Sarkar v The General Medical Council (GMC)

Where linked regulatory appeals are disposed of by consent and each appellant seeks an opposite outcome, one appellant should not automatically be treated as the successful party for costs purposes. The court must assess the appeals together and consider the substance of the relief obtained. A regulator that is responsible for an independent tribunal, but takes a neutral position in an appeal, will ordinarily not be ordered to pay costs. Its statutory power to appeal does not impose a duty to do so. The ordinary rule may be displaced where the tribunal actively resists the appeal, behaves improperly, or other compelling circumstances justify an order.

A Medical Practitioners Tribunal suspended Dr Sarkar’s registration for four months and imposed no review hearing. Dr Sarkar appealed under section 40 of the Medical Act 1983, while the Professional Standards Authority appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002.

Both appeals were allowed by consent, the sanction was quashed, and the matter was remitted to a differently constituted tribunal. The remitted tribunal reduced the suspension to three months and again directed no review. The remaining issue was whether the GMC should pay the PSA’s costs of its appeal under CPR Part 44.2.

1. Disposition. The PSA’s application for costs against the GMC was dismissed. There was no order for costs in either appeal.
2. The two appeals had to be assessed together. Although the PSA obtained an order allowing its appeal and remitting the matter, Dr Sarkar also succeeded in obtaining a remittal and ultimately secured a reduced sanction. The consent order did not establish that the Tribunal’s failure to direct a review was wrong. The PSA therefore could not be characterised as the successful party for the purposes of CPR Part 44.2(2)(a).
3. The later outcome of the remitted hearing was not strictly relevant because costs could have been determined before it occurred. However, it provided support for the conclusion that the PSA had not obtained the substantive outcome it sought: the Tribunal rejected erasure and again refused a review.
4. The GMC’s statutory power to appeal under section 40A of the Medical Act 1983 was discretionary, not a duty. The PSA had not shown that the GMC acted unreasonably by declining to appeal. The Tribunal and MPTS were independent of the GMC, although statutory committees of it.
5. Applying R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739, the GMC’s position was analogous to that of an inferior court or tribunal which had remained neutral. The ordinary rule was therefore that no costs order should be made against it. The case did not establish that the GMC could never be liable: an active opposition, flagrant improper behaviour, or other circumstances identified in R (Davies) could justify a different order.

• Medical Practitioners Tribunal: imposed a four-month suspension without a review hearing.
• High Court (Administrative Court): both linked appeals were allowed by consent; the sanction was quashed and remitted for reconsideration.
• High Court (Administrative Court): determined the consequential costs issue and made no order for costs in either appeal.