Lynch v General Dental Council

In judicial review of an expert disciplinary or professional assessment, the court must preserve the distinction between reviewing legality and deciding factual or expert disputes. Fresh expert evidence is generally inadmissible, but may exceptionally be admitted to explain technical processes and their significance where the court needs that assistance to perform its reviewing function. A tribunal’s reasons must identify the important matters leading to its decision; a bare statement that the applicant has failed to establish the case is insufficient. Where reasons are inadequate and appear to reflect a failure to consider material evidence or a material misunderstanding, the decision may be quashed if the result might have been different. A rehearing should ordinarily be before a fresh panel and should assess the applicant’s expertise at the date of the rehearing.

The claimant, an Australian-qualified dentist practising as an orthodontist, applied for entry on the specialist orthodontic list under transitional provisions based on training, qualifications or experience. His application was refused, and an appeal panel dismissed his appeal. The panel stated that there was insufficient evidence of the required expertise, but gave short reasons which arguably misunderstood or overlooked evidence of his Australian practice and the significance of supporting material. An application to set aside the determination was refused by the Director of Appeals. The claimant sought judicial review on grounds including irrationality, inadequate reasons and procedural unfairness. The central issues were whether the panel’s reasons and assessment were legally defective, whether fresh expert evidence could be admitted, and what relief should follow.

1. Claim allowed. The appeal panel’s decision of 30 October 2001 and the Director of Appeals’ refusal in February 2002 were quashed. The claimant’s appeal was remitted for rehearing before a fresh appeal panel.
2. The panel was entitled to require evidence demonstrating expertise equivalent to that expected of a dentist holding a CCST. The claimant bore the burden of establishing his case, and the panel was not required to advise him how to remedy deficiencies in his evidence. However, where the panel attached substantial importance to the absence of supporting material, fairness and the circumstances of the case required that significance to be made clear, particularly because the claimant was unrepresented and the guidance indicated that treatment logs and structured references might be relevant.
3. A decision-maker’s reasons need not be lengthy, but they must identify the important matters which led to the decision. It was insufficient merely to state that the applicant had not established his case. The panel’s reasons were defective because they failed adequately to explain why supporting evidence was of marginal assistance, appeared to misunderstand evidence concerning the claimant’s Australian practice, and did not explain the conclusion that the evidence did not cover the range of procedures expected of a specialist.
4. The later statements of panel members could be considered, but with caution. Applying the approach in R v Westminister City Council ex p. Ermakov, subsequent statements could not simply provide a wholesale amendment or reversal of defective reasons. The court concluded that the decision was not irrational merely because it was open to the panel on the material before it. It was unlawful because the inadequate reasons were associated with a failure to have regard to material matters and possible material misunderstandings, creating a real possibility that the result might have differed.
5. Expert evidence in judicial review must not usurp the court’s function or invite it to resolve factual disputes. In a truly technical field, however, expert evidence may exceptionally explain technical terms, processes and their significance. Such cases will be rare, and evidence challenging the factual conclusions or expert judgment of an expert tribunal will ordinarily be inappropriate.
6. The rehearing was not limited to the evidence or experience available in October 2001. The claimant’s expertise was to be assessed as at the date of the rehearing, since the defective original process had caused the delay.

• High Court (Administrative Court): Mr Justice Collins quashed the appeal panel’s decision and the Director of Appeals’ refusal, and directed a rehearing before a fresh appeal panel.
• Earlier procedural decisions: A Deputy High Court Judge refused admission of the claimant’s original expert reports. The Court of Appeal refused permission to appeal but varied the order so that the admissibility of revised expert evidence was left to the trial judge.