Roderick Ewan Irvine v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom |
| Judgment Date | 24 August 2017 |
| Neutral Citation | [2017] EWCA Civ 1296 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 August 2017 |
| Docket Number | Case No: C1/2017/2247 |
[2017] EWCA Civ 1296
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
THE HON MR JUSTICE HOLROYDE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
Case No: C1/2017/2247
Victor Richard Stockinger (instructed by Stockinger Advocates and Solicitors) for the Appellant
Peter Mant (instructed by The General Medical Council Legal Department) for the Respondent
Hearing date: 24 August 2017
Approved Judgment
The Applicant Roderick Ewan Irvine seeks to appeal the Order of Holroyde J dated 14 August 2017 dismissing his appeal against (i) various findings of a panel of the Medical Practitioners Tribunal ("the Tribunal") in a determination dated 6 December 2016, including a finding of impairment of fitness to practise by reason of misconduct due to dishonesty; and (ii) the sanction of erasure from the register imposed by the Tribunal in a determination dated 21 December 2016.
Later on the day of the hearing before Holroyde J, on a without notice out-of-hours application by the Applicant, Beatson LJ ordered that "the terms of the injunction granted by Jeremy Baker J on 16 January 2017" be continued until 17 August 2017, when he expected the application for permission to appeal to be considered at an oral hearing. He also directed that the Applicant file and serve an appellant's notice and skeleton argument, and that the application for permission to appeal be heard on notice. The following day, on papers which had by then been lodged by the Applicant, Beatson LJ gave further directions, setting down the oral hearing for today rather than 17 August, and extending the "injunction" until the new hearing date.
There are now before the court three formal applications, namely (i) an application for permission to appeal, (ii) an application for a stay pending the outcome of the appeal and (iii) an application based upon an alleged contempt of court by the Respondent ("the GMC") for breaching the Order of Jeremy Baker J as extended in time by Beatson LJ by erasing the Applicant's name from the register immediately following the hearing before Holroyde J at which he dismissed his appeal. There are issues as to whether there has indeed been a breach – Mr Mant for the GMC not only denies any breach, but submits that the erasure resulted from the dismissal of the appeal as a result of statutory provision which was unaffected by the Orders of Beatson LJ – but, in any event, Mr Stockinger today has said that the Applicant does not seek any relief in respect of any past breach. The Applicant simply wishes to have a positive order from this court allowing him to continue to practise in the National Health Service ("the NHS"), pending the full appeal, if he is successful in obtaining permission to appeal. It can therefore be considered together with the application for a stay, if and when necessary.
The application for permission must be considered first. This is a second appeal (see Clark (Inspector of Taxes) v Perks [2001] 1 WLR 17 at [13]); so that the provisions of CPR rule 52.7 apply. Permission can only be granted if the appeal would both have a real prospect of success and raise an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it.
There is no doubt that the issues raised before the Tribunal and then Holroyde J, and their conclusions, are important. They are clearly important to the Applicant, who is an experienced medical practitioner in obstetrics and gynaecology, and a consultant since 2002. The findings of the Tribunal, upheld by the court below, include findings of dishonesty against him. Erasure from the record would mean that he would be unable to continue to practice. They are also important because, if the allegations against the Applicant are made good, that may have a significant impact upon his fitness to practice medicine; and so there is a considerable public interest involved too.
These important issues have occupied much time and effort. The hearing before the Tribunal occupied 46 sitting days, and involved 66 factual allegations. There were 23 grounds of appeal before Holroyde J. His judgment extended to nearly a hundred paragraphs. The grounds of appeal to this court are no less than 28 in number, and they are accompanied by a skeleton argument of 137 paragraphs and many pages of supporting documents.
And yet, the essence of the allegations against the Applicant is simple. To practise, a doctor must have indemnity cover. Outside the NHS, cover is obtained by joining one of the medical defence organisations, such as the Medical Protection Society ("the MPS") or the Medical Defence Union ("the MDU"). The Applicant had a substantial private practice. It is said, and the Tribunal found, that he was not a member of such an organisation for the period 1 October 2007 and 23 February 2012, and he was dishonestly aware that, as result, he was not insured for the work he did privately. The Applicant's primary contention is that he had insurance at all times, notably with the MPS for the period 2007–10. He also says that, insofar as he did not have insurance for any period, he was unaware of that fact; and was certainly not dishonest in any way at any time.
I can deal with the background facts shortly. Until he became a consultant, the Applicant was a member of the MDU. In 2002, he changed allegiance to the MPS. He produced to the Tribunal MPS membership certificates for the five years to 30 September 2007, during which period his annual subscription rose from £665 to £19,135. The Applicant paid the MPS by direct debit; but, the Tribunal found, that means of payment became inactive by 2007. The last payment was on 20 December 2006. It seems that the direct debit was not revoked, and the Applicant did nothing to prevent the MPS drawing on it. However, there was evidence that, on 21 May 2007, the MPS wrote to the Applicant informing him that his membership had been terminated for non-payment of his subscription; but no copy of that letter can be found and, before the Tribunal, whilst not denying he received it, the Applicant said he could not remember seeing it.
In October 2009, Ms A, a former patient of the Applicant, commenced a claim for damages against him for alleged professional negligence in respect of treatment in 2006. He sent the papers to the MPS; but apparently they did not deal with the claim. In March 2010, Ms X obtained judgment in default, which a later application by the Applicant failed to set aside. In correspondence with the MPS, the Applicant demonstrated that he had made subscription payments to the MPS to December 2006; and so, he said, he was covered by their insurance in respect of Ms A's claim. In a letter to the MPS dated 12 December 2010, he confirmed unequivocally that his indemnity with the MPS ended in January 2007.
As a result of all of that, in late 2010, he applied for membership of the MDU. In his application form, he did not insert dates of his membership of the MPS in the space for that information; and he indicated that he knew of no claims or complaints that had been brought against him, and that no medical defence organisation had refused or terminated his membership. The form itself made clear that completion of the form did not constitute acceptance of the application by the MDU. The Applicant confirmed to the MDU by telephone that all his work since 2005 had been indemnified by the NHS and he had done no other work. In the form, he indicated that he would pay by direct debit, but no direct debit mandate was completed or, at least, drawn on. In any event, on 25 January 2011, the MDU cancelled his application, because of non-payment of the subscription; and they wrote to him to that effect. It is uncontroversial that he received that letter.
He made another application to the MDU in early 2012, which was accepted on 27 April 2012 subject to payment of the annual subscription of £23,923. He provided a bank mandate to them on 30 April 2012. His cover with the MDU was effective from 23 February 2012.
Professional action against the Applicant was triggered in March 2011, when Ms X reported him to the GMC as his professional body, complaining about his lack of insurance to meet her claim, which had resulted in delay in her being compensated. That resulted in an inquiry, and the allegations made against him based upon the proposition that he did not have indemnity cover, not in 2006 when he treated Ms X, but from 2007.
In respect of the primary factual issue as to whether the Applicant was a member of a medical defence organisation from 2007 to 2012, Holroyde J summarised the Tribunal's findings (at paragraphs 67–74 of their determination) at [38]–[40] of his judgment. By way of explanation, I should say that Mr Cardno is an employee of the MDU, who gave evidence to the Tribunal.
"38. … They [i.e. the Tribunal] accepted that on 21 May 2007 MPS wrote to [the Applicant] informing him that his membership had been terminated for non-payment of his subscription. They accepted [the Applicant's] evidence that MPS had acted in error, because he had not cancelled his direct debit. Partly for that reason, and partly because the precise terms of the letter of 21 May 2007 were not available, the Tribunal did not accept the argument that the effect of that letter was to cancel [the Applicant's] membership with retrospective effect as from December 2005. The Tribunal were however satisfied that the letter had conveyed to [the Applicant] that MPS no longer regarded him as a member; that MPS was under no obligation to continue his membership after the then-current...
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