El-Baroudy, R (on the application of) v The General Medical Council [2013] EWHC 2894 (Admin)

Case No CO/4233/2013[2013] EWHC 2894 (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, 5 th August 2013
M3 3FX
Before
HIS HONOUR JUDGE RAYNOR QC
Between
The Queen on the application of EL-BAROUDYAppellantTHE GENERAL MEDICAL COUNCILRespondent
(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)
Mr Hockton (instructed by Ryan Solicitors) appeared for ClaimantMr Hare (instructed by the GMC) appeared for Defendant
JudgmentHHJ Raynor QC:
[1]This is a grave case, and, for reasons which I will state, I am going to allow the appeal on a limited basis only and without in any way expressing any view at all as to whether or not the outcome will be just the same as before, namely the same finding of impairment and the same sanction. I express no view on those matters at all.[2]This is an appeal against an appeal against the conclusions of the Fitness to Practise Panel of the Tribunal which heard the case against Dr El-Baroudy between 5 and 14 March of this year. It is an appeal under section 40 of the Medical Act 1983 and it is an appeal by way of a rehearing, but I remind myself that I would only allow the appeal if satisfied that the decision of the Panel was either wrong or unjust because of a serious procedural or other irregularity.[3]Dr El-Baroudy acted in person before the Panel.[4]Dr El-Baroudy qualified from the University of Cairo and from 2003 until 14 March of this year worked in various middle-grade posts in obstetrics and gynaecology, but between 2006 and 2009 he also worked part-time as a forensic medical examiner, and the allegations against him were in relation to failings, and extremely serious failings, in relation to his work as a forensic medical examiner.[5]So far as relevant, I can take the circumstances, before looking at the allegations that were made, from the factual determination as summarised by the Panel in the course of its hearing. It is accepted that on 21 January 2009, which is when the matters complained of arose, Dr el-Baroudy failed to provide good clinical care to a man known as AR, and that he did not make adequate attempts to carry out a basic medical assessment. AR was a homeless man seen lying on his back on a pavement, for whom a concerned passer-by had called an ambulance. One of the ambulance crew attempted to move him. He aimed a blow and police assistance was called. He then sought to assault police officers who attended. He was forced to the ground. His head hit the pavement. The paramedic bandaged his head. He was arrested and taken to Chelsea police station, unsteady on his feet and smelling strongly of drink. He was found to be in possession of unidentified medication as well as a wrapper of brown powder. A custody record when he went to the police station noted that he suffered from epilepsy and schizophrenia. The custody sergeant called Dr el-Baroudy, as the forensic medical examiner on duty, who attended at approximately 11.00pm. He was told that AR was the worse for drink and that in the struggle to control him he had banged his head on the floor. The custody sergeant asked whether or not AR should go to hospital. Dr el-Baroudy entered the cell and was in attendance for about a minute.[6]In a previous determination of facts, there were detailed the failings that were found on that occasion, about which there is no appeal. Because of AR’s history and the circumstances surrounding his arrest and detention, it was crucial to perform an adequate medical assessment. It is not challenged that there was a failure even to make basic assessments of AR’s condition, with the result that Dr el-Baroudy did not realise that he was unconscious rather than asleep and that he needed an immediate transfer to hospital. In one report Dr Callaghan, who was an expert (one of two) in forensic medicine, described what should be called really the lack of care and treatment provided by Dr el-Baroudy as “dangerous and tantamount to non-existent”.[7]Within about three hours, or a little more, of Dr el-Baroudy having informed the police that AR was fit to be detained and did not need to be transferred to hospital, AR was found dead in his cell.[8]Arising out of the failure properly to assess AR, the GMC brought various charges against Dr El-Baroudy and they, so far as relevant, are set out on day 2 of the transcript on page 71, when it was alleged, first, that “on or around 21 January 2009 you failed to provide good clinical care to AR” and then there are certain allegations about what was failed to be appreciated or taken account of. Then b: (quotation not checked) “failed to dispense (inaudible) examining AR to make a substantial assessment of the condition; (c) failed to make adequate effort to rouse AR; (d) failed to use a watch or clock to assess AR’s respiratory rate; (e) failed to examine AR’s pupils; (f) failed to take AR’s pulse rate; (g) failed to take his blood pressure; (h) failed to make an assessment of Coma score; (i) failed to recognise he was unconscious due to the combined effects of alcohol and opiate intoxication; (j) failed to recognise that his condition represented a medical emergency; (k) failed to arrange for AR immediately to be transported to hospital; (l) failed to make adequate records of your examination; and (m) failed to provide adequate instructions for future care and treatment”. It was then alleged that, by reason of those and other matters, Dr El-Baroudy’s fitness to practise was impaired because of his misconduct.[9]It will be appreciated that there is no allegation in those charges that Dr El-Baroudy by his gross or serious misconduct either caused the death of AR or even caused AR to lose a substantial or significant or real chance of survival, and perhaps the reason for that is better understood when, as I shall have to do in due course, I look at the only evidence that was before the Panel as regards the issues.[10]The first matter I must consider is what allegations it was admissible to pursue at the hearing in the light of the charges. The requirement to particularise the allegations are contained within rule 15(2)(a) of the Rules, which provide that the notice of hearing should particularise the allegation against the practitioner and the facts upon which the allegation is based.[11]I have been referred to three authorities that are relevant in this connection. In the case of Roomi v Gmc [2009] EWHC 2188 (Admin) Collins J stated that:
“It is clear from a combination of 15(2)(a) and 17(3), and indeed it is perhaps self evident, that the practitioner faces an allegation which is contained in the notice and no other allegation, unless that notice is amended in accordance with rule 17(3).”
[12]In the case of Strouthos v London Underground Limited, on an appeal from an order made by the EAT, Pill LJ stated at paragraph 12:
“It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed, and that evidence should be confined to the particulars given in the charge.”
And at paragraph 41: 13. ...it does appear to me quite basic that care must be taken with the framing of a disciplinary charge, and the circumstances in which it is permissible to go beyond that charge in a decision to take disciplinary action are very limited. There may, of course, be provision, as there is in other Tribunals, both formal and informal, to permit amendment of a charge, provided the principles in the cases are respected. Where care has clearly been taken to frame a charge formally and put it formally to an employee, in my judgment, the normal result must be that it is only matters charged which can form the basis for a dismissal.”

And at paragraph 41:

[13]And in the case of Chauhan v GMC [2010] EWHC 2093 King J allowed an appeal on the basis that the Panel improperly and unfairly had gone outside the scope of the notice of hearing.[14]As I have said already, in this case there was no allegation that the misconduct either caused death or caused the loss of any realistic chance of survival. Had the GMC wished to pursue those allegations, which would have been highly material, then in my judgment they should have been clearly stated in the charges and, in the absence of being stated, evidence directed to those issues should not have been led and the Panel should not in any way have based a judgment as to whether the fitness to practise was impaired or as to sanction on any question of causation, causation being defined as causing death or indeed causing the loss of any real chance of survival.[15]What is perfectly plain is that evidence was led directed to the issue of causation as I have defined it. The evidence was limited to that of Dr Cary, a consultant forensic pathologist, and his evidence went through a process of development and exposition through his reports and then in the course of evidences given at trial. In his report of 11 June 2009, at page 586 of the bundle before me, what Dr Cary said was that: (quotation not checked) “Had arrangements being made to urgently transport the deceased to hospital at the time when he was in the cell, it seems that he would have survived at least in the short-term, bearing in mind that according to the custody record, he continued to breathe for some hours afterwards.”[16]There is of course an opportunity to reverse the effect of opiate drugs. In paragraph 6.6 he stated: (quotation not checked) “On the basis of the CCTV evidence, it seems likely that the deceased passed into a state of unconscious even before Dr El-Baroudy attended and remained in that state until he died. On the basis of the CCTV evidence, it is not even possible to objectively determine at what stage he actually died.”[17]He goes on, but it is not relevant for me to quote it. Then in a supplemental report, which is dated 15 March 2011, in paragraph 1 he was asked: (quotation not checked) “Please identify the time when AR would have been beyond recovery, at which point death became inevitable regardless of any medical intervention.”[18]He answered: (quotation not checked) “The point at which AR would have been beyond recovery cannot be precisely determined. However, at any time when he was still breathing it would have been possible for simple supportive measures and/or opiate reversal to have prolonged survival. The likelihood of such earlier intervention succeeding cannot however be estimated.”[19]Then question 2: (quotation not checked) “If you cannot answer question 1 above, had that point been reached at the time that Dr El-Baroudy conducted his examination?[20]Answer: (quotation not checked) “If it is accepted that the deceased was still breathing at the time he was still breathing and for some time thereafter then the point at which death became inevitable had not been reached.”[21]However, he was questioned further about these matters in the course of the hearing. That is on Day 3 and it is page 157 of the transcript. He was asked the question: (quotation not checked) “Please identify the time when AR would have been beyond recovery at which death became inevitable regardless of any medical intervention.” He answered: (quotation not checked) “The first thing to say is that it cannot precisely be determined. However, any time he was still breathing would indicate he was still alive, albeit in an intoxicated unconscious state, and therefore the opportunity for supportive measures and the reversal of the effects of the opiates that I have described, the possibility of that being carried out would exist. However, I cannot say what the likelihood of success from that earlier intervention would be, because he might already have damaged his brain significantly through the period of unconsciousness and indeed, bearing in mind that I have found, with Dr al-Saraj, extensive changes in the brain, it would suggest he might well have succumbed to significant brain damage even before he was dead.”[22]On the totality of that evidence, it is not to my mind even established that the negligence (and the gross negligence) of the claimant, Dr El-Baroudy, caused AR to lose any significant chance of survival beyond a short period of time in hospital, in other words caused the loss of any real chance of survival in the normally understood meaning of that word. But in any event, I am satisfied, for the reasons I have already given, that Mr Hockton is accurate in his submission that, given the state of the charges, the Panel should not have allowed evidence to be led as to the issue of causation and should not have allowed issues of causation to affect judgments as to impairment or as to sanction.[23]The question which arises is whether or not the Panel did in fact allow questions of causation to influence its decision on impairment and sanction, and also the question which arises is what exactly did they find was the result of the failure.[24]The matter was complicated to this extent, that there is included in the bundle before the Panel evidence which should have been excluded, and indeed was excluded, I understand, at the start of the hearing, namely evidence from another expert called Dr Wilson, who expressed a very clear view in a report that causation of death was established against Dr El-Baroudy. It is not clear that the Panel ever had that evidence in mind and it would be unfair for me to say that I am satisfied that they did. But the evidence was there in the bundle and it should not have been, in my judgment.[25]What did the Panel decide? The findings of fact were given on day 7 and substantially all of the allegations which I have read out were found to be proven. Having found them to be proven, the Panel, when addressing the question of impairment, correctly directed itself in accordance with the judgment of the High Court in Grant v Nursing and Midwifery Council and, in particular, paragraph 74 of that judgment of Cox J where she stated:
“In determining whether a practitioner's fitness to practise is impaired by reason of misconduct, the relevant Panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”
[26]The Panel went on to consider its findings in the light of the evidence and held that it was clear that Dr El-Baroudy’s conduct in relation to AR fell seriously below that expected of competent doctoring and they gave reasons: that the nature and extent of misconduct was such that it would be regarded as deplorable by fellow practitioners and amounted to serious misconduct. Then the Panel went on to consider whether, by reason of Dr El-Baroudy’s misconduct, his fitness to practise was impaired. Again, the test as to impairment as set out in Grant was repeated, namely presenting a risk of unwarranted harm, bringing the profession into disrepute and breaching one of the fundamental tenets of the profession. The Panel concluded that the misconduct had placed AR at unwarranted risk of harm, brought the medical profession into disrepute, and breached a number of the fundamental tenets of the profession; all of which indicated, of course, findings of impairment. In the Panel’s judgment the misconduct was so serious, and care of patients so inadequate, that a finding of impairment “is inevitable regardless of remediation.” The Panel then went on to say: (quotation not checked) “In addition the Panel took the view that public confidence in the profession would be undermined if a finding of impairment were not made in this case, given the tragic outcome for AR.”[27]For the GMC, Mr Hare submits that there is not to be read into that finding any suggestion that the tragic outcome for AR was in any way consequent upon the lack of care of Dr El-Baroudy. However, it seems to me, indeed as Mr Hare himself submitted, that to see what the Panel had in mind one needs to read together the findings of impairment and sanction, and there is no doubt whatsoever that, in deciding the sanction of erasure, the Panel expressly had in mind and expressly stated: (quotation not checked) “Consequent with (inaudible) and through your neglect of duty and care an opportunity for AR to survive was lost.” Given that the Panel had in mind that the finding of impairment fell to be made “given the tragic outcome for AR” and given that it is clear that the Panel saw the responsibility of the doctor as involving the loss of what was described as the “opportunity...to survive”, it seems reasonably clear to me that, in finding there was impairment, one matter that was taken account of was the fact that this lack of care did have a causative effect in relation to the death, if only the loss of what was described as the “opportunity for AR to survive”. Be that as it may, it is perfectly plain that one reason for erasure or one fact taken into account was the Panel’s perception that “through your neglect of your duty of care, an opportunity for AR to survive was lost.”[28]Mr Hare submits that that is a very fair summary of the effect of the evidence of Dr Cary.[29]For my part, I have three difficulties with taking account of the consequence that it is said that “through neglect of your duty of care, an opportunity for AR to survive was lost”.[30]The first is that, for reasons I have already stated, it seems to me that the Panel should not have borne in mind evidence as to causation, broadly defined in the way that I have done, so as to include not just whether death had resulted on the balance of probabilities but also the loss of a chance. That should not have been taken into account, to my mind, given the way that the charges were laid. It is obviously a matter of substantial importance in considering the gravity of the case to consider outcomes. If the GMC had wanted to allege such an outcome, it should have been alleged specifically. Not being so, the evidence should not have been led.[31]The second difficulty that I have is that I am not sure at all what the Panel meant when they said “an opportunity for AR to survive was lost”. Did they simply mean that there was a loss of a chance of survival? They did not use that phrase. One dictionary definition of “opportunity” is loss of a good chance. Another meaning in which it can be used is to say that there was an opportunity that, had it been taken, would have led to survival. I have real doubts as to what precisely they had in mind.[32]The third difficulty I have with this is that it is not at all apparent to me, on a fair reading of all the evidence of Dr Cary, that any real opportunity for AR to survive in any meaningful sense of survival was actually lost, given particularly what Dr Cary said in the course of the evidence.[33]I am persuaded in this case that the allowing of evidence of causation to be given and the taking into account of evidence of causation in the way I am satisfied it was, both in relation to impairment and in relation to sanction, amounted to a serious procedural irregularity that renders the result on impairment and on sanction unjust.[34]I stated at the outset of this judgment that I regard the case against Dr El-Baroudy as extremely serious irrespective of causation. The public would rightly be horrified at the findings of misconduct, the findings of lack of care, the finding that Dr El-Baroudy had been in the cell for about a minute only, and, in the words of the Panel, the actual assessment occupied “a fraction” of that time. It may well be that, irrespective of any question of causation, the same result will follow, but it may well not. A fresh Panel will consider the matter and will look at the matter afresh, leaving aside any question of causation, because I direct that, in assessing whether there is impairment and in determining the sanction, the fresh Panel should proceed upon the basis that it is not alleged that Dr El-Baroudy’s misconduct either caused AR’s death or caused the loss of any real chance of survival. Evidence that is available directed to those issues should be disregarded. To that extent, I quash the findings of impairment and sanction and direct there should be a rehearing of those issues in accordance with what I have directed.[35]MR HOCKTON: My Lord, just a couple of matters. It may well be that the parties might want your Lordship’s judgment to be published, because it would provide helpful assistance both to the GMC and to doctors as to what should be in the notice of hearing. If there is a request for an approved judgment, might your Lordship include some mention of the fact that Dr El-Baroudy represented himself, because it then makes more sense in relation to your Lordship’s reference to some of the documents being contained in the bundle?

JUDGE RAYNOR: I can certainly add a sentence to the fact that he represented himself.

[37]MR HARE: We would not object.[38]MR HOCKTON: My Lord, the other practical matter is this, and it is the status of your Lordship’s judgment vis-à-vis the fresh Panel. Sometimes difficulties can arise in relation to a fresh Panel actually having a copy of the judgment. Your Lordship has expressed certain views about the conduct in question, and I don’t know whether your Lordship feels that the fresh Panel, obviously the judgment is public, but whether it would be appropriate for the fresh Panel to be provided with your Lordship’s judgment or not.[39]MR HARE: I think my learned friend has answered the point that he has just made. It is a public judgment.

JUDGE RAYNOR:

[40]It is a public judgment, and everything I said I had intended to say, and I do not want it ever represented that I expressed a view there was something wrong, other than on the limited basis I have, with the findings that were made.[41]MR HARE: And your Lordship made it crystal clear at the start of his judgment that he was expressing no view on what the ultimate finding on impairment and sanction would be.

JUDGE RAYNOR: Precisely.

[43]MR HOCKTON: My Lord, the final matter is of course costs, and I would ask for the costs of this appeal. I think a schedule has been –

JUDGE RAYNOR: Well, it may have been but it has not found its way to me.

[45]MR HARE: It has not found its way to me either.[46]MR HOCKTON: It was served on Friday on both the court and my learned friend. That is the only copy I have.

JUDGE RAYNOR:

[47]Well, I can always get copies. Your instructing solicitor is behind you. Has he seen it?[48]MR HARE: He has seen it. I have not seen it until now.

JUDGE RAYNOR: So, do you want a moment to look at it?

[50]MR HARE: We would appreciate that.

JUDGE RAYNOR: Could you get me a copy of it please?

[52]MR HOCKTON: My Lord, yes.

JUDGE RAYNOR: I will rise. (court adjourns)

[54]MR HOCKTON: My Lord, before I address you on the question of costs, can I just mention one other matter. There was included in the application that you have at page 32 of the bundle also an application to terminate the direction for immediate suspension. Your Lordship will recall that once erasure was ordered an immediate order was made. Technically speaking, I think I agree with my learned friend that will probably fall away in any event, but just to avoid any doubt I wonder if your Lordship could order that that direction be terminated.[55]MR HARE: I am afraid it is not quite as simple as that, my Lord, because the order for immediate suspension was made under a different division under section 38(1) of the Medical Act. I do not know if your Lordship has that.

JUDGE RAYNOR: I have that in front of me, yes.

[57]MR HARE: That is where I said to my learned friend just before your Lordship came back in what I said. If you look at 38(1), on giving a direction for erasure the Panel may, if satisfied, make an order for immediate suspension. That is why we say that if the order for erasure is quashed then the order for immediate suspension falls away. There is a point, more than a technical point, that we make in relation to that, because, as your Lordship is aware, this is an appeal under section 40 of the Medical Act. Under section 40 the only matters that your Lordship can deal with are those set out in 40(1) for these purposes. They are appealable decisions. That is to say the decision under 35D to erase is an appealable decision. But that is the substantive decision, if I can call it that. The separate power to make an order for immediate suspension under 38(8) is not an appealable decision. The manner in which that should be challenged, and again I emphasise it is not a mere technicality, it is a matter of jurisdiction of the court, is if one looks at 38(8) an application must be made to the court to terminate, and the court’s powers are more limited than the full appellate powers that exist under section 40. There has been recent authority on this point my Lord, which makes clear (I only have one copy of the authority, I am happy to hand it up and give it to my learned friend) a decision of Mr Justice Stuart-Smith sitting in this court on 18 March 2013, where the doctor who wished to challenge the immediate order of suspension was required to make a statutory application that morning to do so before the court had jurisdiction to formally set aside the order. We say it simply does not arise here, because it falls away. It has been quashed.

JUDGE RAYNOR: It has gone, hasn’t it?

[59]MR HARE: Yes, but if your Lordship were to make an order quashing it, then there would have to have been a statutory application to do so. We say it would be unnecessary to go that far. But there is very good reason not to in addition to it being unnecessary.[60]MR HOCKTON: I am afraid I do not agree with my learned friend. The application makes it clear at page 32 that we seek an order to terminate the direction for immediate suspension and the skeleton argument at page 59 refers specifically at paragraph 72 to the court’s power to terminate the suspension under section 38(8).

JUDGE RAYNOR:

[61]You presumably –this may be just entirely formal – with a view perhaps making a notice of application under section 38(8). “The court may terminate any suspension” Why should I simply not, out of an abundance of caution, treat the notice of application as having been made and quash it?[62]MR HARE: Because it says it’s an appeal under section 40. That is what it says on page 29.

JUDGE RAYNOR: I realise but I could in fact simply –

[64]MR HARE: There is no application notice.

JUDGE RAYNOR:

[65]One could be made in the face of the court now. Since you accept that it goes, to avoid any problem –[66]MR HARE: But what problem? Well I do not want to ask your Lordship questions. There is no problem. It will go. I am simply trying to avoid a situation adverted to by Stuart-Smith J where he made clear that, in the absence of a statutory application by way of application notice which has been issued, the court has no jurisdiction on a section 40 appeal to set aside or otherwise terminate the order for immediate suspension.

JUDGE RAYNOR: I could declare that the direction for erasure has gone.

[68]MR HARE: Yes.

JUDGE RAYNOR:

[69]I could do that. Well, won’t that satisfy you, if we add that to the order?[70]MR HOCKTON: That would satisfy me.

JUDGE RAYNOR:

[71]The court (inaudible) the declaration upon the quashing of the erasure the direction for suspension has gone.[72]MR HOCKTON: Thank you. My Lord, that brings us back to the question of costs.

JUDGE RAYNOR: Can you resist the application in principle, Mr Hare?

[74]MR HARE: Not in principle, no, my Lord.

JUDGE RAYNOR: Should I hear you, then?

[76]MR HARE: Why not? My Lord, all we say as to quantum is the following three points. Your Lordship has my first point, because I have just made it. My learned friend included in his appeal, we say improperly on the authority of Ashton v GMC which I have just referred to, an application for setting aside and a formal order terminating the order for immediate suspension, which is not open to this court.

JUDGE RAYNOR: But that has caused no costs at all, has it?

[78]MR HARE: We dealt with it, and I had to deal with it in our skeleton argument. That is the reality. The second point is of course that my learned friend succeeded on one of his four grounds. You can say he still succeeded, and of course your Lordship has not dismissed the other grounds, because there was no need to address them, but we say he would not have succeeded on the other grounds, but he has succeeded on one. The third point, though, is that we say the overall sums which were claimed in this statement of costs are too high. May I explain why we say that?

JUDGE RAYNOR: Certainly.

[80]MR HARE: First, as regards the bundle, which the appellant of course did put together, all of those documents apart from their own pleadings were of course simply the bundle that was before the Panel. It simply has to be copied and repaginated, so there are very limited costs in relation to that. It is not in fact a particularly long bundle when one thinks about the sort of bundles one sees in hearings before this court or challenges to GMC decisions, which can of course run to many more days than this one.

JUDGE RAYNOR: But they have only charged £130 for preparation of the bundle.

[82]MR HARE: Well yes, but of course the length of the bundle also goes to the other matters in terms of how long it took for my learned friend and his solicitors to produce instructions and then to produce their skeleton arguments. It is a hearing that lasted over a limited number of days, no challenges to the factual findings, and so effectively most of what went in days 1 to 7 were not really relevant to what was actually material in this challenge. My Lord, the matter upon which my learned friend succeeded of course only occupied the court for one hour.

JUDGE RAYNOR: Two hours.

[84]MR HARE: Well two hours in total, but your Lordship had reached his decision in an hour is the point I was trying to make. My learned friend also produced a very extensive recitation of the authorities on misconduct in his skeleton argument, and the vast majority of the authorities in this bundle, which is quite a hefty bundle of authorities for an appeal of this nature, have not been referred to and we say were not necessary in order to deal with the appeal properly even on all of the other grounds which my learned friend has sought to advance in the skeleton argument. So my Lord we would just invite your Lordship, it is a summary assessment after all, to take an overall common sense view in relation to the fees, and invite your Lordship to discount it by a proportion. My Lord, I do not want to go any further.[85]MR HOCKTON: My Lord, I would ask for the sum claimed. In relation to the points made by my learned friend, the suspension issue has not occupied and any time and is clearly referred to in the grounds and the skeleton argument. So far as the preparation time is concerned, a factor in this case which makes it somewhat different from most cases is that those assisting the doctor were not involved in the case at first instance.

JUDGE RAYNOR: So, longer to prepare, obviously.

[87]MR HOCKTON: There is clearly considerably longer to prepare. We have transcripts of eight days of material, but more important in this case, extremely dense material relating to the exhibits. This is quite a complex case in fact in terms of the involvement of various parties, the police and others, and as your Lordship has seen, numerous expert reports are contained in the exhibits bundle. So I would ask your Lordship to conclude that the hours referred to in the schedule are reasonable on the facts of this case. Obviously the fact that the issue has been dealt with relatively swiftly is a result of your Lordship’s intervention, and I would reserve our position as to whether or not the other matters might have been fruitfully pursued. It seems to me that your Lordship really is not in a position without having heard –

JUDGE RAYNOR: I am not going to go through it.

[89]MR HOCKTON: (inaudible) notice to deal with it. On the question of the citation of authorities, I respectfully disagree with my learned friend, who suggested in his skeleton argument that really only one or two authorities were sufficient. What is interesting about this area of the law is that there are a number of different strands in relation to cases, as I hinted to you in relation to my comments on the case of Grant.

JUDGE RAYNOR: Is that all you want to say about this?

[91]MR HOCKTON: My Lord, yes.

JUDGE RAYNOR:

[92]I bear in mind that this is a party and party assessment on the standard basis. Any doubts must be resolved in favour of the paying party. I propose to make a modest discount. I am going to allow £12,000 plus VAT, which I think overall represents a fair assessment of costs.[93]MR HOCKTON Thank you.[94]MR HARE: Thank you.

JUDGE RAYNOR: Thank you very much indeed.

Cited in 4 later judgments