For all the commentary which they attracted, the Supreme Court’s comments on the Ghosh test in its judgment on Ivey were obiter.
In DPP v Patterson Leveson P observed they were ‘clearly obiter, and as a matter of precedent the court is bound by Ghosh, although the Court of Appeal could depart from that decision without the matter returning to the Supreme Court.’
The first post-Ivey High Court decision from the professional disciplinary sphere was handed down today. As the parties agreed the Tribunal had been wrong to apply the Ghosh test, the status of the comments in Ivey were not in issue.
General Medical Council v Krishnan
At a hearing before the Medical Practitioner’s Tribunal (MPT) in April 2017, K was found not to have been dishonest in relation to working for Employer B whilst on sick leave from Employer A. The Tribunal reached that view on the application of the Ghosh test for dishonesty. They determined that the first limb of the test was made out but not the second. The Tribunal determined that K’s fitness to practise was not impaired. The General Medical Council (GMC) appealed.
K filed a cross appeal/judicial review seeking the quashing of the Tribunal’s finding that the first limb of the Ghosh test for dishonesty was met in his case. In short, he argued that the first limb of the Ghosh test had been misapplied. The GMC argued that the second limb of the Ghosh test had been misapplied. Plainly, the Supreme Court’s decision in Ivey cast doubt on the validity of either of those questions and the result was the judicial equivalent of a scoreless draw.
The MPT had decided the case applying the Ghosh test in accordance with the legal assessor’s advice. The parties agreed that the case of Ivey now applied and consequently the Judge declined the invitation to determine whether the Tribunal had erred in applying the second limb of the Ghosh test. As he observed, Ivey has superseded the grounds of the Appellant’s appeal and K’s judicial review.
The Court was required to consider the specific issue of whether the first stage (objective) Ghosh test was the same as the second stage (objective) Ivey test. Relying on the MPT’s observation that it was ‘..in no doubt that the objective test…is met’, the GMC sought to persuade the Court that that was the end of the matter. The MPT’s finding on the second limb of the Ghosh test should be quashed leaving nothing to be referred back to the Tribunal as the objective for dishonesty had been met.
However, the Court accepted the Respondent’s submissions that the objective tests in Ghosh and Ivey are different. The Court noted that the objective test in Ghosh had to be applied without reference to the defendant’s actual state of mind as to knowledge or belief as to facts.
Having determined that the Tribunal had applied the wrong test, the Court observed that the application of the correct test should be a matter for the Tribunal ‘which has heard all of the evidence, applying the correct legal and factual approach in accordance with Ivey.’
The Court directed that each party should pay its own costs.
The question of whether the High Court continued to be bound by Ghosh in the context of professional disciplinary appeals was avoided in this case as the parties agreed that Ivey correctly stated the law. As Leveson P noted in Patterson:
‘Given the terms of the unanimous observations of the Supreme Court expressed by Lord Hughes, who does not shy from asserting that Ghosh does not correctly represent the law, it is difficult to imagine the Court of Appeal preferring Ghosh to Ivey in the future.’
Legal assessors dealing with first instance hearings will need to consider the advice which they give to panels when the issue of dishonesty arises.
Take home points
It seems likely that pragmatism will rule the day, as it did in Krishnan, and that Ivey directions will replace Ghosh directions in disciplinary hearings notwithstanding the scope for arguments about the binding nature of Ghosh as an authority.
As the first judicial decision addressing the application of Ivey in the context of regulatory proceedings, the Krishnan decision is authority, if it were needed, for the proposition that the objective aspects of the Ghosh and Ivey test are different.