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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Beard v General Osteopathic Council  EWHC 1561 (Admin) (24 June 2019)
Cite as:  EWHC 1561 (Admin)
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QUEEN'S BENCH DIVISION
MANCHESTER CIVIL JUSTICE CENTRE
Royal Courts of Justice
Strand, London WC2A 2LL
B e f o r e :
| ALLISON BEARD
- and -
|GENERAL OSTEOPATHIC COUNCIL
Mark Shaw QC (instructed by General Osteopathic Council) for the Respondent
Hearing dates:10th-11th April 2019
Crown Copyright ©
The Honourable Mr Justice Kerr:
"in writing, … appropriate, independent, peer-reviewed technical evidence as to how your use of Ultrasound was appropriate to my symptoms, and provide me, in writing, with a full explanation as to why you failed repeatedly to undertake a proper assessment of my foot on my visit of the 21 July 2016, thereby missing several injured areas on the foot and calf, all of which were identified within about 5 minutes of the start of my recent appointment with another professional Osteopath".
"I'm sorry, you have just contradicted yourself because you have said to us that you would have dealt with his concerns had he come into the clinic and that you were willing to sit down and talk to him, but you were not willing to take time out of your busy practice to write a treatise on the subject …".
"but now you are saying you cannot explain why you did not ask him to come into the clinic because you did not like the tone of the way he was dealing with you".
"Sorry, I am really struggling here to … you're asking so many questions and I'm not quite sure what your asking about."
Grounds of Appeal
'… Was it not Lord Eldon L.C. who said in a notable passage that "truth is best discovered by powerful statements on both sides of the question"?: see Ex parte Lloyd … and Lord Greene M.R. who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, "he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict": see Yuill v. Yuill ….
Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better. Let the advocates one after the other put the weights into the scales - the "nicely calculated less or more" - but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties: see In re Enoch & Zaretzky, Bock & Co … . So also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appear to favour one side or the other: see Rex v. Cain …, Rex v. Bateman … and Harris v. Harris …, by Birkett L.J. especially. and it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost: see Reg. v. Clewer … . The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: "Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal." [Essays or Counsels Civil and Moral. Of Judicature.]
Such are our standards. They are set so high that we cannot hope to attain them all the time. In the very pursuit of justice, our keenness may outrun our sureness, and we may trip and fall. That is what has happened here. A judge of acute perception, acknowledged learning, and actuated by the best of motives, has nevertheless himself intervened so much in the conduct of the case that one of the parties - nay, each of them - has come away complaining that he was not able properly to put his case; and these complaints are, we think, justified.'
(1) the test is whether excessive intervention or pejorative comment created a real danger that the trial was unfair.
(2) There is greater latitude towards judicial intervention where the judge sits alone than when sitting with a jury.
(3) On appeal, the issue is whether the interventions indicate that a fair trial has been denied because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and "into the perils of self-persuasion".
(4) Whether the point of unfairness has been reached must be considered in the context of the whole trial and in the light of the number, length, terms and circumstances of the judge's interventions. Interventions suggesting a provisional view must be distinguished from those suggesting a final unalterable view.
(5) The point at which the interventions occur is relevant; vigorous interventions early in the trial are less readily excused than one at a later stage aimed at permitting the judge better to comprehend the issues and weigh the evidence of the witness concerned.
(6) The general rules for conduct of a trial and the respective functions of judge and advocate have not changed; but a more active judicial role in proceedings than formerly is now accepted; sometimes a silent judge may cause injustice by not alerting a party to issues concerning the judge.
… the risk identified by Lord Greene MR … does not depend on appearances, or on what an objective observer of the process might think of it. Rather, the risk is that the judge's descent into the arena … may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and may for that reason render the trial unfair [italics in original].
"erred in law and/or failed to give proper reasons in not explaining or reconciling the contemporaneous clinical records with the allegations it found proved – namely the Committee did not state that it found the notes had been forged or subsequently added to after the event …. Absent such a finding of note tampering or forgery the clinical notes had to be addressed in respect of each allegation found proved and if rejected that rejection demanded explanation".