AC-2025-LON-000408 - [2025] EWHC 2846 (Admin)

The procedure on appeal is set out in the Civil Procedure Rules Part 52. In relation to whether the appeal is a review or a rehearing and the appellate Court’s powers, it says this:

“Hearing of appeals

52.21

(1) Every appeal will be limited to a review of the decision of the lower court unless—

(a)

a practice direction makes different provision for a particular category of appeal; or

(b)

the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

(2)

Unless it orders otherwise, the appeal court will not receive—

(a)

oral evidence; or

(b)

evidence which was not before the lower court.

(3)

The appeal court will allow an appeal where the decision of the lower court was—

(a)

wrong; or

(b)

unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4)

The appeal court may draw any inference of fact which it considers justified on the evidence.

(5)

At the hearing of the appeal, a party may not rely on a matter not contained in that party’s appeal notice unless the court gives permission.”

The Court’s powers under CPR Part 52 to overturn a Tribunal’s decision are the same whether the procedure is a rehearing or a review.

There is a Practice Direction governing many statutory appeals (PD52D). Ignoring the irrelevant provisions, para. 19.1 deals with appeals against decisions relating to healthcare professionals. It applies to S.40 of the Medical Act 1983 and states:

“(2)

Every appeal to which this paragraph applies must be supported by written evidence and, if the court so orders, oral evidence and will be by way of re-hearing.”

During such a rehearing, the appeal court focusses on the grounds, usually re-analyses the relevant parts of the transcript of the live evidence and reads the relevant witness statements and the documents put before the Panel below and listens to the submissions, then determines whether the grounds of appeal are made out. Evidentially and procedurally, it is not a rehearing, it is a re-analysis of the evidence without live evidence (generally).

As for appeals under S.40A, the procedure is by way of review not rehearing because CPR PD52D para. 19.1 does not apply to them. What I have said at para 61 above applies word for word. It is not easy to see what the difference is, as Lord Burnett said in Bawa-Garba at para. 60. The test for granting an appeal under each route is the same under CPR r.52.21.

The parties did not disagree on the correct approach this Court should take to such appeals. The guidance from appellate Courts was neatly summarised into 9 points by Cranston J in Yassin v GMC [2015] 2995, at para 32.

“The authorities establish the following propositions:

i)

The Panel‟s decision is correct unless and until the contrary is shown: Siddiqui v. General Medical Council [2015] EWHC 1996 (Admin), per Hickinbottom J, citing Laws LJ in Subesh v. Secretary of State for the Home Department [2004] EWCA Civ 56 at [44];

ii)

The court must have in mind and must give such weight as appropriate in 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: Gosalakkal v. General Medical Council [2015] EWHC 2445 (Admin);

iii)

The Panel has the benefit of hearing and seeing the witnesses on both sides, which the Court of Appeal does not;

iv)

The questions of primary and secondary facts and the over-all value judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers: Meadows v. General Medical Council [197], per Auld LJ;

v)

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: Assucurazioni Generali SpA v. Arab Insurance Group [2003] 1 WLR 577, [197], per Ward LJ;

vi)

Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable: Southall v. General Medical Council [2010] EWCA Civ 407, [47] per Leveson LJ with whom Waller and Dyson LJJ agreed;

vii)

If the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel, and will only find it to be wrong if there are objective grounds for that conclusion: Siddiqui, paragraph [30](iii).

viii)

Reasons in straightforward cases will generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment is not required, the reasons will need to contain a few sentences dealing with the salient issues: Southall v. General Medical Council [2010] EWCA Civ 407, [55]-[56].

ix)

A principal purpose of the Panel‟s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession so particular force is given to the need to accord special respect to its judgment: Fatnani and Raschid v. General Medical Council [2007] EWCA Civ 46, [19], per Laws LJ.”

For appeals under S40A, Sharp LJ and Dingemans J in the Divisional Court in General Medical Council v Jagjivan [2017] 1 WLR 4438, summarised the approach in 8 points at paras. 39-40:

“The correct approach to appeals under section 40A

39.

As a preliminary matter, the GMC invites us to adopt the approach adopted to appeals under section 40 of the 1983 Act, to appeals under section 40A of the 1983 Act, and we consider it is right to do so. It follows that the well-settled principles developed in relation to section 40 appeals (in cases including: Meadow v General Medical Council [2006] EWCA Civ. 1390; [2007] QB 462; Fatnani and Raschid v General Medical Council [2007] EWCA Civ. 46; [2007] 1 WLR 1460; and Southall v General Medical Council [2010] EWCA Civ. 407; [2010] 2 FLR 1550) as appropriately modified, can be applied to section 40A appeals.

40.

In summary:

i)

Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceedings in the lower court’.

ii)

It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are ‘clearly wrong’: see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.

iii)

The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47).

iv)

When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).

v)

In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person’s fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36.

vi)

However there may be matters, such as dishonesty or sexual misconduct, where the court “is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …”: see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd’s Rep. Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 and 1923G, the appellate court “will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee’s judgment more than is warranted by the circumstances”.

vii)

Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.

viii)

A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal’s decision unjust (see Southall at paragraphs 55 to 56).”

I also take into account the well-known guidance on appeals by review of Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ. 5:-

“iv)

In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

v)

The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

vi)

Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”

The Panel’s professional expertise (Cranston J point (ii), Sharpe LJ point (v)) and role is taken into account in an appeal and deference and respect is given to that and to the three purposes behind that which the Panel is serving, namely: protection of the public, protection of the reputation of the medical profession (not punishment) and maintenance of high standards. On matters of medical practice and sanction the respect may be profound but the deference is not total. On issues of sexual assault, the Panel’s medical practice experience is less relevant and less deference is likely due.

Determination of sanction is an area where deference to professional judgment is definitely applied. An analysis of the correct +approach was provided by the LCJ Burnett, Sir Terrence Etherton MR and Rafferty LJ in Bawa-Garba v GMC [2018 EWCA civ 1879, between paras. 60 and 67. The GMC appeal in the case before me relates to sanctions. In an appeal concerning the determination of sanctions, guidance was given by Laws LJin Raschid v GMC [2007] EWCA Civ. 46; 1 WLR 1460:

“17.

The first of these strands may be gleaned from the Privy Council decision in Gupta v General Medical Council [2002] 1 WLR 1691, para 21, in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:

“It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 517—519 where his Lordship set out the general approach that has to be adapted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: “The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.” Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.”

18.

The panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This, as it seems to me, engages the second strand to which I have referred. In Marinovich v General Medical Council [2002] UKPC 36 Lord Hope of Craighead, giving the judgment of the Board, said:

“28.

. . . In the Appellant’s case the effect of the committee’s order is that his erasure is for life. But it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.

“29.

That is not to say that their Lordships may not intervene if there are good grounds for doing so. But in this case their lordships are satisfied that there are no such grounds. This was a case of such a grave nature that a finding that the Appellant was unfit to practise was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the Appellant of the imposition of the penalty. Their Lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case, while undoubtedly severe, was wrong or unjustified.”

19.

There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffmann giving the judgment of the Board in Bijl v General Medical Council [2002] Lloyd’s Rep Med 60, paras 2 and 3, which with great respect I need not set out. As it seems to me the fact that a principal purpose of the panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millett’s observations in Ghosh v General Medical Council [2001] 1 WLR 1915, 1923, para 34:

“The Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee’s judgment more than is warranted by the circumstances.”

20.

These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court’s role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.”

Cranston J’s point (v) and his other points were summarised, in appeals against findings of fact, in R (Dutta) v GMC [2020] EWHC 1974 (Admin). Warby J summarised the approach in 7 points, which are helpful in defining the ambit of when an appellate Court will overturn a finding of fact (there was a long list of citations in the Appendix to the report):

“20.

… This is a challenge to the Tribunal’s fact-finding processes at Stage 1. A specialist Tribunal may of course have specialist expertise that is relevant at that stage, but this is not such a case. If the Court finds that the Tribunal went wrong at the first stage, it should quash the conclusions at all three Stages, unless persuaded that the error would have made no difference to the outcome. That, as Ms Hearnden rightly accepts, is a high threshold, which is not readily satisfied: R (Smith) v North Eastern Derbyshire Primary Care Trust [2006] 1 WLR 3315, 3321.

21.

Bearing that in mind, the points of most importance for the purpose of this case can be summarised as follows:

(1)

The appeal is not a re-hearing in the sense that the appeal court starts afresh, without regard to what has gone before, or (save in exceptional circumstances) that it re-hears the evidence that was before the Tribunal. “Re-hearing” is an elastic notion but generally indicates a more intensive process than a review: E I Dupont de Nemours & Co v S T Dupont (Note) [2006] 1 WLR 2793 [92-98]. The test is not the “Wednesbury” test.

(2)

That said, the Appellant has the burden of showing that the Tribunal’s decision is wrong or unjust: Yassin [32(i)]. The Court will have regard to the decision of the lower court and give it “the weight that it deserves”: Meadow [128] (Auld LJ, citing Dupont [96] (May LJ)).

(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 [6(a)], 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 [6(a)].

(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)].

(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 [6(a)] and cases there cited, which include Raschid and Gupta (above) and Meadow [125-126], [197] (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 [6(c)], citing Southall [47] (Leveson LJ).”

Ms Grey KC placed reliance on a passage from Southall, at para. 47, where Leveson LJ observed that:

This Court must take into account that it is at a disadvantage when assessing the credibility of the witnesses who gave evidence in person at the Panel hearing. The Panel heard and saw Ms A, Dr Foy and the other witnesses give evidence, this Court did not. However, in relation to decisions of fact in sexual misconduct cases the deference to medical expertise is lower and likewise in relation to inferences of fact (or secondary findings of fact). The standard of proof to be applied by the panel is the civil standard of balance of probabilities. Where the allegations and the potential consequences for the registrant are particularly serious, the correct approach is that there is only one civil standard of proof in all civil cases. There is no heightened civil standard of proof in particular classes of case. In particular, it is not correct that the more serious the nature of the allegation made, the higher the standard of proof required. Intense analysis and focus on the evidence is required for such serious charges. The inherent probability or improbability of an event is a matter which can be taken into account when weighing the probabilities and in deciding whether the event occur red. Where an event is inherently improbable, it may take better evidence to persuade the judge that it has happened. This goes to the quality of evidence. Whilst the court may take account of inherent probabilities, there is no logical or necessary connection between seriousness and probability.

I take into account that the assessment of the credibility of witnesses must involve an understanding about the unreliability of human memory and should be considered and tested by reference to objective facts, in particular those shown in contemporaneous documents. Where possible, factual findings should be based on objective facts as shown by contemporaneous documents, see Warby J in Dutta at paras. 39 to 42. Demeanour may in some cases be a relevant factor and the panel is best placed to assess this but there are powerful warnings about placing too much weight upon it, see Dutta para 42 and Khan at para 110. In a case such as this appeal where the complainant provides an account, and the registrant denies the events occurred, with no independent evidence, no forensic evidence and no other direct witnesses, it is commonplace for there to be inconsistency and confusion in some of the detail. The task of the panel is to consider whether the core allegations are true.

One of Dr Foy’s grounds of appeal is a lack of sufficient reasons. Rule 17(2)(j) of the FTP Rules requires the Panel to give reasons for its findings of fact. In Southall, Leveson LJ ruled thus:

The scope of the duty to give reasons is a flexible one dependent on the complexity of the facts of the case and the need for fairness in explaining to the losing party the decisions of fact and the decisions on the credibility of the witnesses, so that the losing party on any point can understand why the decisions were reached and consider whether to appeal.