QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| DR JENNIFER ELAINE RITA COLMAN
|(1) MR FINLAY MCMILLAN SCOTT
(2) MISS ISABEL NISBET
(3) MR ANDREW KETTERINGHAM
(4) PROFESSOR SIR GRAEME CATTO
(5) DR PAUL DIGGORY
(6) MISS WENDY FRANKS
(7) DR ELIZABETH HARRIS
(8) PROFESSOR THOMAS SHERWOOD
(9) LORD WALTON OF DETCHANT
(10) MR ROBERT GRAY
(11) GENERAL MEDICAL COUNCIL
DR JENNIFER RITA COLMAN
GENERAL MEDICAL COUNCIL
Mr Stephen Miller QC and Caroline Neenam (instructed by the Medical Protection Society) for the 5th & 6th Defendants
Mr Andrew Kennedy (instructed by Weightmans) for the 7th & 8th Defendants
Hearing dates: 18th & 19th December 2006
Crown Copyright ©
Mr Justice Royce :
i) The application of 22nd September 2006 by the first to fourth and ninth to eleventh Defendants to strike out Dr Colman's Particulars of Claim or for Summary Judgment against Dr Colman and for an extended Civil Restraint Order against Dr Colman in claim HQ06X01026.
ii) The application of the fifth and sixth Defendants to strike out Dr Colman's Particulars of Claim or for Summary Judgment against Dr Colman in claim number HQ06X01026.
iii) The application of the seventh and eighth Defendants to strike out the Dr Colman's Particulars of Claim or for Summary Judgment against Dr Colman in claim number HQ06X01026.
iv) The application of the Defendant dated 26th October 2006 to strike out Dr Colman's Particulars of Claim or for Summary Judgment against Dr Colman in claim 6NR04863.
The Defendants in claim number HQ06X01026
She was emailed by the Defendant's solicitors in these terms "as you are aware, the Defendants put before the court skeleton arguments in support of their applications. The Judge indicated as an indulgence he may be prepared to consider further written submissions, to be received by the court within seven days of today (19th December)." Dr Colman has sent a further skeleton running to thirty two pages. She has also chosen to send two further witness statements by her one running to seventy six pages and the other running to fifty nine pages. In addition she has sent two lever arch files of documents running to five hundred and fifteen pages. It was not the intention that she should be allowed to submit further evidence. The position is unsatisfactory because the Defendants have not had an opportunity of considering the further evidence or of responding to it.
Claim number HQ06X01026
The GMC's powers and functions
Pre-registration training of Dr Colman
Dr Colman's erasure from the register
A. Being registered under the Medical Act:-
i) During the latter part of 1984 and in January 1985 whilst employed as a house officer at the James Paget Hospital, at Great Yarmouth repeatedly uttered remarks in the presence of nursing staff depreciating the character and professional abilities of Dr (A) a doctor at the hospital.
ii) Failed to attend a patient (Mr Y), who had suffered a cardiac arrest, as a matter of urgency;
iii) At King's Mill Hospital, Mansfield on 18th May 1985 refused to attend a patient (Mrs X), who was experiencing chest pains and extreme difficulty in breathing and in refusing to attend spoke in an inappropriate threatening manner to a staff nurse;
iv) At King's Mill Hospital on 5th June 1985 used offensive and abusive language towards a member of the nursing staff
B) Being convicted on 14th June 1985 on one charge of driving whilst unfit to drive through drink or drugs;
C) Being convicted on 21st October 1985 on a charge of failing to provide a specimen of breath;
D) Being convicted on 28th February 1986 on a charge of driving whilst disqualified.
Restoration to the Register
Q. This Council is not greatly in the business of punishing people but it is in the business of protecting the public
A. Yes I know sir
Q. If the circumstances surrounding this case had been fully known at the time of the original hearing there is no doubt in my mind that the matter would be in the hands of the Health Committee, where it ought to have been.
A. Yes sir
Q. But equally this Committee has, at this point, absolutely no authority to do anything but one thing, or at least one choice: it has either to restore Dr Colman Archer to the Register on the terms which she was on it before without any kind of imposition or conditions, or else to say "no, we do not restore her" and in reaching that decision clearly the Committee must be influenced by the question of the safety of the public.
Dr Curson in answer a little later indicated that in his view if she continued to take the medication she would not represent a danger to the public
" David Bolt's statement was as a result of Dr David Curson's evidence and is crucial to the understanding of what happened to me whilst a council member. Dr Curson had decided to diagnose me as suffering from episodic dyscontrol (a misdiagnosis and incorrect – confirmed by Dr Peter Fenwick in 2001). The further damage was done then and that damage was carried over through the intervening years, when I found employment impossible to get. After I was elected in 2000 and then the GMC decided to drag out the transcript with Dr Curson's evidence, and crucially after I had given Donald Irvine a copy of the attendance note in January 2001, use it at every opportunity in a whispering campaign to frustrate my election position. The position with Dr Curson in 1989, and which I was forced to submit to in order to have my registration back, was that I would admit I had been secretive and not let the GMC have access to my doctors in 1987. However at that time there is evidence that there was nothing to suggest that I suffered from anything serious and akin to a psychosis and was only suffering from a reactive depression in December 1986, which is unsurprising under the circumstances. When I told doctors, which included Dr Curson that, the problem was that Robert Gray said I was a psychopath who would be erased the reaction was under those circumstances I had to prove that I was not a psychopath, rather than anyone challenge the GMC about Gray, and to that end I would have to accept an alternative diagnosis, admit blame and take the medication. By 1998 I had become seriously ill with a severe leucopoenia as a side effect of Dr Curson's medication which also acted as a "chemical cosh". I therefore stopped it immediately and brightened up and began to have serious misgivings to what had really happened. I was tricked and also bullied by Dr Curson especially, into something which was beyond my control, in order to maintain the veil of secrecy concerning the GMC's practises which were known to the MPS and Le Brasseur.
Regardless of what Dr Curson and others had done then, the accepted position, in a public hearing and was that I should have gone before the Health Committee, and that remained in position until at least late 2001. If that is the case, which had to be accepted then, then as the Health Committee cannot find for serious professional misconduct I do bear an erroneous finding of serious professional misconduct against my name and the ignominy and shame which that continues to place on me as a professional person who cannot get work because of it. It has only now become more obvious to me this summer and as a result of a meeting with the MPS and Gary Allison that at that point and in spite of being restored the proper step thereafter, which the MPS ought to have suggested, would have been to have challenged the original finding against me in light of Mr Bolt's public statement. Restoration to the register had no real meaning as under the circumstances and the publicity surrounding the hearing in 1987, which was orchestrated by the GMC, it meant that even when armed with my registration certificate I could not find employment long term."
Dr Colman's application for full registration 1989/1990
"thank you for your letter about Dr Colman Archer of March 23rd. We are most grateful for your advice here at Cambridge, where our Joint Pre-Registration Committee, representing the University and NHS have had a careful discussion. On their advice I shall sign a form FR1A for this applicant, and forward it to the Society of Apothecaries."
Professor Sherwood signed the relevant Certificate of Experience on 29th March 1990.
Election to the GMC
Dr Colman's co-option onto the PCC
The independent external review
i)  EWHC 634 (Admin). This was an application for Judicial Review against the GMC challenging the lawfulness of the GMC's decision not to empanel her for PCC cases following what had occurred during the hearing of Dr Robson's case. Permission to seek Judicial Review was refused by Elias J on 3rd March 2004.
ii) HQ02X02372. This was an action in the Queen's Bench Division started in 2002. It was struck out by McCombe J on 2nd November 2004. Rix LJ refused Dr Colman (who was now acting in person) permission to appeal on 11th March 2005.
The present proceedings
"the Claimant claims damages (including aggravated damages against the eleventh Defendant) for conspiracy to injure, unlawful interference and breach of contract in respect of the Complainant's membership of the GMC and her practice and status as a Doctor."
i) Dr Harris, Professor Sherwood, Lord Walton and Mr Gray conspired together "to have Dr Colman wrongfully and unfairly erased from the Medical Register" in 1987 (paragraph 3.1)
ii) Adverse statements were published about Dr Colman which were designed to prevent her election to the GMC in 2000 and destroy her standing if elected (3.3)
iii) After her election there was a deliberate campaign to destroy Dr Colman's career at the GMC and elsewhere (3.4)
iv) The GMC failed to provide any or any adequate training to Dr Colman to equip her with appropriate skills to participate in the hearings conducted by the PCC (4.2)
v) In accepting the findings of the Staple report and in deciding not to empanel her to sit on the PCC the GMC overrode Dr Colman's mandate to serve on the PCC and the GMC (4.4)
Schedule A to the Particulars of Claim purports to set out the individual Defendants involvement in the matters complained of. It is alleged that the GMC is a party to and/or complicit in those matters. Schedule B is a flow chart which purports to explain the connections between the Defendants and various third parties. Schedule C purports to be an interim medical report. It refers to stress because of some event or events on 2nd December 2005. Following a request for clarification of the Claimant's claim against the fifth and sixth Defendants there was served a sixteen page document. That largely quotes from the material served in schedule A and additionally provides a commentary on the extracts. On 31st August 2006 Dr Colman served all the Defendants what purported to be further particulars of her claim.
Power to strike out or to grant summary judgment
a) The statement of case discloses no reasonable grounds for bringing a claim;
b) The statement of case is an abuse of the courts process; or
c) There has been failure to comply with a rule, practice direction or court order.
"the court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if:-
(a) It considers that:-
(i) The claimant has no real prospect of succeeding on the claim or issue; or
(ii) The Defendant has no real prospect of successfully defending the claim or issue and
(b) There is no other compelling reason why the case or issue should be disposed of at a trial".
"it is important that the judge in appropriate cases should make use of the powers contained in part 24. In doing so he or she gives effect to the overriding objectives contained in part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and, I would add, generally it is in the interests of justice. If a claimant has a case which is bound to fail then it is in the claimant's interest to know as soon as possible that is the position."
Grounds for strike out and/or summary judgment
i) The facts pleaded do not give rise to the alleged causes of action. There has been a failure to particularise in any proper or comprehensible way.
ii) The claims arising from matters more than six years before the issue of the Claim Form are statute barred.
iii) In relation to the claims against the GMC and GMC Defendants they are an abuse of process because they are either the same as those previously litigated and determined in earlier proceedings between her and the GMC, or they could and should have been raised in those earlier proceedings.
iv) In any event, none of Dr Colman's claims has any real prospect of success against any Defendant.
Defective pleadings – no proper cause of action
Conspiracy to injure
i) A combination of two or more persons wilfully to injure a man in his trade is unlawful and, if it results in damage to him is actionable.
ii) If the real purpose of the combination is, not to injure another, but to forward or defend the trade of those who enter into it, then no wrong is committed and no action will lie even though damage to another ensues.
i) A combination or agreement between two or more defendants or a defendant and a third party
ii) The predominant purpose of the participants in the conspiracy being to injure Dr Colman and
iii) Loss or damage as a result.
"regarded as a civil tort, however, conspiracy is a highly anomalous cause of action. The gist of the cause of action is damage to the plaintiff; so as long as it remains unexecuted the agreement, which alone constitutes the crime of conspiracy, causes no damage; it is only acts done in execution of the agreement that are capable of doing that. So the tort, unlike the crime, consists not of an agreement but of concerted action taken pursuant to agreement."
i) To identify the Defendants who are said to have conspired against her (see paras 3.3. and 3.4). Schedule A does not assist in this regard;
ii) To identify how and when some alleged agreement or combination was entered into by the participating Defendants or how the participating Defendants are alleged to have acted in concert together with a common intention (paras 3.1, 3.3 and 3.4);
iii) To plead any facts to support an allegation that the participating Defendants predominant purpose was to harm Dr Colman (paras 3.1, 3.3 and 3.4);
iv) To identify what economic damage is said to have been suffered by Dr Colman. For example in para 3.2 in relation to the erasure complaint, Dr Colman alleges that she suffered damage to her "personal and professional ability"; such damage is not recoverable. In para 3.3, which concerns the election complaint, Dr Colman does not identify any damage at all (and it is hard to understand what economic damage can have been suffered given the successful outcome of the election).
None of these deficiencies have been addressed in Dr Colman's "particularisation" documents or Replies to Defences. These documents do no more than simply set out a chronology.
"Dr Colman has failed to particularise her claim in any comprehensible way. It is not clear how she alleges that she has been conspired against, when and by whom. Schedule A headed "chronological schedule of issues" merely gives the name of a defendant (s) together with the date and a brief description of the document. Neither the Particulars nor the schedule identify any facts which would support an allegation that two or more defendants acted in combination with each other for the predominant purpose of injuring Dr Colman in her trade or business. None of these deficiencies have been cured or even addressed in the "Particularisation" documents served on 6th August 2006. Dr Colman's reference to a "conspiracy of silence" as between Dr Diggory and Mr Scott does not disclose a properly arguable case. There is no basis for any suggestion that Dr Diggory and Mr Scott or the GMC combined against or made a bargain to injure Dr Colman. Indeed Dr Colman's main complaint appears to be that Dr Diggory's recollection of the criminal proceedings which followed the road traffic accident in which she was involved was incorrect".
i) The use by a defendant of unlawful means
ii) With the intention (but not necessarily the predominant intention) of causing damage to a claimant and
iii) Consequential economic loss.
i) To identify the Defendant (s) who is/are alleged to have used unlawful means with the object and effect of causing damage to Dr Colman (see para 3.4). Schedule A does not assist in this regard;
ii) To identify the unlawful means alleged to have been used (see paras 3.4, 4.2 and 4.4). For example the particulars do not explain whether "ill disposition" and a "lack of support and respect" or a "failure to provide training" are alleged to constitute unlawful means, and if so, how;
iii) To identify any facts which support an allegation that one or more Defendants intended to inflict harm on Dr Colman as an end in itself or as a means to another end (see paras 3.4, 4.2 and 4.4);
iv) To identify what economic damage has been suffered by Dr Colman. For example, it is not clear what economic loss could have been suffered by any failure by the GMC to provide training to Dr Colman for PCC work.
Breach of contract/Rights
i) The contract alleged to have existed between Dr Colman and the GMC (or any other Defendant);
ii) The offer and acceptance constituting the supposed contract;
iii) The nature or scope of the particular contractual terms relied on. For example in paragraph 4.2 Dr Colman fails to explain whether it was the GMC's contractual obligation to provide training for the PCC and, if so, the basis of this obligation. Likewise in paragraph 4.4 the particulars fail to explain the existence and basis of any obligation by the GMC to permit Dr Colman to serve on the PCC;
iv) The nature of the alleged breaches of those terms;
v) The loss or damage suffered by Dr Colman as a result of those breaches.
Claims statute barred under the Limitation Act
(1) Subject to sub-sections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either:-
a) The action is based upon the fraud of the defendant; or
b) Any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
c) The action is for relief from the consequences of a mistake;
The period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.
References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent.
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.
I conclude that Dr Colman does not have a realistic prospect of avoiding a finding that her claims against the seventh and eighth Defendants are statute barred.
It is not contended on behalf of Defendants five and six that the claims against them are statute barred.
Abuse of process. Issue estoppel and the rule in Henderson v Henderson.
"The rule in Henderson v Henderson 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject of course to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in the narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that the litigation should not drag on for ever and that the defendant should not be oppressed by successive suits when one would do. That is the abuse against which the rule is directed."
Dr Colman's previous proceedings against the GMC
i) Protection of Harassment Act 1997
ii) The Data Protection Act 1998
iii) The Public Interest Disclosure Act 1998
iv) The Disability Discrimination Act 1995.
Her claims were alleged to have arisen inter alia as a result of the GMC's handling of her election, its treatment of her and her complaints subsequent to the election, the GMC's communications with Dr Diggory, the revocation of her co-option to the PCC following the Robson hearing, and the GMC's treatment of her subject access requests.
i) Breach of the Protection from Harassment Act 1997
ii) Breach of the Data Protection Act 1998
iv) Breach of the Medical Act 1983
v) Breach of the Human Rights Act 1998.
"The proceedings which Dr Colman has brought out of this background reflect her long standing and anxious concern that in all these events following her restoration to registration and her election to the GMC, and one might therefore be entitled to say her complete rehabilitation, she has been treated in a way which disparaged her reputation and her ability to pursue her profession, and that a leading part in this misfortune (for which no doubt Dr Colman would have a stronger word) was played by the decision to commission the independent report of Mr Staple and the terms of that report itself. Plainly Dr Colman sought by these proceedings, not only entirely to rehabilitate her name, but also to claim compensation for what she alleged were the wrongs which had been done to her under, as I have mentioned, those five separate heads of claims."
Comparison with these proceedings
'10. Although the earlier proceedings were principally for a breach of Data Protection Act and Protection from Harassment Act, the part which deals with Harassment was not proceeded with and therefore has never been tried or considered in any Strike out action. In the case of an Harassment an employer is liable for acts of harassment by its employees, and therefore the Eleventh Defendant would be liable for those of the other defendants, notably the First Defendant harassing the Claimant. Majrowski 2006 HL.
11. The issues pleaded in this claim could not have been raised in the earlier claim because the earlier claim was issued on 22 July 2002 and relied upon the evidence discovered as a result of the First subject access order which was not complied with and the patchy data which the Eleventh Defendant was obliged to send to the Claimant as a result of her second subject access order and the Information Commissioner's ruling on 29th May 2002. Moreover the events of the 1980s were not claimed for in this claim but were mentioned briefly by way of an introduction. There were no screening papers at all available at the time. The only Cambridge papers were a few letters which had passed between the Claimant's solicitor and the Clinical School and those letters which the Claimant had also written. Although the Claimant tried to amend her claim and it was set down to be heard the Eleventh Defendant managed to get the court not to hear the amendment when it was due to be heard. Thereafter junior counsel re-amended the original claim and disregarded the amended claim made by the Claimant which set down in some details the particulars, and did this against the Claimant's wishes. Even if any of the documents were to be excluded that would not undermine the present claim. In any event there has never really been a trial of the previous claim and so the documents have never really been considered and it would be unfair to never allow the Claimant to bring her action when the evidence remains untested and unanswered.'
"This is an action between Dr Jennifer Colman ("Dr Colman") and the General Medical Council ("the GMC"). There are two applications before the court. First there is an application, originally issued on 20 December 2002 by the GMC asking for an order that the Particulars of Claim filed by Dr Colman in the action be struck out. Secondly, there is an application by Dr Colman for permission to file and serve Amended Particulars of Claim. It has been common ground before me that, for the purposes of the applications, I should treat the proposed amended Particulars of Claim as though already filed and served, and treat the GMC's application as an application to strike out the amended pleading or, further or alternatively, as an opposition to the proposed amendment. It is accepted, adopting that approach, if the GMC is successful I should refuse permission to amend and strike out the action. Conversely, if Dr Colman is successful, either wholly or in part, I should grant permission to amend the Particulars of Claim wholly or in part as the case may be, and should dismiss the GMC's application."
No real prospect of success
The GMC Defendants
Erasure from the Register
The fifth and sixth Defendants
i) Adverse statements were published about Dr Colman which were designed to prevent her election to the GMC in 2000 and destroy her standing if elected (3.3)
ii) After her election there was a deliberate campaign to destroy Dr Colman's career at the GMC and elsewhere (3.4).
a) In letters of 15th March, 4th April, 23rd May and 27th July 200, and 13th February 2001, the GMC defended Dr Colman's right to stand for election and explained that the rules governing GMC elections permitted all doctors to stand including a doctor who had been guilty of an offence in the past but who had since been restored to the Register.
b) Dr Diggory appeared frustrated by the GMC's activity: - see, for example, his letters of 10th April 2000, 6th May 2000, 15th February 2001 and 21st January 2002.
c) Dr Diggory criticised the GMC's failure to change the rules in an open letter to the editor of the British Medical Journal.
d) Dr Diggory sought the assistance of his MP (first, Peter Brooke and then Mark Field) to put pressure on the GMC to change the electoral rules.
e) Dr Diggory told the former head of the Serious Fraud Office, George Staple QC, that "his problem was not with Dr Colman. Personally, he did not think that she should be on the Council. His real problem, however, was with the GMC. He was ashamed of his profession and the way it had behaved…he found the whole way the GMC had behaved rather extraordinary."
f) Fiona Wemyss of the GMC was critical of Dr Diggory's correspondence when interviewed by George Staple QC.
g) George Staple QC's conclusions. In looking at the merits I have to ignore these.
Dr Diggory in paragraphs nine and twelve of his witness statement says "in my letter of 14th February 2001 I recorded my impression (which I am sure was correct) that the GMC was getting rather exasperated and fed up with my letters, which is somewhat at odds with the suggestion that I was conspiring with the GMC to cause loss to Dr Colman …. As to the suggestion that I have conspired with, amongst others, the GMC to cause loss, I had the clear impression at the time the GMC was resentful of my intrusion and would have been quite happy to see the back of me".
Seventh and eighth Defendants
These claims are wholly without merit.
Claim number 6NR04863
"This is a claim for unpaid fees and allowances and services for work done by Dr Colman sitting as an elected member of the Council for the period of 1st April 2002 to 8th February 2003."
The value of the claim is stated to be £88,950 plus interest. Attached to the Claim Form are invoices, all of which are dated 6th March 2006, and which purport to relate to work done "in preparation and consideration" for the independent external review in the period 1st April 2002 to 8th February 2003. The invoices are said to total £64,000 but in fact total £59,500. The remainder of the sum claimed, £24,950 is said to relate to "incidental costs." No invoices or evidence have been provided in respect of this aspect of the claim.
i) Dr Colman has failed to establish any entitlement to be paid the sum sought and in fact has no entitlement. Therefore, there are no reasonable grounds for bringing the claim and the claim has no real prospect of success;
ii) The claim is an abuse of the courts process because it could and should have been raised in earlier proceedings, and was brought for a collateral purpose, namely to avoid Dr Colman's costs liabilities.
The GMC's powers to pay its members
"There shall be paid to the members of the General Council such fees and such travelling, subsistence or other allowances as the General Council may allow"
It is therefore apparent that the GMC had a discretion whether to make any payments to its members, and if so, what payments to make.
These documents explain that members were entitled to a daily attendance allowance of £250.00 for each day of (physical) attendance on GMC business, and certain types of expenses including travel and accommodation. In order to claim such payments, members were required to provide itemised receipts for all expenditure and to submit expense claims within 60 days of incurring the expenditure. Members were required to obtain "prior agreement" for incurring exceptional or unusual costs.
No reasonable grounds for bringing the claim/no real prospects of success
In it she says she says she is seeking to set aside the order of 2nd November 2006 whereby the proceedings were transferred from Norwich to the Royal Courts of Justice. In my judgment there were good reasons for the transfer.
Secondly she says the claim cannot be struck out because the police are investigating Dr Diggory about his activities against her. This, if correct, has no relevance to this claim.
She says that George Staple is to be a witness for her in this claim.
Abuse of process
Extended civil restraint order
i) The determination by the Administrative Court of Dr Colman's application for permission to apply for a Judicial Review in C0/1834/2006 and
ii) Determination by the Court of Appeal of Dr Colman's application to re-open the decision of Rix LJ of 11th March 2005 to refuse permission to appeal against the Order of McCombe J of 2nd November 2004.