Davies, R (on the application of) v Royal College of Veterinary Surgeons

A professional regulator must process complaints responsibly, reasonably and rationally, but does not thereby owe the regulated person a common law duty of care for consequential mental harm. A judicial review claim brought substantially out of time will not be extended merely because the claimant pursued other proceedings, lacked legal advice or was unwell, where he remained capable of litigating and knew judicial review was available. At an initial case-examination stage, the question is whether there is an arguable case, not whether the allegations should be resolved on the evidence. Credibility and contested factual issues ordinarily require further investigation at the appropriate later stage.

The claimant, a veterinary surgeon, challenged the Royal College of Veterinary Surgeons’ decisions to close complaints concerning two registered veterinary nurses. One complaint was brought approximately 18 months after the final decision, following employment tribunal proceedings and other representations. A second complaint concerned allegedly inconsistent statements by Rachel Walsh and had been reopened, investigated and then closed.

Permission was refused on the complaint concerning Gillian Leeson and on a proposed claim that the regulator owed a duty of care. Permission had been granted on the challenge concerning Ms Walsh. Before the substantive hearing, the regulator offered to progress that complaint to stage four of its procedure. The issues were whether the late claim should proceed, whether the regulator owed the alleged duty, and whether the Walsh complaint had lawfully been closed at the case-examination stage.

1. Ground one. The complaint concerning Ms Leeson was significantly out of time. The claimant’s employment tribunal proceedings, lack of advice, confusion about procedure and ill health did not justify an extension. He was able to participate in litigation, knew that the tribunal proceedings did not provide a complete alternative remedy, and had been reminded that judicial review was out of time. Permission was therefore refused.
2. Ground three. The regulator’s statutory role did not create a common law duty of care to the claimant for the alleged consequences of complaints made by employees. Its obligation was to process complaints responsibly, reasonably and rationally. The proposed duty-of-care claim had no arguable public-law basis and was misconceived in judicial review.
3. Ground two. At the case-examination stage, an arguable case exists where the allegations, if proved, might amount to serious professional misconduct and there is an arguable case that the factual allegations are true. The case examiners were not entitled to treat contested differences between accounts as conclusively resolving credibility or rendering the claimant’s case unarguable. Possible misinterpretation, or a relatively small difference between accounts, did not make the contrary case unarguable.
4. The decision to close the Walsh complaint was accordingly unlawful. The complaint was to proceed to stage four, before a preliminary investigation committee. The composition of that committee was for the regulator, subject to addressing apparent bias. The court would not require particular interviews or further enquiries, since those matters fell within the committee’s procedural discretion under the applicable protocol.
5. The claim succeeded on ground two. An order was made accordingly. Costs were left for agreement, with written submissions if agreement could not be reached.

Before the substantive hearing, Warby J granted permission on the challenge concerning Rachel Walsh and refused permission on the other grounds. The present court refused renewed permission on ground one and ground three, and allowed the substantive challenge on ground two.