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	Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> A. (A.) v. Medical Council & Anor [2003] IESC 70 (19 December 2003) URL: http://www.bailii.org/ie/cases/IESC/2003/70.html Cite as: [2004] 1 ILRM 372, [2003] 4 IR 302, [2003] IESC 70

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THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

M^cGuinness J.

Hardiman J.

208/03

BETWEEN

A A

APPLICANT

AND

THE MEDICAL COUNCIL

RESPONDENT

AND

THE ATTORNEY GENERAL

NOTICE PARTY

[Judgments delivered by Keane C.J. & Hardiman J.; Denham J., Murray J. & McGuinness J. concurring.]

JUDGMENT delivered the 19^th day of December 2003 by Keane C.J.

I have read the judgment which will be delivered by Hardiman J. I agree with it and with the order he proposes. There are some observations, however, which I would wish to add as to the course these proceedings have taken.

The primary relief claimed by the Applicant by way of judicial review was an order prohibiting the Respondent from holding an inquiry pursuant to Part V of the Medical Practitioners Act, 1978. The other reliefs sought, and the grounds upon which they were sought, make it clear that the case essentially being made by the Applicant was that the Respondent's failure to provide legal aid to the Applicant to enable him to be legally represented at the proposed inquiry constituted a failure on the part of the Respondent to vindicate the Applicant's right to his good name and his right to earn his livelihood. The application for leave to issue such proceedings having been refused in the High Court, this court allowed an appeal from that refusal on the 22^nd February, 2002 and granted the Applicant leave to seek the relief in question on those grounds. Thereafter, the Applicant was given leave in the High Court to amend his statement of grounds by seeking declarations that s. 56 of the 1978 Act permitted the Respondent to provide such legal representation or sufficient means to enable the Applicant to procure that representation and, in the alternative, a declaration that, to the extent that Part V of the 1978 Act did not so permit the Respondent to provide legal representation or the means to procure it, it was invalid having regard to the provisions of the Constitution. The Attorney General was thereupon joined as a Notice Party in these proceedings.

In his Statement of Opposition, the Respondent, in addition to denying that the Applicant was entitled to any of the reliefs sought, gave notice that the Respondent would contend at the hearing that the court should exercise its discretion against granting the relief sought on the grounds

(a) that the application had been brought outside the time limit prescribed by O. 84 r. 21 of the Rules of the Superior Courts and that the Applicant was also guilty of gross, inordinate and inexcusable delay in bringing the proceedings and

(b) that the Applicant was precluded by reason of his failure to raise the issue of legal aid and / or legal representation in earlier judicial review proceedings from maintaining these proceedings and that his conduct in instituting them amounted to an abuse of the process of the court.

It is clear from the judgment of the learned trial judge that the Respondent, in the course of the hearing in the High Court, relied upon those grounds, in addition to contending that the 1978 Act could not be construed so as to empower the Respondent to ensure that the Applicant had legal representation at the inquiry and that Part V of the 1978 Act, in not so empowering the Respondent, was not invalid having regard to the provisions of the Constitution.

The learned trial judge, having considered the submissions on behalf of the parties, concluded that the Applicant had failed to establish that the 1978 Act should be read as empowering the Respondent to make provision for legal aid and that Part V of the Act was not invalid having regard to the provisions of the Constitution. He added:

"While the Respondent has relied upon the discretionary nature of the remedy sought by the Applicant and the failure of the Applicant to move promptly to this court as a basis upon which I should in any event refuse the Applicant the relief sought, I am satisfied that it is not necessary in the circumstances to determine this application on any such discretionary basis."

On the hearing of the appeal in this court, Mr. Cush on behalf of the Applicant objected to the Respondent relying on the grounds of opposition relating to the discretionary nature of the remedy sought because they had not been the subject of any adjudication in the High Court and argued that for this court to embark on a consideration of them would amount to a denial of the Applicant's constitutional right of appeal from a decision of the High Court. In addition, he submitted that the Respondent, having failed to serve a notice to vary the judgment or order appealed from pursuant to O. 58 r. 10 of the Rules of the Superior Courts, should not be permitted to argue the issue relating to the discretionary nature of the relief granted.

This court is a court of appeal only and cannot exercise any jurisdiction other than an appellate jurisdiction, save under Articles 26 and 12.3 of the Constitution and when it is exercising the Case Stated jurisdiction vested in it pursuant to s. 38 of the Courts of Justice Act, 1936 and s. 16 of the Courts of Justice Act, 1947. For that reason, this court has consistently declined to consider an issue of constitutional law which, though arising in a case not yet determined by it, has not been fully argued and decided in the High Court, save in the most exceptional circumstances: see The Attorney General –v- Open Door Counselling Ltd (No. 2) [1994] 2 IR 333; Blehein –v- Murphy [2000] 2 IR 231, 239 and Dunnes Stores Ireland Company –v- Ryan; unreported; judgments delivered 8^th February, 2000.

Consistently with that principle, the court has declined to allow a party to raise an issue for the first time which has never been raised in the High Court. In K.D. (otherwise C.) –v- M.C. [1985] IR 697, the appellant sought to raise in nullity proceedings an issue which had never been raised in the High Court, relying in particular on the fact that the effect of a decree of nullity would determine the legal status of a child born to the union between the Respondent and the petitioner, thereby rendering it an exceptional case. Finlay C.J., with whom the other members of the court agreed, said

"It is a fundamental principle, arising from the exclusively appellate jurisdiction of this court in cases such as this, that, save in the most exceptional circumstances, the court should not hear and determine an issue which has not been tried and decided in the High Court. To that fundamental rule or principle there may be exceptions, but they must be clearly required in the interest of justice. This case cannot, in my view, however, provide such an exception."

The present case is manifestly distinguishable from that case in one critical respect. Not merely did the Statement of Opposition expressly rely on the discretionary nature of the relief sought in the proceedings and the circumstances which, as the Respondent urged, should preclude its being granted in this case: the matter was fully argued by counsel when the case came on for hearing. The learned trial judge, having decided that the Applicant had not established that he was entitled to any of the reliefs claimed, concluded that it was not necessary for him to express any view on whether, in any event, the Applicant should also have been refused the reliefs sought in exercise of the court's discretion.

I am satisfied that, in such a case, this court is not deprived of its jurisdiction to consider whether the Applicant should be refused the reliefs sought on discretionary grounds because the High Court has not adjudicated on that issue. It would seem to me unjust that, where a particular ground has been raised and fully argued in the High Court, a party should be precluded from obtaining a decision on that ground in this court through no fault of his own. In the present case, it would mean that the case would have to be remitted to the High Court with an almost inevitable further appeal to this court, resulting in the incurring by a party not in default of significant costs and delay in having the appeal resolved. That does not seem to me to be a just and convenient way of dealing with the appeal.

It is also to be remembered that, under O. 58 r. 1, all appeals to this court are to be "by way of rehearing". As noted by Henchy J. in Northern Bank Finance –v- Charleton [1979] IR 149, so far as oral evidence is concerned, the court must rely on the transcript of that evidence in the High Court rather than conduct a rehearing in the manner appropriate to an appeal from the Circuit Court to the High Court. Subject to that major qualification, the court has jurisdiction to consider all the issues defined by the pleadings which were the subject of evidence or submissions in the High Court and the court is not automatically precluded in every case from considering such an issue simply because it has not been subject of a determination by the High Court judge. Whether a party is to be precluded from advancing again arguments which were relevant to an issue in the case and on which he relied in the High Court must, in the interests of justice, be determined according to the circumstances of the particular appeal before this court.

It is conceded on behalf of the Respondent that no notice to vary was served in this case. Order 58 r. 10 provides that

"It shall not, under any circumstances, be necessary for a person served with notice of appeal to give notice by way of cross appeal, but if such person intends, upon the hearing of the appeal, to contend that the judgment or order appealed from should be varied, he shall within four days of such service upon him or within such extended time as may be allowed by the Supreme Court give notice of such intention to any parties who may be affected by such contention. Every such notice shall be a four day notice and the appeal shall not be listed before the expiration thereof. The omission to give such notice shall not diminish the powers conferred by statute or these rules upon the Supreme Court, but may, in the discretion of the Supreme Court, be ground for an adjournment of the appeal or for a special order as to costs."

The effect of this rule is reasonably clear. An appellant must, in every case, serve a notice of appeal stating the grounds of the appeal and the relief sought or the order (if any) in lieu of the judgment or order appealed from sought by the appellant. Rule 10 makes it plain that there is no analogous or corresponding obligation on the Respondent. The only circumstance in which he is under any obligation to serve a notice of any sort is where he intends to contend that the judgment or order appealed from should be "varied". Thus, to take a relatively straightforward example, the plaintiff in a personal injuries action whose damages have been reduced because he was found guilty of contributory negligence, if he wishes to contest that part of the order, must serve a notice to vary. It seems to have been thought, however, that a Respondent is also obliged to give notice to the appellant under this rule if he intends to contend that the judgment or order should be upheld for reasons other than those given by the High Court judge.

I can find no warrant for that construction of the rule, least of all in the use of the expression "judgment or order". Those words are used virtually interchangeably throughout the rules and I see no basis for treating the word "judgment" in this rule as referring to the reasons, whether in written or ex-tempore form, given by the High Court judge for his or her judgment or order. The members of this court are incapable of "varying" the reasons given by the High Court judge. They may consider any of the reasons erroneous in point of law or may uphold any of them as being correct in point of law. They may also adopt reasons of their own for arriving at the same conclusion or a different conclusion. Whatever course they may adopt, the reasons for the judgment or order actually made by the High Court judge will remain as he or she expressed them.

It should also be noted that, even where a party who is obliged to serve a notice to vary omits to do so, this does not preclude the court from varying the judgment or order of the High Court where justice so requires, although, it may in such circumstances adjourn the hearing in order to enable the appellant to deal with a case of which he had no notice and has a discretion to make a special order as to costs.

Some difficulty may have been caused in the past by an ex-tempore preliminary ruling to a different effect given by the court in a case of William Hanratty –v- Drogheda Web Offset Printers Ltd & Anor (2^nd June, 1994). I am satisfied that the ruling of the court of three in that case, which proceeds on the assumption that a notice to vary must be served in cases where the Respondent seeks to uphold, rather than have varied, a judgment or order of the High Court for reasons other than those which found favour with the High Court judge, was wrongly decided and should not be followed.

THE SUPREME COURT

JUDICIAL REVIEW

208/03

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Between:

A A

Applicant

and

THE MEDICAL COUNCIL

Respondent

and

THE ATTORNEY GENERAL

Notice Party

JUDGMENT of Mr. Justice Hardiman delivered on the 19^th day of December, 2003.

This is the applicant's appeal from the judgment of the High Court (Ó Caoimh J.) of the 28^th April, 2003 and consequent order perfected on the 13^th May, 2003 whereby the applicant's claims to relief by way of judicial review were dismissed.

Factual background.

The applicant is a medical graduate of X Y Medical College, Lahore, Pakistan. He graduated in 1993, and subsequently worked in various hospital posts and in general practice. His personal history is set out in some detail in the judgment of Ó Caoimh J. in previous judicial review proceedings instituted by the applicant against the respondent, delivered the 11^th October, 2001.

On the 6^th July, 1997 the applicant commenced working in the Mater Hospital, Dublin as a supernumerary unpaid Senior House Officer. He obtained temporary registration as a medical practitioner. It appears that he took up this position with a view to obtaining a place on a training course. On the 28^th July, 1997 the applicant performed certain actions in relation to two female patients who were awaiting relatively minor surgery. The two patients spoke to various persons including relatives, staff at the hospital and ultimately to the Gardaí alleging that these actions amounted to sexual assault. He was charged with two counts of sexual assault on or about the 7^th August, 1997. Bail was set on these charges but the applicant was unable to meet the terms of the bail order and was accordingly on remand awaiting trial from August 1997 until January, 1999. In the latter month he was acquitted of both counts.

The Medical Council's involvement.

Subsequent to his acquittal, the applicant again sought temporary registration from the respondent Council. The Council is a body incorporated by statute, the Medical Practitioners Act, 1978. Allegations of professional misconduct arising out of the applicant's alleged actions in the Mater Hospital on the 28^th July, 1997 were made to the Medical Council and considered by its Fitness to Practice Committee. On the 26^th October, 1999 the Committee decided that there was a prima facie case for the holding of an inquiry into alleged misconduct on the part of the applicant. The applicant was notified of this on 28^th October, 1999. Pursuant to Part V of the Medical Practitioners Act, 1978, it then became the duty of the Council's registrar to present the evidence of alleged misconduct to the Committee. Notice of Inquiry was issued and served on the 21^st February, 2000 and the hearing fixed for the 13^th, later changed to the 14^th, of March, 2000.

On the 13^th March, 2000 the applicant obtained leave to apply for judicial review in proceedings entitled "The High Court 2000 No. 120 JR Between A. A., Applicant and the Medical Council Respondent". He also obtained an ex parte order restraining the conduct of the Inquiry. These proceedings will henceforth be referred to as the "first Judicial Review proceedings". The principal relief sought in these proceedings is similar to that originally sought in a second set of proceedings ("The present proceedings"). The grounds on which the relief sought are, however, different. In the first proceedings he claimed:-

"(i) An order prohibiting the respondent from holding an inquiry under Part V of the Medical Practitioners Act, 1978, notice of which was served upon the applicant by Notice dated the 21^st February, 2000 into allegations of professional misconduct on the part of the applicant.

(ii) A declaration that the holding of such an inquiry into allegations of assault and/or indecent assault and/or sexual assault on Mrs. J.H. on or about the 28^th July, 1997 and/or allegations of assault and/or indecent assault and/or sexual assault by the applicant on MOS on or about the 28^th July, 1997 amount to a breach of natural justice.

(iii) A declaration that the conducting of the said inquiry infringes the principle of double jeopardy, a fundamental principle of fair procedure and natural justice.

(iv) A declaration that the respondent is estopped from so proceeding to conduct an inquiry into the said allegations.

(v) A declaration that the matters being the subject matters of the proposed said inquiry are res judicata.

The relief sought at the present proceedings are:-

(1) An Order staying the inquiry being held by the Respondent pursuant to Part V of the Medical Practitioners Act, 1978, notice of which was served upon the Applicant by Notice dated the 7^th day of December, 2001 into allegations of professional misconduct on the part of the Applicant insofar as the Fitness to Practice Committee may not proceed to report stage.

(2) A Declaration that the Respondent's failure to provide legal aid to the Applicant to enable the Applicant be legally represented at the proposed Section 45 Inquiry to be conducted by the Respondent's Fitness to Practice Committee at which the Applicant will be charged with professional misconduct constitutes a failure on the part of the Respondent to provide fair procedures to vindicate the Applicant's right to earn his livelihood.

(3) A Declaration that Part V of the Medical Practitioners Act, 1978 and in particular the statutory power granted to the Respondent to conduct Inquiries into the Fitness to Practice of any Medical Practitioner requires the Respondent in the conduct of such Inquiry to conduct such Inquiry in a manner which is fair and in accordance with the principles of natural and constitutional justice and that such conduct would require that any person brought before such Inquiry would be legally represented and that if such person is unable to afford such representation that an onus falls upon the Respondent to provide such person with legal representation or with the means to procure such legal representation.

(4) A Declaration that the failure of the Respondent to provide the Applicant with the means by which he may be legally represented at the Disciplinary Inquiry being conducted by the Applicant's Fitness to Practice Committee constitutes a breach of the Applicant's constitutional rights and, in particular, the Applicant's constitutional rights to his good name and to earn a livelihood.

(5) A Declaration of Section 56 of the Medical Practitioners Act, 1978, permits the Respondent to provide or cause to be provided legal representation or sufficient means so to enable the Applicant to procure legal representation at the hearing of the Inquiry pursuant to Part V of the Medical Practitioners Act, 1978, notice of which was served on the Applicant by Notice dated the 7^th day of December, 2001 into allegations of professional misconduct on the part of the Applicant.

(6) In the alternative a Declaration that insofar as the provisions of Part V of the Medical Practitioners Act, 1978, do not permit the Respondent to provide legal representation to any means so to procure legal representation to the Applicant the same are invalid having regard to the provisions of the Constitution.

From the foregoing it can be seen that the primary relief in each case was to prevent the holding or continuance of the inquiry. However, the grounds relied on in the first set of proceedings relate to alleged double jeopardy and breach of natural justice in the form of multiple proceedings in the same matter. By contrast, the emphasis in the present proceedings is alleged breach of natural justice, and infringement of constitutional rights by reason of what is alleged to be the Council's failure to provide legal aid for the applicant, together with a declaration of s.56 of the Act of 1978 permits the Council to "provide or cause to be provided legal representation or money in lieu thereof", with the alternative declaration that, if the Section does not have that effect "the provisions of Part V for the Act of 1978 are invalid having regard to the provisions of the Constitution".

Chronology of proceedings.

We have already seen that the holding of the inquiry listed for the 14^th March, 2000 was restrained by the order granted the previous day. The proceedings in which this order was made were determined in the judgment of the 11^th October, 2001. No appeal was taken from this judgment and the order which followed it. The order refused the relief sought by the Applicant in the first judicial review proceedings except in one respect: Ó Caoimh J. restrained the holding of an inquiry into the first two of the ten allegations of professional misconduct, on the basis that these allegations precisely mirrored the criminal charges of which the applicant was acquitted.

By letter dated the 7^th December, 2001 the holding of the inquiry, limited as indicated above, was fixed for the 20^th February, 2002. On the 14^th December, 2001 the Chairman of the Fitness to Practice Committee wrote to the applicant's solicitors explaining the considerable volume of work before the Committee and certain consequential matters about the composition of any particular Fitness to Practice Committee. On the 24^th January, 2002 the applicant's solicitors stated that he was impecunious and asked for details "of any financial or legal aid that would be available to our client. In the event that such systems of assistance do not exist we would call upon you to consider the extraordinary circumstances of our client and to propose a solution so that he would have proper and adequate legal representation at any disciplinary hearing. We wish to make it clear that our instructions from Dr. A are that he requires legal representation (at) any disciplinary hearing but that he is currently not in a position to afford same." By letter of the 1^st February, 2002 the Council's solicitor confirmed "…That the Council is not in a position to make available financial/legal aid, nor is it in a position to provide legal representation for your client."

On the 19^th February, 2002, the applicant sought leave to apply for judicial review and an interim order restraining the respondent from conducting the fresh inquiry. Leave to seek these reliefs by way of judicial review was refused in the High Court (Kelly J.) and the inquiry proceeded on the 20^th February, 2002 and on the following two days. The transcript of these three days hearing was exhibited in these proceedings. From reading them it appears that there was no major disputed issue of primary fact, nor any major legal issue. The principle issues seem to relate to whether certain actions performed by the applicant amounted to misconduct in the eyes of qualified members of the medical profession and lay members of the Committee.

The applicant applied to the Supreme Court by way of appeal from the order refusing him leave and was granted leave to apply by the Supreme Court on the 22^nd February, 2002. He also obtained from the Supreme Court an order restraining the Fitness to Practice Committee of the Council from reaching a determination in the inquiry until after the determination of the present proceedings. Having been granted leave, his motion for the relief claimed in the statement grounding the present proceedings were heard and determined, as mentioned above, by the judgment of the High Court (Ó Caoimh J.) delivered on the 28^th April, 2003, from which order this appeal is taken.

The first issue.

It is convenient to deal first with a particular contention of the respondent. This is to the effect that the applicant has been guilty of delay which both puts him outside of the time limited by order 84 rule 21 of the Rules of the Superior Court for seeking relief by way of judicial review, and, furthermore, is in itself gross, inordinate and inexcusable. Further or in the alternative, the respondent says, the applicant should be refused relief in the discretion of the Court on the basis that the present proceedings are an abuse of the process of the Court, unreasonable, unjust and contrary to fair procedures. This is on the basis that the applicant could have raised the issue of legal aid or funded legal representation at any time after he was first notified of the decision to proceed to Inquiry, on the 28^th October, 1999 or at the latest when the first inquiry was fixed by formal notice, dated the 21^st February, 2000. Because of these matters, the respondent claims, it has been seriously delayed in discharging its statutory function of holding an inquiry into allegations of professional misconduct against a medical practitioner and has been put to considerable inconvenience and expense. It is confronted with two sets of judicial review proceedings, where one would have been sufficient. Witnesses, including the patients involved in the incident in July 1997, have been inconvenienced and the proceedings before the Fitness to Practice Committee gravely and needlessly prolonged. Furthermore, say the respondents, the applicant has made no attempt to explain why he did not agitate his claim to legal aid or funded legal representation in the first set of judicial review proceedings.

The law.

In advancing this contention, counsel for the respondent relied on the recent decision of this Court in Eamon Carroll and Mary Carroll and Chris Ryan, John Rogers and the Law Society of Ireland (Supreme Court unreported 21^st January, 2003). This case featured an application of what might be called the principle in Henderson v. Henderson [1843] 3 Hare 100. In a famous passage, more often cited in recent years than in the decades immediately after its delivery, Sir James Wigram V.C. said:-

"I believe I state the rule of the Court correctly when I say that where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward the whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence or even accident omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time".

In Cox v. Dublin City Distillery (No. 2) [1915] 1 IR 345, Pallas C.B., without, apparently, being referred to Henderson held that a party to previous litigation, as against the other party in that action, was bound "not only (by) any defences which they did raise in that suit, but also any defence which they might raised, but did not raise therein".

Although the principle thus expressed has never been doubted there has in recent years been a good deal of debate as to its precise legal nature and taxonomy and as to the circumstances in which and rigidity with which it should be applied. Many of these issues are debated in an illuminating article by Mr. Justice Handley, a judge of the Court of Appeal of New South Wales in 118 LQR 397 "A closer look at Henderson v. Henderson" (July 2002). The learned author cites various recent and not entirely consistent applications of the principle. In particular, he considers too crude and too mechanistic the application of it in Yat Tung Investment Company Limited v. Dao Heng Bank Limited [1975] AC 518. In that case Lord Kilbrandon and his colleagues dismissed as an abuse of process proceedings which were an attempt to raise matters which "could and therefore should have been litigated in earlier proceedings". Handley J. prefers the approach of Lord Bingham in Johnson v. Gore Wood [2002] WLR 72. He said:-

"… Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not twice be vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interest of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the Court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I do not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the Court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in the earlier proceedings it should have been, so as to render the raising of it in a later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad merit based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the Court by seeking to raise before it the issue, which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not".

In Woodhouse v. Consigna [2002] 2 AER 737 Brooke L.J. referred to the public interest in the efficient conduct of litigation and continued:-

"But at least as important is the general need, in the interest of justice, to protect the respondents to successive applications in such circumstances from oppression. The rationale of the rule in Henderson and Henderson that, in the absence of special circumstances, parties should bring their whole case before the Court so that all aspects of it may be decided (subject to appeal) once and for all is a rule of public policy based upon the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do…".

The position is still more succinctly expressed in Gairy v. Attorney General of Grenada [2001] 3 WLR 779 where, speaking of the principle in Henderson and its offshoots Lord Bingham said:-

"… These are rules of justice, intended to protect a party

(… not necessarily a defendant) against oppressive and vexatious litigation".

Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion. Indeed, it appears to me that sympathetic consideration must be given to the position of a plaintiff or applicant who on the face of it is exercising his right of access to the Courts for the determination of his civil rights or liabilities. This point has a particular resonance in terms of Article 6 of the European Convention on Human Rights and Fundamental Freedoms, 1950. In Ashingdane v. U.K. [1985] 7 EHRR 528 at 546, the European Court of Human Rights said:-

"… The right of access to the Court is not absolute but may be subject to limitations: these are permitted by implication since the right of access 'by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals' ".

Considering the nature of permitted limitations, the same Court said in Tinneally and Sons Limited v. U.K. [1999] 27 EHRR 249 at 271:-

"… A limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aims sought to be achieved."

Application of the above principles.

The applicant is not currently a registered medical practitioner in this jurisdiction. Accordingly, he cannot be erased or suspended from the register and conditions cannot be imposed on his registration. The penalties to which he is liable, pursuant to s.48 of the Act of 1978, are limited to admonition, advice or censure. Before any of these things could occur he would have to be found guilty of professional misconduct. If that occurred the Council might in its discretion refuse to permit him a further period of temporary registration, which form of registration is subject to a maximum time limit.

The Medical Council is discharging a public function in the hearing and determination of allegations of professional misconduct as well as observing the professions interest in promoting high professional standards and public confidence.

The allegations in question here relate to a time some six and a half

years ago and it is manifestly in the interest of the applicant, the Council, the profession, the complainants and the public generally that these be resolved as soon as possible and without unnecessary or unreasonable delay.

It is also relevant to note that all times since first notification to him of the Medical Council's consideration of allegations of professional misconduct in 1999 the applicant has had legal advice and representation of high quality. Thus assisted, he instituted and was partially successful in the first judicial review proceedings. It is in my view a very material fact that no tenable explanation whatever has been advanced, in pleadings, affidavit or oral argument, for the failure to raise the points now taken in relation to legal aid or funded legal representation when those proceedings were instituted and when the first order restraining the holding of an Inquiry was obtained. Mr. Cush S.C. for the applicant pointed out that the primary relief claimed in the first proceedings would, if granted, have had the affect of stopping the Inquiry into allegations of professional misconduct in limine. In that event, he said, no other relief would have been necessary. But the proceedings also sought, in the alternative, to attack only the allegations of sexual assault/indecent assault. This, substantially, was the relief actually granted in the first proceedings and it left eight allegations in respect of which there must be a hearing. This result, specifically contemplated in the first proceedings, clearly left open the need, as the applicant sees it, for legal aid or representation. But the applicant chose not to raise this topic in a legal forum for another two years, until the eve of the refixed Inquiry. This is unexplained.

I consider this to be the determining feature of the present proceedings. The applicant obtained on the 13^th March, 2000 an order restraining the conduct of an Inquiry fixed for the next day on the ground that the Inquiry as proposed to be conducted was a denial of his legal and constitutional rights. That issue having been decided and the Inquiry refixed for the 20^th February, 2000 he again sought to restrain its conduct or continuance on the basis that this would again constitute an invasion of his legal or constitutional rights, but on different grounds, those relating to legal aid or funded representation. No reason has been advanced, and none appears on the evidence, why these points could not have been raised two years previously. The applicant's financial position had not worsened in the interval: he was impecunious at all material times. He had first raised the question of legal aid less than a month before the institution of the present proceedings, and no reason has been advanced for not raising it earlier. The information he received in reply to his solicitor's letter of the 24^th February, 2002 cannot have come as a surprise to any lawyer or doctor and no case has been made to the contrary. The issues in relation to legal aid are, therefore, to adapt the language of Henderson issues "which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time" of the first proceedings. In the language of Johnson v. Gore Wood there are issues which might "sensibly" have been brought forward in the previous litigation. The present litigation in my view runs foul of the rule of public policy "based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do…" in the words of Brooke L.J. in the passage cited above.

I would also, to the extent that it is an independent ground of objection, consider that the applicant has been guilty of delay which is gross, inordinate and inexcusable. The terms of order 84 of the Rules of the Superior Courts make clear the policy that relief by way of judicial review should be promptly sought. The applicant's own conduct was to seek relief as a matter of great haste in circumstances of emergency, even though the emergency was wholly created by his own delay. He stopped the Inquiry once on the eve of its commencement and once after it had been under way for three days, with inescapable distress to the lay witnesses, especially those giving evidence of an intimate nature who had already given evidence twice and had been summoned to do so three times. Are we to have a fourth such occasion?

The applicant has numerous legal and constitutional rights in relation to the Inquiry into the allegations against him which he has quite properly and exhaustively been at pains to assert. But so also have the other participants in the procedures envisaged by Part V of the Medical Practitioners Act, 1978 and the public in whose interest that measure was enacted. If these rights, as well as those of the applicant, are to be respected, the Court cannot tolerate a further challenge to the Inquiry and its proceedings made, without explanation, two years after the first, and which could and should have been incorporated with it.

Conclusion.

For these reasons, alone, I would dismiss the appeal and affirm the order of the High Court. In those circumstances it is unnecessary to consider the other points raised.