Estephane v Health And Care Professions Council [2017] EWHC 2146 (Admin)

[2017] EWHC 2146 (Admin)Case No CO/2145/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 September 2017
Before
MR JUSTICE WARBY
Between
DESMOND ESTEPHANEAppellantHEALTH AND CARE PROFESSIONS COUNCILRespondent
The Appellant in person for in personCleon Catsambis (instructed by Bircham Dyson Bell) for RespondentHearing Hearing date: 17 August 2017
Judgment ApprovedMr Justice Warby :
[1]In these appeal proceedings Desmond Estephane, a health professional, challenges decisions of the Conduct and Competence Committee Panel of the Health and Care Professions Council dated 10 September 2013 and 6 April 2017. I shall use the abbreviations “Panel” and “HCPC” to refer to these entities.[2]By training and experience Mr Estephane is a biomedical scientist. The Panel’s decisions of 2013 and 2017 both concerned his fitness to practise in that capacity. They were made in the exercise of regulatory functions conferred on the HCPC and the Panel by the Health Professions Order 2001 (SI 2002 No 254), which I shall call “the 2001 Order.”[3]As will become apparent from the account that follows, this is not the first time that this Appellant has been before this Court seeking to overturn decisions of the Panel and the HCPC.

The factual and procedural background

[4]By its 2013 decision the Panel found three allegations proved against Mr Estephane:(1) First, that he had failed to disclose on his application to the HCPC for registration a conviction for driving whilst disqualified. An allegation that this non-disclosure was dishonest was rejected by the Panel.(2) Secondly, that he had failed to inform his employer NHS Trust and the HCPC of the fact that on 2 April 2012 he was convicted of common assault. This conviction had been quashed on appeal, as the Panel was aware. It found, nevertheless, that Mr Estephane’s failure to disclose the fact of this conviction to his employer and the HCPC had been deliberate and dishonest.(3) Thirdly, that Mr Estephane had made discriminatory remarks to a colleague. This allegation upheld by the Panel arose from a complaint about things he was alleged to have said about a colleague “AB”, who suffered from repetitive strain injury. The allegation was that he had said words to the effect that he was fed up of working with disabled people, that AB could not even streak plates, and that he had been given two disabled people.[5]The Panel found that the proved facts amounted to misconduct; and that Mr Estephane’s fitness to practise was impaired. Those being the circumstances as they found them to be, the Panel imposed a Suspension Order for a period of twelve months.[6]Mr Estephane exercised the rights of appeal conferred on him by the 2001 Order. Those rights, as I shall explain in more detail, entitle a person to appeal to the High Court without requiring permission. The appeal is in the nature of a re-hearing, though not one which involves re-hearing all the evidence afresh.[7]Mr Estephane’s grounds of appeal sought to challenge the following six findings of the Panel:(a) allegation 2: that he failed to disclose details of his conviction for driving whilst disqualified in paragraph 1 of his application form;(b) allegation 3: that he did not disclose his conviction for common assault;(c) allegation 4: the finding of dishonesty on allegation 3;(d) allegation 5: that he made discriminatory remarks;(e) the finding that these matters amounted to misconduct;(f) the finding that his fitness to practise was impaired.[8]The appeal was heard by Carr J, DBE, on 5 March 2014. After hearing from Mr Estephane in person and from Counsel for the HCPC, the Judge delivered a detailed reasoned judgment dismissing the appeal: [2014] EWHC 1209 (Admin). At paragraph [17] of her judgment, Carr J observed that Mr Estephane faced an “uphill challenge” when one considered the nature of the Panel’s findings, which were factual conclusions arrived at by “a specialist tribunal which had and deployed its advantage of hearing the evidence from live witnesses”. That advantage, as she said, was “particularly relevant in relation to the finding of dishonesty and the finding that Mr Estephane made discriminatory remarks”.[9]The Judge proceeded to consider individually in detail over the next 23 paragraphs of her judgment each of Mr Estephane’s six grounds of appeal. She concluded that none of those grounds was made out, that the Panel decision was not wrong, and that the appeal must be dismissed. It is pertinent to record here some of her key findings, so far as the three allegations I have mentioned at [4] above are concerned. She said this:
“18. I turn then to the challenge on allegation 2. The fact found was, despite the challenge now brought, admitted on behalf of Mr Estephane before the Panel. That admission is expressly recorded in the Panel’s decision. It is also reflected in Mr Estephane’s statement before the Panel and in the submissions of Mr Estephane’s representative to the Panel. But in any event, for the avoidance of doubt, in my judgment the facts of allegation 2 are made out. The registration form speaks for itself. It is fortunate for Mr Estephane that the Panel did not find that failure to give particulars to be dishonest … 19. I turn next to the challenge on allegation 3. As for the non-disclosure of conviction in April 2012, an admission by Mr Estephane as to non-disclosure is initially not so clear as the admission on allegation 2 in the transcript. But it does appear from the transcript as a whole, and the Panel’s decision, that certainly by the end of the hearing, Mr Estephane accepted the non-disclosure as a matter of fact (see for example pages 182 and 192). In any event there was clear evidence from Mr Len Kemp of the Trust as to the non-disclosure by Mr Estephane of his conviction at the meeting on 5 April 2012 and by reference to contemporaneous documentation. Mr Estephane’s case before the Panel focussed on his state of mind, namely, that he did not understand there to have been any trial or conviction in April 2012. That case is only consistent with non-disclosure. 20. I turn next to allegation 4. As to the finding of dishonesty on allegation 3, as I have said, the Panel had the opportunity to assess Mr Estephane’s evidence. It found that evidence to be both contradictory and unconvincing. … 22. The Panel took account of Mr Estephane’s demeanour. It found that it was inconceivable that he could have gone through the process of court proceedings, attendance at a community service location and then appeal without understanding that he had been convicted and, indeed, sentenced… … 25. The finding of dishonesty was pre-eminently a finding of fact made by a Panel having had the advantage of seeing and hearing the witness. I have seen nothing that comes close to persuading me to interfere with the finding. Indeed, what I have seen only lends support to the finding. ... 30. The finding of dishonesty is not one that the Panel would have made lightly. It is one to which it was fully entitled to come and with which I am not prepared to interfere.”
[10]Following the judgment of Carr J DBE, the suspension imposed by the 2013 Decision came into effect, commencing on 5 March 2014.[11]Thereafter, the Panel reviewed its 2013 Decision on a number of occasions, pursuant to Article 30(1) of the 2001 Order.(1) On 2 February 2015, the suspension order of September 2013 was reviewed and the Panel decided to extend Mr Estephane’s suspension by a further 6 months.(2) At the end of that period, in August 2015, there was a further review This time, the Panel was satisfied that Mr Estephane had some insight into his failings and it was persuaded that the misconduct found proved would not be repeated. However, the Panel found that Mr Estephane, having been out of practice for some 18 months, was not able to return to unrestricted work as a biomedical scientist. He had not provided evidence of continuing professional development. The Panel concluded that his fitness to practise was impaired, and replaced the Suspension Order with a Conditions of Practice Order for a period of 12 months.(3) A year after that, in August 2016, there was a further review. On this occasion, the Panel was satisfied that a Conditions of Practice Order for a period of 9 was the appropriate sanction, in order to provide Mr Estephane with adequate time to undertake appropriate continuing professional development, and to obtain evidence of the same.[12]On 29 December 2016, Mr Estephane filed a judicial review claim form by which he sought to challenge the 2013 decision, the Conditions of Practice Order of August 2016, and a decision regarding publication made by the HCPC and recorded in a letter dated 27 October 2016. He sought urgent consideration of the claim. His challenge was, in summary, that the HCPC had behaved illegally and irrationally in its conduct of the previous proceedings. He raised five specific issues, alleging the following:(1) that the first finding against him involved an incorrect application of the meaning of the word “conviction”; for driving whilst disqualified he had been given a conditional discharge, which is not a conviction (he referred to the case of Omenma [2014] UKUT 314);(2) that the HCPC had incorrectly applied the legal meaning of the term “dishonesty”;(3) that it had misapplied the legal meaning of “no case to answer” (referring to Galbraith [1981] 1 WLR 1039);(4) that the HCPC was guilty of “spoliation of evidence”; and(5) that the HCPC’s evidence in respect of the alleged discriminatory remarks was unsatisfactory, and inconsistent, and that it was “clear that the supposed comments were not made and the informant was not present at the time”.[13]The allegation of “spoliation” related to some case notes of Mrs Ifat Reader, a case worker at the HCPC. Mr Estephane made the following allegations:
“The HCPC has shown spoliation of evidence by not making documents being made available for all hearings. … ie case notes of MRS IFAT READER contact was made by me to her). Those documents had they been presented to all the panels, would have proven my case and allowed me the chance to cross examine such evidence. … They made every attempt to prevent me from being able to present the case notes of MRS IFAT READER … These case notes have been withheld from every review FTP review panel up to this date. Including the initial panel at the hearing on 9/10 the Sept 2013.”
[14]Mr Estephane’s claim was treated as a matter of urgenc. It was considered on the papers on 29 December 2016 by Mr C M G Ockelton, who was dealing with “immediates” as a Deputy Judge of this Court. Mr Ockelton refused the application, and refused permission for judicial review. He determined that Mr Estephane was out of time to challenge the September 2013 Decision and the 5 August 2016 Order; that there was no good reason to extend time for such a challenge; and that publication had been lawful in accordance with the HCPC’s publication policy; the case was not arguable. On 1 February 2017 Mr Estephane renewed his application at a hearing before Mr Robin Purchas QC (also sitting as a Deputy High Court Judge in the Administrative Court). Permission was again refused.[15]In April 2017, Mr Estephane’s case was reviewed again by the Panel. In the course of the hearing, the Panel was clear as to the nature and limits of the function that it was then performing, and clearly communicated these to Mr Estephane. Plainly, that function was not and could not be to review the original factual findings of 2013. As the Panel chair said to Mr Estephane at one stage:
“we cannot, as a Panel, go behind the original findings of dishonesty and conviction. ... We cannot change those decisions… what we’re looking at is how you can demonstrate and talk to us about reasons why you’re no longer impaired, .... now that you have been out of this role for four years, ... – how can you demonstrate that you’re no longer impaired ... how you’ve kept really up-to-date so as you can go back into practice, because that’s what you’re asking us to let you do.”
[16]The same point was made in the Panel’s reasoned decision at para [14] where it said this:
“[It] had firmly in mind that the purpose of this hearing was to conduct a thorough appraisal of the Registrant’s current fitness to practise, including an assessment of future risk, and that this was not a rehearing of the facts of the original case”
[17]By its decision – that is, the April 2017 Decision which is the second decision under challenge in these proceedings - the Panel imposed on Mr Estephane a Conditions of Practice Order for a period of 9 months. That was done on the basis that although Mr Estephane had made progress he had not, in the Panel’s judgment, yet achieved the level of retraining and practice in his profession that was required for him safely to return to work without restrictions. The Panel acknowledged that he was entitled to credit for producing a comprehensive portfolio, for gaining readmission on the IBMS register, and for having made efforts to gain employment. But it said (at para [16]) that it was:
“.... nonetheless concerned that the Registrant has not achieved the level of retraining and practice in his profession that is required for him to safely return to work. ... There was no independent verification of what he had done. Members of the public would remain at risk if he were permitted to return to unrestricted practice after a gap of almost four years”
[18]The Panel considered that the previous Conditions of Practice Order was “no longer realistically workable, because [Mr Estephane] was not employed as a Biomedical Scientist and the existence of the order in its current form made obtaining such employment too difficult in his case” ([17]). The Panel therefore decided to remove the more onerous supervision conditions and to replace them with a more straightforward requirement that Mr Estephane submit evidence of his competence and progress in advance of the next review hearing. The Conditions remain in force until 5 February 2018.

Grounds of appeal

[19]Mr Estephane’s Notice of Appeal dated 2 May 2017 states as follows:
“I appeal against the original order of Sept 2013 ... and this order of 6th April 2017 ...”
He identifies the three allegations to which I have referred at [4] above and sets out three grounds of appeal, which he describes as “points of law”. They are all challenges to the original Panel decision of 2013, and can fairly be summarised as follows: (1) That the original Panel decision of 2013 was wrong because, as a matter of law, there had been no conviction in respect of the driving offence; (2) that the Panel decision was wrong in fact, because Mr Estephane kept the HCPC fully informed in respect of the conviction for common assault; and (3) that the Panel decision was wrong in fact, because he has an alibi for the time at which the alleged discriminatory comments were made.[20]In support of the second ground of appeal, Mr Estephane relies on some case notes dated 3 and 30 April 2012 bearing the name of Mrs Ifat Reader. In support of the third ground, he puts forward an account of his own about what he was doing and where he was when the alleged remarks were made, coupled with a witness statement from a Mr Costas Georgiou dated 13 June 2016.[21]None of these grounds involves any direct challenge to the 2017 decision. They seek instead to undermine findings which the Panel made and acted upon after a hearing nearly four years ago, in September 2013. This involves no more than an indirect challenge to the most recent decision. No criticism is advanced of any aspect of the Panel’s conduct or reasoning in arriving at the April 2017 decision.[22]The nature of these grounds and the factual and procedural background that I have set out gives rise to an important threshold question, which is this: does this Court have jurisdiction to entertain this appeal, or is it an illegitimate attempt to pursue a second appeal against the same decisions, before the same appellate tribunal? A further question is involved, namely: is this, bearing in mind the failed appeal and the dismissed judicial review claim, an abusive or improper attempt to challenge for a third time the original decision of 2013?[23]Mr Catsambis, for the HCPC, submits that the answer to these questions is that this Court has no jurisdiction to entertain any of the grounds of appeal, and that for that reason the purported appeal should be dismissed without consideration of its merits. That is his primary position, though he also submits that the grounds of appeal are without merit, whatever may be the applicable principles. Mr Estephane’s position is that he has been the victim of a long-standing and long-running injustice which he has only now been able to unmask and challenge, on the basis of new information as to the relevant legal principles, and fresh evidence of fact. His career has been blighted. It would be wrong in law and unjust, he submits, to reject his arguments for the reasons advanced by Mr Catsambis.

The regulatory and appellate regimes

[24]In order to address these arguments, it is necessary first to identify some of the chief features of the regulatory and appellate regimes that call for consideration.[25]The decision-making regime of the Panel, and the rights of appeal against decisions of the Panel, are governed by Articles 29, 30 and 38 of the 2001 Order. These provide, so far as material, as follows:
“Orders of the Health Committee and the Conduct and Competence Committee 29 ... (3) If, having considered an allegation, the Health Committee or the Conduct and Competence Committee, as the case may be, concludes that it is well founded, it shall proceed in accordance with the remaining provisions of this article (4) The Committee may— (a) refer the matter to Screeners for mediation or itself undertake mediation, or (b) decide that it is not appropriate to take any further action. (5) Where a case does not fall within paragraph (4), the Committee shall— (a) make an order directing the Registrar to strike the person concerned off the register (a “striking-off order”); [or] (b) make an order directing the Registrar to suspend the registration of the person concerned for a specified period which shall not exceed one year (a “suspension order”); [or make other orders] ... (9) The person concerned may appeal to the appropriate court against an order made under paragraph (5) and article 38 shall apply to the appeal. (10) Any such appeal must be brought before the end of the period of 28 days beginning with the date on which notice of the order or decision appealed against is served on the person concerned. ... Review of orders by the Health Committee and the Conduct and Competence Committee 30 - (1) Before the expiry of an order made under article 29(5)(b) ... by the Conduct Committee or the Health Committee, the Committee which made the order…shall review the order and may, subject to paragraph (5)- [make one of a number of orders] ... (10) The person concerned may appeal to the appropriate court against an order or decision made under paragraph (1)… (11) Any such appeal must be brought before the end of the period of 28 days beginning with the date on which notice of the order or decision appealed against is served on the person concerned. .. ... Appeals 38. - (1) An appeal from— (a) any order or decision of the ... Conduct and Competence Committee other than an interim order made under article 31, shall lie to the appropriate court; [...] … (4) In this article “the appropriate court” means— ... (c) in any other case, the High Court of Justice in England and Wales.” (a) refer the matter to Screeners for mediation or itself undertake mediation, or (b) decide that it is not appropriate to take any further action. (a) make an order directing the Registrar to strike the person concerned off the register (a “striking-off order”); [or] (b) make an order directing the Registrar to suspend the registration of the person concerned for a specified period which shall not exceed one year (a “suspension order”); [or make other orders] Review of orders by the Health Committee and the Conduct and Competence Committee Appeals (a) any order or decision of the ... Conduct and Competence Committee other than an interim order made under article 31, shall lie to the appropriate court; [...] … (c) in any other case, the High Court of Justice in England and Wales.”

Appeals

[26]The procedural regime for appeals pursuant to the 2001 Order is prescribed by CPR 52 and PD52D. That Practice Direction deals with Statutory Appeals, such as those brought pursuant to the 2001 Order.[27]The test to apply is set out in CPR 52.11(3). An appeal will be allowed if the High Court considers that the decision below was wrong, or unjust because of a serious procedural or other irregularity. Para 19.1(2) of the PD concerns “appeals against decisions affecting the registration of architects and health care professionals”. It provides that the appeal will be by way of re-hearing, but as noted by Foskett J in Fish v GMC [2012] EWHC 1269 (Admin) [28] this is “a re-hearing without hearing again the evidence”. The approach of this Court is to show substantial deference to the decision-making tribunal; to consider and give appropriate weight to the specialist nature of the tribunal, and the fact that it had the advantage of hearing live evidence, so that findings of primary fact are close to being unassailable; to depart from them, it must be shown with reasonable certainty that they are wrong: Rice v Health Professions Council[2011] EWHC 1649 (Admin) [11-17] (Lindblom J). This is the approach adopted by Carr J when deciding with what I shall call Mr Estephane’s first appeal in March 2014: see her judgment at [9]-[12].[28]Three further seemingly relevant provisions of PD52D, to which reference has not been made in the course of argument, are contained in paras 3.5, 4.2, and 19.2(3). Para 3.5 provides that “Where any statute prescribes a period within which an appeal must be filed then, unless the statute otherwise provides, the appeal court may not extend that period.” But for this provision, CPR 52.15 would apply, by which the court may vary time limits. Paras 4.2 and 19.2(3) are contained in Section 4 of the PD52D, which concerns “Specific appeals”, including those such as the present. Para 4.2 states that “Part 52 applies to all appeals to which this Section applies subject to any specific provisions set out in this Section”. Para 19.2(3) provides specifically that “The appellant must file the appellant’s notice within 28 days after the decision that the appellant wishes to appeal.”[29]There is no doubt that, procedurally, a disappointed appellant in proceedings before this Court pursuant to Articles 29, 30 and 38 of the 2001 Order may seek to appeal further, from this Court to the Court of Appeal. Any such appeal would be subject to the ordinary time limit of 21 days after the decision to be appealed (CPR 21.12), and would require the permission of the Court of Appeal itself. The test for the grant or refusal of permission would be the “second appeals test” provided for by CPR 52.7, which states so far as relevant:
“(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of ... the High Court which was itself made on appeal ... (2) The Court of Appeal will not give permission unless it considers that (a) the appeal would (i) have a real prospect of success and (ii) raise an important point of principle or practice; or (b) there is some other compelling reason for the Court of Appeal to hear it.” (a) the appeal would (i) have a real prospect of success and (ii) raise an important point of principle or practice; or (b) there is some other compelling reason for the Court of Appeal to hear it.”
[30]In the initial fitness to practise proceedings Mr Estephane was represented by Counsel, as was the HCPC. In the later proceedings, including those before me, the HCPC has again been represented by Counsel, but Mr Estephane has represented himself. He has demonstrated a good understanding of legal issues and procedural matters, though not of course to the level that would be expected of a lawyer. I have therefore sought to ensure that I identify and consider all points that might be taken by him if he was represented.[31]It is in that spirit that, in the course of this hearing, I have drawn the attention of the parties to the decisions of the Court of Appeal (Civil Division) in Taylor v Lawrence [2002] EWCA Civ 90 [2003] QB 528 and the Court of Appeal (Criminal Division) in R v Yasain [2015] EWCA Crim 1277 [2016] QB 146, and invited submissions on whether they have any and if so what bearing on Mr Estephane’s current appeal.[32]In Taylor v Lawrence, as is well-known, the Court of Appeal held that it had an implicit jurisdiction to do what was necessary to achieve its two principal objectives, of correcting wrong decisions and ensuring public confidence in the administration of justice; to that end it could, in exceptional circumstances, reopen proceedings which it had already heard and determined. In the more recent decision of Yasain, the Court held that the same overall principles applied to the exercise of the criminal appellate jurisdiction. That decision has yet to be reflected in any amendment to the Criminal Procedural Rules (but see Hockey v R [2017] EWCA Crim 742 [16] for an interim position). CPR 52 was however amended over a decade ago to reflect Taylor v Lawrence. The present version of the applicable Rule is CPR 52.30, which states as follows:- “Reopening of final appeals 52.30(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless— (a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to reopen the appeal; and (c) there is no alternative effective remedy.(2) In paragraphs (1), (3), (4) and (6), “appeal” includes an application for permission to appeal.(3) This rule does not apply to appeals to the County Court.(4) Permission is needed to make an application under this rule to reopen a final determination of an appeal even in cases where under rule 52.3(1) permission was not needed for the original appeal.(5) There is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs.(6) The judge must not grant permission without directing the application to be served on the other party to the original appeal and giving that party an opportunity to make representations.(7) There is no right of appeal or review from the decision of the judge on the application for permission, which is final.(8) The procedure for making an application for permission is set out in Practice Direction 52A.” (a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to reopen the appeal; and (c) there is no alternative effective remedy.[33]It would have been unreasonable to expect focused submissions on this issue from Mr Estephane, even if it had been possible to give more notice of the point. I did have the advantage of some brief submissions from Mr Catsambis after the short adjournment, but in fairness it must be said that he had little time to evaluate the position. He submitted that the exceptional power to re-open a decided appeal was not applicable to an appeal before this court, as opposed to the Court of Appeal; or alternatively that the case advanced by Mr Estephane failed to meet the stringent requirements provided for by the procedure for reopening appeals.

Assessment

[34]It is undesirable to decide procedural issues of the kind I have just mentioned when only one side is represented, and only short notice of the issue has been provided. Happily, I do not consider it necessary to do so. In my judgment, giving Mr Estephane the benefit of every reasonable assumption in his favour as to the procedural position, the present appellate proceedings must be dismissed for want of jurisdiction and, for good measure, as an abuse of process and on their merits.[35]I shall deal first with the attempt to appeal against the 2013 decision. In my judgment, the statutory regime permits only one appeal to this Court against any given decision of the Panel. The contrary has not been argued, and in my judgment that is the only permissible interpretation of the relevant provisions of the 2001 Order. So far as the 2013 decision is concerned Mr Estephane has exhausted the rights of appeal conferred by that Order. He brought an appeal against that decision, which was heard and dismissed by Carr J in 2014. As I have noted, procedurally there is the possibility of a further appeal to the Court of Appeal. None has been attempted by Mr Estephane. The time limit for such an appeal has long passed. It is hard to see how Mr Estephane could justify an extension of time for appealing to the Court of Appeal, or how the points that Mr Estephane has made to me could be found to satisfy the second appeals test provided for by CPR 52.7. But that would be a matter for the single judge of the Court of Appeal, if Mr Estephane chose to pursue that route (which is not a course of action that I would wish to be seen as endorsing or encouraging). Thus far, I accept the submissions of Mr Catsambis.[36]To those I would add that it seems that the provisions of Article 29(10) and those of PD52D para 3.5 may lead to the conclusion that not only is the present appeal against the 2013 decision some 3 years and 9 months out of time, but also that this Court has no jurisdiction to extend the time for bringing it. I do not, however, rest my decision on that provisional view, which has not been tested by argument.[37]As Taylor v Lawrence and Yasain both show, it is not necessarily the case that an unsuccessful appellant who later comes across a further ground of appeal that was not relied on by him when he first appealed is without any remedy. A jurisdiction exists to re-open a decided civil appeal. Provided that the first appeal was brought within the statutory time limit, the provisions just mentioned would not appear to bar the adoption of this procedure. I am not convinced that the Taylor v Lawrence jurisdiction is restricted to the Court of Appeal, as submitted by Mr Catsambis. CPR 52.30 appears on its face to acknowledge the possibility of re-opening an appeal to this Court. That would seem to be in accordance with principle, particularly so now that the jurisdiction of this Court has been expanded to take in final appeals from the County Court. On the face of CPR 52.30, in its context, that power may well be available in respect of appeals pursuant to the 2001 Order. I have been given no reason to doubt that this is so. Para 4.2 of PD52D would suggest that it is. For present purposes I am willing to assume that this court has jurisdiction to re-open a decided appeal in a matter of the present kind, in the circumstances specified in CPR 52.30. But I cannot regard any of the points made by Mr Estephane as falling within the scope of that rule.[38]In summary, for the reasons given below, I am not persuaded that there has been any injustice, or that the circumstances can be described as exceptional. The points now taken could have been taken in the first instance if they had any merit. In any event, they afford no basis for disturbing the Panel’s 2013 findings, or the conclusions of Carr J on appeal from the Panel’s decision. These are conclusions I would have reached had I dealt with the case on the papers, as provided for by CPR 52.30. My conclusions have not been altered by listening to Mr Estephane’s oral argument, in the course of which he sought to explain and develop his points.[39]As for the purported appeal against the April 2017 decision, this is in time but it has no substantive content. As I have noted, the criticisms that Mr Estephane makes of the HCPC and its Panel relate exclusively to the 2013 decision and its merits. His real complaint about the 2017 decision is, and is only, that it builds and relies on the original Panel decision. That is not a ground of appeal against the 2017 decision, which was not arguably in error in that or any other respect.[40]I shall explain in a little more detail the reasons behind my assessment of the merits of the three grounds of appeal relied on today. But I shall be quite brief. That is because in my judgment this is at best an application for permission to re-open a decided appeal, which ought properly to have been made by way of an application under CPR 52.30, which would have been decided on the papers; it is a third attempt to litigate essentially the same issues by way of appellate or review proceedings; it is thus a misuse, and an abuse of the court’s process; Mr Estephane’s claims have already consumed more than their fair share of the limited and precious resources of the judicial system; and the issues are in the end quite straightforward.

The first ground

[41]A “Memorandum of a Conviction” from the Inner London Commission Area, dated 20 March 2013, the authenticity of which is not in doubt, records that on 12 September 1995 before the Thames Magistrates Court Mr Estephane pleaded guilty to an offence committed on 8 August 1995 of driving a motor vehicle on a road “being a person disqualified for holding or obtaining a driving licence”, contrary to s 103(1)(b) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988. The Minute of Adjudication states “CD 6 months. No endorsement – special reasons.” “CD” refers to Conditional Discharge. The “special reasons” are summarised in this way:
“Defendant believed he was not disqualified as notice of appeal lodged. Appeal subsequently successful.”
Clearly, these are references to an appeal against the order imposing the disqualification. They are not references to any appeal against the adjudication, on Mr Estephane’s guilty plea, that he had driven whilst disqualified.[42]It is this adjudication that was treated in the proceedings before the Panel as a “conviction”, and which Mr Estephane was accused of having failed to disclose. Allegation 1 referred to it as such. There was no doubt what it was that the HCPC was alleging. At the Panel hearing, when he was legally represented, he submitted a witness statement, signed on the day of the Panel hearing, in which he admitted the charge. He disputed the allegation that his non-disclosure was dishonest. He did so successfully. He then appealed against the finding against him. He did not at either stage take the point that he now relies on, which is that a conditional discharge is not a conviction. He relies on section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 which provides: “a conviction of an offence for which an order is made under section 12 above discharging the offender absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under section 13 above”.[43]This is a ground of appeal that could and, if it had any merit, should have been pursued before the Panel and/or on the first appeal. There is no good reason for failing to raise it then. It could not possibly satisfy the tests under CPR 52.30. Indeed, in my judgment the point is clearly without any merit. It is a purely semantic point, based upon the wording of a criminal statute which has no material bearing on the issue which the Panel had to decide. The substance of the matter is that a criminal court was satisfied so that it was sure that Mr Estephane had driven whilst disqualified (a matter which, as it happens, he admitted). The issue before the Panel in 2013 was whether he, knowing that, had failed dishonestly or otherwise to disclose that fact to the HCPC. The Panel found that he did fail, but did not find that this failure was dishonest. The characterisation to be given to the finding of guilt under the Act of 2000 is wholly immaterial. This point could not sensibly be viewed as in any way undermining the conclusion of the Panel, or the reasoning of Carr J on appeal. For completeness, I should add that this is a point raised and dismissed by this Court in the judicial review claim of 29 December 2016. It is abusive to raise it again in this purported appeal.[44]Mr Estephane sought to add some further points in support of this ground of appeal. They included an argument that the HCPC’s policy documents showed that they would not treat a conditional discharge as a conviction, so that the charge and proceedings upon it were unlawful as contrary to policy. This, like the other points taken, was a new point not open to him procedurally on this appeal; it should have been taken before the Panel, if it was to be taken at all; and it lacked any merit. The policy in question relates to “conviction allegations”, that is to say allegations that a person’s fitness to practise is impaired because of conduct which is the subject of a conviction. That was not the nature of the case relied on in respect of the driving whilst disqualified.

The second ground

[45]Mr Estephane’s second ground of appeal is remarkable. There is no doubt that on 2 April 2012 Mr Estephane was convicted before Magistrates of an offence of common assault. On 23 April 2012, he was sentenced by the Magistrates for that offence. He later appealed successfully against conviction and sentence. The effect of those appeals is, as he submits now, that the original conviction and sentence are of no effect. The appeal is a re-hearing and if it results in an acquittal that is the result of the criminal process. Mr Estephane has spent some time making, and reiterating that proposition, in various forms. None of this however is to the point.[46]The fact that the conviction was later set aside does not affect the fact that it existed and was in force against him between 2 April 2012 and the date of the decision on appeal. The allegation made against Mr Estephane was that he had failed to disclose the conviction during that period, and had done so dishonestly. At the hearing he admitted the failure, indeed asserted it. He disputed the allegation of dishonesty. The Panel found against him on the latter point and proceeded accordingly, as it was fully entitled to do. The reasoning of Carr J, which I have cited above, amply explains why that is so.[47]As will be noted from that reasoning, Mr Estephane’s case was that he did not tell the HCPC of his conviction because he did not realise he had been convicted until his employers so informed him. That case was considered by the Panel and roundly rejected as incredible. Now he takes a wholly inconsistent position. He claims that he did tell the HCPC of his conviction and that the case notes bearing the name of Mrs Ifat Reader are evidence that he did so, which the HCPC suppressed. It will be apparent from my account of the judicial review proceedings that Mr Estephane made this point then, and it was rejected. It is wholly untenable, and its further pursuit in these proceedings is abusive. The documents do not support the new case that he now presents. They contain no record of any statement by him that he had been convicted. They are entirely consistent with the findings of the Panel, that he had falsely implied to others that the case against him was to be tried in the Crown Court. Those findings were supported by oral evidence which the Panel accepted, and by documents. Some of the relevant documents are cited in the passages from the judgment of Carr J that I have quoted above.[48]It is a measure of the weakness and (at best) confusion involved in this ground of appeal that, under questioning from me, Mr Estephane changed his position in respect of Mrs Reader’s notes, first of all complaining (when I pointed out that there was no reference to a conviction) that she had not recorded everything that he said to her, and then questioning the authenticity of the document on the basis that they did not bear a “wet” signature, and thus could have been created by anyone.

The third ground

[49]As for Mr Estephane’s third ground of appeal, this is a challenge to the factual conclusions of the Panel, that the discriminatory remarks were made. Mr Estephane found it difficult to confine his submissions to the only point contained in his grounds, tending rather to challenge the credibility of the “accuser”, Mr Winch. That is a line of argument that was deployed unsuccessfully before the Panel and before Carr J. It has no place in these proceedings, for those reasons and because it was not identified as a ground of appeal in the Notice of Appeal. I shall address the point that was set out as a ground of appeal, and only that point.[50]The point is that there is fresh evidence available, in the form of the statement from Mr Georgiou to which I have referred, which proves (or should be let in with a view to proving) that on the material date Mr Estephane was not in the microbiology department but at Mr Georgious’s garage in Barkingside, Essex, in the company of a Mrs Akindyodi. The point is hopeless. The whole issue was gone into thoroughly by the Panel, which had to weigh up conflicting and inconsistent evidence, assess credibility, and reach findings of fact. The “fresh” statement comes a long time after the event – some 5 years, in fact. The maker, understandably, cannot identify the date in March 2011 on which he saw Mr Estephane and a woman he cannot identify. There is no basis on which this evidence could be thought to satisfy the tests for the admission of fresh evidence on appeal, still less on a reopened appeal. This is another point that was raised in the dismissed judicial review claim.[51]I also see force in the point made by Mr Catsambis, that Mr Estephane’s present claim is at odds with his stated position hitherto. Mr Estephane adopted what seems to me to be a sensible position when he said this to the Panel in the context of its reviews:
“The Panel’s findings were based upon the evidence prepared and presented to them. While I believe other evidence could have assisted me, I do not seek to go behind the Panel’s decision. I accept their conclusions and the reasons they gave for suspending me from practice” and “The original Panel found that I had been dishonest in not disclosing to my employer and the HCPC that I had been convicted of assault at Stratford Magistrates’ Court. I accept the Panel’s finding. So I am clear, I fully appreciate that the issue here is my dishonesty in my communications with the HCPC and my employer. The fact the conviction was eventually subsequently [overturned] on appeal (i.e.: full acquittal) is not actually relevant.”

Conclusions

[52]For all the reasons given in this judgment above, this appeal is dismissed. A formal order will need to be drawn up, which must be drafted by the HCPC in the first instance. The parties have permission to submit written representations on that issue. As to costs, it seems inevitable that an order must be made against Mr Estephane, but that is an issue on which he may put in written submissions in response to submissions put forward on behalf of the HCPC.[53]I add that there is no right of appeal or review against my decision, to the extent that it represents a decision under CPR 52.30: see sub-rule (7). Further, I cannot grant permission for a second appeal. If I had the power, I would not exercise it. In my judgment, the application/appeal is totally without merit. That conclusion means that I am obliged to consider whether to make a civil restraint order against Mr Estephane. I have concluded, having regard to the background I have outlined, that I should make such an order. The terms of that order will remain to be settled.

Cited in 1 later judgment