Gilthorpe v General Medical Council [2012] EWHC 672 (Admin)

Case No CO/11047/2011[2012] EWHC 672 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate Thursday, 2 February 2012
M3 3FX
Before
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between
GILTHORPEClaimantGENERAL MEDICAL COUNCILDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
The Claimant appeared in person. for in personMiss Callaghan (instructed by the Legal Team, GMC) appeared for Defendant.
Judgment
[1]Dr Herrera-Gilthorpe, known as Dr Herrera, seeks to appeal against the decision of the General Medical Council’s Fitness to Practise Panel made on 11 October 2011 to suspend his registration for four months under section 35D(2) of the Medical Act 1983 as amended. The relevant facts are that on 11 October 2011, in accordance with section 35E(1) of the Act, the Registrar served written notice of the decision on Dr Herrera. The notice contained an explanation of his right to appeal, which set out the manner and form of the appeal, the time for lodging an appeal and the place where appeal forms could be obtained. Dr Herrera acknowledged receipt of the notice by signing and dating it. On 12 October, the GMC wrote to Dr Herrera, setting out the panel’s decision in full. The letter stated inter alia:
“Formal notification of the decision, and a note explaining your right of appeal, were given to you after the hearing. Any appeal must be lodged within 28 days from the date on which notification of this decision is deemed to have been served upon you. Notification will be deemed to have been served on 11 October 2011, and therefore any appeal must be lodged on or before 8 November 2011. If you do not appeal, your registration will be suspended for a period of four months beginning on 9 November 2011.”
[2]It appears that Dr Herrera made attempts to file a claim for seeking judicial review of the panel’s decision between 7 and 9 November 2011. On being informed that this was the wrong procedure to use, Dr Herrera sought to withdraw his claim for judicial review. The GMC was not served with any application for judicial review by Dr Herrera. On 10 November, the Assistant Registrar of the GMC wrote to Dr Herrera informing him that:
“In the absence of any appeal by you to the High Court, the substantive order for suspension took effect on 9 November 2011. Your registration is therefore suspended for a period of four months until 8 March 2012.”
On 15 November, Dr Herrera filed a Notice of Appeal in the court. It was date stamped on that day. A letter from HM Courts and Tribunals Service dated 15 November, sent to Dr Herrera, confirms that the appeal was received on that date.[3]The material parts of the statutory scheme provide as follows. Section 35E(1) of the Act provides that, where a Fitness to Practise Panel gives a direction for suspension, the Registrar is required to “forthwith serve on the person concerned notification of the direction or variation and of his right to appeal against it under section 40 below.” Section 40(4) provides:
“A person in respect of whom an appealable decision [...] has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was served under section 35E(1) above, [...] appeal against the decision to the relevant court.”
Schedule 4 to the Act sets out provisions for service of notification. Paragraph 8(2) of the Schedule provides the section 35E(1) notice may be served by delivering it to him.[4]Ms Callaghan for the General Medical Council submits that Dr Herrera failed to lodge a valid appeal in time, and therefore the court has no power to hear the appeal, and must dismiss it. If, contrary to her primary submission, the court has power to extend time for lodging the appeal, she further submits that it is not in the interests of justice to do so in this case because the appeal is without merit.[5]Dr Herrera, who appears in person, submits that he did file a judicial review claim in time. He contends that the fact it was a judicial review claim, and not a statutory Notice of Appeal, should not be held against him, for two reasons: first, because it was not clear to him that section 40 of the Act required the appeal to be by way of a statutory notice rather than judicial review; second, he was advised by solicitors whom he consulted that it should be by way of a claim for judicial review. In the circumstances, he asks if it is necessary to extend time, that this court do extend time for launching the appeal.[6]In support her submission that Dr Herrera failed to lodge a valid appeal in time, Ms Callaghan referred to the recent decision of R (Dr Harrison) v GMC [2011] EWHC 1741 (Admin), where at paragraph 13 Blake J said:
“The hearing has proceeded on the basis that an appeal notice has to be a notice that complies with the statutory requirements.”
In my view, that is the correct approach. The only way to challenge a direction for suspension is by way of statutory appeal under CPR Part 52, and not by way of judicial review under CPR Part 54. Even assuming Dr Herrera did lodge a judicial review claim form, it was not a valid appeal because it was not in the proper form. Therefore, Dr Herrera did not lodge a valid appeal within time. I have given consideration as to whether, if Dr Herrera did lodge a judicial review form on or before 8 November 2011, the court could treat that as a valid appeal lodged within time, if I were to accept that he proceeded in the way he did because of the advice her received. However, that is not an argument open to Dr Herrera, because he did not in fact lodge a valid judicial review claim form on or before 8 November.[7]It appears that Dr Herrera sent an application for judicial review to the Administrative Court on or before 7 November. On 7 November, Mr Standen of the Administrative Court Office in Manchester sent an email to Dr Herrera stating:
“I have received your application for judicial review. Although the statements of facts and grounds were attached, the claim form had no information on it at all. Could you please complete the claim form and send it back. The application must be hard copy and not by email. The court requires two copies of everything, plus copies of the claim form, for all parties to be served, so that they can be sealed by the court.”
Dr Herrera told me that he thought from his communications with Mr Standen on the 7th that his application would be treated as having been filed on that day, albeit it was not complete. However, Dr Herrera said that he was subsequently told the next day by Mr Standen’s superior that this would not be so. On 8 November Dr Herrera sent Mr Standen an email, in which he said:
“As discussed over the phone yesterday, I am having UPS collect my documents today, and these should be with you by tomorrow. I have informed the General Medical Council that I have filed an appeal, and they have informed me that they will contact the court tomorrow to verify that this is the case. As I mentioned over the phone today is the last day to file my appeal. I am worried that since I have as yet not paid, the GMC may be told that I have not filed an appeal, which would in turn immediately make my suspension effective. I was wondering whether it is at all possible to pay over the phone today, since I do not want to take any chances. You can call me on [and then he gave his mobile number].”
[8]Dr Herrera did not send to the Administrative Court the documents referred to by Mr Standen in his email dated 7 November or make the payment required on the filing of a judicial review claim form. Instead, on 9 November, he attended at the Administrative Court office in Manchester with all the documentation, and paid the fee. Dr Herrera accepts that the judicial review claim form was filed on 9 November, and bears the court’s stamp of that date. He says that it was only on 9 November that he was told that the appeal is not by way of judicial review.[9]It is plain, in my judgment, that Dr Herrera did not lodge a valid appeal in time. I would just add, in the light of Dr Herrera’s observation that neither he nor the solicitors he instructed appreciated that the appeal is a statutory appeal under CPR Part 52 and not by way of judicial review, that in my view it is clear, from the notification of suspension that he received on 11 October and the explanation set out overleaf in the notes as to his right of appeal, that it is an appeal under the CPR. Nevertheless, so as to avoid any misunderstanding in the future, I consider it would be sensible for the GMC to state expressly in the notes that the appeal is under CPR Part 52 and not by way of judicial review.[10]I turn next to consider whether I have power to extend the time for lodging an appeal. The issue in Harrison was whether the court had jurisdiction to entertain Dr Harrison’s appeal against a decision of the GMC’s Fitness to Practise Panel that his name be erased from the Medical Register in circumstances where Dr Harrison had failed to lodge a valid appeal in time. Blake J held that the court does not have power to extend the time beyond the period set out in the statute. In reaching this conclusion, the judge reviewed the earlier decisions of the House of Lords in Mucelli v Government of Albania [2009] 1 WLR 276 and of this court in Mitchell v Nursing and Midwifery Council [2009] EWHC 1045 (Admin). In Mucelli, in his speech at paragraph 74, Lord Neuberger referred to the “clear and unqualified statutory time limit” which applied in that case, which concerned extradition proceedings, and held that there was no basis upon which it could be extended. At paragraph 78 Lord Neuberger refers to CPR Rule 52, and says this:
“It is true that the Practice Direction to CPR 52, and the prescribed form of the notice of appeal both suggest that the court’s powers to extend time under the CPR apply to the appeal process. As a general proposition this is of course, true, but it does not follow that the draftsman of those documents considered, let alone was stating, that the court must have such power in relation to every type of appeal. In any event, CPR 52.1(4) make it clear that the provisions of CPR 52 are ‘subject to any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal’, and the Practice Direction is brought into effect through CPR 52.2.”
On this basis, the House of Lords held that the courts below did not have any power to extend the time for a statutory appeal, even by a very short time, even though, in one of the cases before their Lordships, the appeal had been lodged with the court in time but not served on the respondent until the following day.[11]The subject matter in Mitchell was a question of whether or not the court had power to extend time in a nursing and midwifery disciplinary appeal under a different statutory regime to the present case, but with the same statutory time limit. Bean J accepted the submission on behalf of the disciplinary body that the rules specified by the House of Lords in Mucelli applied. Having noted that Mucelli was concerned with extradition cases, where the consequences for the unsuccessful appellant were potentially very serious,

the judge said at paragraph 12 of his judgment:

“Be that as it may, it is quite clear to me that, in the light of Mucelli, I have no power to extend time, and the appeal must therefore be dismissed.”
[12]In Dr Harrison’s case Blake J reached the same conclusion. At paragraphs 17 and 18 of his judgment, he said:
“17. We then examined whether there was any basis for reaching a different statutory conclusion in this case. Unless I were to be satisfied that Bean J’s decision was plainly wrong and therefore not to be followed, as it was a decision of a court of co-ordinate jurisdiction, I should follow it. I am far from satisfied that Bean J’s conclusion by applying the Mucelli principle to disciplinary appeals is plainly wrong. Indeed, I can see no basis for reaching any different conclusion in this case. 18. I confess that this is a conclusion that surprises, me and is not an altogether satisfactory one since there may well be circumstances in which there is good reason for extending a disciplinary appeal, which is also a decision of very serious importance to the professional concerned where the court may be persuaded upon the evidence and the tests set out elsewhere in CPR 3, that it is in the interests of justice to do so.”
[13]I accept Ms Callaghan’s submission that there are no grounds for departing from this line of case-law. However harsh it may be, the court has no power to extend time for lodging the Appeal Notice in this case. That being so, it is not necessary for me to go on to consider whether, if the court has power to extend time, it is in the interests of justice to do so in this case. I will just say that I would not have extended time if the court had jurisdiction to do so in the interests of justice. Dr Herrera has not, in my view, given a satisfactory explanation as to why the appeal, whether by statutory notice as is required, or by judicial review claim if that was permissible, was not made until 9 November.[14]Further, Dr Herrera appeals against the panel’s decision on two grounds: first, that the panel was wrong to conclude that he acted dishonestly in working simultaneously for two healthcare providers; second, that the panel was wrong to impose a sanction of suspension for four months. As to the first, the panel took into account that his contracts with the healthcare providers did not expressly preclude him from working for other companies and that he believed he was capable of performing to a satisfactory level while working for both companies. However, the panel was entitled to conclude that it was dishonest of him to receive fees from two separate employers while working simultaneous hours for them and without their knowledge and consent. As to the second, in circumstances where Dr Herrera had been found guilty of dishonesty in working simultaneously for two employers, and where he had admitted dishonesty in signing and submitting false declarations to Barnsley PCT, the panel was entitled to suspend him from the Medical Register for four months. The panel had proper regard to the mitigating factors put forward on Dr Herrera’s behalf.[15]There does not appear to be any merit in either ground of appeal. No argument has been advanced before me that, in my view, would warrant the extension of time in the interests of justice. In my judgment, Dr Herrera failed to lodge a valid appeal in time. The court has no power to extend time for lodging the appeal notice in this case. Accordingly, the appeal is dismissed. Even if the court had power to extend time, I would not have considered it in the interests of justice to do so, for the reasons I have given. MS CALLAGHAN: My Lord, I am very grateful for your Lordship’s detailed judgment. The GMC does apply for its costs of defending this appeal. MR JUSTICE SUPPERSTONE: Yes. Dr Herrera, have you seen the statement of costs? I am going to ask Ms Callaghan in a moment a few questions, but first as to the principle of costs, do you have anything to say about that? In the ordinary way, let me just tell you this, the GMC would be entitled to their costs. It is then a question as to how much. Your financial circumstances, whatever they may be, are not matters to be taken into account at this stage. They are matters that can be taken into account if and when it comes to enforcement of the order against you. So can I ask you first of all whether, in principle, you object to the order of costs? DR HERRERA: I am not entirely -- well, if that is the law, and -- MR JUSTICE SUPPERSTONE: I will not take it that you agree to it, I mean I just want to hear whether you have anything to say about it. DR HERRERA: If somebody who loses an appeal has to then be responsible for the costs of the other person, and that is what is legally expected, then -- MR JUSTICE SUPPERSTONE: Well, there may be cases where there should be no order for costs, so I do not want to put it that way, but is there anything you want to say about having lost the case and the GMC asking for their costs in these circumstances? DR HERRERA: If you can give me a second. MR JUSTICE SUPPERSTONE: Yes, of course, certainly. While you are thinking about it, should I move on to the second point, the amount of the costs, and then I will hear from you on both points? Ms Callaghan,what concerns me is this, is that the Appeal Notice was filed on 15 November. It was plainly out of time. MS CALLAGHAN: Yes. MR JUSTICE SUPPERSTONE: The GMC knew of the decision in Harrison, and on the basis of that decision the court has no jurisdiction to hear the present appeal. If they had brought that decision to the attention of Dr Herrera when his Notice of Appeal was filed on 15 November, the costs of today’s hearing may have been saved. Or if Dr Herrera had pursued his appeal, he could have been put on notice that he was at risk as to costs. What in fact happened was, as you will know, that it was not until 19 January that the GMC made an application to dismiss the appeal, on the basis that it was out of time. There is a letter dated 19 January which is at pages 64 to 65 in the GMC bundle. On 20 January, HM Courts and Tribunals Services wrote to the GMC informing them of the application not being made in the proper form; that is at page 68. An Application Notice was then filed on 24 January, pages 66 and 67. MS CALLAGHAN: Yes. MR JUSTICE SUPPERSTONE: That was only six days before the hearing date. Dr Herrera responded promptly, in fact, to the letter dated 19 January that was obviously sent to him, before the proper notice was put it in. He responded on 25 January, the letter being received by the court on 26 January. The papers came to me, I think, at the end of last week, and I took the view that reading what Dr Herrera had to say in particular about the advice he received about the judicial review form, it was a late application, and I think I was asked whether I could deal with it on the papers, and decided that it was a matter that warranted a hearing in all the circumstances. Then, of course, you were instructed, and you had to attend today and you had to prepare on the basis that although it was obvious from the case law that the appeal was out of time, it might be for one reason or another that I took a different view, and therefore you had to go on to consider, if time could be extended, the merits, and that I well appreciate must have taken you some considerable time to prepare. I wanted to state all that so that Dr Herrera understands that all of that has been taken into account. And the costs schedule that I have seen, no criticism whatsoever of the costs that are being claimed in terms of the amount, no doubt for the amount of work that has been done. But I think there is an important question here as to whether Dr Herrera should bear those costs. MS CALLAGHAN: Your Lordship’s chronology is quite correct. I am instructed that my instructing solicitors on receipt of the Notice of Appeal contacted the Manchester Administrative Court to inform them that it was out of time, and to inquire as to whether it would be possible to strike out. Unfortunately, they were advised by telephone that the matter could not be struck out, and that it would have to go through a full hearing. It is most unfortunate that that is the telephone advice that was given, but those are my instructions. MR JUSTICE SUPPERSTONE: Just pausing there, I mean those instructing you are perfectly capable of forming their own view... MS CALLAGHAN: Quite. MR JUSTICE SUPPERSTONE: ...without hearing from someone, whoever it was at the end of the telephone line. MS CALLAGHAN: I have to accept that, my Lord. I then started reading these papers on 17 January. Having read what little I needed to at that stage, I then had discussions with my instructing solicitor, and it was as a result of those discussions that the letter of 19 January was sent to the court attaching a copy of the Harrison case, and of course on the same day copying that letter to Dr Herrera and putting him on a costs warning. Your Lordship may have seen, I am not sure, the GMC bundle does not contain this letter, but I think that Dr Herrera may have handed a copy of this letter forward to your Lordship. It is the GMC’s letter to Dr Herrera of the same date, 19 January. MR JUSTICE SUPPERSTONE: I do not think I have seen that, no. MS CALLAGHAN: Can I hand it forward, my Lord? MR JUSTICE SUPPERSTONE: Yes, certainly. (pause) MR JUSTICE SUPPERSTONE: Was Dr Herrera subsequently sent a copy of the costs schedule? MS CALLAGHAN: Indeed, he was. He was sent it on 31 January. MR JUSTICE SUPPERSTONE: That was Monday of this week, was it? MS CALLAGHAN: Yes, that is correct. As a result, therefore, of the two letters that the GMC wrote on 19 January, both to the court and to Dr Herrera, Dr Herrera was on notice certainly from that date that the GMC would seek its costs of the appeal, and of course they provided a copy of the Harrison decision and the other decisions. MR JUSTICE SUPPERSTONE: On 19 January? MS CALLAGHAN: Yes. They were certainly attached to the letter to the court; they should have been attached -- MR JUSTICE SUPPERSTONE: Can we just have a look at that? (pause) MR JUSTICE SUPPERSTONE: So the last paragraph of the letter to Dr Herrera of 19 January that you have just handed to me says “If you require any of the enclosures referred to in my letter to the court dated 19 January, please do not hesitate to contact me.” Yes, and the letter was enclosed, and the letter itself refers to the authorities, and makes clear on the second page what the authorities say. MS CALLAGHAN: Indeed, my Lord. MR JUSTICE SUPPERSTONE: Yes. MS CALLAGHAN: So the point of that letter, of course, was to summarise the effect of the authorities. Can I just check with my instructing solicitors whether or not he made a request for those cases, and whether or not they were supplied to him? MR JUSTICE SUPPERSTONE: Yes, certainly. (pause) MS CALLAGHAN: Yes, I am instructed that copies of those decisions were provided to Dr Herrera, but as your Lordship appreciates the effect of those decisions was summarised in the 19 January letter. MR JUSTICE SUPPERSTONE: Yes. MS CALLAGHAN: So certainly from that date, Dr Herrera must have been aware that the case law was against him, and that he was at risk of costs. Now my Lord, I have here a copy of my invoice to the GMC which shows the breakdown of fees. If I can summarise it for your Lordship before I hand it up? MR JUSTICE SUPPERSTONE: Yes. MS CALLAGHAN: £600 of my fees were incurred before the letter of 19 January. In other words, reading what I needed to read to have those discussions with my solicitor. MR JUSTICE SUPPERSTONE: Sorry to interrupt. Pausing there, the letter of 19 January was sent, was it by first class post to Dr Herrera? When did he receive it? He replies on the 25th, and says “I am writing to the court following receipt of the letter dated 19 January”. MS CALLAGHAN: Your Lordship has my only copy of the letter of 19 January addressed to him, but certainly the 19 January letter to the court was delivered to the court by hand. MR JUSTICE SUPPERSTONE: When did you receive the letter of 19 January, Dr Herrera? Dr Herrera: I replied the same day I received the letter. So if the court received the letter on the 25th, because I sent it by registered post guaranteed 1 o’clock next day delivery -- MR JUSTICE SUPPERSTONE: Your letter stated the 25th, it arrived at the court on the 26th. Dr Herrera: So that would be the time. MR JUSTICE SUPPERSTONE: Just wait a minute. Dr Herrera: Sure. MR JUSTICE SUPPERSTONE: Will you hand that back toMs Callaghan. Thank you very much. Dr Herrera is saying he received it on the 25th. Are you able to shed any further light on that? MS CALLAGHAN: I am not, my Lord. It was not sent by recorded delivery, I have been instructed that much. MR JUSTICE SUPPERSTONE: Yes. MS CALLAGHAN: I would be surprised if it took six days to arrive. MR JUSTICE SUPPERSTONE: So long. MS CALLAGHAN: But there we have it. But certainly in terms of the breakdown of my fees, of the figure of £7,750, £600 was incurred before that letter was written, then £3,600 is the fee for preparing the skeleton argument, and your Lordship will appreciate that in order to do that, I had to read over 1,000 pages of documents. MR JUSTICE SUPPERSTONE: I do appreciate that, absolutely, yes. When was that done? MS CALLAGHAN: That was done on 23 and 24 January. MR JUSTICE SUPPERSTONE: Yes. MS CALLAGHAN: And then the brief fee for the hearing today, £3,550. And of course, my Lord, that was set on the basis that, although this hearing might take half a day, it may in fact take the full day listed, if your Lordship was minded to hear the merits. MR JUSTICE SUPPERSTONE: Yes. I am going to hear from Dr Herrera, but if I was to take the view that he should be liable for all costs after a certain date, if he received the letter on 25 January, and there is no evidence to the contrary, whilst appreciating your point one wonders why it took so long for a first class letter to arrive, he must have been entitled to consider it and take advice if he chose to do so. The 25th was what day of the week? MS CALLAGHAN: My Lord, I will check. I believe it was Wednesday of last week, but I am just going to confirm that. Yes, it was Wednesday of last week. So the 19th was a Thursday, and my Lord, even allowing for the weekend, it is most surprising that it did not arrive -- MR JUSTICE SUPPERSTONE: I understand, but there is no evidence to the contrary, and it was not sent by recorded delivery. MS CALLAGHAN: That is correct. My Lord, that would mean -- MR JUSTICE SUPPERSTONE: What would you say in terms of quantum, if I was to say from Monday morning, which would be the 31st? MS CALLAGHAN: Well, my Lord, that would mean that the only costs recoverable would be part of my solicitor’s costs, although work done on documents had all been done before that date. MR JUSTICE SUPPERSTONE: You might say that 48 hours was sufficient, to the Friday, so that would be the 27th. MS CALLAGHAN: Yes, my Lord, and then in terms of my fee, that would mean that only the brief fee for today would be covered by such an order. MR JUSTICE SUPPERSTONE: Yes. MS CALLAGHAN: But it would, of course, have to include VAT and the disbursements. MR JUSTICE SUPPERSTONE: Yes. Can you assist me with the figures? MS CALLAGHAN: Yes, I can. VAT on a figure of £3,550 is £710, making a total of £4,260, my Lord. And your Lordship has the accommodation and travel costs on the schedule. MR JUSTICE SUPPERSTONE: Yes. MS CALLAGHAN: And I am of course London counsel. MR JUSTICE SUPPERSTONE: And the sum that is being claimed is £10,194? MS CALLAGHAN: Yes, my Lord. MR JUSTICE SUPPERSTONE: Yes. Ms Callaghan, thank you very much. Dr Herrera, you heard all of that? What would you like to say about costs? Dr Herrera: Yes. When I received the letter explaining that an application had been made to strike my appeal, it took me obviously by surprise since having applied for my appeal in November, with such short time to go for the appeal to be heard, and there was mention of the GMC making an application for costs. Mr Staples may recall -- MR JUSTICE SUPPERSTONE: I am so sorry, Dr Herrera, you are dropping your voice, I cannot hear. Dr Herrera: Sorry. I had a telephone conversation with Mr Staples in regards to this, and costs were mentioned. I explained to him at the time that -- MR JUSTICE SUPPERSTONE: Remind me, who is that?16. Mr Staples may correct me if I am wrong, but it was my impression at the time that, had the application been struck out, then there would not have been an application made for costs, and he did mention that certain costs had been already brought forward, that it was money from doctors that the GMC had to protect, and as such it was something that they were forced to do. They would not necessarily be claiming all the costs back in regards to work previously that had been done when I had made my application, et cetera.17. I received my schedule of costs on Monday or Tuesday, I cannot recall, but I was then informed that I was facing potentially a bill of £10,000. I did not see any purpose at that point in time of calling the court to say I am withdrawing my appeal. Had I been informed in November or December what the schedule of costs would have been, and what I was facing, and what the prospects were, and the point of law that has been brought to my attention, I would have sought legal advice again, and if they had said, “Well, yes, you do not have a chance to appeal, this is the law, and your appeal will not progress”, I would have called things off there and then, because that is the legal advice I would have been given. That is all I can say. As I have said, I have presented here with the intention of having my suspension removed, thinking that it was justifiable to do so. But I must say that, yes, the brevity or the short time that I was given to be made aware of this plays to the fact that I am here before you. MR JUSTICE SUPPERSTONE: When do you say you received the schedule of costs? Dr Herrera: It was Monday or Tuesday this week. MS CALLAGHAN: My Lord, I can confirm having seen my instructing solicitors’ email to Dr Herrera, that it was sent on 31 January. MR JUSTICE SUPPERSTONE: On the 31st, that was Monday. MS CALLAGHAN: Monday. MR JUSTICE SUPPERSTONE: Thank you very much. Dr Herrera: Which I would have received then on Tuesday. MS CALLAGHAN: It was an email, my Lord. MR JUSTICE SUPPERSTONE: An email. Dr Herrera: An email, okay. So -- yes, yes you did. MR JUSTICE SUPPERSTONE: You did not seek any advice? Dr Herrera: No, sir. The fact that I think a decision being taken then to not strike out on paper and be heard at the court, and I was told be prepared for a whole day hearing, led me to think that this case was as discussed here. MR JUSTICE SUPPERSTONE: Yes. Dr Herrera: If the facts of law that had been put forward to the court had been as relevant as they had been proven to be, I would have expected then that my arguments held no weight, and that you would have struck them on paper. MR JUSTICE SUPPERSTONE: Thank you very much. Anything further you wish to say,MsCallaghan? MS CALLAGHAN: No, my Lord. Your Lordship has my submissions. (costs judgment)[1]The GMC is entitled to an order for costs, the appeal having been dismissed for the reasons I have given. The amount of costs claimed is in the sum of £10,194.84, including VAT. That is on the basis of the costs that have been incurred for the hearing today. There is no reason for me to think that the hourly rate is not reasonable. Indeed, the hourly rate claimed is reasonable, in my view. And the amount of work involved does not appear to be excessive in relation to the preparation for a full hearing today.[2]However, it was not until 19 January of this year that the GMC made an application to dismiss the appeal, on the basis that it was out of time. On 20 January, HM Courts and Tribunals Service wrote to the GMC informing them that the application had not been made in the proper form. An Application Notice was then filed on 24 January. That was only six working days before the hearing date. A copy of the letter of 19 January was sent to Dr Herrera, enclosed with a covering letter that made it plain that there would be an application made on the basis that the court had no jurisdiction to hear his claim because it was out of time.[3]It is clear from the decision of Dr Harrison v the GMC, on which the GMC relied, that time cannot be extended. If the GMC had taken out an application earlier than they did, as in my view they should have done, then this matter could have been determined without a consideration of the merits of the appeal. It may be that much time and expense could thereby have been saved. The GMC knew of the decision in Harrison, and on the basis of that decision the court had no jurisdiction to hear the present appeal. If they had brought that decision to the attention of Dr Herrera when his Notice of Appeal was filed on 15 November 2011, the costs of today’s hearing may have been saved; or if Dr Herrera had pursued his appeal, he could have been put on notice at that point that he was at risk as to costs.[4]As it was, Dr Herrera says that he received the letter of 19 January on 25 January, and that he responded on the same day to the Administrative Court Office, that letter being received by the court on 26 January, it being sent by special delivery. It is perhaps surprising that the GMC’s letter of 19 January was not received until 25 January if it was sent by first class post. However, it was not sent by recorded delivery, and Dr Herrera tells me that he did not receive it until 25 January. Dr Herrera plainly had an entitlement, having received the letter of 19 January on 25 January, to consider its contents and to take advice if he wished to do so. He tells me that he received, and this seems to be agreed between the parties, by email on 31 January, that is Monday of this week, the schedule of costs.[5]Dr Herrera also says that, when he was told that the application to strike out was going to be considered by the judge, and the application was not struck out, that in those circumstances he felt that he had little to lose -- my words, not his -- by pursuing the application to the hearing today.[6]It seems to me that in the circumstances, whilst the GMC are entitled to their costs, those costs must be limited by reason of the history of this matter that I have outlined. As I say, I do not doubt that the costs that the GMC say have been incurred have truly been incurred, and that they are reasonable costs, but in my view, Dr Herrera should not be responsible for more than 25 per cent of those costs, and I make an order in those terms. MR JUSTICE SUPPERSTONE: Dr Herrera, whatever the maths comes out to, I have limited the costs to 25 per cent. DR HERRERA: Thank you. MS CALLAGHAN: My Lord, just for clarification, is that 25 per cent of the figure of £10,194.84? MR JUSTICE SUPPERSTONE: Yes, it is. MS CALLAGHAN: Thank you, my Lord. MR JUSTICE SUPPERSTONE: Dr Herrera, thank you for your very clear submissions, and the way you have presented your case, and Ms Callaghan, thank you very much for your assistance.

Cited in 1 later judgment