Dr Chandranath Sarkar v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Tipples DBE |
| Judgment Date | 20 July 2020 |
| Neutral Citation | [2020] EWHC 1896 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO-4007-2018; CO-4694-2018 |
| Date | 20 July 2020 |
[2020] EWHC 1896 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPEAL UNDER SECTION 40 OF THE MEDICAL ACT 1983 AND AN APPEAL UNDER SECTION 29 OF THE NATIONAL HEALTH SERVICE REFORM AND HEALTH CARE PROFESSIONS ACT 2002
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Tipples
Case No: CO-4007-2018; CO-4694-2018
Marios Lambis (instructed by MDU Services Ltd) for Dr Chandranath Sarkar
Christopher Knight (instructed by GMC Legal) for The General Medical Council
Fenella Morris QC (instructed by Browne Jacobson LLP) for The Professional Standards Authority for Health and Social Care
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
On 14 September 2018 the Medical Practitioners' Tribunal (“ the Tribunal”) imposed a four month suspension on the registration of Dr Chandranath Sarkar (“ Dr Sarkar”) as a result of its finding of impaired fitness to practise by reason of misconduct (“ the decision”). The Tribunal did not consider that a review hearing was required before the period of Dr Sarkar's suspension concluded. The misconduct related to Dr Sarkar's admissions to covertly administering risperidone (an anti-psychotic medication) to his wife via her tea intermittently over a 15 month period.
There were two appeals against the decision.
The first appeal ( CO/4007/2018; “ the First Appeal”)) was issued on 15 October 2018 and was an appeal by Dr Sarkar pursuant to section 40 of the Medical Act 1983 (“ the 1983 Act”) against the sanction of a four month suspension imposed by the Tribunal and seeking a lesser or no sanction. The General Medical Council (“ GMC”) was the sole respondent to that appeal.
The second appeal ( CO/4694/2008; “ the Second Appeal”) was issued on 23 November 2018 and was an appeal by the Professional Standards Authority for Health and Social Care (“ PSA”) pursuant to section 29 of the National Health Service Reform and Health Care Professions Act 2002 (“ the 2002 Act”) against the same sanction, on the basis that the Tribunal erred in not providing for a review hearing (which the PSA maintained was irrational) and not giving sufficient reasons for the sanction it imposed. The PSA asked the court to vary the order it was appealing and substitute the following order:
“… allow this appeal, quash the decision of [the Tribunal] as to sanction (including the decision not to order a review hearing), and: (a) remit the matter to [the Tribunal], with such directions as the Court thinks fit; and (b) in any event, order that the [GMC] and/or [Dr Sarkar] to pay the [PSA's] costs.”
The GMC and Dr Sarkar were the respondents to that appeal.
Therefore, Dr Sarkar wished to quash the decision because he said its practical effect was too harsh and not in line with the purported aims of the Tribunal. The PSA, on the other hand, wished to quash the decision because it said the decision was too lenient.
Further, before the PSA had issued its appeal the GMC directed a review of Dr Sarkar under section s35D(4B) of the 1983 Act. The PSA explained (in a skeleton argument dated 11 April 2019) that:
“This does not render the [PSA's] appeal academic. This is because both the relief sought and the grounds upon which it is sought go beyond an attempt to secure a review. Further, if this Court accepts that the Tribunal's reasons as to sanction are insufficient as the [PSA] submits, that failing will require rectification before a properly-informed and meaningful review can take place.”
On 29 January 2019 Lang J ordered that the First Appeal be linked to the Second Appeal. The two linked appeals were listed for hearing on 9 May 2019 with a time estimate of 1 day. In April 2019 all parties filed detailed skeleton arguments in readiness for the hearing. On 8 May 2019 all parties agreed to the terms of a Consent Order in order to dispose of both appeals, which was sealed by the Court on 9 May 2019 (“ the Consent Order”).
The recitals to the Consent Order provided that:
“UPON the Respondents not objecting to the disposal of these proceedings for the reasons set out in Schedule 1; AND UPON the Appellant in proceedings CO/469[4]/2018 [the PSA] seeking an order that [the GMC] and [Dr Sarkar] pay its costs of the appeal in those proceedings, to be summarily assessed if not agreed; AND UPON [the GMC] and [Dr Sarkar] seeking an order that there be no order as to costs;”
Schedule 1 to the Consent Order provided that Dr Sarkar and the GMC did not object to the disposal of the proceedings for the following reasons, namely:
“It is agreed, in the interests of the effective and efficient disposal of the issues in these proceedings, that each of the appeals should be allowed in order that the issue of sanction, which is disputed by each of the appellants on contrasting grounds, might be resolved on the basis that the matter be remitted for reconsideration of the issue of sanction on the basis of the findings as to facts and impairment already made.”
Pursuant to the terms of the Consent Order, it was agreed and ordered that:
a. both appeals be allowed;
b. the decision of the Tribunal to impose as a sanction a suspension order of four months, without any further review by it of Dr Sarkar's fitness to practise, be quashed;
c. the matter be remitted to a differently constituted panel of the Tribunal to make a fresh decision as to sanction and “without limiting in any way the normal exercise of the Tribunal's powers, the panel considering the case is directed to specifically consider this consent order and the grounds of appeal filed in proceedings CO/4007/2018 and CO/4694/2018”; and
d. the court would determine the appropriate order as to costs and make any summary assessment of the amount payable. The Consent Order contained a timetable for the service of written submissions, and then directed that the papers would be placed before a judge for written determination.
I note from the terms of the Consent Order that the parties did not agree that the court's decision on costs should await the outcome of the remitted hearing before a differently constituted panel of the Tribunal.
The court has received the following written submissions on costs in accordance with the directions set out in the Consent Order, namely from:
a. the PSA from Fenella Morris QC dated 10 May 2019, together with a costs schedule dated 15 May 2019 claiming £18,152.96;
b. Dr Sarkar from Mr Marios Lambis dated 24 May 2019;
c. the GMC from Mr Christopher Knight dated 6 June 2019; and
d. the PSA in reply from Ms Fenella Morris QC dated 19 June 2019.
The PSA's written submissions make it clear that it is seeking an order that the GMC pay its costs of the Second Appeal. It is not seeking any order for costs against Dr Sarkar in respect of the Second Appeal.
The issue in dispute
The issue I have to decide is whether under CPR Part 44.2 the GMC should be ordered to pay the PSA's costs of the Second Appeal.
Conclusion
The conclusion I have reached is that, in the circumstances of this case, it would be wrong to order the GMC to pay the PSA's costs. Rather, the appropriate order is that there should be no order for costs in respect of the Second Appeal. My reasons are set out in detail below.
The parties' submissions on costs
There is no dispute between the parties that CPR Part 44.2 applies. CPR Part 44.2(2) provides that: “If the court decides to make an order about costs – (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order.”
The PSA seeks an order (pursuant to CPR Part 44.2(2)) that the GMC pay its costs of and incidental to the Second Appeal. The PSA say this is the correct order for costs because:
a. The PSA succeeded in obtaining the relief sought in the Second Appeal. The PSA relies on two points. First, the decision was quashed. Second, the appeal succeeded “as a result of a failing on the part of [the GMC], through one of its committees, the costs incurred are an unavoidable consequence of that failing and the costs order should reflect that”: see PSA v (1) General Pharmaceutical Council and (2) Onwughalu [2014] EWHC 2521 (Admin), per Cox J at [49]”.
b. It is a fair reflection of the circumstances and the conduct of the parties leading to the PSA commencing the Second Appeal. The PSA relies on three points. First, the GMC failed to exercise its own right of appeal against the Tribunal under section 40A of the 1983 Act. The PSA was the only body empowered to appeal the decision under section 29 of the 2002 Act, and did so in the public interest, when no other body would or could do so. Second, on 12 October 2018 the GMC made a direction for a review of Dr Sarkar's fitness to practise. However, the PSA did not know this when it lodged its appeal against the decision, as the GMC had failed to tell the PSA or Dr Sarkar. Third, the GMC refused the PSA's without prejudice offer on costs made on 24 April 2019 that “[the GMC's] liability for [the PSA's] costs be limited to those that were incurred in bringing the appeal (which comprised initial advice to [the PSA], the preparation...
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