Colman v General Medical Council

When deciding whether to permit an amendment, strike out a claim or grant permission to appeal, the court must apply the relevant real-prospect-of-success test. It must not conduct a mini-trial or determine disputed merits on the balance of probabilities. A claim may nevertheless be refused where it cannot realistically establish breach or damage, or where the pleading remains inadequate after repeated attempts. Case-management decisions concerning adjournments and costs attract substantial appellate restraint. Being a litigant in person does not, by itself, explain serious delay or establish another compelling reason for an appeal.

Dr Colman brought proceedings against the General Medical Council under several heads, including the Data Protection Act 1998. McCombe J refused her application to amend her particulars of claim and struck out the proceedings. She sought permission to appeal that order.

She also sought permission to appeal against a costs order made by Master Foster following an adjournment in proceedings concerning a stay. Gray J refused an adjournment and refused permission to appeal. The Court of Appeal therefore considered whether the correct real-prospect test had been applied to the proposed amendment and whether either application disclosed a real prospect of success or another compelling reason for an appeal.

1. Merits application. Both applications for permission to appeal were determined by Lord Justice Rix and refused. The court accepted that, on an application to amend pleadings or under CPR 3.4(2) or CPR 24.2, it is wrong to conduct a mini-trial or apply the balance of probabilities. The question is whether the proposed claim has a real prospect of success.
2. McCombe J had applied that test. His use of terms such as fanciful, inconceivable and not even arguable showed that he had not conducted a trial. The proposed Data Protection Act 1998 claim had no real prospect of establishing breach or damage. Under section 13, distress alone was insufficient. The pleaded pain could not realistically result from the alleged breaches.
3. The pleading was also wholly inadequate and insufficiently particularised. The judge was entitled to refuse a third attempt to formulate the claim. Requests for further information were not a substitute for a properly stated pleading. The reference to Mr Staple’s report was background only, and the judge had not relied on its conclusions. The absence of a defence did not create a procedural irregularity because no default judgment had been obtained.
4. Procedural application. Whether seven days’ notice was sufficient for the adjournment application depended on the particular circumstances, despite the period specified by the rules. Master Foster’s decision to adjourn was a discretionary case-management decision which the Court of Appeal was in no position to gainsay. The stay was subsequently lifted by consent.
5. The challenge to the costs order was hopeless. The relevant appeals were substantially out of time, and being a litigant in person was not an adequate explanation for the delay. There was no real prospect of success and no other compelling reason for an appeal. The order was that permission to appeal was refused, with a copy of the judgment supplied to the applicant at public expense.

1. Court of Appeal (Civil Division): On 11 March 2005, Lord Justice Rix refused permission to appeal in both applications.
2. High Court, Queen’s Bench Division: McCombe J refused amendment and struck out the claim on 2 November 2004. Gray J refused an adjournment and refused permission to appeal against the costs order on 14 December 2004.
3. Earlier procedural decisions: Master Foster ordered an adjournment and later awarded the related costs. Hart J held on 1 October 2003 that the proceedings were not charity proceedings, so permission under section 33(5) of the Charities Act 1993 was unnecessary.