Gilthorpe v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone,MR JUSTICE SUPPERSTONE |
| Judgment Date | 02 February 2012 |
| Neutral Citation | [2012] EWHC 672 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/11047/2011 |
| Date | 02 February 2012 |
[2012] EWHC 672 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX
The Honourable Mr Justice Supperstone
Case No: CO/11047/2011
The Claimant appeared in person.
Miss Callaghan (instructed by the Legal Team, GMC) appeared on behalf of the Defendant.
(As Approved)
Dr Herrera-Gilthorpe, known as Dr Herrera, seeks to appeal against the decision of the General Medical Council's Fitness to Practise Panel made on 11 October 2011 to suspend his registration for four months under section 35D(2) of the Medical Act 1983 as amended. The relevant facts are that on 11 October 2011, in accordance with section 35E(1) of the Act, the Registrar served written notice of the decision on Dr Herrera. The notice contained an explanation of his right to appeal, which set out the manner and form of the appeal, the time for lodging an appeal and the place where appeal forms could be obtained. Dr Herrera acknowledged receipt of the notice by signing and dating it. On 12 October, the GMC wrote to Dr Herrera, setting out the panel's decision in full. The letter stated inter alia:
"Formal notification of the decision, and a note explaining your right of appeal, were given to you after the hearing. Any appeal must be lodged within 28 days from the date on which notification of this decision is deemed to have been served upon you. Notification will be deemed to have been served on 11 October 2011, and therefore any appeal must be lodged on or before 8 November 2011. If you do not appeal, your registration will be suspended for a period of four months beginning on 9 November 2011."
It appears that Dr Herrera made attempts to file a claim for seeking judicial review of the panel's decision between 7 and 9 November 2011. On being informed that this was the wrong procedure to use, Dr Herrera sought to withdraw his claim for judicial review. The GMC was not served with any application for judicial review by Dr Herrera. On 10 November, the Assistant Registrar of the GMC wrote to Dr Herrera informing him that:
"In the absence of any appeal by you to the High Court, the substantive order for suspension took effect on 9 November 2011. Your registration is therefore suspended for a period of four months until 8 March 2012."
On 15 November, Dr Herrera filed a Notice of Appeal in the court. It was date stamped on that day. A letter from HM Courts and Tribunals Service dated 15 November, sent to Dr Herrera, confirms that the appeal was received on that date.
The material parts of the statutory scheme provide as follows. Section 35E(1) of the Act provides that, where a Fitness to Practise Panel gives a direction for suspension, the Registrar is required to "forthwith serve on the person concerned notification of the direction or variation and of his right to appeal against it under section 40 below." Section 40(4) provides:
"A person in respect of whom an appealable decision […] has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was served under section 35E(1) above, […] appeal against the decision to the relevant court."
Schedule 4 to the Act sets out provisions for service of notification. Paragraph 8(2) of the Schedule provides the section 35E(1) notice may be served by delivering it to him.
Ms Callaghan for the General Medical Council submits that Dr Herrera failed to lodge a valid appeal in time, and therefore the court has no power to hear the appeal, and must dismiss it. If, contrary to her primary submission, the court has power to extend time for lodging the appeal, she further submits that it is not in the interests of justice to do so in this case because the appeal is without merit.
Dr Herrera, who appears in person, submits that he did file a judicial review claim in time. He contends that the fact it was a judicial review claim, and not a statutory Notice of Appeal, should not be held against him, for two reasons: first, because it was not clear to him that section 40 of the Act required the appeal to be by way of a statutory notice rather than judicial review; second, he was advised by solicitors whom he consulted that it should be by way of a claim for judicial review. In the circumstances, he asks if it is necessary to extend time, that this court do extend time for launching the appeal.
In support her submission that Dr Herrera failed to lodge a valid appeal in time, Ms Callaghan referred to the recent decision of R (Dr Harrison) v GMC [2011] EWHC 1741 (Admin), where at paragraph 13 Blake J said:
"The hearing has proceeded on the basis that an appeal notice has to be a notice that complies with the statutory requirements."
In my view, that is the correct approach. The only way to challenge a direction for suspension is by way of statutory appeal under CPR Part 52, and not by way of judicial review under CPR Part 54. Even assuming Dr Herrera did lodge a judicial review claim form, it was not a valid appeal because it was not in the proper form. Therefore, Dr Herrera did not lodge a valid appeal within time. I have given consideration as to whether, if Dr Herrera did lodge a judicial review form on or before 8 November 2011, the court could treat that as a valid appeal lodged within time, if I were to accept that he proceeded in the way he did because of the advice her received. However, that is not an argument open to Dr Herrera, because he did not in fact lodge a valid judicial review claim form on or before 8 November.
It appears that Dr Herrera sent an application for judicial review to the Administrative Court on or before 7 November. On 7 November, Mr Standen of the Administrative Court Office in Manchester sent an email to Dr Herrera stating:
"I have received your application for judicial review. Although the statements of facts and grounds were attached, the claim form had no information on it at all. Could you please complete the claim form and send it back. The application must be hard copy and not by email. The court requires two copies of everything, plus copies of the claim form, for all parties to be served, so that they can be sealed by the court."
Dr Herrera told me that he thought from his communications with Mr Standen on the 7 th that his application would be treated as having been filed on that day, albeit it was not complete. However, Dr Herrera said that he was subsequently told the next day by Mr Standen's superior that this would not be so. On 8 November Dr Herrera sent Mr Standen an email, in which he said:
"As discussed over the phone yesterday, I am having UPS collect my documents today, and these should be with you by tomorrow. I have informed the General Medical Council that I have filed an appeal, and they have informed me that they will contact the court tomorrow to verify that this is the case. As I mentioned over the phone today is the last day to file my appeal. I am worried that since I have as yet not paid, the GMC may be told that I have not filed an appeal, which would in turn immediately make my suspension effective. I was wondering whether it is at all possible to pay over the phone today, since I do not want to take any chances. You can call me on [and then he gave his mobile number]."
Dr Herrera did not send to the Administrative Court the documents referred to by Mr Standen in his email dated 7 November or make the payment required on the filing of a judicial review claim form. Instead, on 9 November, he attended at the Administrative Court office in Manchester with all the documentation, and paid the fee. Dr Herrera accepts that the judicial review claim form was filed on 9 November, and bears the court's stamp of that date. He says that it was only on 9 November that he was told that the appeal is not by way of judicial review.
It is plain, in my judgment, that Dr Herrera did not lodge a valid appeal in time. I would just add, in the light of Dr Herrera's observation that neither he nor the solicitors he instructed appreciated that the appeal is a statutory appeal under CPR Part 52 and not by way of judicial review, that in my view it is clear, from the notification of suspension that he received on 11 October and the explanation set out overleaf in the notes as to his right of appeal, that it is an appeal under the CPR. Nevertheless, so as to avoid any misunderstanding in the future, I consider it would be sensible for the GMC to state expressly in the notes that the appeal is under CPR Part 52 and not by way of judicial review.
I turn next to consider whether I have power to extend the time for lodging an appeal. The issue in Harrison was whether the court had jurisdiction to entertain Dr Harrison's appeal against a decision of the GMC's Fitness to Practise Panel that his name be erased from the Medical Register in circumstances where Dr Harrison had failed to lodge a valid appeal in time. Blake J held that the court does not have power to extend the time beyond the period set out in the statute. In reaching this conclusion, the judge reviewed the earlier decisions of the House of Lords in Mucelli v Government of Albania [2009] 1 WLR 276 and of this court in Mitchell v Nursing and Midwifery Council [2009] EWHC 1045 (Admin). In Mucelli, in his speech at paragraph 74, Lord Neuberger referred to the "clear and unqualified statutory time limit" which applied in that case, which concerned extradition proceedings, and held that there was no basis upon which it could be extended. At paragraph 78 Lord...
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...the fee. Edwards-Stuart J held, relying on previous decisions of the High Court in R (El-Huseinion) v GMC [2012] EWHC 1741 and Gilthorpe v General Medical Council [2012] EWHC 672 that an appeal is only valid if it complies with the statutory requirements, and that since it is a statutory re......