Shalaby v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden |
| Judgment Date | 14 June 2017 |
| Neutral Citation | [2017] EWCA Civ 1693 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 June 2017 |
| Docket Number | Case No: B2/2015/2997 |
[2017] EWCA Civ 1693
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE COLLENDER QC)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lady Justice Arden
Case No: B2/2015/2997
Mr L Dilaimi (instructed by the Pro Bono Bar Unit) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
This is a renewed application for permission to appeal, and it arises out of the order of HHJ Collender sitting in the Mayor's and City of London Court, and his order is 21 August 2015, when he dismissed an appeal from the decision of the panel appointed by the GMC under the Medicines Act, the Registration Appeal Panel, which had decided in October 2014 to reject an application by the appellant, Dr Shenouda Shalaby.
This is an appeal to the court of a relatively unusual kind, but the circumstances were considered quite recently by this court in Nakhla v General Medical Council [2014] EWCA Civ 1522, and I am indebted to the judgments in that case for explaining the nature of the jurisdiction of the courts. The position is that there is an appeal to the court and the court has ample powers to correct any irregularity and of course to deal with any error of law, but in the usual way the Court of Appeal does not intervene in findings of fact made by a fact-finding tribunal, still less a specialist tribunal, unless there are solid grounds for doing so, and the reason is perfectly obvious, that the specialist tribunal in particular will be using its experience and specialist knowledge and also its observation of the witnesses giving evidence. So it is an unusual case if this court gives permission to appeal on the grounds that the tribunal was wrong in fact. In the usual way this court looks for an arguable point, but as this is a second appeal (the first appeal went to HHJ Collender) then there has to be an important point of principle or practice.
Counsel appears under the Pro Bono Scheme, and I am extremely grateful to counsel, Mr Dilaimi, for appearing today. He has prepared a most helpful skeleton argument and an advocate's statement, and I have been greatly assisted by the precision and skill in which he has put his submissions. They will enable me to put the points I hope equally concisely. What Mr Dilaimi has done is he has limited his submissions to ground five in the grounds of appeal. The position is that there is a timing point here. When Dr Shalaby made his first application for registration, he did so at the time when the requirements to be met were laid down by a 2006 curriculum. Unfortunately, that application did not succeed and the application was declined by a decision which is to be found in a letter of 30 March 2009. There is a letter which informs Dr Shalaby of the fact that the application to be entered on the specialist register had been determined and that it had been unsuccessful, and it explained that two things were possible. He could undertake some more training and make another application or, as they put it, a renewed application for entry to the specialist register, and that had to be filed "normally within three years from the date of this letter". In fact an application was made shortly after the end of that time period, but no point was taken by the GMC and I will assume in Dr Shalaby's favour that he is right to say that the application was treated as in time and that the judge was wrong to suggest otherwise. In the judge's judgment, however, it was not a crucial point. It was however a point he made, and I am prepared to proceed on the basis that he was wrong to do so.
The first method of taking the matter forward was then the "renewed application for entry" or, alternatively, seeking a review of the PMETB's decision (that is, the Board's decision), and there could be an appeal. In fact Dr Shalaby did both things, seek a review and make a renewed application. When those matters were heard by the Registration Appeal Panel or, if I may call it, the RAP, the panel stated very clearly that now, at the time of this further application, the rules were different. It was now a 2010 curriculum which he to satisfy. Dr Shalaby, who was represented on that occasion, objected but in the end agreed to the matter proceeding. But there was a crucial difference, he submits on this application, between the two curricula, and he submits that he should just have been asked to meet the defects in his application that had been pointed in 2009.
I have to ask myself whether this further approach for registration was a new application, because the position is that there was a saving provision in the order which brought to an end the Board and instituted in its place the new Registration Appeal Panel which I call the RAP, and this saving provision is to be found in the 2010 order, to which I will now refer. It is Schedule 2, paragraph 7 of the General and Specialist Medical Practice (Education, Training and Qualifications) Order 2010 (SI No 234/2010). Paragraph 7 provides as follows in paragraphs (1) and (2):
"7.—(1) Applications to the Board for a person to...
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