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Neutral Citation Number: [2009] EWHC 3699 (Admin)
CO/5282/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Monday, 23 November 2009
B e f o r e:
SIR THAYNE FORBES
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between:
THE QUEEN ON THE APPLICATION OF HICKEY
Claimant
v
GENERAL MEDICAL COUNCIL
Defendant
Computer Aided Transcript of the Stenograph Notes of
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MR E FITZGERALD QC and MR STEPEHEN CRAGG (instructed by DR JENNIFER COLMAN) appeared on behalf of the Claimant
MR M BELOFF QC (instructed by FIELD FISHER WATERHOUSE LLP) appeared on behalf of the Defendant
J U D G M E N T
(As approved)
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1. THE DEPUTY JUDGE: This is a renewed application for permission to apply for judicial review relating to decisions of the General Medical Council in February 1990, which resulted in the applicant’s erasure from the register. Since I propose to grant permission to apply, I do not intend to give a detailed judgment but merely note that I have heard detailed submissions on behalf of the parties by Mr Fitzgerald QC on behalf of the applicant and Mr Beloff QC on behalf of the GMC. I take those submissions fully into account but remind myself that the essential question I have to decide today is whether the present case is arguable, and if yes, whether I should nevertheless refuse permission because of the delay in bringing these proceedings.
2. Permission to apply was originally refused on the papers by Mr James Goudie QC, sitting as a Deputy High Court Judge, and when refusing permission he made the following observations:
"The claim, relating to a decision on 7 February 1990, is out of time. I decline to extend time. I would have done so if the application had been made shortly after 10 March 2003, however, the delay since then has been attributable to the claimant and is not justified. The more time that had already passed, the more important it was not to delay further".
3. The reason Mr Goudie chose March 2003 as the critical date for the running of time was that it was in March 2003 that Dr Hickey became aware of the existence of certain documents, including what appeared to be a draft determination in his case. The documents come to his notice as a result of an application that he made under the Freedom of Information Act. Importantly, however, at that date he was not aware, so it would seem from all the evidence, that the person who had prepared the pre determination and another document described as a screening document, was a Mr Howes, a member of the relevant GMC committee's administrative staff.
4. The importance of these documents was that they raised a possible issue of pre determination. However, Dr Hickey took no further action at that stage. It was not until March 2009 that that he became aware that, not only had Mr Howes been responsible for the screening document and the pre determination, but that it was very likely that he had retired with the Disciplinary Committee and been present during their deliberations.
5. The significance of Dr Hickey having become aware of the latter circumstance is very apparent from the decision of the Court of Appeal in the very similar case involving Dr Colman, a case in which after three unsuccessful attempts to obtain permission, Dr Colman finally succeeded in obtaining permission to apply for judicial review in circumstances which can be said in general terms to be very similar to those relating to Dr Hickey. So that it can be understood what I mean by that, it is relevant to quote the following from the judgment of Thomas LJ, with whom Smith LJ agreed:
"It seems to me, on the basis of those documents, there is evidence to suggest that Mr Gray played some role in assembling the case against the applicant. It also seems from those documents that he had views about her."
6. The documentation to which Thomas LJ was there referring was very similar in nature to the ones to which I have earlier referred as having been prepared by Mr Howes in Dr Hickey’s case. Mr Gray, it would appear, played a very similar role to that played by Mr Howes. I continue with the quotation:
"It also seems from those documents that he had views about her. It also seems from those documents that he had views about how the evidence was to be presented, bearing in mind his experience of being with a disciplinary committee, as his second document makes clear.
9) It is in view of these documents, which only were highlighted on the last occasion, and in the light of Mr Fitzgerald's oral submissions, that we thought we ought to adjourn this matter to enable the GMC to be able to provide us with some further information about the role that Mr Gray played in relation to the preparation of the case. If Mr Gray had been involved in the active preparation of the case, that put the preparation by him of the draft determination, the draft findings of fact, and his retirement with the committee, in a completely different light.
10) Unfortunately, the order of the court to that effect was not as clear as it might have been. However, on 19 May 2009, in the supplementary skeleton produced by Mr Fitzgerald QC, it was made quite clear so there could have been no real doubt that Mr Fitzgerald advanced the case before us that the gravamen of concern in relation to Mr Gray's role was that he was part of the prosecution of the applicant yet had retired with the committee that had to decide on her guilt."
7. It is exactly that proposition that Mr Fitzgerald QC advances on behalf of the applicant, Dr Hickey, in the present case. I continue with the quotation:
"Unfortunately, this clear contention was not appreciated by those instructed on behalf of the GMC, and in the skeleton argument put forward before us the point was not addressed. No further statement had been taken from Mr Gray, no further investigation had been made into his role, the only authority drawn to our attention was the decision in Whitefield v GMC [2003] IRLR 39 which dealt with the position of a member of the administrative staff retiring and not the position of the retirement with the committee of someone who had been involved in the preparation of the case for the prosecution."
8. It is perfectly true that, since the Court of Appeal considered the case of Dr Colman, the GMC has actually taken steps to deal with the absence of information to which Thomas LJ referred in paragraph 10 of his judgment. Mr Beloff relied heavily upon the existence of statements from various witnesses, including Mr Gray and Mr Howes, to the effect that each was present during the committee’s deliberations for purely administrative purposes and that neither played any part whatsoever in the committee’s decision making. Mr Beloff therefore sought to persuade me that the outcome of the appeal might have been very different if this further evidence had been before the Court of Appeal. However, in my view, the matters upon which Mr Beloff relied in this regard are essentially matters for appropriate consideration at the substantive hearing and are not such as render this application unarguable.
9. As it seems to me, the important point in this application is, as indicated earlier, the question of delay. There is no doubt that there has been very significant delay in this case, as indeed there was in the case of Dr Colman. But I am satisfied that it was only by March 2009 that it became clear to Dr Hickey that Mr Howes had not only been involved in the preparation of the prosecution against him, in much the same way as Mr Gray had been in the case of Dr Colman, but that he had retired or remained in retirement with the disciplinary committee during their deliberations. This much is clear from the contents of his witness statement dated 16 October 2009, in particular paragraph 13. Whilst it is true that in an earlier witness statement, Dr Hickey had indicated that the committee, together with the appellant and various other persons supporting the committee, had remained in the hearing room after he and his advisers left it, it does not follow that he was therefore aware that Mr Howes had remained with the Disciplinary Committee throughout their deliberations.
10. In my view, this is a case, similar to that of Dr Colman, where there is an arguable case of apparent bias for the same reason as that recognised in the passages from Thomas LJ's judgment to which I earlier referred. It is true that from March 2009, almost 3 months elapsed before the issue of proceedings in this matter on 1 June 2009. It is also true that the provisions of the CPR relating to judicial review provide that the proceedings are to be issued by no later than 3 months from the date of the decision under challenge and, in any event, must be issued promptly. In this case, I am persuaded that the apparent lack of promptness between March 2009 and 1 June 2009 is adequately and properly explained by the matters put forward by Mr Fitzgerald on behalf of Dr Hickey, namely, that he issued or sent a pre action protocol letter promptly after becoming aware of the emergence of this particular point. Included in that letter was a request for information relating to whether Mr Howes had remained with the committee during their deliberations. That particular question was not answered in the reply that was sent by solicitors acting on behalf of the GMC in April 2009. So it was that, relatively promptly after that, the decision was taken to issue proceedings without any further delay on the assumed basis that what was by then understood to be normal practice did in fact apply in this case as well.
11. In my view, particularly having regard to the overall seriousness of the matter, that action was taken with sufficient promptness so as to make it appropriate to grant permission in this case, or put another way, there is not such a lack of promptness as to make it appropriate to refuse permission by reason of delay.
12. Before closing this short judgment, I should say that Mr Beloff also advanced other arguments to me on the basis that relief in these proceedings, and indeed the grant of permission, is a matter of discretion. He submitted that, in all the circumstances, this is a case where the court should exercise its discretion either against granting permission or, in any event, against granting relief for the following two main reasons: (i) in the light of the recent witness statement, it is now known that Mr Howes and Mr Gray only ever acted in a purely administrative capacity and played no part in the deliberations and (ii) in this case, Dr Hickey has admitted many of the matters which were the subject of the charges laid against him. As to the first point, as I have already indicated, it seems to me that this is a matter that for consideration in due course in the substantive application. As to the second point, it does not seem to me to get the GMC very far, certainly for the purposes of this application, because, as Mr Fitzgerald observed, an essential part of the way in which the defence was conducted on behalf of Dr Hickey was that, to the extent he did admit various matters alleged against him, it was strenuously argued that these did not amount to irresponsible behaviour on his behalf such as to justify a finding of professional misconduct. To a significant extent his defence was, therefore one of confession and avoidance. In those circumstances, as it seems to me, it cannot be assumed that, were this claim to succeed and the matter be remitted for further consideration by the GMC, it can be assumed that the outcome will be the same or that, put another way, no injustice will have been done by reason of these proceedings not being re opened, notwithstanding the existence of an arguable case that there was apparent bias on the part of the decision making body.
13. Therefore, for all those reasons, I have come to the firm conclusion that this is an arguable case and that permission should be granted, notwithstanding the long delay since the decision under challenge was made. Accordingly, I so order.