AC-2025-LON-000160 - [2025] EWHC 3006 (Admin)

There was no real controversy about the approach to adopt on this appeal. There is an unqualified right of appeal to the High Court under section 29(1) of the Dentists Act 1984 against determinations on the facts, impairment and sanction. Under CPR rule 52.21(3) the 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.”

A number of the challenges made by Mr Mobasseri to the PCC’s determination are challenges to findings of fact, both challenges to findings of primary fact and to inferences drawn from those primary facts. Mr Horne referred to the hurdle Mr Mobasseri had to surmount in this respect as a high one. The principles were helpfully distilled by Morris J in Byrne v General Medical Council [2021] EWHC 2237 (Admin), a case dealing with an appeal from the General Medical Council, but it was common ground that the same approach applied to appeals under the Dentists Act. At paragraphs 12-15 Morris J explained:

“First, the degree of deference shown to the court below will differ depending on the nature of the issue below; namely whether the issue is one of primary fact, of secondary fact, or rather an evaluative judgment of many factors: Assicurazioni Generali at §§16 to 20. …

Secondly, … [t]he starting point is that the appeal court will be very slow to interfere with findings of primary fact of the court below. The reasons for this are that the court below has had the advantage of having seen and heard the witnesses, and more generally has total familiarity with the evidence in the case. A further reason for this approach is the trial judge’s more general expertise in making determinations of fact …

Thirdly, in exceptional circumstances, the appeal court will interfere with findings of primary fact below …

Fourthly, 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:

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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 conclusions”: per Lord Thankerton in Thomas v Thomas approved in Gupta;

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

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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);

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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 after analysis of McGraddie and Henderson.”

Ms Tahta, appearing from the GDC, did not take issue with that approach. She referred to similar principles that were set out by Morris J in Ali v SRA [2021] EWHC 2709 (Admin) at paragraph 94, where in addition the judge said:

“Finally, as regards reasons, decisions of specialist tribunals are not expected to be the product of elaborate legal drafting. Their judgments should be read as a whole; and in assessing the reasons given, unless there is a compelling reason to the contrary, it is appropriate to take it that the Tribunal has fully taken into account all the evidence and submissions …”.

Mr Horne pointed out that the appeal was a rehearing, rather than a review, though accepted that nothing of real relevance turned on any distinction between the two in this context. In Byrne Morris J noted at paragraph 16 that there was little or no relevant distinction in this context to be drawn between “review” and “rehearing” when considering the degree of deference to be shown to findings of primary fact, although there may be a relevant difference when the court is considering findings of evaluative judgment or secondary or inferential findings of fact, where the court will show less deference on a rehearing that on a review. Mr Horne confined himself in this respect to referring me to what was said by Ritchie J in Balachandra v the General Dental Council [2024] EWHC 18 (Admin) at paragraph 8:

“This is a “rehearing” not a review. However, in my judgment the word “rehearing” is misleading. The appellate Court does not re-hear or re-see any live witnesses. Instead, what the appellate Court does is re-analyse the transcript of the evidence and the bundles of evidence put before the PCC. So, it is actually an appeal by way of reanalysis, not a full rehearing.”

In terms of the appeal against sanction, Mr Horne summarised the relevant approach in the following propositions drawn from paragraphs 102-103 of the judgment of the Court of Appeal in Sastry v General Medical Council [2021] EWCA Civ 623 (in an equivalent appeal under section 40 of the Medical Act 1983), propositions with which Mr Tahta confirmed the GDC agreed:

I will deal with the grounds of appeal in the way and the order in which they were presented by Mr Horne, which involved some refinement of the written grounds of appeal.