LATE SKELETON ARGUMENTS, ADJOURNMENTS AND THE OVERRIDING OBJECTIVE

March 9, 2017 · by · in Adjournments, Appeals, Written advocacy

In Owgilo -v- The General Medical Council [2017] EWHC 419(Admin) Mr Justice Dove considered the situation when a witness statement was served late and the applicant requested an adjournment.  The overriding objective played a prominent part in the decisions made.

“…this appeal has been listed for a significant period of time. There is, in this court, a need to be mindful of the impact on other litigants and the other burdens of litigation on this court that is caused by court time being wasted by cases being adjourned and then having to be relisted. That is a further factor which, in my view, tells in favour of the application for adjournment being dismissed and I do so.”

THE CASE

The appellant was appealing a decision of the Medical Practitioners Tribunal.  The appeal had been listed for some time. The appellant served a new skeleton argument, raising new issues, the day before the appeal was heard.  The judge ruled on that issue first.

THE JUDGMENT

RULING
(i) Concerning the appellant’s skeleton
    1. MR JUSTICE DOVE: This is an application to effectively amend the grounds of appeal in this case. The original grounds of appeal were put on three bases. Firstly, the refusal to adjourn the proceedings, which it was said was wrong. Secondly, the decision to immediately suspend registration was submitted to be wrong. Thirdly, it was submitted that the ultimate sanction arrived at by the panel in this case was one which was wrong and that the findings on which they based their conclusions did not merit the erasure of the appellant.
    2. A skeleton argument was served, it seems, yesterday afternoon. I received the skeleton argument a little after 10.45 am this morning. In that skeleton argument, new points are raised in relation to an alleged misdirection as to the appropriate rules of the General Medical Council Fitness to Practise Rules 2004, upon on which the adjournment application proceeded. It is submitted in the context of the new skeleton argument that rule 31 (as opposed to rule 29.2) was the relevant rule for the purposes of the assessment of the adjournment. Furthermore, submissions are made as to the voluntary erasure of the appellant which had been approved with effect from 29 February 2016 and therefore prior to the hearing before Lang J on 9 March 2016, and the implications of that voluntary erasure in terms of the status of the proceedings. That is, as will be evident from what I have already said, a fresh point raised for the first time in this skeleton argument.
    3. The application to rely upon the new skeleton argument is resisted by Mr Hare on behalf of the respondent. He draws attention to the fact that a judicial review application was issued in relation to the acceptance of the voluntarily erasure by the GMC and that that judicial review has been refused on the papers and certified as totally without merit. He also objects to reliance on new arguments, bearing in mind that the appellant’s skeleton argument was chased by those who instruct him and in response, during the course of it being chased, the appellant’s solicitor indicated that there was no prejudice to the respondent as they already had the appellant’s grounds of appeal.
    4. In assessing the question of whether or not I should grant permission for this skeleton argument to be relied upon, I need to bear in mind the over-riding objective and also the consequences which might arise were these new arguments to be deployed. In my view, this skeleton argument, raising these fresh grounds has arrived far too late in these proceedings. It was due months ago. In those circumstances, it seems to me there is a substantial hill for Dr Wilcox to climb to persuade me that these fresh arguments, unadvertised until close of play yesterday, should be sprung upon the respondent.
    5. I can see no sensible reason (and none has been offered) as to why this skeleton argument with its fresh material has been produced at such a late stage in the proceedings. I am unprepared to imperil the hearing of this appeal today by granting the leave to rely upon these arguments to the extent that fresh and additional points are raised which would undoubtedly require commissioning of additional material, for instance, in relation to the dismissal of the judicial review. In those circumstances, I am not proposing to grant permission for the skeleton argument to be relied upon.
    6. Dr Wilcox indicates that if that were to be my conclusion, he would wish to make an adjournment application. I shall hear him now as to whether or not there are any particular reasons why this appeal should be adjourned and will then permit Mr Hare to respond to those submissions. He has already indicated that he wishes to proceed today.
    7. (Counsel’s submissions were heard by the learned judge)
RULING
(ii) Concerning adjournment
  1. MR JUSTICE DOVE: Dr Wilcox has made submissions that this appeal should be adjourned on the basis that there was a failure of the panel to engage in the exercise required by paragraph 31 of the rules, that is to say, assessing prejudice to the appellant in proceeding in his absence along the lines of the principles in criminal law in relation to trial in the absence of a defendant. He submits that because that is a significant point in the appellant’s case, it is a justification for adjournment. The opportunity to serve the skeleton argument, which I have already refused permission to rely upon could be admitted and the exploration of that argument undertaken. Having explored the point with Dr Wilcox, I am satisfied that that is a submission which is not arguable.
  2. The reality here is that the appellant was represented, indeed represented by the same firm who instruct Dr Wilcox, at the panel’s hearing. When the panel had the application for an adjournment submitted to it, there was no reliance on any prejudice that might be caused to the appellant as a consequence of his absence. The application to adjourn was put on separate bases to do with appeals against Lang J’s order and also a submission that there would be judicial review of the decision to admit him to the Register after he had applied for voluntarily erasure. Thus, the point that he has raised is not one that was before the panel as a basis upon which adjournment could properly be granted. It seems to me, therefore, it is not arguable that there was any error on the part of the panel in failing to engage with a point that was never raised by the competent representative who appeared before the panel on behalf of the appellant.
  3. In the circumstances, therefore, there is no justifiable basis for the adjournment. I should add that this appeal has been listed for a significant period of time. There is, in this court, a need to be mindful of the impact on other litigants and the other burdens of litigation on this court that is caused by court time being wasted by cases being adjourned and then having to be relisted. That is a further factor which, in my view, tells in favour of the application for adjournment being dismissed and I do so.
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