CO/4262/2014 
Neutral Citation Number: [2014] EWHC 4079 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
The Courthouse 
 1 Oxford Row
Leeds
West Yorkshire
LS1 3BG  

Wednesday, 1st October 2014
 
B e f o r e: 

HIS HONOUR JUDGE BEHRENS 
(Sitting as a Judge of the High Court)
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Between: 
GENERAL MEDICAL COUNCIL 
Claimant

v 

MAKKI 
Defendant 
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Mr C Garside QC appeared on behalf of the Claimant
Mr M Hayton QC appeared on behalf of the Defendant
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J U D G M E N T
1.	HIS HONOUR JUDGE BEHRENS:  This an application by the General Medical Council to extend the period for which conditions have been imposed by the Interim Orders Panel on Dr Makki.  The position is that the first order was made on 3rd October for a period of 12 months.  It has been reviewed on 25th March 2013 and on 6th August 2013.  On 16th September 2013 His Honour Judge Pelling extended the order for a period of 5 months.  The order was reviewed by the IOP (Interim Orders Panel) on 4th December 2013 and was re‑extended by His Honour Judge Davies for a period of 7 months on 26th February 2014.
2.	At the hearing before Judge Davies Dr Makki was not represented but he did appear and opposed the extension.  Although Judge Davies extended the order he removed one of the conditions as being unnecessary.  Judge Davies produced a helpful and full written judgment. It is not necessary to refer to it in detail.  However it is to be noted that in paragraph 20 he accepted that the General Medical Council had acted with reasonable expedition since the order of Judge Pelling and he said in paragraph 21 that he was satisfied that all of the conditions other than condition 15 should be extended.  The conditions that remained were notification conditions, requiring notification to the General Medical Council and other bodies that he was under restrictions.  Condition 5, which Judge Davies removed, required Dr Makki to be chaperoned in relation to female patients.
3.	It was hoped that the General Medical Council proceedings would be concluded within the 7 month period of Judge Davies' extension.  For a variety of reasons they have not been concluded.  There was a hearing in August 2014. The most important evidence is the evidence of Patient A. Patient A has turned out to be a vulnerable witness.  The General Medical Council have decided that she should give her evidence by video link It was not possible for her to give evidence initially but when she did give her evidence by video link and there were problems with the video link with the result that it was not possible to have full days.  So far as I am told she has been giving evidence for approximately one day.  Her evidence is not concluded.
4.	The current position is that the hearing is adjourned until 20th October 2014. It is listed for a significant number of days. It is anticipated that the hearing will end by 7th November 2014.
5.	The parties anticipate that that by that date the Fitness to Practise Panel will have been able to determine all three stages of the proceedings.  The cross‑examination of patient A has to be concluded.  Dr Makki has to give evidence and then there are submissions and time for the Panel to consider the position.  It is common ground, of course, that I have no jurisdiction or no power to form any view as to the merits or otherwise of the allegations that have been made.
6.	The General Medical Council, in these proceedings, are according applying for an extension of the order until approximately 6 weeks after the anticipated conclusion of the hearing, that is to say, 7th November 2014.  The date that they have selected is a date in mid‑December.  It is perfectly possible that by 7th November there will be a result to this case. If there is a result to this case the interim orders will vanish or go because they will be succeeded by final orders.
7.	Having said that, there is a possibility that the case will not conclude on 7th November 2014; it is for that reason that a date 6 weeks after has been chosen and because the General Medical Council may wish to apply for a further extension and the procedure involved and the time necessary to do that means that it is unlikely that a court hearing could be obtained in less than approximately 6 weeks.  That is the reason that they have selected that date.
8.	I have helpfully been referred to the leading authority in this area of the law and in particular the judgment of Arden LJ in GMC v Hiew [2007] EWCA 369.  It is not necessary for me to read out large passages or any passage of the judgment.  Mr Garside has helpfully set out paragraphs 26 to 33 in his skeleton argument.  He has drawn to my attention section 41A(7) of the Act, which makes it clear that the High Court does have power and Mr Hayden has helpfully drawn to my attention the more recent of case of Shorten v GMC(?) where Supperstone J stressed it was necessary for a balancing exercise to be carried out between the risk to the public and the impact upon the doctor.
9.	When one analyses the position here the position, in my view, is that there is a small risk to the public and there is a small impact on the doctor.  These conditions come into play if and only if Dr Makki were to change his employment between now and the end of the hearing and I accept that that is unlikely to happen.  In those circumstances, the conditions are having very little impact on the doctor.  
10.	I have been shown a letter from his current employer, Care Links, which makes it clear that the proceedings themselves are having an impact upon Dr Makki because, as a result of the publicity surrounding the proceedings the employer has taken a review of his working arrangements and he is not currently carrying out any role that required direct patient contact.  Plainly that is a prejudice to Dr Makki.  But, as I have indicated in the course of the argument, that is a prejudice not caused by the conditions. because the employer was perfectly prepared to permit patient contact. It is prejudice resulting from the publicity caused by the proceedings themselves.
11.	Plainly the delays to this case are unfortunate and are of course having an effect on Dr Makki.  But I agree with Mr Garside that the current delays cannot be attributed to the General Medical Council.  It is unfortunate that Patient A is a vulnerable witness.  But that does not mean that it is inappropriate or was inappropriate for the General Medical Council to attempt to obtain her evidence in the way that they have done so.  Indeed, I think one would say that they are obliged to do what they have done.  It was unfortunate that the video link did not work.  The position is that this case has taken longer than was anticipated and I do think, like Judge Davies, that there is a small risk to the public if Dr Makki’s version of events is not accepted.  In those circumstances, and especially in the light of Dr Makki's current attitude, it may be thought that there is a small risk which requires some sort of notification.  Therefore, I adhere to the view of Judge Davies and I propose to extend the conditions until 6 weeks after the anticipated date of the final hearing, that is to say until the middle of December. It seems to me that a period of 6 weeks is a reasonable period in the light of the time it will take for a court hearing.  
12.	MR GARSIDE:  Is it a specific date, the 18th? 
13.	 HIS HONOUR JUDGE BEHRENS:  I have to have a specific date.  Provided I am assured that the 18th is neither a Saturday nor a Sunday.  
14.	MR GARSIDE:  Can I just check because it had not occurred to me (Pause).  It is a Thursday my Lord.
15.	HIS HONOUR JUDGE BEHRENS:  Shall we say Friday.
16.	MR GARSIDE:  The 19th.
17.	HIS HONOUR JUDGE BEHRENS:  The 19th. Do you object?
18.	MR HAYTON:  No, I do not.
19.	MR GARSIDE:  My Lord, I am instructed to apply for costs.  There should be somewhere in your Lordship's papers a costs schedule.  In case it is not handed...
20.	 HIS HONOUR JUDGE BEHRENS:  It is here.  I am not interested in the figures at the moment, I am interested in ... bearing in mind you had to make this application in any event.  It may be it could have been more cheaply if it had not been opposed but you could not make the application plainly it is not right ‑‑
21.	MR GARSIDE:  My Lord, the General Medical Council as a matter of routine and in this case says to doctor/defendants in these circumstances ‑‑
22.	HIS HONOUR JUDGE BEHRENS:  If you consent ‑‑ 
23.	MR GARSIDE:  ‑‑ if you consent there will not be an application for costs.
24.	HIS HONOUR JUDGE BEHRENS:  I understand that.  Given that he did not consent is it right, given you had to make this application in any event, that he should pay the whole of the costs?
25.	MR GARSIDE:  My Lord, he is represented by solicitors who are paid for by insurers as I understand it, and I appreciate entirely that the court's mind will be concerned lest there be undue financial burden ‑‑
26.	HIS HONOUR JUDGE BEHRENS:  When I get applications for relief, I take the view that there should be no order for costs for making the application but it may be that once they are opposed then the costs after the opposition should be paid by the defendant.  You had to make this application in any event.  You are going to incur a court fee for example.
27.	MR GARSIDE:  My Lord.  We did have to make the application.
28.	HIS HONOUR JUDGE BEHRENS:  Exactly.  Therefore why should he pay all of your costs?  That is all I am asking at the moment.
29.	MR GARSIDE:  The only answer I can give is that if Dr Makki had conceded he would not have had to pay costs.
30.	HIS HONOUR JUDGE BEHRENS:  That is not here nor there.
31.	MR GARSIDE:  The normal course of events if people contest litigation is they end up paying ‑‑ 
32.	HIS HONOUR JUDGE BEHRENS:  Not if it is an application you have to make in any event.  But if they wrongly oppose it, which you are going to say he did, then they pay the costs after a certain date.
33.	MR GARSIDE:  My Lord ‑‑
34.	HIS HONOUR JUDGE BEHRENS:  There we are.
35.	MR GARSIDE:  I cannot say any more than I have already said.
36.	MR HAYTON:  He does have to make the application and it is the third time it has been made.  No previous order has been made in relation to the General Medical Council costs against the doctor.  This doctor was quite entitled to have a hearing which is unusual, as I say, a third extension hearing.  In those circumstances there should be no costs either way.
37.	HIS HONOUR JUDGE BEHRENS:  Of course you can come back on that.
38.	MR GARSIDE:  It is not that my Lord.  The claim is a claim only for work done in connection with the hearing, it does not include a claim for issuing the proceedings or getting them ready.
39.	HIS HONOUR JUDGE BEHRENS:  You are only applying for the costs after a certain date; is that right.  Costs of the hearing today? 
40.	MR GARSIDE:  Of the hearing and preparing for the hearing in the sense ‑‑ 
41.	HIS HONOUR JUDGE BEHRENS:  If that is correct, that more or less deals with my point.
42.	MR GARSIDE:  My Lord, again, I can give your Lordship precise information as to what is included if your Lordship would just give me a second.
43.	MR HAYTON:  Whilst that is being done, of course the application still had to come before the court and still there has to be representation.  The court would still have to be persuaded that all of the statutory framework had been complied with and it was appropriate for the application.  It cannot just be done on the nod.  As I say, this is a doctor who is now here for third application.  He has not been truculent throughout.  He attended without lawyers on the last occasion, which he could have insisted upon and as I say no previous order.  In a sense my learned friend's application becomes weaker each extension application that he makes.
44.	HIS HONOUR JUDGE BEHRENS:  Thank you very much.
45.	MR GARSIDE:  My Lord, what this includes is creating the hearing bundle, drafting instructions for me and dealing with the skeleton argument in addition to today's hearing.  As far as the point my learned friend makes is concerned, experience teaches that in cases where the parties consent to an extension, I do not say no judge has ever refused to agree but I know of no case where an agreed extension has ever been ‑ what is the word I am looking for ‑ questioned by the court.  A consent is invariably granted.
46.	HIS HONOUR JUDGE BEHRENS:  Thank you very much indeed.  On paper? 
47.	MR HAYTON:  Absolutely, there is no rehearing.  I have been ‑ how can I put it ‑ been involved in many cases where I have been instructed and the instructions are withdrawn because agreement has been reached.
48.	 HIS HONOUR JUDGE BEHRENS:  I agree with that this is the third occasion.  But this is a case which has to a large extent been fought in principle which, as I have indicated, the prejudice to Dr Makki is very small indeed by this order.  The case is adjourned over a period of 6 or 7 weeks.  I take the view that it was in fact unreasonable of Dr Makki to oppose this order.  In those circumstances I do think it is appropriate for there to be an order for costs.  I was at one stage concerned that as the application had to be made in any event he should not get all of his costs.  I am now told that the claim for costs, which is in the sum of £1,477.10, is not in fact a claim for the costs of the whole application, it is simply the additional costs caused by the hearing today.  The total sum of £1,477 is not an enormous sum, it seems to me to be reasonable.  I propose to assess costs in that sum.
49.	MR GARSIDE:  Thank you very much my Lord.