Council for the Regulation of Health Care Professionals v General Medical Council & Anor [2006] EWHC 464 (Admin)

Case No CO/5834/05[2006] EWHC 464 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 26th January 2006
Strand
London WC2
B E F O R E:
MR JUSTICE JACKSON
Between
COUNCIL FOR THE REGULATION OF HEALTH CARE PROFESSIONALSClaimantTHE GENERAL MEDICAL COUNCILDefendantDR TARUN KUMAR BISWAS
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR R JAY QC & MISS K STERN (instructed by BEVAN BRITTAN) appeared for CLAIMANTMISS E GREY (instructed by FIELD FISHER WATERHOUSE) appeared for DEFENDANTMISS M O'ROUKE (instructed by the GENERAL MEDICAL COUNCIL) appeared for SECOND DEFENDANT
J U D G M E N T
[1]MR JUSTICE JACKSON: This judgment is in six parts, namely: part 1, introduction; part 2, the facts; part 3, the present proceedings; part 4, the alleged misdirection; part 5, the other grounds of appeal; part 6, conclusion.

Part I: Introduction

[2]This is an appeal against a decision of the Fitness to Practice Panel of the General Medical Council. The appellant is the Council for the Regulation of Health Care Professionals, now known as the Council for Health Care Regulatory Excellence. I shall refer to this body as "the CRHP".[3]The first respondent is the General Medical Council, to which I shall refer as "the GMC." The second respondent is Dr Tarun Kumar Biswas, to whom I shall refer as "Dr Biswas."[4]The decision which is under appeal is a decision that Dr Biswas is not guilty of serious professional misconduct. That decision was made by the Fitness to Practise Panel to which I shall refer as "the Panel."[5]It may be helpful if I begin by setting out the statutory framework. Section 36(1) of the Medical Act 1983, provides:
"Where a fully registered person ... (b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct, whether while so registered or not; the Committee may, if they think fit, direct- (i) that his name shall be erased from the register; (ii) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or (iii) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Committee think fit to impose for the protection of members of the public or in his interests."
[6]The General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules, Order of Council 1988 has an appendix which sets out procedural rules. I shall refer to the rules in this appendix as "the Procedure Rules." Rule 27 of the Procedure Rules provides:
"(1) In cases relating to conduct, the following order of proceedings shall be observed as respects proof of the facts alleged in the charge or charges:- (a) The Chairman shall ask the practitioner whether he admits any or all of the facts alleged in the charge or charges and, in respect of any facts so admitted by the practitioner, the Committee shall record a finding that such facts have been proved and the Chairman shall so announce ... (b) Where none, or some only, of the facts are admitted the Solicitor, or the complainant, if any, shall open the case against the practitioner and present the facts alleged on which the charge or charges is or are based, (c) the Solicitor, or the complainant, as the case may be, may adduce evidence of the facts alleged which have not been admitted by the practitioner; (d) If as respects any charge no evidence is so adduced, the Committee shall record and the Chairman shall announce a finding that the practitioner is not guilty of serious professional misconduct in respect of the matter to which that charge relates ... (g) The practitioner may then address the Committee concerning any charge which remains outstanding and may adduce evidence, oral or documentary, including his own, in his defence; (h) At the close of the evidence for the practitioner, the Solicitor or the complainant, as the case may be, may, with the leave of the Committee, adduce evidence to rebut any evidence adduced by the practitioner. (i) The Solicitor, or the complainant, as the case may be, may then address the Committee. (j) The practitioner may then address the Committee. (2) On the conclusion of proceedings under paragraph (1) the Committee shall consider and determine: (i) which, if any, of the remaining facts alleged in the charge and not admitted by the practitioner have been proved to their satisfaction, and (ii) whether such facts as have been so found proved or admitted would be insufficient to support a finding of serious professional misconduct, and shall record their finding. (3) The Chairman shall announce that finding and, if as respects any charge the Committee have found that none of the facts alleged in the charge have been proved to their satisfaction, or that such facts as have been so proved would be insufficient to support a finding of serious professional misconduct, the Committee shall record and the Chairman shall announce a finding that the practitioner is not guilty of serious professional misconduct in respect of the matters to which that charge relates."
Rule 28 of the Procedure Rules provides:
"(1) Where, in proceedings under rule 27, the Committee have recorded a finding, whether on the admission of the practitioner or because the evidence adduced has satisfied them to that effect, that the facts, or some of the facts, alleged in any charge have been proved, the Chairman shall invite the Solicitor or the complainant, as the case may be, to address the Committee as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to the character and previous history of the practitioner. The solicitor or the complainant may adduce oral or documentary evidence to support an address under this rule. 2. The Chairman shall then invite the practitioner to address the Committee by way of mitigation and to adduce evidence as aforesaid."
Rule 29 of the Procedure Rules provides:
"(1) The Committee shall then consider and determine whether, in relation to the facts proved in proceedings under rule 27, and having regard to any evidence adduced and arguments or pleas addressed to them under rule 28, they find the practitioner to have been guilty of serious professional misconduct. They shall record, and the chairman shall announce, their finding. (2) If the Committee determine that the practitioner has not been guilty of such misconduct, they shall record, and the Chairman shall announce, a finding to that effect."
[7]It can be seen from the Procedure Rules that disciplinary proceedings before the Professional Conduct Committee have two distinct stages. First, the Committee determines which specific charges have been proved. After that, the hearing moves onto a second stage, in which the Committee determines whether or not the doctor was guilty of serious professional misconduct.[8]In 2002 Parliament enacted the National Health Service Reform and Health Care Professions Act 2002. I shall refer to this statute as "the 2002 Act." Section 25 of the 2002 Act provided for the establishment of the CRHP. The CRHP is referred to in that Act as "the Council." Section 29(1) of the 2002 Act, in its original form, provided as follows:
"This section applies to ... [(c) a direction by the professional conduct committee of the General Medical Council under section 36 of the Medical Act 1983 (Professional Misconduct and related offences) ... "
With effect from 1st November 2004 the Professional Conduct Committee of the GMC was replaced by the Fitness to Practice Panel. Accordingly section 29(1) of the 2002 Act was amended as from 1st November 2004, so that it now reads as follows:
"1 This section applies to ... (c) a direction by a Fitness to Practice Panel of the General Medical Council under section 35D of the Medical Act 1983 (c 54) that the fitness to practice of a medical practitioner was impaired otherwise than by reason of his physical or mental health..."
[9]The various transitional provisions which deal with these matters are not light reading. During the first day of the hearing a problem arose as to precisely how those provisions impacted upon the present case. That has now been resolved by agreement between the parties and the position is as follows: the decision in the present case was properly taken by the Fitness to Practice Panel, and not by the Professional Conduct Committee. The Panel was operating in accordance with the Procedure Rules previously mentioned and not in accordance with certain rules which were introduced later. The disciplinary proceedings against Dr Biswas fell under section 36 of the Medical Act 1983, not under section 35D. Those disciplinary proceeding also fell within section 29 of the 2002 Act.[10]After that digression, let me now read out the other relevant parts of section 29 of the 2002 Act. Section 29 provides:
"(2) This section also applies to- (a) a final decision of the relevant committee not to take disciplinary measures under the provision referred to in whichever paragraphs (a) to (h) of subsection (1) applies ... (3) The things to which this section applies are referred to be below as 'relevant decisions' (4) If the Council considers that- (a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both, or (b) a relevant decision falling within subsection (2) should not have been made. and that it would be desirable for the protection of members of the public for the council to take action under this section, the Council may refer the case to the relevant court. (5) In subsection (4), 'the relevant court' ... (c) in the case of any other person (including one who is not registered and is not seeking registration or restoration to the register), means the High Court of Justice in England and Wales ... (7) If the Council does so refer a case- (a) the case is to be treated by the court to which it has been referred as an appeal by the Council against the relevant decision (even though the Council was not a party to the proceedings resulting in the relevant decision) and (b) the body which made the relevant decision is to be a respondent. (8) The court may- (a) dismiss the appeal, (b) allow the appeal and quash the relevant decision, (c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or (d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court ..."
[11]The phrase "serious professional misconduct" which appears in section 36 of the Medical Act 1983 and also in the Procedure Rules has been considered by the courts on a number of occasions.[12]In Roylance V General Medical Council [2001] 1 AC 311 Lord Clyde delivering judgment of the Privy Council said this, at pages 330 to 331:
"The expression 'serious professional misconduct' is not defined in the legislation and it is inappropriate to attempt any exhaustive definition. It is the successor of the earlier phrase used in the Medical Act 1858... 'infamous conduct in a professional respect,' but it was not suggested that any real difference of meaning is intended by the change of words. This is not an area in which an absolute precision can be looked for. The booklet which the General Medical Council have prepared, 'Professional Conduct and Discipline: Fitness to Practice' (December 1993), indeed recognises the impossibility in changing circumstances and new eventualities of prescribing a complete catalogue of the forms of professional misconduct which may lead to disciplinary action. Counsel for the doctor argued that there must be some certainty in the definition so that it can be known in advance what conduct will and what will not qualify as serious professional misconduct. But while many examples can be given the list cannot be regarded as exhaustive. Moreover the Professional Conduct Committee are well placed in the light of their own experience, whether lay or professional, to decide where precisely the line falls to be drawn in the circumstances of particular cases and their skill and knowledge requires to be respected. However the essential elements of the concept can be identified ... Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word 'professional' which links the misconduct to the profession of medicine. Secondly, the misconduct is qualified by the word 'serious'. It is not any professional misconduct which will qualify. The professional misconduct must be serious."
[13]In Preiss v Dental Council 2001 UKPC 36; [2001] 1 WLR 1926, Lord Cooke of Thorndon delivering the judgment of the Privy Council said this at paragraph 28:
"It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence."
[14]It can be seen from these quotations that once breaches of duty by a doctor have been established there is then a separate question to consider. That question is whether or not those breaches of duty constitute serious professional misconduct. It is no doubt for this reason that the Procedure Rules provide for the hearing of disciplinary proceedings to be divided into two separate stages.[15]Having dealt with these matters by way of introduction, I must now turn to the facts of the present case.

Part II: The Facts

[16]Dr Biswas is a general practitioner who qualified in Calcutta in 1957 and has practised in England since 1978. In 2003 Dr Biswas was working as a locum general practitioner at the Shah Jalal Medical Centre, Hessell Street, London E1.[17]At about 10.00 am on the morning of 4th September 2003 Mr Anu Miah, a patient of the Shah Jalal Medical Centre consulted Dr Biswas. Mr Miah was complaining of constipation, vomiting and severe abdominal pain. Dr Biswas examined Mr Miah to the extent that he deemed necessary. Dr Biswas then made diagnoses of gastritis, urinary tract infection and constipation. These diagnoses are recorded in Dr Biswas's note of the consultation. According to that same note Dr Biswas advised Mr Miah to attend the local hospital's A & E department "if necessary". He also prescribed various medication.[18]On the afternoon of 4th September Mr Miah's condition worsened. At 3.25 pm an ambulance was called to his mother's home where Mr Miah was then staying. At 4.09. pm Mr Miah suffered a collapse. Attempts to resuscitate him at hospital failed. At 4.30 pm Mr Miah was declared to be dead.[19]A post-mortem examination of Mr Miah's body was carried out on the following day. The pathologist noted that the large bowel was very distended with impacted faeces, the wall of the intestine was thinned with bowel proximal to this showing ischaemia of the wall. The pathologist identified two causes of death, namely ischaemic bowel and impacted faeces.[20]Mr Miah's sudden death came as a shock to all concerned, especially his family. Investigations were carried out both by the health authority and also by the GMC. For present purposes it is not necessary for me to trace the details of those investigations. Suffice it to say that in due course charges were formulated against Dr Biswas, in accordance with the preliminary procedures set out in the Procedure Rules.[21]The principal paragraphs of the charges against Dr Biswas read as follows:
"3. During the consultation, you failed to obtain an adequate history from. a. [Anu Miah] B. The family members who had accompanied him. c. The medical records. d. Professor C* or his team as the East London and City Mental Health Trust despite being advised to do so by Dr H*. 4. During the consultation you failed to adequately examine Mr [Anu Miah] in that you did not. a. check his temperature. b. check his pulse. c. check his blood pressure. d. inspect his hands, tongue and mucous membranes. e. inspect, palpate, percus or auscultate his abdomen. F. perform a rectal examination. g. test his urine; a. You failed to place yourself in a position to adequately assess Mr [Anu Miah's] condition and treatment needs. b. You made an inappropriate diagnosis of urinary tract infection. c. You made an inappropriate diagnosis of gastritis; 6. You failed to give the patient and his family adequate information about the diagnosis, management and treatment; 7. You failed to refer Mr [Anu Miah] to hospital immediately; a. You considered the possibility of the patient's later admission to hospital. b. You failed to provide the patient or his family with written information to present to the hospital, to assist the hospital with the management of the patient; 9. You failed to make any or any adequate contemporaneous record of the consultation; 10. Your conduct as outlined in heads 3. to 9 above a. Was inappropriate. b. Failed to provide sufficient respect to the patient and his family. c. Was not in the best interests of the patient."
[22]In response to these charges Dr Biswas admitted paragraphs 4f and g and paragraph 8. He did not admit the other paragraphs. The matter then proceeded to a hearing before the Panel. At that hearing the Panel amended charge 9 to delete the words "any or" so that charge 9 then read "you failed to make any adequate contemporaneous record of the consultation."[23]The hearing before the Panel lasted for a week. It began on Monday 11th July 2005, and ended on Friday 15th July. Members of Mr Miah's family gave evidence, as well as medical staff and expert witnesses. At the conclusion of the first stage of the hearing, the Panel made the following findings in respect of those charges which Dr Biswas disputed: charges 3a, b, c and d were all found proved. Charges 4a, b, c and d were all not found proved. Charge 4e was found proved only in respect of the allegations of inspect and auscultate. Charges 5a and b were found proved but charge c was found not proved. Charge 6 was found proved. Charge 7 was not found proved. Charge 9 was found proved in its amended form. Charges 10a, b and c were all found proved.[24]After making these findings the Panel's next task was to determine whether collectively those charges which had been admitted or proved constituted serious professional misconduct. Counsel for Mr Biswas and counsel for the GMC both made submissions on this issue.[25]At the conclusion of counsel's submissions the legal assessor tendered his advice to the Panel. The legal assessor's advice included the following passage:
"In order to be satisfied so that you are sure that a practitioner is guilty of serious professional misconduct you must have regard to the matters put before you on behalf of the Council concerning any circumstances leading up to the facts that you have found proved, the extent to which such facts are indicative of serious professional misconduct and as to the character and previous history of the practitioner, under the provisions of Rule 28(1). You must also have in mind the matters put before you on behalf of Dr Biswas under Rule 28(2) which go to the issue of whether he is guilty of serious professional misconduct and to the issue of mitigation of any penalty. What you must do is to bear in mind the distinction between matters which go to the issue of whether the practitioner is guilty of professional misconduct and those which more properly go to the issue of mitigation of penalty which would come into the play only if you have found the practitioner guilty of serious professional misconduct. You should keep separate in your minds matters going to proof or otherwise of serious professional misconduct and matters going to personal mitigation ... As to a finding of serious professional misconduct, I repeat the advice that I gave at the first stage of these proceedings. Serious professional misconduct will be established only if the Council have satisfied you so that you are sure that the conduct, in terms of both acts and omissions, has fallen short of the standards to be expected amongst general practitioners at the relevant time and that such a falling short was serious. The fact that this allegation involves one event does not in itself prevent you from making a finding of serious professional misconduct. I would advise you to approach the matter in the same way that you would approach any other case involving an allegation of serious professional misconduct and remind you that in order to be satisfied that Dr Biswas is guilty of serious professional misconduct you must be satisfied so that you are sure, on the facts that you have found proved or were admitted and upon all the relevant material put before you following the announcement of your findings of fact, that he is guilty of a serious falling short of the standards expected of a general practitioner."
[26]The Panel members then considered the matter in private. When the hearing resumed, the chairman announced the Panel's determination. After recounting the history of events and quoting from the GMC's publication "Good Medical Practice" the chairman said this:
"You failed to obtain an adequate history and to carry out an adequate examination and so placed yourself in a position where you were unable to assess your patient's condition and needs. You made an inappropriate diagnosis and failed to provide the patient and his family with adequate information for themselves or the hospital. You also failed to make proper contemporaneous records. This was inappropriate, did not sufficiently respect Mr Miah and his family and was not in his best interests. The Panel has determined that in your treatment and care of Mr Miah, you did indeed depart from the standards of Good Medical Practice. In line with the judgment of Lord Justice Judge in the Appeal Case of the Queen (on the application of Jennifer Campbell) and the General Medical Council [2005] EWCA Civ 250, the Panel has taken care not to consider matters of purely personal mitigation in determining whether or not your failings amount to serious professional misconduct. The Panel found that you did obtain some history and conducted a partial examination. Your diagnosis of gastritis was not inappropriate in the circumstances. The Panel considers it relevant that this was an isolated incident, involving a single consultation with a single patient. There is no evidence that your failings caused Mr Miah any harm. You accepted through your Counsel that you had been negligent in your overall care of Mr Miah. The Panel found that there had been falling short on your part from the standards required of a competent general practitioner. The Panel must determine whether that falling short is sufficiently serious to warrant a finding of serious professional misconduct. The Panel considers that the public, informed of the relevant circumstances, are well placed to differentiate between poor conduct and the gross departure from accepted professional standards which is required before the stigma of serious professional misconduct is applicable. The Panel considered carefully whether your conduct amounted to a serious departure from the standards required. Having considered all the proven facts the Panel is not satisfied that these facts support a finding of serious professional misconduct. The Panel therefore findings you not guilty."
[27]In accordance with normal practice the GMC sent a copy of the Panel's determination to the CRHP. The CRHP took the view that the Panel's decision was wrong and that a finding of serious professional misconduct ought to have been made. Accordingly, in order to challenge the Panel's decision, the CRHP commenced the present proceedings.

Part III: The present proceedings

[28]At a meeting held on 9th August 2005 the CRHP resolved to refer the Panel's decision in respect of Dr Biswas to the High Court, pursuant to section 29(4(b) of the 2002 Act. By an appellant's notice, dated 11th August 2005, the CRHP appealed again the Panel's decision that Dr Biswas was not guilty of serious professional misconduct. The CRHP sought an order that the Panel's determination be quashed, that the Court should make a finding of serious professional misconduct and that the Court should impose the penalty of suspension. In the alternative, the CRHP sought an order that the case of Dr Biswas be remitted to the Panel for further consideration.[29]I shall not read out the grounds of appeal as set out in the appellant's notice, because these grounds have undergone substantial change during the course of the litigation. Instead, I shall read out those grounds of appeal which are actively pursued as they are formulated in paragraph 29 of the CRHP's skeleton argument:[30]Ground a):
"The Legal Assessor directed the Panel that as with matters of fact, in relation to the question of serious professional misconduct they had to be 'sure' before making such finding (page 222 transcript D4/18H) and page 223 (transcript D4\19E)- which apparently refers back to the Legal Assessor's direction at page 199 (transcript D3/19D). That was an erroneous direction as it substituted a test of proof, for the correct approach which is one of judgment. The Panel accepted the advice of the Legal Assessor (page 231 transcript D5/3D)). The Panel's conclusion is undermined by that error of law. The error is manifest in the Panel's conclusion that they were 'not satisfied that these facts support a finding of serious professional misconduct.' That is the language of proof not judgment."
[31]Ground d):
"Although the Panel did direct itself in accordance with Campbell, the Panel improperly took account of a matter relevant only to personal mitigation (ie to the appropriate sanction once serious professional misconduct has been established). The Council relies upon the reference in the Panel's discussions to Dr Biswas' acceptance (not given prior to the hearing before the Panel) that he had been negligent in his overall care of Mr [Anu Miah]. Whilst this could be relevant to the question of future risk, it could not diminish the seriousness of Dr Biswas' failings at the time."
[32]Ground e):
"The Panel should have considered and attached weight to the evidence that when interviewed by Dr Essex on 22nd September 2003, Dr Biswas said, 'There was nothing to be learned from this case... He felt his performance was very good, maximum, could not have done better'... This indicates Dr Biswas' lack of insight and failure to appreciate the actual standards required of him."
[33]Ground g):
"The Panel in its reasons relied upon the fact that there was 'no evidence' that Dr Biswas' failings had caused Mr [Anu Miah] any harm. The Panel has in part an investigative function (as recognised in Ruscillo/Truscott at p 740, paragraph 80). They should have ensured that they were properly informed as to the issue of causation/harm. However, the issue of causation/harm was not investigated during evidence."
[34]Ground h):
"In the absence of such investigation, the Panel failed properly to perform their function to the extent that they relied upon the absence of evidence before them as to harm in reaching their finding that there was no serious professional misconduct. If the presence/absence of harm was a matter upon which they were to rely, it was incumbent on the Panel to ensure that they were properly informed as to this."
[35]Ground i):
"Further, if the Panel did in fact consider the question of harm on the assumption that Dr Biswas' fault did not include a failure to refer immediately to hospital, as invited by Counsel for Dr Biswas (page 218), then it will have erred in law. This is because all of the evidence, including that from Dr Biswas, was that if he had had all the information that he would have had if he had taken a proper history and had ascertained what medication Mr [Anu Mia] was on, then the proper course was immediate referral to hospital. (page 147)."
[36]Ground j):
"In determining what standards were required of doctors in general, or of Dr Biswas in particular, the Panel should have borne in mind requirements of public protection, namely that doctors should be required to comply with a standard that enables the public to be safeguarded against harm and which maintains the reputation of the profession. In order properly to reflect these interests, the Panel ought in considering the question of serious professional misconduct to have considered whether or not they could be satisfied that the serious lapses identified in relation to Dr Biswas' practice were such as to place the public at risk of harm. They plainly were. And if it were right that Mr AM was not in fact harmed by such lapses (as to which the Panel did not properly inform themselves), there can be no doubt that the proven failures of Dr Biswas were such that they were capable of causing great harm. The fact that they did not in fact cause harm is not relevant to the seriousness of the lapse."
I should explain that grounds f) and l), as set out in the skeleton argument, were abandoned during the course of the hearing. The other parts of paragraph 29 of the skeleton argument and its subparagraphs (which I have not read out) are essentially amplification of the specific grounds quoted above. I take that amplification into account but it is not necessary for me to read it all out. In this judgment I shall refer to first ground of appeal, namely ground a), as "the alleged misdirection". I shall refer collectively to grounds d), e), g), h), i) and j) as "the other grounds."[37]CRHP's appeal came on for hearing the day before yesterday. The argument lasted all day. A problem emerged concerning the operation of certain transitional provisions. Indeed, on the statutory material in the bundle before the Court, there even appeared to be a doubt whether this Court had jurisdiction to hear the appeal at all. Counsel needed further time to research this aspect of the case. Accordingly, further agreed written submissions on the effect of the transitional provisions and this Court's jurisdiction were lodged yesterday. Those supplementary written submissions made it clear that the position is as I have summarised in Part I of this judgment, and there is no problem concerning the Court's jurisdiction to hear the present appeal.[38]Having considered the supplementary written submissions as well as the arguments advanced at the hearing, I am now in a position to give judgment on the appeal. I shall deal, first, with the alleged misdirection and then with the other grounds of appeal.

Part IV: The Alleged Misdirection

[39]In Part II of this judgment I have read one section of the legal assessor's advice to the Panel. The CRHP contends that this passage constitutes a misdirection. The GMC, as first respondent to the appeal, concedes that the passage is a misdirection. The GMC contend that the appropriate remedy is remission to the Panel. Dr Biswas, by his counsel, accepts that this passage could have been better expressed, but contends that, when read in context, it does not amount to a misdirection. Dr Biswas also contends that it can be seen from the determination that the Panel members were not led astray.[40]In relation to these issues, I turn for guidance to the wide-ranging and detailed reports prepared by Dame Janet Smith following the Shipman Inquiry. In her fifth report, at paragraphs 21.31 to 21.32, Dame Janet Smith stated as follows:
"21.31 Rule 28 of the 1988 Professional Conduct Rules provided that, where a PCC panel found the facts, or some of the facts, alleged in a charge proved or admitted (and, presumably, that they were not insufficient to support a finding of SMP), it should then invite the GMC's representative (or the complainant) to address it: '...as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to character and previous history of the practitioner. The Solicitor or the complainant may adduce oral or documentary evidence to support an address under this rule.' 21.32 The doctor (or his/her representative) was then invited to address the PCC panel in mitigation and to adduce evidence in support if desired. After that, the PCC Panel would deliberate again. It would consider whether the facts proved did amount to SPM and, if so, what sanction should be imposed. In my view, these were both matters of judgment for the PCC panel, rather than a matter of proof. However, there are indications in the GMC documents that some people were of the view that SPM must be proved 'beyond reasonable doubt'... In my view, only the facts were a matter for 'proof', the other issues were matters of judgment. In a Consultation Paper in March 2001, the GMC said that opinions differed on whether the criminal standard of proof should apply to the decision whether the facts found proved amounted SPM and to sanction. I understand that the GMC now takes the view that only the facts need be proved to the criminal standard, and that whether the facts which have been found proved amount to SPM is a matter of judgment."
[41]I entirely agree with the views expressed by Dame Janet Smith in paragraph 21.32 of her fifth report. The Court of Appeal appear to have taken a similar view in R (Campbell) v GMC [2005] EWCA Civ 250 (see paragraphs 5 and 43 of that judgment).[42]Against this background, I have come to the conclusion that the advice tendered by the legal assessor to the Panel, was wrong in law. In the first sentence of that passage, the legal assessor said:
"In order to be satisfied so that you are sure that a practitioner is guilty of serious professional misconduct you must have regard to ... "
[43]That was the wrong approach. The Panel had already determined which of the charges had been proved. In that task the Panel had applied the criminal standard of proof. In the next stage of its deliberations the Panel was required to carry out an exercise of judgment or assessment.[44]A little later in his advice, the legal assessor said this:
"Serious professional misconduct will be established only if the Council has satisfied you so that you are sure that the conduct, in terms of both acts and omissions, has fallen short of the standards to be expected amongst general practitioners at the relevant time and that such a falling short was serious."
That statement of law was incorrect. The phrase "only if the Council has satisfied you so that you are sure" should not have been used. The phrase "satisfied so that you are sure" also appears in the last sentence of the passage quoted. That sentence also was erroneous in law.[45]I have read the whole of the legal assessor's advice. I have also looked at the legal assessor's advice in the context of the proceedings as a whole and having regard to other relevant parts of the transcript. Despite Miss O'Rourke's submissions, it is impossible to escape from the conclusion that the legal assessor proffered clear advice which was favourable to Dr Biswas but was wrong in law.[46]I turn now to the question whether the Panel Members were led astray. I am afraid that they were. In announcing the final determination the Chairman said in terms that the Panel accepted the advice of the legal assessor. At the conclusion of the determination the Chairman said:
"Having considered all the proven facts the Panel is not satisfied that these facts support a finding of serious professional misconduct."
Bearing in mind the legal assessor's advice to the Panel, the word "satisfied" must mean "satisfied so that we are sure".[47]It follows from the foregoing that the Panel made an error of law in the exercise of determining whether the charges which had been proved established serious professional misconduct.[48]Let me now turn to section 29 of the 2002 Act, which has been set out in Part 1 above. The meaning of this statutory provision is obscure. Section 29 can only be understood when it is read in conjunction with paragraphs 36 to 83 of the Court of Appeal's judgment in Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo [2004] EWCA Civ 1356; [2005] 1 WLR 717.[49]It is clear from the exegesis given in Ruscillo that section 29(4)(b) confers upon the CRHP the power to appeal against a finding by the Panel that serious professional misconduct has not been proved. Such an appeal proceeds in accordance with CPR Part 52. The Administrative Court will allow the CRHP's appeal if the decision of the Panel was(a) wrong or(b) unjust because of a serious procedural or other irregularity (see CPR rule 52.11.3). In a case where the Panel has given due consideration to all relevant factors the Court will place weight on the expertise which the Panel members have brought to bear upon the problem. Where, however, there has been a failure of process, the decision reached by the Panel will need to be reassessed (see Ruscillo at paragraph 78).[50]Let me now apply the Court of Appeal's exegesis of section 29 to facts of the present case. The erroneous legal advice given by the legal assessor and accepted by the Panel constitutes "a failure of process." If that failure of process had not occurred, it is perfectly possible, but not certain, that the Panel would have found Dr Biswas guilty of serious professional misconduct. Therefore, this appeal is properly brought in accordance with section 29(4(b) of the 2002 Act, and must be allowed.[51]I do not know what the Panel would have decided, if it had received correct legal advice. This is not such a clear case that the Court ought to step in and take the decision for itself. In the circumstances, the proper remedy in respect of this ground of appeal is an order for remission to the Panel pursuant to section 29(8)(d) of the 2002 Act.

Part V: The other grounds of appeal

[52]I shall deal with the other grounds of appeal somewhat more briefly, because I have come to the conclusion that none of these ground can succeed. Furthermore, the CRHP has succeeded on what emerged at the hearing as the main ground of appeal.[53]Let me start with ground d). The relevant sentence in Panel's determination reads "you accepted through your counsel that you had been negligent in your overall care of Mr Miah." This sentence is a reference back to a comment made by Miss O'Rourke, in her submissions, after the Panel had announced which charges were proved. This was a comment on the Panel's findings. It did not refer to Dr Biswas' state of mind.[54]When one reads the full transcript of the proceedings on Day 4 and Day 5, it can be seen that there was never any suggestion, made on behalf of Dr Biswas, that he was entitled to credit for admitting negligence. On the contrary, his whole case was that he had not been negligent. At Day 5, page 5, lines 2 to 3, the chairman was simply alluding to a comment made by counsel. He was not stating a factor which reduced or otherwise bore upon the seriousness of Dr Biswas' misconduct. In my view, ground d) fails. It is based upon a misreading of the transcript, because one sentence has been taken out of context.[55]Ground e) is, as Miss Grey for the GMC points out, inconsistent with ground d). The assessment of whether the charges which had been proved constituted serious professional misconduct was primarily an objective exercise. The Panel had to look at those breaches of duty by Dr Biswas and evaluate their seriousness. The Panel would have been, and indeed was, assisted in that task by the GMC's publication "Good Medical Practice". The Panel was also assisted by the judgment of the Court of Appeal in R (Campbell) v The General Medical Council [2005] EWCA Civ 250. The Chairman of the Panel made express reference to Campbell at Day 5, page 4. It seems to me that what Dr Biswas said to Dr Essex, in September 2003, is of only limited relevance to the question whether Dr Biswas' breaches of duty constituted serious professional misconduct.[56]As Miss O'Rourke rightly points out, the Panel's determination should not be treated like a judgment. The Panel must have of course give reasons for each decision which it reaches, but the statement of reasons can be concise and focused upon the principal matters in issue. See the judgment of the Privy Council in Selvanathan v GMC (11th October 2000) Appeal No 21 of 2000.[57]At page 14 of transcript of Selvanathan, Lord Hope said this:
"In these circumstances it is not to be expected of the Committee that they should give detailed reasons for their findings of fact. A general explanation of the basis of their determination on the questions of serious professional misconduct and of penalty will be sufficient in most cases."
[58]Let me now apply those principles to the present case. The Chairman gave a brief summary of the principal reasons which caused the Panel (albeit proceeding on an incorrect legal basis) not to be satisfied that Dr Biswas' breaches of duty constituted serious professional misconduct. The Panel was not obliged in its determination to go further and explore all the minutiae or the byways of the case. Having regard to the issue which was then before the Panel, it seems to me that any conversation between Dr Biswas and Dr Essex, in September 2003, was not a matter which the Panel was required to comment upon or to mention in its determination.[59]Let me now turn to ground g). The allegation that Dr Biswas' breaches of duty caused Mr Miah's death did not feature in the charges against Dr Biswas. There was, as it seems to me, a very good reason for this omission. When one examines the expert evidence available (as was done during this hearing) it is can be seen that it would have been extremely difficult for the GMC to prove to the satisfaction of the Panel that there was any direct causal link between Dr Biswas' errors or omissions and the unfortunate death of Mr Miah. Be that as it may, the fact is that causation of harm was not one of the charges. In my view, it would not have been proper for the Panel, in the exercise of its powers of amendment, to make such a far-reaching addition to the list of charges.[60]Ground g) is, in truth, an allegation against the GMC of "under prosecution". The Court of Appeal has set out in Ruscillo, at paragraph 81, the procedure which should be followed when "under prosecution" is alleged. The CRHP has not followed that procedure in the present case. Accordingly ground g) fails.[61]Let me now move on to ground h). The Panel did indeed say that there was no evidence that Dr Biswas' failings had caused harm to Mr Miah. The GMC had neither pleaded nor proved any such causal link. In my judgment, this was a perfectly proper matter for the Panel to take into account when determining the issue of serious professional misconduct.[62]The remaining allegations in ground h) are in effect a repetition of ground g). In the result therefore ground h) fails.[63]Let me now move on to ground i). This ground is, in essence, a challenge to the Panel's findings in respect of charge 7. The reasoned decision of the Panel in respect of this charge is set out in the transcript of Day 4, at pages 7 to 8 as follows:
"Head 7 is not found proved. The Panel cannot be certain that, at the time of consultation, the patient's condition required immediate referral. Additionally, it agreed with Professor Winslet that you could not reasonably have been expected to diagnose Anu Miah's illness or assess its potential severity at that time."
[64]The evidence on this issue was not all one-way as is suggested in ground i). On the contrary, there were conflicting strands of evidence which pointed in different directions. It is clear that the Tribunal rejected the evidence given by Dr Biswas on this topic. That evidence is to be found at Day 2, pages 57 to 58 and pages 71 to 72. Miss O'Rourke has taken this Court through the evidence which bears on charge 7. As a result of this exercise, I am quite satisfied that the Panel was entitled to reach the conclusion which it did reach. Therefore ground of appeal i) fails.[65]I come, finally, to ground j). This may be summarised as the Panel's failure to take into account potential harm. Even though Dr Biswas's breaches did not cause any actual harm, they had the potential to cause harm. This proposition seems to me to be self-evident. The fact that it was not spelt out by the Panel in the course of the Panel's determination does not suggest to me that the Panel did not have this matter in mind. The Panel made the perfectly proper point that in the circumstances Dr Biswas' failures did not cause actual harm. The fact that those failings might have caused harm was implicit in both the first determination of the Panel and the second determination of the Panel. I have no doubt that all Panel members took this factor into account. Accordingly, ground of appeal j) fails.[66]Let me now draw the threads together. For the reasons set out above the CRHP succeeds on the alleged misdirection, but fails on the other grounds of appeal.

Part VI: Conclusion

[67]For the reasons set out in Part 4 above, this appeal is allowed. The decision of the Panel, made on 15th July 2005, is quashed. This matter is remitted to the Panel, in order that the Panel may determine afresh the question whether collectively the charges admitted and the charges proved constitute serious professional misconduct.[68]This Court directs that the Panel should not apply the criminal standard of proof to this question. Instead, the Panel should consider the charges which have already been established (either by admission or by proof) and make a judgment as to whether or not those failings by Dr Biswas constitute serious professional misconduct. I request that counsel discuss and agree the precise form of this Court's order and submit a draft for approval.[69]I am grateful to all counsel for the considerable assistance which they have given, both in written submissions and in oral argument. As indicated earlier, the final result is that the CRHP succeeds in its appeal.[70]MISS STERN: My Lord, that leaves the matter of costs. My Lord, we do ask for our costs on the basis that costs should follow the event. The council have succeeded in their appeal on what your Lordship described as the main argument, although it is quite right we did not succeed in every argument. But my Lord, all parties would have needed to be here today in order to argue that point in any event.[71]My Lord, I can hand up a bundle of correspondence which simply shows to the extent of the conduct of the parties is relevant in this matter. From the very early stage, as is the Council's policy and this is quite clear from the front page of that bundle.

MR JUSTICE JACKSON: This correspondence shows what, I did not hear you?

[73]MISS STERN: It simply shows that as the Council's approach that the possibilities of alternative dispute resolution was flagged up from an early stage by the Council, with a view to seeing whether there might scope for any resolution of this appeal without a need for a full hearing. My Lord that did not lead to anything.

MR JUSTICE JACKSON: Was it resisted by both respondents or by just by one of them?

[75]MISS STERN: What my Lord will see is the suggestion was made from the earliest stage in correspondence from 10th August to Field Fisher Waterhouse and then four pages in, from 15th August, to Harries Solicitors acting for Mr Biswas. There was no suggestion at any point of any possibility of ADR on the part of Harries, who are the solicitors for Mr Biswas. As regards Field Fisher Waterhouse what one sees, five pages from the end of that bundle, is that on 8th December, a letter came to Bevan Brittan from Field Fisher Waterhouse advising that the opinion of the GMC was that the appropriate course would be for the matter to be referred back to FTPP for redetermination. But there was no indication of the basis upon which that was to be suggested.

MR JUSTICE JACKSON: Did you ask the basis?

[77]MISS STERN: My Lord, there was discussion. What one sees is generally seeking the skeleton argument of the GMC. If one looks to the page before that, before 8th December, which is the file note of a discussion between Bevan Brittan and Field Fisher Waterhouse what was asked was the extent to which the GMC were supporting the application. In that conversation it is clear that there is some consideration of ADR and that some further information is being sought by Bevan Brittan.

MR JUSTICE JACKSON: Yes.

[79]MISS STERN: It was not until the skeleton argument was served on 11th January that the position being taken by the GMC was fully articulated beyond what was one sees in that letter of 8th December.[80]MR JUSTICE JACKSON: When was your position, or your case in respect of the misdirection first articulated?[81]MISS STERN: It was in the skeleton argument.

MR JUSTICE JACKSON: When was that served?

[83]MISS STERN: That was served on, I think on the 15th of -- I am just trying--

MR JUSTICE JACKSON: It was not in your appellant's notice, was it?

[85]MISS STERN: No, it was not in the skeleton argument. What one sees is on 24th August -- 24th August, my Lord. From that point, that point was articulated. What one sees to the approach of Dr Biswas is there is a file note three pages from the end of this bundle which sets out the position that the appeal would be defended and then there are chasing letters seeking skeleton arguments.

MR JUSTICE JACKSON: Yes.

[87]MISS STERN: My Lord, what is clear from the bundle is the Council have sought to investigate the possibilities of alternative dispute resolution. That was not something that came to fruition. This appeal would have had to have been fully heard in any event given the stance taken by Dr Biswas. My Lord, although we did not succeed on every argument, we all would have to be here in order for this appeal to be heard in any event. In those circumstances I do ask for our costs.[88]My Lord there is some precedent as regards cost but I appreciate that is really of persuasive value only before this Court. What my Lord will see at tab 21 of the authorities bundle is the approach that was taken in the case of Rajeshwar. Tab 21 of the authorities.

MR JUSTICE JACKSON: Page?

[90]MISS STERN: Page 458, which is at the end of the judgment. There was discussion in that case as to costs. What Sullivan J ordered, is that it was GMC's procedural error that led to need for proceedings and that the GMC should be liable for the costs up to and including the making of the appeal. That was ordered up until the date of service of the GMC's skeleton argument, when there are was full explanation of the position being taken by the GMC.

MR JUSTICE JACKSON: When was the GMC's skeleton argument served in this case?

[92]MISS STERN: On 11th January, my Lord.

MR JUSTICE JACKSON: Yes.

[94]MISS STERN: We simply say we should have our costs, and it is really a matter for my Lord as to the appropriate division between the two respondents. My Lord there is some other authority in the case Bijl but it does not go any further than what one sees in Rajeshwar save for the point my Lord also in Bijl, the Council was not 100% successful although my Lord they are not precisely in the same terms as your Lordship found of one of four arguments would have succeeded. My Lord without saying anything further, unless there is further matter brought I can assist your Lordship, that is our submission.[95]MISS GREY: My Lord, my learned friend is quite right about the authority of Rajeshwar. The case is nevertheless is quite complex. If I could take your Lordship through the chronology in a little more detail? The relevant chronology from our perspective, my Lord, is on 10th August we were informed of CHRE's decision to refer this matter to the High Court, but, at that stage, we did not of course have detailed argument and, in particular, the point as to the alleged misdirection was not raised until the service of the skeleton argument. So we did not in effect have an opportunity to consider the merits of that argument until the CHRE had already incurred the considerable costs of those instructing me rightly before me of preparing a bundle and serving the appellant's notice and so on. So the original basis of the proceedings is not something which is known to us until 24th August.[96]Thereafter, my Lord, we considered the case, and on 6th October, as your Lordship sees from the note, the letter of 21st October in your Lordship's clip of correspondence, we advised the CHRE that the GMC would not be defending the case.

MR JUSTICE JACKSON: On which date?

[98]MISS GREY: 6th October, in a telephone conversation.

MR JUSTICE JACKSON: Where do I see that?

[100]MISS GREY: The letter of 21st October it is referred back.[101]MR JUSTICE JACKSON: I have found the attendance note now. She said they had instructions the GMC would not be defending the case.[102]MISS GREY: It is followed up by a letter from Bevan Brittan on 21st October, asking for further detail and wanting to know whether or not we would support the view in the notice that Dr Biswas was guilty of serious professional misconduct and the appropriate sanction was suspension.

MR JUSTICE JACKSON: Where is that letter?

[104]MISS GREY: That is letter which follows immediately from the attendance notes you have referred to. It is dated 21st October, it is a very small date at the top.

MR JUSTICE JACKSON: I found that, thank you.

[106]MISS GREY: So we are being asked, at that point, would we go further than your Lordship has in effect ruled we ought to have gone. There is then further discussion as to whether we will agree that, evidenced by the attendance note of 3rd November which follows. Your Lordship I think does not need to look at any detail at the two attendance notes or the letter of 21st November, which again seeks clarification on the point.[107]Then, 30th November, from those instructing me, Field Fisher Waterhouse, again merely repeats we will not be defending case. That really again is repeated in the attendance note of 5th December. But then your Lordship sees the letter of 8th December, where we say in terms the course that then found its way into our skeleton argument, appropriate course of the matter is to refer this back for redetermination on the SPM issue and then the most appropriate sanction. So that is the letter of 8th December, which is followed up by our skeleton on 11th January. Your Lordship needs no reminder of the contents of that skeleton. We do say that the principal point that we rested our case on is the point that your Lordship has found in favour of, and that the correct solution that we sought was the one that was substantially adopted by your Lordship.[108]So, my Lord, if your Lordship takes as the starting point, perhaps, the approach of Sullivan J, in the Rajeshwar case, we would respectfully submit that as a very minimum any cost that we have to bear should end after 11th January. At that point our position was fully formulated. We go further, because we would respectfully submit that in fact our costs should be borne by one or other of the other parties, both of whom were taking more extreme positions, positions on either side of the fence from that date onwards. I make no particular submission as to who amongst the two candidates should bear our costs but we would respectfully say from that date one our other should. If it had not been for the stance of both CHRE and/or Miss O'Rourke's client, it would have been possible, we would respectfully submit, to have agreed a consent order taking this matter back for redetermination of the SPM issue. Your Lordship has, in the discussion on costs, in front of Sullivan J, the agreement in effect by the judge that, if it had not been for the differences between the parties, it would have been possible to dispose of a case like this by short written letters to the judge and a consent order, rather than a full blown hearing with argument on either side.[109]My Lord, we say that is, as it were, the basics minimum on cost but we do go further, because we would respectfully point out that, first of all, the main misdirection of law that was identified correctly by the CHRE was not notified to us until the skeleton argument was served on us after proceedings had been issued. Secondly, of course, that your Lordship could take the date of 11th January back to the 8th December, where we set out our stance, albeit without giving reasons as to what we thought should happen on this appeal.[110]So, my Lord, we would respectfully submit that, if one takes all of that altogether, this may be an appropriate case where all parties simply end up bearing their own costs. That would do justice to the reality of this occasion. If your Lordship is not with me on that, I say, as I have said, that we would perhaps, according to Sullivan J's approach, end up bearing some part of the costs but we would respectfully submit that that ought to end on 8th December, alternatively, 11th January and thereafter, that our costs should be borne by one or other of the two other parties to this appeal.[111]MISS O'ROURKE: My Lord, my position is this is a clear case for each party should bear their own costs. As far as CHRP are concerned, I beg to differ with Miss Stern on the question of ADR having any relevance in this case, because it is quite clear that her clients were not going to go away with anything less than a finding of serious professional misconduct in terms of what they were urging. Right until the very end and indeed effectively until today they have asked your Lordship to substitute a finding of serious professional misconduct. They did not drop that off. There is no question that any ADR proceedings; they were not going to agree to anything less. There is no reason why my client should, according to that or indeed the GMC have agreed to that because as your Lordship has now found it is not a clear cut case for one can say it is serious professional misconduct. It is going to have to be argued in front of a Panel, properly directed. It is perfectly possible that the same result is achieved again in respect of Dr Biswas because of the reasons -- I will not run through again -- isolated incident; 20 minutes consultation; one patient. So it would be wrong in the circumstances to say: well, we have gone to ADR. If we have gone to ADR we would probably have incurred more costs and still be here fighting it.[112]Secondly, they really have not won, because a large part of Mr Jay's argument on Tuesday was taken up with going through the issues of harm, potential harm, and trying to argue the finding that the Panel got it wrong in respect of the immediate referral to hospital and that took up a lot of time. They effectively lost all those points. Remember they started the hearing on Tuesday morning, asking your Lordship also to determine sanction. Not putting sanction way down, putting sanction in the most serious position. In other words my client would be suspended. So they really have not won.[113]Arguably, if anybody has won it is Miss Grey because she has rightly pitched it where your Lordship found it. So one might have some sympathy towards her having some costs. But of course the position as far as she is concerned is it is her client who has caused the problem in the first place.

MR JUSTICE JACKSON: Has what, sorry?

[115]MISS O'ROURKE: Has caused the problem, in the sense it is a material misdirection by their legal assessor, adopted by their Panel, as a result of which my client, who may well if there had not been a misdirection achieved the same outcome, has had an extra 9 months added on to his suspension, is here, and is now going to go back and go through a further hearing. So while one has some sympathy because they correctly called it and as of December, on the other hand, this is an error by a body which has brought the rest of us here, both Miss Stern's client to say that you got it wrong but also my client because they got it wrong.[116]My Lord, I think third point to make is this, if it be said against me: well, I came and argued it. Had I been faced with both parties saying what your Lordship has now said in the judgment, I may well have been giving very serious consideration to saying to my client: yes, we have to face it, we are going to have to go back. Your Lordship has seen on page 1 of my skeleton I acknowledge misdirection but seek to argue what it may not have been material. I had to come in any event because I had to argue what the CHRP were wanting that I go back in stage 1 of the proceedings and I have to fight again the question of referral. I have to fight the questions of harm. So I had to come and argue that. If I had been faced with CHRP saying: Okay, we are not asking the judge for either sanction or serious professional misconduct, we will allow it to go back. I may well have been in a position to say not only to my client, Dr Biswas, but Medical Defence Union who fund him: look the legal assessor did not word it in the best way he could. Let us go back and sort it out appropriately. We still have serious professional misconduct to argue for, and it may well be we achieve the same outcome, rather than carry the run the risk of carrying everyone's costs.[117]So my Lord, I say, because of the peculiar circumstances of this case, one wants to look at it in this way: fault on all the parties. Me, I fought it to the end, but, yes, on a limited point. Miss Grey's client caused the problem in the first place and Miss Stern's client did not give up on wanting your Lordship to find SPM when it was never appropriate for your Lordship to do it. In the circumstances we can all bear our own costs and walk away.[118]MISS STERN: My Lord, if I could reply on a couple of points. The first is that--

MR JUSTICE JACKSON: Because you have a voice problem, would you speak more slowly, please.

[120]MISS STERN: My Lord, the first point is my recollection was that Mr Jay at the outset of the hearing did not ask your Lordship to determine sanction but accepted that would be a matter to be remitted.[121]MISS O'ROURKE: I think I was saying only at the outset. Until we came into Court I had no idea of the position. The first I knew was when he told your Lordship.[122]MISS STERN: My Lord, the second point is that it has always been that Council's position in the alternative that it would be appropriate for the matter to be remitted for the FTP to consider the question of serious professional misconduct and sanction, if relevant.[123]My Lord, the next point is as to whether or not counsel were genuine in their suggestions to consider ADR. My Lord the bundle of documents before you shows that the Council were indeed genuine and that they were putting out feelers for alternative dispute resolution at the earliest stage. Indeed the file notes of discussion in particular with the GMC showed the Council's flexibility in that regard. So, my Lord, we say there is no merit in Miss O'Rourke's point. What would have been the point of considering alternative dispute resolution? The Council repeatedly refer on that basis.[124]My Lord, the third point on reply is that as to Miss Grey's point as to the misdirection of law not being raised in the notice of appeal and first being raised by way of skeleton argument. My Lord it was raised on 24th August and was not until in the skeleton argument, my Lord, it was not until 11th January that there were then any open acceptance or explanation in correspondence or otherwise as to the GMC accepting that error of law, and that that was the basis upon which they were content to agree for remittal. My Lord, the GMC did take the additional points in their skeleton argument that the FTP ought to have considered potential for harm in their determination and in argument Miss Grey agreed with the submission that the question of insight was something which should be considered by the Panel upon remittal. So those points were not points solely taken by the council before you.[125]My Lord, we do say that on our main point we have succeeded and we have in terms of conduct made efforts along the way to seek to resolve this matter without the need fore hearing. So, my Lord, we do repeat the submission that we ask for our costs against the other respondents.

MR JUSTICE JACKSON: This is an application for costs which is made by the CRHP.

[127]Miss Stern, on behalf of the CRHP, relies upon the fact that she has been successful on the main point and that her clients have secured one of the alternative remedies which they which were seeking in the Notice of Appeal.[128]Miss Grey, for the first respondent, the GMC, points out that the claimant has failed on a number of issues, that offers of compromise were made by the first respondent, which would have achieved the same result as this Court's judgment but those offers did not result in a settlement. Miss Grey has taken me, in some detail, through the precise chronology and the dates. Miss Grey submits that, overall, justice would be done if all parties bear their own costs.[129]Miss O'Rourke, for the second respondent, also submits that each party should bear it own costs. There is a point which has been raised by Miss Stern, concerning ADR, which the CRHP proposed should be undertaken and which was not taken up by the respondents. Miss O'Rourke submits that ADR would not have achieved any useful purpose in this case, since the CRHP were pressing for a positive decision that there was serious professional misconduct.[130]Miss O'Rourke submits that, if the Council had limited its reference to this Court or its appeal to this Court, to an application for remission, only on the grounds of misdirection it may well be that Miss O'Rourke would have advised her client and her client would have accepted such advice, that there should be agreement to such a remission.[131]Reviewing the correspondence and the history of this case, I do not think that ADR would have led to a settlement. It seems to me that ADR may well have resulted in an agreement by the CRHP that the matter should be remitted to the Panel, but I do not think it would have led to an agreement that the matter should be remitted on the basis that the only flaw in the Panel's decision was the misdirection.[132]It also seems to me that a substantial amount of costs in this case have been generated by the issues on which the CRHP ultimately did not succeed. A great deal of the evidence before this Court is only there because of those other issues.[133]So far as the first respondent is concerned, I see considerable force in Miss Grey's point that, as between the appellant, the CRHP and the first respondent, each party should bear its own costs. The GMC specifically agreed to and proposed remission as from an early date. Indeed, Miss Grey's skeleton argument, when eventually it was served -- and there is no suggestion it was late -- did come quite close to the final decision of this Court.[134]Therefore as between the CRHP and the GMC, I am attracted by the proposition that each party should bear their own costs. As between the CRHP and Dr Biswas, however, I think that the position is somewhat different. Although Miss O'Rourke, in her skeleton argument and in her oral submissions recognised that the legal misdirection was the most formidable point against her, nevertheless, she did valiantly strive to resist the appeal on that ground. Her skeleton put matters attractively. Her oral argument put matters most attractively. One can well understand why Dr Biswas and his representatives would use their utmost endeavours to try to prevent this matter going back to the Panel with the risk of a finding of serious professional misconduct.[135]It seems to me that Dr Biswas ought to pay a small proportion of the costs of the CRHP, in order to reflect the fact that he has defended the appeal on the misdirection issue and, ultimately, he has been unsuccessful. I say "only a small proportion" because I am conscious of all the other factors which have been mentioned by counsel in the argument on costs and I am also conscious that costs have been incurred in relation to numerous other grounds of appeal, which have not ultimately succeeded. Indeed, the CRHP has failed upon all of the grounds of appeal which are set out in its appellant's notice.[136]Bearing in mind all of those matters and the points raised by counsel in argument, my decision is that Dr Biswas shall pay one-third of the CRHP's costs. Otherwise no order for costs.[137]MISS O'ROURKE: May I clarify, that is one-third of the costs as against us?

MR JUSTICE JACKSON: Yes.

[139]MISS O'ROURKE: Obviously not one-third of the overall costs because...[140]MR JUSTICE JACKSON: Yes, you are quite right. One-third of the costs as against Dr Biswas.[141]MISS O'ROURKE: Bringing the case against Dr Biswas. Because there is some slight difficulty because counsel appeared with one brief fee as against two bodies and so I do not know what way that is dealt with, whether it is better to actually say instead of a percentage of the overall costs, because the difficulty is leading and junior counsel instructed, they got a brief fee. How do we decide how much of that. Miss Grey's skeleton was twice as long as mine. Do we say that in arguing back they argued against her, it is bit...

MR JUSTICE JACKSON: What would you say, Miss Stern?

[143]MISS STERN: We have fought the appeal as one, taken the point as one and the appeal and had to be heard as one. I do not think it would be feasible to try to divide up the costs as against the separate respondents. The Council's costs of fighting the appeal.[144]MR JUSTICE JACKSON: Very well, what I will say is Dr Biswas to be pay one-fifth of the CRHP's overall costs, that is against both parties. That is 20% of the CRHP's costs of the proceedings.[145]MISS O'ROURKE: My Lord, I am slightly troubled by that because there is a lot of correspondence goes on in fact with the other parties and not with us. Your Lordship has seen from the clip of correspondence. In fact I would be better off with one-third of all the costs if that was the argument.

MR JUSTICE JACKSON: Of all costs against you?

[147]MISS O'ROURKE: Yes, my Lord, because one-third is 33% of all costs against me. Your Lordship has now taken it down to 20% of overall costs. It is likely that will actually be worse, I suspect, for my client, because the actual costs as against us in terms there was very little correspondence with us, indeed very little dealing. We were very much the second respondent.[148]MR JUSTICE JACKSON: I am quite happy to stick to my original order, I was only making a new order at your request. An appropriation can be made, it is something made in litigation.[149]MISS O'ROURKE: It is probably better to say the one-third of the costs as against us, that is going to be fairer. We can deal with it in terms of appropriate assessment as to as it is done in other cases between co-defendants. You split brief fees and you split costs for appellant's notices.

MR JUSTICE JACKSON: It is likely to be agreed in fact, is it not?

[151]MISS STERN: My Lord, there is consternation behind me as to how one can actually isolate what the costs of the appeal are as against the second respondent as opposed to the first respondent. It is likely to lead a great deal of difficulty in terms of establishing what other costs as against one or other and the other in the circumstances.

MR JUSTICE JACKSON: One can look at the correspondence.

[153]MISS STERN: The correspondence, it is the easier part, it is hearing and the general preparation and the consideration of the case which is more difficult.[154]MR JUSTICE JACKSON: Why should not the actual cost of the hearing be divided equally between the two respondents? You can deal with the costs of the correspondence by reference to who was being corresponded with and you can split the costs of the hearing equally.[155]MISS STERN: If that is your Lordship's view, we will simply try to implement that.

MR JUSTICE JACKSON: That is my view.

Cited in 3 later judgments