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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Akindele v General Chiropractic Council [2020] EWHC 503 (Admin) (26 February 2020) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2020/503.html Cite as: [2020] WLR(D) 142, [2020] ICR 998, [2020] EWHC 503 (Admin)

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

		No. CO/3090/2019 Royal Courts of Justice Wednesday, 26 February 2020

MR JUSTICE FORDHAM:

1. This is an appeal in which the respondent, the General Chiropractic Council ("the GCC") took the position, very responsibly, to which the appellant, equally responsibly, has agreed, that the extension of a suspension order should be reviewed under s.22(9) of the Chiropractors Act 1994 ("the Act") with a direction from this Court to that effect. That was appropriate not because of some issue relating to the decision that was taken on the material before the Professional Conduct Committee on 8 July 2019, but because of a subsequent development and change of circumstances which concerns the appellant's success in an appeal which was envisaged in July 2019 - that was an appeal from the Magistrates to the Crown Court - and it subsequently succeeded. I do not need to say anything further about the facts or circumstances of this case. The parties are agreed as to what should happen next in this case and I completely agree with them.
2. I have raised with the parties and had the opportunity to hear from both of them, through counsel, a jurisdictional question. The order that they invite me to make is to determine this appeal by remitting the previous decision for a review. Section 31(8) of the Act gives the Appeal Court, on the face of it, four dispositive powers:

(a) dismiss the appeal;

(b) allow the appeal and quash the decision;

(c) substitute the decision appealed against;

(d) remit the case in accordance with the directions of the Court, the appropriate committee or tribunal.

Everyone agrees the appropriate course is a remittal with a direction for the purposes of (d).

3. The question I raised is as to whether the correct interpretation of the Act is that options (c) and (d) are really alternatives which arise where the Court is doing (b), allowing the appeal and quashing the decision. The parties are agreed, and they have satisfied me for the purposes of making this order in this case, that that is not how the Act should be read. It is not therefore a prerequisite to remitting the case, with a direction for a review of the decision that was under appeal in the light of a change of circumstances, that this Court need allow the appeal nor that this Court need quash the decision.
4. Both counsel also bring to my attention that, although it is true that remittal powers often are consequential on a quashing so that a decision can be reconsidered afresh, this situation is different because this direction would be not for the reconsideration afresh of a decision but for its review under the Council's review functions. Each counsel, for reasons I entirely respect and understand, is concerned that, if there were to be a quashing of the decision, it could be said that a different jurisdictional problem would arise, namely that there is then, in those circumstances, no extant decision for the GCC to review. It is all very technical, but it does need to be thought about and thought about clearly.
5. The parties were prepared to embody, in the consent order, a preamble to say that they were agreed as to the Court's jurisdiction. I do not consider that is either necessary or appropriate, though I am grateful to them for offering it. I have to be satisfied of my jurisdiction.
6. I am satisfied that I do have jurisdiction to make the order that I am making, for two reasons. Firstly, because the section is structured as describing four things that an Appeal Court can do in determining the appeal. It does not say that when allowing the appeal and quashing the decision, and only then, can the Court remit the case to dispose of in accordance with directions. That is the structure of the section. Therefore, the natural meaning of the words and their structure supports, in an appropriate case where the justice of the case requires it, a broader position. That is the first point. The second point is that there can be cases – and this case is a perfect example – where the justice of the case requires precisely that.
7. Technically, the way it goes, as it seems to me, is that an appellant, in circumstances of changed circumstances and a new development, would be saying to the appeal court: "I have fresh evidence on which I could not rely below." The respondent would adopt a position on whether the Court could consider that material, and the Court would then decide what to do about that material. In this case, far from resisting reliance on it, the respondent positively recognises its relevance. Once the position is reached that it is relevant to the role of this Court that changed circumstances and fresh evidence of this kind can be material to the just and proportionate determination by this Court of the appeal, in my judgment, it follows that the correct and preferable reading of the Court's powers, so far as remedy is concerned, extends to a power to determine the appeal by remitting the case with a direction for, in this case, a review. It is not necessary for the Court or the parties in those circumstances to become hung up on the question of either whether the appeal is being allowed or the question of whether the decision is being quashed – and the consequences that might flow if it was.
8. I also had an opportunity, though, to explore with the parties through their counsel what the position in this case would have been if that analysis is wrong. It was possible, without inviting a wholly unnecessary and disproportionate set of legal submissions, to identify the following position as common ground. If it were necessary, solely for the purposes of this Court having the jurisdiction, to make an order embodying the steps which the parties are agreed need to take place in this case – if it were necessary solely for that reason to do so – and making clear that the Court would be acting on the basis of a change in circumstances post-dating the decision under appeal, it is agreed at the Bar that the Court could, in those circumstances and in this case, allow the appeal for the purposes of that remittal and those directions.
9. Mr Coke-Smyth, on behalf of the GCC, was not (at least without further reflection and delay) in a position to go further and say, if necessary, it was agreed that there could also be the quashing of the decision – and, as I understood it, Ms Williams on behalf of the appellant supports him. That is because, as I have explained, they are both concerned that quashing would create a different technical problem, namely how do you review, under review powers, a decision which no longer exists because the Court has set it aside?
10. I am quite satisfied that, even if remittal is something that could follow only on the allowing of the appeal, the Court would have the power to order it; and I am also quite satisfied that, in this case, the Court would order it and would be ordering it under that jurisdiction. I am not making that order. I am simply explaining that the jurisdictional point was considered, on the alternative premise that I was wrong in my primary conclusion, and that this is where that consideration took the parties and took the Court. All of which gives me the added comfort that, were we all wrong in relation to the correct interpretation of the statutory powers, it is not a problem that would have frustrated the parties or the Court in arriving at the just and proportionate outcome of this case, which would still be the direction for a review in the light of the change of circumstances.
11. Because of the jurisdictional point, I have thought it appropriate to give some reasons to explain and that has been the purpose of the ruling that I have just given ex tempore.