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

In the second set of judicial review proceedings, the appellants had the benefit of Leading and Junior Counsel (Jason Coppel KC and Oliver Jackson). The essence of the challenge mounted by Counsel is contained in the introductory section of their grounds for judicial review:

“2.

The GMC has been subject to long-standing concerns that its processes and procedures are susceptible to and enable racial discrimination. As set out below, both an independent report commissioned by the GMC and an investigation by the BBC have established that an ethnic minority doctor is more than twice as likely to be referred to the GMC than a white doctor, and that the GMC is significantly more likely to investigate and sanction ethnic minority doctors. The GMC does not dispute, and indeed has positively accepted, these findings.

3.

Against that background, the present claim concerns a determination made by the MPTS in the context of… proceedings brought by the GMC against the Claimants. At the conclusion of the GMC’s case, the Claimants, who are both from ethnic minority backgrounds, applied for a stay for abuse of process on the grounds that the proceedings amounted to direct race discrimination. The GMC had not brought proceedings against a white doctor, Dr Strommer, in respect of whom exactly the same issues applied as the Claimants. Nor had the GMC provided any credible explanation as to why it had not done so. Instead, the GMC resorted to the unlikely arguments that, amongst other things, its officers were not aware of Dr Strommer’s ethnic background, despite them knowing his name at the time of the relevant decisions and that name very clearly indicating his Germanic heritage.

4.

The MPTS accepted the GMC’s arguments and dismissed the Claimant’s application in a determination dated 18 July 2023 (the “Determination”). This is the decision under challenge in these proceedings…”

The grounds for judicial review were expressed in the following terms:

“(1)

The MPTS applied the wrong legal test in relation to the burden of proof applicable to a claim of direct discrimination. As required by section 136 of the [EA 2010] the MPTS was required to consider whether the Claimants had put forward a prima facie case of discrimination, before then considering whether the GMC could demonstrate that its proceedings against the Claimants did not amount to direct discrimination. It failed to do so (“Ground 1”).

(2)

The Determination was based on irrelevant considerations, failed to take into account relevant considerations and/or was irrational. In particular, the MPTS was wrong to find that the GMC officers handling the case were not aware of Dr Strommer’s ethnic background… (“Ground 2”).

(3)

The MPTS was wrong to find that Dr Strommer was not a suitable comparator for the purposes of the discrimination analysis… (“Ground 3”).”

Pausing there, the grounds were therefore threefold and concerned (i) the burden of proof in a direct discrimination claim; (ii) the reasonableness of the abuse of process decision; and (iii) the position of Dr Strommer who was said to be a suitable comparator for assessing whether the appellants had suffered discriminatory treatment. All three of these grounds are reiterated in the present appeal.

In a decision dated 11 October 2023, Mr Paul Bowen KC, sitting as a Deputy Judge, refused permission to apply for judicial review on the papers. In doing so, he considered the merits of the grounds of challenge and refused permission on the basis that the grounds were not arguable.

The Deputy Judge’s key conclusion, on which his decision turned, was that the MPTS was unarguably entitled to find that GMC decision-makers did not know the race of Dr Strommer. The Deputy Judge held (referring to the appellants either as “the Cs” or as “the Claimants”):

“Ground 2 asserts that the Tribunal made a finding of fact that was irrational, namely that the GMC decision-makers who decided not to proceed with an investigation against Dr. S were unaware of his race. The Cs must succeed on this ground to get anywhere with this claim; if it fails, the claim fails. In my judgment the ground is unarguable…

In the present case, the MPTS accepted the evidence of the GMC that its decision-makers did not know the race of Dr. S when they made their decision. That was not challenged by the Cs’ counsel, Mr. Ojo (para 62, 67 of the Determination). The Claimants now assert that it should have been obvious to the GMC decision-makers from his name (which is said to be ‘Germanic’) that Dr. S was of Northern European ethnicity, and that it was ‘equally obvious’ that the Cs’ names revealed they were of African and Asian ethnicity, respectively… Such nominative discrimination is, of course, possible. But in the face of an explicit finding by the MPTS that the GMC decision-makers did not know the ethnicity of Dr. S, which went unchallenged by the Cs before the MPTS, the Claimants fall far short of demonstrating that finding was irrational.”

Dealing with the appellants’ complaint about the burden of proof applied by the MPTS, the Deputy Judge held:

“Without a factual finding (step 1) from which an inference of discrimination could be drawn (step 2) then the point is moot. In any event, I accept the Defendant’s submission… that, read fairly and as a whole, the MPTS did have in mind the two-stage approach.”

Dealing with the question of whether Dr Strommer was a proper comparator, the Deputy Judge held:

“As to Ground 3 – that the MPTS erred in its finding that Dr. S was not a proper comparator because he was in a different position – this also is a moot point in light of my conclusion on Ground 2. Again, in any event I accept in substance the Defendant’s points… that the MPTS’ conclusion on this issue was reasonable and lawful.”

Having found that the grounds for judicial review were not arguable, the Deputy Judge made observations on whether it was in any event appropriate to launch a challenge in the Administrative Court or whether the appellants had an adequate alternative remedy in the MPTS. He said:

“The Defendant also argues that permission should be refused because there is an alternative remedy, namely an appeal against any eventual finding of the MPTS that is appealable under s 40 Medical Act 1983, for example if the MPTS gives a direction for the erasure, suspension or conditional registration of the Cs. I had no submissions from the Cs on this point and, given my other conclusions, I make no ruling upon it, but it seems to me the argument has some force.”

The Deputy Judge considered of his own motion that another alternative remedy would be a discrimination claim against the GMC under the EA 2010 in the County Court under section 114 of the EA 2010. However, he made no ruling on that issue as the point had not been taken by the GMC and the claim was in any event unarguable.

Following the Deputy Judge’s refusal on the papers, the appellants applied on 17 October 2023 to renew their application at an oral hearing. On 27 November 2023, the Administrative Court sent details to the parties about listing the renewal hearing. By letter to the Court dated 13 December 2023, the appellant’s solicitors withdrew the judicial review claim, stating that the renewal application had been overtaken by events.