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Fresh evidence

In this case the Court of Appeal upheld a decision of Silber J. dismissing the appeal on the ground of fresh evidence of a radiographer, against the decision of a panel of the Conduct and Competence Committee of the Health Professions Council, which had struck his name off the register of radiographers after finding two allegations of misconduct proved against him.

The Court of Appeal held that if one took the view that this was ordinary litigation, there would be an overwhelming case against the admission of the 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, there was a real public interest in the outcome of the proceedings and that was a factor that had to be taken into account.

The Court went on to hold that Article 30 of the Health Professions Order 2001 (which provides for review of a striking off order in cases where fresh evidence might make a difference) recognises the importance, in the public interest, of the Committee making the right decision. The existence of the right to a review was a factor to be taken into account when exercising the discretion as to whether the Court should admit fresh evidence on appeal. In the Court’s view the review provision met that public interest.

Muscat v Health Professions Council [2009] EWCA Civ 1090, reversing the judgment of Silber J. at first instance.


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