Krippendorf, R (on the application of) v General Medical Council

Judicial review is concerned with arguable legal error, not an appeal on the merits. A registrar referring a complaint for screening need only be satisfied that a question arises whether the practitioner’s conduct constitutes serious professional misconduct. Neither the registrar nor the screener determines the merits at that stage.

A challenge must be brought promptly and, in any event, within three months. Correspondence expressing an intention to make a future definitive decision is not itself a reviewable decision. A longstanding repetition of an earlier position does not ordinarily restart time. Costs of an oral permission hearing may be awarded exceptionally where the claim is hopeless and the claimant persists after being alerted to that fact.

The claimant challenged three matters concerning the General Medical Council: referral of a complaint to a medical screener; alleged refusal to recognise German specialist qualifications; and alleged non-compliance with an order made by the Privy Council in the claimant’s earlier proceedings against the GMC.

The proceedings were issued using an appellant’s notice. The court transferred and treated it as an application for permission to apply for judicial review under the Civil Procedure Rules 1998. The central issues were whether the complaints disclosed arguable legal errors, whether they were brought promptly, and whether the relevant correspondence contained reviewable decisions.

1. Procedural character of the claim. The GMC was acting as a public body, so the challenges had to be brought by judicial review. The appellant’s notice was properly treated as an application for permission to apply for judicial review under Part 33.5 of the Civil Procedure Rules 1998. Judicial review was not an appeal on the merits. The claimant had to identify an arguable error of law and proceed promptly, in any event within three months.
2. Referral to screening. Under rule 6(1) of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988, the registrar’s role was limited. Where it appeared that a question arose whether the practitioner’s conduct constituted serious professional misconduct, the registrar had to submit the matter for screening. The registrar was not required to investigate or determine whether the complaint was well founded. The screener likewise considered only whether serious professional misconduct was properly arguable. The complaint therefore disclosed no arguable basis for judicial review.
3. German qualifications. Any final decision refusing recognition appeared to have been made in 1998 and was far too late to challenge. The later 2004 correspondence indicated that further consultation was taking place and promised a definitive decision. It did not itself constitute a definitive reviewable decision. If a later final decision existed, it might be reviewable if challenged promptly; if no decision had been made, a mandatory order might potentially be available to require a decision within a reasonable time.
4. Privy Council order. The challenge to the GMC’s interpretation of the quashing order was also out of time. The GMC’s position had been stated by November 2002 and merely repeated in January 2004. The complaint could not be revived by subsequent correspondence.
5. Disposition and costs. Permission to apply for judicial review was refused and the application was dismissed. Applying the exceptional-costs principles identified in Mount Cook, the court ordered summary assessment of the GMC’s costs in the sum of £4,630. Permission to appeal was refused.

• Privy Council: In the claimant’s earlier proceedings, identified as Privy Council Appeal Number 43 of 1999, the Committee on Professional Performance determination dated 22 July 1999 was quashed pursuant to section 40(7)(b) of the Medical Act 1983.
• High Court (Administrative Court): The present appellant’s notice was transferred and treated as an application for permission to apply for judicial review. Permission was refused and the application was dismissed.