QUEEN'S BENCH DIVISION
IN THE MATTER OF AN APPEAL UNDER SECTION 40 OF THE MEDICAL ACT 1983
AND AN APPEAL UNDER SECTION 29 OF THE NATIONAL HEALTH SERVICE REFORM AND HEALTH CARE PROFESSIONS ACT 2002
Strand, London, WC2A 2LL
B e f o r e :
| Dr Chandranath Sarkar
|- and -
|The General Medical Council
|The Professional Standards Authority for Health and Social Care
|(1) The General Medical Council
(2) Dr Chandranath Sarkar
Christopher Knight (instructed by GMC Legal) for The General Medical Council
Fenella Morris QC (instructed by Browne Jacobson LLP) for The Professional Standards Authority for Health and Social Care
Crown Copyright ©
The Honourable Mrs Justice Tipples DBE :
" allow this appeal, quash the decision of [the Tribunal] as to sanction (including the decision not to order a review hearing), and: (a) remit the matter to [the Tribunal], with such directions as the Court thinks fit; and (b) in any event, order that the [GMC] and/or [Dr Sarkar] to pay the [PSA's] costs."
"This does not render the [PSA's] appeal academic. This is because both the relief sought and the grounds upon which it is sought go beyond an attempt to secure a review. Further, if this Court accepts that the Tribunal's reasons as to sanction are insufficient as the [PSA] submits, that failing will require rectification before a properly-informed and meaningful review can take place."
"UPON the Respondents not objecting to the disposal of these proceedings for the reasons set out in Schedule 1; AND UPON the Appellant in proceedings CO/469/2018 [the PSA] seeking an order that [the GMC] and [Dr Sarkar] pay its costs of the appeal in those proceedings, to be summarily assessed if not agreed; AND UPON [the GMC] and [Dr Sarkar] seeking an order that there be no order as to costs;"
"It is agreed, in the interests of the effective and efficient disposal of the issues in these proceedings, that each of the appeals should be allowed in order that the issue of sanction, which is disputed by each of the appellants on contrasting grounds, might be resolved on the basis that the matter be remitted for reconsideration of the issue of sanction on the basis of the findings as to facts and impairment already made."
a. both appeals be allowed;
b. the decision of the Tribunal to impose as a sanction a suspension order of four months, without any further review by it of Dr Sarkar's fitness to practise, be quashed;
c. the matter be remitted to a differently constituted panel of the Tribunal to make a fresh decision as to sanction and "without limiting in any way the normal exercise of the Tribunal's powers, the panel considering the case is directed to specifically consider this consent order and the grounds of appeal filed in proceedings CO/4007/2018 and CO/4694/2018"; and
d. the court would determine the appropriate order as to costs and make any summary assessment of the amount payable. The Consent Order contained a timetable for the service of written submissions, and then directed that the papers would be placed before a judge for written determination.
a. the PSA from Fenella Morris QC dated 10 May 2019, together with a costs schedule dated 15 May 2019 claiming £18,152.96;
b. Dr Sarkar from Mr Marios Lambis dated 24 May 2019;
c. the GMC from Mr Christopher Knight dated 6 June 2019; and
d. the PSA in reply from Ms Fenella Morris QC dated 19 June 2019.
The issue in dispute
The parties' submissions on costs
a. The PSA succeeded in obtaining the relief sought in the Second Appeal. The PSA relies on two points. First, the decision was quashed. Second, the appeal succeeded "as a result of a failing on the part of [the GMC], through one of its committees, the costs incurred are an unavoidable consequence of that failing and the costs order should reflect that": see PSA v (1) General Pharmaceutical Council and (2) Onwughalu  EWHC 2521 (Admin), per Cox J at ".
b. It is a fair reflection of the circumstances and the conduct of the parties leading to the PSA commencing the Second Appeal. The PSA relies on three points. First, the GMC failed to exercise its own right of appeal against the Tribunal under section 40A of the 1983 Act. The PSA was the only body empowered to appeal the decision under section 29 of the 2002 Act, and did so in the public interest, when no other body would or could do so. Second, on 12 October 2018 the GMC made a direction for a review of Dr Sarkar's fitness to practise. However, the PSA did not know this when it lodged its appeal against the decision, as the GMC had failed to tell the PSA or Dr Sarkar. Third, the GMC refused the PSA's without prejudice offer on costs made on 24 April 2019 that "[the GMC's] liability for [the PSA's] costs be limited to those that were incurred in bringing the appeal (which comprised initial advice to [the PSA], the preparation of the appeal papers and the court fee for bringing the appeal)".
"In accordance with the general rule in CPR Part 44.2(2)(a), Dr Sarkar, being the successful party in [the First Appeal], could argue that he should be awarded the costs of and incidental to this appeal. However, Dr Sarkar accepts that in the light of the successful appeal lodged by [the PSA] in [the Second Appeal] and for the reasons it sets out in its submission on costs, the appropriate and proportionate order in respect of costs is that there be no order."
a. The GMC's role in these proceedings was not simply to decide whether it should take an active role to resist the challenge or remain neutral. Rather, the GMC's role was, in addition to that, "to consider whether it should exercise its statutory power to commence an appeal in its own capacity against the decision pursuant to section 40A of the Medical Act 1983". It is therefore not correct for the GMC to argue that "it is no different to the position of an inferior court or tribunal in a judicial review".
b. The GMC's decision not to commence an appeal in its own specific statutory capacity signifies only its decision within that part of the statutory scheme. The PSA has (as Parliament intended should be the case) taken a different position and appealed against the decision in the public interest. In such circumstances, it is not open to the GMC to claim neutrality in the appeal and seek to avoid the consequences in costs where, as here, the decision is quashed and the matter remitted. Further, the PSA's appeal only became necessary once the GMC had decided not to exercise its power of appeal. The GMC took an active decision: it was not neutral.
c. Further, in R (Davies) the Court of Appeal made it clear that, even where an inferior court/tribunal has taken a neutral position, there can be important considerations that would nevertheless justify an adverse costs order.
a. The GMC, to the extent it can be said to be independent of the Tribunal, can never be liable for costs in an appeal brought by the PSA against the Tribunal's decision, which obviously cannot be true.
b. The only party who could bear responsibility for the PSA's costs in a successful appeal would be the registrant who was the subject of the decision to which the appeal relates. The PSA says that is not consistent with a statutory scheme that allows the High Court to consider whether decisions made by statutory regulators (and for which those regulators are to be responsible) are sufficient for the protection of the public.
c. The PSA is the meta-regulator in respect of the whole range of health and social professions. It is funded by contributions made by all those bodies. It would be unfair for the GMC to avoid responsibility for costs arising from its failings in this case and thereby effectively pass them to the other professions.
"That case similarly involved the GMC not opposing an appeal brought by the PSA, where the PSA's appeal was allowed, and where Freedman J accepted the submissions of the GMC that it was not liable for any of the PSA's costs, at paragraph 9 in particular. The submissions made by the GMC were substantively the same as in the present case, and there was no material difference in the factual context. The GMC would respectfully submit that the same approach should be adopted."
"[2.] The Appellant [the PSA] is partially the successful party. It has succeeded in the sense that there now will be a sanction for the misconduct. It has not succeeded in that it argued on impairment, but the court has imposed a warning only. The court rejected the third ground about inadequacy of reasons, but this did not add significantly to the costs.
[3.] The question is what order should be made as between the Appellant and the Second Respondent to reflect the fact that the warning challenge succeeded, but the impairment challenge failed
[9.] I make no order against the First Respondent [the GMC]. It has taken no part in the appeal, as it was entitled so to do on the facts of this case. It did not have a duty to make the appeal in the circumstances of this case. I accept that it is independent of the Tribunal and that in the circumstances of this case and that if there was a failure of the Tribunal, it is not responsible for this on the facts of this case. In this regard, I accept broadly the submission set out at paragraph 4 of the submissions of Mr Knight for the First Respondent, not as matters of general import for all cases, but as regards the instant case. In any event, even if the First Respondent was responsible for the decision of the Tribunal, if the Tribunal had been made a party to the proceedings and had not opposed actively the appeal, then it is usual for no order as to costs to be made against the Tribunal. The position is no different here by reason of the fact simply because the First Respondent had the power to initiate the appeal and elected not to do so. Here too the court takes into account the fact that the First Respondent has a public function, and in deciding not to bring the appeal on warning, it did not act unreasonably.
[10.] The Appellant seeks to invoke matters of general principle in this regard. This decision rests on the particular features in this case and not on general principle. The decision is not intended to have any application beyond the facts of the instant case "
"There may be scope in another case for the Court of Appeal to consider where liability for costs should fall as between the PSA and the GMC when there is a successful appeal against a finding of no impairment to practise but the GMC has declined to take action itself. However, in this case it appears that the GMC had no power to appeal against the failure to issue a warning, the only issue on which the PSA succeeded before the judge, while the PSA's appeal on impairment failed. In those circumstances, the point of general principle on which the PSA relies in this case does not arise and the judge's decision on costs was within the broad scope of the discretion entrusted to him. This was, as he said, a decision on the particular facts of this case."
Determination of sanction remitted hearing
"In considering whether to direct a review, the Tribunal had regard to all of the documentary evidence. In the light of the mitigating factors in this case, together with the fact that Dr Sarkar has demonstrated sufficient insight and remediation to satisfy the Tribunal that he poses minimal risk of repeating his behaviour, and has continued to practise without any concerns since May 2017, the Tribunal determined that a review would serve no useful purpose in this case. It therefore determined that a review is not required."
"The [GMC] submits that the subsequent outcome of the case before [the Tribunal] following remittal is therefore relevant to the court's consideration on costs as it supports the GMC's position prior to the Appellant's appeal, namely that the outcome of the original [Tribunal] was not wrong nor insufficient to protect the public .
Whilst that decision [in Hilton] explicitly did not determine the general point of principle, it made it clear that (whatever the view ultimately taken on that generic issue) there are cases which, on their own facts, do not admit of an order for costs being made against the GMC. Hilton was such a case and the [GMC] submits that this decision is relevant to the determination on costs in this appeal as it is again facts specific and on the basis of those facts is another case on whose facts costs should not be awarded in favour of the [PSA] against the [GMC], whatever the view taken on the generic point of principle (as to which the court is referred to the [GMC's] previous submissions).
The subsequent outcome of [the Tribunal] remitted hearing supports the [GMC's] approach to the appeal in this case, in that the [GMC] was neutral in their stance and agreed to the remittal only on the basis of expedition in the face of two contested appeals (between the [PSA] and [the GMC & Dr Sarkar] in CO/4694/2018 and between [Dr Sarkar] and [the GMC] in CO/4007/2018)."
CPR Part 44.2(2): Was PSA the successful party?
a. the GMC and Dr Sarkar did not object to the Second Appeal being allowed for the reasons set out in Schedule 1 to the Consent Order, which expressly recognised that Dr Sarkar and the PSA were disputing the issue of sanction on "contrasting grounds"; and
b. the PSA did not establish on the Second Appeal, and the Consent Order does not recognise, that the decision not to provide for a review hearing was wrong.
The PSA and its right of Appeal
"(a) dismiss the appeal,
(b) allow the appeal and quash the relevant decision,
(c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or
(d) remit the case to the committee or other person concerned 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."
The GMC, the Tribunal and the GMC's right of appeal
"(1) This section applies to any of the following decisions by a Medical Practitioners Tribunal (a) a decision under section 35D giving - (ii) a direction for suspension, including a direction extending a period of suspension;
(2) A decision to which this section applies is referred to below as a "relevant decision".
(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
(4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient (a) to protect the health, safety and well-being of the public; (b) to maintain public confidence in the medical profession; and (c) to maintain proper professional standards and conduct for members of that profession.
(5) The General Council may not bring an appeal under this section after the end of a period of 28 days beginning with the day on which notification of the relevant decision was served on the person to whom the decision relates.
(6) On an appeal under this section, the court may (a) dismiss the appeal; (b) allow the appeal and quash the relevant decision; (c) substitute for the relevant decision any other decision which could have been made by the Tribunal; or (d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal 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."
"(i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Pt 52. A court will allow an appeal under CPR Part 52.2193) if it is "wrong" or "unjust because of a serious procedural or other irregularity in the proceedings in the lower court"
(iii) The court will correct material errors of fact and of law: see [Raschid v General Medical Council  1 WLR 1460] at para 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has the advantage of seeing and hearing
(v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Raschid's case at para 16; and Khan v General Pharmaceutical Council  1 WLR 169, para 36.
(vi) However, there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal " ;
(viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust ".
R (Davies) v Birmingham Deputy Coroner
" It will be apparent from this judgment that the answers to the questions I posed in para 3 above are:(1) the established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings;
(2) the established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event;
(3) if, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application;
(4) there are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today in cases in category (3) above, so that a successful applicant, like Mr Touche, who has to finance his own litigation without external funding, may be fairly compensated out of a source of public funds and not be put to irrecoverable expense in asserting his rights after a coroner, or other inferior tribunal, has gone wrong in law, and [where] there is no other very obvious candidate available to pay his costs."