We have previously commented on the Ivey v Genting decision, which radically changed the test for dishonesty (where the Defendant's state of mind is in issue) in disciplinary proceedings based on the long-standing Ghosh test. We are now beginning to see the first High Court decisions applying Ivey, which give an indication of how the courts (and disciplinary tribunals) may address cases alleging dishonesty in future. Although it is likely to be some time until we have full clarity on the point, it is clear that the courts are wasting no time in replacing the Ghosh test in both the criminal and disciplinary contexts.
The first recorded decision to consider Ivey was DPP v Patterson [2017] EWHC 2820 (Admin), an appeal from a criminal matter in the Magistrates' Court which had been decided in February 2017 and had turned on whether the Defendant had considered herself to be dishonest. Sir Brian Leveson (the President of the Queen's Bench Division) noted that the discussion of dishonesty in Ivey was in the criminal context obiter dicta, and as such not strictly binding on the lower courts. However, he noted that it would be unlikely that the courts would prefer Ghosh in future "given the terms of the unanimous observations of the Supreme Court… [which] does not shy from asserting that Ghosh does not correctly represent the law."
The courts have elected to apply Ivey in two subsequent disciplinary (civil) decisions so far. GMC v Krishnan [2017] EWHC 2892 (Admin) was the first case to consider Ivey in the context of professional disciplinary proceedings. The case (decided in April 2017) concerns whether a doctor had been dishonest in working for another organisation while on sick leave from his employer. While the original High Court hearing of the GMC's appeal (and Dr K's cross appeal) was heard before Ivey (and therefore considered the allegations in light of the Ghosh test), once the decision in Ivey was published the Administrative Court invited the parties to provide further written submissions on the issue of dishonesty. Both parties agreed that Ivey would now apply.
The original decision turned on whether (in accordance with Ghosh) Dr K had considered his actions to be dishonest by the standards of ordinary people, with the Medical Practitioners' Tribunal Service ('MPTS') finding that he had not been dishonest. Applying the test formulated in Ivey (namely (1) the Tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts, and the consider (2) whether his conduct was honest or dishonest applying the (objective) standards of ordinary decent people), the court allowed the GMC's appeal, and remitted the case to the MPTS for consideration in line with Ivey.
The most recent post-Ivey case is GMC v Raychaudhuri [2017] EWHC 3216 (Admin), relating to whether a doctor was dishonest in completing part of a treatment record before examining the patient. The MPTS had found dishonesty not proven, as it could not establish whether he had considered his actions to be dishonest. However, while the Administrative Court noted the Ivey decision and eventually found that the tribunal should have found dishonesty, it was careful to state that this was not dependent on Ivey being applied instead of Ghosh, although this certainly made the outcome clearer.
Of these cases, Krishnan provides the most insight into how the courts will apply Ivey. It should be noted that all three of these appeals came out of decisions made and appeals heard prior to Ivey being handed down. This suggests that appeals currently before the High Court may need to be revisited where the court has not heard argument on the application of Ivey. While the Supreme Court considered that the difference between Ghosh and Ivey would only apply in a few cases (and it is worth nothing that, as per Singh J (as he then was) in GMC v Uddin, the need for a Ghosh/Ivey direction will only arise in cases where the Defendant's state of mind is in issue), the issue arises in a range of professional discipline cases, and the fact that a line of cases have quickly underlined that the Ghosh test no longer represents the law is welcome news to practitioners vexed by a range of occasionally contradictory judgments handed down by the higher courts over the last six years. Even so, it will be some time before we see many appeals based on how Ivey has been applied in practice by legal advisors and tribunals, and it will only be at this stage that the courts' position on the new dishonesty test (including formal dicta that Ivey is binding in the context of professional disciplinary proceedings) will become clear.