Kumar v General Medical Council [2013] EWHC 452 (Admin)

Case No CO/10789/2012[2013] EWHC 452 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 6 February 2013
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE UNDERHILL
Between
KUMARClaimantv
Between
GENERAL MEDICAL COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
The Claimant appeared in person for in personMr D Pievsky (instructed by General Medical Council) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE UNDERHILL: This is an application under section 41A (10) of the Medical Act 1983 asking the court to revoke conditions imposed on the applicant by a decision of the Interim Orders Panel (IOP) of the Medical Practitioners Tribunal Service (MPTS) on 11 September 2012. The proceedings have been initiated in the form of an appeal. Strictly speaking they should have been brought by way of a claim under part 8 of the Civil Procedure Rules but the respondents, who are the General Medical Council (GMC), sensibly take no point on that.[2]The applicant, Dr Kumar, has appeared in person and has made his submissions, if I may say so, courteously and moderately. The GMC is represented by David Pievsky of counsel. I am grateful to him for a helpful skeleton argument. In the event, partly because of the helpfulness of his skeleton argument, I have not had to call on him for substantial submissions although he has helped on one or two points.[3]The relevant history can be sufficiently summarised as follows. The applicant is a doctor. In late 2010 he was working as a middle grade locum in the emergency department of the Worcestershire Royal Hospital. On 3 December a consultant, Dr France, wrote to the agency through whom he had been recruited complaining of problems both with his attitude and with his clinical management of patients. On 8 December his appointment was terminated following a particular incident in which his clinical competence was called into question. On 23 December that correspondence was submitted to the Fitness to Practise Directorate of the GMC. I will return in due course to the circumstances in which that occurred.[4]The decision was eventually taken to investigate the applicant's Fitness to Practise, and on 26 September 2011 he was sent a letter notifying him accordingly and inviting him to attend before the Interim Orders Panel on 10 October 2011. Unfortunately he did not receive that letter because he was away, and the hearing on 10 October proceeded in his absence. Conditions were imposed: I will come back to the substance of them in due course. When the applicant was notified of the conditions he protested that he had not received the letter of 26 September, and an early further hearing was arranged before the Panel, which took place on 27 October.[5]As a matter of form, the hearing of 27 October 2011 was a review of the earlier decision. However, it is clear that because the applicant had not attended the previous hearing it was essentially treated as a hearing de novo. The applicant was represented by counsel. By way of preliminary, he applied to revoke the earlier decision on the basis that the applicant had not had notice of the hearing, but that application was refused. The hearing then proceeded to deal with the substantive question of whether the conditions should be maintained. The Panel decided that they should be.[6]There was a further review hearing on 14 March 2012. The applicant was present but was not represented. The initial conditions were somewhat modified. The one that matters for present purposes is as follows:
"You must confine your medical practice to either NHS hospital posts, no higher than CT1 or SHO level, where your work must be closely supervised by a consultant, or, posts in general practice in practices with not less than three partners, including yourself, where your work will be supervised by a GP principal."
[7]That then brings us to the decision to which the current application relates, which was made, by way of further review, on, as I have said, 11 September 2012. The applicant was on that occasion represented by a friend without professional qualifications, a Mr Maguire. The Panel decided to maintain the conditions in the form imposed at the previous hearing. It required that those conditions be reviewed within five months, and a hearing for that purpose has been fixed for 7 February, which is in fact tomorrow.[8]The substantial investigation proceeded in the meantime. The Fitness to Practise Directorate obtained reports from a consultant in A&E, Dr Burdett-Smith, dated 23 October and 12 December 2011 which reviewed the notes of five patients with whose care the applicant had been involved at Worcester. Most of those cases were reviewed in the first report and Dr Burdett-Smith's conclusion was that:
"Although individually the first three cases could be defended, taken as a whole, the picture is of a doctor who is not competent at middle grade level. In my opinion the overall standard of care offered by this doctor fell below the standard expected in the case of [the fourth patient]. This fell seriously below the level expected."
The later report was also critical of the applicant's treatment of the fifth patient, describing the actions that he took as "seriously below what I would expect of a locum middle tier in emergency medicine".[9]Following those reports, a Rule 7 letter was sent to the applicant on 28 January 2012. It raised allegations in relation to his treatment of all five patients in respect of who Dr Burdett-Smith had reported. The applicant was asked to respond and did so at considerable length and in considerable detail. In a report dated 15 April 2012 Dr Burdett-Smith considered his original criticisms in the light of the applicant's response. In the case of one patient he withdrew the criticism, but he maintained it in relation to the remaining four.[10]That is the history to date. The substantive hearing before the Fitness to Practise Panel is due to be heard in two weeks from today, on 18 February. A further hearing before the IOP is listed for tomorrow. I am bound to say that it seemed to me when I first read these papers rather a waste that a further hearing of the Interim Orders Panel should be necessary to cover a period of no more than 11 days. And I found it equally hard to see what in practice could now be achieved even if the claimant were successful in the present application, given that any variation of the interim conditions imposed in September would be superseded in a few weeks by the conclusion, one way or the other, of the Fitness to Practise Panel. However, the applicant told me this morning that he has applied for an adjournment of the Fitness to Practise hearing for several months. If that is granted, the question of interim orders of course may resume some real importance. It is not for me to say anything about the application to adjourn: I cannot, however, help observing that the stress which the applicant has understandably been under as a result of these outstanding allegations against him is bound to be increased by any further delay.[11]I should say something about the nature of this hearing and of the hearing before the Panel to which it relates. Section 41A(1) of the 1983 Act provides that where an Interim Orders Panel is satisfied that it is "... necessary for the protection of members of the public or is otherwise in the public interest or is in the interests of a fully registered person for the registration that of person to be suspended or to be made subject to conditions the panel may make an order" for, among other things, conditional registration for a period of up to 18 months. It is important to understand that it is not the function of the Interim Orders Panel itself to investigate or make findings of fact regarding allegations against the doctor in question; that is a matter for the Fitness to Practise Panel. The Interim Orders Panel is concerned only with the question of what conditions, in a conditions case, are necessary for the protection of members of the public. For that purpose it has to assess the risk that may be posed if the doctor continues to practise in an unrestricted manner. But that is inevitably an assessment of risk rather than a finding of actual fact. For that purpose it may indeed have to be satisfied that the allegations against the doctor raise a prima facie case of clinical incompetence, or clinical incompetence at a particular level, but it cannot go further than that. I will return to this point further in due course.[12]As for the role of this court on an application under section 41A(10), it is recognised that, although the application is not by way of review but is an original jurisdiction (see Patel v General Medical Council [2012] EWHC 3688 (Admin) per Eady J at paragraph 5), the court will inevitably pay such respect to the decisions of the panel as is appropriate in the light of the particular issues raised, recognising the expertise of the panel and its familiarity with what is required in order to uphold professional standards and public confidence (see in particular R(Shiekh) v General Dental Council [EWHC] 2972 (Admin), at paragraph 10, per Davies J; and Sandler v GMC [2010] EWHC 1029 (Admin) at paragraphs 12 to 13, per Nicol J).[13]Against that background, I turn to the grounds of challenge pleaded by the applicant. They are threefold.[14]The first point concerns the first hearing before the Interim Orders Panel on 10 October 2011, being the hearing of which he did not receive notice. It is his case that that hearing should not have proceeded. He refers to Rule 31 of the General Medical Council (Fitness to Practise) Rules Order 2004, which reads as follows:
"Where the practitioner is neither present nor represented at a hearing the committee or panel may nevertheless proceed to consider and determine the allegation. If they are satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with these Rules."
That language is not entirely appropriate to a hearing before an Interim Orders Panel: see the reference to considering and determining the allegation. But no point was taken on that by Mr Pievsky, and I proceed on the basis that it applies to hearings of the Interim Orders Panel as well.[15]The provisions of the Rules relating to service as referred to Rule 31 are at Rule 40(1) and (2), which read as follows:
"1. Any notice of hearing required to be served upon the practitioner under these Rules shall be served in accordance with paragraph 8 of schedule 4 to the Act. 2. Subject to paragraph 1 any notice or document required to be served upon the practitioner under these Rules may be served: (a) by ordinary post; or. (b) by electronic mail to the electronic mail address that the practitioner has notified to the registrar as an address for communications."
Following the statutory paper trail to the next stage, paragraph 8 of schedule 4 to the 1983 Act reads as follows:
"... 2. Any such notice may be so served: (a) by delivering it to him; (b) by leaving it at his proper address; (c) by sending it by a registered post service; or (d) by sending it by a postal service which provides for the delivery of the notice by post to be recorded. 3. For the purposes of this paragraph ... a person's proper address shall be: (a) his address in the register ... "
[16]The applicant accepts that notice of the hearing was sent by registered post to his address as it appeared in the register and accordingly was good service in accordance with Rule 40(1). But he submits that it was open to the GMC to communicate with him also by e-mail, as expressly provided by Rule 40(2). He had had previous dealings with the GMC, both in relation to this matter and another, and had made it clear that he was happy to communicate by e-mail; and the GMC had his address. In those circumstances the Panel could not be satisfied that "all" reasonable efforts had been made to give notice of the hearing. He notes in this connection that the advice of the Legal Assessor to the Panel has recorded in fact omitted the word "all". What he said, according to the transcript, is:
"We then dealt with the absence of the practitioner under Rule 31 and I read out Rule 31 to them that they can proceed to consider and determine the allegation if they are satisfied that all reasonable efforts have been made to serve the practitioner with a notice of hearing. My advice to them was that all they had to be satisfied about was whether reasonable efforts had been made, reasonable efforts, and not all efforts, because there was a concern that all efforts had to be made. I advised them that that was not the case but only reasonable efforts had to be made to serve the practitioner."
It was on that basis that he had attempted to get the order of 10 October revoked at the subsequent hearing on 27 October.[17]I accept that it is well arguable that, viewed in isolation, the Assessor's advice was literally wrong, because there is a perceptible difference of emphasis between "reasonable efforts" and "all reasonable efforts". It is, however, in my view also arguable that if the passage which I have read is understood as a whole it was not substantially misleading, because the distinction which the Assessor was apparently attempting to draw was between "all efforts" and "all reasonable efforts". Further, it is arguable that even if there was a misdirection it can have made no difference, since service by registered post did constitute "all reasonable efforts" since there is no obligation to serve by e-mail even where the address has been given in this connection: the decision in Jatta v Nursing and Midwifery Council [2009] EWCA Civ 824 might be material.[18]In truth, however, I do not need to reach a view on those points because, even if the Panel's failure to adjourn on 10 October did constitute a breach of the Rules and that order should accordingly have been revoked on 27 October, that is all water under the bridge. The Panel on 27 October, as I have said, considered the whole question of conditions de novo, precisely because the applicant had been absent on the first occasion. Further and in any event, the challenge before me is not to either of those decisions but to the decision of 11 September 2012. I can see no basis on which an irregularity at the start of this chain of hearings can be said to vitiate either the lawfulness or the fairness of the subsequent hearings, at least where the applicant has been given a full chance to state his case and has not been prejudiced by his absence on the first occasion.[19]I turn to the second ground of appeal. This is headed "The Determination of the Interim Orders Panel of the Medical Practitioners Service was prejudicial and was not based on a fair impartial and transparent investigation". Under that general heading the applicant in his skeleton argument makes six particular points. The common theme behind those points is that the investigation, and the handling of the investigation, by the General Medical Council has been flawed and unfair, essentially - though there are other particular points taken - because there was in truth no real case to answer against him. There is, it seems to me, some overlap between the applicant's subheadings and I will not follow them precisely. I will however identify what seemed to me to be the essential points being made.[20]First, the investigation by the GMC is not based on any actual complaint. What seems to have happened - though the sequence of events is still a little obscure and I have encouraged Mr Pievsky to see that it is clarified in advance of the Fitness to Practise hearing - is that in the course of investigating a separate complaint, which in the event did not proceed, the GMC wrote a standard-form letter to the Royal Worcestershire Hospital, as the applicant's current employer, which asked, among other things, if there were any current complaints or concerns about the applicant. It was in response to that enquiry that on 23 December Dr Ashton of the Trust, who was aware of the problems to which I referred earlier, sent the GMC the e-mails that had passed between the Claimant and Dr France and the agency through whom he was engaged. I am bound to say that, although I can understand how the applicant has been puzzled at how these matters arose and may perhaps wish to make something before the Fitness to Practise Panel about the fact that whatever concerns may have been felt by Dr France were not such that he himself felt impelled to report them to the Council, I do not see how this slightly unusual genesis of the complaint undermines it in substance if the points made by Dr Burdett-Smith in his report are in fact good points. The circumstances in which they first came to the attention of the GMC do not seem to me to be of real importance.[21]Secondly, the applicant complains that the Fitness to Practise directorate put the papers before Dr Burdett-Smith for his initial report without including the applicant's own initial response which he had sent when first notified of the matters being investigated. Although Dr Burdett-Smith did see his subsequent response and that did indeed produce the withdrawal of one criticism, the position might have been different, the applicant suggests, if Dr Burdett-Smith had seen his response from the start. It is always more difficult, he suggests, for a witness to resile from a position once adopted, and fairness required that Dr Burdett-Smith should have been given the applicant's materials from the start. Again, I am bound to say that, assuming that criticism to be factually correct, I doubt whether it has real weight. Dr Burdett-Smith as a professional should be well able to change his views if presented with sufficient reason to do so, as indeed the fact that he withdrew one of his criticisms tends to suggest.[22]Thirdly, the applicant says, by reference to the submissions made by Mr Maguire on his behalf from which I quote, that he had a "knockdown refutation to each and every allegation" contained in Dr Burdett-Smith's report. This is an area where it is particularly important for me to give full weight to the views of the Panel as an expert body. It was plainly not their view that there was a straightforward answer to the criticisms made by Dr Burdett-Smith, and I should be very slow to take a different view; nothing has been put forward to me which would justify me in doing so.[23]Fourthly, the applicant contends that the approaches taken by both the original case examiners and Dr Burdett-Smith showed unconscious biases of various clients. In the case of Dr Burdett-Smith in particular, the Claimant makes the point that he himself is subject to GMC regulation. So far as that is concerned I am bound to say I can see no weight in it at all. As regards the other alleged unconscious biases, I have been shown no evidence to suggest that they existed.[24]Fifthly, he refers to what he calls "scapegoating and ingroup bias". The point essentially being made is that there were various problems in the Worcestershire Royal Hospitals, and that, insofar as anything went wrong in the care of the patients with whom he was involved, others were involved besides himself and it was convenient for the Trust to deal with them by making allegations against him, being a locum and thus an outsider. That is not a conclusion which I could possibly reach on the material which I have seen; but in any event, the case against him is based principally on the case of Dr Burdett-Smith, which itself derives from the notes that he has seen.[25]Lastly, the Claimant relied on a large number of pieces of evidence, including testimonials from colleagues and others, which he says plainly show that he is a competent doctor. I have no reason, from what I have seen, to doubt that the testimonials in question represent the genuinely held views of those expressing them, but the fact that a doctor has on many occasions been competent and made a good impression on colleagues and patients is not unfortunately inconsistent with his having performed below a level of competence on other occasions.[26]The point made on the back of all those particular points is expressed under heading (e) in ground 2 where the applicant quotes the Panel's self direction that it:
"... based on the materials before it, must be satisfied that there may be impairment of a practitioner's Fitness to Practise which poses a real risk to members of the public or which may adversely affect the wider public interest or the practitioner's own interest and, after balancing these, decide whether an interim order is necessary to guard against that risk."
His submission are as follows:
"My contention here is that the test was not met. I believe the IOP did not arrive at their verdict by considering the weight/quality of the material/evidence before it. They lack any primary sources or firsthand witness evidence. Not only that but a disproportionate weight was given to the letter of Dr James France and Dr Burdett-Smith's analysis, an analysis which I have already proposed was uninformed, onesided and was based on hearsay reports and not a directly-witnessed account of events. Ultimately, this demonstrates that the Panel have relied solely on hearsay evidence."
[27]In my view all of those submissions are flawed by a misunderstanding of the limited role of the Interim Orders Panel. That role is not to undertake the definitive examination of the allegations against the doctor or to decide on the fairness of the investigation. The Panel can at most satisfy itself that there is a prima facie case that the allegations are well-founded. To use the phrase quoted by the applicant himself, ie that there "may" be impairment of a practitioner's fitness to practise", I accept that consideration of that question may in an appropriate case, involve some consideration of the investigative process that underlies the allegations made; but again it is only in a plain case that the IOP could find that there had been unfairness such as to undermine any even prima facie case. If that threshold is met, the definitive decision on the issue of competence, including so far as appropriate the fairness of the investigation, is for the Fitness to Practise Panel. (The nature of the applicant's misunderstanding is perhaps evidenced by the fact that he has previously made an application, which was rejected by Walker J on the papers, for permission to call witness evidence at this hearing.) I have, as I have been through his various points, made some comments on them. But whether those comments are in detail right or not, the overall point is that none of the grounds advanced by the applicant under this heading seems to me to come close to establishing that there is no prima facie case. In my judgment the reports of Dr Burdett-Smith, which were central to the thinking of the Panel at least in September 2012, clearly establish such a case. In the end, the applicant may or may not at the hearing before the Fitness to Practise Panel be able to undermine that evidence, or in any event to show that the criticisms made of him are very much exaggerated, but that is not something which can be resolved at this stage.[28]The applicant does make two more particular points about the approach taken by the Panel on 11 September which I should address.[29]First, he notes that in the reasons given by the Chairman for maintaining the conditions, reference is made not only to the report of Dr Burdett-Smith but to a letter from an agency which refers to previous complaints against the applicant. One of those complaints did come before the General Medical Council and was, he tells me, resolved in way which involved no criticism of him. The second was one which he had never heard of and presumably was not thought by the GMC to require any action. It was wrong in those circumstances, he submits, for the Panel to take the letter in question into account in any way. That may or may not be correct. I certainly see the argument. But even, as I say, if the applicant is right - as he may be on this point - it is quite plain that the letter from the agency was not central to the Panel's thinking. It had not in fact been relied on by the GMC's counsel at all and the bulk of the Chairman's reasoning is based on the report of Dr Burdett-Smith. Even if on the present application I leave the letter out of account altogether, I am satisfied that the case for conditions being imposed stands.[30]Secondly, he says that he was denied the opportunity to give oral evidence at the hearing before the Panel. The position about that is a little complicated but it can be summarised as follows.[31]The formal position under the Rules is that oral evidence is not to be admitted before the Interim Orders Panel unless the Panel considers that "such evidence is desirable to enable it to discharge its functions": see Rule 27(2). That by itself indicates, as one would expect given the nature of the hearing, that the calling of evidence will be very much the exception. That is supported by a guidance document issued by the GMC entitled "Imposing interim orders", which emphasises that since "it is important to keep in mind that the IOP does not make findings of fact or resolve findings of fact" the Panel "have rarely found it necessary to hear oral evidence from witnesses". However, the passage in question ends with this observation, "however, the IOP will always hear from the doctor if he or she wishes to give evidence".[32]The guidance does not of course have the weight of the Rules. At best it gives a steer as to how the Panel should exercise its discretion. It seems reasonably clear that the sentence to which I have referred about "hearing from the doctor" is concerned not so much with the actuality as with the appearance of a fair hearing: one can understand how it might be thought to be good practice to give a doctor the right to make a statement, even in circumstances where in fact their evidence is not likely to carry real weight, given the nature of the Panel's task.[33]In any event, turning to the hearing of 11 September, there was originally some debate about whether or not the applicant could be represented by Mr Maguire. During that discussion the applicant mentioned that he was happy to give evidence if asked to do so at the end of the hearing, to which the Chairman responded:
"Yes, there is no evidence. We do not take evidence. We do not make factual findings in this case. I think the Legal Assessor has explained that to you, that this Panel does not make findings of fact."
The submissions then proceeded. The Panel then gave its decision. Only at that point, after it had already done so, did the applicant say that he thought that he had a right to give oral evidence.[34]Mr Pievsky in his skeleton argument concedes that the remarks recorded from the Chairman were, strictly speaking, wrong because they appeared to suggest an absolute rule rather than a discretion. But I am sure that that error, such as it was, would not justify me in quashing the order. Even if I were concerned with the fairness of the hearing before the Panel - which, strictly speaking, I am not since I am not hearing an application for judicial review - I would not be satisfied that there had been any substantial unfairness. The Panel heard full submissions from the applicant's representative, Mr Maguire, which in fact included some matters of fact. There is no reason to believe that anything that the applicant could have said, formally by way of evidence, could have been material to their considerations. I would also make the point that the applicant did not in fact make any application to give evidence and only raised the point after the determination had been announced. If he had attached importance to the point, which he clearly had in mind, he could have pressed it at the time.[35]But in any event I am not formally concerned with the hearing before the Panel. I have to make my own decision. The applicant has addressed me himself at length on the basis of his written skeleton argument, and I can see nothing of a factual nature which, even if given in the form of evidence, would lead me to a different view from that which the Panel took.[36]I come finally to the third ground of appeal, which is that the imposition of conditions, or in any event the conditions that were in fact imposed, was disproportionate. The effect of the conditions has been greatly to restrict the applicant's employability, and he tells me, as I gather he also told the Panel, that he had in fact not found it possible to obtain employment except possibly for one short period. What is more, he had lost the opportunity to become an army doctor. He had got into financial difficulties, one of the results of which is that he had lost his house. Those were very serious impacts of the conditions.[37]The applicant's principal point is that there was no real need for conditions at all, having regard to the case against him. That submission is based on essentially the same points as those which are considered in relation to the second ground. As he puts it in his skeleton argument:
"The GMC says they have placed conditions on my registration for reasons of public safety. However, this assessment is completely at odds with the glowing references I have had from received from numerous colleagues, patients and my last employer, all bearing witness to the quality of my work and the integrity of my character as a competent, conscientious and safe doctor. It seems the GMC has given no weight whatsoever to any evidence that may contradict their allegations, including documents such as my witness statement and the testimonials I refer to."
But as I have already observed, the testimonials in question, while I do not doubt their genuineness, were not decisive of the question of whether there was a real risk that the applicant was not competent to work as a doctor without the imposition of conditions. It seems to me that once the Panel had reached the view that there was a real risk that his clinical competence to work unsupervised was in serious doubt, which had been the view both of Dr Burdett-Smith and indeed of Dr France it becomes impossible to argue that the imposition of this condition was disproportionate.[38]In conclusion, therefore, I can see no basis on which I, as a lay tribunal, ought to reach a different view from that reached by the Interim Orders Panel as an expert panel which was well qualified to assess the material before it and clearly did so conscientiously, taking into account also that two previous panels had reached substantially the same conclusion.[39]What evidently lies behind the applicant's application is a deep sense of unfairness that he has been subject to very damaging restrictions on an interim basis for over a year in respect of allegations which he strongly believes are ill-founded and which he has had no chance to disprove. I have already referred to the consequences which he says that those restrictions have had for him. It is impossible not to have sympathy with his predicament. But it is, I fear, inevitable that the need to protect the public during the period before a competent investigation can be properly completed will often cause hardship and that sometimes that hardship, will in the end prove to have been unjustified because the allegations will not be proved. That is a great misfortune in the cases where it happens. But, as I say, it is inevitable in any system where a form of interim protection is required. (It can of course happen in other circumstances as well, including criminal proceedings in cases where bail is denied.) The best that can be done is for the body making the interim decision to do its best to hold the balance fairly, but I can see no reason to believe that that was not done in this case.[40]MR PIEVSKY: My Lord, thank you. The GMC does have an application for its costs of this application. Of course, costs are in the court's discretion and we would say the normal starting point which is that the application, having been successfully resisted, costs following the event should apply. I do not know whether a schedule of costs has reached you.

MR JUSTICE UNDERHILL: It did, I am I have got it somewhere.

[42]MR PIEVSKY: I have a spare copy and in fact there is a typographical error.

MR JUSTICE UNDERHILL: Give me the correct copy. (Handed).

[44]That has presumably been given to --[45]MR PIEVSKY: Yes, it has. The typographical error is at the top there, the case reference had a missing number.

MR JUSTICE UNDERHILL: Yes, I see.

[47]MR PIEVSKY: I am grateful to Dr Kumar for pointing that out to me. Taking you through this schedule very briefly, you will see on the first page the costs relating to work done by those instructing me. The majority of it relates to work done on documents, putting together instructions and the bundle. The sums overleaf relate to the costs of my appearance today.

MR JUSTICE UNDERHILL: Okay.

[49]MR PIEVSKY: We say it is a reasonable figure.[50]MR JUSTICE UNDERHILL: Yes. Well there are two questions, Dr Kumar, first of all about whether you should have to pay any costs at all. Secondly about the amount. Let us deal with the first question first. As I expect you are aware, the general rule, though it is not a universal rule, is that if you bring a case and you fail and that means you put the other side to a good deal of expense, you ought to pay their costs. Are there reasons why you say that should not be what happens in this case?[51]THE CLAIMANT: No, my Lord, I understand what you mean.[52]MR JUSTICE UNDERHILL: I think that is very fair of you and I would have found it difficult to be persuaded otherwise. The next question is the amount. One thing that people often say, and I daresay is true in your case, is that you have not got this sort of money or certainly would not find it easy to find. I am afraid that is not a relevant consideration. That might be relevant to the question of whether it can never be enforced, but it is not a reason why I should not make the order.[53]I can say this much, but I am not going to stop you saying anything you want to say on top. Although I am in no way critical, and I have already said how helpful I have found Mr Pievsky's skeleton argument and I am sure a good deal of work was done before and this is quite a modest bill compared to some that one sees, nevertheless I have to take a general view of what is proportionate. I am not prepared I am afraid to make an order for as much as £7,500. Inevitably there is an element of rule of thumb about this. Subject to Dr Kumar trying to persuade me to a still lower sum, the figure that seems proportionate to me to order in these circumstances is one of £5,000. That is including VAT, you would have to round it down for VAT, I will hear you on that if you wish to be heard, Mr Pievsky. But first I should ask, Dr Kumar, I am rounding it down a bit because although I am afraid these sort of sums quite soon get run up when you have solicitors and counsel involved, I do not think it is right to make you pay quite as much as you have been asked. As you have heard me say, I think £5,000 would be hard to resist, but if you want to try and persuade me that it should be lower, I will of course hear you.[54]THE CLAIMANT: No, my Lord, I will pay £5,000.

MR JUSTICE UNDERHILL: I think that is realistic.

[56]Mr Pievsky, you have heard what I have said.[57]MR PIEVSKY: My Lord, no further submissions on that.[58]MR JUSTICE UNDERHILL: I want to make it quite clear, I have said it already but for the benefit of those behind you, this is not a taxing-down on the basis that I have any doubt that you have incurred this sum, or as between solicitor and client reasonably incurred it, but there is now a third element which is one of proportionality and that is the only reason on which I am taxing it down.[59]MR PIEVSKY: My Lord, thank you.[60]MR JUSTICE UNDERHILL: Thank you everyone, I am sorry to have kept you late. Without in any way wishing to take sides, I do not take sides, Dr Kumar, you will have your chance to put your case at the Fitness to Practise panel and I wish you well at that hearing.[61]THE CLAIMANT: Thank you my Lord, that's very kind.

Cited in 4 later judgments