Zuber Bux v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 31 March 2021 |
| Neutral Citation | [2021] EWHC 762 (Admin) |
| Docket Number | Case No: CO/4888/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 March 2021 |
[2021] EWHC 762 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: CO/4888/2019
Ramby de Mello & Rashid Ahmed (instructed by Marks & Marks Solicitors) for the Appellant
Peter Mant instructed directly by the Respondent
Hearing date: 24 March 2021
Approved Judgment
Dr Zuber Bux (“the appellant”) appeals against the findings of the Medical Practitioners Tribunal (“MPT”) made on 9 and 14 October 2019 and against the decision given on 16 October 2019 directing his erasure from the Medical Register.
On 9 October 2019 the MPT made findings of fact that the appellant had acted in a state of conflict of interest, dishonestly and for financial gain. Based on those findings, on 14 October 2019, in the impairment phase of the proceedings, the MPT found that the appellant's fitness to practise was currently impaired by reason of misconduct. On 16 October 2019, in the sanctions phase of the proceedings, the MPT directed that the appellant be erased from the Medical Register, with an immediate order for his suspension.
The facts found proved fell into four categories, namely:
i) that the appellant acted in a state of conflict of interest by accepting instructions (through an agent, Medico Legal and Litigation Services Ltd (“MLLS”)) to prepare medico-legal reports in respect of holiday sickness claims, from a firm of solicitors (AMS Solicitors Limited (“AMS”)), in which his wife, Mrs Sehana Bux, was a salaried partner;
ii) that in one case he gave a deliberately false answer (in a reply endorsed with a statement of truth) to questions posed to him as an expert under CPR 35.6;
iii) that he made diagnoses without proper evidence, without identifying the existence of a range of opinions, and had in his reports failed to follow the requirements of CPR Part 35; and
iv) that he improperly performed a circumcision procedure in the community and in so doing failed to recognise or advise in terms of the risk of doing so.
Although there is a formal appeal against the fourth category of found facts, that was not pursued before me.
The reports which were the subject of the proceedings were written by the appellant in 2016. The appellant had started undertaking medico-legal work in about 2008. The work involved writing expert medical reports for the benefit of claimants who had made holiday sickness claims in the County Court. The appellant was instructed, through MLLS acting as an agent, by a variety of solicitors, including AMS.
In 2011, in circumstances which I will describe later, the appellant paused his medico-legal work, but resumed it in 2016, accepting instructions from that point solely from AMS via MLLS. Thereafter, he produced expert medical reports on an industrial scale. Between 2016 and 2017 he wrote reports in 684 cases which generated a substantial part of his income. For each report he was paid £180 plus VAT. Therefore for those reports he received £123,120 plus VAT. These fees were paid into a service company, Bux Incorporated Ltd, of which he held 55% of the shares and his wife 45%.
The way the system worked was as follows. A claimant, alleging food poisoning said to have been suffered while on holiday, would instruct AMS to make a claim on a conditional fee basis. AMS would commission a medical report from the appellant. In an interlocutory judgment given on 6 August 2018 by HHJ Gregory in the County Court at Liverpool (to which I will turn later) it is recorded at [30] that:
“… each letter of claim is sent out in the name of Mrs Sehanna Bux and identifies Dr Bux within the schedule of nominated medical experts.”
The reports were written by the appellant, so far as I can tell, on a boilerplate basis. They were superficial, unanalytical, devoid of any differential diagnoses, and were invariably supportive of the claim. They would generally conclude with the words (or words to the same effect):
“I am of the opinion that the symptoms are due to infective gastroenteritis as a consequence of food poisoning. On the balance of probabilities, this was due to inadequate food preparation and food handling at the hotel…”
It has not been suggested to me that even once the appellant wrote a report which was unfavourable to a claimant.
Once written, the report would be sent to the defendant travel company, which would pass it on to its insurers. In almost all cases the insurers would accept the claim, and would pay up the relatively small amount of damages sought. The success of the system depended critically on production of a favourable medical report supportive of the claim.
Of course, in the event that a report were to be written which was unfavourable, then the claim could not be pursued, and no costs covering the fee would be recovered. The fee was, however, payable irrespective of the success of the claim, and would, in the event of the failure of the claim, have been paid from the profits otherwise generated by the scheme. But the evidence I have read does not suggest that this happened other than rarely, if at all.
If a report were written which disclosed that the expert was married to a salaried partner in the firm of solicitors which instructed him then it can easily be apprehended that the insurers would likely not accept the report but would, rather, challenge the claim, and seek to disqualify the expert. Therefore, there was a strong financial motive, as the MPT found, to keep quiet about that connection in order to keep up the lucrative throughput of uncontested claims.
It was inevitable that the scheme, which had all the hallmarks of a corrupt practice, would be eventually exposed. In 2018 the GMC received complaints about the appellant's conduct. The complaints raised allegations about the independence of the appellant's reports; his failure to disclose his personal connection with AMS solicitors who instructed him; and the lack of any evidential base or reasoning in his reports.
Those complaints led to the GMC laying the charges against the appellant, which in turn led to the findings and sanction referred to above.
The grounds of appeal can be summarised as follows:
i) there was no conflict of interest, that issue having been decided in the appellant's favour by a preliminary-issue judgment given by HHJ Gregory in the County Court at Liverpool in one of the claims where the appellant was acting as an expert witness;
ii) as there was no conflict of interest, there was no duty on the appellant as expert to disclose anything;
iii) the flawed finding by the MPT that there was a conflict of interest, and a breach of the duty to disclose it, contaminated the findings on improper diagnoses, dishonesty and financial motive;
iv) the MPT applied an incorrect legal test to the question of dishonesty, and its finding in that regard was thereby vitiated; and
v) the sanction of erasure was disproportionate, unduly harsh and unreasonable.
Mr de Mello accepted in his submissions that if I were to dismiss grounds (i) – (iv) then dishonesty having been sustained, the sanction of erasure could not be challenged.
The duties of an expert witness in civil and regulatory proceedings
The duties of an expert witness in civil proceedings are prescribed by CPR Part 35. It is the duty of an expert to help the Court on matters within his or her expertise; and this duty overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid ( CPR 35.3).
It is axiomatic that the evidence of an expert should be independent, unbiased and objective. CPR PD 35 paras 2.1 and 2.2 state:
“2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
2.2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate”.
These rules reflect earlier caselaw. In Whitehouse v Jordan [1981] 1 WLR 246 Lord Wilberforce said:
“Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.”
In his well-known guidance in The Ikarian Reefer [1993] 2 Lloyds Rep 63, 81 Cresswell J stated:
“An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise.”
In Vernon v Bosley (expert evidence) [1998] 1 FLR 297 Thorpe LJ used a vivid metaphor to describe the expert's duty of independence:
“The area of expertise in any case may be likened to a broad street with the plaintiff walking on one pavement and the defendant walking on the opposite one. Somehow the expert must be ever-mindful of the need to walk straight down the middle of the road and to resist the temptation to join the party from whom his instructions come on the pavement”'
The obligation to give an unbiased opinion plainly carries with it the obligation to disclose any actual or potential conflicts of interest. Surprisingly, there is no explicit reference to this either in the rules or the Practice Directions. This is notwithstanding that in Toth v Jarman [2006] EWCA Civ 1028 at [119] the Court of Appeal suggested that the Civil Procedure Rule Committee should amend the standard terms of the declaration in an expert's report to state that the expert has not left undisclosed any conflict of interest which might bring into question the suitability of his evidence as the basis for the court's decision.
The current standard terms for an expert's declaration are found in CPR PD 35 para 3.2. This prescribes the contents of an...
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