C1/2004/2706
Neutral Citation Number: [2006] EWCA Civ 364
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE PITCHFORD 
Royal Courts of Justice 
Strand 
London, WC2 

Tuesday, 31st January 2006
 B E F O R E:
LORD JUSTICE AULD
LORD JUSTICE SEDLEY
LORD JUSTICE JONATHAN PARKER
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THE QUEEN ON THE APPLICATION OF 
DEBORAH HENSHALL         CLAIMANT/APPELLANT
- v -
THE GENERAL MEDICAL COUNCIL DEFENDANT/RESPONDENT
and
(1) PROFESSOR DAVID SOUTHALL
(2) DR ANDREW SPENCER
(3) DR MARTIN SAMUELS     	INTERESTED PARTIES
  
(DAR Transcript of 
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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MR P HAVERS QC & MR I WISE (instructed by Messrs Irwin Mitchell, St Peters House, Hartshead, Sheffield S1 2EL) appeared on behalf of the Appellant
MR M SHAW QC (instructed by Messrs Field Fisher Waterhouse, London EC3N 2AA) appeared on behalf of the Respondent
MR A KENNEDY (instructed by Messrs Hempsons) appeared on behalf of the First Interested Party
MISS M O’ROURKE (instructed by Messrs Radcliffes LeBrasseur, London, SW1P 3SJ) appeared on behalf of the Second & Third Interested Parties
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J U D G M E N T
1.	LORD JUSTICE AULD:  The court in its order of 28 June allowed this appeal of Deborah Henshall and, by a majority, ordered that her complaint against the three doctors, the interested parties in this case, Professor David Southall, Dr Andrew Spencer and Dr Martin Samuels be remitted to a freshly constituted Preliminary Proceedings Committee (“PPC”) for reconsideration. At the request of Miss O’Rourke, on behalf of Drs Spencer and Samuels, the court has reconvened to reconsider, in the case of those two interested parties, whether it has, and if so, whether it should exercise, a discretion to remit. The argument of Miss O’Rourke, for which we are grateful, is that in respect of two matters, where the court has found the PPC’s conduct of the matter lacking, only one of them touches Dr Spencer and Dr Samuels – Dr Spencer hardly at all, and Dr Samuels a little more.  That is the PPC’s reliance on the British Medical Journal article, the Hey and Chalmers article, which this court, by a majority, as I have said, found to be in error.  

2.	Having considered her submissions and those of Mr Havers for Miss Henshall as to the significance of the reliance of the PPC on the British Medical Journal article in relation to Dr Spencer and Dr Samuels, we consider, and do so unanimously, that the proper approach of the court would be to adhere to the order originally expressed.  In our view, the article loomed large in the considerations of the PPC, generally as between the three doctors, and not in an insignificant way in respect of Dr Spencer and Dr Samuels.  Accordingly, we consider that the order should stand as drawn, save only subject to this amendment, that instead of the appellant’s complaint in relation to each one of these three doctors, considered individually, being remitted to a freshly constituted PPC, it should be remitted to the General Medical Council’s Investigations Committee, established under a new procedure but applying the former statutory scheme, namely that under the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee Procedure Rules 1988.  The matter should be remitted with the utmost expedition. 

3.	It is common ground that the appellant’s costs of the appeal in the court below should be borne by the defendant, the General Medical Council, and that there be detailed assessment of the appellant’s costs in accordance with the Community Legal Service Cost Regulations of 2000, and, in addition, that the costs of the interested parties, the doctors, should lie where they fall.

Order:  Application allowed.