Locations
Questions amounted to 'vexing the witness rather than illuminating the factual issues' and compromised the fairness of the proceedings. The judgment is a valuable reminder to Tribunal members, legal assessors and lawyers of a Tribunal's duty to remain impartial.
Facts
B was an osteopath. She saw Patient A about a problem with his foot. Patient A was dissatisfied with the treatment B provided, was critical of her recommendations, and alleged that B 'ranted' at him. He suggested that B made remarks such as "how dare you challenge my professional abilities". Patient A subsequently sent several uncivil items of correspondence to B, and complained to the General Osteopathic Council ('GOsC') about B's allegedly deficient treatment and unprofessional conduct.
In the High Court, Kerr J described Patient A's letters and emails as aggressive, unpleasant, intimidating, and offensive. He concluded that Patient A was arrogant and 'a man who expects deference'.
The Hearing
A PCC considered Patient A's allegations against B at a hearing. The PCC found the allegations proven. The issue in the appeal to the High Court was the way in which one of the PCC members, N, questioned B at that hearing.
Appeal
B appealed to the High Court on the basis that N's allegedly unfair questioning compromised the fairness of the proceedings. Giving judgment, Kerr J considered of N that: (i) her tone was 'frosty'; (ii) she engaged in a 'forensic probe' of why B had been upset by Patient A's correspondence; (iii) she indulged in 'curt responses'; (iv) she adopted an 'abrupt and hostile' tone; and (v) she persisted in several repetitive exchanges. Kerr J noted that the law has long recognised a judicial duty to stay 'above the fray' and not to 'descend into the arena' (see Yuill v Yuill [1945] 1 All ER 183).
He then highlighted a number of propositions approved by the Privy Council in Demarco Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44. Those include: (i) whether excessive intervention or pejorative comment created a real danger that the trial was unfair; (ii) whether the interventions indicate that a fair trial has been denied because the Tribunal has closed its mind to further persuasion and moved into counsel's shoes; and (iii) that the question of unfairness must be considered in the context of the whole trial.
Kerr J concluded that N's questioning had compromised the fairness of the hearing. In particular, he noted that the PCC's function in the present case had been to decide between conflicting factual accounts, and that the credibility of the respective witness was crucial in that regard. Accordingly, the Court expected the PCC to take particular care to ensure an even-handed approach to the respective accounts of Patient A and B. He considered that the PCC did not appear to consider the tone and content of Patient A’s correspondence and form an objective view of it, notwithstanding that it was undoubtedly aggressive and bullying in its tone and content.
In particular, he felt that the content and tone of N's questions was troubling, concluding that:
'The failure to recognise Patient A’s correspondence for what it was evinced hostility towards Ms Beard and indulgence towards Patient A. [N] was allowed for too long to pursue these hostile lines of questioning, the unstated relevance of which was nil or so tenuous as to amount to vexing the witness rather than illuminating the factual issues.'
Tribunal members, legal assessors and advocates should read the judgment in full. Although only briefly summarised above, the Court illustrated how, in its view, N went beyond seeking clarity on relevant issues and in the process lost the mantle of impartiality which should be the hallmark of any Tribunal. Read alongside cases such as Banerjee v General Medical Council [2017] EWCA Civ 78 and Otchere v Law Society [2008] EWHC 2233 it provides a useful case study for those training Tribunal members and Legal Assessors, as well as for practitioners.