Dr Andrew Thilliainayagam v General Medical Council

The appellant seeks an extension of time in which to lodge his appeal against the determination by a panel of the Medical Practitioner's Tribunal Service, MPTS, sent to the parties on 24 March 2025, in which the allegations against him were found proved. He was found guilty of misconduct, and it was found that his fitness to practise was impaired. The appellant also seeks to appeal against the sanction imposed upon him, namely one month's suspension.

The respondent takes a neutral stance in response to the application for an extension of time.

The appellant is a consultant gastroenterologist, who was treating Patient A at the London clinic for a period of eight days. The panel found that the appellant failed to give adequate care by not visiting him for three of those days, instead relying upon reports from other doctors. The panel also found that he failed to maintain adequate records.

The essence of the appellant's grounds of appeal is that the panel failed to make a clear finding in relation to the appellant's explanation for his failure to personally visit Patient A, namely that, as he was treating patients with COVID at that time, he risked infecting Patient A. The respondent disputed the appellant's explanation. It is claimed by the appellant that the panel's failure to determine this issue undermined all aspects of the determination.

The appellant was advised by the MPTS that his registration would be suspended 28 days from the date on which written notification of the panel's decision was deemed to be served, unless he lodged an appeal. In the event that he did lodge an appeal, he would remain free to practise unrestricted until the outcome of the appeal was known. The date of service was deemed to be 28 March 2025 and therefore any appeal had to be lodged on or before 25 April 2025. If he did not appeal by that date, the sanction of suspension would be effective from 26 April 2025. The letter advised him to file any appeal in the Administrative Court of the High Court of Justice.

The appellant's solicitors filed the appellant's notice in the Kings Bench Division on 17 April 2025, but it was rejected on the basis that it had been filed in the wrong court. It was subsequently filed electronically in the Administrative Court on 28 April 2025, three days after the deadline.

Facts

Ms Rosette Shapiro, solicitor and partner at DWF Law was instructed by the appellant to act in his appeal. She has helpfully provided a witness statement and exhibited relevant documents giving the following account of events.

The appellant confirmed his instructions to appeal on the afternoon of 16 April 2025 after taking some time to raise the necessary funds. At 1541 on 17 April 2025, Ms Goldberg, a paralegal at the firm, filed the appeal documents at the High Court using the online service CE file, which offers a dropdown menu of courts from which to select. Ms Shapiro said Ms Goldberg “erred in selecting the Kings Bench Division of the High Court rather than the Administrative Court from the drop-down menu available on e-filing”. Mr Jones described this in his skeleton argument as a refusal to hear the substantive appeal “only on the grounds of having selecting the wrong Court in the relevant drop down list on CE file”. This suggested or hinted that the selection of the wrong court was simply a typing error.

The appeal documents were served by email on the GMC on 17 April 2025.

On 23 April 2025, Ms Goldberg telephoned the King's Bench Division court office to ask for a copy of the sealed appellant's notice, but was told that that could take up to five working days. The fact that she telephoned the King's Bench Division court office indicates to me that she believed the King's Bench Division was the correct court, otherwise she would have telephoned the Administrative court office.

On 24 April 2025, the court service sent an email to Ms Goldberg informing her that the appeal had been rejected because it had been filed in the wrong court. She was advised that, as it was a statutory appeal, it had to be filed in the Administrative Court. Ms Goldberg was away on leave and the email was not forwarded onto her colleague, in accordance with the request in her out-of-office message. I observe that the court service email came from a “no reply” address, so the out-of-office message was probably never received.

Unfortunately, the court's email was not picked up until 28 April 2025 when Ms Goldberg returned from leave. Ms Goldberg then filed the appellant's notice at the Administrative Court on 28 April 2025, at 1406, sending it to the email address for Immediate applications. Later on the same day, 28 April 2025, she complied with a request from the Administrative Court to email it to the appellant's notice to the general office of the Administrative Court.

The revised appeal documents were served on the GMC on 28 April 2025.

On 29 April 2025, the MPTS emailed the appellant to inform him that, as an effective appeal had not been filed within the requisite period, the sanction had taken effect, and he was therefore suspended until 25 May 2025.

Ms Shapiro contacted the MPTS and the GMC seeking to persuade them not to give effect to the suspension order, as the appeal had been filed in time, albeit in the wrong court, and had now been filed in the correct court.

The position of the MPTS was that they could not delay the suspension unless the court confirmed that an effective appeal had been filed on 17 April, or that time for appealing had been extended.

On 30 April 2025, the appellant's employer (an NHS Trust) sent a letter to the appellant notifying him that his employment had to be terminated with immediate effect because he had no licence to practice.

There was some delay on the part of the Administrative Court office in processing the appeal. I have made some enquiries, and it appears that that was due to volume of work. The appellant's appeal was therefore not formally issued until 6 May 2025 and the appellant's notice was sealed on that date.

Following a request from the solicitors for urgent consideration of the application for an extension of time, Foxton J made an order on 9 May adjourning the application for determination at an oral hearing. That is the hearing that is listed before me today, 16 May 2025.

Legal framework

Section 40 of the Medical Act 1983 provides a practitioner with a right of appeal to the High Court in respect of an appealable decision such as this one. The time period for appealing is “Before the end of the period of 28 days, beginning with the date on which notification of the decision was served.”

CPR practice direction 52(d) lists appeals under Section 40 of the Medical Act 1983 as an “Appeal to the High court”.

The parties have drawn my attention to some case law on the filing of a claim in the King's Bench Division rather than the Administrative Court, and other authorities which appear to raise related points. I have considered GUO v Kinder [2024] EWCA Civ 762 and Chelfat v Hutchinson [2022] 1 WLR 3613. In Sutcliffe v Secretary of State for Education [2024] EWHC 1878 (Admin) Pepperall J considered a statutory appeal process which prescribed that appeals be made to the High Court but not to any particular division or court within the high court. He said, at paragraph 12.4:

“12.4 In my judgment, the highest it can be put is that there is a longstanding custom and practice of appeals against prohibition orders being issued and mitigated in this court. Absent and provision mandating issue in the Administrative Court such custom and practice, and does not however, mean that the appeal was wrongly filed in the King's Bench Division. Further, even where the court office concludes there has been an error of procedure, such error does not invalidate this step taken (here issued in what was thought to be the wrong court) unless the court so orders, CPR Rule 3.10. I would therefore suggest that in future appeals lodged by teachers in the King's Bench Division might properly be accepted and then transferred to the Administrative Court for ease, for case management and hearing.

13. Whatever should have...