[2010] CSOH 58



in the cause







Pursuer: Bovey, Q.C., L Henderson; Balfour + Manson LLP

Defenders: I Ferguson, Q.C., McGregor; Shepherd & Wedderburn

30 April 2010


[1] The pursuer was born on 29 September 1954. He graduated in medicine in 1978. Following postgraduate training he was awarded the Fellowship of the Royal College of Surgeons of Edinburgh in 1983. He worked in a number of posts which I shall discuss later in this Opinion. He developed a specialist interest in breast surgery associated with oncology. In May 1988 the pursuer was appointed locum senior registrar at the Royal Marsden Hospital in London, where he specialised in breast cancer surgery. By then he had completed a masters degree in the study of genetics in relation to breast cancer. He remained at the Royal Marsden until 1990.

[2] In 1990 the pursuer moved to New Zealand to take up a position as a general surgeon specialising in breast screening services. In 1993, while still in New Zealand, he applied retrospectively to the Joint Committee on Higher Surgical Training (JCHST) for accreditation as a specialist in general surgery, which is recognition of the completion by the applicant of training fitting him for appointment as a consultant in the National Health Service (NHS). The process involved approval of the application by a Specialist Advisory Committee (SAC) of the JCHST in the particular discipline, in this case general surgery, and thereafter a recommendation by the JCHST to the appropriate Royal College of Surgeons in the United Kingdom, in the case of the pursuer that was the defenders, which College was then responsible for the final award of accreditation. The JCHST recommended accreditation by the defenders who duly awarded accreditation to the pursuer on 12 November 1993. Whether that award was made on the basis of an inaccurate understanding of the pursuer's training record, whether it ought to have been made, and what ought to have been done about that when the matter came to light lie at the core of this action.

[3] In New Zealand the pursuer was involved in the setting up of a pilot breast screening programme. He recommended that the results of that scheme should be assessed by an independent expert and proposed Professor Blamey. In the course of his encounters with Professor Blamey the pursuer learned that Bradford Hospitals NHS Trust in England required an experienced breast cancer surgeon. The pursuer applied for the post and was duly interviewed by the Advising Appointments Committee on 22 May 1998. He was concerned by the aggressive tone during the interview of one of the committee members who would be a consultant colleague if he was appointed, and by the reference there to disciplinary proceedings which had been taken against him in New Zealand, in which the finding against him had been quashed on judicial review, albeit there were outstanding appeal proceedings. These features of the interview are reflected in the minutes of an extraordinary meeting of directors of the Bradford Hospitals NHS Trust (Bradford) held on 15 July 1998, at which it was decided to offer him the post officially entitled "general surgeon with a special interest in breast surgery".

[4] From then until now the pursuer's life has been punctuated by a series of disciplinary, tribunal and court proceedings of which this case is the latest. Since 2000 he has not practised medicine. Indeed he has had no remunerative employment. It is plain that he did much good and innovative work in the field of breast surgery and had the potential to continue to make a major contribution to the development of surgical procedures and to the treatment of breast cancer, which will sadly never be realised. Whether any of that is the responsibility of the defenders for which they must compensate him is the subject of this case.

[5] The main events giving rise to this dispute occurred at three distinct stages in time: between 1983 and 1990 when the pursuer worked in various posts at registrar and senior registrar level; 1993 when he applied for accreditation; and 1999 to 2002 when he was the subject of some concern, and later disciplinary proceedings resulting in dismissal on 21 September 2000, at Bradford and reconsideration of his accreditation by the defenders. Since 2000 there have been proceedings before the Employment Tribunal and Employment Appeal Tribunal in England relating to the Bradford dismissal, various proceedings before the Professional Conduct Committee and Fitness to Practise Panels of the General Medical Council, the former being followed by an appeal to the Administrative Court in England and a further appeal to the Court of Appeal, Judicial Review proceedings in England challenging an "alert letter" issued following his dismissal by Bradford and Judicial Review proceedings in this Court. Since there is considerable overlap between the matters which were the subject of each of these proceedings and the subject matter of this case, it is important to identify clearly the particular legal and factual issues that are the focus of this case. I took first at the applicable law.

Applicable Law

[6] The pursuer seeks damages from the defenders for loss which he attributes to the actions of an official and office-bearers of the defenders when questions over whether he had completed higher surgical training entitling him to accreditation arose in the context of inquiries by the chief executive of Bradford, Brian Jackson, into allegations of misconduct against him. On 13 December 2002 the Council of the defenders resolved that the pursuer's accreditation should be withdrawn. Between October 2000 and that date there were other occasions when the view that accreditation should be withdrawn was expressed. Following Judicial Review proceedings, Lord Drummond Young pronounced an interlocutor on 17 June 2005 declaring that in removing the pursuer's accreditation the defenders acted unreasonably and reducing the decision of 13 December 2002 together with any previous decision to the same effect. He did so because the defenders, and the Tribunal appointed to consider the matter and advise them, concluded that no account should be taken of the pursuer's service at the Royal Marsden Hospital between 1988 and 1990 as the post that he had occupied there was a locum post. Lord Drummond Young considered that it was unreasonable for them not to consider whether, in light of the material presented to them, it was in fact "a post of equivalent responsibility and training potential" in terms of the Regulations then in force. The Judicial Review petition included a claim for damages. He was asked to reserve that matter for a second hearing. On 9 May 2006 those proceedings were sisted. Thereafter this action was raised.

[7] In his Statement of Claim the pursuer sets out a catalogue of thirty four different elements of conduct attributed to the defenders and their chief executive and office bearers which, he says, taken together demonstrate that they acted in bad faith when considering whether his accreditation should be withdrawn. The matter is put this way at the end of Statement 9:

"By acting with the intention of harming the pursuer or, at least, with reckless indifference as to the legality of their actions and whether the pursuer was harmed or not, the defenders misused their powers in bad faith et separatim unlawfully interfered with the pursuer's right to carry out his employment. By so acting the defenders caused or at least materially contributed to the loss, injury and damage suffered by the pursuer".

The pursuer's case is stated in broadly similar terms in the first plea-in-law. However, in the end it was no part of the pursuer's case that the defenders aimed to harm him. His counsel, Mr Bovey, Q.C., submitted that the pursuer relied on "reckless behaviour and to some extent ill-will". That rather elliptical statement developed into a submission about the applicable law with which, in its core elements, Mr Ferguson, Q.C., for the defenders did not take issue. Parties appeared to be at one on the relevant applicable law. I set out below the distilled essence of their submissions about the alternate ways in which abuse of public office may arise with which I agree.

[8] The claim is for loss resulting from abuse of power in the exercise of a public office or function. The applicable law is derived from authorities both north and south of the border. In Micosta SA v Shetland Islands Council 1986 SLT 193 at 198 Lord Ross, after stating that, if conduct complained of amounts to a wrong, the law of Scotland will afford a remedy even if there has not been any previous instance of a remedy being given in similar circumstances, expressed the opinion that

"...deliberate misuse of statutory powers by a public body would be actionable under the law of Scotland at the instance of a third party who has suffered loss and damage in consequence of the misuse of statutory powers, provided that there was proof of malice or proof that the action had been taken by the public authority in the full knowledge that it did not possess the power which it purported to exercise".

He said that he had reached that conclusion on a consideration of inter alia English authorities relating to the tort of misfeasance in public office. In dealing with a claim involving that tort in Watkins v Secretary of State for the Home Department and others [2006] UKHL 17, [2006] 2 AC 395, at paragraph 29, Lord Hope of Craighead said that it is normal practice for rules regulating the conduct of public officers in Scotland to be the same, or at least substantially the same, as those by which the conduct of comparable public officers in England and Wales are regulated and that it would be a matter for regret if the remedies for a breach of these and other rules regulating the conduct of public officers were not the same on either side of the border. I agree with both counsel that it is appropriate to look to English authority on misfeasance in public office for assistance in identifying the elements of abuse of power in the exercise of a public office or function.

[9] I also agree with both counsel that the authoritative definition of the requirements for the tort of misfeasance in public office are to be found in Three Rivers District Council v Bank of England (No.3) [2003] AC 1, [2000] 3 All ER 1, and are that liability arises either where a public power is exercised for an improper purpose with the specific intention of injuring a person or persons, or alternatively where a public officer acts in the knowledge that he has no power to do the act complained of and that it will probably injure the claimant. In the case of the alternative basis, which is the basis on which this case is presented, the requirements are satisfied where the holder of the public office is shown to have acted with a state of mind of reckless indifference to the illegality of his act and as to the consequences for the victim. That is reckless indifference in the subjective sense: the holder of the office must be shown to have no honest belief that his actions are lawful and to be aware that they will probably injure the victim, or at least the category of persons to which the victim belongs. The notion that such reckless indifference may be the equivalent of malice has been recognised here in other contexts. In West v Mackenzie 1917 SC 513 at page 520 Lord Guthrie put it thus:

"No doubt, rashness may be so great as in law to negative probable cause and to establish malice".

The Lord Justice-Clerk (Scott Dickson) at page 518 referred to "such rashness as would amount to what in law would be regarded as malice", and the idea that recklessness may be sufficient was accepted without comment in the Opinion of the Lord Justice-Clerk (Macdonald) in Brown v Fraser (1906) 8F 1000 at 1006.

[10] In my opinion the pursuer should succeed in his claim if he can demonstrate that he has sustained loss as the result of conduct of the defenders where they had no honest belief that they were entitled to so act and knew that the pursuer would probably sustain loss as a result. That was the main basis on which the pursuer's case was presented. Reliance on ill-will was limited.

[11] Logically the first thing for proof ought to be that the defenders were exercising a public power. Exactly how the defenders came to have the power to confer accreditation on their fellows seeking advancement in the profession was hardly explored in evidence. It is not laid down in any form of regulation. Mr Ferguson made what I consider to be a fairly half-hearted submission that the pursuer should fail because there was no clear evidence of either how the defenders came to have the power they were exercising or of the extent of the powers they had, which made it impossible for a rational decision to be made that they had exceeded their powers. The particular power in issue is clear. The chief executive and office-bearers of the defenders accepted that they were exercising an important public function in initially awarding and then later reviewing the accreditation of the pursuer. A letter of 23 November 2000 from the General Medical Council stated unequivocally that accreditation had always fallen under the auspices of the Royal Colleges. The defenders are a body established by Royal Charter and governed by a Council of office-bearers and fifteen other members. Like the other Surgical Royal Colleges in the British Isles they had at that time the final say on whether one of their fellows had completed higher surgical training that qualified him for further advancement in the profession and would virtually guarantee appointment to a post as a consultant surgeon in the NHS. They were part of a system designed to ensure that only those who were adequately trained held certification that appointment to consultant status was appropriate in what is probably the largest public service in the United Kingdom, overseen by the Department of Health under a team of Ministers presided over by the Secretary of State for Health. As such they were in my opinion clearly exercising a public function. Their position and role were analogous to those of the chartered accountants' disciplinary body - see Institute of Chartered Accountants of Scotland 2002 SLT 92 at para 12. The matter is neatly put by Buxton LJ in Society of Lloyd's v Henderson & Others [2007] EWCA Civ 930, [2008] 1 WLR 2255, at paras 23 and 24 as follows:

"23. Those formulations do not discuss how a 'public officer' is defined, and general authority on that point is not easy to find. That may well be because, as I suggest later in this judgment, the answer in almost every case is obvious. However, Lloyd's was able to point us to two relevant observations within the speeches in the Three Rivers case. Lord Steyn said... 'The rationale of the tort is that in a legal system based on the rule of law the executive or administrative power may only be exercised for the public good'; and Lord Hobhouse...said that the tort concerned 'the acts of those vested with governmental authority and the exercise of executive powers'.


24. The requirement that the subject of misfeasance in public office should be a governmental body springs from the very nature of the tort. As Hale LJ pointed out... the nature of the wrong is that a public official, who is given powers for public, governmental purposes, misuses them for a different purpose, conscious that in so doing he may injure the claimant".

While the defenders may not be accurately described as "public officials", they were in this context exercising a public office in which they played a key role in regulating the determination of the qualification by training of doctors for appointment to senior posts in the NHS. That power had to be exercised for the public good.

The Witnesses

[12] While fairly detailed submissions were made to me about the credibility and reliability of a number of witnesses, I have found that few specific factual issues turn exclusively on my impression of witnesses. I say "exclusively" because the evidence was presented largely in the context of reference to documents, much of it correspondence between representatives of different bodies involved in this matter and also with the pursuer and those acting for him. On the other hand, my impression of the personal qualities of certain witnesses has had a bearing on certain of my conclusions about what the evidence as a whole on a matter amounts to.

[13] In addition to the pursuer, all other witnesses were called on his behalf. They were the retired chief executive of the defenders, James Richard Charles Foster, and three former office-bearers, Professor Sir John Temple, Professor Arnold Maran and Mr Donald Angus David Macleod; David Jackson, retired chief executive of Bradford; Bill Kirkup, then Regional Director of Public Health for Northern Yorkshire and now Associate Chief Medical Officer, Department of Health for England and Wales; James Edward Bold, formerly an industrial relations officer with the British Medical Association (BMA); Paul Jeffrey Campbell, solicitor who acted for the pursuer during most of his dispute with the defenders; and Peter Davies, employment consultant. Two joint minutes dealt with documents and included a statement which was agreed to be the evidence of Professor William Burr, which is relevant to loss, and certain agreements as to income the pursuer would have received had he continued to work in the NHS.

[14] Where it is necessary to do so to explain my findings, I have dealt specifically with controversial issues of reliability and credibility at the appropriate stage in this Opinion. At this point I reflect my general impression of the individual witnesses.

[15] During examination of first of all the pursuer and then Mr Foster, who were both asked about the role of the office-bearers, particularly Professors Temple and Maran, the picture that began to form in my mind was of a fairly determined group of the most senior office-bearers of the defenders pre-occupied by the case of Mr Phipps about which there was a measure of impatience because it was so difficult to find a solution. As each gave evidence, it was increasingly striking just how far that impression was from the truth. Each of the office-bearers was relaxed about the whole matter. There were gaps in the recollection of each of the detailed events of meetings, particularly in 2000. There was no hint in the evidence of any one of the three of any ill-will towards the pursuer. They all made a good general impression subject, of course, to specific comments I make later in this Opinion.

[16] Mr Foster had only recently been appointed chief executive of the defenders and had no previous experience of administration in the health sector. He is a retired Royal Navy Commander. There were some matters about which his explanations were unsatisfactory. However, I did not form the impression that he was deliberately lying about any matters of significance. I think that he tried to rationalise the inexplicable on a limited number of occasions which contrasted markedly with his frank acknowledgement of being wrong or having acted stupidly on others. I believe that his inexperience in matters of hospital administration was a factor in the inefficient and at times inappropriate conduct of this whole matter. I think it was probably also a factor in causing delay. No improper motive was attributed to Mr Foster. Mr Bovey's submission acknowledged that he was an honest witness. He submitted that his conduct and attitude disclosed a deep seated prejudice against the pursuer and that that had coloured his evidence. I do not recall that being put to Mr Foster nor any evidence of a potential source of such prejudice. Again my general impression was favourable.

[17] Mr Jackson was the only witness who gave the impression of having a dim view of the pursuer that might have influenced his treatment of him. However, it is far too simple to jump straight to the conclusion that that influenced his conduct of matters. An important factor was the business ethos that motivated Mr Jackson. It was important to him to get decisions made and to ensure that the Trust's work continued to be executed efficiently. I deal with my findings in relation to him and Dr Kirkup later in this Opinion.

[18] No issues of credibility arise in relation to the evidence of Messrs Bold, Campbell or Davies. I deal with particular issues of reliability in the appropriate context.

[19] The witness in respect of whom issues of credibility are more complex is the pursuer. Mr Bovey acknowledged that the pursuer started with a certain disadvantage in having been found by the Professional Conduct Committee (PCC) of the General Medical Council (GMC) to have misrepresented his training record, and to some extent deliberately, as I shall explain later. However, even allowing for that, my impression was that the pursuer's evidence on many matters was credible, but that he was prone to rationalisation, which may on occasion have led him to put a gloss on events that was unduly favourable to his case, and that he did not always give a complete account of events. He was prompted in this by an encyclopaedic knowledge of the facts which he alone understandably has in view of his detailed involvement over so many years, and by a less than objective view of events. A simple example of an unduly favourable gloss is his claim to have "won" before the Employment Tribunal and a more complicated example is his assertion that the GMC completely changed the charges against him following the final decision of the defenders, referred to later. An example of his giving a less than complete account was his failure to disclose obviously significant material to Mr Davies, the employment consultant. He did not advise him that he was in fact dismissed by Bradford, that there were Employment Tribunal proceedings (until the proof had started), that he faced charges before the GMC, and that he had not advised his employers of the progress of litigation in New Zealand which ultimately led to the Privy Council, all matters dealt with later. While that was not conduct while on oath, it related to the conduct of this litigation. Although the inaccuracies in his CV identified by the PCC and by Bradford, as well as by the defenders, are numerous, more important to my decision has been the fact of their inaccuracy rather than the extent to which misrepresentations were made deliberately. I have found it valuable to bear these matters in mind when addressing the evidence but do not consider it appropriate to make some blanket determination that he generally lacked candour. As with the other witnesses I deal with particular issues of his reliability and credibility where they arise.

Background Facts

[20] A number background features of the case illustrate the difficulty for the pursuer in proving that the defenders' conduct meets the requirements of abuse of power. The issue was unique. The defenders had no previous experience of events subsequently coming to light which indicated that accreditation had been erroneously awarded. As I have noted, the defenders are a body governed by a Council of office-bearers and fifteen other members. In relation to the pursuer, the problem of his accreditation was not the only issue affecting his career at the time. The litigation relating to disciplinary proceedings in New Zealand which was discussed at his Bradford job interview had continued during his time at Bradford, but he had not intimated the adverse outcome to the Trust. There were also "issues" relating to his work at Bradford and his relationship with colleagues categorised as "clinical competence and personal conduct". The defenders were not operating in a vacuum of their own internal procedure, but in a situation where they were aware of the interests of other bodies in matters they were dealing with, and had information from these bodies. At no stage has the pursuer identified any improper or ulterior motive behind the actions of the defenders complained of and in particular the thirty four matters set out in Statement 9. In his closing submissions, Mr Bovey listed the various elements of conduct relied on as evincing reckless disregard for the legality of their actions and the consequences for the pursuer under seven headings - unreasonable conduct, prejudicial misstatements, conduct prejudicial to the pursuer's employment, conduct demonstrating pre‑judgment of the issue of accreditation, unfair procedures, conduct careless of the welfare of the pursuer, and delay. While the length of that catalogue of headings and the number of individual allegations explored might be seen to indicate a prima facie case of such reckless conduct, the titles selected do not immediately do so. I shall address the events without particular regard to the headings. However, since I consider that there is a serious risk of losing sight of other important background facts by embarking straight away upon an analysis of the catalogue of controversial events relied upon by Mr Bovey, I have found it helpful to set out my findings on those important factual matters first.

[21] The scheme of higher surgical training that applied to the pursuer's application is set out in the Fourth Report of the JCHST published in January 1987. The usual practice was for a career surgeon or physician to enrol in a programme of higher surgical training in the particular discipline and then complete the appropriate period of training in posts approved for that purpose. In the case of general surgery one year as a registrar in general surgery could be counted retrospectively, but the basic requirement was, "At least three years must be spent as a senior registrar or in a post of equivalent responsibility and training potential". Although the rules set out in the Fourth Report do not specify that the senior registrar post or posts should be substantive rather than locum and recognised training posts, nor that appointment should be made following open, nationally advertised competition, that was the general situation in practice as explained by Professor Temple and Mr Macleod, both of whom had experience of the workings of the system. Indeed Mr Macleod stated that it was an absolute rule that locum posts were not recognised. Mr Foster and Professor Temple understood that the reference to posts of equivalent responsibility and training potential generally related to those who held appropriate academic posts in teaching hospitals. The pursuer relied on minutes of the SAC of 3 October 1989 and 17 April 1990 as indicative of the SAC being generally prepared to exercise discretion to take account of locum posts. I consider that the minutes indicate the exercise of discretion in very limited circumstances following investigation and careful consideration. Indeed in the 17 April minute the matter was dealt with under the heading "Individuals Not Eligible For Formal Accreditation" and two persons were sent letters stating that their training had been comparable with that required for accreditation. I also considered that the circumstances of the Lothian example in that minute bore no resemblance to those at Royal Marsden. Nothing similar to those examples occurred in relation to the pursuer's application when it was before the SAC, and there was no evidence that the SAC gave any indication to the JCHST of the defenders that discretion had been exercised in his case. The only witnesses who gave evidence on this matter were the office-bearers of the defenders. It was no real surprise, therefore, that Mr Foster through his own examination of the matter, and no doubt through discussion with office-bearers of the defenders, had concluded that locum posts did not normally count towards completion of higher surgical training. The post which featured most prominently in this case was that held by the pursuer at the Royal Marsden and I turn now to address the nature of that post.

[22] The pursuer was engaged at the Royal Marsden as a locum senior registrar in May 1988. There was an inspection visit on behalf of the SAC in General Surgery in October 1988. The report of the visit indicates that the pursuer was among those interviewed. It is clear from that report and other evidence that the pursuer was appointed as locum for Mr Montgomery who was the nominal holder of what was a numbered post approved for higher surgical training. He was on secondment elsewhere. The outcome of the interviews of staff at senior registrar and registrar level, including the pursuer, was to record that:

"The team felt that due to the specialist nature of the surgery, the trainees were not satisfied with the amount of 'cutting' experience they were receiving and that the SR attachment to the Marsden Hospital should be for six months, with the exception of the trainees destined for a career in surgical oncology, when a year would be more appropriate".

Two relevant recommendations were made as follows:

"1. That when the Marsden SR numbered post becomes vacant it must be replaced by a shared appointment with another medical teaching centre in the vicinity, other than the Westminster and St George's.

2. The period of SR rotation to the Marsden should be for six months other than in those instances where the trainee plans a future in surgical oncology, when a period of one year is recommended".

This reflected the need for those seeking accreditation in general surgery to gain more general surgical experience. The point was made a number of times in the evidence that specialising as a breast surgeon does not provide the width of training and experience required to be a general surgeon.

[23] During the visit the pursuer realised that he was in an anomalous position so far as higher surgical training was concerned since he had not enrolled and received a CR (Career Registrar) number. On 30 October 1988 the pursuer wrote to the SAC in General Surgery stating that he was "currently Locum Senior Registrar" to the Royal Marsden, in terms which indicate that he understood the significance of the difference between a locum and a substantive senior registrar post for higher surgical training purposes. The reply of 7 November stated that he was in a difficult position as a locum senior registrar and that he should obtain a substantive senior registrar post as soon as possible. A letter of 14 August 1989 from the Higher Surgical Training Department at the SAC confirmed that at an SAC meeting the Committee had noted that the pursuer inter alios was applying for senior registrar posts and agreed that he should be given a career registrar number for one year only. That reflected the information that had been sent to the Higher Surgical Training Department by the Regional Adviser in General Surgery on 5 July 1989 that the pursuer was "locum senior registrar to Mr Griffiths and Mr Mackinna, Marsden Hospital" and that he was applying for senior registrar posts. It did not indicate that he was enrolled in an approved higher surgical training programme.

[24] The pursuer presented his understanding of the status of his post rather differently. He maintained that around the beginning of 1989 Mr Montgomery secured an appointment as a consultant, thus freeing up the training post. He is supported in his recollection by statements from his two supervising consultants that thereafter he was regarded as if he effectively held the substantive post. The picture presented was one of seamless transition. Two statements from Mr Griffiths and three from Mr McKinna, the consultants in question, were presented. They reflect their concern that the training post of which Mr Montgomery was the nominal holder was under threat, hoped that the pursuer's training would receive appropriate recognition and with the agreement of their colleagues in the Department of Surgery recommended that the locum appointment should be converted to a substantive one. They thereafter assumed that the post was "effectively substantive". They spoke highly of the pursuer's work and strongly supported his application for accreditation. There was no evidence led of a post being converted from locum to substantive in a similar way in other circumstances. The pursuer considered that, if a letter of 17 January 1989 from Professor Westbury at Royal Marsden reporting on the appointment of Mr Montgomery to a consultant post had been available at the time, matters before the GMC and the Administrative Court in England would have been determined differently. I do not think that that would have been the case. Before both bodies the full support of Messrs McKinna and Griffiths was known, as was the non-availability of Mr Montgomery at the Royal Marsden for about ten years.

[25] The pursuer also founded on handwriting on a copy of his original locum contract there. He offered suggestions as to the interpretation of what was written on the draft. Even the date when the notes were made is not clear, except that they are likely to have been made after Montgomery secured his consultant appointment. Otherwise I was unable to conclude anything from the handwritten notes. The other material he relied upon was simple assertion that he had been allowed study leave, compassionate leave and paid annual leave, and that he had completed his thesis and as a senior registrar had written several papers including an editorial for the British Medical Journal, all of which, he said, were inconsistent with locum status. The evidence taken together does not convince me that the pursuer held a substantive senior registrar post at the Royal Marsden for any specific period of time. In particular, I am not persuaded that the post was converted midstream to a substantive one, far less a substantive one backdated to the pursuer's appointment.

[26] The record card submitted by the pursuer to the JCHST in 1993 was effectively his application for accreditation. He was required to set out in it the periods of service and the posts on which he relied. Prior to that, in an exchange of correspondence with the pursuer about what posts the pursuer had held and what was required, the Secretary of the JCHST had informed him in a letter of 22 June 1993 that the crucial issue was the standing of the Royal Marsden post and added that, if it were a "substantive post", the question would then be how to find a third acceptable senior registrar year. He went on to inquire how much of the period when the pursuer had said he was a research fellow/senior registrar was spent in clinical work. In response to that the pursuer asserted, without qualification or explanation, that his position at the Royal Marsden was a substantive post, and explained that during his research period at Portsmouth he had spent a proportion of his time in clinical work consisting of ward rounds with the consultant as well as a regular breast clinic, and that at the end of eighteen months he had spent a further six months filling in as a locum senior registrar while writing his thesis. He also stated that during his time in the research position he filled in for holidays and study leave for the senior registrar, which accounted for a further two months in all. He was then invited by the JCHST to complete a record card on which page 4 should be completed and signed by the consultants with whom he worked at the Royal Marsden. He submitted the record card.

[27] The record card is slightly odd. He relied for the three senior registrar years primarily upon two periods of five months each, one at Queen Alexandra Hospital, Portsmouth, from August 1987, and one at St Helier Hospital in London from January 1988, and on the two years he spent at the Royal Marsden Hospital in London. He also tendered, for the fourth year, in the section of the card head "Previous Post-FRCS Appointments", service as a registrar in posts in Kent & Canterbury Hospital and St Thomas Hospital, each for one year, and a period of 18 months as a research fellow/senior registrar at Queen Alexandra Hospital, Portsmouth, from January 1986. For reasons that are not clear page 4 was not completed in the manner requested. However, supportive testimonials referred to earlier were submitted by both consultants.

[28] At the SAC meeting on 20 September 1993 the Committee agreed to recommend to the JCHST that the pursuer should be awarded a certificate of completion of training. On 28 September the JCHST resolved to recommend to the defenders that a certificate of completion of training should be awarded to the pursuer. The process terminated with the award of a certificate of completion of higher surgical training, the completion of the accreditation process, by the defenders on 12 November 1993.

[29] When questions were first asked about the pursuer's accreditation in a communication from the Royal College of Australasian Surgeons to the defenders, who then sought clarification from the JCHST, on 10 February 1995 the Secretary of the JCHST wrote to the then President of the defenders in these terms:

"You asked for details of his training posts leading to accreditation, and I enclose a copy of his record card which lists, at page 3, the SR posts in question. There is copious correspondence over accreditation and the bottom line is that the SAC were able to accredit him as the Royal Marsden post had educational approval and he received good testimonials from his Trainers (at the request of the SAC)".

The senior registrar posts listed on page 3 were the Queen Alexandra and St Helier five month periods and the Royal Marsden. While the pursuer had the strong backing of his supervising consultants at the Royal Marsden, that letter has to be read against the background that in his letter of 8 July 1993 to the JCHST and in his record card the pursuer stated baldly, and wrongly, that the post he occupied as senior registrar at the Royal Marsden was a substantive post. It was not suggested in the course of the evidence that the SAC and the JCHST had any other knowledge of the actual circumstances at Royal Marsden than that conveyed in the various documents submitted to them.

[30] In addition the card contained certain other misrepresentations. Both periods of service at Queen Alexandra Hospital, Portsmouth were wrongly described. The pursuer claimed that his assertion that he spent eighteen months as a research fellow/senior registrar was an honest mistake. In fact the post was research fellow/honorary registrar with some locum senior registrar duties, and was for about a year from May. He had misrepresented the post held from August 1987 for five months as a post of senior registrar when in fact only a very short time was spent as a locum senior registrar. In addition, of the period of five months at St Helier Hospital, London, during which he claimed he was a senior registrar, in fact only a small proportion of his time there was spent as a locum senior registrar.

[31] The GMC were aware of the issue over the pursuer's accreditation as well as issues over his employment at Bradford in 2000. However they decided to take no action in relation to the circumstances of his accreditation or his employment and dismissal at Bradford until all formal procedures relating to both had been exhausted. In 2002 the GMC instituted proceedings for serious professional misconduct on the ground of misrepresentation of his career history.

[32] On 28 October 2004, after lengthy procedure the PCC of the GMC made a finding that the terms of the record card containing the above misrepresentations, including that relating to the Royal Marsden, influenced the SAC to recommend that the pursuer be granted retrospectively accreditation for higher surgical training. The misrepresentations relating to the two five-month periods were found to be dishonest and intended to mislead. The PCC was left in doubt whether the pursuer fully appreciated his status at the Royal Marsden.

[33] The misrepresentations relating to the Royal Marsden and St Helier posts along with other misrepresentations were held by the PCC in the same finding to have influenced Bradford to employ him. The PCC found that the application form and CV submitted by the pursuer to Bradford, together with his responses in interview, presented his career history in a way that was consistent with legitimate entitlement to accreditation for higher surgical training and entry on the specialist register when he knew or ought to have known that this was not the case, and that on that basis the Trust had offered the job to him. He was also shown to have omitted reference to certain posts he had held, to have failed to mention periods when he had not been employed in the NHS, to have misrepresented his role in certain publications, and to have claimed to have been promoted to acting consultant in his time at Kent and Canterbury Hospital when in fact no such post existed.

[34] In dismissing him on 21 September 2000 Bradford also found that he had misrepresented his previous employment history, omitted relevant information from his application, and presented his career in a way that was consistent with entitlement to accreditation for higher surgical training when he knew or ought to have known that was not the case. That finding included that what he represented as a research fellow/senior registrar post at Queen Alexandra Hospital, Portsmouth, for eighteen months from January 1986, was in fact a year from May 1986 as a resident fellow followed by a period from May until December 1987 in a series of locum clinical assistant, registrar, and senior registrar posts - the two locum senior registrar posts being for four days and five days only respectively. In addition, it was established that for just over one month from 16 August to 17 September 1987 he was not employed in the NHS. It follows that his claim to have served for five months from August 1987 as a senior registrar at Queen Alexandra Hospital was also inaccurate. In relation to his claim that he was for five months from January 1988 a senior registrar as St Helier Hospital, it was established that he had held a senior registrar post for only a small proportion of that time. At Bradford it was also found proved that his application form and CV omitted reference to a number of other short term appointments and a number of periods when he was not working in the NHS, and made misrepresentations about his authorship of certain publications and about an appointment in New Zealand. He was also held to have claimed that in his period as a registrar at Kent and Canterbury Hospital from October 1983 he was promoted to acting consultant for three months when in fact no such post existed.

[35] While the pursuer did not accept that all these findings are accurate, for example my findings in relation to the Royal Marsden post and the PCC findings that he acted dishonestly, he did accept that the position in relation to the two periods at Portsmouth and the five months at St Helier were misrepresented, albeit at least in part through an honest mistake.

[36] In cross-examination the pursuer claimed that the chairman of the SAC, Professor Alan Johnston, personally approved his application for accreditation on the basis of an alternative five year scheme of training. Later in the proof the pursuer introduced a letter of 6 May 1997 from the Secretary of the JCHST to the Royal Australasian College setting out periods exceeding six years in "training" posts. These posts were described in the same inaccurate terms as set out in the foregoing catalogue. I considered the pursuer's claim to be an unsubstantiated distraction from the real issues in the case. The applicability of an alternative longer scheme was not seriously explored.

[37] These then are the background facts that I thought it important not to lose sight of. They vary in their significance. For example, a subsequent decision of another body is not material that goes to support the factual basis for the defenders' decision but may be relevant to questions of causation and loss.

Conduct of the Defenders

[38] I turn now to the various aspects of the conduct of the defenders included in Mr Bovey's seven categories of conduct that he submitted established the necessary degree of recklessness for abuse of public office, and which are set out in the thirty four different elements listed in Statement 9. His principal submission was that, when viewed holistically, they established the pursuer's case. He also laid stress on some as particularly significant. They were, he said, clear examples of conduct demonstrating a reckless disregard for the defenders' powers, and were particularly seen to be so when viewed in the overall context of all the elements of behaviour on which he relied.

(a) Reopening the Matter of Accreditation

[39] The first element of the conduct of the defenders that Mr Bovey relied upon was their reopening of the matter of accreditation in July 2000. As Mr Foster indicated in his evidence, following the letter of 20 February 1995 from the Secretary of the JCHST, the President of the defenders had written to the Australasian College effectively closing the door on the matter. However he plainly did so without having the whole picture before him.

[40] The issue was raised again in the first half of 1999 by a subsequent Secretary of the JCHST. This appears to have occurred in the context of a problem relating to the pursuer's work at Bradford. According to a letter of 14 April 1999 written by the Secretary of the JCHST to the defenders, the pursuer had contacted the SAC Secretary for General Surgery asking to look at his personal file. Following that, an SAC member conducting a inspection visit at Bradford contacted the SAC Secretary for General Surgery during his visit when "several issues had been raised locally about his (the pursuer's) competence in the post of a consultant". It was suggested that his appointment had been against the wishes of local consultants. The letter continued with the plain statement:

"Having examined his personal file it appears that he was awarded accreditation in 1993 in error. His application form did not stipulate that his SR posts were locum posts and the reports received were supportive and also did not highlight that Mr Phipps has never been appointed in open competition to a substantive SR post. He was recommended for accreditation and this was duly awarded to him".

The letter went on to mention "problems" the pursuer had faced in New Zealand. It concluded by saying that one issue which needed to be looked at at the next JCHST meeting was whether it was possible to remove accreditation if an error had been made. The Secretary asked the defenders to examine their standing orders to see if they said anything about withdrawal of certificates. The defenders replied on 29 April 1999 to say that the College Laws and Regulations were silent on the subject of accreditation. It was probably in the same context that on 29 March 1999 the Human Resources Manager at the Royal Marsden wrote to the Secretary of the SAC in General Surgery in these terms:

"I can confirm that Mr Phipps was employed at this hospital as a locum Senior Registrar in Surgery from 23 May 1988 until 25 May 1990. Mr Phipps did not at any time hold a substantive Senior Registrar post at this hospital".

While that letter was not actually sent to the defenders, they did have that information.

[41] What exactly occurred between these events in 1999 and meetings of the JCHST and the Senate (Presidents and senior representatives) of the Surgical Royal Colleges, both held on 17 April 2000, is not clear. Two developments featured in the evidence. The first was a letter of 29 May 1999 from the Chairman of the SAC in General Surgery to the pursuer stating that it had come to their attention that his accreditation awarded in September 1993 may have been awarded incorrectly on the basis of information he had provided at the time, because it would appear that he may not have been appointed in open competition to a substantive senior registrar post and because it appeared from their records that his accreditation was based on the fact that his application did not state that his posts were locum rather than substantive. He was asked to forward any further information that he would like the SAC to consider by 1 June 1999. The second was correspondence that the then Vice President of the defenders, Mr Smith, had with the pursuer in January and February 2000. He wrote to him on 21 February 2000 to say:

"As the College which processed your application for accreditation, we have been approached by the SAC in General Surgery about the validity of your accreditation. From the information we now have available to us, it does appear that you did not fulfil the regulations for accreditation, which were applicable at that time. Unfortunately, this means that the College will now have to inform the GMC of the facts that are available to us. However, we will defer submission to the GMC for two weeks to give you the opportunity of providing any other information you think appropriate".

In his reply of 1 March 2000 the pursuer stated that his initial appointment was as a locum senior registrar which became a substantive post. He then listed the features of his working arrangements in the latter part of his period at the Royal Marsden that he said supported that, to which I have already referred, and also referred to the 1993 letter from the Secretary to the JCHST and the testimonials from his consultant trainers at the Royal Marsden. James Bold, industrial relations officer at the BMA also wrote to the Vice President on his behalf.

[42] At the JCHST meeting Professor Maran, then President of the defenders, reported on what was known at that stage, which was effectively that the defenders felt that there was insufficient evidence to support taking action on the pursuer. It was agreed that the Senate meeting later in the day would determine what action to take. In the minute of the Senate meeting the matter is recorded as follows:

"Professor Maran outlined the steps that the Edinburgh College had taken to date and tabled papers which included a response from a BMA Industrial Relations Officer on Mr Phipps' behalf. It does appear that there is not sufficient certainty about Mr Phipps' status at the Royal Marsden. Although the salary records show that he was, in fact, paid at locum rates, the Personnel Office has no record of his papers and so it cannot be substantiated that he actually worked as a locum.

In view of the uncertainty and the nature of the evidence, it was decided to pursue the matter no further".

[43] Against that background Mr Bovey submitted that it was unreasonable conduct of a high order for the defenders to effectively reopen the matter in the summer of 2000 since, in his submission, there was no new information. However, that submission leaves out of account two factors: (a) the tentative nature of the decision to pursue the matter no further; and (b) a major intervening change, namely that the pursuer had become the subject of a disciplinary investigation by Bradford who contacted the defenders, told them the situation, and relayed further information to them, including a copy of his locum contract at the Royal Marsden.

[44] Although the letter of 29 March 1999 from the Human Resources Manager at the Royal Marsden stated bluntly that the pursuer did not at any time hold a substantive senior registrar post at that hospital, the defenders were clearly not satisfied that that bald statement was a sufficient basis on which to proceed. As I have indicated above, the minute of the meeting of 17 April 2000 records that the matter was to be pursued no further because of "the uncertainty and the nature of the evidence".

[45] On 13 July 2000 Mr Jackson, Chief Executive of Bradford, wrote to Professor Maran, enclosing a letter of 12 July 2000 which he had received from the Chief Executive of the Royal Marsden. That included a copy of the pursuer's letter of appointment there dated 18 July 1988 which bore to offer appointment as "Locum Senior Registrar". Mr Jackson also advised that he was "uncovering a number of discrepancies between the career history contained in Mr Phipps' CV when he applied for a post with this Trust and the records held by former employers", and indicated that he would forward details when the analysis was complete. The letter of 12 July also set out information supplied by the Human Resources Department, inconsistent with his record card, that between May 1986 and January 1988 the pursuer was a research fellow at Portsmouth, not research fellow/senior registrar as on his record card, and that between 1 January 1988 and 31 March 1988 he was a locum registrar at St Helier Hospital, and between 6 May 1988 and 22 May 1988 a locum senior registrar at the same hospital, whereas his record card claimed that he held a senior registrar post there for five months from January 1988.

[46] The inquiries being made by Mr Jackson had already led him to write to Professor Maran on 22 June 2000, stating that he had received a number of verbal reports that questioned the veracity of the pursuer's claim that he obtained a certificate of completion of higher surgical training in 1993. He was seeking confirmation from the defenders that that was the case. Professor Maran chose to respond to that letter by telephoning Mr Jackson on 29 June. That conversation was recorded by both in file notes. Professor Maran had little detailed recollection of the discussion. Indeed he was not entirely sure that the defenders' file note was his. Comparison of the respective texts has satisfied me that these are notes of the same conversation. It is plain that Professor Maran did not wish the matter pursued further. When discussing the information that the pursuer had been struck off the registers in Australia and New Zealand (which turned out to be untrue), he had expressed the fear that, when Bradford tried to grip the situation, "it would all turn to blancmange". He also made it clear that he considered that it was for the authorities to disprove Mr Phipps' claim to be accredited and that they could not insist on him proving his claim. Mr Bovey made other submissions about some of the language used by Professor Maran which he branded as "prejudicial misstatements".

[47] Against that background I cannot fault Professor Maran for deciding, when he received the letter of 13 July 2000 from Mr Jackson, to pass the matter to Mr Foster as chief executive to look into further. He realised that, in spite of his reluctance, it was his duty to do so.

(b) Further Investigation

[48] By 21 July Mr Foster had formed the view that the accreditation had been awarded on a false basis, since his examination of the rules set out in the Fourth Report of the JCHST had led him to conclude that the pursuer had failed to comply with them because his position at the Royal Marsden was not a substantive senior registrar post and he was aware of that. These conclusions are set out in a draft letter of 21 July 2000 to Mr Jackson. However neither that nor any other letter was sent prior to the meeting of the Senate of the Surgical Royal Colleges on 24 July.

[49] Mr Foster attended that meeting and reported that there now appeared to be evidence that Mr Phipps may have falsified his training documentation and, if that proved to be the case, his accreditation was at risk. He advised that, in light of that, the matter was being further pursued by the defenders on behalf of all of the Colleges. In his evidence he readily acknowledged that "falsified" was incorrect and that he should have described what the pursuer had said in his training documentation as "misleading" or "incorrect". Mr Smith, Vice President of the defenders, had earlier in the day reported to the JCHST that a recommendation to withdraw accreditation was to be made to the defenders' Council. That is presumably what enabled the Secretary of the JCHST to tell Bradford that the College was taking action. The reply sent to Mr Jackson on 28 July 2000 was confined to saying that it was now quite clear that it was not the case that the pursuer's appointment at the Royal Marsden was as a substantive senior registrar, and that at no time did he hold a substantive senior registrar position at that hospital. Mr Foster's letter also referred to some minor matters yet to be resolved. It is not clear what these were. He went on to say that, unless any new evidence came to light, he would be recommending to the President and Council of the defenders at their meeting on 3 October that the pursuer's accreditation be withdrawn.

[50] On 2 August he wrote to the pursuer setting out the history of correspondence referred to above between the Secretary of the JCHST and the pursuer on 14 and 22 June, 8 July and 18 August, all 1993, and referring also to the correspondence between the Vice President of the defenders and the pursuer relating to his position at the Royal Marsden in February and March 2000 noted above. In referring to the February and March 2000 correspondence Mr Foster made the point that it ended with a letter of 10 March 2000 from the Vice-President to the pursuer in which he indicated that there was no evidence of the pursuer ever being paid as a substantive senior registrar. The pursuer had explained in his letter of 1 March that he continued to be paid at locum rates by agreement with "Medical Personnel" since the starting point for a substantive senior registrar was less and would have involved a cut in salary. Towards the end of the letter Mr Foster identified the issue in these words:

"I regret to inform you that unless you can provide evidence, by 18 September 2000, to verify your claim to have held a substantive Senior Registrar position, then I shall have to recommend to the President of the Royal College of Surgeons of Edinburgh and his Council, when they meet on 3 October 2000, that your accreditation be withdrawn".

[51] On the basis of that history, on the detail of which I do not think that there is any dispute between the parties, I do not find it to have been unreasonable on the part of the defenders, in particular through the actions of their chief executive, Mr Foster, to have looked further into the issue of the pursuer's accreditation. If that can properly be described as reopening it, then it seems to me to have been a perfectly reasonable course to follow in view of the continuing interest of, and correspondence from, Bradford and the more detailed information about the position at the Royal Marsden. Although Mr Foster was convinced that there was other additional information beyond that contained in Mr Jackson's letter of 13 July before the defenders when he took the matter up, his evidence on this was vague, largely I think as a consequence of the passage of time.

[52] Nor do I think that the defenders gave Mr Jackson the impression that withdrawal of accreditation was a foregone conclusion. The matter was presented as one for the Council who were described by Professor Maran as independently minded.

(c) Things Said and Done During and Following the Investigation

[53] Mr Bovey was critical of a number of things said and done by representatives of the defenders during the period leading up to the initiation of the formal process of reconsidering the pursuer's accreditation. I have referred to some of those already. Elements of Professor Maran's conversation with Mr Jackson on 29 June fall into this category. In addressing me on the conduct of Professor Maran, Mr Bovey was conscious of the clear impression Professor Maran created in the witness box that he lacked any animus towards the pursuer. That is consistent with his position at the meeting of 17 April and, in my opinion, with what was said in the conversation of 29 June. He made it clear in his evidence that in his opinion there was no substitute for surgical experience. He was not so concerned about whether any individual "ticked all the boxes". However he recognised that those responsible for running NHS Trusts, such as Mr Jackson, had a different agenda because of the public anxiety generated by a number of then recent prominent cases, such as the high child death rate at a hospital in Bristol, the Harold Shipman case and a number of colourful cases before the GMC. Mr Bovey's main criticism of Professor Maran came to be that he had tended to "switch off" whenever the subject of the pursuer came up at meetings. That meant that Mr Foster had far greater freedom than the office bearers of the defenders ought to have allowed him.

[54] There were two matters in the 29 June conversation to which Mr Bovey directed particular attention: Professor Maran had confirmed, in response to Mr Jackson's statement that he had been told by Barry Jackson of the London College that the pursuer had been struck off the registers in Australia and New Zealand, that he believed that to be the case; and he had also remarked that the defenders had extensive files on the pursuer which he could not volunteer to hand over, but in respect of which he would obviously have to comply with a legal request for disclosure. The first was information which Mr Jackson already had and which Professor Maran had, as far as he could recollect, been told by the same source. He did no more than acknowledge that. The second statement was recorded by Jackson as a reference to having "to comply with a request from our lawyers for disclosure" and by Maran as "we could not release our records to him unless they were subpoenaed". On neither view of the statement was it in my opinion an invitation to seek disclosure.

[55] His whole approach seemed to me to be the antithesis of the abdication of responsibility. He demonstrated, both in the telephone notes and meeting minutes to which I have referred, an even handed approach. He explained his lack of detailed recollection of matters as the result of staying at arm's length, distancing himself, whenever the subject of the pursuer arose, in an attempt to maintain a disinterested position in view of his potential role as Chairman of the tribunal of appeal. The evidence does not support the notion that he connived at conduct by Mr Foster in the knowledge that he was likely to misuse the additional freedom accorded to him to exercise his own judgement in handling the investigation.

[56] An example of the sort of situation Mr Bovey had in mind was the meeting of the Senate of 24 July at which Mr Foster referred to the falsification of training documentation by the pursuer. The draft letter of 21 July also referred to falsification. That was clearly a notion that Mr Foster had in mind. However, it is important to take account of the whole context in which that occurred. The minute of 24 July is in these terms:

"However, Mr J R C Foster, Chief Executive of the RCS Ed, informed the meeting that there now appeared to be evidence that Mr Phipps may have falsified his training documentation. If this proves to be the case, Mr Phipps' accreditation is at risk".

This statement about falsification was highly qualified and followed by reference to the accreditation being "at risk", which simply means that it "could" and not "would" necessarily be revoked. It is therefore to the credit of Mr Foster, as I have already indicated, that rather than follow that rather analytical approach to what happened, he readily acknowledged in evidence that reference to the documentation being "incorrect" or "misleading" would have been better. The language reflected in the minute is not in my opinion indicative of ill-will or a reckless disregard of the legality, or indeed even the propriety, of the defenders' actions. Mr Foster's actions have also to be interpreted against the whole background circumstances and in light of ongoing developments. The situation was unique. It could not arise today in view of changes in procedures.

[57] The defenders received no reply to Mr Foster's letter to the pursuer of 2 August. A reminder was sent, including reference to his intention to recommend withdrawal of the accreditation in the absence of evidence verifying that the Royal Marsden post was a substantive one, and asking the pursuer to confirm receipt of the letter of 2 August. Following that, Mr Foster received letters of support dated 11 and 12 September from the retired consultants who had supervised the pursuer at the Royal Marsden. These letters did not clarify the position in relation to the status of the post. As I indicated earlier, they confirmed that the pursuer initially filled the post as a locum, that the position was under review and that they trained him and supervised his work with the intention that he should fill the substantive training post until the outcome of the review. They mentioned other complicating factors. On 14 September Mr Bold wrote to Mr Foster on behalf of the pursuer, but simply reviewed events since 1995, gave his interpretation that the letters from the retired consultants were evidence that the pursuer held a substantive senior registrar position and pointed to the absence of specific requirements in the Fourth Report of the JCHST that a post must be substantive and that appointments must be made subject to competitive interview.

[58] On the morning of the Bradford disciplinary hearing Mr Jackson telephoned Mr Foster, ostensibly to warn him of impending media interest in the pursuer because of the disciplinary hearing later that day. In that conversation Mr Foster defined the pursuer's major professional problem as being that it is "simply unacceptable for senior members of the profession to misrepresent their career history". No witness suggested otherwise. In evidence Mr Foster explained that he, as well as the President and Vice President, saw the issue as a simple one, namely that the pursuer had been accredited without undergoing the required training. In the conversation with Jackson on 21 September he indicated that the matter was likely to drag on for some time, in view of the uncertainty about the procedure to be followed, in particular whether the GMC or the defenders had jurisdiction. He told Mr Jackson that the pursuer had asked for a meeting with the defenders and that had been arranged for 28 September. However, he went on to say that he did not think anything would change with regard to what was proposed for 3 October.

[59] It was Mr Bovey's submission that that indicated a fairly settled mind on the very question that any representations from the pursuer were expected to address, namely the status of the post at the Royal Marsden; it was indicative of a mind closed to the possibility of considering in further detail, in light of any submissions made by or on behalf of the pursuer, the reality of the training he actually received, and indeed to the possibility of the defenders considering taking no action if the reality was that the pursuer had received exactly the same training as he would have done had he held the post as a substantive one. Although the defenders had information suggesting that there were question marks about the pursuer's tenure of other posts which did cause some concern to Mr Foster, he submitted that the core issue was the nature of the pursuer's post at the Royal Marsden.

[60] I do not read into these events, and in particular this conversation, that Mr Foster had a closed mind in the sense that he would not take account of new material and was determined that the pursuer's accreditation should be revoked at all costs. The pursuer had by then been aware for a long time of the concern of both the JCHST and the defenders that the evidence did not demonstrate to them that he had held a substantive senior registrar post at the Royal Marsden and that they were looking to him to support his position by producing evidence that he did. I therefore read no more into what Mr Foster said than recognition that it was unlikely that any more material would be forthcoming which meant that the matter would move on to consideration of revocation by the Council with his recommendation that the accreditation should be revoked. That is not indicative of reckless disregard for the powers of the defenders. In the event the pursuer was dismissed by Bradford on 21 September and did not attend for the meeting with the defenders on 28 September.

[61] Mr Bovey was also critical of the defenders for failing to advise the pursuer of all communications that they had with other bodies about the pursuer and for failing to give him opportunities to comment at a number of stages before they acted. I am unable to identify evidence that he was prevented from presenting his position to the defenders by unfairly prejudicial conduct in the course of the investigation. That criticism extended to keeping the JCHST and the GMC informed about developments and consulting them without notifying the pursuer. I do not consider that the pursuer suffered any prejudice as a result of that. There was also a complaint of failure to make full disclosure of all relevant material. I am not persuaded that any omissions in disclosure were deliberate, and no ongoing material failure was identified in the course of the proof.

(d) The Position of the Council

[62] The minute of the meeting of the defenders' Council held on 3 October 2000 is in moderate tones. Mr Foster is said to have explained briefly the background to the case and the current concern about the pursuer's competence. He explained that it was clear that a number of entries in the record card submitted by the pursuer in 1993 to support his retrospective accreditation were incorrect. The determination of the Council is recorded as follows:

"There was still some element of doubt surrounding the SAC's recommendation to support his accreditation and, in particular, a letter from Mr Grant (the then Secretary of the JCHST). Nevertheless, there was a weight of evidence that Mr Phipps' CV had misled the SAC and Council were minded to withdraw his accreditation. There was no precedent to such an action and the procedure was not clear. Mr Foster would write to Mr Finlay Scott (Chief Executive, General Medical Council) reporting the circumstances".

This finding was notified to the pursuer in a letter of 4 October which contained a fuller explanation. It ended with the statement that, should he wish to make any further representations, he should do so to Mr Foster prior to 13 October after which a report would be sent to the GMC. Lawyers acting for the pursuer contacted Mr Foster by letter dated 9 October asking for a copy of any press release that may have been the source of what they described as "adverse publicity attaching to this case" and for copies of correspondence between the College and Bradford. That was a reference to a story in the Bradford Telegraph and Argus newspaper on 4 October reporting that the pursuer was set to be stripped of his consultant status and quoting a spokesman for the defenders as saying: "Members of the Council are minded that Mr Phipps' accreditation should be withdrawn and a full report will be forwarded to the General Medical Council". Professor Maran explained that later investigation had revealed that the health correspondent of a Scottish press organisation, engaged by him as a press consultant, had breached the trust placed in him by accessing and issuing information from their records which were confidential. Professor Maran found the outcome of the investigation shocking and had been horrified that the consultant would do such a thing. I accept that that is what happened and consider that no inference of recklessness on the part of the defenders can be drawn from that episode.

[63] The lawyers followed that up with a letter of 12 October in response to the invitation of 4 October to make further representations. They reviewed the evidence and stressed the accounts given by the Royal Marsden supervising consultants of the circumstances there and the qualities of the pursuer. Mr Foster said that he showed that letter to Vice President Donald Macleod and the other Vice President and Director of Standards, Mr McCormick, who were both of the same mind as him, that it added nothing of significance and need not be drawn to the attention of the Council. While Mr Macleod thought that such a letter would normally be shown to the Council, he could not remember seeing the letter. I have no reason to doubt Mr Foster's account on this. On 13 October Mr Foster reported the outcome of the Council meeting to the GMC, that "members of the council were minded that in the interest of safety Mr Phipps' accreditation should be withdrawn pending a full enquiry". He added: "I believe we should act quickly on this and I would appreciate your view". In that letter he stated that, as a result of the investigation he had carried out, "it is now apparent that Mr Phipps did not complete the training necessary for accreditation and that certain facts were misrepresented on his record card and CV". He set out what the purser claimed and contrasted that with the actual position as he understood it to be in relation to the Royal Marsden, Portsmouth and St Helier. While there may be room for different views on whether the solicitors' letter should have been shown to the Council, the failure to do so does not in the circumstances indicate the absence of an honest belief that they as official and office-bearers were acting on behalf of the defenders within their powers, bearing in mind that there was to be further procedure before a final decision was taken. I attach no significance to the reference at the 9 October Senate meeting attributed to Mr Foster, that the pursuer had been dismissed by Bradford for "gross incompetence". The true facts were known and it is likely that he inadvertently misspoke or what was reported was misrecorded.

(e) Steps Taken Following Council Meeting of 3 October 2000.

[64] Thereafter the office of President passed to Professor Sir John Temple. Following a meeting between the pursuer and Mr McCormick, in which it emerged that the pursuer was seeking employment, and a briefing thereon of Professor Temple by Mr Foster, the former became concerned that not enough might have been done to ensure that the pursuer did not secure a post as a consultant pending final determination of the issue of his accreditation. Professor Temple was aware that the way in which that was normally dealt with in England and Wales was by issuing an alert letter. An "alert letter" was a notification from the Regional Office of the NHS for the region in which dismissed or disciplined doctors were employed to other authorities in the region and to other regions in England and Wales, advising that, should the particular doctor seek employment, contact should be made with his previous employer, in this case Mr Jackson. A number of witnesses identified the criteria for issuing an alert letter as basically that the doctor posed a potential danger to patients and that he was seeking work.

[65] When Mr Foster was unable to clarify for Professor Temple whether an alert letter had been issued to potential employing health authorities, Professor Temple telephoned the GMC to find out. There he spoke to Sarah Bedwell on 15 November. An e-mail she sent that day records his concern that the pursuer was a danger to patients; notes that in support of that he stated that the pursuer had been summarily dismissed by Bradford, was struck off in New Zealand and had deliberately lied in his applications for College membership; and further records that he added that he believed that the pursuer may be seeking locum work. There is no reason to doubt the accuracy of that record of the conversation. Mr Foster, who was present, did suggest that Professor Temple had referred to "misleading information" rather than "deliberate lying", but he did not have a clear recollection. Mr Foster also acknowledged that he had not intervened to correct what Professor Temple had said about the pursuer being struck off in New Zealand, although he knew that to be untrue, because it had been "blurted out".

[66] Professor Temple explained that his concern about the pursuer being a danger to patients came from his understanding that he had been dismissed from either two or three posts, the one at Bradford and possibly two in New Zealand; the New Zealand information was very vague. His view was that the pursuer should not work at all in medicine until all the issues of which the GMC were aware were clarified. Professor Temple was not able to explain why he had referred in his conversation with Miss Bedwell to the pursuer being struck off in New Zealand. It appears simply to have been something that was in his mind. In relation to his application, Professor Temple could not recall exactly what he had said, but he accepted that it would have been fairer to describe the effect of the application as "misleading".

[67] While it was plainly inappropriate for the President to make these statements on the information available to the defenders, I do not consider that they can be regarded as elements in a pattern of reckless conduct regardless of the limitations of the defenders' powers. Reflecting on my impression of Professor Temple as a witness and having reviewed my notes of his evidence, I am entirely satisfied that the statements were not made with some ulterior or improper motive and the evidence as a whole does not indicate that he was acting without any honest belief that he was acting as the defenders' President should in the circumstances. The statements were made to a representative of the body responsible for regulation of the medical profession, including registration and discipline. He was seeking reassurance that a step often taken on dismissal of a doctor in the circumstances that pertained at Bradford was in fact taken. Although he had been present at meetings where the subject had been discussed, he had not previously been personally responsible for dealing with the matter. He was not the instigator of the misleading or exaggerated information which he passed on in the conversation and which had featured in discussion at meetings he had attended. I consider that he genuinely believed that he was acting in the interests of the safety of patients in relation to a person who was practising as a consultant surgeon although he had never completed formal surgical training. As it happened, an alert letter had been issued on 12 October, advising prospective employers to contact Mr Jackson at Bradford, the dismissing authority.

[68] On 5 December Mr Foster advised the pursuer that the Specialist Training Authority (STA), the body that had been given responsibility for supervision of training arrangements, considered that the defenders as the body responsible at the time should determine whether the accreditation was valid or not. The GMC had already expressed the same view to the defenders. The pursuer telephoned Mr Foster on 7 December and thereafter contacted his solicitors to state that he had been told a decision had been made in relation to his accreditation. They immediately sought from the defenders information as to that decision. When they received no reply, they wrote on 26 February recording what they had been told by the pursuer, namely that the President and Mr Macleod had already met and decided that the accreditation should be withdrawn. Mr Foster could not recollect his conversation with the pursuer. He was aware that the President and Vice President had discussed the case and assumed that they would have discussed the direction the College would take to deal formally with the accreditation. It was then that he was instructed to seek a legal opinion on how to proceed. Professor Temple said that there was a Council meeting early in December when he probably met Mr Macleod. Neither had any recollection of the details. Mr Macleod could not believe that he had that much power, namely to withdraw accreditation. I have no doubt that discussion at that time was focusing on how to deal with the matter further in light of the decision that had been made on 3 October that the Council were "minded" to withdraw the accreditation.

(f) The Tribunal

[69] There followed a period during which further consideration was given to how to proceed towards a final determination. In discussion with the STA and the GMC it was agreed that the only body which had authority to revisit the pursuers' accreditation was the authority which had granted it, namely the defenders. Once it had been determined that the defenders should deal with the matter, there were issues over the procedure to be followed and the composition of the tribunal what would consider the case. However the defenders were readily persuaded that the appropriate way forward was for the case to be presented to a tribunal which would make a recommendation for consideration by the defenders' Council. Solicitors and counsel for the pursuer were in discussion with the defenders and on the proposal of counsel Mr Reynold, QC, the defenders agreed to a hearing before a tribunal of three senior medical persons, including two who were independent of the defenders, at which the pursuer would be entitled to legal representation and from the determination of which he would have a right of appeal. The composition of that tribunal to ensure its independence was the matter of discussion over a period of time. However, the very fact that the defenders ultimately decided upon a tribunal whose members were understood to have no prior involvement in the case and to be impartial weighs heavily against the notion that the defenders were acting recklessly regardless of the legality of their conduct. The pursuer does not challenge as inappropriate the decision to appoint a tribunal to consider the evidence and make a recommendation to the defenders' Council who would make the final decision. In his closing submissions to the tribunal Mr Reynold paid tribute to the defenders for having the professional integrity to recognise the need for the inquiry and for coming up with an independent tribunal as a practical solution to a difficult problem.

[70] Before me there was very minor criticism only of the composition of the tribunal. That was confined to the presence of Mr K W Lindsay who, in his capacity as an office-bearer of the Royal College of Physicians and Surgeons of Glasgow, had been present at the meetings of the Senate on 17 April and 24 July. It emerged that the pursuer's solicitors had inadvertently overlooked that earlier involvement of Mr Lindsay, but before me no serious issue was taken on account of his participation on the tribunal.

[71] However, there was criticism of things said by Mr Foster in discussions of the composition of the tribunal and of submissions he made at the hearing. Mr Foster initially intimated in a letter of 19 February 2001, to solicitors acting for the pursuer, that the Vice President of the defenders (Donald Macleod) would chair the tribunal, and that, in the event of an appeal, Professor Temple would be involved. It was also said that neither of these gentlemen had prior knowledge of the matter. That statement was wrong. The prior involvement of both has already been set out in part. In response to the pursuer's solicitors pointing out in a letter the prior involvement of Mr Macleod, the defenders immediately replaced him as chairman of the tribunal with the Dean of the Dental Faculty who had no prior involvement. Mr Foster acknowledged that it had been silly to say that Mr Macleod had had no prior involvement.

[72] On being reminded in the same letter that Professor Temple was present at the meeting of the Council on 3 October when the decision that the defenders were minded to withdraw the pursuer's accreditation was made, Mr Foster writing on behalf of the defenders insisted that his involvement was peripheral, that he had no detailed knowledge of the case, and that he was not President at the time. Mr Bovey highlighted the telephone discussion recounted above which had followed upon a briefing that Mr Foster gave to Professor Temple. Mr Foster endeavoured to justify his initial statement that Macleod and Temple had no prior knowledge by claiming that the tribunal was set up to look at a different issue, namely the actual training undertaken by the pursuer following obtaining his fellowship in 1983, bearing in mind that his application for retrospective accreditation fell outwith the strict parameters of the regulations, to see if his training was equivalent to that of the formal requirements. It was the very failure to take that approach to the matter that led to Lord Drummond Young reducing the decision to withdraw accreditation as unreasonable, and Mr Foster acknowledged that the tribunal had not worked out that way.

[73] When the tribunal was originally arranged for 11 April 2001, its remit was "to review Mr Phipps' training record between 1983 and 1990 and advise the Council of the College as to whether Mr Phipps' training achievements satisfied the Joint Committee on Higher Surgical Training requirements for higher surgical training as specified in their Fourth Report, dated 1 January 1987". However, when it sat on 20 June, it noted its remit as to assess the validity of accreditation of higher surgical training that was awarded retrospectively to Mr Robert Francis Phipps on the recommendation of the SAC in General Surgery in November 1993 and recommend any further action to the Council. Mr Reynold, submitted that regard should be had to the clinical content of the pursuer's work at Royal Marsden and to his period as an honorary registrar/research fellow at Portsmouth. In his submission Mr Foster acknowledged that the tribunal might take account of the latter and one year at Royal Marsden, but invited the tribunal not to consider periods in short term posts to count towards the total training period. In their Recommendations to Council the tribunal reviewed the true nature, but did not consider the details, of the training given in the posts at Portsmouth, St Helier and the Royal Marsden, and considered the report following the SAC visit inspection in October 1988 which recommended recognition of the substantive post to count for at most twelve months of the total higher surgical training period. The terms of the recommendation made to the defenders' Council were these:

"On the purely technical matter as to whether Mr Phipps had fulfilled the requirements for accreditation as laid down by the Fourth Report of the Joint Committee on Higher Surgical Training, dated 1987, and on the basis of the above, the Tribunal do not feel that the accreditation is valid. It is our opinion that had the SAC in General Surgery been aware that all the SR posts listed in his JCHST application were locum and not substantive, Mr Phipps would not have been awarded retrospective accreditation. Our recommendation to the Council of the Royal College of Surgeons of Edinburgh is that Mr Phipps' accreditation be withdrawn".

They went on to add two riders:

"This decision is not a reflection on Mr Phipps' extensive experience in specialised breast surgery.

We do not wish to comment on the extent of any additional training required since this would not fit within the remit of this tribunal".

I do not see in these circumstances any basis for concluding that the defenders' actions displayed a lack of honest belief that they were acting within their powers. The very appointment of an independent tribunal and the replacement of the chairman on request are in themselves sufficient to dispel the notion. The conduct of the tribunal was not the subject of criticism.

[74] In spite of the fact that a tribunal approved by the pursuer's counsel heard the case and made a determination, Mr Bovey relied heavily on not only what Mr Foster said in trying to defend the nomination of Macleod and Temple but also on certain submissions he made at the hearing. In relation to pre-tribunal matters he observed that Mr Foster doggedly insisted that Professor Temple, as President and a man at the top of his profession, could not possibly be said to be biased in any way. While that demonstrates, apart from anything else, a failure to recognise the importance of the appearance of bias, and to a lawyer may appear to be a fairly ridiculous statement, it was notable that Mr Foster maintained in his evidence that that remained his view to this day. He was not asked to consider apparent bias. He readily conceded that it was "silly" to say that Macleod had no prior knowledge. The only indication that emerged in the evidence of a reason for him to be so defensive in regard to the nomination of Temple was the view that any appeal had to be to an office-bearer and the others were already compromised.

[75] The pursuer also relies on a representation made by Mr Foster to the tribunal that nothing in the SAC minutes suggested that the SAC had a discretion to award specialist accreditation to persons who had not held substantive approved senior registrar posts, and on his failure to draw the attention of the tribunal to SAC minutes of 3 October 1989 and 17 April 1990 which indicated that the SAC did in practice exercise such discretion. In relation to the representation, it is important to note also that Mr Foster added that he considered it the duty of the SAC, if it did make any concession, to report that to the JCHST and to the College issuing accreditation. While the letter of 28 February 1995 hints at that, there was no evidence of the SAC relaying information about any concession to the other bodies. Mr Reynold made submissions that the SAC did have discretion, and it was for the tribunal, comprising experienced members of the profession, to make their adjudication. In cross examination Mr Foster did accept that the language of the Fourth Report referring to time spent "in a post of equivalent responsibility and training potential" indicated that there was a discretion. On the other hand, as I have already said, there was no clear evidence that that discretion was applied other than in limited circumstances. The pursuer presented no evidence that the SAC would in practice review the content of clinical work in a locum post or a post to which the particular applicant had been appointed informally without advertisement or open competition. In evidence Mr Foster said that there was no sign in any of the minutes he studied of the exercise of discretion in a way that would have resulted in approval of the pursuer's application. As I have already indicated in paragraph [21] above, the two minutes to which my attention was drawn tend to support Mr Foster's view. Mr Bovey invited me to interpret these minutes in light of an explanation of them in a transcript of the evidence of a former Chairman of the SAC in General Surgery at one of the GMC Professional Practice hearings relating to the pursuer. Mr Ferguson opposed reference to the transcript since it had not been introduced into evidence by joint minute or oral testimony. I agree that the transcript was not introduced as evidence in the case. In any event I would have found no assistance in the transcript without some explanation of how the few cases dealt with in the minutes could be said to be comparable to that of the pursuer. Mr Donald Macleod, who was Vice President of the defenders between October 2000 and November 2003, had previously served on the Council and is a consultant general surgeon and Associate Post Graduate Dean (General Surgery) for south east Scotland, said that the SAC on General Surgery and the Surgical Royal Colleges were very strict in their interpretation of the regulations. They were not inflexible, but because of the enormous demand for posts they were strict. Appointment to a substantive senior registrar post virtually guaranteed an ultimate consultant appointment. He described it as an "absolute rule" that locum posts were not recognised. There were many appeals but all were turned down. He gave a number of reasons for the distinction between locum and substantive posts, including a lack of opportunity for study or educational leave in a locum post because the commitment was to work, and also that a locum post would not necessarily be advertised nationally and involve an outside assessor at the appointment stage. Professor Temple understood that the discretion was generally reserved for those in academic posts.

[76] Having regard to all the evidence about events surrounding the establishment and composition of the tribunal and the actual conduct of the tribunal hearing, I do not find a basis for inferring that Mr Foster had no honest belief that he was conducting business within the defenders' powers.

(g) Arrangements for Appeal

[77] The defenders' Council met on 29 June 2001 and endorsed the recommendation of the tribunal. Since the defenders had recognised the right of the pursuer to appeal any unfavourable determination by the tribunal, the pursuer's solicitors endeavoured to initiate that process. Mr Bovey was critical of the defenders for notifying the GMC of the outcome on 2 July without advising them that there was provision for an appeal. Mr Foster explained that he did so as a patient safety issue on an interim basis. I do not think that that indicates a change of heart by Mr Foster about whether the pursuer could appeal since by 6 July, four days after the letter, the pursuer's solicitors had already discussed the appeal with him and it is clear from their letter of 6 July to the pursuer that the issues for Mr Foster were not whether there should be an appeal but who should hear it and what would be the grounds. The possibility of an appeal to the STA had previously been discussed. Mr Foster was uncertain whether they or the GMC or simply the College should be involved.

[78] In a letter dated 19 September 2001 the solicitors set out grounds of appeal. They did not propose to challenge any of the factual findings but stated:

"Broadly, our contention will be that there are special circumstances which would have merited the Panel exercising its discretion not to recommend withdrawal of accreditation, and/or would afford the STA compelling grounds for granting Mr Phipps re-accreditation. These circumstances are the quality of Mr Phipps' post-Fellowship training experience...taken in conjunction with the extent of Mr Phipps' clinical experience as a consultant surgeon both in New Zealand and with the Bradford NHS Trust. Additionally, our contention will be that the findings of the Panel, recorded in subparagraphs (i) and (ii) of paragraph 2A of its 'Recommendations' do not have either the relevance or significance which the Panel clearly appears to have attached to them".

Sub-paragraphs (i) and (ii) referred to the misleading information provided by the pursuer about the two periods of five months from August 1987 and January 1988.

The letter then went on to discuss the question of what body should hear the appeal.

[79] In a letter of 11 October 2001 to the pursuer the GMC stated that it was their understanding that he intended to appeal against the defenders' decision. On 24 October the pursuer's solicitors followed the matter up with the defenders, stating that, while certain matters required further advice from the GMC, others did not, and in particular that their undertaking that factual findings would not be challenged should lead to implementation of what the solicitors claimed Mr Foster had said to a partner and to Mr Reynold, namely that the College would support Mr Phipps' appeal and/or application for re‑accreditation.

[80] There were therefore two issues at this stage: whether the pursuer did actually appeal the decision; and whether there was a deal between the pursuer's legal representatives and Mr Foster that, if the pursuer did not challenge any of the factual findings made by the tribunal, the College would support his appeal and/or an application for re-accreditation. Mr Campbell, the partner of the solicitors involved, did not have a clear recollection of the facts. In light of a review of the documents in examination and cross examination, including a note Mr Campbell had made of a conversation he had with Mr Reynold following Reynolds' discussion with Mr Foster, it appeared that any commitment of the College was confined to being supportive of the pursuer in an application for re-accreditation. There is a distinct absence of reference to supporting the appeal in Mr Campbell's note of the report by Mr Reynold of his discussion with Mr Foster. Mr Campbell had no recollection of the terms of the deal, although in his reminder letter of 24 October 2001 to Mr Foster he gave the indication referred to above.

[81] Much later, in his letter of 3 April 2002 Mr Foster stated his position as follows:

"You again raise the assertion regarding the outcome of the tribunal that 'as the decision was found essentially on technical grounds the College would be supportive of Mr Phipps provided our appeal did not seek to challenge any of the factual findings'. This implies that some form of deal was on the table. I do not recall any such 'deal' nor would I have suggested one. If you think otherwise then there has clearly been a gross misunderstanding between us. I reiterate that the College will do all it can to support its Fellows but it will not make inappropriate concessions or compromise training standards".

Unfortunately the picture is incomplete because I did not hear from Mr Reynold. It appears from Mr Campbell's file note that the Reynold/Foster discussion was a friendly one. That suggests that they were at one on something. However the evidence available goes no further than to show that Mr Foster indicated that the College would be supportive of Mr Phipps in the event that he sought re-accreditation. It does not show that he indicated that, in the event that the factual findings of the tribunal were not challenged, the College would support Mr Phipps' appeal; that would be a position quite inconsistent with the role of the College as disciplinary authority which had already resolved that the accreditation should be withdrawn.

[82] I find it impossible to identify any dishonest conduct in this chapter. It may be that Mr Reynold read into the discussion rather more than Mr Foster intended. I cannot say clearly that the College did have an obligation to be supportive of its Fellows in their endeavours, but imagine that was the case in general. It would nevertheless be rather odd if that support were to amount to conduct inconsistent with arranging a tribunal hearing in the first place. It is not likely that Mr Foster's executive authority would extend to that. The relevance of this discussion may be confined to assisting in determining whether the linked allegation that Mr Foster failed to advise the Council of the defenders of a clear statement of intention on the part of the pursuer to appeal against the decision is made out. It may also have a bearing on the question of delay, having regard to the date of that last letter from Mr Foster, 3 April 2002.

[83] When in a letter of 23 May 2001 to the pursuer's solicitors Mr Foster set out the arrangements for the tribunal hearing, he added:

"Should there be a need for an appeal, then in the first instance the appeal can be made to the President of the Royal College of Surgeons of Edinburgh and should this prove unsatisfactory, the appellant will have the right for a further appeal to the Specialist Training Authority".

I have already made reference to the intimation of appeal in the pursuer's solicitor's letter of 19 September 2001. Sometime in the course of the next year there was a change of agency. Newly instructed solicitors wrote to the defenders on 14 October 2002 indicating that, since it was now apparent that the College was unlikely to be "supportive" of the pursuer in relation to his appeal, the pursuer would be contesting such matters of fact as might be relevant to his grounds of appeal. A notice of appeal signed by the pursuer and dated 21 October was submitted to the defenders by letter from the pursuer dated 25 October. Mr Foster responded to the letter from the solicitors inter alia in the following terms:

"I am puzzled by your reference to your client's claim that if he confined his appeal to the above grounds the College would be supportive of him. No such undertaking was given in those terms and I do not accept the argument that Mr Phipps can now depart from the acceptance of the Tribunal's findings in fact as endorsed by his then solicitors."

He went on to make the point that the pending appeal was to be a written appeal confined to a different aspect of the matter, which was the failure to exercise discretion. Mr Phipps's notice of appeal was not received until that letter had been sent.

[84] The grounds of appeal set out a number of ways in which it was claimed that the Tribunal had erred in its approach, but also sought to introduce new factual material made available since the tribunal hearing and to have the appeal tribunal make findings that Mr Foster had misled the tribunal in a number of respects, and concluded by inviting a finding that the tribunal had erred as follows:

"The Tribunal erred:

1. In not recognising and acknowledging the significance of the concession made in 1993.

2. In not recognising that the Royal Marsden post was a position of equivalent responsibility and training potential.

3. In placing undue reliance on irrelevant information.

4. In failing to exercise discretion."

Mr Foster's response to that was to send the pursuer on 6 November a copy of his letter to the solicitors and to add:

"You will now understand the College's position and the very restricted format in which the College, entirely within its discretion is prepared to proceed. You will note in particular that any written appeal on such restricted grounds must be accompanied by evidence from the Clinical Directors for whom you previously worked, that your performance as a Consultant was satisfactory."

That reflected arrangements accepted by the pursuer's original solicitors in June 2002. The pursuer was being given an opportunity to present his record of engagement in practice, including as a consultant surgeon, to demonstrate that he had been adequately trained to satisfy the requirements of higher surgical training in general surgery, on the basis of the ground of appeal intimated on his behalf on 19 September 2001.

[85] Trying to arrange an appeal gave rise to much discussion. The discussions included consideration of whether the STA and indeed the GMC should be involved in the appeal process. There was discussion between the pursuer's legal team and the defenders about the role of the defenders in any appeal and the scope of the appeal. However by June 2002 there was agreement on the terms on which a written appeal would be considered. In the end the stand taken by Mr Foster in the letter last of 6 November appears to have led him to the view that, if the pursuer did not provide the documentation that that required, then he had not appealed in accordance with the appeal arrangements made by the defenders in light of the declaration that the factual findings were accepted.

[86] At a meeting of the Council of the defenders held on 3 December 2002, Mr Foster intimated that there was no appeal forthcoming. It was not at all clear in the evidence how this came to be the position presented to the Council. Mr Foster's recollection was that the office-bearers decided that the solicitor's letter did not amount to an appeal and refused to accept it. Professor Temple maintained that the "appeal" letter was never placed before him. Mr Foster recalled that he placed it before at least Messrs Macleod and Smith, the two Vice Presidents at that time. Mr MacLeod could not recollect seeing the notice of appeal and considered that the decision whether to accept it was for the Council to make.

[87] While with the benefit of hindsight the foregoing catalogue of events following upon the original tribunal hearing does not do credit to the defenders, the position of the pursuer's original legal advisors is no model of clarity. If they had in their minds a clear notion of the parameters of the appeal and the role the defenders were expected to play, then they singularly failed to express that clearly in exchanges with Mr Foster. Both added even further uncertainty to a situation that was already unclear. They had reached a commendable agreement that there should be an appeal, but the uniqueness of the situation meant that they had no clear guidelines to follow and were devising procedure on the hoof. However, by June 2002 they had reached the point that, following communication with the pursuer's solicitors that month, requirements set by the President that the appeal should be in the form of a written submission covering the pursuer's whole post-fellowship record, and including evidence from the Clinical Directors for whom he had worked as a consultant that his performance as a consultant was satisfactory, had been accepted on the pursuer's behalf.

[88] Once new solicitors were involved for the pursuer and made it clear that the pursuer wished to proceed with an appeal in terms of the notice he then lodged, the position is murkier. There are two possibilities. Either Mr Foster made a unilateral determination not to accept the notice of appeal, or the office-bearers made that decision. Both office-bearers who gave evidence on this, Temple and Macleod, had poor recollections of specific events, particularly what had actually happened at meetings. Mr Foster's recollection of events was much better. However on this subject he also was somewhat vague. I accept the evidence of Mr Macleod that he did not believe that he was shown the notice, because he would have required it to be submitted to the Council to determine whether to accept it. I consider that Mr Foster decided unilaterally that no valid appeal was forthcoming because the requirements set by the President in June had not been met. I also consider, in light of the evidence of Mr Macleod, that in so determining Mr Foster exceeded his authority.

[89] It is of course possible that, if faced with the question, the Council also would have rejected the notice of appeal. That we do not know. As it is, the defenders must bear responsibility for the conduct of their chief executive or office-bearers if they acted with reckless disregard for the limitations upon their powers. It was a striking feature of this case that no ulterior or improper motive was suggested by or on behalf of the pursuer for any action or statement including arranging an appeal. No witness, including Foster, was specifically accused of acting dishonestly in any respect. On the matter of the appeal, it was not even suggested that the notice was not accepted through frustration or exasperation. Although it is not necessary for the pursuer to establish a motive for any of the defenders' conduct, the absence of any makes it extremely difficult to hold that the decision that no valid appeal had been submitted was made in the absence of an honest belief that there was power to refuse to accept it. The absence of that honest belief has not been established. There was a basis for Mr Foster forming the view that the pursuer was not complying with the requirements that the defenders had determined should apply by failing to submit testimonials confirming the satisfaction of consultants where he had worked with his performance. Against that background I do not consider that his unauthorised determination that there was no appeal, taken in conjunction with his resolute justification of Professor Temple's role as chairman of the appeal tribunal, proves that Mr Foster was acting dishonestly in the sense that he did not think that his actions and the proposed role of Temple were within his powers in the case of the former and the powers of the defenders in the case of the latter. On the latter he had the support of Professor Temple who I do not consider viewed any part he played in this matter as other than for the public good. Misguided to some extent they both may have been, but neither has been shown to have acted other than in the belief that they were entitled to do what they did. The defenders through Mr Foster went to considerable lengths to try to make satisfactory arrangements for an appeal, and did not waiver from the course of trying to arrange an appeal hearing. These circumstances do not support an inference of the degree of recklessness as to the powers of the defenders that amounts to abuse of power. Again it is not possible to detect any improper or ulterior motive for the decision. Unreasonable he may have been; but not reckless in the sense of acting in the absence of an honest belief that his actions fell within his executive powers in light of all that had gone before.

(h) Delay

[90] The procedures stretched over a period of just in excess of 21/2 years. Although that is quite a long time, for a number of reasons I do not think that undue delay for which the defenders are responsible has been proved. I have already mentioned the unique circumstances and the difficulties that they caused for parties in determining the procedure to be followed. The history of correspondence and communication that I have set out throughout this Opinion does not indicate any particular attempts by or on behalf of the pursuer to have the matter resolved more quickly. He was distracted by Employment Tribunal proceedings which were themselves significantly delayed by difficulties relating to his representation. Following the Tribunal hearing in June 2001 the communications over the appeal were fairly intermittent, and in due course there was a change of representation in relation to this matter as well. On the other hand Mr Campbell gave evidence of feeling frustrated by the difficulty he experienced on occasions getting a response from the defenders and also by what he described as their constant change of position. The latter I have already dealt with.

[91] My impression is that the delay was contributed to by both sides. I was not left with the impression that efforts by the pursuer to make progress were frustrated by irresponsible conduct by the defenders or that the defenders went out of their way to cause undue delay in the resolution of the issue. I do not find in the evidence of delay anything to indicate a reckless indifference to the legality of their conduct.

Conclusion on Liability

[92] I have tried to address the various individual elements of conduct said to be indicative of abuse of power by the defenders in chronological order and address all the evidence bearing upon each one. I have reflected my conclusions above. I have also reviewed the totality of the conduct of the defenders and their chief executive and office-bearers, what Mr Bovey described as their course of reckless conduct, in light of the whole evidence and counsel's submissions thereon, and have concluded that the evidence as a whole does not indicate that the defenders abused their power by acting with reckless disregard for the legality of their actions and the consequences for the pursuer. In my opinion the actions of the defenders were motivated throughout by the belief that what they were doing was for the public good.

[93] Although that is sufficient to determine the action in favour of the defenders, it is appropriate that I should express my opinion on the detailed submissions that I heard on causation in the event that I am wrong on the issue of liability.


[94] The submission for the pursuer was that the defenders' conduct caused or materially contributed to three events which resulted in loss to the pursuer, namely dismissal by Bradford from his post as consultant on 24 September 2000, the issue of an alert letter by the Department of Health for England and Wales on 12 October 2000, and the maintenance in force of that letter on 12 November 2000 and subsequently including 24 July 2002. In his submissions for the defenders Mr Ferguson added into the mix the GMC disciplinary action against the pursuer and the impact of those proceedings on the claim for loss. I shall consider each of these three events separately. In relation to the dismissal and the alert letter, much turns on the evidence of two particular witnesses, David Jackson, who was then Chief Executive of Bradford, and Bill Kirkup, now Associate Chief Medical Officer, Department of Health for England and Wales, and Regional Director of Public Health for North East England at the time.

[95] Before addressing the main contentions of the parties, I wish to look at one feature of the case that was not relied upon by the defenders but may provide a short answer to the question whether the pursuer could be said to have sustained loss as a result of the defenders' actions. Having regard to the terms of his record card, revised to correct the inaccurate claims, I do not see in the evidence a basis on which accreditation would have been awarded by SAC, JCHST or the defenders. It most certainly would not have been awarded having regard to the criteria that were proposed following the SAC in General Surgery visit to the Royal Marsden in 1989. Leaving that aside, and allowing a full two year period at the Royal Marsden as a post of equivalent responsibility and training potential, the two misrepresented five month periods principally relied upon in the pursuer's record card would fall to be left out of account and the third senior registrar year would require to be that as a research fellow at Queen Alexandra Hospital. Since that has not been shown to be either the equivalent of senior registrar level or approved, there would thus be no element of his training period, other than an initial year as a registrar, that was in a post recognised in the ordinary course as a stage of higher surgical training leading to accreditation. No witness with experience of the system was led to say that accreditation was likely to have been awarded on the strength of the training and experience that the pursuer had actually undergone. The SAC minutes produced and the evidence led about them did not have any clear bearing on the pursuer's circumstances. The other evidence which came from now retired experienced doctors who had served as College office-bearers clearly indicated that the measure of discretion that would be necessary to grant approval to the pursuer's application was unlikely to have been exercised had the truth about the various component posts of his record card been known. Mr Phipps claimed that the SAC Chairman personally approved his accreditation on the strength of five years' experience, but no other evidence supported the suggestion of a five year scheme of higher surgical training in general surgery at the time. In my opinion, the pursuer would never have been awarded accreditation in 1993 on that basis either.

[96] It appears that in addition the pursuer was either unwilling or unable to provide evidence from the clinical directors for whom he had previously worked that his performance as a consultant was satisfactory. The clear weight of the evidence in the case from the doctors with experience of the system of accreditation was that in the interests of patient safety the accreditation would not have been allowed to remain in place in these circumstances. I turn now to the parties' contentions.

[97] While it is not necessary in this action to work out why the pursuer found himself in conflict with colleagues in New Zealand and at Bradford, it does appear that the investigation of the pursuer's background by Mr Jackson was triggered by information that emerged as a result of unhappy relationships in the workplace. The pursuer had portrayed himself as a whistleblower who upset a colleague, but it is also possible that a clash of personalities became the issue and a genuine professional difference between colleagues was lost sight of. The actual cause does not matter, but something caused rumours that the pursuer had not completed the proper professional training for higher surgical training accreditation to reach the ears of Mr Jackson. That is what caused Mr Jackson to be in touch with the College by letter dated 22 June. Because of uncertainty in the mind of Mr Jackson about the identity of the College to which the pursuer belonged, he also directed the letter to the President of the Royal College of Surgeons in London, coincidentally also called Jackson. A conversation between the two Jacksons followed in which Mr Jackson of Bradford was advised, wrongly as it happens, that the pursuer had been struck off the Australian and New Zealand equivalent of the GMC register. That was Mr Jackson's reason for effectively suspending the pursuer from 28 June pending investigation of that matter. That and other matters were thereafter investigated by Mr Jackson. The decision of the Employment Tribunal which heard the pursuer's unfair dismissal case against Bradford in February 2002 contains this finding:

"The difficulty which we faced in the decision is that the conduct of the applicant encompassed a number of matters, some of which might have provided greater difficulty to the Respondent to establish and support before an Employment Tribunal and in that context there is no doubt that Mr Jackson embarked with diligence on establishment of grounds for the dismissal of the Applicant which were capable of objective verification and about which there was little scope for subsequent debate".

[98] The Employment Tribunal held that the dismissal of the pursuer on 21 September 2000 was unfair because the members of the disciplinary tribunal at Bradford were improperly briefed by the Trust legal adviser who was to present the case against Mr Phipps, and because a document emerged, indicative of possible pre-judgement of the case, which may have been drafted by Mr Jackson, although there was no specific evidence in relation to that. The Employment Tribunal held nevertheless that there was a 100% chance that a fair procedure would have resulted in a fair dismissal on two grounds. Paragraph 33 of the Decision is in these terms:

"33. a large extent the Tribunal agreed with the decision of the appeal hearing in this case which identified two principal aspects where the Applicant had fallen far short of the standard of conduct expected of him by the Respondent. The Applicant culpably failed to keep the Respondent informed regarding the position in relation to his New Zealand proceedings and in particular in the context of his CV he mis-represented on a number of occasions and particularly to the Respondent the status of his position at The Marsden Hospital where he contended without foundation that he held the substantive post of Senior Registrar when throughout the period of his appointment it appears clear to this Tribunal and to others, including the Royal College of Surgeons, that he held only a locum post".

That decision was sustained by the Employment Appeal Tribunal in a judgment delivered on 30 April 2003.

[99] That is a substantially edited version of the reasons given by the internal disciplinary tribunal for sustaining the dismissal of the pursuer. These are referred to at the end of paragraph 23 of the Employment Tribunal decision in these terms:

"We consider that the reason for the Applicant's dismissal was the misconduct identified in the statement of case and in particular the three grounds surviving at the appeal stage, the Applicant's failure to disclose the true position regarding the New Zealand proceedings, the Applicant's mis-representation of his curriculum vitae and the Applicant's questionable right to accreditation".

I accept the evidence of Mr Jackson that the breach of trust by not advising Bradford of the outcome of the proceedings before the Court of Appeal in New Zealand and later before the Privy Council was viewed as a serious matter by Bradford. They were particularly concerned about the possibility of adverse publicity arising should it become public that, in relation to the report about his work in New Zealand which he had challenged successfully and which had been quashed on judicial review, the bulk of the criticism of the pursuer had been reinstated, since his work was of a publicly sensitive nature and he had treated so many women in the area. Were Bradford to be challenged and unable to respond because they were unaware of that development, that would be particularly damaging to public confidence in the Trust. There was no evidence in the case to suggest that this was other than a very serious matter. The misrepresentations in the pursuer's CV founded upon by Bradford in determining to dismiss him were some of those in respect of which the GMC would later come to suspend him from practice. The Employment Tribunal founded particularly on that relating to the Royal Marsden. Whatever the defenders thought of the pursuer's claim about the status of the post at the Royal Marsden and the validity of his accreditation, Bradford considered that to be an important element in the misrepresentation of his CV, and their view that it was significant was supported by both the Employment Tribunal and the Employment Appeal Tribunal.

[100] One error in the factual findings of the Employment Tribunal should be noted. The Tribunal proceeded on the basis that the pursuer had never drawn the fact that the decision in his favour in New Zealand was the subject of challenge on appeal to the attention of Bradford. He had, in fact, done so. His failing was confined to not advising of the outcome. Mr Jackson pointed that out in the course of his evidence. Before the Employment Appeal Tribunal the matter was seen as non-disclosure of the course of the litigation. In presenting his own case before the Employment Appeal Tribunal the pursuer did not take issue with the way in which the matter had been reflected. Although Mr Jackson also acknowledged that, with hindsight, he might have flagged up the issue to check for a decision of the New Zealand Court of Appeal being issued, the pursuer himself in the course of re-examination accepted in retrospect that he had an obligation to tell Bradford the outcome of the appeal proceedings. He did add that Bradford could simply have asked him, but that hardly seems the appropriate way of giving effect to an obligation of good faith. The Employment Appeal Tribunal also recognised the right of the Employment Tribunal to take account of the defenders' tribunal decision as to the validity of the pursuer's accreditation of higher surgical training which found that the Royal Marsden post held by the pursuer was locum and not substantive, even though that finding was made post-dismissal.

[101] Immediately following upon the pursuer's dismissal, Bradford notified the Regional Office of the Department of Health, in particular Dr Kirkup, of the decision. He had been informed of the ongoing situation on a number of occasions since 3 July. The principal concern of Mr Jackson in keeping Dr Kirkup advised of the situation was that the Department of Health would require to consider issuing an alert letter in the event that the pursuer was dismissed. Dr Kirkup decided to issue an alert letter; it was issued on 12 October. The letter was issued to health authority chief executives throughout England and Wales. It is in brief and simple terms as follows:

"The above person formerly worked as a Consultant in General Surgery at Bradford Hospitals NHS Trust.

Could you write as a matter of urgency to all independent hospitals registered with your Health Authority, advising them to contact Mr David Jackson, Chief Executive at Bradford Hospitals NHS Trust on Tel 01274 364788 should this doctor apply for a permanent post or locum work".

An alert letter was issued only where the Department had reasonable grounds to consider that a doctor posed a potential danger to patients and was likely to be seeking employment. The primary factor for Dr Kirkup in deciding that the first criterion was met was that the pursuer had falsified parts of his CV relating to his training, that requisite training had not been completed and that he was thus not entitled to accreditation. Also of importance were the fact that there remained unresolved issues about his clinical competence and about his personal conduct, matters which had been under investigation at Bradford but were not raised in the disciplinary proceedings. He recognised that Bradford had not completed investigations into these matters and had not presented them as issues in support of dismissal. The communication from Bradford intimating dismissal stated specifically that it was not as a result of any allegation relating to medical negligence or substandard clinical practice. However, he remained concerned that there were outstanding unresolved matters relating to both aspects.

[102] Against that background, when the legal department of the BMA in a letter of 8 November challenged the letter on the basis that the criteria for an alert letter were not fulfilled, and referred specifically to the Bradford letter excluding allegations of medical negligence or substandard clinical practice, it did at first blush seem strange that in his reply Dr Kirkup referred only to the misrepresentation of the pursuer's CV and the absence of entitlement to consultant status as the factors behind the alert letter. The same applies to his response of 12 December to a further letter of 7 December from the BMA. He justified these incomplete responses on the ground that to refer to the other factors, even in a letter to the pursuer's representative, would risk breaching the pursuer's right to confidentiality. While that does strike me as a strange view of confidentiality, it was clear from a memo from Dr Kirkup to the Chief Medical Officer that Dr Kirkup was aware of clinical competence issues.

[103] Mr Bovey invited me to approach the evidence of Mr David Jackson with a high degree of scepticism. He submitted that the acceptability of his evidence on any issue was limited. He had been found by the Employment Appeal to have acted improperly, he had failed to tell Dr Kirkup that the surgeons engaged to review the issues of clinical competence affecting the pursuer had given the pursuer a clean bill of health (and Dr Kirkup had said that he would have been interested in receiving that information), and he had been ambiguous about the reasons for his concern about the history of the pursuer's training, that is whether it related to his general surgical training or breast cancer treatment training. Mr Ferguson countered by inviting me to find him credible and his evidence reliable. It had been presented in a clear, succinct, measured manner and was generally confirmed by the documents.

[104] I accept that his evidence was clear and generally confirmed by the documents. I also accept the further submission by Mr Ferguson that Mr Jackson came over as a conscientious chief executive endeavouring to advance the interests of the Trust. He undoubtedly embarked on what the Employment Tribunal described as a "diligent" investigation. "Man with a mission" and "dog with a bone" are phrases which occurred to me while listening to his evidence. However I do not consider that his determination led to his misleading me at any stage.

[105] Mr Bovey's criticism of Dr Kirkup was essentially advanced during his cross examination about the correspondence I have referred to above and also about his failure to keep written records of oral communications. The absence of file notes did not strike me as unusual. His seniority and experience added weight to his evidence which, after some initial scepticism, I accepted. While I retain certain reservations about the transparency of his correspondence with the BMA, I do not doubt that he gave a frank account of his approach to alert letters in general and this one in particular.

[106] The pursuer relied on three factors as demonstrating that the defenders caused or materially contributed to his dismissal from Bradford, namely (a) that the defenders gave Bradford the strong impression that the pursuer's accreditation would be withdrawn: (b) Bradford were looking for reasons to dismiss the pursuer: and (c) Bradford had little other reason to dismiss him. Mr Bovey made a number of further detailed submissions in support of each. Mr Ferguson countered that the particular issue of the pursuer's accreditation was not the basis for the pursuer's dismissal. Apart from the issue of breach of trust through failure to inform Bradford of the outcome of court proceedings relating to his time in New Zealand, the ground for his dismissal was the misrepresentation of his career history; that was an issue of substance rather than form. The inaccuracies in relation to his career history found established at Bradford extended beyond those which supported his accreditation. Having made their findings in regard to misrepresentation of his CV, the tribunal at Bradford went on to find that the pursuer was not entitled to accreditation "having regard to his true career history". It was the contrast between his true career history and that which he presented which was the crux of that Bradford finding.

[107] I accept the essence of the submission by Mr Ferguson. The tribunal at Bradford made its own findings as to breach of trust and misrepresentation by the pursuer. Later before the Employment Tribunal attention appears to have been concentrated on the particular examples of the Royal Marsden and the subject of accreditation, quite like the situation in the proof in this case. That was one of the reasons why I set out earlier the full facts in relation to the pursuer's employment history and the representations he has made about it. I do not see the Employment Tribunal Decision as detracting from the findings made at Bradford. There is no indication of a specific determination to that effect. At paragraph 23 of the decision the Tribunal stated:

"...We considered that the reason for the Applicant's dismissal was the misconduct identified in the statement of case and in particular the three grounds surviving at the appeal stage, the Applicant's failure to disclose the true position regarding the New Zealand proceedings, the Applicant's misrepresentation of his curriculum vitae and the Applicant's questionable right to accreditation".

After then addressing the question whether the evidence before the Employment Tribunal showed that the dismissal was fair, the Tribunal said what is quoted at paragraph [98] above. I read that as the Tribunal identifying and specifically relying upon the clearest grounds for dismissal. In addition there were a number of other significant misrepresentations that are not in doubt that Bradford were plainly entitled to rely on in dismissing him. The dismissal did not depend upon the accreditation issue.

[108] I accept the evidence of Mr Jackson that he was not prepared to wait until the defenders resolved the accreditation issue, which he thought would take some considerable time. He had a health authority to run. He was acutely conscious that the matter was one for the Council of the defenders and knew that, even although Mr Foster seemed likely to propose withdrawal to the President and Council, the outcome was far from sure. I think that there is force in Mr Bovey's submission that Mr Jackson considered that the pursuer should be dismissed. He had investigated the case, and indeed built the case, on which the disciplinary hearing took place. There were issues of clinical competence and personal issues which were taken no further at that stage and which were partly resolved. However, they were in the background should the case he built fail. My impression of Mr Jackson's approach is that he was not prepared to rely on something as uncertain as the outcome of the defenders' reconsideration of accreditation. He was intent upon establishing a solid case. That runs counter to the notion that the pursuer would not have been dismissed but for the actions of the defenders.

[109] It is clear from the evidence of Dr Kirkup that the Bradford decision to dismiss the pursuer, combined with his departure and thus the possibility that he would be seeking other employment, triggered the alert letter. It follows that, if the defenders were responsible by their unlawful conduct for causing the dismissal, they would also be responsible for the issue of the alert letter and its consequences. However the pursuer advances an alternative case that, even allowing for the dismissal by Bradford being justified, the issue of the alert letter was caused or materially contributed to by the actions of the defenders.

[110] As I have already mentioned, in letters dated 24 November and 12 December 2000 refusing to withdraw the alert letter, Dr Kirkup confined his explanation to dismissal by Bradford because he was found to be not entitled to be appointed as a consultant and that that constituted a potential danger to the safety of patients. Mr Bovey urged me to reject Dr Kirkup's explanation that there was more to it which he did not mention on the ground of confidentiality, and thus to conclude that the defenders' position in relation to the pursuer's accreditation was the sole basis on which their letter had been issued. I have already indicated why I accept the explanation given by Dr Kirkup for the restricted terms of these letters. Although the letters refer to the ground for dismissal as being that the pursuer was not entitled to be appointed as a consultant but represented that he was, Dr Kirkup in evidence explained that the primary factor in his decision to issue the alert letter was the falsification of the pursuer's CV. Because that undermined the pursuer's accreditation and therefore his entitlement to be appointed as a consultant, that has to be seen as the matter lying at the core of the decision to issue the alert letter. Mr Jackson had submitted a substantial amount of material to Dr Kirkup who was thus fully informed about the background. However, it is plain from what Dr Kirkup said, and from the sequence of events, that the trigger for the alert letter was the Bradford dismissal. There is no evidence of direct communication between Dr Kirkup and the defenders. I am not persuaded that the pursuer could demonstrate that he had suffered damage through the issue of the alert letter independently of his dismissal.

[111] In support of the submission that the alert letter was kept in place because of the accreditation issue the pursuer also relies upon developments in the proceedings before the PCC of the GMC as indicating that the issue of accreditation, quite independently of dismissal, was the reason for the alert letter remaining in place over a period of years. The submission was that, but for the introduction into the GMC proceedings of the accreditation issue, they would have come to nought and the alert letter would have been withdrawn. That submission is based principally on the difference in terms between letters of 27 February 2002 and 1 January 2003 giving notice of the charge against the pursuer before the PCC. The former is silent on the question of accreditation. The latter introduces the issue as the first element in the charge. That appears to be purely a question of chronology. It is not entirely clear why the change took place when it did, but it may be because the defenders' final decision on the matter was taken in December 2002. No witness was called to explain why or to indicate that the change in the terms of the charge was significant. The PCC clearly did not see the change as such, since an application for adjournment of the proceedings was refused on the basis that the change did not merit it. The reason for that is fairly easy to identify. Although reference was introduced to the events of 1992 and 1993 and the involvement of the JCHST and the question of accreditation, most of the specific misrepresentations identified in relation to particular periods of service were already part of the charge in the earlier letter as misleading elements of the application to Bradford. The argument that the whole course of the GMC proceedings would have been different without the introduction of reference to accreditation is untenable having regard to the basis on which not only was the pursuer found not to be entitled to accreditation but the basis for the decisions of Bradford, Dr Kirkup and the GMC. At the final GMC hearing in February 2008 when the Panel determined to erase the pursuer's name from the Medical Register, it was stated in terms:

"Irrespective of whether or not you were entitled to specialist accreditation, the PCC found proved that you had misrepresented the nature and length of the professional appointments which you had held. The PCC also found proved that the application form and CV presented to Bradford Hospitals (NHS) Trust in relation to your application for the post of general surgeon with a special interest in breast surgery also contained inaccuracies and misrepresentations. Your actions in these matters were found to be inappropriate, unprofessional, dishonest and intended to mislead, and are very serious findings indeed".

[112] The GMC were aware from at least June 2000 that there were question marks over the presentation of the pursuer's career history. They were aware of the actions being taken at Bradford and by the defenders. A letter of 14 April 2005 indicates that they regarded Bradford as the first to formally raise concerns about the pursuer with them. They decided to let matters there take their course and hold a watching brief. The fact that they had been alerted to the matter was significant to Dr Kirkup. His invariable practice, once an alert letter had been issued, was to not withdraw it until all matters which lay behind it had been resolved. In particular that meant any matter that had been drawn to the attention of the GMC had been resolved. He regularly reviewed the position. He was clear that, even if the issue of the withdrawal of the accreditation had been abandoned by the defenders or resolved in favour of the pursuer, the letter would have remained in place until the GMC had finalised their position. At the conclusion of the proceedings before the Employment Appeal Tribunal a further request was made to Dr Kirkup to withdraw the letter, but he refused.

[113] The PCC of the GMC took up the question of misrepresentation of the pursuer's career history. As a result he was on 28 October 2004 found guilty of serious professional misconduct, and included among the findings on which that was based was that his record card had misrepresented his service in two posts at Portsmouth and the posts he had held at St Helier Hospital and the Royal Marsden. The submission of the record card was held to be dishonest and intended to mislead in relation to the posts at Portsmouth and St Helier Hospital. Findings were also made about misrepresentation in the application and CV presented to Bradford. He was suspended from practice for 12 months on the basis that the matter would be reviewed within 12 months, that review to include consideration of the state of his proficiency as a surgeon. Appeal proceedings before the Administrative Court and the Court of Appeal meant that the suspension did not take effect until 21 July 2005.

[114] The suggestion was also made that Professor Temple's phone call to the GMC contributed to causing the alert letter to remain in force. However there is no evidence that Dr Kirkup was aware of the telephone call nor that he had in mind the inaccurate information referred to therein. There is no evidence indicating that this had any influence on the maintenance in force of the alert letter.

[115] The evidence shows that the alert letter remained in force because matters which had arisen by the time it was issued, and had to be resolved before Dr Kirkup would withdraw it, remained outstanding. I am in no doubt that, had the issue of accreditation been resolved in favour of the pursuer, the letter would not have been withdrawn. Proceedings originally initiated by the GMC did not make reference to accreditation but did make reference to some of the misrepresentations which lay behind it. That was an issue that was bound to require resolution by the PCC which in the end found misrepresentations proved. It follows that the pursuer's contention that the defenders' abuse of their power, had it been proved, caused him loss falls to be rejected.


[116] The pursuer claims damages under a number of heads: past loss of earnings from 21 September 2000 until the date of interlocutor following the proof and interest thereon; future loss of earnings or an award for loss of employability; the legal expenses he incurred before the defenders' Tribunal; and pension loss. At the invitation of parties, I agreed that the presentation of evidence relating to loss of pension should be postponed and a later diet fixed to hear that evidence and submissions on it, should the pursuer be successful on the merits. Although he has not been successful on the merits, since I heard evidence and detailed submissions on loss, it is only right that I should record the findings I would have made if necessary. I propose to identify the elements appropriate to any future calculation

[117] The basic components for a loss of income calculation are contained in two joint minutes. The annual gross net income he would have received each succeeding year under the pre-1 October 2003 NHS contract, under which he had been engaged, and under the post-1 October 2003 contract that he would have switched to thereafter, are set out in the second paragraph of joint minute No.25 of process, which paragraph formed the basis of the submissions of Mr Bovey on this point. Mr Ferguson conceded that there was no reason to doubt that the pursuer would have transferred to the new NHS contract as of 1 October 2003 at the 7-29 years point of seniority. The other joint minute No.24 of process sets out in paragraph 23 the pursuer's income after dismissal, commencing in 2002, until 5 April 2008. Assuming continuation of the jobseeker's allowance of which he was then in receipt, I calculate further income to 30 April 2010, taking a figure of £110 (the pursuer's vague estimate) per week for 106 weeks, as £11,660. That figure is surprisingly low compared with those recorded in the joint minute for 2006 to 2008. No claim is made for the period of twelve months from the date when the pursuer's GMC suspension took effect in July 2005.

[118] The pursuer also claims that throughout the period since his dismissal he would have received additional payments for voluntarily carrying out additional clinics and for private work. He claimed that by the date of the proof he would probably have been the foremost consultant surgeon in the country in breast cancer management. He envisaged that he would have continued to work until the age of 66. He also asserted that he would have done two or three additional clinics per week, receiving remuneration for two as was the custom, and would have steadily built up his private practice to the point where it would have been equivalent to a substantial proportion of his NHS salary. The effect of that would possibly be to reduce his NHS salary, although he suggested that it was not clear that the rule that there should be a reduction in the NHS salary whenever private work exceeded 10% was usually implemented in practice. He also considered that he would have received a substantial clinical excellence award because of the innovations he was making and would continue to make at Bradford. He relied with some statistical support from Mr Davies, employment consultant, on his own evidence for these contentions.

[119] I do not think that his employment history supports them. He did no additional clinics according to the records at Bradford. In the final year of his employment there he has proved a private income of about 10% of his NHS salary. The innovations he claimed to have made were not confirmed as such by any witness. Indeed Mr Jackson advised that the Trust had lost a training post in general surgery principally because the pursuer did not offer adequate training potential for a senior registrar working with him. Only 20% of consultants receive clinical excellence awards. Not only are they difficult to obtain, but one of the criteria is that there should have been no adverse outcome for the consultant following disciplinary action by employer or GMC. The pursuer has failed to satisfy me that he would have received a clinical excellence award.

[120] So far as additional clinics and private practice are concerned, he presented an insufficient basis to enable a detailed assessment of the prospects to be made. I have no doubt that he would have continued to earn some additional income. Bearing in mind that the more clinics he did the less time he would have for private practice, I consider it appropriate to take a broad view of the likely effect of his involvement in one or other or both, without being able to specify which. Mr Davies gave evidence, under reference to the report of an analysis of consultants' NHS and private incomes in England in 2003/04 in the Journal of the Royal Society of Medicine, that on a statistical basis the minimum private income the pursuer was likely to have under the new NHS contract regime was 26% of his NHS salary. I do not doubt that on a purely statistical basis that was a reasonable conclusion to reach. However, Mr Davies was, as I have indicated earlier, not as fully informed about the pursuer as he ought to have been. He also did not appear to me to give sufficient weight to the absence of any record of significant private earnings. There is no reason to think that his approach to additional clinics and private work would have changed in the immediate future at Bradford. Had he secured employment in a more congenial environment, then I think it is likely that he would have done more than at Bradford. The introduction of the new contractual arrangements is also likely to have encouraged him to greater activity in the field of private work. However, that optimism does not warrant accepting the statistical approach taken by Mr Davies. It warrants making some allowance which would increase following the introduction of the new contract. I reckon that, over the piece since the date of his dismissal, it is likely that he would have received from these sources an income equivalent to about 15% of his NHS salary. To the future I would apply a figure of 20% of his NHS salary. Parties were agreed that, if future loss was awarded, the appropriate multiplier would fall somewhere between 3.36 and 6.76. The multiplier would have to be adjusted to reflect the fact that these submissions were made six months ago. I am unable to determine the age at or after 60 at which the pursuer would have retired. The best estimate I could make on the evidence is around the mid-point. Having said that, I find it difficult to envisage circumstances in which any award for the future would be appropriate.

[121] Any award of damages for loss of income must, in my opinion, be substantially reduced for the failure of the pursuer to take reasonable steps to mitigate his loss. As he himself pointed out, his name remained throughout on the specialist register. Accreditation was never finally withdrawn. The immediate cause of his being out of work was dismissal by Bradford. There was never any realistic prospect of his returning to that job. Not even he suggested that. He challenged the dismissal at the same time as he resisted the challenge to his accreditation. He sought and obtained postponement of the Employment Tribunal hearing until February 2002. I had the impression that he had it in his mind that to seek employment as a surgeon at any grade lower than that which had held would have an adverse impact on his case. It is not what the pursuer said. What he did say was not at all convincing.

[122] He blamed the alert letter for thwarting his initial efforts to secure employment. Professor Temple's interest in the alert letter was initially triggered by learning that the pursuer was to be interviewed for a post of consultant surgeon at Carlisle. The panel decided at the last minute not to interview him because of the dismissal and the alert letter. In the first quarter of 2001 he was interested in a similar job at Crewe. When he explained to the Medical Director that he had been dismissed and his understanding of the reasons for that and mentioned the alert letter, he was told that the real problem was the alert letter which he should try to get revoked. Two agencies he approached said that it was impossible for them to act on his behalf as long as he was subject to the alert letter. He made a vague claim to have applied for locum posts as a breast surgeon but gave no specification. It seemed to me that he abandoned the quest for work as a surgeon following the Crewe experience.

[123] Two witnesses were able to speak from experience about the impact of alert letters, namely Dr Kirkup and Mr Bold. Dr Kirkup explained that there might be fifty alert letters outstanding at any given time. He had experience of persons affected by an alert letter obtaining alternative employment in three cases, two in similar posts where the Trusts communicated with each other and supervision was put in place initially, and a third case where the person did a different type of work. It was not possible for him to say if the pursuer could have got work. He thought that there was more chance if he had undertaken a programme for retraining and re-accreditation. Mr Bold had seen few alert letters in six and a half years in the public health sector. While working with the BMA Legal Department he had dealt with only a couple of alert letters and neither person affected had secured other employment while subject to the alert letter. There were situations in which a person so affected would clearly not be able to get other employment, e.g. where subject to allegations of sexual abuse or where clinical or surgical competencies or capabilities were in doubt, both cases presenting serious risk to patients. His understanding was that the letter should only have affected the pursuer's prospects of securing employment as a consultant surgeon and that he should have been able to obtain employment as an associate specialist or staff grade surgeon. Dr Kirkup, who plainly had greater experience of the way the system worked, considered that the alert letter should lead to inquiry of the dismissing authority by any authority where the pursuer sought employment.

[124] What is striking is that the pursuer made no effort to secure any surgical post after March 2001. Mr Bold actually received a call from someone at Crewe about the significance of the alert letter when the pursuer inquired about the post. He indicated in response to the inquiry that he did not consider that the pursuer presented a risk to patients. In the event the pursuer did not submit an application. Bearing in mind the circumstances in which the pursuer came to be employed at Bradford, particularly because his technical breast surgery skills were in short supply and highly regarded, which overcame other reservations, and having regard to the evidence of Professor Maran about there being no real substitute for actual surgical practice, I consider that the pursuer gave up on the quest for alternative employment too easily. If he was not prepared to take a post at a lower grade than the one he had held, then that was unreasonable in the circumstances, since to do so would have had no adverse impact on the battles he was fighting. He himself recognised, in keeping with other witnesses in the case, the importance of maintaining his surgical skills. Were he to be out of practice for 18 months or so he would require some supervision on resuming practice. My clear impression is of a skilful and resourceful individual with much to offer a health authority. He has not satisfied me that he took reasonable steps to instigate his loss. I consider that, if he had taken the reasonable step of setting his mind to securing an associate specialist or staff grade post, it is likely that he would have been successful within 18 months of his dismissal. The joint minute No.25 of process reflects that he would then have had an income of 80% of the earnings he would have received as a consultant surgeon employed by the NHS. Any damages awarded would require to be modified accordingly.

[125] There are two other considerations relevant to mitigation of loss - steps the pursuer could have taken to complete his training and the realities of the situation in which he now finds himself. I accept the evidence of Mr Foster and Professor Temple that the defenders did offer to help the pursuer to secure a post where he could undertake further training on which reports could be submitted to the defenders with a view to reaccreditation. It was discussed with the Director of Standards of the defenders, Mr McCormick. It was estimated that that was likely to take between one and two years. To have followed that course would have meant a temporary reduction in income to a level which was not referred to in evidence and thereafter the potential of fairly imminent return to his pre-September 21 2000 level of income. No effort was made to investigate this possibility.

[126] Between March 2001 and January 2004 the pursuer appears to have taken no steps to secure alternative employment. Thereafter he applied to City Training Services, who advise and assist people to get back into work, but were unable to help in his case. They, like a similar agency, Action for Employment, which assess the skills of an individual and assist in securing employment, considered that self-employment was the only way forward for him. When he applied for a job as a medical-legal adviser, he was not interviewed. This was all in the first half of 2004. Thereafter he had a period of illness of about 6 months. I shall deal in a moment with the circumstances of the GMC hearings. In September 2007 he contacted an organisation called Bizz Fizz for advice and help in relation to funding a business. Then around the time his name was erased from the medical register he had unsuccessful discussions with Aire Valley Business Centre about the possibility of obtaining financial backing to start a business, and he personally did not have the means to contribute towards establishing a business. He gave evidence of applying for a number of other jobs for which he was generally told he would be overqualified. The only one of which any specification was given was that of a trainee probation officer. More recently he has sought work as a support worker/counsellor to students in the course of their studies, again unsuccessfully.

[127] The GMC decision to suspend him for 12 months envisaged reviewing his capacity for resuming work in light of his being able to demonstrate that resuming practice was justified by his proficiency as a surgeon. He took some steps to try to regain his proficiency. In 2005 he approached Professor Burr of the Department for NHS Post Graduate Medical and Dental Education at Leeds for advice on what steps to take. Professor Burr considered that it would be difficult to plan for a period of refresher training that would enable him to re-enter surgical practice. However arrangements were made for the pursuer to commence a clinical attachment with Mr Michael Higgs, Consultant Breast Surgeon, North Tees NHS Trust in June 2006. The travel involved in commuting from home and the associated expense were such that within two weeks the pursuer abandoned that commitment. Professor Burr made further efforts to secure a clinical attachment nearer to the pursuer's home. He made contact with the Medical Director of Leeds Teaching Hospitals NHS Trust, but nothing came of that since the pursuer's suspension was seen as placing severe constraints on what re-training could achieve and the Unit itself was undergoing reorganisation and unable to assist.

[128] The pursuer attended hearings before a Fitness to Practise Panel of the PCC on three occasions following his suspension, 12 to 14 July 2006, 8 to 9 May 2007 and 11 to 15 February 2008. At the first of these the Panel concluded that he had little or no insight into his actions and noted that his efforts to keep himself up-to-date had been limited to attendance at five clinical sessions (that was at North Tees NHS Trust) and the reading of two journals. His registration was suspended for a further nine months. At the second the Panel expressed disappointment that, despite being given a number of opportunities to address the matter, he had not accepted that his fitness to practise was impaired, or had ever been impaired, by reason of misconduct. His registration was suspended for a further nine months. When his name was erased from the register at the third Panel hearing it was noted that he still did not seem to have understood or appreciated the serious nature of his misconduct and that he continued to exhibit a total lack of insight into his misconduct.

[129] My impression is that he feels a great sense of injustice which has deflected him from making realistic efforts to secure employment as a surgeon at a lower level, as a consultant following reaccreditation or in some other capacity. In his evidence he did not demonstrate any particular enthusiasm to justify such efforts as he had made.

[130] The presentation of the case for recovery of legal expenses became rather complicated. The claim was confined to those incurred in resisting the withdrawal of the accreditation. The fee notes rendered to the pursuer that were presented to vouch the claim included not only work done on the accreditation issue but also work relating to the unfair dismissal claim. The solicitor, Mr Campbell, was embarrassed to be unable to explain clearly exactly what fees and outlays related to each. In the end of the day I am persuaded that Mr Ferguson's approach comes closest to an accurate attribution of the charges. I accept Mr Campbell's evidence that 75% of the solicitor's charges related to the accreditation issue. However it does appear that, out of counsel's fees totalling £35,779.52, £27,847.51 related to the issue of accreditation, being the total of four of the six items on page 3 of production 6/131, viz £22,450, £1,250, £3,928.76 and £218.75. The solicitor's fees are set out on No.6/134 of process as £20,760.49, of which 75% is £15,570.38. Mr Ferguson conceded that the sum of £3,805.40 reflected in 6/129 of process should also be awarded.

[131] A proper final calculation could only be made in the light of any findings favourable to the pursuer on liability and quantum.


[132] For the reasons set out earlier in this opinion I shall repel the pleas-in-law for the pursuer, repel the second plea-in-law for the defenders of consent, repel the first and sixth pleas-in-law for the defenders, sustain their third, fourth and fifth pleas-in-law and pronounce decree of absolvitor.