Muscat v Health Professions Council: CA 21 Oct 2009

A radiographer had asked the court to reconsider its verdict in a disciplinary action. He was said to have caused two female patients (on different occasions) to remove their clothing for the purposes of carrying out a scan, when it was not required. He denied the incidents, accusing the two patients of lying. He also contended that their recollections were unreliable because of the effects on them of analgesia. Shortly before the hearing before Silber J, the Appellant sought to introduce new evidence, which included a report from a pharmacologist, who opined as to the probable or possible effects on the complainants of the drugs which they had been given shortly before the incidents in question.
Held: The appeal failed.
As to the admission of new evidence, Smith LJ said that in such a case: ‘if one took the view that this was ordinary litigation, there would be an overwhelming case against the admission of this evidence because there was absolutely no excuse for the failure to obtain the evidence for the hearing and, when the evidence was considered, it was not of great significance. However, Mr Edis submitted that this was not ordinary litigation. There was a real public interest in the outcome of the proceedings. It was important from the public perspective, that the correct decision was reached. It is not in the public interest that a qualified health professional, capable of giving good service to patients, should be struck off his professional register.
I would accept that that is a factor to be taken into account and, in so far as the judge did not mention it, his decision is, in my view, open to review. However, when weighing up the importance of this factor, it is necessary in my view to consider a factor which I mentioned earlier, namely the Committee’s power to review its own decision in relation to a strike off order if new evidence becomes available. This was not an issue which was raised before the judge. It was raised by this Court at the outset of the hearing, as it seemed to us that, if there was a power to review, that was the course which the Appellant should take to secure the admission of fresh evidence. However, as Ms Richards pointed out, the right of appeal co-exists with the right to seek a review and the Appellant had originally taken a number of points on the appeal which would not have been appropriate on review. Accordingly, given the range of issues which the Appellant had raised, she did not suggest that review rather than appeal would have been the appropriate course. However, now that the issue was narrowed to the admission of fresh evidence, she invited us to determine the appeal bearing in mind that there was an alternative course for the Appellant to take (review), even at this late stage.’


Smith, Longmore, Maurice Kay LJJ


[2009] EWCA Civ 1090




England and Wales


CitedLadd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .

Cited by:

CitedTZ v General Medical Council Admn 17-Apr-2015
Appeal against decision of a Fitness to Practise Panel holding that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Litigation Practice

Updated: 04 August 2022; Ref: scu.376232