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Cite as: [2002] EWHC 436 (Admin)

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Neutral Citation Number: [2002] EWHC 436 (Admin)
NO: C0/2558/01

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


Royal Courts of Justice
Strand
London WC2

Thursday, 31st January 2002

B e f o r e :

MR JUSTICE TURNER
____________________

THE QUEEN ON THE APPLICATION OF CREAM
-v-
GENERAL MEDICAL COUNCIL

____________________

Computer-Aided Transcript of the stenograph notes of
Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)

____________________

MR R FRANCIS QC (instructed by Hempsons, 9 Victoria Avenue, Harrogate HG1 1DY) appeared on behalf of the Claimant
MISS J COLLIER (instructed by Field, Fisher Waterhouse, 31 Vine Street, London EC3M 2AA) appeared on behalf of the Defendant

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Thursday, 31st January 2001
  1. MR JUSTICE TURNER: This is an application for judicial review by way of a quashing order of the decision of the Professional Conduct Committee (PCC) of the defendant body which was announced on 30th March 2001 at the conclusion of a hearing which had lasted four days. The decision was that the claimant had been guilty of serious professional misconduct in respect of which he was ordered to be subject to reprimand. Because the decision did not affect the claimant's registration, the challenge to the Committee's decision can only be brought by way of judicial review and not by way of appeal to the Privy Council; see section 40 of the Medical Act 1983.
  2. The Nature of the Complaint
  3. The proceedings before the PCC arose out of a charge brought against the claimant in respect of his conduct as a member of an appointments panel which was due to consider applications for the appointment of a consultant dermatologist at Ealing and Hammersmith NHS Trust. The post was a new one to which the claimant and others were opposed in principle. The claimant is, and has at all material times been, a consultant dermatologist at the Chelsea and Westminster. Among the membership of the Committee was one Dr Chu who was a representative of both Imperial College and the Hammersmith Hospital. Information was passed to the claimant by a medical colleague, Professor Dowd (who was at the same time, and for essentially the same reasons, adjudged to have been guilty of serious professional misconduct) and who at all times had requested anonymity, to the effect that Dr Chu had received charitable funds from a family trust to support his research work. One of the applicants for the consultant post was married into the family which was supporting the Trust.
  4. It has to be said at this early stage of the judgment that there was no truth in the suggestion of improper conduct by the Trust, Dr Chu or the candidate for the post.
  5. In the notice of the inquiry into a charge to be held in respect of the information received by the GMC, where material, the following was alleged:
  6. (a) At the material time the claimant was a consultant at various hospitals;
    (b) In 1998, a new consultant post was advertised at Ealing and Hammersmith Hospitals Trusts;
    (c) The claimant was a co-signatory of a letter requesting that the appointments procedure be suspended and that he had subsequently sent a letter expressing concerns about the nature of the (proposed) appointment;
    (d) The claimant was invited to sit (as a member of) the appointments' committee;
    (e) In about October 1998, he received the following information from Professor Dowd, namely:
    i) That one of the candidates for the post was closely related to a benefactor of the Hammersmith Hospital,
    ii) That one of the members of the appointments' committee, Dr Chu, had received research funds from the benefactor's trusts, and
    iii) The trust was likely to continue to act as a benefactor to the Ealing and/or Hammersmith Hospitals;
    (f) On 10 November he drew the information to the attention of the appointments' committee shortly before they were to interview for the post;
    (g) He took insufficient steps to ascertain the truth of the information in (e)(i) to (iii) above;
    (h) The conduct alleged in (f) and (g) above was inappropriate;
    (i) He failed to withdraw the allegation or to apologise for having raised it after having been invited so to do.

    Such facts amounted to serious professional misconduct.

  7. In their findings the PCC noted that the claimant had expressed concerns about the (creation of) the post. The PCC continued:
  8. "In October 1998, prior to interviews, Professor Dowd informed you that she had been told that Dr Chu had received funds from a family trust, which was a benefactor of Hammersmith Hospital, and that one of the candidates ... was related to a trustee of that family trust. Professor Dowd did not disclose to you the source of this information. Between 20 October and 10 November 1998, the day of the interviews, you took insufficient steps to verify this information.
    During the morning of 10 November, Professor Dowd provided you with photocopies of two pages taken from Dr Chu's diary as proof of the allegation against Dr Chu. The entries in the diary actually related to another trust with a similar name. When handed the information you have stated in evidence [that] you were unsure if it was the same trust to which Dr Acland was related by marriage, or another which soon after, transpired to be the case. When the interviews were about to commence, despite having no other evidence to support the allegations, you conveyed [them] to some members of the selection panel, and the allegations were put to Dr Chu, who denied them. By disclosing the allegations in this way and at this time, you caused distress and potentially serious professional damage to Dr Chu. This was highly irresponsible. The Committee do not accept that you acted merely as a messenger, passing allegations made by Professor Dowd, and consider that to claim this, is to deny your responsibilities. An individual who repeats such serious allegations, without a proper check as to their veracity, is just as culpable as the originator. The Committee are of the view that because of your misgivings about the post, your judgment was affected and you did not act as would a responsible member of your profession. As the Chair of the appointment panel stated in evidence, you appeared as a 'driven man' and it is our view that this clouded your judgment.
    ... You failed to withdraw the allegation and to apologise ... You failed to do this and even at the hearing, you have not until the final day, expressed any remorse for your actions maintaining that you have never been accountable.
    Although good medical practice indicates that a doctor must act when he ... has concerns about a colleague's conduct, it also states that before taking action, a doctor should do his best to find out the facts, which you clearly failed to do. The guidance further states that a doctor should deal fairly with other colleagues. By your actions you did not treat either Dr Chu or Dr Acland fairly.
    ... The Committee accept that you did not act maliciously."
    The Grounds of Challenge
  9. The principal ground was that the PCC's conclusion that the claimant had been guilty of serious professional misconduct was irrational, alternatively one which no reasonable Committee would have reached. Although it was kept open that the current proceedings enabled the claimant to pursue a merits based appeal, the case proceeded as a conventional application for judicial review. It is of interest to note that if the claimant had been able to appeal to the Privy Council, the jurisdiction of that body was described by Lord Millet as follows:
  10. "Their Lordships wish to emphasise that their powers are not as limited as may be suggested by some of the observations which have been made in the past. In Evans v General Medical Council (unreported...) the Board said:
    'The principles upon which this Board acts in reviewing sentences passed by the (PCCC) are well settled. It has been said time and again that a disciplinary committee are the best people for weighing the seriousness of professional misconduct, and that the Board will be very slow to interfere with the exercise of the discretion of such a committee
    ... The (PCCC) are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are particularly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have the advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards.'
    For these reasons the Board will accord an appropriate measure of respect to the judgment of the (PCC) whether the practitioner's failings amount to serious professional misconduct and on the measure necessary to maintain proper professional standards and provide adequate protection to the public. But the Board will not defer to the (PCC's) judgment more than is warranted by the circumstances. The (PCC) conceded, and their Lordships accept, that it is open to them to consider whether the sanction of erasure was appropriate and necessary; and in the latter event either to substitute some other penalty or to remit the case to the (PCC) for reconsideration."
  11. Since the PCC sat with a minority of medical members, it cannot be taken as a given that its medical and professional expertise is not susceptible to judicial review.
  12. The criticisms explicitly made against the claimant in the ruling by the PCC can be conveniently extracted and summarised. 1. Finding of inadequate steps to verify information passed on. 2. Obligation to treat colleagues fairly. 3. Inappropriate communication of information. 4. Misgivings about the post. 5. Failure to withdraw or apologise. 6. Serious professional misconduct.
  13. (1) Verification of Information. It is helpful to consider the context in which this allegation against the claimant is set. The starting point must be the GMC publication Good Practice Guide (1998) which, insofar as it covers the current circumstances, provides that:
  14. "You must protect patients when you believe that a doctor's or other colleague's health, conduct or performance is a threat to them.
    Before taking action, you should do your best to find out the facts. Then, if necessary, you must follow your employer's procedures or tell an appropriate person from the employing authority, such as the director of public health, medical director, nursing director, or chief executive, or an officer of your local medical committee, or a regulatory body. Your comments about colleagues must be honest. If you are not sure what to do, ask an experienced colleague or contact the GMC for advice. The safety of patients comes first at all times."

    It will be recalled that the findings of the PCC referred to part only of this advice, namely "before taking action". It was the undisputed evidence given at the inquiry that the claimant had at first resolved to take no action because he considered that the information which had been conveyed to him was no more than gossip or "grapevine ... stuff". Moreover, the information lacked any form of precision. As a reasonable interpretation of the good practice statement, it was not incumbent on a doctor to take any steps to inform himself further as to the facts until he had decided upon "taking action". This makes good sense and must surely be right. Even on a straightforward and uncomplicated understanding of what the statement requires it would obviously be absurd for a doctor who had in fact received no more than an unspecific rumour to take any steps to investigate either its provenance or truth.

  15. On this simple approach, it can also be seen that the PCC made a fundamental error. That it did so is readily to be explained by the manner in which the charge had been laid against the claimant. It failed to recognise that until the claimant had received details of the alleged misfeasance he was under no obligation, whether expressed as a failure to comply with the Good Practice Guide or as a matter of ordinary sense and decency, to reveal to anyone what was no more than gossip. The consequences of any other action on the claimant's part are of such potential for causing untold harm within the profession and its working environment that they have only to be contemplated to be rejected.
  16. Thereafter, when the claimant did receive specific information on the day before the appointments' committee was due to meet, no sensible criticism of the action which he took can fairly be made. This is for the reason that, at least in the spirit, if not to the letter, he complied with the requirements of the guide. He followed the advice which he then received, he communicated with his chief executive and, acting on his advice, on the following day communicated with the chairman of the appointments' committee. He was advised by a professional colleague in the Medical Defence Union that he should not undertake the task of investigating the allegation.
  17. On 10 November, the claimant was provided with photocopied extracts from the diary which proved to have been the source of the allegation. This was at a stage when the meeting was to take place within hours. It is the fact that the key word, on which the whole case rested was indistinctly shown on the actual document which had been produced to the claimant by facsimile transmission. The question was whether the word was "Weston", as had been suggested, rather than "Welton" as came correctly to be accepted as the truth. It was Professor Dowd's evidence that the documents supported the allegation, a source which the claimant believed to be reliable. He was less sure. What is clear is that he did not express those doubts to the chairman of the appointments committee when he communicated the accusation to him.
  18. It is noticeable that no allegation of fact was made against the claimant either in the notice of charge or any finding of fact made by the PCC in relation to any failure of the claimant arising out of anything which he did or did not do on 9 or 10 November, that is to say after he received detailed information which went, some way at least to substantiate the information which he had received some three weeks before. The PCC contented itself with the finding that the claimant "conveyed these allegations to some members of the" committee. Again, the undisputed evidence before the PCC was that the claimant notified the chairman of the committee, a Mr Boorman in the presence of the Chief Executive of Ealing Hospital Trust (Mr Nettel) and others that he had received information of concern regarding the position of Dr Chu. Mr Boorman decided to put the allegations to Dr Chu, who denied them. Mr Boorman and the claimant accepted the denial and the meeting was then convened to consider the appointment. The only reservation from the claimant as to this denial was that he accepted the offer of Dr Chu to provide copies of his audited accounts.
  19. Dr Acland was the successful candidate. The claimant and one other member of the committee had opposed her appointment.
  20. On the following day the claimant reported the events recorded at paragraph 13 above to the MDU, who by one Dr Hoyte advised him to speak to Professor Dowd and provide her name to Mr Nettel. What happened later can be condensed into the statement that matters were taken up by Mr Nettel and subsequently by Professor Wright, Deputy Principal and Vice Principal for Research at Imperial College School of Medicine, who requested that the claimant withdraw the accusation and apologise. Acting on advice from Dr Hoyte, the claimant did neither.
  21. On behalf of the PCC it was submitted that the manner in which the claimant had divulged the information would inevitably damage the professional standing and reputation of Drs Chu and Acland. In so acting, the claimant had been unfair to those two doctors. The claimant's duty had been to disclose the information in a responsible and fair manner. It was not so much the disclosure as the manner of its doing which was objectionable. The submission was that it was the claimant's obligation to have disclosed what he had heard to Professor Wright and told him of his concerns. Furthermore, the claimant had acted incorrectly when he had initially dismissed the matter from his mind and decided to take no action on the information which he had received. He had been under obligation to have reported the matter as soon as it had been brought to his attention.
  22. (2) Fairness towards colleagues. Of course, the revelation of the accusation would inevitably produce a situation of professional embarrassment and discomfort for the two doctors concerned. That may not be thought to be enough since, if there were to be truth in that accusation, it had to be investigated and the very process of its investigation was almost bound to bring the matter to the attention of those who were involved. There is another aspect to the consideration of fairness which appears totally to have been overlooked by the manner of the presentation of the case before the PCC and thus to have impacted on its decision. There were, of course, other candidates for the appointment than just Dr Acland. The fairness concept has to apply to those other candidates in just the same way as it did to the two doctors identified above. It would have been unthinkable that given the information which became available to the claimant on the day of the meeting of the committee he should not have disclosed it to anyone and had just sat on the committee as though nothing untoward had happened. Nothing could have been more potentially unfair to those other candidates and the deliberations of the committee itself.
  23. Where criticism could be made of the claimant is that he did not, when communicating the information to Mr Boorman and others, at the same time indicate that he was uncertain about the identity of the benefactor, even though his informant was not. It will be recalled that he had already, as he should have done, communicated information to the Chief Executive of his own Hospital Trust before he had any reason to doubt the accuracy of that information. Analytically, the claimant was in a position of dilemma. If he remained entirely silent and the information proved to be accurate, he would have been wrong. Alternatively, by doing as he did, he was adjudged by the PCC to have been guilty of serious professional misconduct.
  24. (3) Inappropriate communication of information. On analysis, the communication of inappropriate information came down to the proposition, not that the claimant had communicated at all, or had unduly delayed doing so without making proper enquiries but to the allegation that in what he had said to Mr Cooper, Mr Boorman and others, on 9 and 10 November he had either withheld information which he should have communicated or had said something which he ought not to have done. The claimant was also criticised for passing on the information when he had no personal knowledge as to its truth. If it is the case that he would have been failing in his professional duty to have remained silent.
  25. (4) Misgivings about the post. In truth it is hard to understand the basis upon which the PCC reached its conclusion on this topic. It had, quite properly rejected the notion that the claimant had been motivated by malice. None had been alleged. He had also written on a number of occasions on the same topic. It is to be noted that there was no suggestion by any person or organisation that the claimant was not a fit and proper person to be a member of the committee on account of his known views. It is thus hard, if not impossible, to understand the relevance of the comments made by the PCC that the claimant had allowed his judgment to be clouded because of his misgivings about the post. If his judgment was affected it must have affected his approach to all candidates equally. The observation of the committee in this respect, I find to be incomprehensible.
  26. Finally, so far as this aspect of the case is concerned, it will be recalled that the PCC referred to an observation by the chairman of the committee that at the time of the meeting, the claimant had appeared to be a driven man and commented "you appear to be a 'driven man' and it is our view that this clouded your judgment". The claimant's submission on this point is that the comment quoted above has been taken out of its proper context and misunderstood. Evidence had been given in the course of the proceedings before the PCC by Mr Boorman. It was to the following effect:
  27. "One of the reasons why earlier I said I could give an impression was that [the claimant] was at that moment somebody who was giving all the signs of being under a great deal of pressure. He was, in my phrase, a driven person. I think at one stage he left the room shortly afterwards, and I thought he had gone to make a telephone call. That was an impression that [the claimant] was responding to pressures which were outside [the] room at the time.
    I said it was an impression rather than a fact. I felt that [the claimant] was following a brief to protect his professional standing, and this was the reason that he had brought the matter to us; but there was somebody else who I thought might be an unnamed informant who was an influence at the time. I say very clearly that that was an impression I gained. I used the expression 'like a driven person' because there was a conflict going on that had to be resolved in some way...
    Very much the messenger. I cannot stress this too strongly. This is why I formed the view at the time that he was a driven man. That was my expression. Whether it fits comfortably today or not, he was not somebody who was motivated to do people harm or anything like that, but he was following a code that he felt he ought to follow."
  28. Against this evidence, which was to a large extent confirmatory of the position as had been described by the claimant, the finding made by the PCC can, in my judgment, only properly be described as "perverse". It is known that the claimant had sought the views of his own chief executive as well as the MDU and the BMA before he made any revelations to the committee chairman who seems to have grasped, with an apt degree of perspicacity, just what it was which was causing the claimant to be under some unrevealed stress. There was no purpose in his having consulted his Trust chief executive and professional organisations, if not the GMC, unless he was concerned, as he had told the PCC that he was, what his proper course of action should be.
  29. (5) Apology and withdrawal. These should await the decisions on the other points.
  30. (6) Serious professional misconduct. Help as to the concepts engaged in defining this element of the charge is to be had from the decision of the Privy Council in Roylance v GMC [2000] 1 AC 311. In that case Lord Clyde in giving the advice of the Board said at page 331:
  31. "Serious professional misconduct is presented as a distinct matter from a conviction in the British Islands of a criminal offence, which is dealt with on a separate basis for a direction by the Committee in section 36(1) of the Medical Act 1983. Analysis of what is essentially a single concept requires to be undertaken with caution, but it may be useful at least to recognise the elements which the separate words contribute to it. Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word 'professional' which links the misconduct to the profession of medicine. Secondly, the misconduct is qualified by the word 'serious'. It is not any professional misconduct which will qualify. The whole matter was summarised in the context of serious professional misconduct by Lord Mackay of Clashfern in Doughty v General Dental Council [1988] AC 164, 173:
    'In the light of these considerations in their Lordships' view what is now required is that the General Dental Council should establish conduct connected with his profession in which the dentist concerned has fallen short, by omission or commission, of the standards of conduct expected among dentists and such falling short as is established should be serious ... professional misconduct ... it is not simply misconduct in the carrying out of medical work which may qualify as professional misconduct. But there must be a link with the profession of medicine. Precisely what that link may be and how it may occur is a matter of circumstances. The closest link is where the practitioner is actually engaged on his practice with a patient. Cases may occur of a serious failure to meet the necessary standards of practice, such as gross neglect of patients or culpable carelessness in their treatment, or the taking advantage of a professional relationship for personal gratification."
  32. Their Lordships in Roylance were careful not to suggest that an exhaustive definition of what should constitute (mis)conduct was practicable. Indeed from the passage already quoted, it is clear that Lord Clyde was careful to extend it to "a matter of circumstances".
  33. The questions which arise for decision in this case relate to all three ingredients of the proscribed conduct. Since I have come to the firm conclusion that however defined, the claimant was not guilty of the relevant disciplinary offence taking all words of it together it could be said to be unnecessary to consider each element separately. It may however be of practical benefit if I set out what, in my view, is the appropriate finding in regard to each. For reasons which will became apparent, it is sensible to consider the elements in reverse order.
  34. Misconduct. This must involve identification of the claimant's actions which were by way of omission or commission. The factual situation was the receipt, from a source which wished to remain anonymous of information, which, if true, was germane to the constitution of the appointments' committee. As has already been recognised, it was simply not an option for the claimant to have ignored that information once it reached the degree of specficity which it did during the course of 9 November. At that stage the claimant was bound to refer it "to an appropriate person from the employing authority." This he did by the action of informing Mr Cooper. The only question is whether he had already fallen foul of the requirement to protect patients whose well-being is under threat. To the extent that appointment of a clinician to a consultant post otherwise than on the basis of true merit constitutes a threat to patients in general, it is arguable that the claimant did come under a duty to take some action. The question, however, is when that duty arose in the case of this claimant. In my judgment, both the GMC and the PCC erred in concluding that there was any duty or professional obligation on the claimant to act when the information available to him was, in his judgment little more than gossip. Indeed, it is my judgment that had the claimant acted before he was provided with any form of specific information, in the circumstances of this case, he would have been open to criticism for causing untold and unnecessary concern to people who might very well be entirely innocent of anything. This is carrying the practice of "whistleblowing", as it has come to be known, and encouraged several stages too far.
  35. In my judgment, the claimant acted appropriately (1) in taking no action when he first became aware of the rumour and (2) in consulting the health authority as soon as the rumour had become specific.
  36. At worst against the claimant, in relation to what he did after he had been provided with some documentary evidence within a short time of the meeting of the relevant committee, it is all too easy, with the comfortable knowledge that the information was in fact false, as it was presented against Drs Chu and Acland, to find that raising it with the committee chairman and some of its members was, by definition, inappropriate. I disagree. There was again a positive obligation on the claimant to raise the matter with the employing authority, here represented by the chairman of the committee, who was a non-executive member of the authority itself, and any other medical colleague who was immediately available. Again, this the claimant did. The only criticism which may be made against him is that he did not voice his doubts about the identity of the benefactor as evidenced by doubt on one ill-written "l". This was a misjudgment on the claimant's part.. By way of mitigation it may be said that he had acted on some form of professional advice, up to that time and had but little opportunity to check further the information. The matter may be tested, once more, by positing how it would have developed had the information not been misleading.
  37. In my judgment, the claimant was not guilty of misconduct in revealing the information which he had acquired. His error, which fell short of misconduct, was in not disclosing the personal doubts which he entertained as to its accuracy.
  38. Professional. Here the position is not clear cut. The same kind of situation could occur in any commercial organisation as well as in any of the other professions. To that extent, the conduct was not specific to the practice of medicine albeit that it did relate to the manner in which appointments of a medical nature were to be achieved. In the old case of Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Lord Esher (MR) said at page 761:
  39. "If it has to be shown that a medical man, in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency ... The question is, not merely, whether what a medical man has done would be an infamous thing for anyone else to do, but whether it is infamous for a medical man to do ... There may be some acts which, although they would not be infamous in any other person, yet if they are done by a medical man in relation to his profession with regard to
    ... his professional brethren, may be fairly considered 'infamous conduct in a professional respect' and such acts would I think come within section 29."
  40. In Roylance, Lord Clyde said that serious professional misconduct may arise in circumstances quite removed from the practice of medicine; see p332 D. It not without importance that a number of medical witnesses were called who supported the claimant in what he had done, or failed to do, in the present case. This is not in any sense definitive. It was for the GMC to prove that what the claimant had done was within the meaning of the word "professional", I hold that it did not prove its case on this point.
  41. In the circumstances which now arise, the question whether the claimant's conduct reached the criterion of "serious", I am confident that even if the other elements had been satisfied, it fell short and by a wide margin.
  42. Conclusion
  43. Accordingly the decision of the PCC must be quashed since it fails the test of rationality and in the respects identified above achieves the status of perversity. In this last context I have particularly in mind the passages in which the PCC rejected the role of the claimant as that of a messenger in the affair and that he was driven in his actions towards Drs Chu and Acland by error of judgment occasioned by his misgivings about the creation of the post to which the latter was an aspirant. In the circumstances, there was no call for the claimant to have withdrawn or apologised for what he did.
  44. The decision, therefore, stands to be quashed.
  45. MR FRANCIS: My Lord, in those circumstances, I ask for judgment in those terms, and I also ask for an order for costs?

    MR JUSTICE TURNER: You cannot resist either, can you?

    MISS COLLIER: My Lord, I cannot resist either. I cannot resist the application for costs because my learned friend and I have discussed if my learned friend were to ask for summary assessment. We would wish to put the argument that we should not have to bear the claimant's costs on the issue of whether he was entitled to a merits review, because that was an issue that was not pursued by Mr Francis at the hearing.

    MR JUSTICE TURNER: It is difficult to say that there will be any identifiable costs in that respect.

    MISS COLLIER: Well, my Lord, Mr Francis addressed that in his skeleton argument and, therefore, presumably costs were incurred there. We would also say that they should pay.

    MR JUSTICE TURNER: This is de minimis.

    MISS COLLIER: My Lord, the costs were incurred by the respondent as well on that issue. It was a new issue that had not been raised in the grounds and, therefore----

    MR JUSTICE TURNER: I did not decide the issue against him.

    MISS COLLIER: Indeed not, but that was because my learned friend decided that he need not pursue it, although he had raised it at a very late stage in his skeleton argument and then decided during the hearing----

    MR JUSTICE TURNER: I understand the point you make, but I am against you.

    MR FRANCIS: My Lord, so far as assessment is concerned, there is a schedule, I do not know if you have seen it?

    MR JUSTICE TURNER: No, I have not.

    MR FRANCIS: It amounts to nearly 23,000. I know that my learned friend has some comments to make, and I am afraid I do not know at the moment what they are. But, maybe, if they are matters that are complicated, the matter should be put off for detailed assessment. As I am not sure what the objections are, I am not really in a position to make a submission on that.

    MR JUSTICE TURNER: Just a moment. Now, Miss Collier, how are we going to approach this?

    MISS COLLIER: My Lord, obviously we accept that a claimant's costs will be higher than those of the respondent, because they have responsibility for preparing the bundles and, of course, leading counsel was instructed. But, nevertheless, these costs are, in fact, more than three times the costs incurred by the respondent. We would say that they are unnecessary high for the following reasons. First of all, it does appear that an unnecessarily large proportion of the work has been done by a partner. My calculation is that the partner spent 28 hours on it, although there were two assistant solicitors and a legal executive also working on it.

    MR JUSTICE TURNER: How long did they work?

    MISS COLLIER: My Lord, I have not calculated that. They did, for example, attendance on the claimant, they worked half as long as the partner; attendance on others, they worked five hours, as opposed to the partner's nine hours and 18 minutes; and on work done on documents they did 15 hours, as opposed to the partner's 13 hours.

    MR JUSTICE TURNER: Yes.

    MISS COLLIER: It seems likely that some of those 28 hours spent by the partner could have been done by, at least, an assistant solicitor, or even a legal executive at either 100 or 110 per hour. That would have led to a saving, on my calculation, of around 400.

    MR JUSTICE TURNER: It is beginning to sound like a candle end.

    MISS COLLIER: My Lord, this is a very substantial bill and, therefore, the candle ends may add up to something.

    MR JUSTICE TURNER: Of course, they may. A number of grains of wheat will eventually fill a sack.

    MISS COLLIER: Indeed, they will. I hope that it will not take me as long as it would to fill a sack of grains of wheat. But as far as attendances on others are concerned and work done on documents, we find this very high indeed. The entire case was based on the transcript.

    MR JUSTICE TURNER: That is 16 hours, is it not?

    MISS COLLIER: Well attendances on others is 16 hours. Work done on documents is nearly 30 hours.

    MR JUSTICE TURNER: Yes.

    MISS COLLIER: But, as I say, the entire case was based on the transcript from the PCC proceedings and on all the documents that were in front of the PCC. There was no need for further witness statements or any issue of disclosure, and so we find it very hard to accept that all those hours can really have been reasonably incurred.

    MR JUSTICE TURNER: What do say was the reasonable number of hours per each head?

    MISS COLLIER: We would suggest that for both a figure of half would have been reasonable. That on my calculation would save 2,600.

    MR JUSTICE TURNER: Yes, it is almost a candle.

    MISS COLLIER: It is more than 10 per cent of the total, my Lord. The other point that I have already made, and you found against me, was the preparation of the skeleton on the application for a merits hearing, so I will not repeat myself on that. So, therefore, I would ask your Lordship to reduce the bill by 3,000.

    MR JUSTICE TURNER: That is before VAT comes in, is it? Yes.

    MR FRANCIS: My Lord, so far as----

    MR JUSTICE TURNER: I have to say that attendances on others and work on the documents do appear to me, in terms of hours, requiring justification.

    MR FRANCIS: My Lord, might I say two things about that? Firstly, attendances on others. This is case in which the medical defence unit has been supporting Dr Cream, and, unusually, this case actually, as your Lordships knows, has involved not only their support for a doctor in relation to his conduct, but actually their own involvement in the conduct in effect. Therefore, there has been a need for, firstly, partner level support, a level which would perhaps be unusual in these cases.

    MR JUSTICE TURNER: I am not so troubled about that as what we are looking at, 16 hours for attendances on others and 30 hours. I note that you not only had a consultation but also a brief fee and pre-hearing consultation, points not taken by Miss Collier. The necessity of both?

    MR FRANCIS: I can explain those. The initial conference was in relation to the decision whether or not there should be an appeal, and the subsequent one, in a matter which was, if I may say so, very fact-heavy, was a review of the matter in the light of the arguments put forward.

    MR JUSTICE TURNER: Plainly so.

    MR FRANCIS: My Lord, so far as the documents are concerned, there was actually, I know this from personal knowledge, quite considerable difficulty in deciding what documents should be in the essential reading bundle and what should not be, because the documents, as you know, in the full bundle were of some considerable length, and that may have taken more time then you would expect in a case of this nature. Clearly, if you find that too many hours have been spent, then we would have no quarrel with that.

    MR JUSTICE TURNER: I am not persuaded that 16 hours and 30 hours can be fully justified.

    MR FRANCIS: Yes.

    MR JUSTICE TURNER: I find the role which I am required to fulfil at this point rather unsatisfactory. Am I an honest broker trying to broke an agreement between you?

    MR FRANCIS: Well, my Lord, it is difficult.

    MR JUSTICE TURNER: Unless there is some concrete concession I think I am bound to send this for detailed assessment.

    MR FRANCIS: Certainly, on instructions, in relation to attendance on others a concession of 3 hours will be made, but it does not sound as though that will satisfy my learned friend.

    MR JUSTICE TURNER: I think it is five hours short by my reckoning.

    MR FRANCIS: My Lord, can I just take instructions? My Lord, we would be content with a reduction of 8 hours.

    MR JUSTICE TURNER: And on the 30 hours on documents? In my role as honest broker I would be minded to say 20.

    MR FRANCIS: Take it down to 20?

    MR JUSTICE TURNER: Yes, take it down to 20.

    MR FRANCIS: We are getting up towards half a sack, I think.

    MISS COLLIER: My Lord, we would accept 20, yes.

    MR JUSTICE TURNER: There we are. The bill will be adjusted in accordance with those concessions and agreements, and the costs will be recovered accordingly.

    MISS COLLIER: Thank you, my Lord. My Lord, I apply for permission to appeal on grounds that we have a real prospect of success in showing that there was a duty on the claimant to act before 9th and 10th November, and that this matter does fall within the definition of professional and, therefore, serious professional misconduct.

    MR FRANCIS: My Lord, I would submit that there is no real prospect of that on the basis of reasons which your Lordship has found to be utterly perverse in relation to the evidence.

    MR JUSTICE TURNER: I think I am bound to take that view.

    MISS COLLIER: My Lord thank you.

    MR JUSTICE TURNER: Thank you.


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