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We have previously commented on the Ivey v Genting decision, which radically changed the test for dishonesty (where the Defendant's state of mind is in issue) in disciplinary proceedings based on the long-standing Ghosh test. We are now beginning to see the first High Court decisions applying Ivey, which give an indication of how the courts (and disciplinary tribunals) may address cases alleging dishonesty in future. Although it is likely to be some time until we have full clarity on the point, it is clear that the courts are wasting no time in replacing the Ghosh test in both the criminal and disciplinary contexts.
The first recorded decision to consider Ivey was DPP v Patterson  EWHC 2820 (Admin), an appeal from a criminal matter in the Magistrates' Court which had been decided in February 2017 and had turned on whether the Defendant had considered herself to be dishonest. Sir Brian Leveson (the President of the Queen's Bench Division) noted that the discussion of dishonesty in Ivey was in the criminal context obiter dicta, and as such not strictly binding on the lower courts. However, he noted that it would be unlikely that the courts would prefer Ghosh in future "given the terms of the unanimous observations of the Supreme Court… [which] does not shy from asserting that Ghosh does not correctly represent the law."
The courts have elected to apply Ivey in two subsequent disciplinary (civil) decisions so far. GMC v Krishnan  EWHC 2892 (Admin) was the first case to consider Ivey in the context of professional disciplinary proceedings. The case (decided in April 2017) concerns whether a doctor had been dishonest in working for another organisation while on sick leave from his employer. While the original High Court hearing of the GMC's appeal (and Dr K's cross appeal) was heard before Ivey (and therefore considered the allegations in light of the Ghosh test), once the decision in Ivey was published the Administrative Court invited the parties to provide further written submissions on the issue of dishonesty. Both parties agreed that Ivey would now apply.
The original decision turned on whether (in accordance with Ghosh) Dr K had considered his actions to be dishonest by the standards of ordinary people, with the Medical Practitioners' Tribunal Service ('MPTS') finding that he had not been dishonest. Applying the test formulated in Ivey (namely (1) the Tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts, and the consider (2) whether his conduct was honest or dishonest applying the (objective) standards of ordinary decent people), the court allowed the GMC's appeal, and remitted the case to the MPTS for consideration in line with Ivey.
The most recent post-Ivey case is GMC v Raychaudhuri  EWHC 3216 (Admin), relating to whether a doctor was dishonest in completing part of a treatment record before examining the patient. The MPTS had found dishonesty not proven, as it could not establish whether he had considered his actions to be dishonest. However, while the Administrative Court noted the Ivey decision and eventually found that the tribunal should have found dishonesty, it was careful to state that this was not dependent on Ivey being applied instead of Ghosh, although this certainly made the outcome clearer.
Of these cases, Krishnan provides the most insight into how the courts will apply Ivey. It should be noted that all three of these appeals came out of decisions made and appeals heard prior to Ivey being handed down. This suggests that appeals currently before the High Court may need to be revisited where the court has not heard argument on the application of Ivey. While the Supreme Court considered that the difference between Ghosh and Ivey would only apply in a few cases (and it is worth nothing that, as per Singh J (as he then was) in GMC v Uddin, the need for a Ghosh/Ivey direction will only arise in cases where the Defendant's state of mind is in issue), the issue arises in a range of professional discipline cases, and the fact that a line of cases have quickly underlined that the Ghosh test no longer represents the law is welcome news to practitioners vexed by a range of occasionally contradictory judgments handed down by the higher courts over the last six years. Even so, it will be some time before we see many appeals based on how Ivey has been applied in practice by legal advisors and tribunals, and it will only be at this stage that the courts' position on the new dishonesty test (including formal dicta that Ivey is binding in the context of professional disciplinary proceedings) will become clear.
The EU Withdrawal Bill has now passed the House of Commons and is being considered by the Lords. The changes made by the Commons are largely procedural, and may give organisations further time to lobby on amendments to law post-Brexit.
In the current era, there is an increasing focus on the role of medical and other healthcare professionals in sport. In a high performance environment where results are critical and margins are everything, significant pressure can be placed on the team doctor to ensure that a player is match fit or an athlete is able to race. The doctor's duties are to the athlete as their patient, not to a coach, manager or performance director. Organisations need to consider the structure that a team doctor sits in and who they are answerable to in terms of line management and ultimate professional accountability. For large organisations, there are obvious benefits in separating out the provision of primary care medical services and medical performance support.
Some organisations employ a doctor directly, whereas others engage their services via contractual arrangements. It is critical to understand the regulatory environment medical services are provided in to ensure that the organisation is compliant with their regulatory and due diligence responsibilities. This concept has been frequently referred to as "medical governance". UK Sport has made it very clear in recent weeks that it has high expectations in relation to how this area of provision is managed and any failings could directly impact on the funding of a national governing body. If CQC regulation is not appropriate and healthcare professionals are contracted in, it is still critical for sports organisations to understand and ensure those they engage to provide services are properly registered and regulated.
Regulation by the Care Quality Commission ("CQC")
Sports organisations are providing sophisticated medical services that focus on both primary care and performance related services. The CQC regulate entities that provide medical care by classifying categories of provision as "regulated activity", however with the exception of the English Institute of Sport ("EIS"), there are very few sports organisations that have obtained CQC registration. The general requirement under the Health and Social Care Act 2008 is that if you carry out regulated activity, you must be CQC registered. There are several narrow exceptions to this requirement. CQC registration ensures the provider is compliant with the wider requirements of service delivery around medical records, the procurement of medicines and prescribing and the focus is on athlete centred care.
To become CQC registered, an application must be made providing details about the applicant, the regulated activities applied for, and the locations where the service will be provided. The CQC assess each applicant and, to grant registration, must be satisfied about the organisation's fitness and compliance with the requirements of the relevant regulations and enactments. In the majority of cases providers must have a registered manager as a condition of their registration who must also apply and satisfy the CQC about their suitability and meet with the other requirements of the relevant regulations and enactments.
More recently the CQC have become interested in the ethos of the organisation starting at the top with the Board. There is the longstanding requirement for the Board to appoint a nominated individual as the designated point of contact, however there is also a general requirement for directors to be fit and proper. This focuses on those who do not necessarily provide clinical care but who shape the organisations direction of travel. There is also a provision that looks at whether a director has been responsible for or privy to any serious mismanagement in the delivery of regulated activity.
The benefits of CQC regulation
For organisations that aren’t involved in the exclusive delivery of healthcare, the policy infrastructure and management of regulated healthcare professionals can be challenging. Obtaining registration and regulation by the CQC requires time and investment; however the organisation can seek comfort in the fact that in order to obtain registration, there must be proper processes in place to ensure that medical staff are working in line with professional requirements. It also ensures there is consistent delivery throughout the wider medical team ensuring that too much responsibility and accountability does not rest with one individual. Issues around medical governance have been highly prominent in the UKAD "jiffy bag" investigation that affected both Team Sky and British Cycling. This was concluded by UKAD last month with no action being taken. Whilst CQC registration does not ensure that doctors make proper medical records, it does ensure that the infrastructure and monitoring is in place to help prevent this becoming a systemic issue through audit, peer review and board level accountability. There would also be periodic inspections by the CQC, the frequency of which would be determined by the risk profile of the organisation.
The CQC monitors the risk profile of a registered entity through intelligence and mandatory disclosure obligations in the event of an adverse incident. Should there be an investigation by another agency such as UKAD, it is common for MOU's to exist around co-operation, support and information sharing. A CQC registration application will only be successful if there is a commitment from the top of the organisation given there is board level accountability for the regulated activity. There also needs to be constant audit, appraisal and reflection in relation to the service, those receiving it and those tasked with delivery. This approach is line with the calls for more scrutiny in relation to the interaction of coaches and medical staff with athletes and the ongoing work around athlete welfare. In addition, it provides public accountability and transparency given the CQC publish inspection reports on their website.
The recent case of General Medical Council v Chandra  EWHC 2556 (Admin) explores the fine balance to be struck between ensuring public confidence in the medical profession and taking into account steps undertaken by those applying to have their name restored to the medical register to show that they have remedied their conduct and reduced or eliminated future risk.
The Respondent, a psychiatrist, was found to have engaged in sexual activity with a vulnerable patient. The incident occurred in 2005 and in 2008 his name was erased from the medical register.
In 2017, Mr Chandra applied for restoration to the medical register. The Medical Practitioners Tribunal ("the Tribunal") determining the matter considered various factors including the fact that he had accepted his wrongdoing and reflected on it; and decided to restore his name to the register.
The GMC ("General Medical Council") appealed against the decision of the Tribunal, submitting that there was a failure to give proper regard to the overriding public interest and to promoting and maintaining public confidence in the medical profession.
The GMC argued that there had to be "exceptional circumstances" before a doctor struck off for sexually improper conduct should be placed back on the register and that consideration ought to be had to the gravity of the original conduct, the public interest in the decision, and the difficulties of remediating dishonest actions or other serious misconduct. It is worthy of note that Mr Chandra was found to have lied during the original hearing and continually denied that the incident had occurred.
The GMC's appeal was dismissed and the decision of the Tribunal was upheld. The correct test to be applied in the circumstances was not one of "exceptional circumstances" and there should be no greater weight placed on the need to maintain the public confidence and uphold professional standards than there should be on an individual's remediation.
Moulder J explained her decision as follows:
The Medical Act 1983 ("the Act") gives a Tribunal broad discretion, subject to the overarching objective of the protection of the public. The Act provides a framework for restoration and it is not for the court to rewrite this or impose a higher threshold.
Decisions to erase someone from the register following fitness to practice proceedings are "significantly different" from decisions to restore someone to the register. Each require a different balancing exercising, taking into account different factors.
The primary focus of this case was sexual misconduct, not dishonesty, and the Tribunal had correctly considered the dishonesty of Mr Chandra when making their determination. Moulder commented that "sexual misconduct is as fundamental to the medical profession as dishonesty is to the solicitors profession", however, there is no different or higher test to be applied than is set out in the Act.
Finally, there was nothing in the GMC guidance which called for "exceptional circumstances" in the context of restoration.
The decision reflects a departure from a recent string of successful appeals by the GMC under s40A of the Act in relation to cases where the GMC advanced arguments based on public protection, and provides clarity to the approach to be applied in determining restoration to the register.
It is clear that a balancing act needs to be undertaken between meeting the overarching objective of the protection of the public whilst also recognising the passage of time and any evidence that would support a person's application for restoration, including their insight and fitness to practice. Even if in many cases this will result in a decision not to restore a registrant, the High Court has made clear that this does not give rise to a de facto "exceptional circumstances" requirement.
At the end of 2017 the Department of Health consulted on the regulation of four types of medical associate profession. The consultation proposed the statutory regulation of physician associates (PAs) and sought further information on statutory regulation of Physician's Assistants (Anaesthesia) (PA(A)s). However it proposed not introducing further regulation for Surgical Care Practitioners (SCPs) and Advanced Critical Care Practitioners (ACCPs) at present. This came while DH and the NMC were also consulting on the upcoming regulation of Nursing Associates.
The consultation set out the roles of the four types of medical associate and their current regulatory background. While there are voluntary registers for PAs and PA(A)s, SCPs and ACCPs must be regulated by one of the existing statutory regulators before being accepted for the further training to become a SCP or ACCP.
The consideration of whether statutory regulation should be introduced for each of the professions was based on an assessment of the risk each profession presents, considering the interventions made, the context in which they are made, and the degree of accountability for their actions. This risk was then considered in the context of what assurances can be given by regulation of the profession. All of this was done by considering the framework proposed in the Professional Standards Authority's paper "Right-touch assurance: a methodology for assessing and assuring occupational risk of harm".
The consultation proposed that statutory regulation for PAs should be introduced, either by the General Medical Council or Health and Care Professions Council, as they make autonomous treatment and diagnostic decisions and can undertake invasive actions such as diagnostic interventions. However at this stage SCPs and ACCPs should not be statutorily regulated at this stage, as all individuals becoming SCPs and ACCPs are already required to be registered healthcare professionals (such as nurses or operating department practitioners). In addition, there are very few individuals working in these roles, meaning further regulation was unlikely to be proportionate.
However, the consultation asked for further evidence and views on whether PA(A)s should be made subject to statutory regulation. The risks presented by PA(A) practice appear to vary across sites, as their supervision and responsibility is decided at a local level and their (currently voluntary) regulator cannot enforce its recommendations. The consultation sought further evidence on the level of autonomy PA(A)s work under and the type of assurance/regulation respondents think appropriate.
This consultation came shortly after the decision that nursing associates will become a regulated profession under the Nursing and Midwifery Council. DH and the NMC have recently consulted on the changes to the Nursing and Midwifery Order 2001 necessary to incorporate these changes. DH appears to be keen to address concerns around the skills mix in healthcare settings by new professions, and to increase the flexibility of regulated roles. In practice, the increase in the number or regulated professions will not necessarily lead to more individuals working in healthcare, but rather more of them being regulated in one way or another. It is important to remember that a substantial part of the healthcare workforce is not regulated by statute, but are instead either unregulated or are part of a voluntary register.
These consultations also came while DH consults on much broader changes to health and care professional regulation. While professional regulation has never stood still, it seems that the sector can expect to continue living in a state of flux in 2018.
The UK Supreme Court recently wrestled with the case of Mr Ivey, accused of cheating at the game of Punto Banco at the Genting Casino trading as Crockfords. Whilst the technique of "edge-sorting" the cards, and the history of gaming may be of interest to some, the wider issue to take from the case is the clear statement by the Court, at paragraph 74, that the R v Ghosh test for dishonesty, propounded since 1982, does not correctly represent the law.
The familiar case of R v Ghosh  QB 1053 gave us the two stage test for dishonesty namely (1) whether the conduct complained of was dishonest by the objective standards of ordinary reasonable and honest people and (2), if so, whether the defendant must have realised that ordinary honest people would so regards his behaviour.
More recently in disciplinary cases there have been modifications to the test when used in disciplinary cases, such that the standards of "ordinary reasonable and honest people" has been replaced by "reasonable and honest [professionals of the type being disciplined]" (see Hussain v GMC  EWCA Civ 2246) also in the second limb, following Professional Standards v HCPC and David  EWHC 4657 (Admin), Popplewell J indicated that, to remove the criminal burden of proof from the second limb "must have realised", the test should be "in fact realised" or just "realised" (on the balance of probabilities).
Despite dissenting voices such as Mostyn J in the case of Kirschner v GDC  EWHC 1377, who advocated that disciplinary proceedings should use the civil test from Barlow Clowes International Ltd v Eurotrust International Ltd  UKPC 37, the overwhelming number of authorities have reiterated that the R v Ghosh test is to be used in dishonesty cases in professional discipline. That is why the Ivey case is important.
Cited in the judgement is the view of the Criminal Law Revision Committee that "dishonesty is something which laymen can easily recognise when they see it". It is certainly important to remember that a very large number of dishonesty cases are relatively straightforward – the case may fundamentally turn on whether something happened or not, if it did there may be no dispute that it was dishonest. However in disciplinary as well as criminal cases we are all aware of the other sorts of cases, where what happened (as in Mr Ivey's case) is not disputed but the issue is whether the actions meet the test for dishonesty (or in Mr Ivey's case "cheating").
In the recent decision Lord Hughes observed that the unintended consequence of Ghosh is that the more warped the defendant's standards of honesty are the less likely it is that he will be convicted of dishonest behaviour. The Court's have foreseen this before and the test was intended to address the "Robin Hood" defence so that even though Robin may have viewed robbing from the rich to give to the poor as morally justified it was not his own view of honesty which mattered but whether he must have realised that ordinary honest people would regard his robberies as dishonest. However commentators and the Supreme Court were concerned that the second limb potentially allows the defendant to escape liability where he has made a mistake of fact as to contemporary standards of honesty.
The Supreme Court judgement goes on to review the civil case law on dishonesty and the Barlow Clowes case. It unequivocally concludes that the second leg of the test in Ghosh no longer correctly represents the law and directions based on it should no longer be given. The test for dishonesty in all legal proceedings is "whether, by ordinary standards a defendant’s mental state would be characterised as dishonest", it is irrelevant that the defendant judges by different standards. Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective.
At paragraph 74 the Court concluded, "when dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest."
Initial commentaries on the case differ as to whether this a monumental change or in fact something that will impact relatively rarely. It certainly requires those involved in the presentation and determination of disciplinary cases to be mindful of the change and to clearly direct Panellists to ensure they understand that it is still relevant to seek to understand the Registrant's genuine state of mind (the example given in the judgement is the visitor who genuinely believes that one does not have to pay for public transport, based on the arrangements in their home country), but then to appreciate that the decision as to whether the Registrant has been dishonest is for the Panel, applying the objective standards of ordinary people or fellow professionals.
In the recent decision of R (on the application of Durand Academy Trust) v OFSTED  EWHC 2097 (Admin), the High Court decided that the current complaints process used by the regulator OFSTED was unlawful.
Durand Academy ("the School") is based in South London with a separate site for boarding in West Sussex. The School has significantly expanded in recent years and its OFSTED ratings have ranged from "outstanding" in 2008, to "good" in 2013. In 2015, the School's boarding provision was rated as "requires improvement" and it had had ongoing discussions with the Education and Skills Funding Agency regarding its future status and finances.
The School was inspected in late 2016 and the associated report ("the Report") was published in February 2017. OFSTED judged that the School was "inadequate" and it was placed into special measures.
The legal case
The School brought a judicial review against the decision on two grounds: the first was in relation to the inspection outcome itself, and the second to the complaints procedure that followed.
The School submitted that OFSTED was unreasonable in deeming that it was "inadequate" and that this was "so strikingly at odds with how the school performs" that it was unlawful. The School argued that the assessment contained factual errors and that the evaluations used by OFSTED were unfair and arbitrary. They argued that the Report accentuated the negative aspects of the School and overlooked the positive and for this reason they argued that it was Wednesbury unreasonable.
The second strand focussed on the fact that the procedure did not allow an effective opportunity to change or challenge the outcome of an inspection. OFSTED's complaints procedure included a formal complaints process, however this was not open to schools that had been found to have serious weaknesses or require special measures (as the School had here) on the basis that "all such judgements are subject to extended quality assurance procedures". The effect of this was that OFSTED internally moderated its decisions when a School was deemed inadequate without an opportunity for the School to comment on or challenge the result.
It is worthy of note that the School had been involved in an ongoing and protracted dispute with the Education Skills and Funding Agency (ESFA), in relation to its academy funding. It was one of the School's submissions that OFSTED's independence was clouded by this dispute (though this was firmly rejected by the court).
The judge found that the complaints process as it stood was not rational or fair because it did not permit a school to pursue a substantive challenge. This undermined the validity of the Report, and on this basis it was quashed. The judge did not comment specifically on the substantive conclusions reached in the Report but did suggest concerns that the School had been found to be "inadequate" rather than the lesser category of "requires improvement".
Whilst the judge was reluctant to comment on the substantive findings in the Report, the decision is an important demonstration of the court's willingness to tackle the issue of regulatory process, and the case highlights the importance of there being a fair opportunity to challenge a regulator's decisions internally without the need to resort to litigation.
Specifically, the judgment signifies a rare win for a school against OFSTED, and has wider significance for other schools (and indeed other regulated bodies) in deeming that OFSTED's complaints procedure is unlawful. Whilst OFSTED has indicated that it will be reviewing its complaints procedure, it has since sought permission to appeal this decision, suggesting that the matter is not yet settled.
Blockchain is widely recognised to be one of the most exciting and potentially transformative technologies around at the moment, but a lot of people outside the technology and finance spheres do not really understand what it is, why there is so much hype or how it can be used. Here we begin to speculate on how it could be used in the world of professional regulation.
In very basic terms, blockchain technology functions by holding an identical electronic register of information in a number of places at the same time. Once new entries, or "blocks", are verified through complex computer calculations, these are added to the "chain" of previous entries on all of the registers in the network. Where information is held on a distributed register like this it is much harder to defraud as if one register is changed this will show up as an anomaly against all of the other registers and the system is built on strong encryption technology.
At present, blockchain is best known as being the technology used by crypto-currencies such as bitcoin, a highly secure digital currency that can be transferred without the need for banks. However, blockchain can be used for a range of other purposes, and as people become more familiar with the technology more uses are being explored. People are already looking to exploit its potential to validate real estate transactions and to ensure the provenance of food items such as coffee and chocolate from farm to processing factory.
Whilst it is very early days, we can also see the potential for it to be used in the world of non-financial regulation. For example, one of the most common problems for regulators is ensuring the authenticity of professional qualifications held by applicants for registrations, especially across international borders (where one regulator may be unable to identify authentic degree certificates, let alone read them). At the moment the European Commission operates a database for the recognition of professional qualifications between European regulators, but a blockchain system could be used by more countries, including those outside the EU, by operating a system that does not require centralised management (i.e. the role currently fulfilled by the Commission) and does not require trust in any one database or entity operating it. By using blockchain between universities and regulators, it would be possible to verify 'ownership' of a qualification, preventing fraud and allowing regulators to easily confirm qualifications without the costly and potentially hazardous posting of original documents.
At the 'front end' of regulation, blockchain technology could also be used to assure the public of the identity of professionals. Many regulators have search functions on their website allowing them to check that a name is a registered professional, but blockchain technology could allow for a secure 'professional identity' to be set up, allowing an individual to ascertain the professional's registration, qualifications and current ability to practise. This could further public confidence in the profession, furthering one of the core roles of professional regulation.
While these are just two of the potential uses that could apply to the regulatory sphere specifically, it is easy to see how blockchain technology may have further uses by regulators more broadly. For example, ownership of documents underpinned by blockchain could have real implications for data heavy sectors such as law, accountancy or healthcare. While blockchain is currently seen as the remit of start-ups, tech companies and the banks, regulators should pay close attention to this emerging technology to see how it could transform both its sector and its own operations.
Hayat v General Medical Council  EWHC 1899 (Admin)
A recent High Court decision serves as a warning to all Tribunals to consider and evaluate with great care any medical evidence they receive pertaining to an adjournment on grounds of ill-health. If an individual is declared unfit for work, it is likely that they will also be unfit to withstand the demands and rigour of a disciplinary hearing.
The Appellant appealed against the decision of a panel of the Medical Practitioners Tribunal ("the Tribunal"), dated 15 February 2017, which found that his fitness to practise was impaired and imposed the sanction of erasure from the register.
The allegations arose out of a claim which he made on 18 October 2012 on a critical illness insurance policy, stating that he had suffered a heart attack whilst in Pakistan on 8 September 2012. In support of his claim, he submitted medical reports from the Faisalabad Institute where he claimed to have been admitted for treatment. His insurance company investigated the claim and concluded it was false. They referred the matter to the General Medical Council ("the GMC"). At the Tribunal hearing, his actions were found to be dishonest and misleading. The Tribunal found that he had committed misconduct, and that his fitness to practise was impaired. The sanction imposed was erasure from the register.
The Appellant submitted four grounds of appeal but the Court only expressed their views on Ground 1 (so as not to unduly influence the new panel in their deliberations); that it was procedurally unfair to proceed with the hearing in his absence, after refusing his applications for an adjournment.
In response, the Respondent submitted that the Appellant chose to absent himself from the hearing and failed to provide medical evidence that he was not fit to attend. As a result, his complaint that it was unfair for the proceedings to continue in his absence was without merit.
The Appellant was taken ill at the hearing on Monday 31 October and it was adjourned. On Friday 4 November, the Tribunal received medical evidence stating that the Appellant had recovered from his illness and was well enough to undergo court proceedings. However, on Monday 7 November, the Appellant produced a GP's certificate which stated that he had developed "post angiography right arm bruising +/- infection" for which he needed antibiotics and was declared unfit for work.
The Tribunal disregarded the GP's certificate that the Appellant was unfit for work because it did not also say that he was unfit to attend the hearing. The Tribunal granted the GMC's application to proceed in the absence of the Appellant.
The Court found that such evidence ought generally to result in an adjournment, to give effect to the common law duty of fairness, and to avoid a violation of Article 6, by depriving the registrant of the opportunity to present his defence to serious charges. The Tribunal ought to have given careful consideration to the question of whether and to what extent the Appellant's condition would affect his ability to take part in the proceedings. The fact that his GP had certified him as unfit for work should have prompted them to consider whether that could also mean that he was not well enough to conduct a lengthy disciplinary hearing. Conducting the hearing would be demanding and he would need to be well enough to do himself justice. The Tribunal did not give proper consideration to these matters. The Appellant was also deprived of the opportunity to give his evidence, and to challenge the evidence of the regulator's witnesses at the fact-finding stage.
For these reasons, the High Court concluded that the Appellant did not receive a fair hearing. The Tribunal's decision was unjust because of a serious procedural irregularity, and therefore the appeal was allowed and the Appellant will have a re-hearing before a fresh panel.
Following his 2010 report into costs in civil litigation, Lord Justice Jackson completed a supplemental report this summer on ‘Fixed Recoverable Costs’, with Chapter 10 focusing on costs in judicial review. The report is noteworthy for its suggestions on costs capping and budgeting, and the potential for such measures to alter the dynamic and types of application for judicial review.
Costs in judicial reviews have historically adopted the traditional mechanism whereby the loser pays the winner's costs. Under the 'Aarhus Costs Rules' costs capping in judicial review was originally limited to environmental claims and in February 2017 was extended to cover some planning cases. The rules currently cap a claimant's costs liability at £5,000 (£10,000 when the claimant is a business) and a defendant's at £35,000. It is for the claimant to decide whether to invoke the Aarhus rules in these cases and in order to do so they must submit a statement of means detailing any financial support provided to them by others.
Jackson has suggested that these costs capping rules should be extended to apply to all judicial review claims. The regime would be available to any claimant who (a) opts in, and (b) is an individual who does not have access to legal aid. Both the claimant and defendant would have the opportunity to vary the cap and as per the Aarhus rules there would be a form of means testing for claimants. Legal aid is still to be available for judicial review claimants but Jackson hopes that an extension of the costs capping rules will allow deserving and modest claimants an opportunity to pursue their claims where they would otherwise not qualify for legal aid.
The rationale behind the proposal is to ensure that members of the public are able to challenge the decisions of the executive "without facing crushing costs and liabilities if they lose". This reflects the importance of judicial review as part of the democratic process of ensuring public accountability. Jackson accepts that defending judicial review claims can put "a substantial burden on the public purse" but that "many (but by no means all) claimants are of modest means and are deterred from pursuing claims because of the adverse costs risk".
Jackson proposes that in cases where a judicial review involves a complex point requiring a substantive hearing lasting several days, costs budgeting should be utilised to limit the expenses incurred by either party. Jackson refers to such cases as 'heavy' judicial review claims. Costs budgeting is currently used in other forms of civil litigation where parties are required to present their budget to the court and their opponent at an early stage in the case. This budget has to be approved by the court and if costs exceed it, it is for that party to justify why, and these costs may not be recoverable. The proposal suggested in judicial review cases reflects a more simplified version of costs budgeting, and this would only be utilised in those 'heavy' judicial review cases when a party requests it, or when it is ordered by the court.
Legislative amendment will be required to adopt the suggested reforms. It remains to be seen whether the Government chooses to implement the proposals during an almost unprecedentedly turbulent period in parliamentary history.
The extension to costs capping in all judicial reviews could serve to embolden claimants who would previously have been deterred from challenging a decision due to the costs implications. On the other hand, it could mean that some claimants are deterred from pursuing more complex cases due to the difficulty in recovering their full costs. In some ways, the proposals could be said to be more defendant friendly, in that public authorities are generally in a position of financial strength by comparison to individual litigants, and will now have the buffer of the cap on claimant's costs. It remains to be seen whether this will be offset by an increase in claims more generally.
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