmed by the NHS Business Service Authority or that, as an intelligent capable professional, you would not have ensured that you understood the contract correctly in respect of this issue once you became a contract holder and provider.
While recognising that the claim form may have been filled in by a Trainee Dental Nurse, the Committee does not accept that you would not have checked the form to ensure the details were filled in as you would have wished. Furthermore you accepted that you signed the claim forms, ticking the box that states 'all the currently necessary care and treatment that the patient is willing to undergo has been carried out'. This was not true.
For these reasons, the Committee considers that reasonable and honest people would recognise that this was dishonest. The Committee was also satisfied that you realised that this was dishonest by ordinary standards."
At page 252 in relation to allegation 3(c)(xvi):
"You were only entitled to one payment in respect of one course of treatment, yet you knowingly made a second claim in respect of this course of treatment. For the reasons set out in relation to 3(c)(x) the Committee is satisfied that you knew that this was not a proper pattern of claiming. The Committee found proved that your actions in making the claim on 27 April 2010 were dishonest by ordinary standards and that you knew that they were dishonest by those standards."
At 256 in relation to allegation 3(g)(xiv):
"[The PCC] is satisfied that you knew that the second claim was not proper because you knew that you had already claimed payment for this course of treatment in January. Whilst the information in the claim (taken on its own) was appropriate it was rendered dishonest by your knowing submission of a duplicate claim. The Committee found that your action in making the claim on this date was dishonest according to the ordinary standards of reasonable and honest people. It also found that you realised that what you were doing was dishonest."