The Queen (on the Application of B) v The Office of the Independent Adjudicator

JurisdictionEngland & Wales
JudgeJohn Bowers
Judgment Date30 July 2018
Neutral Citation[2018] EWHC 1971 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/5681/2017
Date30 July 2018

[2018] EWHC 1971 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

John Bowers QC sitting as a Deputy High Court Judge

Case No: CO/5681/2017

Between:
The Queen (On the Application of B)
Claimant
and
The Office of the Independent Adjudicator
Defendant

Leon Glenister (instructed by John Ford Solicitors for the Claimant)

Paul Skinner (instructed by EJ Winter & Son LLP for the Defendant)

Hearing dates: 17 & 18 July 2018

Approved Judgment

John Bowers QC:

1

The Claimant complains of a decision by the Defendant (“the OIA”). He seeks to reopen Fitness to Practise (“FTP”) procedures dating back to 2010 and to “clear his name” as his Counsel put it because the Claimant realistically accepts that so long after the event it will now be difficult (if not impossible) for him to become a doctor. He says that his main aim is to avoid the ongoing stain to his reputation and CV of what happened between 2002 and 2009.

The history

2

It is necessary to set out some of the relevant history which is somewhat complex. The Claimant began the MB ChB medical course at the University of Leicester in 2002, but his registration was suspended in 2003 for one year due to after the Claimant was bound over for affray. He re-joined the course in 2004 and began Phase II of the course in 2006. He failed to pay fees in 2009.

3

On 26 May 2009, the Claimant made a long and trenchant complaint to the University about the organisation of the course. It was described by the Claimant's Counsel as “a blunt letter, which is a result of the Claimant having endured what he perceived as years of sub-standard training, bullying, discrimination and concerns about the standards of care delivered in hospitals to patients by Leicester graduates – concerns which had not been listened to”.

4

Its tenor may be seen from these passages:

A. “Any fool that is except for the ones employed by Leicester Medical School can see that a process where trainees teach trainees is a recipe for absolute disaster”;

B. “As a result of my placement in obstetrics I know as much about the delivery of neonates as the security guard at Morrison's supermarket”;

C. “I had timetables that were about as accurate as an Iraqi scud missile”;

D. “The cosy world of academia and the NHS is a great place to hide if you are bone idle and inept”.

5

The University investigated the complaint and declined to uphold it for reasons of which he was informed by letter dated 7 July 2009. The University partly in response to these allegations reported the Claimant to the FTP Committee to consider his fitness to practise. This came after he had completed all 5 years of the course he was on, and had passed his exams to a high standard and after the University had originally decided not to go down such a procedure.

Fitness to Practise procedure

6

It is important to note that the Claimant did not take part in those proceedings whether orally or in writing as he made clear in an email dated 6 March 2010.

7

On 15 March 2010, the Claimant was found by the University of Leicester to be unfit to practise as a doctor and it was decided that he should not be awarded the MBChB or be permitted to graduate (this latter aspect is not germane to the issues before me). In summary, the decision stated:

a. There were a number of substantiated instances of conduct which should be categorised as aggressive and unprofessional, which included “your bind over for affray in 2003”; “your withdrawal from the cardiovascular medicine block making independent unapproved alternative arrangements”; “the concerns expressed in statements from Dr Chohan and Ms McVicar about your conduct towards them and others”; “the sustained intemperate and abusive language of your letter of complaint to the Chancellor in 2009”;

b. It noted that other “evidence was more circumstantial, but was consistent with the same picture”; and

c. The conclusion was “was reinforced by the frequent occasions in your history in which you had failed to engage fully and co-operatively with the Medical School and other University authorities, including but by no means limited to your decision not to meet the Dean to discuss your complaint, and your refusal to assist Professor Sayers in carrying out his investigation”.

8

The Claimant thereafter made a complaint to the Defendant on two bases, the second being directly in respect of the Fitness to Practise decision. By decision dated 2 October 2011, the OIA refused to accept the complaint as it was not satisfied that the Claimant was unable to go back to the University to resolve matters. The Claimant sent further submissions on 8 November 2011 and 13 December 2011, acknowledging the internal complaints procedure had not been exhausted but requesting that the OIA should exercise the discretion which it has under its own rules. The OIA however reaffirmed its original decision on 11 January 2012. An application for judicial review followed but this was not granted leave.

The breach of contract claim

9

On 14 July 2015, the Claimant issued a civil claim against the University of Leicester for breach of contract, and in respect of relief seeking inter alia, an injunction to have the 2010 proceedings re-opened. The precise nature ofe this claim is at the heart of the second issue which I have to consider.

10

The claim made two central allegations as to a breach of contract that:

a. the University “acted unfairly in determining whether or not the Claimant was fit to practise as a doctor”; and

b. the University “wrongly withheld the Claimant's MB ChB degree”.

The second part is not relevant to the issues before me.

11

The relevant particulars of breach as to the unfairness are in paragraph 32 of the Particulars of Claim and are all purely procedural and do not advert to the existence of fresh evidence.

12

Mr Hyams, the Counsel who drafted the pleadings for the Claimant, also sought somewhat tentatively an injunction on the following basis:

“35. One possible remedy for the unfair procedure follows (as described above) in the determination by the University that the Claimant was not fit to practise is damages alone. However, it is still possible for the Claimant to have a fair consideration of the allegations concerning his fitness to practise and a fair hearing before a panel of the University's Fitness to Practice Committee, and the Claimant seeks an injunction, requiring the University to carry out a fresh investigation of the allegations concerning his fitness to practise and, if such investigation concludes that those allegations merit consideration by a panel of that committee, to convene a new panel of that committee, to determine afresh, and in a fair manner, whether or not the Claimant is fit to practise as a medical doctor. Therefore, the Claimant seeks (1) such reconsideration, and, if appropriate such a fresh hearing, and (2) damages.” (I added underlinings for emphasis)

It is unusual in a pleading to talk about a “possible remedy” but it does appear to envisage new evidence being put in as it speaks of a “fresh investigation” and a request to “determine afresh”.

The Tomlin Order

13

In due course, after a successful strike out application was made by the University on 14 October 2016 (which was then under application to be set aside) the whole claim was settled by a “Tomlin Order with a Confidential Schedule”, by which the Claimant compromised all claims, rights, demands and set offs, whether known to the Claimant or the University or to the law, that he ever had, may have, or shall have against the University. I need to consider the terms of that Tomlin Order in more detail under Issues 2 and 3.

14

At the heart of his submissions, the Claimant says that to the extent the FTP Decision was challenged in the contract claim, that was only on the basis of the procedure adopted by the Panel and that there was no specific reference to new evidence (a nd I shall come to the submissions at greater length in due course).

15

The Claimant contends that it is also of great importance that during the negotiations the parties were aware that there was new evidence which the Claimant might want to deploy at some stage because of this interchange:

a. By email on 14 February 2017, Ms Gill (the Claimant's solicitor) asked of the University's solicitor:

“[The Claimant] would ask the University to confirm, for the avoidance of any doubt, that the revised agreement will not preclude the University from reopening the question of his fitness to practise on the basis of further evidence post-dating 11 th March 2010 being made available.”

b. In response, by email on 15 February 2017, Mr Rance (the University's solicitor) said:

“I am sorry to be difficult, but the first point to note is that is a matter on which you will need to advise your client. It is not our / the University's role to add any additional gloss to the terms of the agreement, which have now been debated at some length and which we had understood was virtually agreed.

That said, for the University's part, I am able to say that the University does not seek to pre-judge the outcome of any future developments, whatever they may be.”

16

The Claimant says that it was never contended by the University that this should be brought within the scope of the 2015 contract claim, and it is implicit that the parties understood it to be a separate matter.

Fresh evidence

17

I now turn to the question of what that new evidence consisted. After the FTP hearing, the Claimant sought at various stages further information which specifically went to the conclusions which had been reached in the FTP Decision which I have summarised above. The Defendant points out that much of this information was available to the Claimant some years ago before the present Complaint (and some indeed at the time of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT