Mr Justice Royce :
Introduction
- This hearing conducted on 18th and 19th December 2006 was concerned with the following applications:-
i) The application of 22nd September 2006 by the first to fourth and ninth to eleventh Defendants to strike out Dr Colman's Particulars of Claim or for Summary Judgment against Dr Colman and for an extended Civil Restraint Order against Dr Colman in claim HQ06X01026.
ii) The application of the fifth and sixth Defendants to strike out Dr Colman's Particulars of Claim or for Summary Judgment against Dr Colman in claim number HQ06X01026.
iii) The application of the seventh and eighth Defendants to strike out the Dr Colman's Particulars of Claim or for Summary Judgment against Dr Colman in claim number HQ06X01026.
iv) The application of the Defendant dated 26th October 2006 to strike out Dr Colman's Particulars of Claim or for Summary Judgment against Dr Colman in claim 6NR04863.
The Defendants in claim number HQ06X01026
- The first Defendant (Mr Scott) has been the GMC's Chief Executive since 10th September 1994. The second Defendant (Miss Nisbett) was the GMC's Director of Fitness to Practise from 15th March 1999 to 8th October 2001, and Director of Policy from October 2001 to April 2003. The third Defendant (Mr Ketteringham) was Director of Corporate Affairs from 3rd April 2000 to 14th July 2006. The fourth Defendant (Professor Graeme Catto) has been the President of the GMC since 1st February 2002, and has been a member since 1st November 1994. The ninth Defendant (Lord Walton) was President of the GMC from 17th February 1982 to 16th February 1989. The tenth Defendant (Mr Gray) was the Deputy Registrar of the GMC from 1st November 1971 to 1st February 1988. The eleventh Defendant is the GMC. All those Defendants are represented by Mr Robert Englehart QC and Miss Callaghan.
- The fifth Defendant (Dr Diggory) is a Consultant in Geriatric Medicine at Mayday University Hospital Croydon. He is married to Miss Franks (the sixth Defendant) who is a consultant ophthalmologist at Moorfields Eye Hospital. Miss Franks was a Senior House Officer at the Norfolk and Norwich Hospital at the time when Dr Colman was also there as a medical student or locum. They are represented by Mr Stephen Miller QC and Miss Neenam.
- Dr Harris (nee Brown), the seventh Defendant, was the District Medical Officer ("DMO") for Great Yarmouth and Waveney Health Authority from 1984 until her retirement in 1990. Professor Sherwood, the eighth Defendant, was the Clinical Dean of the University of Cambridge Medical School of Clinical Medicine from 1984 to 1996. They are represented by Mr Andrew Kennedy.
The Claimant
- She is a doctor and barrister. She appeared on her own behalf. However I permitted for part of the first day a friend of hers Dr Fergusson to address me on her behalf, as it was contended that she was not really well enough to address me herself. However it became clear that she was well able to address me and did so advancing arguments in support of her application for an adjournment. I do not propose to repeat my reasons for rejecting that application. She did not attend on the second day of the hearing sending a fax with her reasons a little after 11.00 am. Again I do not propose to repeat my reasons for determining that the hearing should continue. However I indicated that Dr Colman could make further written submissions within seven days and I would take them into account.
She was emailed by the Defendant's solicitors in these terms "as you are aware, the Defendants put before the court skeleton arguments in support of their applications. The Judge indicated as an indulgence he may be prepared to consider further written submissions, to be received by the court within seven days of today (19th December)." Dr Colman has sent a further skeleton running to thirty two pages. She has also chosen to send two further witness statements by her one running to seventy six pages and the other running to fifty nine pages. In addition she has sent two lever arch files of documents running to five hundred and fifteen pages. It was not the intention that she should be allowed to submit further evidence. The position is unsatisfactory because the Defendants have not had an opportunity of considering the further evidence or of responding to it.
- I have considered whether there should be a further days hearing to enable that to take place. Having read the new material I do not consider that the additional cost of delaying for a further day's hearing would be justified. I propose to take it into account whilst bearing in mind that this material was not served at the proper time and there has therefore been no opportunity for the Defendants to respond to it.
Claim number HQ06X01026
The GMC's powers and functions
- The GMC is a body corporate with statutory functions assigned to it by the Medical Act 1983; its Council consists of elected, appointed and nominated members. One of the GMC's functions under the Medical Act is to maintain the Register of Medical Practitioners.
- At the relevant time, the GMC had various statutory committees, including the Professional Conduct Committee ("PCC"). The PCC had the function of inquiring into cases referred to it under section 42 of the Medical Act, that is cases of criminal convictions or serious professional misconduct on the part of practitioners. Under section 36 of the Medical Act, where the PCC found that a registered practitioner had been convicted in the British Isles of a criminal offence or found that a registered practitioner had been guilty of serious professional misconduct, it had the power to direct that the practitioner's name be erased from the Register; or his registration be suspended; or that his registration be made conditional on compliance with conditions specified by the PCC. At the relevant time, the PCC consisted mainly of members elected by the Council on an annual basis. In addition, Council members could be co-opted to sit on the PCC and other committees.
Factual background
Pre-registration training of Dr Colman
- The witness statement of Mr Mitchell in support Dr Harris' and Professor Sherwood's application sets out part of Dr Colman's history which gives rise to part of her present complaint. Dr Colman was taken on as a pre-clinical medical student by Lucy Cavendish College Cambridge. She failed parts of the Cambridge second MB but was given leave to resit those parts and eventually passed.
- She then proceeded with her clinical studies but again failed part of her final MB, in pathology. On 18th January 1983 the Faculty Board agreed that she should be permitted one further attempt following three previous failures. In fact she went on to take and fail the pathology examination a total of seven times. She was eventually successful in exams conducted by the Society of Apothecaries from whom she obtained the qualification LMSSA which entitled her to provisional registration with the GMC. In order to obtain full registration she was then required by section 10 of the Medical Act satisfactorily to complete 12 months service as a pre-registration house officer. The University of Cambridge remained responsible for the supervision of Dr Colman's pre-registration house office posts and had the statutory function of certifying that she had completed the requisite satisfactory service.
- Dr Colman did not satisfactorily complete her two 6 month pre-registration posts. From 1st August 1984 to 31st January 1985 she was employed by Great Yarmouth and Waveney Health Authority as a pre-registration house surgeon based at James Paget Hospital. At the conclusion of the post, Dr Colman's consultant, a Mr Sansom, concluded that he was unable to provide a certificate of satisfactory service. From 1st February 1985 she was employed by Central Nottinghamshire Health Authority as a pre-registration house physician based at King's Mill Hospital, Sutton in Ashfield. She was suspended from this post after only four months.
- Dr Harris (for Great Yarmouth and Waveney Health Authority) and a Mr Mousley (for Central Nottinghamshire Health Authority) subsequently corresponded with the GMC about Dr Colman's pre-registration posts. Professor Sherwood also corresponded with the GMC to explain the University's decision at that time not to provide the certificate of satisfactory service necessary for Dr Colman to proceed to full registration.
Dr Colman's erasure from the register
- Following complaints about Dr Colman to the GMC it instituted disciplinary proceedings in July 1986. In accordance with rules 5 and 6 of their Procedure Rules Mr Gray (as Deputy Registrar of the GMC) was required to refer Dr Colman's case to Lord Walton (as the President of the GMC). In accordance with rule 10 of the Procedural Rules, the President duly referred the case to the Preliminary Proceedings Committee ("PPC"), which in turn determined that the matter should be referred to the PCC for inquiry.
- From 16th to 20th March 1987 the PCC heard an inquiry into heads of charge against Dr Colman which were that she had:-
A. Being registered under the Medical Act:-
i) During the latter part of 1984 and in January 1985 whilst employed as a house officer at the James Paget Hospital, at Great Yarmouth repeatedly uttered remarks in the presence of nursing staff depreciating the character and professional abilities of Dr (A) a doctor at the hospital.
ii) Failed to attend a patient (Mr Y), who had suffered a cardiac arrest, as a matter of urgency;
iii) At King's Mill Hospital, Mansfield on 18th May 1985 refused to attend a patient (Mrs X), who was experiencing chest pains and extreme difficulty in breathing and in refusing to attend spoke in an inappropriate threatening manner to a staff nurse;
iv) At King's Mill Hospital on 5th June 1985 used offensive and abusive language towards a member of the nursing staff
B) Being convicted on 14th June 1985 on one charge of driving whilst unfit to drive through drink or drugs;
C) Being convicted on 21st October 1985 on a charge of failing to provide a specimen of breath;
D) Being convicted on 28th February 1986 on a charge of driving whilst disqualified.
- None of the current individual Defendants sat on the panel for the PCC hearing at which Dr Colman's case was heard and decided.
- Dr Colman admitted the driving convictions but disputed the factual matters underlying the other heads of charge. She was represented at the hearing and gave evidence. It was her case that the allegations were false and in effect the witnesses had put their heads together to concoct a false story. The Committee found the charges proved with the exception of charge number (ii). The Committee found her guilty of serious professional misconduct and it directed the erasure of her name from the Register. She did not lodge any appeal against that decision.
Restoration to the Register
- Dr Colman made an unsuccessful application to the PCC on 14th March 1988 for restoration of her name to the Register. She made a further application in July 1989 presenting medical evidence that her conduct had been the result of a temporo – limbic disorder which resulted in episodic dyscontrol. Dr Curson and Dr Eames were called in support of this proposition.
- Dr Colman in her written submissions places emphasis on questions from the Chairman of the Committee Mr Bolt to Dr Curson:-
Q. This Council is not greatly in the business of punishing people but it is in the business of protecting the public
A. Yes I know sir
Q. If the circumstances surrounding this case had been fully known at the time of the original hearing there is no doubt in my mind that the matter would be in the hands of the Health Committee, where it ought to have been.
A. Yes sir
Q. But equally this Committee has, at this point, absolutely no authority to do anything but one thing, or at least one choice: it has either to restore Dr Colman Archer to the Register on the terms which she was on it before without any kind of imposition or conditions, or else to say "no, we do not restore her" and in reaching that decision clearly the Committee must be influenced by the question of the safety of the public.
Dr Curson in answer a little later indicated that in his view if she continued to take the medication she would not represent a danger to the public
- What Dr Colman now says about this aspect of the matter can be seen at paragraph 20 and 21 of her submissions of 19th December 2006.
" David Bolt's statement was as a result of Dr David Curson's evidence and is crucial to the understanding of what happened to me whilst a council member. Dr Curson had decided to diagnose me as suffering from episodic dyscontrol (a misdiagnosis and incorrect – confirmed by Dr Peter Fenwick in 2001). The further damage was done then and that damage was carried over through the intervening years, when I found employment impossible to get. After I was elected in 2000 and then the GMC decided to drag out the transcript with Dr Curson's evidence, and crucially after I had given Donald Irvine a copy of the attendance note in January 2001, use it at every opportunity in a whispering campaign to frustrate my election position. The position with Dr Curson in 1989, and which I was forced to submit to in order to have my registration back, was that I would admit I had been secretive and not let the GMC have access to my doctors in 1987. However at that time there is evidence that there was nothing to suggest that I suffered from anything serious and akin to a psychosis and was only suffering from a reactive depression in December 1986, which is unsurprising under the circumstances. When I told doctors, which included Dr Curson that, the problem was that Robert Gray said I was a psychopath who would be erased the reaction was under those circumstances I had to prove that I was not a psychopath, rather than anyone challenge the GMC about Gray, and to that end I would have to accept an alternative diagnosis, admit blame and take the medication. By 1998 I had become seriously ill with a severe leucopoenia as a side effect of Dr Curson's medication which also acted as a "chemical cosh". I therefore stopped it immediately and brightened up and began to have serious misgivings to what had really happened. I was tricked and also bullied by Dr Curson especially, into something which was beyond my control, in order to maintain the veil of secrecy concerning the GMC's practises which were known to the MPS and Le Brasseur.
Regardless of what Dr Curson and others had done then, the accepted position, in a public hearing and was that I should have gone before the Health Committee, and that remained in position until at least late 2001. If that is the case, which had to be accepted then, then as the Health Committee cannot find for serious professional misconduct I do bear an erroneous finding of serious professional misconduct against my name and the ignominy and shame which that continues to place on me as a professional person who cannot get work because of it. It has only now become more obvious to me this summer and as a result of a meeting with the MPS and Gary Allison that at that point and in spite of being restored the proper step thereafter, which the MPS ought to have suggested, would have been to have challenged the original finding against me in light of Mr Bolt's public statement. Restoration to the register had no real meaning as under the circumstances and the publicity surrounding the hearing in 1987, which was orchestrated by the GMC, it meant that even when armed with my registration certificate I could not find employment long term."
- It appears that she now maintains that she should not have admitted what she did admit at the restoration hearing and that she was tricked and bullied by Dr Curson into doing so. Dr Curson is not a Defendant in this action.
- In giving evidence at the restoration hearing when asked about the matters about which she had been charged arising out of her time at the James Paget Hospital she responded as follows "I think it is perfectly possible that my behaviour here could have been quite peculiar on occasions. I perfectly well accept that. I did not at the time. I did not really understand what was going on, and I have always accepted that I was guilty of drunk driving." (She was it would appear about four times over the limit).
Dr Colman's application for full registration 1989/1990
- Following Dr Colman's restoration, as the University of Cambridge still had responsibilities for her as a pre-registration doctor, Professor Sherwood was informed of the position. His initial reaction, in the absence of any new information about Dr Colman's experience, was that the decision of the Joint Pre-Registration Committee on 1st October 1986 must stand i.e. that Dr Colman needed to undertake a further period of 6 months satisfactory house physician work before she could be fully registered.
- Dr T R Mitchell, Associate Dean, then took on the day to day handling of Dr Colman's case, and some of the correspondence concerning her experience and application for full registration. Following a discussion with Professor Sherwood and Dr Mitchell it was agreed to seek the views of the consultant physicians at Addenbrookes Hospital in Cambridge, bearing in mind what was still at that time the apparent need for Dr Colman to complete a further 6 months as a house physician. Professor Sherwood discussed the issue with Dr Coni who was Chairman of the Medical Division at Addenbrookes. Dr Coni reported back to Professor Sherwood the "unanimous view" of the consultant physicians who had attended the meeting (which Professor Sherwood himself did not attend), that "they would not wish to appoint as their house physician a provisionally registered person who had failed to achieve the standards taught and examined in their own hospital and school i.e. someone who had not been able to pass the Cambridge final MB in repeated attempts."
- Following a letter dated 2nd November 1989 from Dr Colman to Dr Mitchell, Professor Sherwood wrote to Dr Mitchell on 6th November 1989 and confirmed at that stage nothing had changed with regard to the view of the Pre-Registration Committee that 6 months continuous service would still be required. In the same letter Professor Sherwood anticipated that if the position with regard to King's Mill Hospital changed then "we are in a new situation and the Pre-Registration Committee will have to meet."
- In a letter of 24th December 1989 from Dr Kochanowski, Dr Colman's consultant at King's Mill Hospital, he said "I see no reason why the experience gained at King's Mill should not count towards her pre-registration period of general clinical training." In consequence on 8th January 1990 Professor Hayward wrote "now that the consultant physician to whom she was attached as houseman says it was alright, there would seem no reason why we should put obstacles along the course to full registration."
- On 16th February 1990 Professor Sherwood wrote to the GMC saying "it appears to us that this means that there is an acceptable record of one years pre-registration service attested by a consultant physician and surgeons to whom she was attached … we propose therefore to issue the standard form FR1A of pre-registration completion from this university, unless you advise us to the contrary."
- The GMC agreed with Professor Sherwood's interpretation of the position and on 26th March 1990 Professor Sherwood wrote to the GMC as follows
"thank you for your letter about Dr Colman Archer of March 23rd. We are most grateful for your advice here at Cambridge, where our Joint Pre-Registration Committee, representing the University and NHS have had a careful discussion. On their advice I shall sign a form FR1A for this applicant, and forward it to the Society of Apothecaries."
Professor Sherwood signed the relevant Certificate of Experience on 29th March 1990.
Election to the GMC
- In January 2000 Dr Colman stood as a candidate in a by election to replace a medical member of the GMC. Her candidate statement described her occupation as "medically qualified barrister". It made no reference to her erasure from or restoration to the Register or to her previous criminal convictions. At that time, candidates for election were not required to disclose such matters.
- Dr Diggory corresponded with the GMC about Dr Colman's candidacy in the election. In particular he raised concerns about the lack of information available to the electors concerning candidates and about the impact on the public confidence in the GMC. His correspondence was critical of the GMC electoral procedure. In response, the GMC defended Dr Colman's right to stand for election. There were at this time a number of press articles concerning Dr Colman's candidacy in the election.
- Dr Colman was in fact elected as a medical member of the GMC on 26th April 2000.
Dr Colman's co-option onto the PCC
- There was some controversy in the GMC about the appropriateness of someone whose name had previously been erased from the Medical Register adjudicating on cases of serious professional misconduct. In fact Dr Colman initially agreed that she would not serve on the PCC for the first six months of her elected term. However on 14th February 2001 the PCC decided to co-opt her to the PCC for the period to 30th June 2001. Subsequently it decided to renew the co-option of all GMC members until 31st December 2001. Dr Colman subsequently sat as a member of PCC panels on six occasions without incident. She received training from the PCC, in exactly the same way as all other members, to enable her to perform her functions as a member of the PCC.
- On 19th to 21st June 2001 Dr Colman was a member of a PCC panel convened to hear the case of a Dr Robson. At the hearing she embarked on a series of questions to Dr Robson which indicated she had misunderstood the burden of proof, and apparently had come to a decision on the facts even before having heard Dr Robson's evidence and was apparently biased against Dr Robson. Following intervention from the legal assessor, Andrew Pugh QC, and an application by Dr Robson's counsel, Dr Colman agreed to stand down from the hearing. Dr Colman subsequently sought to blame others for what had happened at the hearing, including counsel for Dr Robson, the President of the GMC and Mr Pugh. (See Dr Colman's letter of 19th July 2001).
- This event caused considerable concern both within and outside the GMC; see the legal assessor's letter to the President, newspaper articles and letters in the British Medical Journal. As an interim measure, it was decided that Dr Colman should not sit on PCC panels until the matter had been considered by the PCC. At a meeting on 13th November 2001, the PCC decided to revoke Dr Colman's co-option to sit as a member of the PCC for the period to 31st December 2001.
The independent external review
- Dr Colman made a number of complaints about the conduct of employees and officers of the GMC throughout her membership of the GMC. The GMC's concerns about Dr Colman's attitude towards its staff and about her suitability to serve on PCC panels caused the GMC to set up an independent external review of the issues that had arisen since her election to the GMC.
- The review was carried out by George Staple QC and supported by a secretariat at Clifford Chance.
- Mr Staple's final report became available on 6th February 2003 and was distributed to Council members. In summary, he concluded that Dr Colman was not suitable to serve on the PCC and other committees of the GMC whose work was of a quasi judicial nature. He also concluded that very few of Dr Colman's complaints about the GMC, its members or staff were justified, but where appropriate she had received apologies.
- In the light of the Staple report the PCC decided that Dr Colman should not be empanelled for any PCC panels in the period to 30th June 2003, when her membership of the GMC was due to expire. Although Dr Colman stood as a candidate for election to the Council from 1st July 2003 she was not re-elected. Accordingly, her term of membership ceased on 30th June 2003.
- Since ceasing to be a member of the GMC Dr Colman has pursued unsuccessful legal actions against the GMC arising out of the matters that I have outlined:-
i) [2004] EWHC 634 (Admin). This was an application for Judicial Review against the GMC challenging the lawfulness of the GMC's decision not to empanel her for PCC cases following what had occurred during the hearing of Dr Robson's case. Permission to seek Judicial Review was refused by Elias J on 3rd March 2004.
ii) HQ02X02372. This was an action in the Queen's Bench Division started in 2002. It was struck out by McCombe J on 2nd November 2004. Rix LJ refused Dr Colman (who was now acting in person) permission to appeal on 11th March 2005.
The present proceedings
- The brief details of claim are as follows:-
"the Claimant claims damages (including aggravated damages against the eleventh Defendant) for conspiracy to injure, unlawful interference and breach of contract in respect of the Complainant's membership of the GMC and her practice and status as a Doctor."
- She appears to make five complaints, which are:-
i) Dr Harris, Professor Sherwood, Lord Walton and Mr Gray conspired together "to have Dr Colman wrongfully and unfairly erased from the Medical Register" in 1987 (paragraph 3.1)
ii) Adverse statements were published about Dr Colman which were designed to prevent her election to the GMC in 2000 and destroy her standing if elected (3.3)
iii) After her election there was a deliberate campaign to destroy Dr Colman's career at the GMC and elsewhere (3.4)
iv) The GMC failed to provide any or any adequate training to Dr Colman to equip her with appropriate skills to participate in the hearings conducted by the PCC (4.2)
v) In accepting the findings of the Staple report and in deciding not to empanel her to sit on the PCC the GMC overrode Dr Colman's mandate to serve on the PCC and the GMC (4.4)
Schedule A to the Particulars of Claim purports to set out the individual Defendants involvement in the matters complained of. It is alleged that the GMC is a party to and/or complicit in those matters. Schedule B is a flow chart which purports to explain the connections between the Defendants and various third parties. Schedule C purports to be an interim medical report. It refers to stress because of some event or events on 2nd December 2005. Following a request for clarification of the Claimant's claim against the fifth and sixth Defendants there was served a sixteen page document. That largely quotes from the material served in schedule A and additionally provides a commentary on the extracts. On 31st August 2006 Dr Colman served all the Defendants what purported to be further particulars of her claim.
Power to strike out or to grant summary judgment
- Under CPRr.3.4(2) the court has the power to strike out a case if it appears to the court that:-
a) The statement of case discloses no reasonable grounds for bringing a claim;
b) The statement of case is an abuse of the courts process; or
c) There has been failure to comply with a rule, practice direction or court order.
- CPR 24.2 provides:-
"the court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if:-
(a) It considers that:-
(i) The claimant has no real prospect of succeeding on the claim or issue; or
(ii) The Defendant has no real prospect of successfully defending the claim or issue and
(b) There is no other compelling reason why the case or issue should be disposed of at a trial".
- Examples of Particulars of Claim which fall within CPR 3.4 (2) (a) or (b) include those which are unreasonably vague, incoherent, vexatious or obviously ill founded and those which do not disclose any legally recognisable claim against the defendant; see CPR 3PD.1, paragraphs 1.4 and 1.5. It is an abuse of the court process to allow a party to litigate issues which have already been decided by a judicial tribunal of competent jurisdiction; see CPR 3.4.3.
- In Three Rivers DC v Bank of England (3) [2003] 2 A.C.1 the House of Lords accepted that there was considerable overlap between CPR 24 and part 3.4 and that the same test would often apply. See Lord Hope at paragraphs 88 to 93. Lord Hutton drew a distinction between CPR 3.4 (2) (a), which is concerned with cases in which the pleadings disclose no proper cause of action and CPR 3.4 (2) (b) and CPR 24.2 (a) (i) which are concerned with cases where on the available evidence there is no real prospect of success. See paragraphs 116 to 120.
- In an application for summary judgment the court is required to consider whether there is a "realistic" as opposed to a "fanciful" prospect of success. The respondent must have a case which is better than merely arguable. See Swain v Hillman [2001] All E.R..91. At page 94 Lord Woolf said
"it is important that the judge in appropriate cases should make use of the powers contained in part 24. In doing so he or she gives effect to the overriding objectives contained in part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and, I would add, generally it is in the interests of justice. If a claimant has a case which is bound to fail then it is in the claimant's interest to know as soon as possible that is the position."
Grounds for strike out and/or summary judgment
- Although the grounds advanced by the groups of Defendants are not identical there is a large measure of overlap. The grounds can be summarised as follows:-
i) The facts pleaded do not give rise to the alleged causes of action. There has been a failure to particularise in any proper or comprehensible way.
ii) The claims arising from matters more than six years before the issue of the Claim Form are statute barred.
iii) In relation to the claims against the GMC and GMC Defendants they are an abuse of process because they are either the same as those previously litigated and determined in earlier proceedings between her and the GMC, or they could and should have been raised in those earlier proceedings.
iv) In any event, none of Dr Colman's claims has any real prospect of success against any Defendant.
Defective pleadings – no proper cause of action
Conspiracy to injure
- In Crofter Hand Woven Harris Tweed Co v Veitch [1942] AC 435 Simon L.C. endorsed the following principle:-
i) A combination of two or more persons wilfully to injure a man in his trade is unlawful and, if it results in damage to him is actionable.
ii) If the real purpose of the combination is, not to injure another, but to forward or defend the trade of those who enter into it, then no wrong is committed and no action will lie even though damage to another ensues.
- There are two forms of conspiracy to injure (i) conspiracy to injure by lawful means and (ii) conspiracy to injure by unlawful means. The pleaded case here appears to suggest the former. Such a conspiracy is actionable where a claimant proves he or she has suffered loss or damage as a result of action taken pursuant to a combination or agreement between the defendant and another person to injure him or her, where the predominant purpose of the defendant is to injure. See Kuwait Oil Tanker Co SAK v Al Bader [2000] 2 All ER (Comm) 271 at para 108 cited in Douglas and others v Hello Limited and others (3) [2006] QB 125 at para 153.
- In order to succeed in her claim here Dr Colman must establish the following:-
i) A combination or agreement between two or more defendants or a defendant and a third party
ii) The predominant purpose of the participants in the conspiracy being to injure Dr Colman and
iii) Loss or damage as a result.
- It is a good defence to the tort of conspiracy to injure for the defendant to show its primary purpose was to further or protect its own legitimate interests. The cases involving conspiracy to injure all appear to concern damage to a claimant's business or trade. See Douglas v Hello at paras 152 to 225. It is not sufficient to show damage to reputation or injury to feelings. See for example Lonrho plc and others v Fayed and others (5) [1993] WLR 1489 per Dillon L.J. at 1496c.
- There is also an important difference between the civil tort of conspiracy to injure and a criminal conspiracy as Lord Diplock pointed out in Lonrho Limited v Shell Petroleum (2) [1982] AC 173 at 188:-
"regarded as a civil tort, however, conspiracy is a highly anomalous cause of action. The gist of the cause of action is damage to the plaintiff; so as long as it remains unexecuted the agreement, which alone constitutes the crime of conspiracy, causes no damage; it is only acts done in execution of the agreement that are capable of doing that. So the tort, unlike the crime, consists not of an agreement but of concerted action taken pursuant to agreement."
- On behalf of the GMC Defendants (Defendants 1 to 4 and 9 to 11) it is contended that the Particulars of Claim fail:-
i) To identify the Defendants who are said to have conspired against her (see paras 3.3. and 3.4). Schedule A does not assist in this regard;
ii) To identify how and when some alleged agreement or combination was entered into by the participating Defendants or how the participating Defendants are alleged to have acted in concert together with a common intention (paras 3.1, 3.3 and 3.4);
iii) To plead any facts to support an allegation that the participating Defendants predominant purpose was to harm Dr Colman (paras 3.1, 3.3 and 3.4);
iv) To identify what economic damage is said to have been suffered by Dr Colman. For example in para 3.2 in relation to the erasure complaint, Dr Colman alleges that she suffered damage to her "personal and professional ability"; such damage is not recoverable. In para 3.3, which concerns the election complaint, Dr Colman does not identify any damage at all (and it is hard to understand what economic damage can have been suffered given the successful outcome of the election).
None of these deficiencies have been addressed in Dr Colman's "particularisation" documents or Replies to Defences. These documents do no more than simply set out a chronology.
- On behalf of the fifth and sixth Defendants the matter is put in this way:-
"Dr Colman has failed to particularise her claim in any comprehensible way. It is not clear how she alleges that she has been conspired against, when and by whom. Schedule A headed "chronological schedule of issues" merely gives the name of a defendant (s) together with the date and a brief description of the document. Neither the Particulars nor the schedule identify any facts which would support an allegation that two or more defendants acted in combination with each other for the predominant purpose of injuring Dr Colman in her trade or business. None of these deficiencies have been cured or even addressed in the "Particularisation" documents served on 6th August 2006. Dr Colman's reference to a "conspiracy of silence" as between Dr Diggory and Mr Scott does not disclose a properly arguable case. There is no basis for any suggestion that Dr Diggory and Mr Scott or the GMC combined against or made a bargain to injure Dr Colman. Indeed Dr Colman's main complaint appears to be that Dr Diggory's recollection of the criminal proceedings which followed the road traffic accident in which she was involved was incorrect".
- On behalf of the seventh and eighth Defendants similar criticisms are made. It is pointed out that schedule A does not identify the particular involvement of any of the Defendants and it is little more than a document the purpose of which is to act as an index to the Claimant's bundle of documents. Likewise schedule B is described as a flow chart but does not identify or elucidate the involvement of any of the Defendants.
- I note from her recent skeleton argument at pages 2, 15 and 24 that she alleges the conspiracy to injure by was by lawful and unlawful means. However it is not apparent what unlawful means are alleged.
- In my judgement the criticisms made of the case as pleaded in relation to conspiracy to injure are manifestly well founded. The case as pleaded is not properly comprehensible. Schedules A and B do not assist. The "Particularisation" document does not cure the deficiencies. The deficiencies are sufficiently serious to justify striking out this part of the claim.
Unlawful interference
- The tort of unlawful interference consists in one person using unlawful means with the object and effect of causing damage to another. See Clerk and Lindsell on Torts (19th Edition 2006) para 25 to 88. The essential ingredients of the tort are:-
i) The use by a defendant of unlawful means
ii) With the intention (but not necessarily the predominant intention) of causing damage to a claimant and
iii) Consequential economic loss.
- Unlawful means may include any unlawful act, but there must be a sufficient nexus between the act and its unlawfulness and the harm complained of. See Douglas v Hello at paras 227 to 228. The requisite "intention to injure" will be found where the defendant intends to inflict harm on a claimant, either as an end in itself or as a means to another end; the course of conduct must be aimed, directed or targeted at the claimant. See Douglas v Hello paras 156,159,175 and 223. It is not sufficient to show that loss was reasonably foreseeable or even that the defendant had actual knowledge or subjective recklessness as to the consequences. See Douglas v Hello at paras 160 and 223. Further, as with any other economic tort, the claimant must establish damage to his or her trade, business, contract or other material economic interests. See Clerk and Lindsell on Torts paras 27 to 88.
- The Particulars of Claim, it is contended, are again vague and wholly unparticularised in relation to this cause of action. Paragraph 5.2 of the Particulars of Claim simply asserts that "the matters set out above" … "were unlawful interference with Dr Colman's rights as a member of the eleventh Defendant and her profession as a medical practitioner". On behalf of the GMC Defendants it is contended that in particular, the Particulars of Claim fail:-
i) To identify the Defendant (s) who is/are alleged to have used unlawful means with the object and effect of causing damage to Dr Colman (see para 3.4). Schedule A does not assist in this regard;
ii) To identify the unlawful means alleged to have been used (see paras 3.4, 4.2 and 4.4). For example the particulars do not explain whether "ill disposition" and a "lack of support and respect" or a "failure to provide training" are alleged to constitute unlawful means, and if so, how;
iii) To identify any facts which support an allegation that one or more Defendants intended to inflict harm on Dr Colman as an end in itself or as a means to another end (see paras 3.4, 4.2 and 4.4);
iv) To identify what economic damage has been suffered by Dr Colman. For example, it is not clear what economic loss could have been suffered by any failure by the GMC to provide training to Dr Colman for PCC work.
- On behalf of the fifth and sixth Defendants it is contended that neither the Particulars of Claim nor the schedule identify any facts from which it is possible to allege that Dr Diggory and Miss Franks used unlawful means with the intention to injure Dr Colman and thereby cause her damage. It is further contended that it is not clear what unlawful means are alleged to have been used by any of the Defendants, nor is it clear what damage has been suffered by Dr Colman as a result of the unlawful interference. In relation to the seventh and eighth Defendants it is wholly unclear what the case is against them in relation to unlawful interference.
- Again in my judgement the criticisms that the Defendants advance in relation to the pleaded case on unlawful interference are manifestly well founded. The case pleaded is not properly comprehensible. Neither the Particulars of Claim nor Schedule A identify any facts from which it is possible to allege that the Defendants used unlawful means with the intention to injure Dr Colman and thereby cause her economic loss. The deficiencies in relation to this cause of action are sufficiently serious to justify striking out this part of the claim.
Breach of contract/Rights
- Paragraph 5.3 of the Particulars of Claim refers to this as a "breach of her rights as a member of the eleventh defendant constituted by her election as a member of it." The GMC Defendants point out there is no known cause of action consisting of "breach of rights constituted by election to the GMC". If this is intended to constitute a claim for breach of contract, then they contend that the Particulars of Claim fail to identify:-
i) The contract alleged to have existed between Dr Colman and the GMC (or any other Defendant);
ii) The offer and acceptance constituting the supposed contract;
iii) The nature or scope of the particular contractual terms relied on. For example in paragraph 4.2 Dr Colman fails to explain whether it was the GMC's contractual obligation to provide training for the PCC and, if so, the basis of this obligation. Likewise in paragraph 4.4 the particulars fail to explain the existence and basis of any obligation by the GMC to permit Dr Colman to serve on the PCC;
iv) The nature of the alleged breaches of those terms;
v) The loss or damage suffered by Dr Colman as a result of those breaches.
- On behalf of the fifth and sixth Defendants it is pointed out that there was clearly no express agreement between Dr Colman and Dr Diggory and/or Miss Franks. The suggestion that there was some implied contract between them and her arising out of her election is it is contended "as nonsensical as it is unarguable."
- In relation to the seventh and eighth Defendants it is again wholly unclear whether any case is advanced against them for breach of contract or breach of rights.
- Again the criticisms advanced by the Defendants in relation to the pleaded case on breach of contract or breach of her rights are in my judgement entirely well founded. The case as pleaded is not properly comprehensible. There is no such cause of action as breach of rights constituted by election to the GMC. The schedules do not assist. The Particularisation document does not cure the deficiencies. The deficiencies are sufficiently serious to justify the striking out of this part of the claim.
- I conclude that in relation to each of the alleged causes of action the pleaded case is seriously deficient and sufficiently so to justify the action being struck out.
Claims statute barred under the Limitation Act
- The court stamp date on the Claim Form is 8th June 2006. It is contended on behalf of the Defendants that her claims are subject to a six year limitation period under the Limitation Act 1980. In relation to the allegedly wrongful erasure from the Register the cause of action would have accrued on 16th April 1987, the date of erasure. In consequence the claim for conspiracy to injure arising out of such erasure would have become statute barred in April 1993, about 13 years before the issue of the Claim Form in these proceedings.
- In relation to Dr Colman's claim about adverse statements allegedly designed to prevent her election to the GMC those were published between 17th and 22nd March 2000 according to the documents contained in schedule A to the Particulars of Claim. It is clear the Claim Form was issued more than six years later.
- In her Reply to the Defence served on behalf of the seventh and eighth Defendants Dr Colman seeks to rely on section 32 of the Limitation Act 1980 to delay the start of the limitation period. Section 32 provides:-
(1) Subject to sub-sections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either:-
a) The action is based upon the fraud of the defendant; or
b) Any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
c) The action is for relief from the consequences of a mistake;
The period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.
References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent.
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.
- Doctor Colman's Reply to the Defence of the seventh Defendant sets out particulars of letters written by the seventh Defendant to Cambridge Health Authority or to the GMC or a note of a conversation she had with a member of staff at the GMC all in 1985. The suggestion that the seventh Defendant deliberately concealed these documents seems to me to be extremely difficult if not impossible to sustain. Similarly it is extremely difficult to contend that those bodies were her agents.
- Similarly with the Reply to the Defence of the eighth Defendant. Most of the documents he is alleged to have concealed date from the 1980s although there are a number of more recent documents. However it is difficult to see how a claim of deliberate concealment in relation to any of these documents on the part of Professor Sherwood can be sustained.
I conclude that Dr Colman does not have a realistic prospect of avoiding a finding that her claims against the seventh and eighth Defendants are statute barred.
- In the skeleton argument she submitted subsequent to the hearing she alleges that the GMC has concealed documents from her. She indicates in paragraph 5b that the history of the longstanding problem in obtaining documents from the GMC is set out in the Application for Judicial Review and in her Taylor v Lawrence Application before the Court of Appeal. As she had not raised this line of argument by the time of the oral hearing before me the GMC Defendants have not had an opportunity of responding to it. Lord Walton's time as President of the GMC came to an end on 16th February 1989. Mr Gray's time as Deputy Registrar finished on 1st February 1988. There is no sufficient evidence to demonstrate that either of them deliberately concealed documentation within the meaning of section 32. There is no realistic prospect of Dr Colman avoiding a finding that her claims against them are statute barred.
- It is apparent that Dr Colman has had some difficulty in obtaining from the GMC some documents. I am extremely dubious about Dr Colman's prospects of establishing deliberate concealment on the part of the GMC or Defendants one to four. Bearing in mind my conclusions on the other limbs of this application I do not propose to make a determination on this aspect of the matter in relation to those Defendants.
It is not contended on behalf of Defendants five and six that the claims against them are statute barred.
Abuse of process. Issue estoppel and the rule in Henderson v Henderson.
- The GMC contends that the issues sought to be litigated in this claim are the same issues as previously litigated and determined in earlier proceedings between Dr Colman and the GMC or are so closely connected to those claims that they could and should have been raised in those earlier proceedings.
- Issue estoppel is a form of res judicata estoppel. It arises where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue. See Arnold v National Westminster Bank plc [1991] 2 AC 93.
- A party will also be prevented by the court from raising in subsequent proceedings matters which could and should have been litigated in earlier proceedings.
- The House of Lords in Johnson v Gore Wood and Co [2002] 2 AC 1 has made clear that the basis of the rule in Henderson v Henderson is abuse of process of the court. Lord Bingham, reviewing the authorities quoted with approval a passage from the judgment of Court of Appeal in Barrow v Bankside Agency Limited [1996] 1 WLR 257 at 260:-
"The rule in Henderson v Henderson 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject of course to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in the narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that the litigation should not drag on for ever and that the defendant should not be oppressed by successive suits when one would do. That is the abuse against which the rule is directed."
Dr Colman's previous proceedings against the GMC
- 2002 Judicial Review Claim C0654/02. In February 2002 Dr Colman issued an application for Judicial Review of the PCC's decision of 13th November 2001 to revoke her co-option to sit as a member of the PCC. She later amended her claim so as to challenge the PCC's decision of 27th February 2003 not to empanel her to sit on PCC disciplinary cases prior to 30th June 2003.
- Elias J refused Dr Colman permission to apply for Judicial Review at an oral hearing on 3rd March 2004. He held that there was no real prospect of Dr Colman establishing that the decision not to empanel her on PCC hearings was unlawful. In particular, he held that the PCC did have a power to exclude those individuals who had inappropriate qualities or ought not to sit in a judicial capacity, from sitting on disciplinary cases, and exercised that power properly and proportionately in respect of Dr Colman. See paragraphs 21 to 27 of his judgment.
- Claim number HQ0ZX02372. On 22nd July 2002, Dr Colman issued proceedings against the GMC in the Queen's Bench Division seeking "special, compensatory and aggravated damages" for negligence and breach of statutory duty by way of breaches of:-
i) Protection of Harassment Act 1997
ii) The Data Protection Act 1998
iii) The Public Interest Disclosure Act 1998
iv) The Disability Discrimination Act 1995.
Her claims were alleged to have arisen inter alia as a result of the GMC's handling of her election, its treatment of her and her complaints subsequent to the election, the GMC's communications with Dr Diggory, the revocation of her co-option to the PCC following the Robson hearing, and the GMC's treatment of her subject access requests.
- The GMC applied to strike out the Particulars of Claim. Dr Colman subsequently sought to amend her Particulars of Claim on a number of occasions, and by the time of the hearing of the strike out application, she sought permission to amend so as to claim:-
i) Breach of the Protection from Harassment Act 1997
ii) Breach of the Data Protection Act 1998
iii) Negligence
iv) Breach of the Medical Act 1983
v) Breach of the Human Rights Act 1998.
- The GMC's strike out application and Dr Colman's application for permission to serve amended Particulars of Claim were heard together by McCombe J on 1st to 2nd November 2004. During the hearing Counsel for Dr Colman, Vincent Nelson QC, withdrew the applications to amend the Particulars of Claim in respect of the pleaded claims, save for that in respect of the Data Protection Act. He conceded that none of the claims other than that under the Data Protection Act were sustainable. McCombe J held that this remaining claim was "wholly inadequately pleaded and wholly inadequately particularised" (paragraph 43) and in any event was bound to fail as there was no arguable case that Dr Colman had suffered any damage (paragraph 36). Accordingly, McCombe J refused Dr Colman's application for permission to amend the Particulars of Claim and struck out the whole claim form and Particulars of Claim pursuant to CPR 3.4 (2).
- On 11th March 2005, Rix LJ refused permission to appeal to the Court of Appeal against McCombe J's order. In paragraph 13 of his judgment he summarised the position as follows:-
"The proceedings which Dr Colman has brought out of this background reflect her long standing and anxious concern that in all these events following her restoration to registration and her election to the GMC, and one might therefore be entitled to say her complete rehabilitation, she has been treated in a way which disparaged her reputation and her ability to pursue her profession, and that a leading part in this misfortune (for which no doubt Dr Colman would have a stronger word) was played by the decision to commission the independent report of Mr Staple and the terms of that report itself. Plainly Dr Colman sought by these proceedings, not only entirely to rehabilitate her name, but also to claim compensation for what she alleged were the wrongs which had been done to her under, as I have mentioned, those five separate heads of claims."
- On 28th February 2006, Dr Colman issued a further Judicial Review claim against the GMC, CO/1834/2006, seeking to challenge the PCC's finding of serious professional misconduct and her erasure from the Register in 1987. The Administrative Court has not yet dealt with the application for permission.
Comparison with these proceedings
- It is accepted on behalf of the GMC that the causes of action in the current proceedings (conspiracy to injure, unlawful interference and breach of contract) are not the same as those in Dr Colman's earlier proceedings against the GMC. However it is contended that the matters upon which she currently relies as forming the necessary ingredients in her causes of action have either already been litigated and decided, or should have been litigated and decided, in the earlier proceedings.
- It is contended that in relation to the first of her complaints in the current proceedings, the crux of the complaint is her allegedly wrongful erasure from the Medical Register in 1987. In the 2002 Queen's Bench proceedings she asserted that her striking off the Medical Register amounted to a miscarriage of justice. She alleged that there was maladministration of the case by Mr Gray and she appears to make the same allegation again in these proceedings. This can be seen by comparing paragraph 5 of the draft Amended Particulars of Claim dated 4th February 2004 with paragraphs 32, 38 and 44 of "Particularisation – All Defendants" in the current proceedings.
- The Particulars of Claim at 1.2 plead "on 16th April 1987 the Claimant was wrongfully erased from the Medical Register." Paragraph 3.1 alleges that Dr Harris initiated unjustified complaints which Professor Sherwood, Lord Walton and Mr Gray prejudicially promoted in a manner calculated to have the Claimant "wrongfully and unfairly erased from the Medical Register". She appears now to contend, however, that she is not in these proceedings challenging the findings of the PCC. She says in paragraph 48 of her statement dated 26 December 2006 "I am not challenging the findings of Professional Conduct hearings in 1987, 1988 and 1989 in this claim as it is clear to me that this is not the place to challenge such findings. …however the findings of serious professional misconduct and erasure is at the moment subject of a Judicial Review application in the Administrative Court. I am conscious of the fact that what is put before the Administrative Court may not be the same as what is before me. However on the material before me the prospects of success in that application would appear to be remote. More importantly "wrongful erasure" appears to me, as pleaded, to be fundamental to the instant proceedings and has already been litigated.
- Election to the GMC. Dr Colman's second complaint concerns the publication of adverse statements by the GMC and others prior to and subsequent to her election in April 2000. It is contended that this was the direct subject matter of the 2002 Queen's Bench proceedings. For example, in paragraphs 5 to 6 of the Particulars of Claim and paragraph 6 of her draft amended Particulars of Claim in the earlier proceedings, Dr Colman complained about statements that a press article attributed to the GMC and the circulation of that article among Council members. She makes the same complaint in these proceedings; see paragraph 3.1 Particulars of Claim and Schedule A. At the hearing to determine the GMC's strike out application Dr Colman's counsel withdrew all causes of action arising out of these complaints, and McCombe J found the pleading was "entirely defective" in relation to those causes of action. It is therefore contended that issue estoppel arises in relation to the publication of allegedly adverse statements prior to Dr Colman's election.
- Treatment after election. In relation to Dr Colman's third complaint which concerns her treatment after she was elected to the GMC, it is contended that this was litigated and determined in the 2002 proceedings. For example, in the 2002 proceedings, Dr Colman alleged that the GMC carried out a "substantial and sustained harassment of Dr Colman over two years": paragraph 15 of the Particulars of Claim; see also paragraph 7 to 9 of the draft Amended Particulars of Claim. It is pointed out that these allegations underpinned her causes of action in negligence and under the Protection of Harassment Act and Human Rights Act. Those causes of action were also withdrawn at the strike out hearing, and were struck out by McCombe J. The same complaint is made in these proceedings; see paragraph 3.4 of the Particulars of Claim which assert that "having been elected Dr Colman was confronted with ill disposition towards her and a lack of support and respect."
- Failure to provide training. Dr Colman's fourth complaint concerns the GMC's alleged failure to provide her with any training to adjudicate on PCC panels; see paragraph 4.2 of the Particulars of Claim. Dr Colman has not made this allegation in her earlier proceedings. However it is contended that since the 2002 Judicial Review proceedings and the 2002 Queen's Bench proceedings directly put in issue her suitability and entitlement to sit on PCC panels, the allegations concerning training could and should have been litigated as part of those earlier proceedings.
- PCC's decision not to empanel Dr Colman. Her fifth complaint in these proceedings concerns the PCC's decision not to empanel her to sit on PCC disciplinary cases; see paragraph 4.4 of the Particulars of Claim. It is contended that this is clearly the subject of issue estoppel in light of Elias J's determination in the 2002 Judicial Review proceedings that the GMC acted properly and lawfully in not empanelling Dr Colman. The nature and extent of Dr Colman's right to sit on the PCC was the sole issue in the Judicial Review proceedings: see paragraphs 1 and 4 of Grounds for Judicial Review; paragraph 14 of Summary Grounds; paragraphs 2, 21 to 27 of the judgment.
- Dr Colman deals with this issue in paragraphs 10 and 11 of her recent skeleton as follows:-
'10. Although the earlier proceedings were principally for a breach of Data Protection Act and Protection from Harassment Act, the part which deals with Harassment was not proceeded with and therefore has never been tried or considered in any Strike out action. In the case of an Harassment an employer is liable for acts of harassment by its employees, and therefore the Eleventh Defendant would be liable for those of the other defendants, notably the First Defendant harassing the Claimant. Majrowski 2006 HL.
11. The issues pleaded in this claim could not have been raised in the earlier claim because the earlier claim was issued on 22 July 2002 and relied upon the evidence discovered as a result of the First subject access order which was not complied with and the patchy data which the Eleventh Defendant was obliged to send to the Claimant as a result of her second subject access order and the Information Commissioner's ruling on 29th May 2002. Moreover the events of the 1980s were not claimed for in this claim but were mentioned briefly by way of an introduction. There were no screening papers at all available at the time. The only Cambridge papers were a few letters which had passed between the Claimant's solicitor and the Clinical School and those letters which the Claimant had also written. Although the Claimant tried to amend her claim and it was set down to be heard the Eleventh Defendant managed to get the court not to hear the amendment when it was due to be heard. Thereafter junior counsel re-amended the original claim and disregarded the amended claim made by the Claimant which set down in some details the particulars, and did this against the Claimant's wishes. Even if any of the documents were to be excluded that would not undermine the present claim. In any event there has never really been a trial of the previous claim and so the documents have never really been considered and it would be unfair to never allow the Claimant to bring her action when the evidence remains untested and unanswered.'
- The way the matter was dealt with McCombe J can be seen from paragraph one of his judgment:-
"This is an action between Dr Jennifer Colman ("Dr Colman") and the General Medical Council ("the GMC"). There are two applications before the court. First there is an application, originally issued on 20 December 2002 by the GMC asking for an order that the Particulars of Claim filed by Dr Colman in the action be struck out. Secondly, there is an application by Dr Colman for permission to file and serve Amended Particulars of Claim. It has been common ground before me that, for the purposes of the applications, I should treat the proposed amended Particulars of Claim as though already filed and served, and treat the GMC's application as an application to strike out the amended pleading or, further or alternatively, as an opposition to the proposed amendment. It is accepted, adopting that approach, if the GMC is successful I should refuse permission to amend and strike out the action. Conversely, if Dr Colman is successful, either wholly or in part, I should grant permission to amend the Particulars of Claim wholly or in part as the case may be, and should dismiss the GMC's application."
- I have come to the clear conclusion that the contentions advanced on behalf of the GMC Defendants are well founded. I bear in mind that Dr Colman has not previously brought claims for "conspiracy to injure", "unlawful interference" and "breach of contract." But a court must look beyond the mere title. These claims are the same or similar grievances brought now in different clothing. I have already concluded that they are wholly inadequately pleaded. The difficulty or impossibility of pleading them adequately on the facts reflects the contortions that have been necessary in an attempt to fit the facts to these "new" causes of action.
- I bear in mind that the first to fourth Defendants and ninth and tenth Defendants as current or former officers or current employees of the GMC have not as individuals been Defendants in Dr Colman's previous proceedings. However it would be wrong for the rule in Henderson v Henderson to be bypassed by the device of proceeding against the officers or employees of a body such as the GMC where previous unsuccessful proceedings have been against the body itself. That would amount to a clear abuse of the process of the court.
No real prospect of success
The GMC Defendants
Erasure from the Register
- It is alleged that in 1985 Dr Harris "initiated unjustified complaints of the Claimant" to the GMC, and thereafter Professor Sherwood together with Mr Gray and Lord Walton promoted the complaints in a manner calculated to have the Claimant wrongfully and unfairly erased from the Register in 1987. Mr Gray and Lord Walton had statutory obligations under the Medical Act and they also had to act in accordance with the Procedure Rules. The material before me suggests that they were doing just that. The material put before me post hearing in file 3JEC does not undermine that. The Screening Documents which Dr Colman indicates were disclosed on 2nd December 2005 demonstrate that Lord Walton and Mr Gray proceeded with appropriate care before the matter was referred to the PPC. It was the PPC which in turn determined that the matter should be referred to the PCC for inquiry.
- The real hurdle which Dr Colman faces is that it was the PCC which heard the evidence against her and decided that her name should be erased from the Register. None of the individual Defendants to this claim sat on the panel which heard her case. There is in reality no evidence to indicate a conspiracy between Dr Harris and or Professor Sherwood and or Mr Gray to achieve her wrongful and unfair erasure from the Register.
- Election to the GMC. There is no evidence that the GMC Defendants conspired with one another or with anyone else to prevent her election to the GMC. On the contrary the GMC did not agree with the objections of Dr Diggory and publicly defended Dr Colman's right to stand for election. It is, perhaps, unsurprising that there was adverse press comment but that does not begin to support a case of conspiracy to injure by any of the GMC Defendants.
- Treatment after election. Mr Englehart points to the thoroughness of the Staple report. Mr Staple reviewed eleven lever arch files containing one thousand and eighty five separate documents provided to him by the GMC and Dr Colman. He interviewed thirty three different people including Dr Colman, Mr Scott, Mr Ketteringham, Miss Nisbett and other members of the GMC staff. He also received two sets of written submissions prepared on Dr Colman's behalf by Counsel. I bear in mind that Lord Hope in Three Rivers DC v Bank of England (3) [2003] 2 AC 1 at 256 considered that the narrative of the evidence in such a report can be taken into account at the strike out stage but not the conclusions. It is apparent that that report did not reveal evidence on which Dr Colman now relies in support of her contentions. There is in reality no material put before me which is capable of demonstrating a conspiracy with the predominant intention to destroy Dr Colman's career.
- Failure to provide training. There is evidence that she did receive the distance learning package for the PCC and completed two days of PCC training. See Mr Gibson in his witness statement at paragraph 61. There is no evidence to demonstrate she should have received additional training or indeed that she requested it.
- The PCC decision not to empanel Dr Colman. The GMC was legally entitled to take this action. See the judgment of Elias J. It is of relevance that the GMC set up the independent external review by George Staple QC and acted in accordance with his findings. In relation to Dr Colman's suitability to serve on the PCC and other Fitness to Practise Committees, the Staple report found that Dr Colman was unwilling or unable to recognise that her conduct in the Robson case was unacceptable, and therefore there was a significant danger she would adopt a similar approach in any future cases on which she might sit. The report concluded that Dr Colman was not suited to sit on the PCC and other committees whose work was of a quasi-judicial nature. I emphasise that I am not influenced by the Staple conclusions. But I am influenced by the fact that the GMC acted in accordance with them.
- In the light of those conclusions the GMC would have been subject to very substantial criticism had they permitted her immediately to return to sitting on the PCC. There is in reality no evidence that this action was taken in pursuance of any conspiracy to injure.
- Similarly I see no realistic prospect of Dr Colman succeeding against the GMC Defendants for unlawful interference or breach of contract or her rights as a member of the GMC.
The fifth and sixth Defendants
- Of Dr Colman's five complaints only two appear to relate to Dr Diggory:-
i) Adverse statements were published about Dr Colman which were designed to prevent her election to the GMC in 2000 and destroy her standing if elected (3.3)
ii) After her election there was a deliberate campaign to destroy Dr Colman's career at the GMC and elsewhere (3.4).
- The allegation against Dr Franks appears to be confined to (iii) in paragraph 40. Mr Miller QC points out that the documents make it plain that Dr Diggory did not conspire with the GMC or the GMC Defendants:-
a) In letters of 15th March, 4th April, 23rd May and 27th July 200, and 13th February 2001, the GMC defended Dr Colman's right to stand for election and explained that the rules governing GMC elections permitted all doctors to stand including a doctor who had been guilty of an offence in the past but who had since been restored to the Register.
b) Dr Diggory appeared frustrated by the GMC's activity: - see, for example, his letters of 10th April 2000, 6th May 2000, 15th February 2001 and 21st January 2002.
c) Dr Diggory criticised the GMC's failure to change the rules in an open letter to the editor of the British Medical Journal.
d) Dr Diggory sought the assistance of his MP (first, Peter Brooke and then Mark Field) to put pressure on the GMC to change the electoral rules.
e) Dr Diggory told the former head of the Serious Fraud Office, George Staple QC, that "his problem was not with Dr Colman. Personally, he did not think that she should be on the Council. His real problem, however, was with the GMC. He was ashamed of his profession and the way it had behaved…he found the whole way the GMC had behaved rather extraordinary."
f) Fiona Wemyss of the GMC was critical of Dr Diggory's correspondence when interviewed by George Staple QC.
g) George Staple QC's conclusions. In looking at the merits I have to ignore these.
Dr Diggory in paragraphs nine and twelve of his witness statement says "in my letter of 14th February 2001 I recorded my impression (which I am sure was correct) that the GMC was getting rather exasperated and fed up with my letters, which is somewhat at odds with the suggestion that I was conspiring with the GMC to cause loss to Dr Colman …. As to the suggestion that I have conspired with, amongst others, the GMC to cause loss, I had the clear impression at the time the GMC was resentful of my intrusion and would have been quite happy to see the back of me".
- The correspondence between Dr Diggory and the GMC demonstrates that he appears to have been keen to remedy what he saw as deficiencies in their electoral system. In particular he was concerned that the only information made available for the purposes of deciding who was elected to the GMC was potentially incomplete and misleading. There was no requirement to include criminal convictions and sponsors were permitted to remain anonymous. Whilst the GMC was prepared to consider electoral reform, it did not consider it to be a matter of urgency.
- Miss Franks published two items on the British Medical Journal website. In both documents she expressed concern that Dr Colman was failed by the GMC and that the medical profession had been failed by the GMC. Again it would appear that her predominant intention was to draw attention to failures she identified in the GMC's execution of its role to protect patients and guide and support doctors and those concerns were legitimately communicated to the profession's most influential publication.
- There is in reality no prospect of establishing any conspiracy between either Dr Diggory or Miss Franks with the GMC Defendants. While there may in theory be an inference that Dr Diggory and Dr Franks were working in concert I am satisfied that here is no realistic prospect of Dr Colman succeeding in a claim against them for conspiracy to injure or for unlawful interference with her rights as a member of the GMC or for breach of the contract that she alleges existed.
Seventh and eighth Defendants
- Dr Harris, as District Medical Officer ("DMO") was responsible for grievance and disciplinary procedures for all medical staff below consultant level within the Great Yarmouth and Waveney Health Authority. She was contacted by Mr Sansom, one of the consultants supervising the first six months of Dr Colman's pre-registration training at the Health Authority, because of problems arising during Dr Colman's training. She wrote to her DMO at Cambridge Health Authority on 21st January 1985 setting out her concerns. She subsequently wrote a joint letter with Mr Sansom to the GMC dated 19th February 1985 to explain why Mr Sansom was unable to sign Dr Colman's registration form. Dr Harris then spoke to Ms Horne at the GMC on about 17th July 1985. The contents of those communications do not in my judgement begin to suggest that she was party to some conspiracy to injure rather than acting in a concerned and responsible manner in her capacity as DMO. It appears that it is now more than 21 years since Dr Harris last had any involvement with Dr Colman. Dr Harris retired in 1990.
- There is no conceivable prospect of Dr Colman's claims against Dr Harris succeeding.
- Professor Sherwood, as Clinical Dean was responsible for certifying satisfactory completion of the pre-registration year of a doctors' training in accordance with section 10 (3) of the Medical Act 1983. I have set out the history of his involvement in paragraphs 21 to 26 above. It is important to note that the decision to certify satisfactory completion was not that of Professor Sherwood alone but of the Joint Pre-Registration Committee. Professor Sherwood does not appear to have had any direct involvement with Dr Colman since he signed her form FR1A on 29th March 1990.
- Professor Sherwood retired in 1996 although he still worked as the Lancet's ombudsman. In March 2000 he wrote to the President of the GMC, Sir Donald Irvine, expressing surprise that candidates for the GMC did not have to disclose previous court convictions. That view was repeated by him in an article in the Lancet.
- In her Reply to the Defence of the eighth Defendant Dr Colman contends that Professor Sherwood was the instigator of a conspiracy within the Faculty Board of Medicine and Clinical School to ensure that she was successfully excluded from the Cambridge University final MB. She makes other allegations including that he covertly surveyed her when he reported her to the GMC's data protection officer; that he covertly monitored her or "passively stalked her" over a length of time and that he has intended to harm and injure her over a number of years. She alleges that he discriminated against and victimised her because he intended to exclude her as an older woman student and because she had complained about her first training post at Cambridge which she alleges was sub-standard for training purposes.
- On the material before me I see no reasonable prospect of her succeeding in her claims against Professor Sherwood. It is clear that there were valid concerns about the pre-registration work. It would have been quite wrong to certify her satisfactory completion of the pre-registration training without proper evidence of it. Dr Colman's behaviour led to complaints which resulted ultimately in her case being referred to the PPC. It was the PCC who heard the evidence and found for the most part the charges proved. Professor Sherwood was not part of the PCC. After her restoration to the Register on receipt of satisfactory evidence the form FR1A was signed by him in March 1990. The claims against him are fanciful.
Conclusions
- These are grave claims brought against the GMC and these other 10 Defendants. They appear to be a last desperate throw of the dice. Dr Colman has, it seems to me, become so obsessed with her grievances that she is determined to pursue not just the GMC but distinguished individuals however artificial, contrived and unmeritorious her claims may be. The consequence is the Defendants have to face not just the substantial time and cost (probably irrecoverable) of dealing with these claims, but also the inconvenience and unpleasantness for the individuals of being Defendants. Some of the Defendants are in their twilight years. Such actions also clog up the Court system. They delay the hearing of meritorious claims.
- I have no doubt that this action must be struck out under CPR 3.4(2) (a) and (b) against all the Defendants and that there must be summary judgment for all Defendants under CPR 24.2. These conclusions are reached on the grounds as stated individually and collectively.
These claims are wholly without merit.
Claim number 6NR04863
- The Claim Form which was issued on 27th September 2006 states that:-
"This is a claim for unpaid fees and allowances and services for work done by Dr Colman sitting as an elected member of the Council for the period of 1st April 2002 to 8th February 2003."
The value of the claim is stated to be £88,950 plus interest. Attached to the Claim Form are invoices, all of which are dated 6th March 2006, and which purport to relate to work done "in preparation and consideration" for the independent external review in the period 1st April 2002 to 8th February 2003. The invoices are said to total £64,000 but in fact total £59,500. The remainder of the sum claimed, £24,950 is said to relate to "incidental costs." No invoices or evidence have been provided in respect of this aspect of the claim.
- The GMC seeks to strike out Dr Colman's statement of case or to obtain summary judgment on the whole of the claim on the following grounds:-
i) Dr Colman has failed to establish any entitlement to be paid the sum sought and in fact has no entitlement. Therefore, there are no reasonable grounds for bringing the claim and the claim has no real prospect of success;
ii) The claim is an abuse of the courts process because it could and should have been raised in earlier proceedings, and was brought for a collateral purpose, namely to avoid Dr Colman's costs liabilities.
The GMC's powers to pay its members
- The Medical Act gives the GMC the power to make certain payments to its members. At the relevant time paragraph 17 of part 111 of schedule 1 to the Medical Act provided:-
"There shall be paid to the members of the General Council such fees and such travelling, subsistence or other allowances as the General Council may allow"
It is therefore apparent that the GMC had a discretion whether to make any payments to its members, and if so, what payments to make.
- During the period of Dr Colman's membership of the GMC, the payments made by the GMC to its members were set out in two documents. The first of those is headed "Summary of Member Allowances and Expenses Maxima at April 2002." The second document is headed "Guidance to Members for Expense Claims."
These documents explain that members were entitled to a daily attendance allowance of £250.00 for each day of (physical) attendance on GMC business, and certain types of expenses including travel and accommodation. In order to claim such payments, members were required to provide itemised receipts for all expenditure and to submit expense claims within 60 days of incurring the expenditure. Members were required to obtain "prior agreement" for incurring exceptional or unusual costs.
- During her membership of the GMC, Dr Colman submitted expense claims arising out of her attendance on GMC business in accordance with the GMC expenses policy. She received prompt payment of those expenses. This is set out in the witness statement of Mr Gibson at paragraphs 23 to 24.
No reasonable grounds for bringing the claim/no real prospects of success
- Dr Colman submitted on 19 December 2006 a witness statement, undated and unsigned, about this expenses claim.
In it she says she says she is seeking to set aside the order of 2nd November 2006 whereby the proceedings were transferred from Norwich to the Royal Courts of Justice. In my judgment there were good reasons for the transfer.
Secondly she says the claim cannot be struck out because the police are investigating Dr Diggory about his activities against her. This, if correct, has no relevance to this claim.
- What she says about the claim itself is in essence that (a) she spent a great deal of time preparing submissions to George Staple (b) the GMC ought to pay her for the time she spent.
She says that George Staple is to be a witness for her in this claim.
- It is contended on behalf of the GMC that Dr Colman's claim in these proceedings is a debt claim i.e. a claim for a sum due under a contract. It is contended that the Particulars of Claim are defective in that they fail to identify any facts which would support an assertion she was entitled to seek payment, three years after the event, for work done or expenses incurred in relation to the independent external review. The Particulars of Claim merely assert that she did not receive payment for work done in this regard; there is no explanation of why she should be entitled to seek payment for it in the first place. Nor is there any explanation of why Dr Colman waited three years before seeking payment in respect of this work.
- In any event it is contended that it is plain on the evidence that Dr Colman has no such entitlement to be paid for work done in preparation for the independent external review. By letter dated 30th July 2002 the GMC through Mrs Bedwell wrote to Mr Smith at Clifford Chance indicating that the GMC would reimburse Dr Colman's expenses in line with normal GMC policy. She should complete a GMC expenses form and return it through Clifford Chance or directly to the GMC. A copy of the form was attached. Dr Colman attended two interviews with Mr Staple, on 3rd October and 25th November 2002. She submitted claim forms in relation to those interviews, and the GMC promptly paid the amounts sought. Those expense claim forms are exhibited to Mr Gibson's statement. There is also a schedule of her claims between May 2000 and May 2003. The total attendance claims amount to £22,250 and expenses claims amounted to £10,479. Mr Gibson points out that the Claimant first claimed that she was entitled to payment of further expenses in relation to the independent review in March 2006 in the context of her application to stay detailed assessment of costs proceedings in claim number HQ02X02372, in which a hearing had been listed on 21st and 22nd March 2006. On 7th March 2006 she wrote to Mr Gibson saying that she had asked the GMC to pay her a "Members Allowance which remains outstanding to the amount of £64,000 plus £24,950 within 28 days."
- On 8th March 2006 she filed a witness statement in claim number HQ02X02372 in which she applied for a stay in the detailed assessment of costs proceedings and relied on her outstanding claim for expenses arising out of the independent external review as a reason why a stay should be granted.
- Mr Gibson wrote to her on 19th April 2006 rejecting what he termed her "new claims" and setting out reasons why the latest expense claims were entirely without merit.
- Mr Gibson further points out that there is evidence that the Claimant was not engaged in preparation for the independent external review on at least some of the dates alleged. In particular, the Attendance Allowance Claim overlaps and duplicates previous expense claims made by Dr Colman, namely, 17th July 2002 (when she was according to her expense claim form attending a PCC plenary session), 14th October 2002 (when she was according to her expense claim form, attending a meeting with the President at King's College) and 5th November 2002 (when she was according to her expense claim form attending a Council meeting). In addition, she signed a statement of truth in claim number HQ02X02372 in which she claimed damages for not being allowed to sit on PCC panels during the same period covered by her Attendance Allowance Claim. In particular, she sought damages in respect of twelve to fourteen days per month on average, while in the attendance allowance claim, she claimed to have spent, on average, twenty two days per month in connection with the independent external review.
- I also note that in her witness statement in claim HQ02X02372 seeking a stay of the detailed costs assessment against her she maintained that the proceedings would be a waste of money and time because she had no funds and that the assessment would just add further costs for both parties.
Abuse of process
- It is contended on behalf of the GMC that the claim is an abuse of process because it could and should have been raised in the 2002 High Court proceedings claim number HQ02X02372 or in the 2006 High Court proceedings claim number HQ06X01026. Accordingly it is argued that the rule in Henderson v Henderson should apply so as prevent her bringing the claim now.
Conclusions
- I am satisfied that there is no real prospect of this claim succeeding. She may very well have spent considerable time with the submissions to George Staple. She may very well have made many telephone calls and sent many letters. But that does not begin to mean the GMC are legally obliged to pay for that. I am satisfied that this action is nothing but an unattractive device in order to avoid or defer Dr Colman's liabilities for costs towards the GMC. It is manifestly a sham. While I am satisfied that there are no reasonable grounds for bringing the claim and that it has no real prospect of success, I am not satisfied that it falls foul of the rule in Henderson v Henderson. I am satisfied it should be struck out under CPR 3.4 and /or there should be summary judgment for the Defendant under CPR 24.2.
Extended civil restraint order
- Neither of the claims before me has any merit. There is a history of unsuccessful proceedings against the GMC. Dr Colman in March 2006 maintained that it was fruitless to make any costs order against her because she had no money. That is a factor which has weighed with me in concluding it would be wrong to adjourn for a further hearing which in action HQ06X01026 would necessarily incur further cost. There were two applications in other courts yet to be resolved:-
i) The determination by the Administrative Court of Dr Colman's application for permission to apply for a Judicial Review in C0/1834/2006 and
ii) Determination by the Court of Appeal of Dr Colman's application to re-open the decision of Rix LJ of 11th March 2005 to refuse permission to appeal against the Order of McCombe J of 2nd November 2004.
- The GMC suggest that it would be appropriate in the circumstances to adjourn its application under CPR rule 3.11 for an extended civil restraint order pending the determination of those applications.
- I have today been informed that on 26th January 2007 Dr Colman withdrew her Taylor v Lawrence application to re-open the decision of Rix L.J.
- I adjourn determination of the application under CPR r.3.11 to a date to be fixed.
