Virdee v The General Pharmaceutical Council  EWHC 169 (Admin)
This case is as much about the competence of legal representatives who conduct litigation on behalf of Registrants as it is about the substantive Fitness to Practice (FTP) issue. In a highly critical judgment Andrews J gave a masterclass in what is expected of legal professionals (both pre-hearing and during hearings), and also provided important guidance on matters such as the use of special measures in FTP hearings concerning sexual abuse/harassment.
Thus it is a decision that should be read carefully by lawyers who do not wish to fall foul of the Administrative Courts valiant attempts to improve the quality of legal representation and thereby reduce the number of matters that "clog up" the system due to procedural non-compliance and the failure to understand the trite law relevant to Appellate litigation.
The appeal to the High Court was brought by the Appellant pharmacist against the decision (dated 12th December 2013) by the General Pharmaceutical Council's (GPhC) Practice Committee. The committee had found a number of sexual harassment/assault charges proven, namely that "… on four different occasions the Appellant had approached Ms A (Complainant) from behind and rubbed his penis against her or pushed it against her bottom, and that these approaches were sexually motivated." These findings unsurprisingly resulted in a finding of current impairment and a sanction of removal from the register.
Procedural history and Grounds of Appeal
The procedural history of this case was described by the Judge as "unfortunate" and this included the appeal grounds themselves, which sought to challenge the decision on facts and the proportionality of the sanction. They were never fully completed and were marked "subject to approval" by a named QC, but as it turned out no such QC ever at any stage had any involvement with them. The Appellant was at the time of the FTP hearing legally represented by Counsel Mr H, who was instructed by a solicitor Ms S, who in turn acted on behalf of a firm of Solicitors SL. Despite this the Appellant made an application in person to the court on the 7th April 2014 to vacate the hearing fixed for the next day, namely the 8th April 2014. He requested that he be given a stay on the ground that he needed to find legal representation. The stay was granted and the appeal was subsequently listed for 21st October 2014. But by that date "… there was still no sign of any skeleton argument from the Appellant". The matter was heard on the 21st October by Thirlwall J and Ms S appeared before the court and requested an adjournment on the basis that Mr H (Counsel) had been taken ill (it also transpired that he had only been instructed on the appeal as late at the 18th October 2014). Despite the Respondent's opposition, Thirlwall J granted the adjournment on the basis that "… Mr H may be of some assistance to Mr Virdee". Andrews J (who ultimately heard the appeal) reflected on this later and stated "It is true that in the vast majority of cases, a party to litigation will benefit from being represented by counsel. Sadly, this case turned out to be one of the rare exceptions".
Thirlwall J directed that a skeleton argument be lodged by the 11th November 2014. However this was not met and at some point a document entitled "Skeleton argument – preliminary" was submitted but was never actually replaced/finalised – this was also despite an email from a member of SL stating "Counsel will be drafting and lodging a separate Skeleton argument".
As per Thirlwall J's directions the matter had also been listed for a 1 day hearing to take place on the 23rd January 2015. However the aforementioned skeleton argument filed by Ms S mentioned for the first time the contention that the hearing be listed for a complete re-hearing of the case which would take longer than one day. Andrews J again does not hide her surprise by this contention and notes "That suggestion seemingly betrayed a fundamental misunderstanding of how appeals of this nature are conducted".
There was subsequently correspondence from the firm SL stating that they were no longer acting for the Appellant but that Mr H would be acting through direct access. The correspondence from SL also noted that they had asked for a telephone directions hearing and that the hearing be listed for "five days". There was puzzlement all round as how on the one hand SL could be confirming that they had come off the record for the Appellant but on the other hand setting up conferences and making requests in respect of the substantive hearing. Andrews J found this to be a very serious matter – where a firm that on the one hand had purportedly come off the record, were nevertheless still involved in conducting litigation in that matter. She directed that the proprietor of SL solicitors appear before her.
Mr E, the proprietor of SL apologised for the "confusion and embarrassment" but the explanations that he offered were not satisfactory and the Judge (para.16) "… came to the conclusion that the behaviour of the three solicitors involved warranted a direction that they should each write to the court to show cause why they should not appear before the Divisional Court in accordance with the principles established in Hamid  EWHC 3070 (Admin) and reiterated in Butt  EWHC 264 (Admin) and I have so directed. Mr E's explanation was incomplete and unsatisfactory. The matter will be dealt with hereafter by Mr Justice Green, who has the initial responsibility for considering all Hamid cases."
The application for an adjournment was refused.
Handed down by Mrs Justice Andrews DBE
The learned Judge stated at the outset of her decision that she had some concerns about the manner in which the Panel dealt with their determination of whether the allegation of the first assault was indicative of a genuine, factually true incident or one which might have been imaged by Ms A. She noted at para 21. "In light of this, I had anticipated that the focus of Mr H's submission on behalf of the Appellant would be on the approach to the balancing exercise that was adopted by the Panel, and on the evidence in the Appellant's favour, to which it was alleged the Panel either failed to accord any weight or which it allegedly failed to take into account. However, Mr H chose instead to concentrate from the outset on specious allegations of procedural unfairness."
(i) Procedural unfairness, Special measures, and Counsel's duty
Some of the points that Mr H raised under this "specious" allegation of procedural unfairness were subsequently heard by the Judge and she was not moved, and in fact described some points as "manifestly ill-founded".
One of the central arguments in respect of procedural unfairness raised by Counsel Mr H was in respect of the special measures that were acceded to by the Panel at the hearing below. Essentially the Complainant and central witness Ms A would only agree to give evidence from behind screens. This application was granted in light of the fact that the charges related to sexual abuse/harassment and the vulnerability of the witness. However Mr H stated in his grounds "…screens were erected for Ms A when the Appellant was duty bound to have the fair chance of facing down his accuser, when his career and livelihood were at stake". In respect of these submissions Andrews J stated in strong terms at para.28 "I was frankly astounded and said so at the hearing, that submissions of this nature should have been made by any responsible qualified legal representative in the first place. However what concerned me even more was that they were adopted and pursued by Counsel. That should not have happened, even if the client was insistent on his doing so in the teeth of robust advice. Counsel has a duty to exercise independent judgment as to whether a matter is properly arguable. This is 2015, and thankfully we have moved on from the days when witnesses complaining of sexual assault (in the workplace or anywhere else) were forced to re-live the experience in full sight of the alleged perpetrator. One does not need medical evidence to conclude that such a person is vulnerable." In unequivocal terms Andrews J gave the following guidance for future cases at para.30 "I wish to make it clear, in the strongest possible terms, that in a case of this nature such arguments will not be entertained or given credence by this court, especially if the registrant is represented before the Panel, as this Appellant was."
Other arguments of procedural unfairness were treated with similar disdain, for example the proposition by Mr H that there was unfairness in the way that the Panel had "dispensed with making Ms A read out her witness statement" but at para 32. Andrews J pointed out that "… the point was unarguable – not least because the very same Counsel who was making that point on appeal had actually agreed to that course being taken at the hearing."
(ii) The need for Counsel to "get to the point"
In dismissing the argument above, namely the perceived procedural unfairness due to the witness Mrs A not having to read out her statement (the graphic sexual elements distressed the witness), the Judge highlighted another point which is related to best practice for Counsel. At para.33 Andrews J stated "It is not for the Panel to "test" a witness's examination in chief. That role falls to the cross-examiner. The fact that Ms A's evidence was received in that manner did not inhibit her cross-examination, although (just as on appeal) it took Counsel an inordinate time to get anywhere near the point". It is crucial for Counsel to avoid being verbose and to get to relevant matters quickly instead of wasting time on irrelevant matters and causing annoyance or as the case may be distress to witnesses, whilst simultaneously failing to represent their client adequately.
(iii) In conclusion on the non-substantive matters
As can be seen from the forgoing, Andrews J had to spend a considerable time on preliminary failings and unfounded claims before she could actually deal with the substantive matter of whether the decision of the FTP Panel was wrong. In concluding the "preliminary" matters she stated the following at para 35 "In my judgment, these allegations of procedural unfairness and bias should never have been made in the first place, let alone pursued."
(iv) Was the decision of the Panel in facts and sanction wrong?
Andrews J found that the Panel had looked at the matter in a correct manner in that they considered whether the allegations were of such serious nature as to be inherently improbable. But even here Counsel was criticised for attempting to revive arguments from below and reminded that "… this is an appeal" (para.38).
From para.39 onwards the learned Judge strikes down further weak arguments put forward on behalf of the Appellant. For example at para 39 it was contended on behalf of the Appellant that "…the Panel failed to give sufficient weight to the Appellant's good character". But the Judge responded "…I cannot see what further credit could or should have been given to him over and above the "good character" direction the Panel gave itself." In respect of the Panel's failure to take into account the absence of CCTV evidence, Andrews J notes at para.55 "In my judgement, the failure by the Panel to specifically mention CCTV or the risk that the Appellant was running by assaulting the complainant apparently in its direct line of vision takes matters no further." In terms of facts she concluded at para.56 "…I conclude that the Panel was entitled to reach the conclusion that the evidence of Ms A was an account of incidents that happened in reality, and not just in her imagination; it did not err in law in deciding that essentially factual issue against the Appellant, and this Court cannot say that it was wrong."
In respect of sanction, the Judge adopted the submission of Counsel for the Respondent namely that (para.57) "… the determination on sanction is a model of elegant sufficiency rather than an exemplar of poor practice".