General Medical Council v Adeogba [2016] EWCA Civ 162

Case No C1/2014/2822[2016] EWCA Civ 162
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
His Honour Judge Graham Wood Q.C. CO/218/2014
His Honour Judge Bird CO/2219/2014
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/03/2016
Before
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION(SIR BRIAN LEVESON)LORD JUSTICE GROSSSIR STANLEY BURNTON(sitting as a Judge of the Court of Appeal)
Between
GENERAL MEDICAL COUNCILAppellantOLUFEMI ADEYINKA ADEOGBARespondentAnd Between :
Between
GENERAL MEDICAL COUNCILAppellantEVANGELOS-EFSTATHIOS VISVARDISRespondent
Ivan Hare (instructed by GMC Legal, Manchester) for AppellantSimon Gurney (instructed under direct access rules) for Olufemi Adeyinka Adeogba for Evangelos-Efstathios Visvardis did not appear and was not representedHearing Hearing date : 24 February 2016
JudgmentSir Brian Leveson P :
[1]These appeals (which are factually unconnected) both concern the approach to be adopted by a professional regulator, in this case the General Medical Council (“the GMC”), when those whom it seeks to regulate do not participate in the potentially lengthy disciplinary hearing convened to examine their behaviour. In neither case did the doctor concerned attend the panel. Dr Olufemi Adeyinka Adeogba (“Dr Adeogba”), was in Nigeria, did not answer correspondence and did not attend the hearing because, knowing of the investigation and his time limited suspension, he left the country and then failed to access the only mechanisms available to the GMC to communicate with him. Dr Evangelos-Efstathios Visvardis ("Dr Visvardis") challenged the disciplinary process and refused to participate until his concerns had been addressed.[2]In both cases, arrangements had been made for what were anticipated might be proceedings of substantial length. Such a hearing was listed for some 20 days (from 9 December 2013) in the case of Dr Adeogba and for 7 days (3-11 April 2014) in the case of Dr Visvardis. Having considered the available evidence as to the reasons for non-attendance, in both cases the Fitness to Practise Panel of the Medical Practitioners Tribunal Service (“the Panel”) appointed to hear the complaints determined to continue in the absence of the doctor. Having examined and, to some extent, tested the evidence supporting the complaint, in whole or in part, the cases were found proved. Having followed the procedure prescribed by the General Medical Council (Fitness to Practise) Rules 2004 (“the Rules”), both doctors were erased from the medical register.[3]Both doctors appealed against the decision in their individual case to the Administrative Court. On 1 August 2014, His Honour Judge Graham Wood Q.C. (sitting as a deputy Judge of the High Court) having admitted fresh evidence, determined that the Panel was wrong to proceed in the absence of Dr Adeogba: see [2014] EWHC 3872 (Admin). On 28 November 2014, His Honour Judge Bird (similarly sitting as a deputy Judge of the High Court) also decided that the (differently constituted) Panel was wrong to proceed in the absence of Dr Visvardis: see [2014] EWHC 4531 (Admin). In both cases, fresh hearings were ordered; further challenges to the findings of the Panels were not analysed.[4]Granting leave to appeal for a second appeal, again in both cases, Pitchford LJ observed that the grounds raised important points of principle and practice in relation to matters of public interest, the merits of which were strong; he directed that the cases should be linked. As regards the significance of the issues raised, there is no doubt that Pitchford LJ was correct: the statistics with which we were provided from the Panel are to the effect that of 488 cases before the panel in the two calendar years 2014 and 2015, 146 proceeded in the absence of the affected practitioner.[5]We have proceeded by considering, in each case, the decision to proceed in the absence of the medical practitioner and the question of the admissibility of fresh evidence both as to the reason for non-appearance and, in the case of Dr Adeogba, the general merits. We have not analysed the remaining unresolved issues relating to the challenge to the respective decisions of the Panels based on the material which was, in fact, adduced as evidence. In relation to Dr Adeogba, it has been agreed that if the GMC successfully challenge either decision, any remaining unresolved issues should be remitted for determination in the High Court; Dr Visvardis has not engaged in this appeal but, in the circumstances, we would take the same course in his case. Before considering the facts of the cases and the individual appeals, I shall analyse the statutory regime and the issues of law involved.

The Law: Proceeding in Absence

[6]There is a clear public interest in the proper regulation of the medical profession and the mechanism by which Parliament has determined that this public interest should be satisfied is through the GMC, a body corporate recognised by s. 1(1) of the Medical Act 1983 (“1983 Act”) as having the functions assigned to them by that Act. By s. 1(1A), its priority is clear:
“The main objective of the [GMC] in exercising their functions is to protect, promote and maintain the health and safety of the public.”
[7]The mechanism whereby the GMC operates is also described in the legislation: see s. 1(3) of the 1983 Act. It operates through a number of committees, including Interim Orders Panels, an Investigation Committee, and one or more Panels whose functions are to investigate and resolve allegations against medical practitioners: see Part V. In that regard, s. 35C specifies that the Investigation Committee investigates allegations of registered persons’ fitness to practise being impaired and decides whether allegations should be considered by a Fitness to Practise Panel. Under s. 35D, it is the responsibility of the Panel to determine whether a person’s fitness to practise is impaired and, if so, decide on appropriate sanction. An Interim Orders Panel or Fitness to Practise Panel also may make an order to suspend or make a person’s registration conditional (s. 41A).[8]Exercising its powers under the Act and after appropriate consultation, the GMC have promulgated the 2004 Rules which regulate the procedure by which these committees investigate and resolve allegations against medical practitioners. Having regard to the objective identified by s. 1(1A) of the 1983 Act, it is not surprising that these Rules must be construed accordingly. Thus, in Zia v General Medical Council [2011] EWCA Civ 743; [2012] 1 WLR 504, Tomlinson LJ made clear (at [46]):
“Thus I do not, for my part, approach the construction of the Rules on the basis that the various stages described therein should be regarded as prescribed for the protection of the person against whom the allegation is made. I approach the task of construction of the Rules rather on the footing that the Rules are intended to provide a framework for the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners.”
[9]In the context of the issues in these cases, a number of rules fall to be considered. Thus, Rule 31 of the 2004 Rules provides:
“Where the practitioner is neither present nor represented at a [fitness to practise] hearing, the Committee or Panel may nevertheless proceed to consider and determine the allegation if they are satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with these Rules.”
[10]As for notice, Rule 15 provides: “(1) ... as soon as reasonably practicable after an allegation has been referred to a FTP Panel the Registrar shall serve a notice of hearing on the practitioner. (2) The notice of hearing shall-(a) particularise the allegation against the practitioner and the facts upon which it is based;(b) specify the date, time and venue of the hearing;(c) inform the practitioner of his right to attend the hearing and to be represented at the hearing in accordance with rule 33;(d) inform the practitioner of the power of the FTP Panel to proceed in his absence under rule 31;(e) inform the practitioner of his right to adduce evidence in accordance with rule 34 and to call and cross-examine witnesses; and(f) inform the practitioner of the FTP Panel's powers of disposal under section 35D, section 38 and section 41A of the Act. (3) The Registrar shall give no less than 28 days' notice of the date and location of the hearing and no less than 7 days' notice of the precise time and venue of the hearing. (4) The Registrar may give a shorter period of notice than that specified in paragraph (3) where the practitioner consents or the Registrar considers it reasonable in the public interest in the exceptional circumstances of the case of the hearing.” (a) particularise the allegation against the practitioner and the facts upon which it is based; (b) specify the date, time and venue of the hearing; (c) inform the practitioner of his right to attend the hearing and to be represented at the hearing in accordance with rule 33; (d) inform the practitioner of the power of the FTP Panel to proceed in his absence under rule 31; (e) inform the practitioner of his right to adduce evidence in accordance with rule 34 and to call and cross-examine witnesses; and (f) inform the practitioner of the FTP Panel's powers of disposal under section 35D, section 38 and section 41A of the Act.[11]Furthermore, Rule 40 provides:
“(1) Any notice of hearing required to be served upon the practitioner under these Rules shall be served in accordance with paragraph 8 of Schedule 4 to the [1983] Act. (2) Subject to paragraph (1), any notice or document required to be served upon the practitioner under these Rules may be served— (a) by ordinary post; or (b) by electronic mail to an electronic mail address that the practitioner has notified to the Registrar as an address for communications. (3) If the practitioner is represented by— (a) a solicitor, the notice or document may also be— (i) sent or delivered to the solicitor's practising address, or (ii) sent by electronic mail to an electronic mail address of the solicitor; or (b) a trade union or defence organisation, the notice or document may also be— (i) sent or delivered to the trade union or defence organisation's business address; or (ii) sent by electronic mail to an electronic mail address of the trade union or defence organisation, where the address has been notified to the Registrar as an address for communications. (4) The service of any notice or document under these Rules may be proved by— (a) a confirmation of posting issued by or on behalf of the Post Office, or other postal operator or delivery service; (b) a confirmation of receipt of the notice or document sent by electronic mail; or (c) a signed statement from any person serving the notice or document confirming that the notice or document was delivered to, sent to or left at— (i) the practitioner's proper address, (ii) the practising address or electronic mail address of the practitioner's solicitor, or (iii) the business address or electronic mail address of the practitioner's trade union or defence organisation.” (a) by ordinary post; or (b) by electronic mail to an electronic mail address that the practitioner has notified to the Registrar as an address for communications. (a) a solicitor, the notice or document may also be— (i) sent or delivered to the solicitor's practising address, or (ii) sent by electronic mail to an electronic mail address of the solicitor; or (b) a trade union or defence organisation, the notice or document may also be— (i) sent or delivered to the trade union or defence organisation's business address; or (ii) sent by electronic mail to an electronic mail address of the trade union or defence organisation, where the address has been notified to the Registrar as an address for communications. (a) a confirmation of posting issued by or on behalf of the Post Office, or other postal operator or delivery service; (b) a confirmation of receipt of the notice or document sent by electronic mail; or (c) a signed statement from any person serving the notice or document confirming that the notice or document was delivered to, sent to or left at— (i) the practitioner's proper address, (ii) the practising address or electronic mail address of the practitioner's solicitor, or (iii) the business address or electronic mail address of the practitioner's trade union or defence organisation.”
[12]In addition, as identified in Rule 40(1), the manner of service is also prescribed in primary legislation. Schedule 4 of the 1983 Act sets out (at para. 8):
“(2) Any such notice may be so served— (a) by delivering it to him; (b) by leaving it at his proper address; (c) by sending it by a registered post service; or (d) by sending it by a postal service which provides for the delivery of the notice by post to be recorded. (3) For the purposes of this paragraph and of section 7 of the Interpretation Act 1978 in its application to this paragraph, a person’s proper address shall be— (a) his address in the register; or (b) if the conditions in sub-paragraph (4) below are satisfied, his last known address. (4) The conditions are that— (a) the person’s last known address differs from his address in the register; and (b) it appears to the Registrar that a letter sent to the person at his last known address is more likely to reach him.” (a) by delivering it to him; (b) by leaving it at his proper address; (c) by sending it by a registered post service; or (d) by sending it by a postal service which provides for the delivery of the notice by post to be recorded. (a) his address in the register; or (b) if the conditions in sub-paragraph (4) below are satisfied, his last known address. (a) the person’s last known address differs from his address in the register; and (b) it appears to the Registrar that a letter sent to the person at his last known address is more likely to reach him.”
[13]Assuming that service can be established within the Rules, it was not in dispute between the GMC and Dr Adeogba that the relevant Panel (as appropriately advised by its legal assessor) must approach the decision under Rule 31 whether to proceed in the absence of the medical practitioner by reference to the principles developed by the criminal law in relation to trial in the absence of a defendant. Thus, the starting point is R v Hayward, R v Jones, R v Purvis QB 862 [2001], EWCA Crim 168 [2001] in which an experienced Court of Appeal (Rose LJ, Hooper and Goldring JJ) distilled the domestic and Convention authorities and set out guidance which, insofar as it is relevant to Rule 31 provides (at [22(3)-(5)]): “3. The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.[4]That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.[5]In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular:(i) the nature and circumstances of the defendant's behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;(ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;(iii) the likely length of such an adjournment;(iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;(v) whether an absent defendant's legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence;(vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;(vii) the risk of the jury reaching an improper conclusion about the absence of the defendant;(viii) the seriousness of the offence, which affects defendant, victim and public;(ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;(x) the effect of delay on the memories of witnesses;(xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.” (i) the nature and circumstances of the defendant's behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear; (ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings; (iii) the likely length of such an adjournment; (iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation; (v) whether an absent defendant's legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence; (vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him; (vii) the risk of the jury reaching an improper conclusion about the absence of the defendant; (viii) the seriousness of the offence, which affects defendant, victim and public; (ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates; (x) the effect of delay on the memories of witnesses; (xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.”[14]The decision in relation to the second of the three cases then considered by the court was the subject of further appeal to the House of Lords (R v Jones [2002] UKHL 5; [2003] 1 AC 1) where Lord Bingham (with whom Lord Nolan, Lord Hoffmann, Lord Hutton and Lord Rodger agreed) approved the guidance set out above (with the specific exception of that contained in [22(5)(viii)]) and emphasised, at [6], that the discretion to continue in the absence of a defendant should be “exercised with great caution and with close regard to the overall fairness of the proceedings”. Lord Bingham observed that if attributable to involuntary illness or incapacity it would very rarely “if ever” be right to exercise discretion in favour of commencing the trial unless the defendant is represented and asks that the trial should begin. As for the guidance, Lord Bingham considered it “generally desirable” that a defendant be represented even if he had voluntarily absconded but also made it clear (at [14]):
“I do not think that "the seriousness of the offence, which affects defendant, victim and public"… is a matter which should be considered. The judge's overriding concern will be to ensure that the trial, if conducted in the absence of the defendant, will be as fair as circumstances permit and lead to a just outcome. These objects are equally important, whether the offence charged be serious or relatively minor.”
[15]Lord Hoffmann (agreeing with Lord Rodger) expressed himself (at [19]) “not comfortable” with the notion of waiver which required “consciousness of the rights which have been waived”; he preferred to say that they “deliberately chose not to exercise their right to be present or to give adequate instructions to enable lawyers to represent them”.[16]These principles were considered by the Judicial Committee in Tait v Royal College of Veterinary Surgeons ([2003] UKPC 34, (2003) WL 1822941), which concerned an application for a second adjournment of a disciplinary hearing on the grounds of ill health (hypertension) unsupported by medical evidence. The refusal to adjourn was quashed on the grounds that the direction did not comply with the requirements in Jones. Although citing the Court of Appeal’s checklist in Hayward as approved by the House of Lords on appeal in Jones, the Board identified (at [5]) “the seriousness of the case against the defendant” as a relevant factor. In that regard, it does not appear that the Board’s attention was drawn to the exception that Lord Bingham specifically made in relation to seriousness of the offence constituting an exception to Lord Bingham’s approval.[17]In my judgment, the principles set out in Hayward, as qualified and explained by Lord Bingham in Jones, provide a useful starting point for any direction that a legal assessor provides and any decision that a Panel makes under Rule 31 of the 2004 Rules. Having said that, however, it is important to bear in mind that there is a difference between continuing a criminal trial in the absence of the defendant and the decision under Rule 31 to continue a disciplinary hearing. This latter decision must also be guided by the context provided by the main statutory objective of the GMC, namely, the protection, promotion and maintenance of the health and safety of the public as set out in s. 1(1A) of the 1983 Act. In that regard, the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance.[18]It goes without saying that fairness fully encompasses fairness to the affected medical practitioner (a feature of prime importance) but it also involves fairness to the GMC (described in this context as the prosecution in Hayward at [22(5)]). In that regard, it is important that the analogy between criminal prosecution and regulatory proceedings is not taken too far. Steps can be taken to enforce attendance by a defendant; he can be arrested and brought to court. No such remedy is available to a regulator.[19]There are other differences too. First, the GMC represent the public interest in relation to standards of healthcare. It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process. The consequential cost and delay to other cases is real. Where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed.[20]Second, there is a burden on medical practitioners, as there is with all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession.[21]Third, in relation to medical practitioners, it is significant that under s. 31(4) of the 1983 Act, it is the duty of the Registrar to keep the registers correct and to make the necessary alterations in the addresses, qualifications and other registered particulars of registered persons. Accordingly, the GMC requires doctors to provide a current registered address. Not doing so is itself a significant failure and risks removal from the register (although it is clear that erasure in these circumstances is quickly remedied by application and the provision of a current address: see The General Medical Council (Restoration following Administrative Erasure) Regulations Order of Council 2004). Therefore, the fact that a practitioner has not updated contact details with the GMC (particularly when he is aware that he is then subject to disciplinary investigation) is unlikely to provide a reasonable explanation for failure to participate in the process, sufficient to require the Panel to adjourn consideration of a fixed disciplinary hearing.[22]This conclusion is underlined by the fact that Rule 31 specifically mandates that “all reasonable efforts” to have been made to serve the practitioner with notice of the hearing in accordance with 2004 Rules. Thus, in Jatta v Nursing and Midwifery Council [2009] EWCA Civ 824, the respondent was no longer at the address which he had registered but failed to provide a current address. The Court of Appeal held that it was open to the relevant disciplinary committee to proceed to hear the case when he did not appear. Lloyd LJ put the matter (at [31]):
“… in the absence of a notified fresh address the council was bound to send notice to the old registered address and could not be thwarted in its desire to take or continue these disciplinary proceedings by knowing that the only address they had was an address at which the document would not come to his attention.”
[23]Thus, the first question which must be addressed in any case such as these is whether all reasonable efforts have been taken to serve the practitioner with notice. That must be considered against the background of the requirement on the part of the practitioner to provide an address for the purposes of registration along with the methods used by the practitioner to communicate with the GMC and the relevant tribunal during the investigative and interlocutory phases of the case. Assuming that the Panel is satisfied about notice, discretion whether or not to proceed must then be exercised having regard to all the circumstances of which the Panel is aware with fairness to the practitioner being a prime consideration but fairness to the GMC and the interests of the public also taken into account; the criteria for criminal cases must be considered in the context of the different circumstances and different responsibilities of both the GMC and the practitioner.

The Law: Fresh Evidence

[24]The starting point is the nature of the appeal to the High Court from the Fitness to Practice Panel under s. 40 of the 1983 Act. By CPR 52DPD.19.1(2), it is prescribed to be by way of “re-hearing” and “must be supported by written evidence and, if the court so orders, oral evidence”. This does not, however, mean that the court will hear the case afresh. In Threlfall v General Optical Council [2004] EWHC 2683 (Admin),Stanley Burnton J (as he then was) put it this way (at [20]):
“In other words, the appeal court does not normally hear evidence afresh, but considers the appeal on the basis of the record of the evidence in the court below.”
[25]The matter was considered further in Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462 when Auld LJ having considered the foregoing dictum said (at [128]):
“[G]iven the structure of CPR 52.11, the difference between a "review" and a "re-hearing" is clearly thin and variable according to the circumstances and needs of each case, not least in the stipulation in CPR 52.11(2) of the norm for both processes of no oral evidence or evidence not before the lower court. The analysis of May LJ in E I Du Pont de Newmours & Co v ST Du Pont (Note) [2006] 1 WLR 2793, [2003] EWCA Civ 1368, CA, paragraphs 92-98, is instructive on the overlap between the two, namely that a "re-hearing" in rule 52.11(1) may, at the lesser end of the range, merge with that of a “review”, and that “at this margin, attributing one label or the other is a semantic exercise which does not answer such questions of substance as arise in any appeal”.”
[26]It is common ground that fresh evidence (whether written or oral) cannot be admitted as a matter of course: CPR 52.11(2) mandates an order of the court before it will receive oral evidence or evidence which was not before the lower court. Prior to the introduction of the Civil Procedure Rules, after there had been a trial on the merits, this court and others exercising a similar appellate jurisdiction would only receive fresh evidence or order a new trial if three conditions were met. These were identified in Ladd v Marshall [1954] 1 WLR 1489, at 1491 per Denning LJ as follows:
“[F]irst, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
[27]CPR 1.1(1) provides that the overriding objective, insofar as is relevant, is to enable “the court to deal with cases justly and at proportionate costs”. Under CPR 1.1(2)(d), dealing with a case justly and at proportionate cost includes “ensuring that it is dealt with fairly and expeditiously”. In Hamilton v Al-Fayed (No.2) [2000] EWCA Civ 3012, at [11], Lord Phillips MR explained the effect of the CPR’s overriding objective on the Ladd v Marshall conditions:
“We consider that under the new, as under the old, procedure special grounds must be shown to justify the introduction of fresh evidence on appeal. … That question must be considered in the light of the overriding objective of the new CPR. The old cases will, nonetheless remain powerful persuasive authority, for they illustrate the attempts of the courts to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should achieve the right result. That task is one which accords with the overriding objective.”
[28]That approach is also consistent with the more recent decision in Marchmont Investments Ltd v BFO SA [2007] EWCA Civ 677 where May LJ approved a further observation in Hamilton to the effect:
“These principles have been followed by the Court of Appeal for nearly half a century and are in no way in conflict with the overriding objective.”
[29]In Muscat v Health Professions Council [2009] EWCA Civ 1090, this court considered a submission that because of the public interest in assuring that a strike off was warranted, the interests of justice required a broader approach to the admissibility of fresh evidence. In that case, the disciplinary rules (which dealt with radiographers) permitted a right of review "where new evidence relevant to a striking off order becomes available after the making of the order" (Article 30(7) of the Health Professions Order 2001). Smith LJ observed that the prospect of review was a factor to be taken into account when exercising discretion and noted that the right of review in that particular disciplinary regime, “greatly diminishes the importance of the public interest point” ([39]). Having previously observed (at [26]) that the Ladd v Marshall conditions "place a very great impediment before the exercise of the discretion" to admit fresh evidence, she went on to support Silber J in his rejection of the admissibility the fresh evidence in that case and concluded (at [40]):
“The Ladd v Marshall principles were indeed at the heart of the exercise of discretion. Even if Silber J was too dismissive of the potential relevance of the evidence, he was entitled to say that the Appellant had provided no excuse for failing to obtain the evidence in time for the hearing and had shown no special reason why that failure should be overlooked.”
[30]In TZ v General Medical Council [2015] EWHC 1001, Gilbart J analysed Muscat and may be thought to have elevated the absence of a review mechanism as itself justifying departure from Ladd v Marshall (rather than as one of the factors to be taken into account when applying that test). He said (at [95]):
“[G]iven the absence of an equivalent review mechanism in the case of medical practitioner, I regard Muscat as important in its recognition of the factor that it is not in the public interest that a qualified health professional, capable of giving good service to patients, should be struck off his professional register, and that that is a factor which, in an appropriate case, can justify departure from what Smith LJ pithily described as ‘the old Ladd v Marshall straightjacket’.”
[31]It is sufficient for me to say that I do not read Muscat as identifying a different approach to fresh evidence and certainly not one which justifies departure from the well-recognised jurisprudence in this field. The impact of the decision on the public good is, as Smith LJ makes clear, an important feature of the case when it comes to the exercise of discretion but the context of this type of case also requires appropriate consideration to be given to the importance of effective and efficient regulation of the profession. Neither does the decision in Muscat nor the observations of Smith LJ support the proposition that departure from Ladd v Marshall is justified by this principle alone.[32]The presence or absence of a right of review (referred to in Muscat) and the extent to which it is a factor to be taken into account when exercising discretion (see [38]) also justifies further consideration. It is true that the Health Professions Council (in that case) permit the possibility of a review “where new evidence relevant to a striking off order becomes available after the making of the order” (Article 30 of the 2001 Order) but new evidence can properly be construed as evidence which was not available to the relevant panel at the time. That approach is not very different from the approach in Ladd v Marshall requiring that evidence could not have been obtained with reasonable diligence for use at the trial.[33]Further, even in civil litigation, the right to set aside an order obtained after trial in the absence of one of the parties requires that party to demonstrate good reason for not attending as well as a reasonable prospect of success at trial: see CPR 39.3(5)(b) and (c). The commentary to the Rules makes it clear (CPR 39.3.7.2):
“The mere assertion that a party was unaware of the hearing date is unlikely to be sufficient to constitute a good reason. It is usually relevant to inquire whether the party was aware that proceedings had been issued and served. Once a party is aware that proceedings have been served, they have to be taken to expect to receive communications personally from the opposing party and/or the court. That includes notifications of hearing dates. If there is no system in place for ensuring that such communications are received, they are unlikely to be able to rely on the absence of such a system to say that there was a good reason for not attending the hearing.”
[34]This reasoning does not fully translate into the context of disciplinary proceedings (although once a medical practitioner knows that disciplinary proceedings are in train, it is obviously of particular importance that the registered address is up to date and achieves the intention of ensuring that communication by the regulator is received). What is significant, however, is that the need for a good reason for failure to appear requires the same type of analysis whether characterised as setting aside or admission of fresh evidence.[35]Pulling these strands together, in my view, it is clear that evidence as to the reasons why, in any case, a medical practitioner does not appear or engage in a disciplinary hearing is likely to constitute fresh evidence and will require consideration, at least de bene esse. Thus, if a practitioner was taken ill or involved in an accident or had suffered some unforeseen and unforeseeable disaster, that fact would be very relevant to the exercise of discretion whether or not to adjourn and would not have been available at the hearing because, by definition, the practitioner would not have been able to be present to advance it. If there is a good reason for non-attendance, however, it would not necessarily extend to fresh evidence going to the merits of the disciplinary complaint which would have been available to be deployed at the time of the hearing. Dr Olufemi Adeyinka Adeogba[36]Having previously practised in Germany, in 2004, Dr. Adeogba, obtained registration in the United Kingdom in order to work as a visiting plastic surgeon at the Birkdale Clinic. From then until 2011, for brief periods, he regularly travelled from his domicile in Germany to carry out procedures at the clinic’s various locations across England.[37]Following complaints to the GMC made by two patients who had undergone rhinoplasty procedures and four on whom the first respondent had performed breast augmentation surgery and/or uplift, on 6 July 2011, the matter was brought before an Interim Orders Panel (“IOP”) of the Medical Practitioners Tribunal Service (“MPTS”). Dr Adeogba was present and engaged with the proceedings: no interim order was made.[38]There was a further hearing of the IOP on 20 January 2012 and, again, Dr Adeogba attended; an adjournment followed. Significantly, at that hearing, Dr Adeogba confirmed that he had received notice of it through the e-mail address which was registered with the GMC; he also confirmed his registered German postal address, to which notice had also been sent although, because he had been out of Germany at the time, delivery of the hard copy had been unsuccessful. It is also noteworthy that a further e-mail was sent to Dr Adeogba, by a GMC investigations assistant on 30 January, to his registered e-mail address; he clearly received that email because there was a response on the same day.[39]On 8 February 2012, again in the presence of Dr Adeogba, the IOP decided that his registration should be suspended for a period of 18 months pending the continued investigations (including the obtaining of expert evidence) into the allegations which the GMC were pursuing. It was then anticipated that a full fitness to practise hearing would follow.[40]Given his suspension in the United Kingdom and the reduction of work in Germany, Dr Adeogba decided to return home to Nigeria. Critically, he did not inform the GMC and did not provide any new or more appropriate mechanism whereby he might be contacted. Thus, from January 2012 until the notice relating to the hearing before the Panel dated 6 November 2013, the correspondence in relation to the interim order of the IOP and arising out of the investigation was delivered to the address that Dr Adeogba had registered with the GMC in Germany. These included a letter sent on 10 April 2013, pursuant to Rule 7 of the 2004 Rules informing him of the allegations he faced, providing documents in support and inviting him to respond and a letter sent on 13 June 2013 pursuant to Rule 8 informing him that his case had been examined by case examiners who had decided to refer the allegations to a Panel. No response was received by the GMC and the packages were recorded as undelivered.[41]The allegations the case examiners referred to the Panel are summarised by

Judge Graham Wood QC in the Administrative Court in terms ([2014] EWHC 3872 (Admin) at [7]):

“In relation to patient CT, who underwent a breast augmentation procedure in March 2008, it was alleged that the Appellant failed to provide sufficient information for informed consent, failed to give sufficient time before the operation, failed to take an adequate medical history, failed in respect of post-operative complications, and failed to take adequate photographs. It was also alleged that a burn had been caused during the procedure. In relation to patient LD, who underwent a rhinoplasty procedure in May 2008 similar allegations were made in relation to photographs, informed consent and the appropriate time for reflection, and it was further alleged that the surgery was inappropriate given the presenting complaint under the clinical circumstances. In relation to patient RP, who underwent both an original rhinoplasty in August 2008 and a revision rhinoplasty procedure in December 2008, in addition to a similar series of allegations in respect of the pre-operation steps, it was alleged that the operation had not been carried out to an adequate standard, and that there was no appropriate plan for reconstruction in respect of the revision rhinoplasty procedure. In relation to patient TS, who had combined breast augmentation and uplift in February 2010 allegations were made in relation to the lack of information for informed consent, the inadequacy of the medical records, and the obtaining of a medical history. In relation to patient MR, who had breast augmentation in April 2010, preoperatively it was alleged that inadequate information for informed consent had been provided, and the procedure itself was said to be inadequately performed. There were allegations post-operatively in relation to recording the concerns of the patient, and providing advice on the management of the implant malposition. Finally in relation to patientSJ, who had a combined mastopexy and breast augmentation in August 2010 there were allegations made about the failure of provision of information for informed consent, and the obtaining of an adequate medical history.”
[42]With the exception of that which is contained in the transcript of the Panel hearing, the documents do not record the steps that occurred until the hearing notice of 6 November 2013. That transcript shows that Mr De La Poer for the GMC noted that it was a matter of MPTS record that the Dr Adeogba was invited to attend a series of case management teleconferences but did not dial in to do so. At these conferences (minutes of which were subsequently forwarded to the available address), the prospective date of the hearing had been ventilated.[43]That notice of hearing together with the bundle were sent to Dr Adeogba's address by an assistant registrar of the MPTS; they were also despatched by the adjudication coordinator by e-mail, with a copy of the index of documents and a list of the witness statements. The entire bundle, which ran to over 2000 pages, was too large to forward. As is usual with Panel hearing notices, Dr Adeogba was asked to raise any objections to the documentation and, furthermore, to indicate whether he required any witnesses to attend to give oral evidence.[44]The Panel hearing began on Monday 9 December 2013 and was scheduled to last for 20 days. Dr Adeogba did not appear and was not represented: he sent no word of any sort to the Panel.[45]Mr De La Poer began the hearing by addressing the Panel in relation to the question of service upon Dr Adeogba both of the proceedings and the notice of the hearing. This was as an essential preliminary to a consideration by the Panel of the critical question whether to continue in his absence under Rule 31 of the 2004 Rules. In essence, under Rule 15 and Rule 40 of the 2004 Rules and paragraph 8 of Schedule 4 of the Medical Act 1983, service requires the GMC to send the doctor notice of the hearing by registered post: it does not specifically require the doctor to have received notice not least because of the impossibility of proving receipt in relation to those who wish to evade service.[46]Mr De La Poer addressed the Panel by reference to Bundle C1, a bundle specifically prepared for the question of service. It contained screen prints of Dr Adeogba's registered address and other contact information, a notice of hearing dated 6 November 2013 together with its FedEx tracking and the e-mail containing it sent on the same date; it also contained the e-mail of 30 January 2012 from Dr Adeogba to the GMC in preparation for the adjourned IOP and the IOP proof of service documentation in respect of the IOP hearings which recorded unsuccessful deliveries. After describing the correspondence in relation to the IOP, he set out the GMC’s further attempts to contact the Dr Adeogba in relation to the Rule 7 and Rule 8 letters and teleconferences described above.[47]Mr De La Poer then moved on to whether, in accordance with Rule 31, it was appropriate to proceed in the doctor's absence, should the Panel decide that he had proved service of the hearing. Rule 31 provides: “Where the practitioner is neither present nor represented at a hearing, the Committee or Panel may nevertheless proceed to consider and determine the allegation if they are satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with these Rules”.[48]His submission on this point were brief. Notice of the hearing was properly served and, in addition, it had been e-mailed to Dr Adeogba at the address which he gave to the GMC and which he was maintaining at least up to 30 January 2012. His address and e-mail were the only ones that Dr Adeogba had registered with the GMC. Furthermore, on a number of occasions, the solicitor for the GMC had attempted to ring Dr Adeogba on his registered telephone number. It was therefore possible for the Panel to properly conclude that reasonable efforts had been made and that it would be in the interests of justice to continue with the case.[49]At the conclusion of these submissions, the Legal Assessor set out the applicable rules and legislation in relation to service and the steps taken by the GMC as described by Mr De La Poer. The Legal Assessor then, as is usual in respect of Rule 31, directed the Panel to make their decision with reference to R v Jones (supra) in the following terms: “The first thing is that you should proceed to do so with the utmost care and caution. You should consider whether adjourning the proceedings – which of course you can do of your own volition – would achieve the doctor’s attendance. You would take into account balancing the public interest and the need to have matters such as this dealt with expeditiously against the doctor’s own interests and the possibility, however remote or not that may be, of this Panel reaching a wrong conclusion due to the absence of the doctor”.[50]The Panel went into camera and decided on both service and on the issue of proceeding in the absence of Dr Adeogba. It decided that there had been service and that it should to continue in his absence. It reduced its reasons into writing on proceeding in absence in the Panel Minutes published on 18 December 2013 in these terms:
“It is clear from the correspondence that Dr Adeogba was at one time engaging with the GMC but since February 2012 had ceased to do so. Since February 2013, documents sent to him have been returned as undeliverable and he has not engaged since then with the process of scheduling the hearing through the Case Management discussions. The Panel is satisfied that Dr Adeogba is aware that he had outstanding fitness to practice proceedings against him, by virtue of his previous engagement. The dates of this hearing have been set for some time and in that regard Dr Adeogba has had sufficient opportunity to make arrangements to attend the hearing if he wished to do so. Dr Adeogba has stopped engaging with the GMC, has not provided it with an effective registered address and, therefore, there is no indication that any adjournment would result in Dr Adeogba attending. Having regard to all the correspondence, the Panel is satisfied that Dr Adeogba has voluntarily waived his right to attend the hearing and be represented. In reaching its decision, the Panel has balanced the need for fairness to Dr Adeogba including his right to attend and/or be represented, with the public interest in proceeding with this case. The allegation before the Panel is serious and it has determined [sic] that it is in the public interest to hear the case without delay and it will take all necessary steps to ensure that the hearing is fair to all.”
[51]The Panel proceedings thereafter and events shortly after their conclusion are accurately set out by

Judge Wood QC in his judgment at [12]-[17]:

“12 The fitness to practise hearing then continued, with counsel for the GMC summarising his case in opening. He presented the documentary bundles to the panel and it was agreed that some time should be taken to read the voluminous medical records, the witness statements and the expert report. The panel adjourned until Wednesday when counsel began by reading extracts from the six witness statements into the hearing record. The chairman of the panel, Dr Phillips, informed counsel that they did not wish to hear from any of the witnesses, in effect accepting their evidence in its entirety, and counsel proceeded to call his expert, Mr Percival. 13 The expert's evidence took up the rest of that day. He was questioned about each of the patients on the basis of his report and expressed in a concluding view about each the extent to which he believed cumulatively that the treatment given fell below the standard he expected of a reasonably competent plastic surgeon. In two cases he expressed the view that the treatment fell seriously below, (CT and RP) which was a slight departure from his written opinion, where he had identified only one such case in this category. At the end of his evidence-in-chief, the panel was given an opportunity to ask questions which were largely of a clarifying nature. 14 The [Panel] then adjourned for the day, returning on Thursday when closing submissions of counsel for the GMC were made, and the advice of the legal assessor was given. It was now 12th December. Following the advice, the panel took time for consideration, and returned on Friday, 13th December to deliver its determination on the facts… In relation to the substantive allegations, all but four of these were found to have been proved. 15 The second stage of the fitness to practise hearing involved a determination as to impairment of fitness to practise and it was intended that this would proceed on the Monday morning (16th December). Unfortunately, the legal assessor, Mrs Ramage, was ill, and the matter was put off to the following day. On this occasion submissions were made by counsel for the GMC that the facts as found amounted to serious misconduct, and in the absence of any evidence to the contrary, which might have included remediation, insofar as the doctor had ceased to engage, his fitness to practise was currently impaired. Advice was given by the legal assessor, and after some deliberation the panel returned with the determination that the doctor's fitness to practise was indeed impaired. In the determination, after identifying what were described as “multiple failings”, the panel noted that there was no evidence that the doctor had reflected on matters which had been referred to the panel or any knowledge and recognition of his failings which might have demonstrated insight. It was self-evident that the doctor had not engaged, and the panel had no alternative but to come to this conclusion. 16 The final stage involved sanction. There were further submissions made and advice given by the legal assessor, and on the following day (18th December) the panel returned with its decision in relation to sanction, whereby it had determined that [Dr Adeogba] should be erased from the medical register. 17 In the meantime, [Dr Adeogba] who on his own acknowledgement by counsel had adopted an ostrich like attitude, having declined to access the e-mails and correspondence whilst living in his village community in Nigeria, had decided at the end of the year to return to Germany. By good fortune he was able to log on to what remained of his e-mail account, and he discovered an e-mail from a former colleague at Birkdale in which the outcome of the GMC hearing had been mentioned. This caused him to delve through his other e-mails, and to discover the notification of the outcome. By now, [Dr Adeogba] was still within the 28 days in which he was able to appeal the decision of the panel, and he did so, initially seeking to utilise the e-mail communication which he had now opened relating to the earlier notice of hearing sent in November 2013.”
[52]On appeal to the Administrative Court, the two issues facing Judge Wood were the admission of fresh evidence from Dr Adeogba and whether the Panel’s decision to proceed under Rule 31 of the 2004 Rules was justifiable. As to the first, Mr Simon Gurney for Dr Adeogba submitted that the overriding objective which requires cases to be dealt with justly effectively ‘trumps’ the principles in Ladd v Marshall for the admission of new evidence. It would be manifestly unfair, he said, in view of the fact that there is no other procedure for setting aside a decision in a case which proceeded in the absence of a practitioner, if a court declined to consider Dr Adeogba’s fresh material. On the other hand, Mr Ivan Hare for the GMC submitted that, on an application of the Ladd v Marshall principles, fresh evidence should not be admitted as it could not be said that Dr Adeogba could not have obtained the evidence with reasonable diligence.[53]On the decision to proceed under Rule 31, Mr Gurney submitted that the Panel had appeared to rely upon service as per se sufficient; as such, the decision was flawed and the panel was not entitled to exercise its discretion. Alternatively, it was submitted that the Jones principles were not correctly applied and there were a number of significant errors in the Panel’s exercise of its discretion. In particular, insufficient weight in the balance was given to the unfairness to a practitioner in proceeding in his absence or the risk of the Panel reaching the wrong conclusion because of the absence. It was said that the Panel did not address the possible effect of an adjournment in securing the attendance of Dr Adeogba, considering instead the likelihood of such a result. In dealing with the question of whether or not the appellant had waived his right to attend, the Panel had misdirected itself by suggesting the hearing date had been “set for some time”.[54]On the other hand, Mr Hare submitted that although there is a gateway to pass before the Panel can exercise their discretion under Rule 31, this required no more than compliance with the 2004 Rules in relation to service: to impose an obligation on the GMC to do more than effect such service before a hearing could proceed without a practitioner would be intolerable. Further, service compliance was uppermost in the Panel’s consideration. As to the substance of the Panel’s Rule 31 decision, it was properly advised by the Legal Assessor on the factors to be taken into account in accordance with R v Jones and its conclusion, in particular influenced by the fact that Dr Adeogba had disengaged with the process and would not engage even if there was an adjournment, was an entirely proper one.[55]On the fresh evidence issue, Judge Wood QC acknowledged (at [49]) the relevance of the restrictive rule in Ladd v Marshall but considered that the primary consideration must be to consider fairness. In that regard, he pointed to the absence of any procedure for setting aside a decision, examining the reasons for non-attendance and noted that the procedure on appeal was by way of rehearing which meant that the new material should be considered.[56]In relation to the decision to proceed, Judge Wood concluded (at [53]) that the Panel had correctly construed the service and notice procedure and was entitled to exercise its discretion under Rule 31; it had correctly considered the effect of an adjournment ([56]), and could not be said to have failed to carry out the appropriate balancing exercise ([57]). However, the learned judge then took as his starting point for examining the Panel’s exercise of discretion that the appeal was a rehearing, not a review, and one where fresh evidence had been admitted ([60]).[57]Examining matters afresh, it is appropriate to set out Judge Wood’s conclusion allowing the appeal at some length. He said:
“61 It seems to me that a very important consideration and one upon which the panel may have misinformed itself, is whether or not the Appellant was aware of the hearing. There is a difference between effective service, which is a rule compliance issue, and a practitioner actually acquiring knowledge of the proceedings. If a panel making a decision as to whether or not to proceed in the absence of the practitioner had every reason to be confident that the practitioner was aware, and was ignoring the proceedings out of lack of interest or apathy, this would undoubtedly be a very significant factor in the exercise of the discretion. The panel here referred to the hearing date having been set for some time, although it is plain that the GMC had only just complied with the service requirement (which was 28 days). There was no evidence, despite the Appellant's non-engagement with the case management process, that he was aware of the hearing, or that he had had sufficient opportunity to make arrangements to attend. 62 The evidence now available is credible (in the sense that it is not obviously wrong) that the Appellant, although adopting an ostrich like attitude to the outstanding regulatory proceedings, had nevertheless absented himself from any form of communication, and until he accessed his e-mails, he could not have been aware of the hearing date. 63 This, in my judgment, would undermine any conclusion that he had “voluntarily waived his right to attend” notwithstanding the fact that he had not engaged with any of the procedure following the IOP determination to suspend him. It was axiomatic that a doctor not resident in this country, but deriving his livelihood from practice here, would have no reason to remain; although a German residential address had been provided, there was no indication that he had returned to practice there, and as a Nigerian national it was not unreasonable to consider that he may have returned to his country of birth. 64 However, looking at the matter afresh, but mindful of the need to afford some deference to the decision of the first instance tribunal, I have come to the conclusion that if the panel had been aware of the material which has been considered by this court, it would not have exercised its discretion to proceed in the absence of the practitioner, or if it had, such a discretion would undoubtedly have been irrational. Thus I can determine that the decision was wrong. 65 The fact that the Appellant should have made himself aware of a likely fitness to practise hearing close to the expiry of his period of suspension is immaterial. It is not his conduct in disengaging which is being called into question as such, but whether or not an effective and fair hearing can now be achieved. The planned fitness to practise hearing had been scheduled for twenty days and yet no live evidence, save for that of the expert, had been lined up. This was the first hearing, therefore, and an adjournment was unlikely to be highly disruptive or inconvenient to attending witnesses. The risk of prejudice in proceeding in the absence of the practitioner, especially where, as here, the evidential input of the practitioner was likely to be important to the outcome in relation to the evidential findings of fact, was significant. 66 Further, when considering whether or not impairment of fitness to practise was currently impaired, and where a finding would be significantly influenced by any contemporary evidence from the practitioner, his absence was likely to be highly prejudicial in this regard. 67 Ultimately, however, in so far as the sanction of erasure effectively destroys the livelihood of a doctor for a period of five years (and often significantly longer because of the requirement to apply for restoration), this is a case where the doctor's interest significantly outweighed the public interest of expediency especially where the witnesses were not caused any inconvenience. 68 Although this court has a degree of sympathy for a panel dealing with a situation like this, and despite the fact that there is no requirement before proceeding to exercise the discretion other than ensuring rule compliance, it seems to me that even where non-engagement in the proceedings is a reasonable conclusion, in a case which is likely to have very significant consequences, and where the absence of a doctor means that only lip service is being paid to the adversarial process, nevertheless before ruling out an adjournment a panel should consider whether other steps have been taken which might ensure attendance, such as contacting the former practice or colleagues, or making enquiries of overseas registration authorities. Clearly if there is evidence that all this has taken place, and it is a second or third hearing, then a panel can proceed with more confidence that a determination in the absence of the practitioner is appropriate. 69 An important factor, undoubtedly, would be the length of notice which had been afforded to the practitioner. Where the notice is only just 28 days, as here, and there is an overseas registrant, it is not beyond the realms of possibility that the practitioner has returned to his country of origin.”
[58]The first question was whether the Panel were entitled, on the information before it, to exercise its discretion and order that the proceedings continue. For my part, applying the principles of law to which I have referred, I have no doubt that it was. The judge agreed that the GMC had complied with its obligations as to service but criticised its failure to do more. In fact, the GMC were perfectly entitled (and bound) to use the address provided on his registration (which he said would be visited by his daughter) and his e-mail address and to suggest that his failure to update his address was merely adopting ‘an ostrich like attitude’ does not start to do justice to the extent of this egregious failure to comply with his regulatory obligations. Dr Adeogba knew that disciplinary investigations were in place, knew that his suspension would expire after 18 months and knew about the only means that the GMC had to communicate with him. He made no effort at all to contact them or to ensure that he could be apprised of what was going on.[59]Further, in my judgment, to suggest that the GMC should have started to make enquiries of the German authorities or, indeed, the Nigerian authorities (on the basis that this was where he came from) is to put a burden on the GMC which is far beyond that which is appropriate. Their responsibility is very simple. It is to communicate with the practitioner at the address he has provided; neither more nor less. It is the practitioner’s obligation to ensure that the address is up to date. In addition, for my part, I am surprised that Dr Adeogba was not very keen to ensure that he kept in touch with the GMC: he was back in Nigeria, unable to earn a living as a doctor; one would have thought that he would be very keen to find out whether and, if so, when he could return to his work. All this is in addition to the point that there is no evidence that communicating with the German or Nigerian authorities would have had the slightest effect.[60]Second, to the extent that he placed emphasis on the failure to give more than the minimum of 28 days’ notice, the judge fell into further error. Had Dr Adeogba opened the communications which had been despatched to him, he would have been aware that the date had been discussed and proposed at the various case management conferences: it only needs a moment’s thought to appreciate that a hearing listed to last 20 days could not have been arranged at short notice. Witnesses will have had to have been arranged; that they were not required was because no information was forthcoming to identify whether their evidence was in issue. In any event, formal notice was neither more nor less than that: it was a confirmation of what had been discussed.[61]Third, the judge appears to have put emphasis on the fact that this was the first hearing and that an adjournment was unlikely to be highly disruptive or inconvenient to attending witnesses. To suggest that the practitioner must be allowed one (or perhaps more than one) adjournment is to fly in the face of the efficient despatch of the regulatory regime. In addition, an adjournment was highly disruptive: the members of the Panel, the legal assessor, the staff and the accommodation had been set up. There is no suggestion that there was any back up work (which in any event would have been inconvenient to others) and 20 days’ time would have been lost. Even if witnesses were not attending, it is inevitable that they will have been alerted to the date and, until they were stood down, will have suffered all the well-known anxiety associated with any forthcoming trial. Organising another hearing would have been both disruptive and inconvenient. No regulatory system can operate on the basis that failure to attend should lead to an adjournment on the basis that the practitioner might not know of the date of the hearing (rather than having disengaged from the process or even adopted an ‘ostrich like attitude’): any culture of adjournment is to be deprecated.[62]Finally, I recognise the real significance of the fact that the Panel did not have the practitioner’s input in relation to the facts, the question of impairment, or the ultimate decision of sanction (which always carried the risk of erasure). Whenever a practitioner does not attend, however, that is the position and, in this case, the Panel was very well aware of the difficulty which that created and made it clear that it would take all necessary steps to ensure that the hearing was fair to all. This difficulty cannot override all other considerations for, if it did, it would provide a premium on non co-operation.[63]The high-water mark of the criticism that can be made of the decision of the Panel is the reference to voluntary waiver of his right to attend and be represented on the basis that such represents a conscious decision. Bearing in mind the professional obligation to maintain the register (and thus the means of contact) and based on the evidence before the Panel, it was legitimate to conclude that, at the very least, the practitioner had deliberately chosen not to engage with his regulator. In my judgment, in the context of this type of case (whatever the position might be in criminal proceedings), that is sufficient. If it was otherwise, the system simply could not operate efficiently or effectively and although attendance by the practitioner is of prime importance, it cannot be determinative.[64]Turning to the fresh evidence, Judge Wood was entitled to admit (at least de bene esse) the explanation for Dr Adeogba’s failure to attend on the basis that, by definition, this material was not available at the hearing because, in fact, (whatever might have been legitimately inferred from the circumstances), Dr Adeogba did not know about it and so could not put forward the reasons for his absence. Having done so, however, in my judgment, the explanation does not justify reversing the decision of the Panel. Taking the case at its highest, although Dr Adeogba did not deliberately choose to ignore communications from the GMC, knowing that he had been suspended pending investigation he took no steps either to keep in touch with the GMC or to update his details so that it could keep in touch with him. This was notwithstanding the fact that he had confirmed both his address and his e-mail address in January 2012. Recognising the gravity of the allegation and the public interest in ensuring that medical practitioners are not prevented from practice unless the circumstances are proved to warrant it, no sufficient reason has been shown for his non-attendance; indeed, it is highly unlikely that the explanation would satisfy CPR 39.3(5)(b) in relation to civil proceedings.[65]In the circumstances, I would allow the appeal and restore the order of the Panel in relation to proceeding in the absence of Dr Adeogba. I would then remit the case to the High Court for consideration of the grounds of appeal that are confined to challenges brought within the four corners of the evidence heard by the Panel. Dr Evangelos-Efstathios Visvardis[66]On 18 June 2012, the GMC, informed the respondent in the second appeal, Dr Visvardis, that it was investigating allegations made against him in respect of his application (sent on 11 January 2012) to Huddersfield NHS Foundation Trust for a locum position (“Huddersfield application”). Specifically, it was alleged that Dr Visvardis had dishonestly and misleadingly provided a curriculum vitae (“CV”) which stated that he had a place on a Specialty Registrar Training Programme in Medical Oncology (“Oncology Programme”) and, correspondingly, an active National Training Number, while knowing that both had finally been withdrawn with no further available mechanism to appeal in relation to his place on the Oncology Programme.[67]Furthermore, it was alleged that he sent a covering e-mail on the same day which stated that he was “out of the full-time training programme of the London Deanery but [was] seeking to restart and finish up [his Certificate of Completion of Specialist Training (“CCST”)] in London”. Finally in relation to the Huddersfield application, it was alleged that, prior to his appointment to the locum position, Dr Visvardis dishonestly and misleadingly claimed in a telephone interview that he had opted to take time out of the Oncology Programme and was seeking to restart and complete his CCST in London at the earliest opportunity.[68]Through its investigation, the GMC became aware of other allegations of potential misconduct. A further series of allegations related to a misleading and dishonest application, dated 17 January 2012, sent by Dr Visvardis to Guy’s Hospital for a locum training position in medical oncology in which he indicated the he met the essential criteria for the position; this application was accompanied by the same version of his CV attached to the Huddersfield application. Again, it was alleged that he knew the information he had provided was false in relation to the Oncology Programme and National Training Number (“the Guy’s application”).[69]In connection with the same application, it was further alleged that Dr Visvardis had falsely, dishonestly and misleadingly stated during an informal meeting in respect of the Guy’s application that he had been granted “an affiliate membership of the [Royal College of Physicians (“MRCP”)] and therefore had affiliate MCRP status” (or words to that effect), and thus met the essential criteria for the locum training position and/or was “eligible to join another training rotation/post” (or words to that effect). Furthermore, at a formal interview for the position in January or February 2012, Dr Visvardis allegedly dishonestly and misleadingly repeated these statements and further lied about why he left the Oncology Programme. Finally, with regard to this application, Dr Visvardis was alleged to have responded to an interview question as to how he would react to discovering a medical error made by his supervising consultant by saying “I will ask him should we cover this up”, (or words to that effect).[70]There was also a further allegation that Dr Visvardis had dishonestly and misleadingly described himself as a “Medical Oncologist [European Society for Medical Oncology] Certified” in an email to Bristol-Myers Squibb Pharmaceuticals Limited dated 5 March 2013. A further series of allegations in relation to aggressive and inappropriate behaviour in the period March and April 2012 were later not pursued.[71]On concluding its preliminary investigation, by letter dated 21 June 2013, in accordance with Rule 7(1)(a) and (b) of the 2004 Rules, an assistant registrar set out the allegations in relation to the Huddersfield application and the other allegations of which the GMC had become aware together with the relevant supporting documentation. It was alleged that Dr Visvardis' fitness to practice was, in consequence, impaired. The letter identified a member of staff (together with a direct telephone number) that the Dr Visvardis could contact should he have any queries.[72]As is required by Rule 7(1)(c) of the 2004 Rules, the letter of 21 June 2013 invited Dr Visvardis to respond to the allegations within 28 days, and informed him of the extent to which this response would be disclosed to the complainant. In a response dated 19 August 2013, Dr Visvardis denied dishonesty or the intention to mislead, set out a version of the facts materially different to that on which some elements of the complaints were based and highlighted possible shortcomings in the evidence relied upon. Further, he offered an apology in respect of some aspects of the aggressive conduct and a partial explanation arising out of difficulties in his private life at the time.[73]Acting in accordance with Rule 8 of the 2004 Rules, case examiners considered the information sent in the June 2013 letter and the August 2013 response from Dr Visvardis. It was decided that, except for the allegations of aggression, the allegations set out in the June 2013 letter should be referred to a fitness to practise panel of the MPTS for determination: in their view, there was a realistic prospect of establishing that Dr Visvardis' fitness to practise was impaired to a degree justifying action on the registration.[74]An assistant registrar informed Dr Visvardis of this conclusion in a letter dated 15 October 2013, providing their reasons in an annex: in short, there were conflicts in the evidence but there was a real prospect that a pattern of dishonesty would be established. The letter also informed Dr Visvardis that the GMC aimed to hold the hearing within six months and that the MPTS would shortly arrange a teleconference with him to agree a hearing date. Further, the letter provided details of support available from the British Medical Association (“BMA”) and instructed Dr Visvardis to contact his medical defence organisation straight away because, at that time, he did not have legal representation. Finally, it noted that the Bar Pro Bono Unit may have been able to help, and information dealing with contact details and procedure was provided although it was made clear: “The Unit can only consider applications for assistance that come through referrers like the Citizens Advice Bureau, MPs and solicitors”.[75]What happened thereafter comes either from documents in the bundle before the court or the judgment of the Administrative Court. On or shortly after 15 October 2013, having received the Rule 8 letter, Dr Visvardis telephoned the GMC contact named in the letter of 21 June 2013. He asked if there was a route of appeal from the decision of the case examiners and expressed frustration and dissatisfaction with the process. At the suggestion of that member of staff, the telephone call was followed up by an e-mail in which Dr Visvardis asked for the “names and credentials of all persons involved in the case”. He raised the concern that the case examiners had not fully dealt with the points he had raised in August.[76]On 18 October 2013, the GMC responded to the e-mail. It was noted that it was no part of the function of the case examiners to deal with every point raised by the doctor under investigation. The response explained that they had examined all the available evidence and had come to their conclusion accordingly. It went on:
“you will have the opportunity to put your version of events to the Fitness to Practise Panel…”
[77]Attempts were made to arrange a teleconference. On 15 November 2013, Dr Visvardis raised concern that his e-mail in response to the letter dated 15 October 2013 had not been sufficiently dealt with. He further made it clear in e-mails on 14 and 17 November 2013 that until he received what he perceived to be an adequate response, he would not participate in a teleconference.[78]The teleconference took place, as Dr Visvardis had been told it would, on 22 November 2013. In his absence, on the same day, the MPTS Adjudication Coordinator sent an e-mail to Dr Visvardis attaching a copy of the minutes of the teleconference. The minutes recorded that Dr Visvardis was given until 21 February 2013 to prepare and disclose his case and that the hearing before the Panel had been fixed to begin on 3 April 2014 and end on 11 April 2014. Furthermore, the MPTS Adjudication Coordinator also made it clear to Dr Visvardis that a second teleconference had been scheduled to take place on 17 January 2014 at 10:00; the agenda and dial up details were attached. A copy of the attached documents was also sent by post.[79]Dr Visvardis did not dial in to the arranged 17 January 2014 teleconference and, as such, it was rescheduled to take place on 13 February 2014. He was again absent and, as before, the MPTS Adjudication Coordinator sent him a copy of the minutes.[80]On 11 February 2014, Dr Visvardis received by post from the responsible GMC solicitor a copy of the 2004 Rules, certain witness evidence, details of every document the GMC were proposing to introduce as evidence and information with regard to calling witnesses to give oral evidence. This was as required by Rule 34(9) of the 2004 Rules. Further, the solicitor invited Dr Visvardis to provide his witness evidence and documents by 21 February 2014 and to inform the GMC if any of its witnesses were agreed.[81]On 3 March 2014, the GMC solicitor e-mailed Dr Visvardis to confirm the best address to which to send the hearing bundle and whether he objected to anything in the bundle, informing him that if she did not hear from him by the next day she would send the bundle to the address the GMC had on file. There being no response, on 4 March 2014, she attempted to send the hearing bundle using the Royal Mail’s “Track and Trace” service. The addresses are redacted in our bundles but the judge recorded that the package containing the bundle was addressed correctly, but the Track and Trace information was incorrectly addressed.[82]Suffice to say that on 27 March 2014, the package was returned to the GMC solicitor undelivered: according to an e-mail to Dr Visvardis at 13:20 that day, it was “not… called for from the post office”. In that e-mail, the solicitor again asked whether Dr Visvardis objected to anything being placed before the panel and, further, whether there were any documents beyond those in the bundle that he intended to rely on. She then successfully sent the bundles electronically at 13:24 compressed as a zip file attached to a further e-mail.[83]Despite a further e-mail sent later that afternoon by the solicitor requesting confirmation of receipt and asking again for an address to which a hard copy should be sent, Dr Visvardis did not respond. It is to be noted, however, that in his witness statement for the Administrative Court, he confirmed that he had in fact received these e-mails (and, indeed, all other e-mails). In any event, it is worth underlining that with the Rule 7 letter dated 21 June 2013, Dr Visvardis had previously been served with a bundle which contained all the relevant documents.[84]Meanwhile, on 4 March 2014, an MPTS assistant registrar sent notice of hearing to Dr Visvardis by post and e-mail; this was copied to the solicitor to the GMC. There is no suggestion that this was sent to the incorrect address although it appears from submissions made to the Panel on the second day of the hearing that the posted copy was returned to the sender. Whether this was because Dr Visvardis refused to take delivery or had moved (without informing the GMC) is unknown. What is important, however, is that the notice set out the allegations and, among other things (in the clearest terms) the procedure for making an application that the hearing should be postponed (under Rule 29 of the 2004 Rules) together with a warning that the hearing might continue without him if he did not appear.[85]Without acknowledging or responding to the e-mail of 3 March 2014, from the solicitor to the GMC dealing with the bundle, or the e-mail of 4 March 2014 from the MPTS assistant registrar with the notice of hearing, in an e-mail of 10 March, Dr Visvardis repeated his complaints in relation to the procedure both to the Office of the Chair and Chief Executive (“OCCE”) of the GMC, for the attention of Sir Peter Rubin (then Chair of the GMC) and to Niall Dickinson, the Chief Executive and Registrar. He suggested that a better route to resolve the allegations was for him to meet with the Chair to further discuss the details of his case. A response from the Investigation Manager dated 17 March 2014 suggested that if Dr Visvardis wished to pursue complaints about the ongoing process, he might consider making an application to cancel the hearing under Rule 28 of the 2004 Rules.[86]Dr Visvardis responded to this suggestion on 24 March 2014, making an application that the hearing be cancelled. He repeated his complaints about the way in which the GMC had handled the case, along with his versions of events (to the effect that he had “been a victim of discrimination and retaliation emanating by the persons who initiated this case [sic]”). He pointed out that he was unrepresented although he had contacted the Bar Pro Bono Unit but was told that he needed to be referred through an MP (as had been explained in the letter dated 15 October 2013 from the assistant registrar to the GMC). He said that “the process would not meet the timelines set for the hearing”.[87]The application to cancel the hearing was refused by the Registrar but it was at around 8:00 on 3 April 2014 that this decision was forwarded to Dr Visvardis. The hearing was due to begin that day and it is said that this refusal only came to the attention of Dr Visvardis at the end of the day on 4 April 2014.[88]At the hearing on the morning of 3 April, Ms Dudley-Jones for the GMC began by addressing the Panel as to whether Dr Visvardis had been properly served with the proceedings. She did so by reference to Bundle C1, a bundle specifically prepared for this purpose. It contained(i) screen prints of Dr Visvardis' registered address and e-mail,(ii) the e-mail of 22 November 2013 from the MPTS Adjudication Coordinator (which included minutes of the teleconference for which he was absent, the dates proposed for the next hearing and next teleconference),(iii) the Notice of Hearing letter and e-mail (of 4 March 2014) and its failed post delivery documents,(iv) the e-mail of 3 March 2014 requesting the best address to deliver the bundles,(v) the letter of 4 March accompanying the posted bundle package and its failed post delivery documents, and(vi) the e-mails of 27 March 2014, concerning the failed postal delivery and subsequent electronic delivery of the bundle. Further, the bundle included the e-mail of complaint from Dr Visvardis dated 10 March 2014, his e-mail of 24 March 2014 repeating his complaints and applying to cancel the hearing, and another e-mail of complaint dated 29 March 2014. The Panel retired and decided that notice had been properly effected: this was not contested before the judge in the Administrative Court.[89]Ms Dudley-Jones then invited the Panel to proceed under Rule 31 of the 2004 Rules in the absence of Dr Visvardis. Beyond the correspondence in Bundle C1, Ms Dudley-Jones described the correspondence dating back to the GMC’s second letter of 18 June 2012 which informed him of the allegation up to and including the decision to refuse to cancel the hearing sent at around 8:00 that morning. She also answered questions put to her by the Panel in relation to the correspondence. I add only that this correspondence had not been contained in Bundle C1 but in the main hearing bundle: it had not been placed before the Panel at the time of the application to proceed in the absence of Dr Visvadis so as not to prejudice the main hearing should it be adjourned under Rule 29(2) of the 2004 Rules. In Ms Dudley-Jones’ submission, however, taken together, the correspondence showed that Dr Visvardis was aware of the hearing and had “voluntarily absented himself from today’s hearing on the basis that he seeks rather than to attend… to attack and criticise the proceedings themselves”. This was, she argued, an occasion where the Panel should, while taking care, exercise its discretion to continue in absence of the doctor, in accordance with R v Jones.[90]Ms Dudley-Jones also dealt with the application for cancellation (under Rule 28) and addressed the question whether it had been properly dealt in accordance with the 2004 Rules, together with the fact that no application had been made under Rule 29(1) for postponement. Dealing with the Panel’s questions with regard to cancellation, Ms Dudley-Jones provided bundle C2 which was the Registrar’s decision declining to cancel. She made two concessions. First, she agreed that a lay person such as Dr Visvardis, not fully conversant with the 2004 Rules, may well have taken postponement and cancellation to mean the same thing; secondly, that Dr Visvardis may not yet have read the e-mail sent at around 8:00 that morning informing him of the decision refusing to cancel the hearing.[91]Dealing with these concessions, Ms Dudley-Jones pointed out that, in an e-mail of 19 March 2014, the Investigation Manager checked whether the applicant formally wished to apply for cancellation (with the effect explained by the Investigation Manager in his previous e-mail). Dr Visvardis had confirmed that he did and, in his e-mail of 24 March 2014 showed a clear understanding of the scope of Rule 28. According to the Panel’s Chairman, this demonstrated that Dr Visvardis “does not appear to be wholly in ignorance of the [2004 Rules]”. Further, Ms Dudley-Jones went on to suggest that if the Panel decided to proceed, then an e-mail could be sent to Dr Visvardis to the effect that the hearing had not been cancelled and would proceed on the following day.[92]The Panel’s Legal Assessor then addressed the Panel, reiterating the test set out in R v Jones and the principle that fairness to the practitioner and the GMC is of prime importance. The Assessor noted, in particular, the disadvantage to the practitioner in not being able to present his case given the seriousness of the allegations and directed the Panel to determine whether Dr Visvardis’ behaviour was deliberate or voluntary, whether if there was an adjournment he would arrange representation, whether the bundle was served in adequate time for the doctor to have considered it and also to consider risk to the public if the case was adjourned, the public interest in the case being dealt with in a reasonable time and the effect of any delay on witnesses. The Legal Assessor concluded by drawing the Panel to his main concern: whether Dr Visvardis was aware that the hearing had not been cancelled.[93]The Panel retired to consider its decision and, in that period, a further e-mail was sent to Dr Visvardis at 12:43. It reminded him of the cancellation decision and informed him that the fitness to practice hearing had commenced and that the Panel were considering to proceed in his absence. He was asked to confirm that he had received the cancellation decision and that the hearing might proceed in his absence.[94]In coming to its determination, the Panel took as its starting point the need to balance the exercise of great caution with regard to the overall fairness of the proceedings with the public interest in “hearing cases expeditiously and without undue delay”. In that regard, the Panel was mindful of the fact the alleged conduct occurred over two years previously and that therefore there was a detrimental effect of further delay on the recollection of witnesses.[95]In this context, the Panel determined that no adjournment, not even a short adjournment to the next day, was necessary or appropriate:
“Dr Visvardis could reasonably be expected to have understood the distinction between Rule 28 (on cancellation) to which he himself had referred in an email of 24 March 2014, and Rule 29 (on postponement) to which the GMC had drawn his attention on 14 March 2014… Although Dr Visvardis was under no obligation to chase a decision on cancellation… the GMC has had no further communication from [him] since his cancellation application was submitted… Dr Visvardis has at no time indicated that he would wish to attend the hearing, or that he has been making attempts to arrange to be legally represented at this hearing. It is clear from the correspondences between the GMC and Dr Visvardis that he has been aware for some time of this hearing, and of the nature of the allegations made against him. Given the apparent basis upon which Dr Visvardis made his application to cancel this hearing and the fact the Panel has no information before it to suggest a reason for his absence, the Panel concluded that neither a short adjournment, nor a longer one to a date in the future, would be likely to result in either the attendance of the doctor or a legal representative.”
[96]The conclusion therefore was that Dr Visvardis had voluntarily waived his right to attend or be represented and that the hearing ought to proceed.[97]The solicitor for the GMC then sent an e-mail to Dr Visvardis at 15:50, attaching the determination. She reminded him that he was still able to attend the hearing at any time over the listed dates. On Friday 4 April 2014 at 14:07, Dr Visvardis replied to that e-mail and the earlier e-mail refusing to cancel the hearing: he stated that he only became aware of the e-mail dealing with the cancellation decision on the evening of 3 April. He asserted that that the decision not to cancel was flawed, that he was still awaiting the information requested from the GMC and did not have a legal representative as: “[he] did not have a legal representative for the reasons clearly stated in his correspondence”.[98]This e-mail from Dr Visvardis was drawn to the attention of the Panel on Monday 7 April 2014 which then heard submissions upon it and took advice from the Legal Assessor. It was the view of the Assessor that the Panel should again consider whether the doctor had waived his right to be present at the hearing and if it would be in the interest of justice for the Panel to consider afresh whether or not to adjourn. On the legal representation issue, the Legal Assessor noted: “Dr Visvardis refers to previous correspondences to the GMC but he does not say in his e-mail he is in the process of instructing any legal team”.[99]The Legal Assessor then reiterated, as she had on 3 April 2014, that the Panel should consider any disadvantage which would arise out of the absence of Dr Visvardis and, on the other hand, the public interest in the case being dealt with in a reasonable time. In the event, the Panel confirmed its view that Dr Visvardis had waived his right to appear and declined to adjourn. It was influenced by the fact that there was no application to adjourn the hearing and no intimation of a wish to attend.[100]On appeal to the Administrative Court, Ms Horlick on behalf of Dr Visvardis submitted that the decision of the Panel to proceed in the absence of the doctor was wrong or unjust because of a serious procedural error. In particular, she submitted that the Panel(i) failed properly to balance the public interest with the interests of Dr Visvardis and so erred in law,(ii) failed to take account of the fact that Dr Visvardis had never intimated that he would not attend and that he had throughout vigorously disputed the allegations,(iii) failed to take account of Dr Visvardis’ oral evidence, and so in effect failed to consider the risk of the tribunal reaching a wrong decision on the merits of the allegations as a result of the registrant’s account not being heard,(iv) failed to bear in mind that discretion was one which was “severely constrained”,(v) the Panel had erred in its conclusion that Dr Visvardis had waived his right to appear,(vi) the Panel was wrong to conclude that Dr Visvardis ought to have understood the difference an application to cancel and an application to postpone.[101]Mr Atherton for the GMC submitted that the Panel’s approach to the exercise of its discretion was balanced and fair. He reminded Judge Bird that there was no suggestion that the 2004 Rules had not been complied with. Further, Dr Visvardis failed to attend the hearing, even after he was aware of the decision on cancellation and of the Panel’s decision to carry on in his absence. He urged the judge to conclude that Dr Visvardis was an educated man and should be treated as a “sophisticated litigant” who ought to be taken to understand or at least be able to follow the 2004 Rules and who might possibly have taken a deliberate decision not to attend. Mr Atherton relied in particular on the notice of the hearing as a document expressing clearly the possibility that the Panel would proceed if the doctor did not appear. The Panel’s finding that Dr Visvardis had voluntarily absented himself from the hearing was therefore a correct finding to make.[102]The parties were agreed that all reasonable efforts had been made to serve the doctor with notice and as such the jurisdiction pre-condition to the exercise of the discretion to proceed was met. As to the exercise of discretion, His Honour Judge Bird said (at [47]-[52]): “47. A reading of [the 19 August 2013 Rule 7 response and the 15 October 2013 referral] makes it plain that Dr Visvardis contested the factual basis of at least some of the allegations and indeed wanted to fight them. These… points [are] of crucial significance. Dr Visvardis concluded that his response to the allegations had not been taken seriously. He, at all times maintained the denials and assertions set out in his response, and his request for information about the way his response had been handled appear… to have been fuelled by his strong desire to have those points dealt with.[48]I can see no suggestion that Dr Visvardis at any time before the Panel’s determination to proceed in his absence suggested that he would not attend the hearing… In his letter of 24 March 2014 (a full copy of which the Panel did see) Dr Visvardis made reference to his efforts to receive legal assistance from the pro bono unit of the Bar. He noted in effect that there was insufficient time to arrange representation. That is entirely consistent with a desire to be present…[49]In my judgment the Panel’s reference to Dr Visvardis not stating an express desire to attend is a strong indicator that the Panel had misunderstood the task it was undertaking. The right to attend is a right which exists independently of an express assertion. In other words Dr Visvardis’ right to attend was never dependent on him indicating that he wished to attend.[50]The Panel’s weighing of the competing factors in the exercise of its discretion was in my judgment clearly flawed. Although the Panel was correctly directed to consider the “extent of disadvantages to the doctor if he is not able to present his account of events… you should consider the risk of the hearing reaching an improper conclusion [in] the absence of the doctor”, there is no reference to this point on the determination at all.[51]In my judgment the Panel also had no basis on which to conclude that the doctor would not attend in the future if the matter adjourned. This is particularly the case because the Panel was aware at the time of its determination (following a concession made by the GMC) that the decision on cancellation may not have been received. I am not persuaded that the later correspondence of 4 April could be taken to support the Panel’s conclusion; by the time that was sent the hearing was ongoing and Dr Visvardis was still complaining about the lack of information and even then he raised again the fact the he did not have legal representation.[52]In my judgment the Panel attributed far too much weight to the simple fact of the doctor’s absence. It is clear from Jones that even a waiver of the right to attend is on its own not enough to justify the continuation of the hearing. It is entirely separate from the exercise of the discretion to continue […].[103]Having set out the facts and the background (along with the arguments advanced), I can state my reasons for disagreeing with the view of the judge quite shortly. First, the Panel were well aware of the seriousness of the allegations that Dr Visvardis faced but, perhaps because of the reference in Tait to that factor, failed to recognise that Lord Bingham in Jones (with whom the other members of the House agreed) had specifically excluded seriousness of the allegation from the list of considerations (see [9]). The Panel were also aware that the allegations were contested.[104]As for Dr Visvardis’ intention to attend, whether or not he had so asserted, the reality is that he had done nothing to comply with the directions to disclose documents on which he intended to rely or otherwise to participate in the process. Rather, he had embarked on a collateral attack of the process. This was not, as the judge concluded, a “simple fact” of absence; it is clear from the material that this was deliberate disruption on the basis that Dr Visvardis felt that he was entitled to challenge the decision to refer the case to a hearing and was not prepared to leave this preliminary issue to be considered as part of his defence before the Panel.[105]In truth, there was absolutely no reason for Dr Visvardis not to participate in this hearing. He should have prepared for it and taken steps to arrange representation (if that is what he wished): equally, based in Greece, he should have long since prepared to travel in order to participate. Further, having declined to attend on the first day (even if only to raise the issue of cancellation), when he received notice that the hearing would not be cancelled, it was open to him then to travel, alert the Panel to the fact that he was attending on the following day and seek the re-commencement of the hearing or an adjournment of whatever length he then wished; that application would then have fallen to be considered on its merits.[106]The effect of the decision of Judge Bird was to permit Dr Visvardis effectively to require the consideration of the complaint against him not with the benefit of his co-operation and submissions which could then be adjudicated upon but rather by collateral application unrelated to the merits. If Dr Visvardis wished to complain about the vires of the procedure, it was open to him to do so ultimately by means of judicial review. What he was not entitled to do was to conduct the case management stages in such a way that failed to deal with the issues which required to be addressed especially in relation to disclosure of documents upon which he intended to rely. In my judgment, the Panel was entitled to conclude that he was not engaged in the process.[107]As for the concern expressed by the Judge that the account advanced by the GMC would go unchallenged, as with Dr Adeogba, if such a consideration was to prevail above all others, cases would never be heard. Even without referring to the difficulties caused by the absence of Dr Visvardis, the Panel referred to the need to proceed with “the greatest care” and “great caution” which can only refer to this problem. Further, in this case, the practitioner had submitted an extensive response under Rule 7 to which the Panel were referred.[108]I add only that the correspondence which we have seen to ensure that Dr Visivardis was aware of these proceedings (at which he has neither attended nor been represented) reveal that his primary concern has been to recover his costs following the hearing before Judge Bird and for compensation. He has not addressed the issues in the appeal but, again, has focussed on collateral issues.[109]Applying the legal principles identified above, in my judgment, there was no basis for interfering with the discretion of the Panel to hear the application either at the time or as a result of the material put before the judge as the justification for his failure to participate in the process or attend the hearing. In this case, also, I would allow the appeal and restore the order of the Panel. I would then remit the case to the High Court for consideration of the grounds of appeal that are confined to challenges brought within the four corners of the evidence heard by the Panel. Lord Justice Gross : I agree. Sir Stanley Burnton : I also agree.

Cited in 41 later judgments

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