The High Court proposed to strike out a doctor’s judicial review of the Medical Council’s decision to remove him from the Register of Medical Practitioners, after he did not swear a personal affidavit required as a condition of permission to bring the case.
In a judgment delivered on 12 February 2016, Ms Justice Baker said the applicant had failed to comply with an undertaking given on his behalf when leave for judicial review was granted. The undertaking required him personally to swear an affidavit for the substantive hearing.
The Medical Council had decided on 19 September 2015 to remove the applicant from the register. That decision and its publication had been stayed pending the judicial review. The applicant sought to challenge the inquiry procedure, alleging breaches of fair procedures and natural and constitutional justice. Those allegations were not determined in this judgment.
The applicant’s solicitor, Catherine Martin, said in a supplemental affidavit that her client was outside the jurisdiction and had religious difficulties with some terms in the affidavit. The judgment records that he is of Sudanese birth and an Irish citizen. It also notes he had previously sworn an affidavit in another application and had been advised of ways to provide affidavit evidence consistent with his religious beliefs. The court said no instructions had been received from him since June 2015 about how he could comply.
Justice Baker held that the personal affidavit was a condition precedent to proceeding to the substantive hearing. She said the order granting leave set the limits of the court’s jurisdiction, and that she could not hear the substantive application without the affidavit. She also considered the alternative that the issue was discretionary, but concluded she should not allow the case to proceed because no evidence had been offered to support varying or discharging the undertaking.
The judgment says the court is entitled to release a party from an undertaking, but no such application had been made. Justice Baker said the failure to honour the undertaking weighed heavily in her decision.
She concluded: “I therefore propose to strike out the application for judicial review.” The judgment does not record a separate formal strike-out order. It did not decide whether the Medical Council’s inquiry breached fair procedures or natural justice.