AC-2023-LON-002171 - [2024] EWHC 132 (Admin)

The appeal is brought under section 29(3) of the Dentists Act 1984 (para 1 above). The Court may dismiss the appeal or allow the appeal and quash the decision and substitute a different decision within the range that could have been imposed by the PCC or remit the case.

In Wasu v GDC [2013] EWHC 3782 (Admin) (“Wasu”) Haddon-Cave J (as he then was) identified the correct approach for this Court to take as follows:

“16.

The approach to an appeal pursuant to s.29 of the Dentists Act 1984 can be summarised as follows:

(1)

An appeal pursuant to s.29 of the Dentists Act 1984 is by way of rehearing...

(2)

...

(3)

The Court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural, or other irregularity in the proceedings before the lower tribunal...

17.

The general principles applicable to an appeal against a decision of a professional Disciplinary Committee of this sort can be summarised as follows:

(1)

The Court will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;

(2)

The Court will have regard to the fact that the tribunal has had the advantage of hearing the evidence from live witnesses;

(3)

The Court should accordingly be slow to interfere with decisions on matters of fact taken by the first instance body;

(4)

Findings of primary fact of the first instance body, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;

(5)

Where what is concerned is a matter of judgement and evaluation of evidence which relates to areas outside the immediate focus of interest and professional experience of the body, the Court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be ‘wrong’ or procedurally unfair.”

Sastry v General Medical Council [2021] EWCA Civ 623, [2021] 1 WLR 5029 emphasises that the degree of deference to be accorded to the findings of the first instance body will depend upon the circumstances. Giving the judgment of the Court of Appeal, Nicola Davies LJ said:

“103.

The courts have accepted that some degree of deference will be accorded to the judgment of the tribunal but, as was observed by Lord Millett at para 14 in Ghosh, ‘the Board will not defer to the Committee’s judgment more than is warranted by the circumstances’. In Preiss [2001] 1 WLR 1926, at para 27, Lord Cooke stated that the appropriate degree of defence will depend upon the circumstances of the case; Laws LJ in Raschid and Fatnam [2007] 1 WLR 1460, in accepting that the learning of the Privy Council constituted the essential approach to be applied by the High Court on a section 40 appeal, stated that on such an appear material errors of fact and law will be corrected and the court will exercise judgment but it is a secondary judgment as to the application of the principles to the facts of the case (para 20)...”

In Byrne v General Medical Council [2021] EWHC 2237 (Admin) Morris J reviewed the circumstances in which the Court hearing the appeal would interfere with findings of primary fact (as opposed to findings of secondary fact or evaluative judgment). In the passage cited below he referred to Thomas v Thomas [1947] AC 484, Libman v General Medical Council [1972] AC 217, Gupta v General Medical Council [2001] UKPC 61, [2002] 1 WLR 1691, Casey v General Medical Council [2011] NIQB 95, Perry v Raleys Solicitors [2019] UKSC 5 and R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin):

“14.

...the circumstances in which the appeal court will interfere with primary findings of fact have been formulated in a number of different ways, as follows:

-

where ‘any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusion’ per Lord Thankerton in Thomas v Thomas approved in Gupta;

-

findings ‘sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread’ per Lord Hailsham in Libman;

-

findings ‘plainly wrong or so out of tune with the evidence properly read as to be unreasonable’ per in Casey at §6 and Warby J (as he then was) in Dutta at §21(7);

-

where there is ‘no evidence to support a...finding of fact or the trial judge’s finding was one which no reasonable judge could have reached’ per Lord Briggs in Perry...”