[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Malik v General Medical Council [2014] EWHC 2408 (Admin) (10 June 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/2408.html Cite as: [2014] EWHC 2408 (Admin)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		10th June 2014

1. SIR DAVID EADY: There was to have been an appeal brought under section 40 of the Medical Act 1983, by Dr Malik against the General Medical Council, in respect of findings of fact made by the Fitness to Practise Panel and also against its decision to order erasure and immediately to suspend his registration.
2. I am satisfied that Dr Malik was duly notified of the hearing date of 10th June 2014, by a notice dated 9th April. He did not attend and I therefore gave him half-an-hour's grace in order to see whether perhaps he was held up in the traffic or something of that sort. No explanation has been forthcoming and there has been no application for an adjournment.
3. In the circumstances I addressed the possibility of striking out the appeal or hearing it on its merits, so far as they could be gleaned from Dr Malik's paperwork.
4. I am grateful to Mr Hare for researching the court's powers and he referred me to the case Howard v Stanton [2011] EWCA Civ 1481, at paragraph 5, where Lewison LJ raised a serious question mark over whether or not rule CPR 39.3 applied to an appeal. CPR 39.3 deals expressly with the position where the court may strike out proceedings if a person has not attended trial. Lewison LJ did not go on however to answer the question definitively. He did not need to do so in the circumstances.
5. It seems to me that an appellate court, whether the Court of Appeal or this court hearing a statutory appeal under section 40, must have power to control the proceedings and in appropriate circumstances to strike out the appeal.
6. The answer may be contained in CPR 52.9 which provides for the court to have the power to strike out an appeal notice where there is a compelling reason to do so.
7. There are a number of notes of guidance in the White Book addressing the question of permission and whether it would be appropriate to strike out an appeal notice where permission has been given. Here of course permission is not required, as there is a statutory right to appeal. The court's powers are sufficiently governed by CPR 52.9.
8. Since the appeal has not been pursued it seems to me appropriate that the appeal notice should therefore be struck out. I will make an order accordingly.
9. Mr Hare has asked me to order that it should be struck out with costs. In the circumstances that seems entirely inappropriate. I shall say, subject to any further submissions, there be costs on a standard basis to be assessed, with detailed assessment if not agreed. Does that seem to be right Mr Hare?
10. MR HARE: Yes my Lord, apart from the possibility we would invite your Lordship to summarily assess our costs. That being the usual principle in an Administrative Court case that has lasted for less than one day.
11. SIR DAVID EADY: Which this certainly has.
12. MR HARE: I do not know if your Lordship has had a copy of our statement.
13. SIR DAVID EADY: I do not think I have.
14. MR HARE: It was served on the doctor and the court. It may not have reached your Lordship.
15. SIR DAVID EADY: It has been served on Dr Malik.
16. MR HARE: It has indeed my Lord, yes.
17. May I make two points about it my Lord. The first is that although the respondent one normally expects to have fewer costs and lower cost than the appellant, in this case the respondent has assumed some of the burden of preparing the bundle and so on.
18. The other point I should make in the doctor's favour and I think it falls within that, given we are at 2.05. As I understand the agreement for my own fee was that if the case went for only half-a-day - it was originally only listed for two-and-a-half hours - might be reduced to £2,000 rather than £3,000; that is to say on page 2 the fee for hearing. In the circumstances I think it is only right to say that it has really only been half-a-day. It has gone slightly into the afternoon. That seems to be a technical point. That would lead to a total sum of £10.061. We say it was proportionate in circumstances given the volume of transcripts and so on that had to be digested.
19. SIR DAVID EADY: You may have given me the wrong document I think because this comes to a total, I cannot see the figure you have mentioned.
20. MR HARE: The grand total on page 3, at present should be £11,061.
21. SIR DAVID EADY: I do not think I have that. I will show you what I have.
22. MR HARE: I am so sorry. My Lord, I was referring to the fact that it is copied on two sides. It is the third side, so the second page should have the grand total at the top right, £11,061. If your Lordship it is copied on both sides so the previous side has counsel's fees at the bottom. That is why I have indicated that the change should be made.
23. SIR DAVID EADY: So the VAT is?
24. MR HARE: That should be reduced as well. I do apologise. VAT is only charged on my fees so I need to take £200 off that, so the total would be £9,861 according to my calculations.
25. SIR DAVID EADY: That is the overall total.
26. MR HARE: My Lord, yes.
27. SIR DAVID EADY: Including VAT.
28. MR HARE: Including VAT.
29. SIR DAVID EADY: Yes, I will make a summary assessment in the sum of £9,650.
30. MR HARE: I am obliged my Lord.
31. SIR DAVID EADY: Thank you very much. I take it that disposes of everything. Thank you very much.