AC-2024-LON-001145 - [2025] EWHC 2075 (Admin)

Departing from the structure and, at times, the substance of his skeleton argument, Mr Ojo argued Grounds 1 and 3 together. Under Ground 1, he submitted that the abuse of process decision was flawed in so far as the MPTS failed properly to investigate the appellants’ allegation of less favourable treatment on grounds of race. The failure to investigate this central part of the appellants’ case undermined “the fairness and integrity of the Tribunal and the determinations on the facts.”

Under Ground 3, Mr Ojo submitted that the MPTS was wrong to find that the GMC officers handling the case were not aware of Dr Strommer’s Northern European ethnic background, as compared to the appellants’ BAME backgrounds. He submitted that the MPTS was in no position to make findings as to the knowledge of the GMC’s decision-makers when no evidence of their knowledge had been adduced by the GMC.

In support of Grounds 1 and 3, Mr Ojo submitted that the essential plank of the appellants’ application for the proceedings to be stayed as an abuse of process was that the appellants had been the victims of race discrimination. Given the centrality of the arguments on discrimination, the MPTS had failed to give adequate reasons for the abuse of process decision.

Mr Ojo referred to the judgment of HHJ Stephen Davies in which the judge had commented that any concerns about discrimination on grounds of race had to be investigated further. He submitted that, from the date of that judgment, it ought to have been obvious to the GMC that the question of race discrimination should be investigated properly. He submitted that, in any proceedings before the MPTS, there would need to be a thorough investigation of a complaint of race discrimination with witnesses and cross-examination.

Mr Ojo emphasised that the MPTS knew that Dr Strommer had not been investigated. The GMC Case Examiner who had determined that he should not be investigated did not make adequate inquiries. In light of the very serious allegation of race discrimination, the Case Examiner ought to have ascertained Dr Strommer’s race. In any event, it should have been obvious from Dr Strommer’s name that he was not the same race as the appellants.

Mr Ojo criticised the MPTS for finding that the Case Examiner did not know Dr Strommer’s race without any evidence to support that finding. He submitted that the MPTS ought to have heard evidence from the Case Examiner as to what he did, or did not, know of Dr Strommer’s race. He complained that the Case Examiner had not been presented for cross-examination. Mr Ojo criticised the MPTS for taking the written decision of the Case Examiner at face value which he submitted was unfair.

I do not agree that the abuse of process decision is flawed on these grounds.

The MPTS heard submissions on abuse of process over the course of more than one day. During that time, the appellants had ample opportunity to request that the submissions should be adjourned in order for the MPTS to make some further investigation, whether about the state of knowledge of GMC decision-makers or Dr Strommer’s race or ethnicity, which remains unevidenced. I have been provided with no authority and no reason of principle to suggest that, absent any request by the appellants, the MPTS should have initiated an inquiry of its own. In the absence of any request by the appellants, the MPTS cannot be criticised for proceeding to hear and determine the arguments on the evidence before it.

The observations of HHJ Stephen Davies make no difference. Mr Ojo alighted on a turn of phrase in the judge’s judgment – that the question of discrimination had to “be investigated further” by the MPTS. However, Mr Ojo gave those words a meaning that, in context, they cannot bear. HHJ Stephen Davies did not say that the MPTS was under a legal duty to investigate matters that were not properly evidenced. He meant that questions of race discrimination were a matter for the MPTS to consider at the final hearing and not for him to determine at that stage.

As to the conduct of the GMC, I have been directed to no evidence that the Case Examiner was aware of Dr Strommer’s race. Counsel for the GMC informed the MPTS that the Case Examiner did not know Dr Strommer’s race. There is no evidence to suggest that the Case Examiner or anyone else at the GMC knew his race. Even at this appellate stage, I have been directed to no evidence on the point.

Counsel who represented the GMC in the MPTS proceedings did not adduce evidence from the Case Examiner but stated on instructions that Dr Strommer’s race was not known. The MPTS accepted what Counsel said but also relied on the fact that the appellants had not made any challenge to what Counsel for the GMC had stated. It was open to the appellant to make such a challenge. In the absence of any challenge, the MPTS was in my judgment entitled to treat a statement by Counsel as correct.

The MPTS considered the question of race discrimination in detail and came to a reasoned conclusion in its written decision. The contention that the MPTS gave inadequate reasons cannot be sustained.

In short, the Tribunal’s conclusion that the Case Examiner did not know Dr Strommer’s race is not open to criticism in this court. As the GMC were unaware of Dr Strommer’s race, the MPTS was entitled to conclude that the GMC did not discriminate against the appellants by refraining from investigating Dr Strommer. I would agree with the reasoning of Mr Bowen KC in this regard.

Grounds 1 and 3 have no merit. They are dismissed.