Mr Justice COLLINS :
- This is an appeal pursuant to section 40(1)(a) of the Medical Act 1983 against the decision of a Fitness to Practise Panel of the Respondents. The decision under appeal was made on 15 April 2005, but the procedure was governed by the General Medical Council (Professional Performance) Rules 1997. Thus the Panel had to decide whether the appellant's professional performance had been seriously deficient. It decided that it had and accordingly it was obliged to and did impose conditions on his registration. Those conditions, which were to remain in force for 2 years, required that the appellant should only work under supervision, should inform all potential employers of the conditions and should, in conjunction with his Postgraduate Dean or his nominee, produce a written development plan to address his deficiencies. It is unnecessary to go into further detail since it has not been suggested on the appellant's behalf that, if the panel's decision that his professional performance had been seriously deficient is upheld, the conditions imposed were unreasonable.
- The appellant, who is a registered medical practitioner, has specialised in psychiatry. He was at all material times approved under Section 12 of the Mental Health Act 1983. In October 2001 he was appointed to the post of locum Consultant in adult psychiatry at St James University Hospital in Leeds. In August 2002 he was dismissed from that post. His medical director raised a number of concerns which he reported to the GMC. The concerns were in four areas, according to the medical director's letter of 6 September 2002, namely:-
"1. Complaints regarding attitude and manner towards patients and relatives.
2. Rigidity of diagnostic behaviour and related concerns regarding judgments in relation to use of the Mental Health Act 1983.
3. Reluctance to accept supervision or discussion in relation to concerns raised on clinical practice.
4. Basic qualifications or eligibility to act in the capacity of Consultant Psychiatrist, locum or otherwise. "
- I can deal with the concern about his qualifications shortly since it was accepted that he was entitled to be employed as a locum but not as a full time consultant. He had not in any way failed to disclose anything in his past work record and the qualifications he had obtained, but he had not passed examinations which could entitle him to membership of the Royal College of Psychiatrists. It was open to a Trust to employ him as a locum consultant notwithstanding that he did not have the qualifications for a full time post. Unfortunately, at that time St James was reliant on locum posts for its adult psychiatry department and they were all grossly overworked. No less than 7 locum consultants came and went after the appellant had left. It was accepted by the Panel that his working conditions made it very difficult for him to provide proper care to patients and that his working environment lacked many of the normal facilities available to consultants.
- However, the lack of qualifications was clearly a relevant matter for the Panel to consider when deciding on fitness to practise. It helped to confirm the conclusion that his training and qualifications so far attained were not sufficient to enable him to work safely as a consultant psychiatrist. On its own, it would not have sufficed to establish that the appellant's performance had been seriously deficient. The test is set out in the GMC's Guidance, as approved by the Privy Council in Sadler v GMC (Appeal No 59 of 2002), in these terms:-
"… a departure from good professional practice, whether or not it is covered by specific GMC guidance, sufficiently serious to call into question a doctor's registration. This means that we will question your registration if we believe that you have been, repeatedly or persistently, not meeting the professional standards appropriate to the work you are doing – especially if you might be putting patients at risk. This could include failure to follow the guidance in our booklet Good medical Practice."
Thus there must be an element of persistence in or repetition of conduct which falls below the appropriate standard.
- It is not necessary to set out the relevant rules. Suffice it to say that the process leading to a possible hearing before a Fitness to Practise Panel involves, if the practitioner is willing, an assessment by a body known as an assessment panel. The appellant agreed to undergo such an assessment. It took somewhat longer than otherwise should have been the case because of the appellant's ill health. It made its report in September 2003. It was adverse in a number of respects and the appellant did not accept that the criticisms were valid. In the result, the matter was referred to the Fitness to Practise Panel in January 2004. Due to the substantial number of witnesses who were to give evidence, many at the request of the appellant, the hearing which had been fixed for June 2004 had to be adjourned and eventually took place over 10 days in April 2005.
- The areas particularly identified to the appellant as being of concern to the GMC were as follows:-
"1. His alleged inappropriate attitude and manner towards patients and carers.
2. his alleged substandard clinical judgment and use of the Mental Health Act procedures and
3. his alleged unreasonable relationships with colleagues."
The assessment panel consisted of the lead assessor, a General Practitioner, with three others, one a lay member and the others two consultant psychiatrists. The assessment was in two phases. The first involved interviews of four who could broadly speaking be regarded as the authors or supporters of the referral to the GMC together with five of his colleagues or staff nominated by the appellant. In addition, the panel received and reviewed records of twenty cases selected at random by the lead assessor and five selected by the appellant. Unfortunately, the appellant fell ill in March 2003, when the assessment commenced, and so the second phase had to be adjourned until he had recovered. It took place in September 2003. It involved a number of consultations which the appellant held with role players and concluded with a final interview with him. I should say that there had been an initial interview before the appellant fell ill.
- The concerns about the way the appellant had dealt with patients focussed particularly on two cases. The patients concerned were referred to as AB and DE. I shall have to consider the circumstances of each in greater detail since the Fitness to Practise Panel's final decision was very much influenced by its findings in relation to those two cases.
- The assessment panel produced a lengthy and detailed report. I should set out its summary and recommendations and its findings in respect of the GMC's concerns which I have referred to in paragraph 6 above.
"We believe that the circumstances in which Dr Watson had to work made it difficult for him to provide proper care. His sector had insufficient junior staff and poor facilities. The Trust did not act on these issues.
We remain concerned about Dr Watson's health despite the statement by him that his health was satisfactory. During the phase 2 Dr Watson became distressed and tearful. He told us this was because the case reminded him of personal difficulties. In addition during our discussions there were several occasions when, when asked a question, Dr Watson became silent and gazed into space for long periods of time. Initially we felt he was considering a response but ultimately we decided this was not the case.
We believe Dr Watson's performance to have been seriously deficient in the following area: Audit. We consider Dr Watson may have been seriously deficient in the area of treatment of patients but because of a disagreement between Dr Watson and third parties concerning the facts of this matter we are unable to come to a conclusion.
We believe that Dr Watson's training has been inadequate for functioning at independent consultant status.
We believe Dr Watson's understanding of the mental health act is inadequate.
We draw the case co-ordinator's attention to the differing versions of the AB case. If Dr Lovell's version of events is correct then it appears that the Interim Orders Committee was misled. We also draw the case co-ordinator's attention to Dr Watson's allegations regarding Dr Newby.
In respect of the GMC Screener's concerns our findings are as follows:
1. alleged inappropriate attitude and manner towards patients and carers. Our opinion is that Dr Watson's attitude and manner towards patients with a diagnosis of personality disorder can be judgmental and sometimes unhelpful.
2. alleged substandard clinical judgment and use of the Mental Health Act procedures. We are of the opinion that Dr Watson's clinical judgment is on occasion inappropriate as is his use of the mental health act procedures.
3. alleged unreasonable relationships with colleagues. With several colleagues Dr Watson appears to have excellent relationship. However his approach to dealing with the medical director was inappropriate. "
- The conclusions of the assessment panel are not and were not regarded by the Fitness to Practise Panel (which I will refer to as the FPP) as in any way binding. But they were given considerable weight. The lead assessor, Dr Campbell, and the consultant psychiatrists gave evidence to the FPP. Judging from the transcript, they were clearly impressive witnesses. It is, indeed, not in the least surprising that a FPP should attach considerable weight to the conclusions of an assessment panel, subject only to recognising that those it interviewed had not been questioned on behalf of the doctor who was being assessed and to taking into account how the assessors responded to questioning on behalf of that doctor.
- At the commencement of the hearing before me, Mr Powell applied for leave to introduce evidence from an independent psychiatrist instructed on behalf of the appellant. Although the appellant had been represented by a firm of solicitors who had experience in dealing with cases before the GMC and at the hearing before the FPP had been represented by Mr Powell, he was concerned that he had never been advised that it might be helpful for him to have the benefit of the views of an independent psychiatrist upon the manner in which he had dealt in particular with AB and DE. Ms Sullivan objected on the ground that this evidence could have been called before the FPP and there was no good reason within the test laid down in Ladd v Marshall [1954] 1 WLR 1489, which in her submission was applicable, why that evidence should not have been presented then. The Practice Direction makes it clear that an appeal from the GMC is not limited to a review of its decision but that it amounts to a rehearing. But that does not mean that fresh evidence can automatically be considered since CPR 52.11(2) applies. It provides:-
"Unless it orders otherwise, the appeal Court will not receive –
(a) oral evidence, or
(b) evidence which was not before the lower court."
- The Privy Council rarely if ever had witnesses give evidence before it. There is no reason to believe that when Parliament provided that appeals should come to this court instead it intended to widen the scope of those appeals. In Nandi v GMC [2004] EWHC 2317 (Admin) I considered this question and observed that the Practice Direction 22.32, which disapplied CPR 52.11(1), was inappropriate. It may be that it reflected a view that Article 6 of the European Convention on Human Rights required fuller appeal rights since at that time there were doubts about the independence of the GMC committees. The reforms have established that the FPPs now have sufficient independence to mean that an appeal which is in the form of a review is all that is needed to comply with Article 6.
- In Nandi v GMC I went on to observe that it was very difficult to conceive of any circumstances in which it would be appropriate of this court to hear evidence. I recognise that this may have been somewhat too restrictive since this court would obviously hear evidence if persuaded that the interests of justice required it. But I am satisfied that that would rarely apply and the failure of an appellant, particularly if he was represented by competent advisers, to produce evidence before the FPP would not, unless there was a very good reason for the failure, establish that it was in the interests of justice that it should be heard. I should add that nothing in what I have said should prevent the submission of uncontentious additional evidence (for example, further testimonials or evidence which the Respondent accepts can properly be considered).
- The report of the psychiatrist was not agreed by the Respondent and so it would have been necessary to have him called and cross-examined if I were to accede to Mr Powell's submission. The fact that the appellant had not been advised that it would be helpful to obtain such a report cannot justify an attempt now to fill the gap. Fault of his advisers, if such there was, does not provide a good reason for introducing new evidence.
- I read the report. I was satisfied that it was not necessary in the interests of justice that it should be admitted. It was largely concerned with the case of AB. It said that the appellant's diagnosis and so his actions were appropriate. But it does not address the whole of the evidence called before the FPP. As will be apparent, the real concern was not so much with the correctness of the diagnosis and whether AB should have remained sectioned under the Mental Health Act but the manner in which the appellant dealt with him having regard to the history, in particular a serious assault upon a junior doctor. I have no doubt that the report would not have assisted the appellant even if I had thought it right to admit it.
- I come now to the case of AB. He had come to the casualty department with some female friends late on 12 March 2002. He had come from Nottingham where he had been diagnosed as suffering from a paranoid schizophrenic illness. He had been convicted of rape, for which he had received a 6 year sentence in 1997. He was a drug abuser, which did not help his schizophrenic condition. There was an obvious risk of sexual assaults if his mental state deteriorated. He was also prone to violence.
- AB was admitted to a ward as a voluntary patient. He was seen the next day by a Senior House Officer, Dr Lovell. He was agitated and spoke of hearing voices and showed signs of paranoia when Dr Lovell was speaking to AB's girlfriend over the telephone. Dr Lovell's opinion was that he should remain in hospital because he continued to be unwell. He objected and tried to force his way out, assaulting nurses and punching Dr Lovell in the process. He also made threats to kill Dr Lovell. Dr Holland, the registrar on duty, recommended that he should be detained under Section 3 of the Mental Health Act 1983. The necessary steps were taken, AB remaining detained in the meantime, and a section 3 order was made the next afternoon.
- The appellant was involved the next afternoon, 14 March 2002. He was aware that Dr Lovell had been assaulted by AB. He saw him at 4.10pm, having noted that he had assaulted Dr Lovell the previous day. He saw him for 20 minutes initially, which he accepted was insufficient to "get a good feel of the patient", but said he had subsequently seen him for a further 20 minutes, although he had failed to record that second consultation in his notes. He concluded that the Nottingham diagnosis was incorrect and that he did not require treatment in hospital. He recorded in his notes the following;-
"Plausible, superficially charming man with long history of dysfunctional destructive behaviour and poly drug abuse. He is not ill now but has a dissocial personality. Possible psychotic symptoms ….. may well have been due to illicit drug use. He does not require treatment in hospital. If anything he needs to be charged with assault on the ward."
- The appellant's case was that he wanted to ensure that AB would be arrested and put through the criminal justice system. The police, he believed, would not act if he were sectioned and so it was necessary that he should not be detained in the hospital. Dr Lovell's evidence was that the appellant told him of his decision to 'take AB off section' and that he should press charges and should inform AB's girlfriend. He said:-
"I essentially struck a deal with Dr Watson that he was to remain on section until the police could arrive and arrest him, and that I needed the opportunity to speak to the police, arrange to make a statement and than for AB to be arrested. Dr Watson informed that that would be possible and that I should make arrangements for that straightaway."
He sought to make the necessary arrangements but the appellant returned and said he had changed his mind and that he had rescinded the section, which had been imposed only some 30 minutes or so earlier following the formalities which had been put in motion by Dr Holland. Dr Lovell was extremely concerned, saying he feared for his life following AB's threats. By good fortune, AB was having a shower and so the police were informed and able to attend to arrest him before he left the hospital.
- The appellant's version was different. He denied that he had struck any deal with Dr Lovell. He wanted to ensure AB could be arrested and said that he had instructed the nursing staff to make use of powers under s.5 of the Mental Health Act to detain until he could be arrested. The nurse to whom he alleged he had given those instructions did not record them and denied that they had been given. The appellant also did not record them in his notes. In any event, there can be no doubt that the use of s.5 powers could not have been justified in the circumstances. The appellant accepted that that was 'quite possibly' correct but said he was prepared to do it "in order to maintain the safety of everybody concerned".
- Dr Burn, the Associate Medical Director for Doctors in Training in the Leeds Mental Health Trust, was contacted by Dr Lovell in a state of considerable distress. She spoke to the appellant and told him she thought his decision to go against the Nottingham diagnosis was unwise after so short an assessment. The appellant's response was that it was his responsibility. She felt that the release of AB raised urgent issues of public safety and she was worried that AB would be released in a state where he might harm somebody. She conveyed those concerns to the appellant.
- There can in my judgment be no doubt that, if Dr Lovell's version of events and that of the nurse were accepted, the appellant's actions fell far short of acceptable and were indeed seriously deficient. Even if his conclusion that AB was not then ill was reasonable, he ought to have appreciated that there were strong reasons in favour of a contrary view and his concern that AB should be prosecuted was not in itself a good reason for concluding that he should not be detained. If he was suffering from some form of mental disorder, he should have remained in hospital; prison is not normally the right disposal for such persons. The manner in which he dealt with the release was irresponsible and his failure to discuss the matter properly with Dr Lovell was inexcusable. Rigidity and arrogance are words which can properly be applied to his behaviour.
- The FPP clearly did not accept the appellant's evidence about AB. It said this:-
"The Panel heard that you had rescinded the section on AB without discussing this with colleagues who had invoked the section a short time before. It accepts the evidence of Drs Lovell, Newby and Flannigan that you had not handled the situation of patient AB effectively. The Panel was concerned about the serious nature of this event. "
It was entitled on the evidence placed before it to reject the appellant's account, which, in any event, was inconsistent with his own notes. If he was telling the truth, his record keeping was very poor.
- The case of DE was also considered in some depth. Dr Carmody, a consultant, was concerned at the appellant's decision that he should not be detained. He was a very complex patient suffering from schizophrenia, learning disability, deafness and behaviour disorder. He was a high risk individual who had spent time on a number of secure units including Rampton Hospital. He had a history of serious physical and sexual assaults. He had, however, been discharged by a Mental Health Review Tribunal. The concern was that the appellant had failed properly to take account of DE's history, but had limited his conclusion to DE's apparent condition when he assessed him. In his notes, the appellant recorded that his main problem appeared to be 'an unwillingness to bathe or shower' on the ward where he was at the time a voluntary patient. He concluded:-
"No evidence now of mental illness. Unable to recommend section3."
- The appellant said that he did consider the history and was not merely relying on the interview. He accepted that he had only referred to mental illness in his notes, but asserted that he had considered other forms of disorder too. The FPP had expert advisors. It was accepted that the Mental Health Act required (indeed, Article 5 of the European Convention on Human Rights made such a requirement inevitable) that detention should only be imposed if it was clearly necessary. The advice was:-
"… it was Dr Watson's contention that not putting the patient on section was the least restrictive of the options and, in my opinion, I do not think you could actually fault him on that."
The advisor clarified this the following day. He said this (Day 10/1B-C):-
"The advice I gave yesterday with regard to DE was based on the evidence given by Dr Watson in his response to my questions put to him yesterday. On Day 9, page 19, I specifically put to him whether he considered mental impairment under section 3. He said 'Yes'. My question to him then was:-
'But you chose not to make that recommendation?
He replied:-
'… I held that it was not required, and particularly in my view of one's requirement to try to preserve the civil liberties of the patient where possible. I did not hold that detaining him under the Act would confer any advantage in the current situation.'
If you accept his evidence, my advice is that he was acting in accordance with the Mental Health Act operating at the time."
The FPP concluded in relation to DE:-
"that although your knowledge and understanding of the relevant provision of the Mental Health Act was adequate, you did not apply it appropriately."
- Mr Powell complains that this flies in the face of the advisor's opinion. I disagree, since it is implicit that the FPP did not accept the appellant's evidence, which was not supported by his notes. It was in my judgment entitled to conclude that he had not dealt appropriately with DE.
- Mr Powell submitted that the FPP had a duty to give reasons and that those that it gave were inadequate. There is no statutory requirement for the FPP to give reasons for its decision. In Gupta v GMC [2002] 1 WLR 1691, the Privy Council refused to accede to an argument that there was nonetheless a duty imposed by law to give reasons. Gupta's case was concerned with an issue of credibility. At paragraph 14, Lord Rodger of Earlsferry said this:-
"Their Lordships … have rejected the submission that there is a general duty to give reasons in cases where the essential issue is one of the credibility or reliability of the evidence in the case. Nonetheless … the committee can always give reasons, if it considers it appropriate to do so in a particular case. Their Lordships would go further: there may indeed be cases where the principle of fairness may require the committee to give reasons for their decision even on matters of fact … Their Lordships are satisfied that no duty to give reasons arose in this case. That being so, they prefer to leave the questions of the existence of any such exceptional duty to give reasons, and of its scope, to be determined in a case where the point is live."
Lord Rodger had in the previous paragraph referred to the transcript of the evidence which could be used to reveal the reasons for the decision.
- Gupta's case was one involving an allegation of serious professional misconduct and so the relevant factual issues were set out in detail in the charge. In this case, the assessment panel produced a lengthy report which identified the concerns and this added to the referral letter gave all necessary information. It was, as I have already indicated, clear that the FPP rejected the appellant's evidence where it conflicted with that given by others or was not in accordance with his contemporaneous notes.
- However, good practice does in my view require that reasons should normally be given for decisions. They need not be at all lengthy and where credibility is in issue it will usually not be necessary to do more than indicate that the evidence of particular witnesses is accepted. When evidence has been given on particular matters and especially where the appellant has been cross examined about them, it may be unnecessary for the panel to do more than indicate its conclusions if it is apparent from the transcript why the particular decision has been reached. A failure to give reasons is not necessarily fatal to a decision, but it may enable an argument that a particular matter has not been properly taken into account to prevail.
- In this case, the Panel did give a reasoned decision. It was brief, but that is not a criticism. It pointed out that, despite the poor working conditions and the pressures that resulted, the standards applicable were those that applied to all doctors, namely those set out in Good Medical Practice, the guidance booklet published by the GMC. I have already identified what it said about AB and DE, but it is convenient to set out the relevant parts of the decision:-
"The Panel heard of your relationship difficulties with some colleagues at St James's Hospital and that there was a sufficient number of patient complaints about your inappropriate behaviour and attitude to cause the Panel concern. The Panel heard of instances when you failed to consult colleagues on important clinical matters. The Panel also heard that by your relationship with your Medical Director deteriorated to such an extent that you refused to meet with him to discuss the issues arising from the discharge of patient AB. The Panel heard that you had rescinded the section on AB without discussing this with colleagues who had invoked the section a short time before. It accepts the evidence of Drs Lovell, Newby and Flannigan that you had not handled the situation of patient AB effectively. The Panel was concerned about the serious nature of this event.
The Panel considers, in the case of DE, that although your knowledge and understanding of the relevant provision of the Mental Health Act was adequate, you did not apply it appropriately. In the case of AB, you displayed inadequate knowledge and understanding of the relevant provisions of the Act and applied them inappropriately.
In respect of audit, the Panel accepts that no audit structures were established at St James's Hospital. Nevertheless, it was concerned that you did not take part in any aspect of personal audit or reflective consideration of your practice. Moreover you did not review your practice in this regard.
Having considered all the evidence the Panel has judged the standard of your professional performance to have been seriously deficient in the areas of:
- Providing and arranging treatment
- Relationship with colleagues and teamwork
Constructive participation in audit and reflective practice
The Panel concurs with the Assessment Panel that your training and qualifications so far attained are not sufficient to enable you to work safely as a consultant psychiatrist.
The Panel considers that you have not demonstrated sufficient insight or understanding of the deficiencies in your performance and believe that this may indicate an underlying attitudinal shortcoming.
The Panel has however noted your dedication to patient care, obvious hard work and enthusiasm, as confirmed in the testimonials put before it."
- Mr Powell submitted that the FPP were wrong to have had regard to patient complaints. There were no more made against the appellant than against others of his colleagues and in any event all had been investigated internally and none had been upheld. Dr Campbell gave evidence about the system at the hospital for dealing with complaints. He described it as bizarre. Dr Flannigan, who was responsible for dealing with complaints, accepted that it was not satisfactory. It seems to have amounted to little more than obtaining a response from the doctor whose conduct was the subject of a complaint. In any event, the number of complaints is not the most material consideration; it is the nature of those complaints. They related to the appellant's attitude and in particular alleged that he had been arrogant and sometimes rude. There were also in evidence reports which the appellant had sent in relation to two patients which were inappropriate. In one, he had informed those responsible for dealing with disability allowance that the individual should be encouraged to go back to work and that he felt that 'removing people's responsibility for themselves by paying them excessive quantities of social security benefits is harmful to the patient in the long run'. In another, he wrote to a patient's GP in these terms:-
"I have just received a litinary (sic) of complaints from … and I feel that those are motivated by an outrageously exaggerated ……….. egocentric view of the world and I feel that I am no longer in a position to offer her psychiatric care."
- In the circumstances, the Panel was entitled to give weight to the complaints. They supported the general conclusion that the appellant's attitude to and so respect for patients was deficient.
- His conduct in relation to AB and DE in particular called into question his ability to work in a team. While there was evidence from various colleagues that he had a good relationship with them, again the circumstances of AB and DE showed that that was not always the case. There was also a real problem in his relationship with the Medical Director. There is no doubt that he did refuse to meet with him, although the appellant asserts that that was only because he wanted a representative of the MPS to attend. He produced a long document about the Director's psychiatric state. This ties in with a further ground of appeal that the Panel refused to permit a particular line of cross examination of the Director. It seems that the appellant had come across the Director some 10 years before when working at a particular hospital. He believed (although the information before me does not disclose any good reason for this belief) that the Director had homosexual tendencies. He wanted to be able to explore this because it was his excuse for not wanting to see him on his own. I am not at all surprised that the Panel took the view that that line of cross examination should not be permitted, particularly as at the time Mr Powell gave no good reason why it should. In reality, the document would not conceivably have helped his case: indeed, it must have harmed it since it showed a totally unreasonable attitude.
- Complaint is made that the FPP could not reasonably have found that the appellant's record keeping was seriously deficient. The assessment panel had not criticised his record keeping. He had admitted deficiencies in AB and DE, but the Panel had rejected his evidence and had relied on the records to support its conclusions. But the FPP had more material than the Assessment panel and in at least one case (see Day 8 page 50B-G) he accepted that there were deficiencies. I am bound to say that if this stood on its own, I would have had some difficulty in upholding it, but there was material which entitled the FPP to regard it as an additional factor in concluding that overall his performance was seriously deficient.
- In relation to audits and reflective practice, the specialist advisors had said that they were particularly concerned that the assessment panel had regarded the appellant's conduct as unacceptable. They went on:-
"Our feelings were that audit was something that should have been carried out within a whole Trust. We noted the comments that there appeared to be no audit activities within Leeds and therefore it was perhaps too harsh to say that the small piece of audit which Dr Watson himself did was unacceptable.
He had had no opportunity to have any formal appraisal."
This led Mr Powell to submit that it was unjust for the FPP to reject this advice without giving reasons why they did.
- In his evidence Dr Campbell explained why the assessment panel had reached its adverse conclusion. He pointed out that Good Medical Practice stated that a doctor should 'in particular take part in regular and systematic clinical audits'. There can be no doubt that the appellant did not do this. All that he had done was to tabulate the complaints after his dismissal. Dr Campbell preferred the term 'reflective practice' to 'audit' and the need for and importance of the exercise is obvious. Its absence tends to confirm the concern of an arrogant attitude. Thus in my view the FPP was not only entitled to reject the advice given but was in the circumstances fully justified in so doing.
- There is nothing in the further ground of appeal, which was not vigorously pursued, that some records referred to had not been produced to the appellant. There was quite enough material, as I have demonstrated, to justify the FPP's decision without the few additional matters which could not conceivably have tipped the balance.
- It follows that this appeal must be dismissed.
MR JUSTICE COLLINS: Ms Sullivan, I see that no-one is here on behalf of the appellant. I gather from my clerk that your clerk has told his clerk and I know my clerk has sent an email.
MS SULLIVAN: That is right, my Lord, and I have received your clerk's email and I also left a voice mail message for Mr Powell.
MR JUSTICE COLLINS: So there is no question but that he has had the information.
MS SULLIVAN: That is right, my Lord, and I also gave notice, as well, that I would be making an application for costs, so he is aware of that as well. Indeed, it would have been, in any event, from the events of 5th and 6th November and we have a summary assessment of costs.
MR JUSTICE COLLINS: Yes indeed. Well, I am grateful for your correction of a number of errors. I have spotted one further typo in paragraph 12 in the second line. It reads "in which it would be appropriate of this court". It should be "for this court". But, subject to that, I do not doubt that there may be others but I have not spotted them.
In any event then, for the reasons that are set out in the judgment that has been handed down, copies of which had been handed down in advance, I propose to dismiss this appeal.
Now, you have served -- I think, at some stage I saw it--
MS SULLIVAN: I have a spare copy here, my Lord, if that would assist.
MR JUSTICE COLLINS: I have it. It may be out of date, I do not know. But the copy I have got is a total of £10,755.
MS SULLIVAN: That is right, my Lord. We have not amended since then.
MR JUSTICE COLLINS: Well, clearly, you are, in principle, entitled to your costs and I do not imagine that there would be any opposition, or could reasonably any opposition, to that. On the other hand, the problem is that, without the appellant being represented, I think that any order that I propose to make ought to be qualified in the sense that they should have the opportunity to make any representations in writing. I am not going to say any oral representations, because that would be a waste of time and money. As I say, I would be very surprised if they were able to resist an application for costs because they would normally follow the event and I see no reason why that would not happen.
So far as the amount is concerned, I think really I would have to await representations on amount. I mean, there are two ways of playing this: one is to require submissions in writing to challenge the amount within eight days, giving him the opportunity, having seen whatever is said by yourself. I mean, I will deal with it on the papers. Alternatively, simply to make an order for detailed assessment. Which would you prefer?
MS SULLIVAN: Could I just take instructions, my Lord, on that. (Pause) The first option, please, my Lord.
MR JUSTICE COLLINS: Right. I mean, in principle, it seems to me that the amounts claimed are not in the least unreasonable, having regard to the substantial volume of paper to be gone through, and this was a two day hearing.
MS SULLIVAN: It was, my Lord, with quite wide-ranging grounds of appeal.
MR JUSTICE COLLINS: As you say, with quite wide-ranging grounds. So, I am happy to comment but it seems to me that the amount is reasonable. But, as I say, I think that it would be wrong for me to make an order without giving them the opportunity because there may be some good reason why they are not here.
MS SULLIVAN: Yes, my Lord, of course.
MR JUSTICE COLLINS: In that case what I shall say is that, in principle, I would award costs but the appellant must, within 14 days, if he wishes to challenge the amount or to award in principle, make submissions in writing, which he must obviously serve on you. You then have seven days to apply, if you wish, and then I will consider the question of costs on the papers.
MS SULLIVAN: Thank you, my Lord.
MR JUSTICE COLLINS: Right. I cannot see that there is any conceivable point of law or point which could concern the Court of Appeal in this.
MS SULLIVAN: No, neither can I, my Lord.
MR JUSTICE COLLINS: Suffice it to say that if there were an application for leave to appeal, my inclination would be to refuse it and I very much doubt I will grant that. I would simply again say that until the position is known in advance.
MS SULLIVAN: Thank you, that is helpful.
MR JUSTICE COLLINS: All right, thank you.
