The Professional Standards Authority for Health and Social Care v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 09 August 2019 |
| Neutral Citation | [2019] EWHC 2192 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 August 2019 |
| Docket Number | Case No: CO/250/2019 |
[2019] EWHC 2192 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Freedman
Case No: CO/250/2019
Ms Fenella Morris QC (instructed by Browne Jacobson LLP) for the Appellant
Mr Christopher Knight (instructed by GMC Legal) for the First Respondent
Mr Richard Booth QC (instructed by DWF Law LLP) for the 2 nd Respondent
Hearing dates: 22 May 2019
Approved Judgment
Introduction
I delivered judgment in this matter Neutral Citation Number: [2019] EWHC 1638 (Admin). Since handing down the matter in Court, I have received the following submissions as to costs and as to the form of the warning, namely
(1) The Appellant of Fenella Morris QC dated 5 July 2019;
(2) The Second Respondent of Richard Booth QC dated 12 July 2019;
(3) The First Respondent of Christopher Knight dated 17 July 2019;
(4) The Appellant of Fenella Morris QC in reply dated 23 July 2019;
(The Second Respondent has informed the Court through his solicitor that he intends to make no further submission in reply, no doubt recognising sensibly that his submission of 12 July 2019 sufficed.)
Costs
The Appellant is partially the successful party. It has succeeded in the sense that there now will be a sanction for the misconduct. It has not succeeded in that it argued on impairment, but the Court has imposed a warning only. The Court rejected the third ground about inadequacy of reasons, but this did not add significantly to the costs.
The question is what order should be made as between the Appellant and the Second Respondent to reflect the fact that the warning challenge succeeded, but the impairment challenge failed. The Second Respondent says that 80% of the time was spent on impairment, but 20% of the time was spent on warning. I do not accept that that correctly reflects the time spent.
There is a more fundamental point of cross-over between the two issues. Looking at the judgment, there is considerable cross-over in the analysis of the background (paragraphs 1–39) and the discussion regarding respect for the decision-making body, the consequences of a finding of misconduct, where misconduct is dishonesty and features about the facts in the instant case (paragraphs 88–102). There are matters in respect of the consideration of the grounds relating to impairment (paragraphs 40–59) and the decision on impairment (103–117). However, that discussion was informative to the decision on warnings. Thus, in my judgment, if the appeal had been limited to warnings, I find that the cross-over was such that substantially more than 50% of the costs would still have been incurred.
If it were possible to identify a percentage of time relating solely to impairment, that would be substantially less than 50% of the time. It follows that substantially more than 50% of the time was taken up either on matters relating solely to warning or matters crossing over between warning and impairment, and which in my view would have been incurred if the appeal had been restricted to warning alone. I recognise that the judgment and the time in the hearing does not necessarily reflect the time spent in preparation for the hearing. I recognise also that a finding of impairment would have had even harsher consequences than a warning, and in that sense may have represented the more critical part of the case for the Second Respondent.
One possible approach is to make costs orders in different directions, that is to say the costs of impairment to be paid by the Appellant to the Second Respondent and for the costs of the warning to be paid from the Second Respondent to the Appellant. However, this does not seem to be appropriate having regard to the fact that the overall successful party, albeit partial, was the Appellant whose appeal as a whole was intended to give a consequence to the finding of misconduct. Further, a matter which I take into account in the exercise of my discretion is that the appeal was brought by the Appellant in its public function which it was required to perform and it did not act unreasonably in pursuing the appeal on impairment. In any event, a split order as to costs would not adequately reflect the true impact of the cross-over point referred to in paragraph 4 above.
The Court has also taken into account that its Order must reflect not simply the percentage of the Appellant's costs referable to impairment alone, but also give some recognition to the fact that the Second Respondent will have suffered costs in respect of impairment alone, and, as noted in paragraph 5 above, impairment was a very significant issue. In order to reflect all of the above matters and taking into account the submissions which the Court has received, the Order which I make is that the Second Respondent shall pay 50% of the costs of the Appellant.
The Second Respondent submitted that if in fact the Tribunal had imposed a warning, but not found impairment and the appeal had been on impairment, then there would be no question of ordering costs against the Second Respondent. However, that does not advance the case because that did not occur, and therefore the Court has dealt with different facts. Further, this is not a case where the Second Respondent said that he would submit to a warning either openly or without prejudice save as to costs: on the contrary, he fought the appeal as heavily on warning as he did on impairment, and the Appellant succeeded on warning.
I make no order against the First Respondent. It has taken no part in the appeal, as it was entitled so to do on the facts of this case. It did not have a duty to make the appeal in the circumstances of this case. I accept that it is independent of the...
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