“…(3) a court asked to interfere with findings of fact made by a lower court or Tribunal may only do so in limited circumstances. Although this Court has the same documents as the Tribunal, the oral evidence is before this court in the form of transcripts, rather than live evidence. The appeal Court must bear in mind the advantages which the Tribunal has of hearing and seeing the witnesses, and should be slow to interfere. See Gupta [10], Casey [6a] and Yassin [32(iii)]. (4) Where there is no question of a misdirection, an appellate court should not come to a different conclusion from the tribunal of fact unless it is satisfied that any advantage enjoyed by the lower court or tribunal by reason of seeing and hearing the witnesses could not be sufficient to explain or justify its conclusions: Casey [6a] . (5) In this context the test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Yassin [32(v)]. (6) The appeal Court should only draw an inference which differs from that of the Tribunal, or interfere with a finding of secondary fact, if there are objective grounds to justify this: Yassin [32(vii)] for (7) But the appeal Court will not defer to the judgment of the tribunal of fact more than is warranted by the circumstances; it may be satisfied that the tribunal has not taken proper advantage of the benefits it has, either because reasons given are not satisfactory, or because it unmistakably so appears from the evidence: Casey [6a] and cases there cited, which include Raschid and Gupta (above)and Meadow [125-126], [97] (Auld LJ). Another way of putting the matter is that the appeal court may interfere if the finding of fact is “so out of tune with the evidence properly read as to be unreasonable”: Casey [6c], citing Southall [47] (Leveson LJ)”
“(1) First, it was not possible for Dr Dutta to receive a fair trial in the light of the very substantial and inexcusable delay in proceeding with these allegations; (2) Secondly, the lateness of requesting a second case examiner to make a decision on cancellation meant that the Tribunal had been provided with a very substantial quantity of highly prejudicial material which would not have been in the bundle had the case examiner been able to make their decision sufficiently in advance of the hearing, the effect of which was that Dr Dutta did not receive a fair hearing; (3) Next, the decision made by the tribunal in respect of each of the remaining individual allegations was contrary to the evidence or the weight of the evidence; and (4) Lastly and, in any event, the decision to raise Dr Dutta from the register was excessive and disproportionate.”
“Given that a stay on grounds of abuse of process will be rare, the important thing in cases like this, in my judgment, is that the tribunal should reach its finding on the evidence with possible prejudice to the practitioner caused by factors such as delay and lack of specificity firmly in mind. To take the analogy of a criminal trial, on facts like these an express direction to the jury as to the necessity to guard against the potential prejudice caused by delay would be essential.”
“The problem of prejudicial publicity “including reference to previous convictions” is one which may arise in any court or tribunal considering criminal or disciplinary charges, but the law’s response to the problem will vary depending on the nature and experience of the tribunal concerned. There is no absolute rule that knowledge of such material is fatal to the fairness of the proceedings.”
“The exigencies of daily courtroom life are such that reasons for judgement will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also the reserved judgment based upon notes, such as was given by the district judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account”
“Section 40 appellants need to be aware that the circumstances in which it is shown that professional representatives acted in a manner giving rise to some serious irregularity in the proceedings so as to render the outcome unjust are likely to be very rare, and the fact that the appeal court conducts a rehearing is not licence to include a ground of appeal founded on hindsight based disagreement with the way in which representation was conducted before the Tribunal.”
“Whilst this suggests that Dr Dutta did not appreciate the procedures he performed were classed as surgical procedures,… The tribunal noticed this information was provided after the procedures had already taken place and shortly after the CQC had visited his premises”