The adjournment or postponement of disciplinary and regulatory proceedings to allow the judicial review of a decision
A difficult balance needs to be struck when a disciplinary tribunal is asked to postpone or adjourn proceedings to allow a party to bring judicial review proceedings to challenge a decision. On the one hand, the adjournment will bring delay and increased costs and may cause considerable distress or inconvenience to witnesses. On the other hand, some challengeable decisions are best corrected early before the proceedings are tainted. This article considers the relevant considerations which ought to inform the decisions of tribunals when faced with this dilemma and suggests some practical guidance.
Mahfouz: the adjournment of hearings underway to allow the judicial review of a decision of the Panel
In the well-known case of R (Mahfouz) v The Professional Conduct Committee of the General Medical Council  EWCA Civ 233, the Court of Appeal allowed in part M’s appeal, concluding that a GMC Professional Conduct Committee (“PCC”) should have allowed M’s application to adjourn to apply to the High Court for judicial review. The decision challenged was that of the PCC in declining to discharge themselves after some of their number had seen prejudicial material published in newspapers which revealed that the practitioner had previously been struck off.
The Court rejected the GMC’s suggestion that there was a general principle discouraging the High Court from intervening in cases underway, holding (at para 45) that the cases relied upon by the GMC had distinguishing features: first, schemes in which speed of resolution was essential;1 and, second, schemes in which an alternative remedy affords a cheaper and quicker remedy than judicial review.2
The Court accepted the GMC’s argument (para 44) that “in general it is preferable for proceedings to be allowed to take their course and for a challenge to their validity to be taken by way of appeal”. The Court acknowledged that “[C]onsideration must also be given to the difficulty of organising such proceedings in a complex case and the potential inconvenience to witnesses who may have to make special arrangements to attend the hearing and may be reluctant to repeat the experience”. However, “[t]here can be no inflexible rule” (ibid) and in the “special circumstances … justice and the appearance of justice required at least an opportunity to be given for that matter [whether the PCC should have discharged themselves] to be raised before a High Court Judge” (para 45).
It is important to note quite how special the circumstances were which caused the Court of Appeal to depart from the general principle on the particular facts of the case. They included that:
- The application was, in the first instance, for an adjournment of no more than 27 hours to permit an urgent High Court application to be made (para 14). Given that time-frame, in the Court’s judgement, nobody but M’s counsel in the GMC proceedings could realistically make the High Court application and M was left with the invidious choice, if the proceedings continued, of having to choose in which of the two concurrent proceedings he would be represented by counsel (paras 39 to 41). Equally, in those circumstances, the GMC might well have wanted its own counsel to attend the High Court and respond to the application for a stay (para 45). The Court of Appeal noted that the PCC might have guarded against the risk that the contended time frame for obtaining relief was unrealistic by giving “notice that the adjournment would not extend beyond 27 hours, without a specific order from the Court” (para 40).
- M was funding the proceedings himself and would be at risk of paying twice if the proceedings were fundamentally flawed (para 43).
- The issue arose on the second day of an 8 day hearing in a case which was evidently of some complexity, concerning clinical and other allegations in relation to M’s practice as a cosmetic surgeon in connection with a number of patients; and the allegations arose from old events going back 3 years (paras 2, 43 and 45).
- The issue of whether the prejudicial publicity required the discharge of the Committee was accepted as being an important one requiring detailed legal argument and there was a difference of opinion between the PCC and their legal assessor as to the correct test in relation to recusal on the ground of bias(paras 10-13 and 45).
The ‘alternative remedy’ cases
The Court of Appeal in Mahfouz did not consider the case law concerned with the circumstances in which judicial review will be permitted notwithstanding the existence of an alternative remedy. However, at first instance, Davis J did. He held that:3
“…in the rather special circumstances of this particular case, an application for judicial review, as made by Dr Mahfouz, was a proper procedure to adopt. The considerations, of course, might be very different if such an application were made at a conclusion of a substantive hearing, when full findings had been made. But that emphatically was not the position here.
”The general principle is that judicial review will not be permitted where there is an alternative remedy except where the initiation of proceedings would cause unfairness amounting to an abuse of power.4 That may arise in disciplinary cases where there has been an extreme departure from the regulatory framework or delay.5
The question should be addressed at the permission stage and requires the High Court to consider all the circumstances in order to determine whether the case is exceptional. In R v Falmouth and Truro Port Health Authority ex p South West Water Ltd  3 WLR 1464 (CA) Simon Brown LJ said (at p1490):
“ …The critical decision in an alternative remedy case, certainly one which requires a stay, is that taken at the grant of permission stage. If the applicant has a statutory right of appeal, permission should only exceptionally be given; rarer still will permission be appropriate in a case concerning public safety. The judge should, however, have regard to all relevant circumstances which typically will include, besides any public health consideration, the comparative speed, expense and finality of the alternative processes, the need and scope for fact finding, the desirability of an authoritative ruling on any point of law arising and (perhaps) the apparent strength of the applicant’s substantive challenge.”
That test has been applied in cases concerned with police disciplinary proceedings: R. (on the application of Redgrave) v Commissioner of Police of the Metropolis  EWHC 1074 (Admin);6 R (Wilkinson) v Chief Constable of West Yorkshire  EWHC 2353 (Admin).7 In those cases, judicial review was considered to be an appropriate remedy, notwithstanding the existence of a statutory right of appeal, where the targeted decisions were preliminary rulings on whether to dismiss or stay proceedings on the ground that a fair hearing was no longer possible as a result of procedural irregularity and/or delay.
However, the High Court is more inclined to intervene in the first stage of proceedings in which there is a right of appeal where it is possible to prevent some specific identifiable form of prospective unfairness: R. (S) v Knowsley NHS Primary Care Trust R. (Ghosh) v Northumberland NHS Care Trust  EWHC 26 (Admin), per Toulson J at para 57.
(a) Panels faced with an application by a party for the adjournment of proceedings underway in order to challenge by judicial review the Panel’s own decision should consider the following;
(i) There is a presumption against the adjournment of proceedings underway in order to allow a party to seek judicial review of a Panel’s decision in the sense that exceptional circumstances are required. However, it cannot be said that there is a general rule against such adjournments; exceptional circumstances do exist in which the High Court will intervene both to stay proceedings where an adjournment has not been allowed and to quash decisions under challenge. That said, a Panel should not be expected routinely to doubt the correctness of its own decisions in the absence of some objective basis for concluding that there is a particular possibility for error and that to proceed in the face of that possibility carries grave risk.
(ii) A Panel considering whether to allow an adjournment should undertake a balancing exercise which takes into account all the circumstances and, in particular, the potential for prejudice to the disciplined person in going ahead, the potential for prejudice to the proceedings in not going ahead and the desirability – other things being equal – of the timely disposal of proceedings.
(iii) Where the potential prejudice in going ahead to the person disciplined is extreme or irremediable and the prejudice to the proceedings in not going ahead limited, provided that the Panel can exceptionally discern an objective basis for doubting its own decision, the balance is tipped in favour of an adjournment.
(iv) Factors militating in favour of an adjournment are where:
- the challenged decision relates to the global fairness of the proceedings, such as whether the proceedings should be stayed as an abuse of process or whether the particular Panel should discharge itself on the ground of bias or lack of impartiality;
- to proceed on the basis that the challenged decision is correct would result in an irremediable step of consequence and would be destructive of the purpose for which judicial review is sought, for example whether sensitive, confidential or private information is ventilated in a public hearing;
- the proceedings are at an early stage and are lengthy and/or complex with the result that there would be a substantial benefit in avoiding protracted proceedings which might be tainted by error;
- a decision by the High Court can be obtained speedily or the adjournment is made conditional upon a speedy response (see (a)(vi) below) and only those representing the person disciplined could reasonably be expected to pursue the High Court remedy;
- there are particular reasons why a rehearing would be undesirable for the person disciplined, e.g. he is privately funding his representation;
- the disciplined person is in jeopardy of a severe sanction or damage to his reputation;
- the challenge is demonstrably arguable e.g. because there are divided opinions as to the correct legal principles or it concerns a difficult point of law to which the answer is unclear. (v) Factors militating against an adjournment (often the flip-side of the above) are where:
- the issue cannot reasonably be said to affect the overall fairness of the proceedings;
- the proceedings are short and simple with the result that the judicial review of the final determination of the Panel or the pursuit of an alternative remedy (such as a statutory appeal) is more proportionate than the judicial review of proceedings underway (in that the former are comparably speedy, possibly cheaper and, in any event, generally speaking it is more undesirable to delay a short hearing than to risk having to redo it);
- the point arises at a late stage in long and complex proceedings when, similarly, it is more proportionate to challenge the final determination;
- the decision under challenge does not impact with immediacy on the disciplinary proceedings so as to cause prejudice or harm and it is reasonable to expect the legal team of the person disciplined to manage concurrently the disciplinary proceedings and the pursuit of relief in the High Court;
- there are particular reasons why the proceedings would be irremediably prejudiced if they were delayed e.g. circumstances relating to the availability of witnesses or their vulnerability or the quality of the evidence which they might give or the availability of evidence;
- the disciplined person is not realistically in jeopardy of a severe sanction or damage to his reputation;
- the challenge is manifestly lacking in merit;
- speed of resolution is an essential feature of the particular regulatory scheme.
(vi) It is good practice for a Panel to retain a grip on what might otherwise be an open-ended timescale when proceedings are adjourned, e.g. by directing that the adjournment does not extend beyond a certain number of hours, without a specific order from the High Court (as suggested by the Court of Appeal in Mahfouz) or, perhaps, without further order of the Panel itself. If relief cannot be obtained within a short period of time, the assessment of whether an adjournment should be allowed may well change and certainly calls for reconsideration.
(b) Representatives of the parties in hearings underway should bear in mind the same principles. There are circumstances in which those representing the person disciplined should be bold and proactive even to the point of absenting themselves from ongoing proceedings. Similarly, those representing the regulator should, in appropriate circumstances, concede that an adjournment (at least one limited in time) is the best option.