Christopher Geering
Editor
Foreword
Welcome to the 2 Hare Court Professional Discipline Summer Newsletter.
In this issue, Ben Rich addresses the uneasy interaction between freedom of speech and public regulation in Husain. Gavin Irwin looks at Cotham School, and the observations it made about the over-redaction of court documents. Christina Russell examines the extent to which a panel may put prejudicial material out of their minds in Moodliar. Jack Gilliland summarises Thilliainayagam – a rare case of a GMC appeal being heard out of time. Thomas Beardsworth highlights the latest example of DBS overreach in LJCB v DBS. Finally, I look at Suresh and whether the GMC owes a duty of care to its registrants, and provide a brief summary of NMC v Richmond where the NMC got a bloody nose when applying for an IO extension.
It is not every High Court appeal where one of the advocates accuses the other of racism for their skeleton argument – but when the Middle East is the issue under discussion nothing is surprising.
The tone of this appeal can be judged from the fact that Adam Solomon KC, on behalf of the SRA, accused Franck Magennis for Mr Husain of crossing the line from “engaging with the legal question … to making assertions which are simply antisemitic”. “This” he said “should not be tolerated by the court”. He was objecting, among other things, to what he said was Mr Magennis’s use of comparisons between Israel and Nazi Germany. Mr Magennis responded by accusing Mr Solomon of having “a desire to stifle … the appellant’s freedom to fully advance his appeal”.
Mr Justice Chamberlain, in his judgment, was a model of even-handedness. Having noted that the accusation was not withdrawn, and led to what he politely called submissions in “robust terms” he stated that Mr Magennis had done nothing “professionally improper” but that he had gone “further than required to make his point”. He added that he was sure Mr Solomon was “not motivated by any desire to stifle the appellant’s freedom to advance his case”. For good measure, in something of a sideswipe at both advocates, he suggested that “legal representatives would be well-advised to focus rigorously on the issues the court has to determine” and aim to “lower, rather than raise, the temperature of debate”.
The substance of the appeal was Mr Husain’s attempt to overturn the decision of a Solicitors’ Disciplinary Tribunal to strike him off for a series of tweets over nine months from October 2020 to June 2021. While the tweets themselves significantly pre-dated the Hamas massacre of more than 1200 people, mainly Jews, on 7th October 2023, and the war in Gaza that followed, most of the Tribunal hearing and the appeal took place with those events as the background…
Cotham School v Bristol County Council & Anor [2025] EWHC 1382 (Ch) is a blockbuster of a case, guaranteed to excite the passions of any English woman or man. It concerns the status of a piece of land registered as a village green, the use of which as playing fields by a school is contested. As the trial judge put it on 10 June 2025:
“Each side has tried its utmost to persuade the court that it is right. Each side has put in evidence and made arguments seeking to support a conclusion that, if it should not win, the consequences will be practically apocalyptic.”
You can almost hear the school song drifting over the roar of the burning torches and the clash of pitchforks. But, you may be asking yourselves, “what has this to do with professional discipline?”
Tucked away at paragraphs 96 to 98 of the 110 page judgment, HHJ Paul Matthews, sitting as a Judge of the High Court, made the following observations in relation to the redaction of the trial bundles:
“I call attention to th[e] one matter which concerned me. This was that far too many of the documents in the bundle had been redacted, usually to remove names and other personal details of individuals. As a general proposition, this should not happen.”
The judge went on to say that:
“… in these modern times those who handle documents containing personal data (particularly in public sector occupations) are used to routinely redacting documents before allowing third parties to see them, because they do not wish to fall foul of data protection rules. But, in deciding a case like this, with events over many years to consider, and many people involved from different organisations, it makes the court’s job much more difficult if the identities of those sending or receiving letters or emails, or taking part in meetings, are anonymised from an excess of data protection zeal. I remind all parties (and indeed all readers of this judgment) that the data protection legislation contains wide exemptions for the use of personal data in legal proceedings, so that liability will not attach to the disclosure of personal data for the purposes of these proceedings: see eg the Data Protection Act 2018, section 15, Sch 2 paras 5 and 14.”
Further, given that…
The appeal of Dr Moodliar against the finding of the Medical Practitioners Tribunal that she had acted dishonestly, and its direction for her erasure from the register of doctors, raised a plethora of issues and makes useful reading in relation to them all. The misconduct was in relation to the writing of an expert report and was comprehensive – including dishonesty, inadequate experience, and plagiarism (summarised at §113 of the Judgment).
The seven areas of challenge were:
The Judge dismissed entirely challenges in relation to the tribunal’s approach to its findings of fact – describing these grounds as “hopeless” (§69). The grounds on adequacy of reasons had “no merit” (§86) because the tribunal decision clearly identified the matters which were critical to its findings of fact, ditto the ground as to error of law on the dishonesty test…
Dr Thillainayagam was found guilty of misconduct by the MPTS, resulting in a one-month suspension. He sought to appeal within the statutory 28-day time limit set out in section 40 of the Medical Act 1983. However, his solicitors mistakenly filed the appeal in the King’s Bench Division rather than the Administrative Court, resulting in the appeal being lodged three days out of time.
Mrs Justice Lang considered the correct approach to applications for an extension of time. While the legislation does not expressly provide for such applications, section 3 of the Human Rights Act 1998 requires the court to interpret and apply legislation compatibly with Convention rights. In doing so, the court may allow an appeal to be made out of time in exceptional circumstances.
Dr Thillainayagam applied for an extension on the basis that the circumstances were exceptional. In the alternative, he argued that filing in the King’s Bench Division amounted to valid service on the High Court, or that the error could be remedied under CPR 3.10 – this provides the court with the power to rectify errors of procedure.
Mrs Justice Lang rejected both alternative arguments. In relation to CPR 3.10, she held that it would be inappropriate to invoke the rule where the appeal had already been refiled correctly in the Administrative Court, implicitly acknowledging that the ground might otherwise have succeeded had the error not already been cured…
LJCB v Disclosure and Barring Service [2025] UKUT 117 is a striking case in which the Upper Tribunal found that the DBS had erred in its decision to include the appellant in the adults’ barred list on the basis of a “personality assessment” rather than focusing on whether her conduct amounted to “relevant conduct” as required by the statutory regime.
LJCB was, at the time of the barring decision, a care worker. She was able to commence that work prior to the DBS’s barring decision and there was no suggestion of any failure at work. The substance of the DBS’s concern lay instead in her difficult domestic life. LJCB was approximately 30 years old and had endured multiple abusive relationships with men. Two children had been removed from her care by the Family Court in 2015 and 2022 in that context. Importantly, LJCB’s particular actions with respect to the children were not impugned, but the DBS in its decision commented adversely on her failure to protect her children from the abusive relationships. It was said that the DBS:
“… remains concerned that you demonstrated poor problem solving and coping skills in relation to being able to protect your children and as a result that they have been exposed to neglect, emotional and potentially physical harm …”
Under the provisions contained in Schedule 3 of the Safeguarding Vulnerable Groups Act 2006, it is a condition precedent to joining the adults’ barred list that the person “has engaged in relevant conduct” (paragraph 9). “Relevant conduct” is defined in paragraph 10 as conduct “which endangers a vulnerable adult” or is likely to do so, and conduct “which, if repeated against or in relation to a vulnerable adult, would endanger that adult” or be likely to do so[1]. There is no definition of “conduct” itself.
The DBS considered that LJCB’s failure to safeguard her children amounted to conduct falling into the second category, that is, conduct “which if repeated” against a vulnerable adult might endanger them. It was said that…
On 16th April 2018, the GMC received information from the police that a 15-year-old patient had alleged that a consultant anaesthetist, Dr Sridharan Suresh, had sexually assaulted her. It opened an investigation. On 1st May 2018, the GMC contacted Dr Suresh, and the following day he was informed of the GMC investigation, and that the case would be sent to an Interim Orders hearing.
This came as a shock to Dr Suresh. He already knew that the police were looking at the case, and it was said he expected them to close it. It was claimed that the Trust he worked at told him that they were not referring him to the GMC. However, the police did.
Later that day, Dr Suresh’s body was found in the River Tees. He had taken his own life. It later emerged in court that the evidence of identification given to the police was inconsistent with the perpetrator being Dr Suresh.
Following his death, Dr Suresh’s widow and children brought a claim in negligence against the GMC alleging that in carrying out its functions as regulator, the GMC had breached its duty to take all reasonable care to avoid acts or omissions which might foreseeably cause Dr Suresh psychiatric injury. In addition, they also alleged that the GMC had acted incompatibly with ECHR art.2 because it knew or should have known that Dr Suresh was at a real and immediate risk of suicide.
The GMC applied for, and received, summary judgment in respect of both claims. This article will limit itself to the first limb – the attempt to impose a duty of care on the GMC towards its registrants.
In rejecting the notion of a duty of care, the court did not base its analysis simply on policy considerations per se. Rather, it observed that “the potential liability of a public authority in negligence can be restricted by relevant statutory powers and duties”. In other words, a duty of care would be inconsistent with the duties imposed on a public authority by Parliament…
When the NMC recently applied for an extension to Ms Richmond’s interim order of conditions, the High Court was none too impressed. The basis of the order may be summarised as follows:
The initial interim orders panel based its decision on the negative public perception of a practitioner being able to practice unrestricted in light of such allegations. At the most recent review the panel considered there was no evidence of patient harm, but there was potential risk for considerable harm if this behaviour were repeated. It went on: “The panel concluded that a member of the general public would be concerned if a midwife in a senior position, who had allegedly made discriminatory remarks, continued to practise unrestricted“.
In doing so the High Court considered the panel had repeated the very error addressed in NMC v Persand [2023] EWHC 3356 (Admin) where an NMC panel had made similar observations that “an informed member of the public would be concerned if a registered nurse facing such allegations was allowed to practise without restriction whilst an investigation was carried out by the NMC “.
In the instant case, the court quoted and endorsed Persand at length…
SUMMARY In 2017 a 24-year-old woman, Louella Fletcher Michie, died at the Bestival Music Festival,…
On the 3rd November 2020, Kadian Nelson abducted and raped a 13 year old girl…
