England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/11/2015

Mrs Justice Patterson:

1. This is a renewed application for permission to apply for judicial review on two grounds and a substantive judicial review in respect of another ground in which permission was granted.
2. The claimant sought to judicially review the decision of the defendant, Royal College of Veterinary Surgeons, to close the complaints that the claimant had made against two Registered Veterinary nurses, Rachel Walsh and Gillian Leeson, at stage three of its investigation and case examination stage of its complaints procedure.
3. The claimant is a veterinary surgeon who at the relevant time was employed by Companion Care (Oxford) Limited (CCO), a company the claimant co-owned with Companion Care Services Ltd (CCSL).
4. Also employed by CCO were Ms Walsh and Ms Leeson about whom the claimant had complained.
5. The defendant is the Royal College of Veterinary Surgeons, the relevant regulator for the claimant and veterinary nurses.
6. On 8 July 2015 Warby J granted permission on ground two relating to Rachel Walsh but refused permission on grounds one and three. I deal with those grounds first and then with ground two on which permission was granted.
7. Ground one concerns the claimant's complaints about Ms Leeson. Permission was refused because that claim was out of time. The complaint was made on 19 March 2013. The defendant gave its response on 10 April 2013. That was reviewed on 26 June 2013 when the defendant's decision to close the matter was confirmed. On 23 October 2013 the defendant rejected the claimant's request to reopen the matter. The claim was issued on 1 May 2015, some 18 months after the final decision.
8. Ground three is a claim which alleges that, in discharging its statutory duty to regulate the veterinary profession, the defendant owed the claimant a common law duty of care which it broke with consequences for his mental health.

Background

9. On 19 March 2013 the claimant complained to the defendant about Gillian Leeson. On 10 April 2013 the defendant responded. It said there was no serious potential misconduct. On 12 April 2013 the claimant requested a review of that decision. He said that CCSL had manipulated and encouraged allegations to put pressure on him to resign. On 26 June 2013 the defendant reviewed its earlier decision; a process carried out by the head of professional conduct and Mrs Hill, the chair of the Registered Veterinary Nurses preliminary investigation committee. It found that Ms Leeson had a number of grievances against the claimant and did not find any basis to suggest a campaign of deliberate lies or misrepresentation. The complaint was closed.
10. On 30 June 2013 the claimant made further representations to the defendant. On 2 July 2013 the defendant replied that the complaint had been reviewed and the decision made. There was nothing to add. On 24 August 2013 the claimant wrote to the chief executive officer of the defendant. On 7 September 2013 the claimant contacted the defendant with "fresh evidence" on Ms Leeson. On 23 October 2013 the defendant replied that the Leeson complaint would not be reopened on the basis of fresh evidence.
11. On 8 April 2015 the employment tribunal which had been considering a claim by the claimant that he had been unfairly dismissed by CCSL determined that his dismissal had been unfair and was wrongful. On 1 May 2015 judicial review proceedings were lodged.

Ground One

12. The claimant admits that his claim is out of time. He contends that he did not know that he could apply for an extension of time. He was busy dealing with proceedings in the employment tribunal. He had tried to get advice from his union and been told that administrative law was complicated. He had been confused about the correct process that he should be following. He made a complaint to the employment tribunal which had to take priority. He was also ill for some three years.
13. He had pursued alternative routes. First, he had raised matters internally with the defendant. Second, he had taken proceedings in the employment tribunal and, third, he felt that judicial review proceedings would or could have prejudiced his employment tribunal case.
14. There had been fresh developments after the case closed. He had been dismissed on 4 March 2014. His proceedings in the employment tribunal had been successful in April 2015. He had been awarded a remedy of £15,000 by the employment tribunal in July 2015.
15. The defendant contends:

i) That the case is significantly out of time;

ii) The fact that the claimant had pursued an employment tribunal claim is no good reason to extend time now;

iii) In any event there is no merit in the claimant's case. He disagrees with the defendant's assessment that there was insufficient evidence of lying or deliberate misrepresentation by Ms Leeson but is unable to show that no reasonable disciplinary body would have reached that conclusion on the evidence. There was no finding by the employment tribunal that any of the complaints made by other employees about the claimant were based on fabricated events.

16. It had always been open to the claimant to pursue judicial review proceedings. The observation of Warby J in refusing permission that it seemed that the claimant decided to accept advice to pursue his grievance via employment tribunal proceedings in which he was successful, but dissatisfied by the degree of vindication afforded him by that process, he then sought to reopen the complaint for that purpose, is entirely correct.
17. The fact that ongoing employment tribunal proceedings meant that the claimant had a lot going on is no reason to extend time now.
18. It was open to the claimant to pursue alternative avenues for different complaints. At the latest, the claimant accepts that in April 2014 the registrar of the defendant told him that a judicial review claim would be out of time. That was another prompt to the claimant to take proceedings if he wished to do so. He did nothing for another 13 months.

Discussion and Conclusions

19. The claim is significantly out of time. Although the claimant has represented himself in these proceedings he is an intelligent man, well able to make appropriate investigations as to various avenues of redress available to him if he wished to pursue them. At the very latest he was reminded by the defendant in April 2014 that even for judicial review proceedings at that time he was out of time and he failed to take any action.
20. The claimant himself said that he did not go to the Citizen's Advice Bureau. He had received some advice from his union but neither of those options excuses the delay of some 18 months.
21. Whilst it is clearly right that after his dismissal the commencement of proceedings in the employment tribunal would take up a significant amount of the claimant's time there is no reason why he could not have made inquiries and commenced judicial review proceedings at any time had he been minded to do so. I note also that the decision of the employment tribunal records that he was represented by counsel at that hearing.
22. In response to questions from the court it is apparent that the claimant was aware that proceedings in the employment tribunal were not a complete alternative remedy in relation to his concerns about the conduct of Ms Leeson or Ms Walsh. Despite being aware of that he took no action.
23. The claimant says that he was also ill for a period of three years. The court has no reason to doubt that position. However, during that time he was able to participate in proceedings before the employment tribunal so that his ill health did not prevent litigation.
24. Further, there is considerable factual difference between the claimant's complaints about Ms Leeson and those about Ms Walsh. The former is a dispute with an employee whilst the latter concerns an individual who has made two statements which are different. That raises, what on its face, is arguably a matter of misconduct.
25. In all of the circumstances I have no doubt that, in relation to ground one, the complaint is out of time and there is no valid reason for an extension of time to be granted now. The renewed application for permission on ground one is refused.
26. I turn next to deal with ground three before considering the substantive application for judicial review.

Ground Three: Whether the defendant has failed in its statutory duty to regulate the profession according to its own mental health policies?

27. In his application to renew his claim for judicial review under this ground the claimant summarised his complaint as set out above.
28. At the oral hearing he was content to rely upon his earlier written submissions including the handout that he distributed at the hearing before me.
29. Those are, first, that by failing to properly carry out its statutory duty in regulating the professional standards of its nurse members the defendant has caused primary stress by which the claimant means:

i) Poisonous false allegations made against him by two veterinary nurses;

ii) Encouragement of those nurses to make those allegations by fellow employees;

iii) The damage to the claimant's reputation within CCSL caused by rumours and allegations originating from the two nurses;

iv) The contribution of both nurses' allegations to legal proceedings against the claimant in his personal capacity or the company that he owns.

30. Second, the claimant contends that the defendant has caused secondary stress in that it has caused him to invest a considerable amount of time in making detailed complaints including the instant proceedings.
31. In refusing permission on the papers Warby J said under this ground:

"The claim is that in discharging its statutory duties to regulate the veterinary profession the defendant owed the claimant a common duty of care, which it broke with consequences for his mental health. It is enough for present purposes to say that any such duty, if there was one, would not be a public law duty so that a judicial review claim is not the appropriate means by which to raise such issues. As it seems to me, any such claim would have to be pursued by an action for damages under CPR Part 7.

In case this leaves the claimant with the impression that I regard the proposed claim as arguable I should add that on present information I do not. The notion that a regulator owes the regulated a duty of care in this regard is a startling one for which no authority is cited. It would appear to be inconsistent with such authorities as Calveley v Chief Constable of Merseyside Police [1989] AC 1228 and Wright v Jockey Club Times 16 June 1995. I would need considerable persuasion for concluding that the proposition is anything other than fanciful."

32. However the claimant formulates this ground as a breach of duty it is difficult to see any legal basis for it. The defendant's role is that of a regulator of the profession. In this instance, that involved the handling of complaints made by the complainant about two nurses. In dealing with those complaints the defendant had a duty to process them responsibly, reasonably and rationally. Beyond that it did not owe the claimant any duty of care. There is no breach of any public law duty.
33. The principal concern of the claimant is the making of, what he says, are false and malicious accusations against him. Those derive from his workplace. The lawfulness of his dismissal from the workplace has been investigated and adjudicated in his favour before the employment tribunal.
34. So far as the defendant is concerned it held back determination of the claimant's complaint until the outcome of the CCSL disciplinary process and proceeded with considering the complaint only after the claimant had indicated his agreement.
35. There is no arguable basis for this claim which is misconceived in the context of a claim for judicial review.
36. I turn now to consider the substantive hearing in respect of ground two.

Ground Two: Whether the defendant acted lawfully in closing the complaint made by the claimant about Rachel Walsh?

37. In the period before the substantive hearing but after the grant of permission the defendant had offered to progress the complaint against Ms Walsh to stage four of its investigation procedures. That meant that it would be considered by the preliminary investigation committee. The composition of that committee was to be determined but would not include Mrs Hill. As Miss Greaney confirmed at the hearing that remains the defendant's position.
38. Whether further interviews or investigation is required at that stage the defendant contends is a matter for the relevant committee to determine.
39. The background to the claim is as follows. In April 2013 the claimant wrote to the defendant making a complaint about Rachel Walsh. On 24 April 2013 the defendant replied to the claimant as follows:

"We understand your complaint relates to differences in two statements Mrs Walsh provided to CCSL about the events of 14 February 2011. You said that the first statement must have been produced fairly soon after the events, while the second statement is an extract from a diary type document and must have been completed on or around the last entry of 17 February 2012. Our understanding is that you consider the second statement to be a deliberate embellishment to give more seriousness to the incident. A differing recollection of events given a year after the first does not necessarily mean dishonesty. Our view is that the differences between the two statements are consistent with a person recalling an event on two occasions approximately a year apart. We do not see these differences represent dishonesty on the part of Mrs Walsh and note that there were a number of other instances Mrs Walsh complained about in addition to the events of 14 February 2011. Consequently, on the basis of the information provided we consider that there is no potential for your complaints to amount to serious professional misconduct. Therefore, your complaint has been closed."

40. The claimant was informed that if he wished to make an application for review of that decision he was to make it within 14 days. He made an application for review the following day.
41. On 26 June 2013 the head of the professional conduct department within the defendant wrote to the claimant with the outcome of a joint review carried out with Mrs Hill, chairman of the defendant's preliminary investigation committee. The decision was that the assessor had been premature in deciding that the matter should be closed on the basis that the differences between the statements made by Ms Walsh were consistent with recollections one year apart. Whilst that could be the case the review noted that if there was a deliberate attempt by Ms Walsh to lie about an incident to cause harm or to promote a compensation claim that could have the potential to amount to serious professional misconduct and that would require further investigation. In particular, the review noted that there was a suggestion that someone else had been present during the incident but that no steps had been taken to identify the individual or to obtain a statement from them. The review thought that should be done and that CCSL should be asked to supply material from its own investigations on that matter, if any material existed. As a result the complaint should be reopened.
42. The claimant wrote to the defendant in the context of the complaint against Ms Walsh identifying the person whom he considered to be a witness to the event and expressing concern about how his complaint should be notified to Ms Walsh.
43. The defendant replied on 2 July 2013 that the complaint could be raised against Ms Walsh or, alternatively, if the chairman of the preliminary investigation committee agreed, the matter could be deferred pending finalisation of the claimant's grievance/disciplinary process with CCSL.
44. On 2 April 2014 the defendant contacted CCSL and asked for relevant information on the complaint.
45. By that time the defendant had contacted Ms Walsh informing her of the complaint and she responded in a letter of 6 April 2014.
46. Claire Lewis, the witness to the incident, replied to the enquiry for further information.
47. By that time the claimant had been dismissed without notice. That occurred on 4 March 2014.
48. On 29 July 2014 the defendant wrote to the claimant saying that the defendant's case examiners had decided that there was not an arguable case for serious professional misconduct affecting Ms Walsh's fitness to practice. The complaint was therefore closed.
49. On 13 August 2014 the claimant made further representations in respect of his complaint against Ms Walsh.
50. On 27 August 2014 Mrs Hill wrote to the claimant indicating that as a first step the defendant needed to have matters clarified by CCSL.
51. On 17 February 2015 the defendant wrote to the claimant stating that as a result of their review they concluded that there was no arguable case that Ms Walsh had lied about or embellished what occurred in order to cause harm or to promote a compensation claim and that therefore the complaint should remain closed.
52. On 8 April 2015 the employment tribunal concluded that the claimant had been both wrongly and unfairly dismissed. The matter then proceeded to a remedy hearing.
53. At the oral hearing the claimant produced a document which explained his rejection of the offer made by the defendant. He was concerned that he would not get a fair hearing. He wanted Ms Walsh interviewed before the preliminary investigation committee reached its decision. He wanted an investigation of the events before the committee reached its final decision as Ms Walsh's allegations in her second account were inherently implausible and he wanted the claim that Ms Walsh had contacted her GP to be investigated.
54. The claimant is also concerned about general failings in the defendant's disciplinary system. He objects also to the fact that the defendant would not pay his costs.

Discussion and Conclusions

55. In granting permission Warby J considered it properly arguable that the case examiners' approach to answering the question as to whether there was an arguable case that Ms Walsh lied or embellished her account about the claimant's comments regarding Synulox in order to cause harm or to promote a compensation claim was flawed in principle and/or that the examiner had arrived at an answer to the question that could not rationally stand. Further, he expressed the view that it was possible to argue that the case examiners' misapplied the threshold of arguability, conducted an evidential evaluation of the kind which is assigned by the rules to the professional conduct committee and/or reached a conclusion that was not rationally open to them. It may have also been the case that there was some arguable merit in the claimant's complaints that factors such as the inherent probably of him conducting himself as alleged appeared to have been left out of account.
56. The defendant accepts the observations made by Warby J, hence its offer before the hearing to process the claim to stage four of its complaints procedure. That remains the defendant's position.
57. According to its code for processing complaints stage four of the procedure is set out in paragraphs 12 to 16 of Warby J's decision which read:

"12. I have, however, had regard to the distinctions between the case examination and Preliminary Investigation stages of the Defendant's process. In my view, it is possible to argue that the case examiners misapplied the threshold test of arguability, conducted an evidential evaluation of the kind which is assigned by the rules to the Professional Conduct Committee and/or reached a conclusion that was not rationally open to them.

13. A complaint could be said to disclose an 'arguable case' if (a) it involves allegations which, if proved, might be found to amount to serious professional misconduct and (b) there is an arguable case that the factual allegations are true. Here, the Defendant accepted (a) at an earlier stage of the process. So far as (b) is concerned, allegations of this kind depend essentially on the credibility of the witnesses. It can be said that the case examiners have erroneously concluded that the claimant's factual case is unarguable without either concluding that it is inherently incredible, or identifying any incontestable evidence that contradicts it.

14. The observation that, given the Claimant's concession that he may have referred to the possibility of self-medication with Synulox 'there is room for overlap and possible misinterpretation' is open to criticism. The fact that there might have been misinterpretation does not make the contrary unarguable. E qually, the fact that there is a relatively small difference between the versions of events given by Ms Walsh may weaken the case that she embellished, but arguably does not render it unarguable.

15. These are the principle points that lead me to grant permission, but I also consider there is some arguable merit in the Claimant's complaints that factors such as the inherent probabilities of his conducting himself as alleged appear to have been left out of account.

16. It may be that this is a case that would fail at the Preliminary Investigation stage, where the standard of proof is explicitly to be taken into consideration, alongside policy considerations; but even if that were the case it would not be an answer to this claim."

58. The offer to process the claim in that way is the most that the court could order. Having considered the documentation and representations including the post-hearing representations submitted by the claimant on 5 November 2015 and the email in response from the defendant on 6 November 2015 I agree with the points identified by Warby J as sufficient to grant judicial review of the decision to close the complaint against Ms Walsh.
59. Accordingly, the claimant's complaint succeeds on ground two.
60. The defendant has agreed that Mrs Hill will not be part of the preliminary investigation committee so as to avoid any apparent appearance of bias. The defendant has also agreed, in principle, to exclude Mrs Bedwell provided:

i) It is clear that she had previously been substantially involved in the claimant's complaints; and

ii) It is possible to do so without causing insurmountable difficulties.

It has also agreed to exclude Mrs Thompson from the preliminary investigation committee.

61. As to Mr Hepper, although the claimant is concerned that his disposition towards him may not be entirely neutral, as committee secretary he has had no involvement in its decision making. The defendant is not willing to replace him. That position would seem to be correct.
62. However, those are matters for the defendant to resolve bearing in mind problems with apparent bias and the history of this case. The composition of the preliminary investigation committee is not for the court.
63. As to requiring the preliminary investigation committee to interview Ms Walsh and make further enquiries again that is not a matter for the court to determine. It is a matter for the discretion, within the stage four process, on the part of the preliminary investigation committee as to whether it is necessary to investigate complaints further. The investigation is carried out in accordance with their protocol for the investigation of complaints. Provided that is done the claimant can have no complaint about the process.
64. As to the claimant's concern about systemic problems in the defendant's complaint process that is not something that is before the court. What is before the court is a challenge to a particular investigation and the decision in relation to Ms Walsh that the claimant's complaint should be closed. In that respect I have found that the complaint is justified so that it should be the subject of further investigation in accordance with what I have set out above. That position is accepted by the defendant.
65. In the circumstances the claim succeeds on ground two and there will be an Order to that effect.
66. The parties should see whether they can agree an Order including costs. If costs are not agreed the claimant should make his submissions in writing within three days of the date of the judgment being handed down. The defendant to reply in writing within two days thereafter and the claimant to reply in writing, if required, one day after that.