The High Court has refused Samuel Van Eeden permission to add a constitutional claim to his challenge against a Medical Council inquiry, after the application was made on the first day of trial.
Mr Justice Twomey delivered the ex tempore judgment on 28 July 2021. He rejected the application to extend the existing grounds of relief to include a declaration that the Council’s practices contravened Article 38 of the Constitution by making findings of criminal conduct, a matter the proposed claim said was reserved to courts.
The underlying proceedings concern a Notice of Inquiry issued by the Medical Council on 22 September 2016. It asked whether Dr Van Eeden had engaged in professional misconduct or poor professional performance. The notice followed his acquittal in the District Court on charges relating to importing medicinal products without marketing or manufacturing authorisation.
In the substantive case, Mr Van Eeden seeks declarations focused on alleged discrimination and breach of the constitutional equality guarantee, as well as claims concerning res judicata and the Council’s powers. The judgment on this motion did not determine those claims or decide whether the proposed Article 38 argument was correct.
The court said no explanation had been given for not raising the Article 38 issue earlier, although the relevant facts had been available since 2016. It also noted that the claim had not been made in Mr Van Eeden’s unsuccessful 2017 judicial review proceedings. The amendment application took up the first day of a four-day hearing, and the court considered that the defendants would have to respond to a potentially substantial new legal issue after preparing their submissions.
The judge also considered that the proceedings were judicial review in substance, because their effective aim was to quash the Notice of Inquiry. He said judicial review time-limit principles applied by analogy, and that allowing a further ground of challenge almost five years after the notice would run against the interest in resolving legal challenges promptly.
The judgment observed that no Fitness to Practise Committee inquiry had taken place in the intervening period. It did not decide the merits of the wider challenge or order that such an inquiry proceed. The order was limited to refusing the requested amendment.