Meadow v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke MR,Lord Justice Auld,Lord Justice Thorpe |
| Judgment Date | 26 October 2006 |
| Neutral Citation | [2006] EWCA Civ 1390 |
| Docket Number | Case No: C1/2006/0434 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 October 2006 |
[2006] EWCA Civ 1390
Sir Anthony Clarke Mr
Lord Justice Auld and
Lord Justice Thorpe
Case No: C1/2006/0434
Case No: CO/5763/2005
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr Justice Collins
Royal Courts of Justice
Strand, London, WC2A 2LL
Roger Henderson QC and Adam Heppinstall (instructed by the Principal Legal Adviser, General Medical Council) for the Appellant.
Nicola Davies QC, Ian Winter and Kate Gallafent (instructed by Hempsons) for the Respondent
Lord Goldsmith QC, AG , Jonathan Crow and Ben Watson for the Intervenor
Introduction
This appeal arises out of evidence given by Professor Sir Roy Meadow, whom I will call Professor Meadow, in the prosecution of Sally Clark. In November 1999 Mrs Clark was tried for the murder of her two sons. The Crown relied in part upon Professor Meadow's evidence to refute the proposition that Mrs Clark's children may have died from Sudden Infant Death Syndrome ("SIDS") , or cot death. Mrs Clark was convicted. Her first appeal was dismissed in October 2000. Her second appeal was allowed on 29 January 2003 on the ground that the verdicts were unsafe because of material non-disclosure by the Crown's pathologist. Full argument on Professor Meadow's evidence was not heard during the second appeal but the court indicated that, if it had been, the appeal would "in all probability" have been allowed on that ground too. No retrial was ordered.
Mrs Clark's father made a complaint to the GMC alleging serious professional misconduct on the part of Professor Meadow. The complaint was heard by the Fitness to Practise Panel ("FPP") of the General Medical Council ("GMC") , which concluded in July 2005 that Professor Meadow was guilty of serious professional misconduct and ordered that his name be erased from the register. Professor Meadow appealed to the High Court and on 17 February 2006 Collins J allowed his appeal and quashed the order of the GMC. This appeal is brought by the GMC pursuant to permission granted by Brooke LJ on 28 March 2006.
There are two distinct parts of the appeal. The first raises an important question of principle, namely whether an expert witness should be entitled to immunity from disciplinary, regulatory or fitness to practise proceedings (together "FTP proceedings") in relation to statements made or evidence given by him in or for the purpose of legal proceedings. The second entails a consideration of the GMC's challenge to the judge's decision that Professor Meadow was not guilty of serious professional misconduct. It seeks to restore the finding of the FPP that he was guilty of serious professional misconduct, although it does not seek to uphold the penalty of erasure from the register.
These two parts of the appeal are entirely separate and I will consider them separately. The Attorney General has intervened in connection with the first part but not the second. He supports the GMC's appeal.
PART I IMMUNITY FROM FTP PROCEEDINGS
Introduction
This part of the appeal arises out of a point taken by the judge and not by or on behalf of Professor Meadow, either before the FPP or in the grounds of appeal to the High Court. It is common ground that at common law a witness, whether he is giving evidence of fact or opinion, and whether or not he is an expert witness, has immunity from civil suit in respect of evidence which he gives in court. It is also common ground that the immunity extends to any statement the witness makes for the purpose of giving evidence. Where it exists the witness has immunity even in a case where he gave his evidence dishonestly or in bad faith. The judge recognised in paragraph 10 of his judgment that before this case the immunity had not been extended to prevent the bringing of FTP proceedings.
The judge held that an absolute or blanket immunity was unnecessary but that it was necessary to balance the countervailing public interests and, having carried out the balancing exercise, he concluded that in some circumstances an expert witness should be immune from FTP proceedings. His reasoning can be seen from paragraphs 21 to 25 of the judgment:
"21. Since I am applying a principle based on public policy to grant an immunity which has not hitherto been explicitly recognised, I can, I think, consider whether public policy requires that an absolute immunity should be granted. The approach of their Lordships in Darker's case indicates that immunity from suit, in respect of which the law has granted absolute immunity, should be confined as narrowly as reasonably possible. That approach and the need to balance the countervailing public interests persuades me that a blanket immunity is not necessary. Barristers and solicitors owe duties to the court and may be subjected to disciplinary action in respect of their conduct in litigation. That does not inhibit them because they know that they must maintain the necessary standards before the court and will be liable to action if they do not. But witnesses are in a somewhat different position, particularly when they become involved in litigation fortuitously, perhaps because as a doctor they treated a particular child and abuse is suspected.
22. In my judgment, the immunity has to cover proceedings based on a complaint (whether or not it alleges bad faith or dishonesty) made by a party or any other person who may have been upset by the evidence given. Public policy, as reflected in the observations of the various judges which I have cited, requires at least that. But I see no reason why the judge before whom the expert gives evidence (or the Court of Appeal when that may be appropriate) should not refer his conduct to the relevant disciplinary body if satisfied that his conduct has fallen so far below what is expected of him as to merit some disciplinary action. I note that such referrals have been made, although I do not think the immunity point has been argued: see Hussein v William Hill Group [2004] EWHC 208 (QB), per Hallett J and Pearce v Ove Arup (unreported) 2 November 2001, per Jacob J. In that case, Jacob J said, at para 62:
"I see no reason why a judge who has formed an opinion that an expert had seriously broken his Part 35 duty should not, in an appropriate case, refer the matter to the expert's professional body if he or she has one. Whether there is a breach of the expert's professional rules and if so what sanction is appropriate would be a matter for the body concerned."
The witness should, as Jacob J stated, be given an opportunity to make representations before any referral took place.
23. Such a referral would not be justified unless the witness's shortcomings were sufficiently serious for the judge to believe that he might need to be removed from practice or at least to be subjected to conditions regulating his practice such as a prohibition on acting as an expert witness. Normally, evidence given honestly and in good faith would not merit a referral. Mr Henderson was concerned that to draw the line at dishonesty or recklessness could mean that a practitioner who gave seriously defective evidence which was honestly given but resulted from for example ill health was able to continue in practice to the danger of the public. I recognise that possibility: the judge is likely also to recognise it if it arises in any given case.
24. No system can be perfect. It is, as Mr Henderson submitted, at least in theory possible that a practitioner whose shortcomings are not recognised by the court may escape deserved sanctions. This would particularly be so if the practitioner did not give evidence because court proceedings were, as in Stanton v Callaghan [2000] QB 75, never pursued. However, I think that this problem is more theoretical than real. It is unlikely that a single case involving a poor report or evidence would on its own show that the practitioner was unfit to practise and so a danger to the public. His report would become known and he would not be invited to give evidence in the future. Further, if he was so poor, he would be likely to show his defects in a subsequent case. Mr Henderson raised the issue of accreditation which, for example, would affect a pathologist. Could he be removed from the list of those entitled to act for the Home Office on the basis of poor evidence in a particular case? The answer must be that he could. Just as a private client is entitled to cease to instruct an expert if dissatisfied with his performance so can the Home Office. If that is done, he has a right of appeal.
25. The precise boundaries of the immunity will have to be established on a case by case basis. For example, where serious defects in the expert's evidence only came to light after a court hearing, it may be possible to go back to the judge to ask him to consider a referral. If there is an appeal, the Court of Appeal can take the necessary action. But what is of fundamental importance is that a witness can be assured that if he gives his evidence honestly and in good faith, he will not be involved in any proceedings brought against him seeking to penalise him. The risk of a judge deciding that there should be a referral in such circumstances is so remote as to be virtually non-existent."
Thus, although the judge said that the precise boundaries of the immunity will have to be established on a case by case basis, it is plain from the above passage that he envisages that an expert witness will be...
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Subject Index
...25 June 2008, No. 07-6053. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338–339GMC v Meadow with HM Attorney General[2006]EWCA Civ 1390 . . . 93, 94,99, 104, 105,112, 113Goodman v Rossi (1995) 24 OR (3d) 359, CA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......
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Appeals
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Litigation
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