Monji v General Pharmaceutical Council  EWHC 3128 (Admin)
Grubb J. Summary of the Legal Framework for Statutory Appeals
The appeal is governed by CPR 52.11(3) which provides as follows:
"The lower court will allow an appeal where the decision of the lower court was –
- wrong; or
- unjust because of a serious procedural or other irregularity in the proceedings in the lower court"
Relevant Case Law
The governing principals to be applied are laid out in Luthra v General Medical Council  EWHC 240 (Admin) as summarised by Mostyn J:
- “I can only overturn the decision of the FTPP if I am satisfied that it was either wrong or unjust because of a serious procedural or other irregularity in its proceedings (CPR 52.11(3)).
- In determining whether the decision was wrong I must pay close regard to the special expertise of the FTPP to make the required judgment (Raschid paras 16, 19).
- Equally, I must have in mind that the exercise is centrally concerned with the reputation and standards of the profession, and the protection of the public, rather than the punishment of the doctor (paras 16, 18).
- The High Court will correct material errors of fact and of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case (para 20).
- Where the appeal is against a sanction (as here) my decision must not constitute an exercise in re-sentencing or the substitution of one view of the merits for another (paras 21, 22).”
In General Medical Council v Meadow  QB 462 the Court of Appeal stated that "wrong" should be interpreted as "clearly wrong".
The Court of Appeal in this case identified constraints that lay upon a Court during an appeal where there had been an exercise of professional judgment by a disciplinary panel. This is then combined with the "jury exercise" of fact finding and the assessment of witness evidence that such panel also carries out. As per Auld LJ below:
“…it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors:
- The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;
- The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;
- The questions of primary and secondary fact and the over-all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.” (emphasis in original)"
The case of Gupta v General Medical Council  1 WLR 1691 the Privy Council discussed the issue of the Court conducting a re-hearing whereby the contention surrounds the credibility of witness evidence (at para 10):
"[T]he obvious fact [is] that the appeals are conducted on the basis of the Transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect, these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability or the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility or reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee except in the kinds of situation described by Lord Thankerton in the well known passage in Watt or Thomas v Thomas  AC 484, 484-488."
The reference to Lord Thankerton’s opinion is as follows:
“I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus: I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion; II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question.”
Fish v General Medical Council  EWHC 1269 (Admin) Foskett J cited Gupta and concluded:
“It is plain that where the conclusion of the FTP is largely based on the assessment of witnesses who have been ‘seen and heard’, this court will be very slow to interfere with that conclusion. Nonetheless, the court has a duty to consider all the material put before it on an appeal in order to discharge its own responsibility, appropriate deference being shown to conclusions of fact reached on the basis of the advantage of having seen and heard the witnesses. Where this court does not feel disadvantaged by not having heard the witnesses, and the issues can be addressed with little emphasis on the direct assessment of the evidence by the Panel, it is in a position to take a different view in an appropriate case.”
In relation to a challenge to the ‘sanction’ imposed upon a professional, Mostyn J in Luthra (at ) cited the judgment of Sir Anthony Clarke MR in Meadow (at ) which is as follows:
“the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.”
Mostyn J then continued (at ):
“Thus, the exercise is proleptic but the best prophet of the future is the past. (But we should also surely give ourselves the warning that appears on every financial product for sale that past performance is no guarantee of future returns.) By the same token, as Sir Thomas Bingham MR explained in Bolton v Law Society  1 WLR 512, there should be a full understanding by me of the reason why the FTPP makes an order which might otherwise seem harsh. The sanction may have consequences for the individual and his family which are deeply unfortunate and unintended. But that does not make the sanction the wrong order if it is otherwise right: "The reputation of the professions is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price." The reason that the reputation of the profession is so important is not a reflection of a collective amour propre. It is an aspect of the need to protect the public. The public must be able to approach doctors, lawyers and other professionals with complete faith that they are both honest and competent. Without that faith the problems that would arise are too obvious to state.”