Mahfouz v Professional Conduct Committee Of General Medical Council

An appellate court may remit a disciplinary matter to a fresh tribunal for pragmatic reasons, including avoiding further cost, delay and procedural difficulty, even where the existing tribunal is considered capable of continuing fairly. Such an order does not necessarily constitute relief to which the appellant is legally entitled, imply criticism of the original tribunal, or amount to a victory on the underlying fairness issue. Where an appeal succeeds because a short adjournment should have been granted, practical consequences may be left to the tribunal, assisted by its legal assessor. Costs remain governed by the substantive success on the appeal, not by the pragmatic choice to use a fresh tribunal.

The appellant challenged decisions concerning proceedings before the Professional Conduct Committee of the General Medical Council. The original appeal concerned the Committee’s refusal to discharge itself after reading newspaper articles containing material of which it would not and should not have been aware, and its refusal to adjourn briefly so that the appellant could challenge that ruling in the Administrative Court. The Court of Appeal dismissed the first aspect but allowed the second, holding that a short adjournment should have been granted. The appellant then sought a rehearing before a wholly fresh tribunal, relying on grounds concerning evidence, alleged antagonism or bias, and convenience which had not previously been argued. The central issue was the appropriate relief following the partial success of the appeal.

Waller LJ delivered the judgment, with Sedley LJ and Carnwath LJ agreeing.

1. Earlier appellate decision. The appeal was dismissed insofar as it challenged the Committee’s continuation of the proceedings. The Committee had been entitled to continue hearing the matter. The appeal was allowed insofar as the Committee had unreasonably refused a short adjournment to permit a challenge in the Administrative Court.
2. Relief sought. The earlier judgment contemplated that the matter would return to the original tribunal. Practical difficulties caused by the delay were to be addressed by that tribunal with the assistance of its legal assessor. The appellant’s entitlement to a fresh tribunal had not been argued or determined on the adjournment aspect of the appeal.
3. Pragmatic rehearing. The court found little merit in the alleged evidence of antagonism or bias. It nevertheless considered that referring the matter to a fresh tribunal would avoid further costs, delay and procedural complications. The order was made for pragmatic reasons only. It did not mean that the appellant was entitled to that relief, that the appeal had succeeded on the underlying fairness issue, or that the original tribunal had been criticised or considered incapable of acting fairly.
4. Costs and permission. The pragmatic order did not alter the proper approach to costs. The appellant was ordered to pay 50 per cent of the respondents’ costs, subject to detailed assessment, with an interim payment of £10,000 within 28 days. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): The appeal was dismissed on the challenge to the Committee’s continuation of the proceedings but allowed on the refusal to grant a short adjournment. For pragmatic reasons, the matter was remitted to a fresh tribunal. [2004] EWCA Civ 431
• High Court, Queen’s Bench Division: Davis J had refused relief concerning the Committee’s decision to continue the proceedings and had addressed the challenge to the refusal of an adjournment.