England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester
		11th May 2016

Wednesday, 11^th May 2016

MR JUSTICE KERR:

1. This is a troubling case. The appellant is a doctor. He graduated from Liverpool University in 1991. The background to the subsequent disciplinary proceedings against him arose from a family dispute which, unfortunately, led to him becoming separated from his daughter following the break-down of a relationship, a matter which has caused him intense pain and anguish.
2. Unfortunately, this led to certain court proceedings, including injunctions issued from the county court, of which the appellant was said to be in breach; and breaches of those injunctions were found to have been committed by him. The appellant became the author of many very intemperately worded communications from around 2012 to 2014. Those led to the bringing of ten charges against him by the General Medical Council (GMC).
3. The charges were to the following effect: that he had sent substantial amounts of correspondence to Durham County Council, Durham Constabulary and local authority schools; and that this had led to a warning in the form of a "police information notice" issued in November 2012 under the Protection from Harassment Act 1997.
4. Arising from that correspondence, it was further alleged that an injunction issued by the Durham County Court on 20 November 2013, restraining such communications, was not heeded in that a further intemperate email was sent on 16 August 2014, addressed to a number of social workers, who were addressed as "child abusers"; and that this was a breach of the injunction.
5. It was also alleged that the appellant sent a substantial amount of similar correspondence to public bodies in West Berkshire District Council, certain schools and the Children and Family Court Advisory and Support Service (CAFCASS) leading to a further injunction in September 2014 issued from the Reading County Court, restraining such further communications.
6. This, it was alleged, was breached by further correspondence in September and October 2014, containing material that was offensive and threatening, and constituted harassing behaviour.
7. Those matters were said to be misconduct which had impaired the appellant's fitness to practise. But those allegations, it will be noted, did not include any suggestion that the appellant had behaved dishonestly, in any normal sense of that word.
8. The GMC convened a hearing of its Fitness to Practise Panel (the panel). Before the hearing, there was a written application from the appellant for the panel to recuse itself on the ground that there was a "conflict of interest" in the case of two of the panel's members: the chair, Ms Mullen, a professional in the field of children's services, and one of the other members, Mr Elliott, a barrister practising criminal law.
9. The basis of the objection was that those two panel members (and I quote from the email objecting to them of 23 November 2015): "are from professions which run the family justice system - social workers and lawyers."
10. The panel held a hearing in the usual way, which, unfortunately, the appellant did not attend. He was then unrepresented. No live evidence was heard. The matters which formed the subject of the charges consisted of documents; and the sending of those documents was not, and could not be, disputed. Their content spoke for itself.
11. At the hearing not attended by the appellant (from 7 to 9 December 2015) the GMC's counsel, Ms Duckworth, made various submissions, which I will not go through at this stage. I will return to some of them. There was, in the usual way, a legal assessor, a Ms Oakwood, who gave certain advice, as was her role. In the usual way, the panel comprised three members, one of whom under the rules must be a medical member.
12. The panel, proceeding on the basis of the documents, found all the charges proved. I should mention that the documents in the bundle, which formed the evidential basis of the charges, included a number of references to a passionate belief on the part of the appellant that the family justice system has treated and continues to treat him less favourably because of his gender, i.e. because he is a man, than it would do, or have done, if he had been a woman and thus the mother and not the father of the daughter from whom he is separated.
13. That explains his concern at the inclusion on the panel of professionals concerned in the administration of the family justice system. The panel rejected the request to recuse itself, saying that no relevant conflict of interests could be shown. It decided in the exercise of its discretion, as it was entitled to do, to proceed in the absence of the appellant.
14. Having found the factual charges proved and considered the evidence supporting those charges, the panel proceeded to find the appellant's fitness to practice to be impaired, noting that although there was no clinical concern about his treatment of patients, there was no evidence of any insight into his misconduct, and the lack of such insight was further demonstrated by the sending of inappropriate correspondence to GMC and members of its staff in the run-up to the hearing, including bitter complaints about the way the family justice system treats fathers, and an allegation that the GMP had "fabricated" the allegations against him.
15. The panel went on to consider, in the usual way in accordance with the relevant sanctions guidance, the available sanctions in ascending order of gravity. It found that there were "no mitigating factors in this case" and, having considered lesser penalties including suspension, which it ruled out, it proceeded to decide that the only appropriate sanction was that of erasure. The relevant part of the determination in paragraphs 36 and 37, said this:

"The panel found that, in light of its findings, Dr Kimmance's actions undermined the public's trust in the medical profession. It also found that Dr Kimmance displays a profound and persistent lack of insight into the seriousness of his actions and the consequences, particularly in respect of the alarm and distress the correspondence he sends causes the recipients.

In all these circumstances, the panel determined to erase Dr Kimmance's name from the medical register in order to maintain public confidence in the profession, and to declare and uphold proper standards of conduct and behaviour. The panel accepts that this sanction has the potential to impact on Dr Kimmance both professionally and financially, however the public interest outweighs his own interests in the specific circumstances of this case."

16. Finally, the panel proceeded to impose an interim suspension order during the 28 day period until the erasure would take effect unless an appeal be lodged in the interim, as it has been. So those were the proceedings and that was the decision of the panel in this case, and it is against that decision that the appellant now appeals, through Ms Hobcraft.
17. The grounds of appeal were, with respect, not clearly separated out from each other in writing, but I think I understood correctly what they were, and I will take them in a slightly different order from that in which they were advanced and will deal, first, with the bias point. That arose from a late amendment to the grounds of appeal, which the GMC did not oppose.
18. In Ms Hobcraft's argument, she developed that ground in the following way: She made it clear that there was no suggestion that the two panel members had any personal animus against the appellant or any personal involvement with any of the factual matters forming the subject of the charges.
19. The appellant's concern in relation to Ms Mullen, the chair, was that the appellant (I quote from her skeleton argument):

"was in conflict with local authorities, and the Chair of the panel's background was in local authority managements/senior roles – a similar background to the witnesses in the case. The Appellant's concern in relation to Mr Elliott (a barrister) was that the Appellant is sympathetic to the fathers' rights movement and therefore critical of the justice system."

That, she submitted, was sufficient to raise a real possibility of bias in the classic sense articulated by Lord Hope at paragraph 103 of his speech in Porter v Magill [2002] 2 AC 357.

20. There is, with respect, nothing whatever in this point. It amounts to no more than a generic grievance against persons involved in professions, other members of which the appellant had railed against in the controversial correspondence which led to the charges against him. That comes nowhere near even raising an arguable case fulfilling the test for an appearance of bias.
21. As Mr Ozin QC for the GMC reminded me, there is a very helpful passage in the joint judgment of Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C in Locabail (UK) Limited v Bayfield Properties Limited [2000] QB 451 at paragraph 25, which deserves to be read and digested more often than it is, particularly by disappointed persons who perceive themselves to be the victim of a biased tribunal or one bearing the appearance of bias.
22. The first part of that paragraph, which I will not read out, provides very strong support for the proposition that, subject always to the overriding point that each case must depend on its own facts, and in the absence of any personal animus or other personal connection with the case, an association with the same walk of life on the part of a panel member and a person coming before that panel will of itself come nowhere near establishing an appearance of bias.
23. I, therefore, dismiss that first ground of challenge as unfounded and move on to matters of more substance.
24. The next issue in the appeal concerns the question of dishonesty. In the records of proceedings, a number of references were made to the appellant's supposed dishonesty and lack of integrity. Ms Hobcraft submitted that the case was opened on the basis of dishonesty, but that it formed no part of the allegations faced by the appellant.
25. She pointed out that counsel for the GMC had opened the case by saying that the language used by the appellant had not only been offensive, threatening and harassing but "also baseless". Counsel for the GMC had made several other references to dishonesty, and had even asked the panel to "have regard to Good Medical Practice where it deals with the issue of honesty".
26. Counsel for the GMC, Ms Duckworth had gone on to say this:

"Although the allegations against Dr Kimmance are not that he was dishonest in his communications as a matter of one of the allegations, what you have found in your determination is that the material he was sending was offensive, particularly because of the descriptions of the behaviour of some of [the] social workers in describing them, for example, as kidnappers, and that their actions amounted to being harmful against children."

27. And, Ms Duckworth went on to submit that "the correct analogy to draw" was a specific reference to honesty within the Good Medical Practice guidelines. Those utterances came late in the proceedings, after the factual determination had already been made, and Ms Hobcraft pointed out that counsel for the GMC had also invited the panel to ask itself whether the appellant had "in the past acted dishonestly and/or is liable to act dishonestly in the future?"
28. She went on to say: "[y]ou do not have a finding of dishonesty in this particular case but you may wish to take into account his integrity, having regard to Good Medical Practice". Ms Hobcraft submitted that the matter did not end there since Ms Duckworth also submitted, at the sanction stage, as follows:

"It has already been submitted that, whilst you have not been asked to make any finding of Dr Kimmance being dishonest, he is somebody who has acted, in my respectful submission, without integrity. Of course, you may have concluded as part of your assessment that his emails were offensive; that, if any of the comments that he was making about people had any kind of foundation, then they would not necessarily meet the test of being offensive, and so his allegations must clearly have been baseless and therefore there is an element of dishonesty, but you have not been asked to make a specific finding of that."

29. Ms Hobcraft, basing herself on those passages in Ms Duckworth's submissions to the panel at the hearing, submitted that it was procedurally unfair for the panel to be addressed in those terms because dishonesty formed no part of the charges against the appellant, and that the content of his communications, which formed the subject of the charges, did not have to be false to be offensive. The truth can be offensive, as much as falsehood.
30. The main argument between the parties arising from this ground of appeal was about whether there was a material, if any, irregularity in the fairness of the proceedings arising from what was said about dishonesty. I was referred to four cases on that subject, none of which was remotely factually similar to the present case. They seem to me, with great respect, to establish no more than an ordinary tenet of procedural fairness, which is that dishonesty (or other serious wrongdoing) should be clearly alleged and particularised, and if it is not, it should not be sought to be proved.
31. The citations were: Fish v General Medical Council [2012] EWHC 1269 (Admin) (Foskett J); R (El-Baroudy) v General Medical Council [2013] EWHC 2894 (Admin) per HHJ Raynor QC, at paragraphs 14, 24 and 30; CF Yassin v General Medical Council [2015] EWHC 2955 (Admin) (Cranston J) and Arunkalaivanan v General Medical Council [2014] EWHC 873 (Admin) (Amanda Yip QC, sitting as a deputy judge of the High Court), at paragraphs 75-78.
32. Mr Ozin, for the GMC, submitted that there was no irregularity here because the panel was fully aware that it was not dealing with an allegation of dishonesty as such, that it took that point into account and made express reference to the absence of any dishonesty charge in its determination; and he submitted that it was legitimate for the panel to regard the language used in the communications as pointing in the direction of a lack of integrity because the allegations were baseless; and that, thus, up to a point dishonesty could be said to be implicit in the charges.
33. During oral argument, Mr Ozin formulated what could be termed the mental element of the charges as something more akin to recklessness than classic forms of dishonesty, such as telling a lie, falsifying an expenses claim or stealing an apple. He submitted that the substance of what was alleged against the appellant included the wrongdoing that lay in him not caring whether or not that which he uttered in the offending communications were true or false; that that was a matter which properly bore on his integrity and was of significance to the issue of maintaining public trust and confidence in the profession.
34. It seems to me that the references that were made in argument to the concept of dishonesty were irregular. They were immaterial to the charges, irrelevant, apt to distract and confuse, and ought not in my judgment to have been relied on by Ms Duckworth, effectively as an aggravating feature in relation to the charges.
35. The references to dishonesty were capable of being prejudicial to the appellant, and, at best, portrayed lazy thinking since it was very far from being suggested that he had knowingly invented false stories about people, told lies or sought financial gain through dishonesty, and it is this classic sense of the term which ought to be, and ought only to be, the proper province of that use of language.
36. In such cases, as is well known, a "Ghosh" direction or equivalent is required to be given. Examples of what constitutes dishonesty are given in the GMC's Indicative Sanctions Guidance at paragraph 88(h), which is cross referred to paragraphs 129 to 137. The examples given in those paragraphs there include such matters as honesty in financial dealings, telling the truth about services and in clinical matters, not falsifying research, and the like. Those classic forms of dishonesty are very far removed from what was alleged against the appellant in the present case.
37. It was not implicit in the charge that this doctor had dishonestly fabricated allegations against the recipients of the communications he was charged with sending. The essence of his misconduct was nothing to do with whether he believed in the truth of what he was alleging. It was the use of language that attacked professionals in a way that was insulting, threatening and offensive, whether true or false. Indeed, many of the suggestions, for example, that many police officers are corrupt and that many social works are badly adjusted people, and that particular social workers had enjoyed separating him from his daughter, were perceptions of opinion rather than fact.
38. To put the point shortly, the essence of the misconduct here was that appellant broke court orders, made seriously offensive remarks to public servants doing their duty, and thereby conducted himself in a manner unbefitting a doctor, undermining public confidence in the profession. The materials about dishonesty in that context were neither here nor there. They were irrelevant, and the appellant is right that they were prejudicial, so there was an irregularity, but was it a material irregularity? I have come to the conclusion that it was not.
39. I reach that conclusion for these reasons. The first is because the panel knew full well what the essence of the wrongdoing was. Secondly, because of that, they reminded themselves that there was no allegation of dishonesty. Thirdly, the language used in the appellant's communications forming the subject of the charges, and thereafter at the sanctions stage, was so serious, offensive and insulting that there could, as Mr Ozin correctly submitted, be no realistic prospect that the appellant could hope to escape erasure.
40. So, the irregularity, while significant and regrettable, was not, in the end, material. It is inconceivable that the decision to erase was affected, or could have been affected, by being referred to that irrelevant and extraneous material. At paragraphs 11 and 12 of its determination on impairment and misconduct the panel said this:

"11. She [the legal assessor] went on to refer the panel to the recommendations relating to the findings of impairment set out by Dame Janet Smith in the fifth report of the Shipman Inquiry. She advised the panel that it should take into consideration whether its findings of fact mean that Dr Kimmance has in the past acted and/or is liable in the future to act so as to:

cause unwarranted risk of harm to patients; and/or

bring the profession into disrepute; and/or

breach a fundamental tenet of the profession; and/or

behave dishonestly.

12. Having referred the panel to these recommendations, the legal assessor emphasised that it should bear in mind that there was no allegation or finding of dishonesty against Dr Kimmance in this case."

So, the panel was not misled or led astray by the irregularity to which I have referred, but that does not mean that it should have happened.

41. Certain other points were also taken in this appeal. It was said that it was wrong to refer at the first stage of the exercise - the fact finding stage - to the question of dishonesty and the sanctions guidance. It is, indeed, true that Ms Duckworth did refer the panel to what she would be submitting in relation to impairment and sanctions, and referred in that regard to dishonesty. That does not in my judgment add anything to the irregularity that I have already mentioned.
42. Ms Duckworth was doing no more than looking ahead to what her submissions would be at subsequent stages of the exercise and, although it may be better practice not to do so when one is at the fact finding stage, it is nowhere near being a factor that could vitiate the fairness of the proceedings or the validity of the decision. At the fact finding stage, none of the facts were controverted for the simple reason that the appellant had not attended the hearing nor denied sending the communications. Therefore, stage one of the disciplinary process should have been very short and simple.
43. It is always good practice to maintain a clear intellectual separation between the different stages of the exercise, and I accept that there were occasions, as appears from the transcript, where that was not done in this case; but I am satisfied from looking at the structure of the determination and the reasoning set out in it that the panel did not fail to appreciate the separate nature of each stage of the exercise.
44. The next ground of appeal is that the panel was not informed of a particular piece of evidence favourable to the appellant. It is common ground that reference was made to the absence of any negative evidence about his competence as a doctor, and the absence of any clinical concerns about his treatment of patients. It is obvious from the nature of the charges that his medical practice and treatment of patients was not what the case was about, and it is not suggested that the panel was unaware of this.
45. However, there was also a particular positive testimonial set out in an email received by the GMC on 14 November 2014, over a year before the hearing, from a Dr Heaton, the vice-president of a body in the Netherlands devoted to urology and nephrology, who was also the line manager of the appellant and to whom the appellant was responsible in his role as a clinical research physician at the Medical Science Department at Astellas in Leiden in the Netherlands. Dr Heaton wrote, in full knowledge of the difficulties that the appellant had encountered with the family justice system.
46. To judge from his email, Dr Heaton responded to a request, not from the appellant but from the GMC, about the appellant's fitness to practise. He confirmed not only that there were no internal complaints about the appellant's personal and professional conduct in his employment, and that he was known as a "quiet and diligent, but entirely unsinister, employee", but also spoke positively of the quality of his work and concluded thus:

"In summary, while I would be duty bound to report issues that would impair Dr Kimmance's Fitness to Practise, there is not a shred of evidence of that in his work performance here. I would encourage you to look at the motivation and integrity of West Berkshire Council in making this case to the GMC. I am personally satisfied that Dr Kimmance is fit and safe to practice [sic] medicine."

The reference to West Berkshire Council was to one of the bodies to whom the appellant had sent communications leading to the charges.

47. The GMC, through Mr Ozin, properly accepts that that is a favourable reference, and that, as he put it, in an ideal world it ought to have been made known to the panel, but by oversight was not. However, Mr Ozin submits that the absence of that testimonial from the evidence available to the panel when considering sanctions is not a vitiating factor constituting an irregularity that ought to lead to the panel's decision being disturbed; first, because the appellant did not come to the hearing himself; secondly, because the concerns about him were far removed from being clinical; and thirdly, because the panel was well aware of that, and that the case was about matters that had nothing to do with patient safety.
48. That does not entirely meet the point, because the reference went beyond merely saying that the appellant was a competent doctor, against whom nothing adverse was recorded. It was a positive testimonial, which spoke highly of his work performance. Mr Ozin went on to submit that the absence of that letter from the evidence available to the panel made no difference. It could not possibly have assisted Dr Kimmance, he said, because of the seriousness of the conduct alleged against him and the nature of that conduct. Ms Hobcraft, by contrast, submitted that the omission of that testimonial from the available evidence was a material irregularity.
49. I have had to think long and hard about whether this is something that might have weighed in mitigation. It is right to say that the panel said in its determination on sanction that there were no mitigating features. I doubt whether it would have been able to say that if it had had available it to the email I have just referred to. It was something that would, for what it was worth, have weighed in mitigation.
50. It was, in my judgment, wrong that the panel was not told about it, and that this may have been largely the appellant's fault, is not a complete answer. It was also the GMC's fault; indeed, it was the GMC that had requested the information in the first place. After reflection, I have come to the conclusion that this, though an irregularity, did not render the proceedings as a whole unfair.
51. I accept that as a result of that irregularity, the panel was disabled from properly weighing in mitigation whatever value that document had in favour of the appellant, and that it was not right to say there were no mitigating features. But in the end, it is inconceivable that the letter would have led, or could realistically have led, the panel to conclude that suspension was an adequate response to the charges. They were, I am afraid, simply too serious for that.
52. So, again, there was an irregularity, but ultimately I have decided, not a material one. The GMC should, however, be warned that in a more borderline case, where the conduct complained of was not such as inexorably to lead to erasure, its failure to bring evidence of that type to a panel's attention might well lead to a panel's decision being quashed.
53. Complaint is then made that the legal assessor made reference to the panel's discretion to refer the appellant for a health assessment, yet there was no particular health issue. I have been referred to the passage from the transcript, where the assessor raised that issue.
54. It appears that she did so out of a concern that the appellant was not present, and that had he been, it was something he might to have wished to raise himself. That was, perhaps, unnecessary but it was not unfair and did not lead to any unfairness. The panel, rightly, rejected the suggestion that there was any basis for a medical referral, and the suggestion that there might be one was no more than a harmless distraction.
55. Then, complaint is made that at the sanctions stage, reference was made to documents which the appellant had written, which were not the subject of the charges against him. Indeed, the panel referred to correspondence sent during the run-up to the hearing, to which I have referred earlier in this judgment.
56. But those documents were in my judgment relevant, and fairly considered relevant, to the question of remediation and insight and, thus, to sanctions. The rules permitted reference to them and it was not unfair for them to be taken into account. They included the email in which the appellant asserted that the GMC had "fabricated" the allegations against him.
57. Next, a point was taken in relation to the charge numbered 10, which was to the effect that the offending communications had amounted to behaviour which was offensive, threatening or harassing behaviour. Ms Hobcraft complained that insufficient attention was given to what types of behaviour ought to be considered as falling within those categories, and she submitted that there was no evidence from any recipient of the offending correspondence that that person had been caused alarm and distress.
58. The legal assessor, when advising the panel, pointed out that what is offensive or threatening is a matter to be proved to the civil standard, and she said: "You will in some senses be judging whether the material alleged… is offensive and… you would give a normal definition to that is threatening [sic]".
59. She reminded them that there was no case of a threat of violence. It was purely threats by words. As for harassing behaviour, she said this: "'[h]arassing' has a number of definitions, but normally means it will cause some kind of alarm or distress to the party or the person concerned. That one is slightly different, that head of charge, from the rest, because you have to make a judgement, albeit on the balance of probabilities."
60. In its determination the panel dealt with that matter by stating that the words "offensive", "threatening" and "constituting harassing behaviour" should be understood in "their normal everyday usage". I think that was absolutely correct and very sensible. There would have been no virtue whatever in engaging in any technical or expansive discussion about legalistic interpretations to be given to those ordinary English words.
61. Finally, it was said by Ms Hobcraft that the sanction of erasure was disproportionate. I have already referred to paragraphs 12 and 13 of the determination, where the panel set out its reasoning, supporting the conclusion that erasure was the only appropriate response. As I have said already, the panel found that there were no mitigating factors. The aggravating factors to which they pointed included the offensive and threatening nature of the material, which constituted harassing behaviour towards public bodies and named individuals, the persistence of the appellant, despite warnings and two county court injunctions, and the appellant's continuing lack of insight.
62. Ms Hobcraft reminded me that the misconduct in this case was not directly, or at all, linked to the practice of medicine itself, and she pointed out that there was no mention in the determination of the undoubted impact on the appellant of the anguish and pain which separation from his child has caused him and continues to cause him.
63. I am afraid that I do not have any difficulty in deciding that the sanction of erasure was proportionate. Even allowing for what went wrong in the hearing, as I have explained above, I accept Mr Ozin's proposition that there was no realistic alternative.
64. Doctors have to be people who do not write documents of the type that this one did. Even when they are convinced, as this doctor undoubtedly is, that they are victims of a grave injustice and have been separated from their child without good cause, it is a misjudgement to suppose that this doctor's private life was under scrutiny, not his public and professional life, and to suppose that that because there was no clinical concern about his practice, he could expect to continue working as a doctor after writing documents such as those that formed the subject of the charges.
65. I can see nothing wrong with the outcome here. He cannot behave as this appellant did and remain on the register as a doctor. He needed to conduct his private life and the fight to secure contact with his daughter in a manner befitting a doctor. That means behaving properly, and not allowing grief and anger at the separation from his daughter to blind him to the need to behave appropriately.
66. There was indeed no evidence of insight and remediation in this case. I do not much like those jargon words. They do not do much to illuminate the reality, which is that a doctor or other professional who has done wrong has to look at his or her conduct with a self-critical eye, acknowledge fault, say sorry and convince a panel that there is real reason to believe he or she has learned a lesson from the experience. Nine times out of ten, you cannot do that if you do not turn up to the hearing. The panel will want to ask questions.
67. Advisers must be very careful to advise their clients of that, if instructed in time, which was not the position here. Without knowing anything about the background facts, I have great human sympathy for the anguish that Dr Kimmance felt, arising from his separation from his daughter, but I have none with the way that he dealt with it.
68. This appeal must be dismissed. It is a very sad case of a competent doctor, who has destroyed his professional standing by losing all sense of perspective about how to deal with the pain caused to him by his separation from his daughter.
69. I wish to add a few words about appeals of this kind. The way in which they are now routinely presented is wasteful. In this jurisdiction, we have become overburdened with citation of cases and production of unnecessary documents and bundles. I say this not in any way to criticise counsel or solicitors in this case. We are all, judges included, responsible for and part of the legal culture which has allowed this to happen.
70. It is a disservice both to the medical and legal professions that legal proceedings, such as this appeal, are prepared in a way in which there is included a large amount of unnecessary material, duplication and "information overload". Worse, it can distract advisers from what is important, such as, in particular, the dangers of not attending a disciplinary hearing.
71. We are getting many cases in which that has happened. It so happens this is another of them. I fear that in many cases registered professionals are not made fully aware of the dangers of not attending. In a regulatory jurisdiction, where issues of insight and remediation are very important, and where the conduct complained of is clearly very serious, non attendance of the hearing can come close to professional suicide.
72. This case involved a few short points, and the only documents needed were a tiny fraction of the record of proceedings, not the full record that I was given, but not asked to read. Pages 13 to 973 inclusive of the bundle were the documents from the disciplinary proceedings. I was asked at the hearing to three or four of those pages.
73. The parties should not lodge thousands of pages of documents to cater for a chance of one in a thousand that the judge might ask to see one or two of them. They should work out what they want the judge to see, and produce that. I had 47 pages of skeletons, 500 pages of authorities, including the whole of Porter v Magill (at pages 71 to 225), the whole of Meadow v GMC (pages 226 to 303).
74. The proliferation of legal databases means that nearly every case is available. There are hundreds of GMC and similar appeals. Counsel often feel obliged to cite too many of them. I am afraid that some of the judges also feel obliged to cite more than necessary. I have probably been guilty of this myself. Yet, for the experienced, mainly High Court judges who hear the appeals the principles are familiar.
75. In the future, you do not need to cite Rashid and all those other familiar cases. You do not need to refer to CPR 52.11. You do not need to remind the court that it should defer to the specialist expertise of the tribunal below to the extent that the circumstances warrant. You do not need to cite cases that create no new principle, but merely illustrate existing ones.
76. You do not need authority for the proposition that factual determinations that turn on the assessment of the credibility of witnesses are virtually unassailable, a proposition that I was treated to in this case, even though no oral evidence was heard. Skeletons should be, if I may respectfully say so, short and to the point, and I hope in the future we will start to look at the merging of skeletons and pleadings, and an enforceable prohibition against the inclusion of unnecessary material.
77. I make no criticism, however, of the parties or their lawyers in this case. I am grateful to both counsel for their considerable assistance. For the reasons I have given, the appeal is dismissed.