Hosny v General Medical Council [1993] UKEAT 1010_92_2406

EAT
Hosny v General Medical Council
[1993] UKEAT 1010_92_2406 · 1993-06-24
MR JUSTICE WOOD (PRESIDENT): This is an appeal by Dr Hosny against a refusal by the learned Registrar to extend time for his appeal. There is a history to this matter which is relevant. Dr Hosny issued an Originating Application on the 27th October 1988. It was dismissed by an Industrial Tribunal in a decision sent to the parties on the 6th April 1990.He appealed, he was represented by Mr Meeran and Solicitors on the appeal. His appeal was rejected and dismissed. There was no approach by either side by way of appeal to the Court of Appeal, so that that decision stood and the essence of that decision is to be found towards the end of the judgment of Mr

Justice Knox, who presided in this Court where he says:

"We see no possibility on the basis of the allegations made by Dr Hosny of there being any significant discriminatory treatment between different categories, however selected, within the major group of those within the ambit of Part III of the Medical Act 1983 and once one reaches that conclusion it does seem to us that it is indeed not possible for this claim in respect of indirect discrimination in setting the standard or choosing the techniques for applying the PLAB Test to succeed in showing unlawful discrimination by the GMC."
That shows the seeds of the background to the problems which Dr Hosny faces and about which he makes, quite clearly, bitter complaint.Part of the duties of the GMC are to provide professional and linguistic tests for doctors whose qualifications originate from overseas. Those PLAB tests have been the subject of criticisms by doctors from overseas over some time.Dr Hosny really wishes to complain about the whole system. He says that the existence of those tests prevents him from working. He had been denied a chance to prove himself. That it is wholly unfair and this is the object of the various complaints that he has made and it started with that Originating Application of October 1988.Shortly after the matter had been decided on the 6th April 1990, namely in October 1991, a fresh Originating Application was issued by Dr Hosny and it was adjourned pending the decision in this Appeal Tribunal. Thereafter the matter came, once more, before an industrial tribunal, and an experienced Chairman, His Honour Judge Bassingthwaite, on the 1st September 1992.Two applications were before the Industrial Tribunal, first there was an application to amend and that was not allowed, Dr Hosney wished to include a complaint that he had been refused a particular type of pencil in the exam, whereas this is a type of pencil which all had to be used and could be read by a computer. They refused that, I see no reason why they should not have refused that and indeed Dr Hosny has not addressed me on that matter. However, the major cause of his complaint is that the Tribunal struck out his second Originating Application on the grounds that it was frivolous and had no prospect of success.The Tribunal give their reasoning, having setting out the history, in paragraph 5 as follows:
"This applicant has shown nothing in his originating application which points to discrimination against him on racial grounds; he persists in a complaint which is a general one aimed against the propriety of and necessity for the PLAB test and at the standard required and set by the Respondent to be achieved in order to pass it. This present complaint - apart from the addition of detail which shows that Egyptian doctors achieve a pass rate which is larger than some but lower than others - is no more than a duplication of his earlier complaint which he has chosen to present since he has again (in October 1991) failed a PLAB test. In the light of the clear judgment of EAT upon his previous complaint, his present complain has no prospect of success. It is therefore a frivolous complaint, which we dismiss."
It is to be noted from the early history that Dr Hosny has already visited this Appeal Tribunal on one occasion, and he must have appreciated that there was a time limit for appeals to the Tribunal. We know that documentation is sent out to all parties with the notification of decisions. Dr Hosney says he did not receive the notification and he thought that the time limit was three months. He was looking for help from the Commission for Racial Equality and also seeking legal aid. Neither of those matters are, as we know from decisions, grounds for justifying delay. That matter was made perfectly clear by the learned Master of the Rolls, Lord Donaldson of Lymington in his comments in the case of Marshall v. Harland Wolff Ltd [1972] ICR 97. The situation therefore is this, that I am not satisfied, nor was the learned Registrar satisfied, about the reasons for the failure to enter a Notice of Appeal in time. The delay is some 47 days out of time.Secondly, I am not satisfied that the appeal is likely to succeed and indeed, after all this time it seems to me that the prejudice to the Respondents, the General Medical Council, who have been taken through the Courts on this topic over a substantial period of time, would be considerable. In the circumstances, therefore, I dismiss this appeal and the refusal of the learned Registrar must stand.