Supreme Court allows appeal dismissing judicial review where original guidelines applied and evidence rejected without cross-examination.

THE SUPREME COURT

Appeal No: 2017/147

Clarke C.J.

O’Donnell J.

MacMenamin J.

Dunne J.

Finlay Geoghegan J.

Between/

RAS Medical Limited trading as Park West Clinic

Applicant/Respondent

and

Royal College of Surgeons in Ireland

Respondent/Appellant

Judgment of the Chief Justice, Mr. Justice Clarke, delivered the 5th February, 2019

1. Introduction

1.1 A central issue in these proceedings generally concerns the question as to which of two guidelines were applied in relation to an

application for accreditation of an event involving live plastic surgery. While that straightforward issue of fact would not have given

rise to an issue of general public importance justifying leave to appeal to this Court, the manner in which an appeal by the

applicant/respondent (“RAS”) was dealt with by the Court of Appeal led to a question of more general application concerning the way

in which the Court of Appeal approached the facts.

1.2 Under powers provided for in s. 91(4) of the Medical Practitioners Act 2007, the Medical Council has delegated to the

appellant/respondent (“RCSI”), amongst other bodies, the entitlement to accredit certain events for continuing professional

development (“CPD”) purposes. RAS is a private medical clinic and applied for such a CPD accreditation in respect of the relevant

event. On the 9th July 2013, RCSI refused the accreditation sought.

1.3 RAS brought judicial review proceedings on a range of grounds, all of which were rejected by the High Court (Noonan J.) (RAS

Medical Limited v. Royal College of Surgeons in Ireland [2016] IEHC 198).

1.4 From that decision of Noonan J., RAS brought an appeal to the Court of Appeal. In the main, the grounds advanced on behalf of

RAS on its appeal were rejected. However, the Court of Appeal found that RCSI had, as a matter of fact, wrongly applied new

guidelines which, it was said, were not applicable to the application made by RAS. On that basis, the Court of Appeal overturned the

decision of the High Court and quashed the refusal of the application for CPD accreditation (Ryan P. on behalf of the Court) (RAS

Medical Limited v. Royal College of Surgeons in Ireland [2017] IECA 228). It is as against that decision of the Court of Appeal that

RCSI has brought a further appeal to this Court. In order to understand the issue of general importance which arises it is appropriate

to turn, first, to the determination granting leave to appeal.

2. Leave to Appeal

2.1 By determination dated the 2nd February 2018 (RAS Medical Limited v. The Royal College of Surgeons Ireland [2018] IESCDET 26),

this Court granted leave to RCSI to appeal the decision of the Court of Appeal. The Court stated as follows at paras. 7 and 8 of that

determination:-

“[T]he Court is satisfied that the circumstances in which certain discovered documents came to be before the courts

below, be considered by those courts and form the basis, at least in part, of the judgment, gives rise to an issue of

general public importance not least because it is of some significance to bring further clarity to the way in which

discovered documents can be deployed in all proceedings but in particular proceedings which are, prima facie, likely to be

heard on affidavit.

The Court will, therefore, grant leave to appeal on the grounds set out in the notice of application for leave to appeal.

However, it should be emphasised that it will be open to the case management judge to refine or adjust those grounds so

as to ensure that the broad issue identified in this determination as justifying leave to appeal can properly be addressed

by the Court.”

2.2 The grounds as set out in the notice of application for leave to appeal were as follows:-

“The Respondent will contend that it was never appropriate for a Court to reach a finding of fact contrary to the sworn

testimony of a witness based merely upon documents which have not been put to the witness in cross-examination.

Indeed, in judicial review it has long been recognised that discovery is a rarity because the facts can seldom be a matter

of relevant dispute. In KA v. Minister for Justice [2003] 2 IR 93 Finlay Geoghegan J approved a test articulated by

Bingham M.R. in R. v Secretary of State for Health, ex parte Hackney London Borough Council when he said:

‘Have they raised a factual issue of sufficient substance, or adduced evidence which grounds a reasonable suspicion

of unlawfulness, such that the application cannot be fairly resolved without discovery.’

In this case the Applicant succeeded in persuading the Court that discovery was required for the very reason that there

was a factual issue as to which guidelines had been applied. However, having obtained that discovery they chose not to

cross-examine Professor Tierney. His sworn testimony was therefore rejected on the basis of a review of the documents.

Disputed facts, especially ones going to the heart of the resolution of the case at hearing ought not to be determined in

this way.”

2.3 The factual circumstances giving rise to that issue need next be explained.

3. The Facts

3.1 As noted above, on the 20th June 2013, Dr. Ahmed Salman (“Dr. Salman”), the Medical Director of RAS, applied on behalf of RAS

to RCSI for CPD accreditation for a one-day master class in plastic surgery which was to involve three live surgeries. Five speakers

were to appear at the event, one of whom was Dr. Salman.

(a) Correspondence between the Parties

3.2 On the 28th June 2013, Professor Sean Tierney, the Dean of Professional Development and Practice of RCSI (“Professor Tierney”),

emailed Dr. Salman seeking additional information in relation to the application. The email stated:-

“This application was discussed and reviewed at our recent Professional Development and Practice Committee. It was

recommended that before we can approve this event for CPD credits, we would require the following information:

• A list of sponsors and how they are connected to the event e.g. unrestricted grant, sponsorship of prizes, breaks,

meals.

• A list of speakers/facilitators which include details about the posts they hold, where they are based and what speaking

experience they have in relation to the topic discussed.

• A name of a consultant who is on the Medical Council Specialist Division of the Register in Plastic Surgery who supports

this course.

On receipt of this information we will process your application for CPD credits.

If you require any further clarification on the above, please don’t hesitate to contact me.”

3.3 On the 8th July 2013, Dr. Salman emailed RCSI, attaching CVs for three of the five speakers at the event. The CV of Dr.

Mohammad Jawad stated that he was on the Irish Medical Council register, which was incorrect. Later that day, a further email was

sent from RAS to RCSI attaching the CVs of the two other speakers at the event. This email further stated, “The conference has two

world renowned plastic surgeons on the faculty, Dr Mohammad Jawad and Dr Constatine Stan. Dr Jawad is on the medical council

register and supports this master class.” It is accepted that Dr. Jawad was not in fact on the Medical Council register, as suggested

in these emails.

3.4 On the 9th July 2013, Professor Tierney emailed Dr. Salman indicating that, following a review by the RCSI Professional

Development and Practice Committee (“PDPC”) of the application and the information supplied, the application for CPD accreditation

had been refused. The email stated, “It is a requirement of the Professional Development Committee that the Chief organiser of the

event should be on the Specialist Register in Plastic Surgery and as this is not the case, we are unable to approve this event for CPD

purposes.”

3.5 On the 10th July 2013, Dr. Salman replied to Professor Tierney’s email, stating:-

“Thank you for your email below, please forward me the published requirements for CPD points approval, that clearly

[state] the reason you have given below.

The points are given for the information quality and the standards of the speakers. You have sanctioned CPD points for

GP training organised by private hospital.

I would also wish to request a meeting with Prof Tierney to further discuss the issue once I have received your reply for

the requirements above.”

3.6 On the 15th July 2013, Professor Tierney replied to the above email, stating:-

“Thank you for your email. As requested, please find attached the latest version of the Guidelines for the approval of

Educational Events for CPD which were approved at a recent meeting of the Professional Development & Practice

Committee.

If you wish to appeal the decision outlined in my email dated 9th July 2013, you may appeal the decision in writing. Such

appeals should be directed to:

The Chair, Professional Development Committee, RCSI, 123 St Stephens Green, D2.

The Appeal will be considered at the next meeting of the Committee.”

3.7 The guidelines attached to the email were new guidelines. These guidelines were not available online until the 15th July 2013. The

guidelines stated as follows under the heading “Criteria for Approval of CPD Events”:-

“8. The Clinical Lead/Chief organiser who is responsible for the application should be on the Specialist Division of the

Medical Council Register.”

3.8 Dr. Salman responded to Professor Tierney’s email on the same day, stating:-

“I would like to draw your attention, that the new criteria was not published on the day we applied nor the date you have

sent us your decision of refusal. These new guidelines only became public in the last 24hrs. I would also like to draw to

your attention that the chairman of this meeting is Dr C Stan who is a specialist plastic surgeon. Also Mr Mohammed

Jawad is also a plastic surgeon and on the irish medical council specialist register. I am sure you are aware of these facts

from their CV. The organiser is Park west Clinic.

I have forwarded the matter to my legal team to deal with it.”

3.9 On that same day, solicitors acting for RAS wrote to Professor Tierney and also to the Medical Council. The letter addressed to

Professor Tierney complained of the fact that the requirement that the “Chief Organiser” of the event should be on the specialist

register was not a published requirement and furthermore that CPD accreditation had previously been granted in relation to events

organised by RAS where this requirement had not been met (specifically, RAS make reference to an event in 2011 where CPD

accreditation had been granted without this requirement being imposed). The letter continued on to state that if RAS’s application

was not approved by close of business on the 17th July 2013 proceedings would be instituted.

3.10 On the 19th July 2013, a lawyer for RCSI responded to the above letter, stating that the requirement that the “Chief Organiser”

be admitted to the specialist register in plastic surgery was one which was recently agreed by the PDPC. The letter continued:-

“It was also noted that the proposed Masterclass included three Live Surgery Demonstrations. This reinforced the view of

the Committee to refuse CPD accreditation in the interests of patient safety where none of the participants were

admitted to the Specialist Register of the Medical Council.”

3.11 The letter concluded by stating that, “Your threat of litigation is premature in circumstances where the internal appeals

mechanism has not been exhausted.”

3.12 This sets out the correspondence as between the parties in relation to the application for CPD accreditation. However, it is also

worth setting out at this stage, first, the correspondence conducted within RCSI in relation to the application (acknowledging, of

course, RCSI’s arguments concerning the admissibility of and reliance on this evidence, and what weight, if any, the Court of Appeal

should have given to it), and secondly, the sworn testimony of Professor Tierney in relation to the guidelines which were applied in

relation to Dr. Salman’s application.

(b) Internal RCSI Correspondence

3.13 On the 21st June 2013, being the day after the CPD accreditation application was received, Ms. Marie Boyle, secretary to the

PDPC, emailed Professor Sean Carroll, a consultant plastic surgeon, seeking his advice in relation to the application and whether it

should be approved for CPD. Ms. Boyle stated, “I note that Mr Salman who is leading the course is on the General Register with the

Medical Council…”

3.14 Professor Carroll responded later that day stating:-

“I do not think we should approve this course.

A specialised course such as this should be run by someone trained and specialised in the field. This doctor is not. It will

help legitimise the very type of person who the college and the legitimate specialists should not be condoning. Thank you

for asking me for an opinion. Please let me know if you require anything else.”

3.15 Ms. Boyle responded on the same day:-

“I will let Sean Tierney know and the decision not [sic] approve will come from the RCSI Professional Development &

Practice Committee meeting which is being held next week.”

3.16 At 5pm on the 26th June 2013, a meeting of the PDPC took place. The minutes of the meeting stated as follows:-

“The Criteria for the approval of Educational Events for Continuing Professional Development (CPD) was discussed. It was

recommended that the sponsor of a surgical event should be on the Specialist Register of the Irish Medical Council in

order for the event to be approved. It was agreed to amend the Guidelines.”

3.17 Under the heading “Summary of Actions”, the minutes stated:-

“Ms O'Boyle/Professor Tierney to inform the applicant who sought approval for a master class in a Plastic Surgery

procedure that the Committee agreed that a surgical event can only be approved if the sponsor is on the Specialist

Register of the Irish Medical Council.

Ms O'Boyle/Professor Tierney to draft criteria for the approval of activities/events for the next meeting.”

3.18 On the 27th June 2013, Ms. O’Boyle emailed Professor Tierney with a draft letter to be sent to Dr. Salman:-

“Hi Sean

Below is draft text – not sure if it is too much... The first two items are listed on our Guidelines re: approval... Although

one is as discussed last night... Sometimes we get information on speakers etc... Other times we don't... I have not

asked for this level of detail before... What do you think?”

3.19 Professor Tierney approved the draft shortly after receiving it. The letter was communicated to Dr. Salman by email on the 28th

June, as set out above at paragraph 3.2.

3.20 On the 8th July 2013, Ms. O’Boyle emailed Professor Carroll, saying:-

“Further to my previous email in relation to the approval of this meeting for CPD credits, your response and the application

for approval was discussed at the Professional Development & Practice Committee meeting. It was agreed to write to the

organiser of this meeting for further details, (listed below). One of the requirements was to provide:

A name of a consultant who was on the Medical Council Specialist Division of the Register in Plastic Surgery who supports

this course

Below is the response from the organiser. The doctor they outline who supports this is Dr Jawad however when I look up

his name, he is on the General Register both on the MC register and GMC. We believe that as they have not met the

criteria to provide a name of a consultant who was on the Specialist Register who supports this course, we are unable to

approve this course for CPD. I would be grateful if you could review the information provided by the organiser and let me

have your comments.”

3.21 Professor Carroll responded that same day stating, “I agree that the specific criteria have not been met. I would not recommend

recognition for CPD.”

3.22 After receiving Professor Carroll’s email, Ms. O’Boyle emailed Professor Tierney on the 8th July, attaching Professor Carrol’s email

and asking for approval of a draft letter to be sent with the decision in relation to Dr. Salman’s application. The draft letter stated:-

“This information together with your application form has now been reviewed. I wish to advise you that unfortunately, we

are unable to approve this meeting for CPD credits as you were unable to provide a name of a Consultant on the Medical

Counsel's register who is on the Specialist Division in Plastic Surgery who supports this course.”

3.23 Professor Tierney replied shortly after, saying:-

“I would change ‘supports’ to something beefier – i.e. the chief organiser who is responsible for the application should be

on the specialist register. Secondly, I [would] state that the [organisers] may choose to issue certificate of attendance

which individuals may use for the purpose of [meeting] their CPD requirement but such certificates may not state that the

course is approved by RCSI for CPD purposes????”

3.24 On the 9th July 2013, Mr. Kieran Tangney of RCSI emailed Ms. O’Boyle saying, “I agree with Sean. Maybe the term ‘clinical lead’

for the event or something along that vein would be to the point.”

3.25 Thereafter, on the 9th July 2013, the refusal of the application was communicated to Dr. Salman in the following terms:-

“It is a requirement of the Professional Development Committee that the Chief organiser of the event should be on the

Specialist Register in Plastic Surgery and as this is not the case, we are unable to approve this event for CPD purposes.”

3.26 The correspondence which followed that refusal is as set out above at paragraphs 3.5 to 3.11.

(c) Professor Tierney’s Sworn Testimony

3.27 Finally, reference should be made to the sworn testimony of Professor Tierney. While it will be necessary to return to the

arguments made by the parties to this appeal in more detail later, it might be noted at this stage that counsel for RCSI submit that at

no point in Professor Tierney’s affidavits does he aver to the RCSI having relied on the new guidelines published on the 15th July 2013

in concluding that the application for accreditation should be refused. They refer to the second affidavit of Professor Tierney, where

he states:-

“Further and prior to any determination, a written notice was sent to the Applicant as a request for further information

made pursuant to the Accreditation Guidelines dated 28 June 2013 … wherein it was made clear that ‘before we (the

Respondent) can approve this event for CPD credits, we would require the following information’ whereupon three items

were listed, one of which was the name of a consultant who was on the Medical Council Specialist Division of the Register

for Plastic Surgery who supported this course [emphasis in original]. Thereafter, there was no amendment to the

Accreditation Guidelines as Mr Salman alleges and, even if there was which is not accepted, contrary to Mr Salman’s

assertions there was a prior warning to the Applicant with an opportunity for representations to be made.”

It should be noted that RAS dispute that this supports the argument which RCSI seek to make here.

3.28 In relation to the purpose behind any amendment made to the guidelines by the PDPC, Professor Tierney states as follows at

para. 43 of his first affidavit:-

“It was determined that despite this clear basis for exercising the Committee’s discretion to refuse accreditation, the

requirement for the lead organiser to be on the Specialist Division of the Register would also be reflected expressly in the

Criteria issued by the Respondent going forward and therefore that an express addition to the generic criteria would be

appropriate. This decision was taken in accordance with Section 7 of the 2007 Act which allows the Irish Medical Council

and by extension the Respondent acting under the scheme of Arrangement and carrying out the Irish Medical Council’s

functions thereunder, the power not only to specify the standards and programmes required for the purposes of

maintenance of professional competence but also the power to review those standards.”

3.29 As already noted, the judicial review proceedings raised a range of grounds most of which were rejected both by the High Court

and the Court of Appeal. Those grounds are not the subject of appeal to this Court. In those circumstances it is appropriate to

concentrate on the basis for that part of the challenge brought by RAS to the accreditation refusal which ultimately proved

successful in the Court of Appeal. It will also be necessary to indicate the view taken both by the High Court and by the Court of

Appeal in relation to that ground.

4. The Issue of the Changed Guidelines

4.1 The arguments raised by RAS in the High Court, insofar as they relate to the issue which arises on this appeal, were summarised

by the trial judge as follows:

“The essence of the applicant’s case is that it complied with the published Guidelines for the purposes of CPD

accreditation and were thus entitled to such accreditation. There was an attempt by the respondent to retrospectively

impose new Guidelines after the event which was impermissible.”

4.2 In the High Court, Noonan J. held that the application was in fact dealt with under the previous guidelines, as opposed to under

the new guidelines published on the 15th July 2013. Noonan J. stated:-

“As I have said, Guidelines are quite distinct from rules and although it has to be said that the applicant was somewhat

mislead by the respondent into believing that its application had failed as a result of the subsequent adoption of new

Guidelines, that is not in fact what actually transpired. The uncontroverted evidence of Professor Tierney is that it is

currently considered best practice by the Irish Medical Council and any professional body operating under its auspices in

this jurisdiction that surgery be performed or supervised and/or monitored by a medical professional who appears on the

Specialist Division of the Register in this jurisdiction.”

4.3 Noonan J. held that the essential requirement was that someone on the specialist register be involved in the event and that this

was understood by Dr. Salman. Noonan J. held that the various terms used by RCSI to describe this requirement i.e. “supports the

course”, “chief organiser” and “lead clinician/clinical lead”, were used somewhat interchangeably and that nothing turned on the fact

that different terms were used.

4.4 These findings formed part of the basis on which the application for judicial review was rejected in the High Court.

4.5 The decision of the High Court was appealed to the Court of Appeal. In that Court, RAS again argued, amongst other things, that

the decision to refuse had been made in breach of fair procedures and in particular that the decision had been made by reference to

the amended guidelines. RAS also argued that Noonan J. had erred in not taking into consideration the evidence of internal RCSI

communications surrounding the application.

4.6 It is worth quoting in full from the judgment of Ryan P. in the Court of Appeal in relation to the question of the admissibility of the

relevant discovery documentation:-

“In my view the discovered documents were admissible in evidence on the application and on this appeal. They were

discovered for the purpose of this judicial review application by RCSI, the deciding body that was in exclusive possession

of almost all of the relevant materials for the decision on the application. Privilege was not claimed in respect of the

documents in question. There is no question about the authenticity of the documents. The authors are available and were

available to swear affidavits explaining or commenting on the contents. The documents are exhibited in the affidavit of Dr.

Salman on behalf of the applicant RAS. They were referred to and relied upon in the application for the High Court and in

the submissions and arguments in this court by counsel for RAS. It was open to RCSI to comment, explain or dismiss the

material or any part of that as it chose, and it decided, as it was entitled to do, to ignore the material. The documents

are manifestly relevant beyond any dispute and they go far towards explaining the process of consideration of the

application and the adoption of the new Guidelines. They are the records of the persons involved in the decision making

process. It seems to me that the court should adopt the practical and just approach of Lynch J. in the case of Hughes v.

Staunton where he held that medical records maintained by nursing and other staff, such as doctors, recording events

that happened in a hospital in regard to a particular patient, were admissible without having each nurse or doctor come to

court to swear and give evidence that he or she made the particular record which was in his or her or their handwriting.

Another less subtle judicial approach was to inquire of counsel whether the defendant client was denying its own

records.”

4.7 Ryan P. went on to state that he did not understand how a court could consider this case without reference to the relevant

documentation as it is actually referred to in Dr. Salman’s affidavit and in submissions made on behalf of RAS.

4.8 In relation to the suggestion made by RCSI that it would be necessary for RAS to apply to the Court to hear the case on oral

evidence for the purposes of proving the discovery documents, Ryan P. stated that this would be “an absurdly inappropriate and

clumsy procedure and not consistent with the interest of justice.” He continued on to state, “In all the circumstances, it seems to me

quite clear that this material must be looked at. The RCSI and Professor Tierney cannot quarantine documents that are central to the

case simply by not referring to them.”

4.9 The Court of Appeal later began its analysis of the issue of fair procedures by summarising relevant requirements of fair

procedures in the context of this application. Ryan P. stated:-

“The relevant committee was comprised of medical experts whose function it was to evaluate the application and to grant

or refuse it. In doing so, the committee had to employ fair procedures. What did that require? It seems to me that the

first point is that the criteria that the committee was going to apply had to be clear. The committee could not make up

criteria as they went along, whether they were described as rules or guidelines.”

4.10 Ryan P. went on to state that he did not think it made any difference whether the committee was applying rules or guidelines,

although they were, he felt, clearly applying the latter. He stated that, “It is scarcely necessary in a legal judgment to say that

changing the guidelines as one went along, and for the very purpose of dealing with an application that was submitted in accordance

with the existing guidelines, would not normally accord with good administration or fair procedures.” Furthermore, Ryan P. held that

there were no exceptional circumstances in this case that would justify a deviation from normal principles of fair procedures.

4.11 Crucially, the Court of Appeal reached a different conclusion to the High Court regarding which guidelines were applied by RCSI in

relation to RAS’s application. Ryan P. referred to the internal RCSI communications in this regard, which have been set out above,

stating:-

“The High Court held that the committee applied the existing Guidelines and not the newly minted version that followed

the committee meeting. I cannot agree with that interpretation. It is true that the trial judge thought that the applicant

had been misled into a mistaken belief that the College had changed the guidelines for the purpose of dealing with the

application but I do not think that was a mistaken belief, a fact which I think is clear from an analysis of the email chain

that is set out above. Since the hearing in the High Court was on affidavit, this Court is in as good a position to draw

inferences from the facts as was the High Court.

A consideration of the communications suggests strongly to me that the committee did not make its decision on the basis

of the existing guidelines. It had Professor Carroll’s recommendation that the application should be refused. That

independent advice requires some mention in its own right as a separate matter. The decision that there should be a

specialist sponsor and that the guidelines should be amended to provide for that and that the applicant should be notified

make it abundantly clear that the committee was not satisfied with the existing provisions. The College makes the case

that the committee made its decision on the basis of the previous guidelines and that it was entitled to impose the

requirement as to the involvement of a specialist. In my view, it might be possible to make that argument if one did not

have the discovered emails but they demonstrate otherwise… The committee was entitled under the old guidelines to

make any reasonable requirements of an applicant for approval; that is not in question. If it had concerns about safety or

expertise on the part of the person carrying out the surgery proposed or of the teachers attending, it was quite entitled

to make appropriate enquiries. But that is not what happened. The committee was evidently of the view that it needed to

change the guidelines in order to impose this new requirement and indeed to refuse the application. It is not in my view a

matter of analysing the committee’s powers but of examining how it dealt with the request for approval that was before

it.”

4.12 Ryan P. also turned to the initial view taken by Professor Carroll in relation to the application. He stated that while Professor

Carroll’s response was open to a number of interpretations, it is clear that there was no detailed consideration of the application.

Ryan P. concluded by stating:-

“It may be reasonable for the College to disapprove of surgery carried out by doctors who are not on the specialist

register of the Medical Council and to oppose them as far as they can, but simple disapproval is not sufficient when it has

a delegated function to carry out. There has to be a basis in reason for withholding a permit of this kind. In this case the

College seems to have taken a view inspired by Professor Carroll’s disapproval of Dr. Salman’s clinic and then sought to

find a reason to refuse. It is an unjustifiable exercise in ex post facto rationalisation.”

4.13 It was in the context of the argument surrounding the changed guidelines and the decisions of the Court below in that regard

that the issue of general public importance identified in the determination of this Court arose. Against that background it is necessary

to turn to the specific arguments put forward by the parties on this appeal.

5. The Arguments of the Parties

5.1 RCSI argued that it is clear from the sworn testimony of Professor Tierney (as set out above at paras. 3.27 and 3.28) that the

PDPC relied on the old guidelines in reaching its decision in relation to RAS’s application for CPD accreditation. They submitted that at

no stage does Professor Tierney aver to having relied on the new guidelines, published on the 15th July 2013. Indeed, RCSI pointed to

Professor Tierney’s testimony, set out above, to the effect that the purpose behind amending the guidelines was so that the

specialist register requirement would apply going forward. They submitted that the proper way to challenge Professor Tierney’s

testimony, if there was any dispute as to his version of events, was by cross-examination. However, RCSI submitted, RAS instead

exhibited documents obtained on discovery from RCSI and invited both the High Court and the Court of Appeal to reach a conclusion

contrary to the sworn testimony of Professor Tierney. RCSI pointed out that no application was made to cross-examine Professor

Tierney and in any event dispute the contention that the documents exhibited must necessarily be given the interpretation advanced

by RAS and accepted by the Court of Appeal.

5.2 RCSI argued that the Court of Appeal erred in several respects. First, it was submitted that, without either formal proof of the

relevant discovered documents or agreement as to their admission into evidence, the documents were prima facie inadmissible.

Second, RCSI submitted that, even if it is accepted that the documentation was admissible, the Court of Appeal attached undue

weight to it in light of Professor Tierney’s sworn testimony. In this regard, RCSI refer to the judgment of Lynch J. in Hughes v.

Staunton (Unreported, High Court, Lynch J., 16th February, 1990). Finally, RCSI submitted that, given the fact that RAS failed to

cross-examine Professor Tierney, the Court of Appeal should have resolved the issue of fact against RAS as the party bearing the

onus of establishing that RCSI had in fact applied unpublished guidelines.

5.3 RCSI ultimately suggested that, in seeking further information from RAS, they had proceeded in accordance with the guidelines

which existed at the time of the application and merely exercised their discretion to refuse the application in accordance with fair

procedures.

5.4 Furthermore, RCSI submitted that, even if there was a change in policy, RAS were given sufficient notice by the request for

further information on the 28th June 2013 i.e. the request to name a person on the specialist register who supports the course.

Indeed, at the oral hearing it was emphasised that this letter stated that the further information was necessary “before [RCSI] can

approve” the application. RCSI submitted that RAS purported to comply with this requirement, but ultimately did not and that RAS

made no representations prior to these proceedings that the requirement was not understood or that RAS could not comply with it.

5.5 Finally, it should be noted that, at the oral hearing, RCSI conceded that, if an amendment to the guidelines was needed to

empower RCSI to impose the specialist register requirement, then they would not in fact have had the power to impose that

requirement at the time when the decision to refuse was made. RCSI stated that the case could have been resolved on this basis in

the lower courts if, rather than dealing with the factual question of what guidelines were actually applied, the Court of Appeal had

first analysed whether RCSI could have legitimately imposed the relevant requirement under the old guidelines. If that question was

answered in the negative, and it was held that RCSI did not have the power to impose that requirement under the old guidelines, then

this would have been the end of the matter. However, Ryan P. took the view that what was important was what had actually taken

place, as opposed to whether the power to impose the requirement arose under the old guidelines. RCSI’s case is that it was not

necessary to amend the guidelines to impose the specialist register requirement.

5.6 For their part, RAS contested RCSI’s submission that Professor Tierney’s sworn testimony contains uncontroverted statements to

the effect that the old guidelines were applied in relation to the decision to refuse accreditation. Rather, RAS suggested that RCSI

were unable to point to any averment by Professor Tierney to this effect. Instead, RAS submitted that what is important is what was

notified to RAS and that this can be seen from the text of the original guidelines, the inter partes emails surrounding the application

and the amended guidelines. RAS maintained that, on the basis of that evidence, it is clear that the guidelines had been changed and

that a new requirement, which was not notified to RAS, had been applied. Therefore, they submitted that the ultimate conclusion

reached by the Court of Appeal can be maintained even without reference to the discovered documents which form the basis of the

dispute on this appeal.

5.7 Notwithstanding that argument, RAS submitted that the discovered documentary evidence, i.e. the internal RCSI communications

concerning the application, corroborates the testimony of Dr. Salman to the effect that the guidelines were altered so as to refuse

RAS’s application. RAS submitted that this is a breach of fair procedures and that the Court of Appeal was correct to quash the

decision on that basis.

5.8 RAS submitted that there was an evidential onus on RCSI to put before the courts all facts and documents relevant to the issues

arising in the proceedings and in particular to identify which guidelines were applied and whether the guidelines were changed after

the application was made. RAS submitted that RCSI failed to discharge this onus. RAS submitted that this failure has a bearing on the

inferences which the court can draw, but it is also of relevance to the admission of discovered documents in judicial review

proceedings.

5.9 Turning to the admissibility of the discovered documentation, RAS argued that it is not open to RCSI to maintain an objection to

their admissibility where this argument had not been made at first instance. Notwithstanding that argument, RAS submitted that the

evidence in question is clearly admissible, having been produced by RCSI on oath as falling within the categories of discovery ordered.

RAS submitted that there is no doubt regarding the authenticity of the documents. There has been no suggestion that the discovered

documents are anything other than true copies of the documents in question. In any event, RAS submitted that the admission of

documents without strict proof of authenticity is a matter within the discretion of the courts and that the circumstances of this case

justify the exercise of that discretion.

5.10 RAS further contested the argument that the discovered documentation could be deemed inadmissible as hearsay evidence. The

documents in question, it is submitted, are real evidence and not hearsay. However, RAS submitted that, even if the documents are

hearsay, they are admissible as an exception to the rule against hearsay evidence on the basis that they are declarations against the

interests of RCSI.

5.11 In the alternative, RAS submitted that, by choosing not to reply or engage with the substance of Dr. Salman’s affidavit or the

documents exhibited, RCSI admitted the documents and RAS’s interpretations of those documents.

5.12 Finally, RAS submitted that, even if the documents are treated as hearsay, the Court of Appeal exercised its discretion to admit

them and that this was a correct approach. RAS argue that there are several factors which suggest that the documents should be

admitted as evidence such as the fact they are not inconsistent with other evidence and that they are inherently reliable having

emanated from RCSI itself.

5.13 Against that background it is appropriate to turn first to the issue, which formed part of the basis on which leave to appeal was

granted, as to whether the Court of Appeal was correct to place reliance on the discovered documents to which I have referred.

6. The Status of Discovered Documents

6.1 It is important to commence a discussion of this issue with a restatement of first principles. Factual issues in all court proceedings

are determined on the basis of evidence properly before the court. That is so whether the evidence is presented by a witness giving

sworn oral testimony in court or by affidavit evidence.

6.2 That fundamental principle applies equally to documentary evidence (and, indeed, other forms of evidence such as physical

objects) which must be properly established in an appropriate way before reliance can be placed on same in determining the facts. I

will shortly return to the question of the importance of that fundamental principle and the need, therefore, for there to be clarity

about what is, or is not, properly in evidence before the court.

6.3 However, it is important to note that there may be some legitimate qualification of that fundamental principle. For example, facts

may be formally agreed, thus obviating the necessity for their proof. This may happen because facts are alleged in pleadings and not

denied or because the parties have been able to agree that certain facts are accepted for the purposes of the hearing.

6.4 In addition, issues may arise as to the extent to which it may be permissible, on appeal, to complain that material which was

before a trial court without objection was inadmissible and should not, therefore, have been relied on by the decider of fact for the

purposes of determining any matter essential to the resolution of the case.

6.5 Each of the matters to which I have referred should be the subject of clarity at a hearing at first instance. In the case of

evidence whose admissibility is questioned, it is incumbent on the party who wishes to challenge the admissibility of the evidence

concerned to raise the issue at an appropriate time. Preferably, in the case of proceedings being determined on oral evidence, an

objection should be taken at the time when the evidence is proffered. At the very least, submissions should be made before the case

concludes to the effect that the evidence concerned is inadmissible and reliance should not be placed on it. This latter course of

action may be appropriate in a case where it is considered sensible to allow the evidence to be tendered but subject to the rights of

an opposing party to seek to persuade the court that the evidence is not lawfully admissible and thus should be ignored. While such a

course of action would not be considered appropriate in proceedings being conducted before a jury, it may well assist in the orderly

conduct of civil proceedings where a judge is the decider of fact.

6.6 Slightly different considerations apply, for obvious reasons, in a case where the evidence is tendered by affidavit. In such a case

all of the evidence will be placed before the court in the form of copies of the relevant documentation (whether that be the affidavits

themselves or documents exhibited to those affidavits). While there may occasionally be applications made in advance of the hearing

of proceedings to be conducted on affidavit in which it is sought that the court should rule that certain contents of one or more

affidavits ought not to be properly regarded as evidence before the court, the more normal course of events is to make submissions

at the hearing to the effect that certain evidence, whether to be found in the body of an affidavit or in documents exhibited in the

affidavit, is either inadmissible or cannot be taken to be evidence of a certain state of affairs. The latter comment is of particular

relevance in relation to documents which may, in some circumstances, be admissible to establish the existence of the document

concerned but not to establish the truth of the contents.

6.7 Therefore, the first important comment to make is that there should be clarity about what evidence is accepted as being properly

before the court (and, indeed, where that evidence is documentary, clarity as to what may be established by the document

concerned).

6.8 It is a recipe for confusion and potential injustice if a court is left with evidence which is apparently properly before it and

unchallenged in circumstances where one of the parties may wish to argue that the evidence concerned was either inadmissible or

not admissible for a particular purpose. It will be necessary to return to the consequences of a failure to bring such clarity to the

proceedings at a later stage in this judgment. However, the starting point has to be to acknowledge that the onus to raise the status

of evidence must lie on the party who wishes to assert either that the evidence concerned is inadmissible or only admissible for limited

purposes. If evidence is presented to a judge without objection or comment then it will hardly be surprising if the judge takes that

evidence into account in reaching any conclusions of fact that may be necessary.

6.9 However, it must also be acknowledged that there is much benefit in parties agreeing to waive the necessity for formal proof of

certain matters so as to speed up litigation. Indeed, a court can, and in many cases should, punish a party in costs for unnecessarily

and unreasonably declining to agree evidence in circumstances where there was no real basis for contesting the testimony

concerned. This will be particularly so in public law proceedings where a public authority is a party. As was noted by Lord Donaldson

M.R. in R. v. Lancashire County Council Ex p. Huddleston [1986] 2 All E.R. 941, such parties should conduct public law litigation “with

all cards face upwards on the table”. That requirement does not, it should be said, provide an excuse for those challenging public law

measures to ignore the rules of evidence. It does, however, permit the courts to readily apply procedural measures to ensure

transparency and to significantly penalise public bodies in costs if they fail to respond to challenges in a transparent manner, thus

unnecessarily increasing the costs and complexity of the process.

6.10 The notice to admit facts is an example of a procedure whereby a party may be penalised in costs as a result of an unreasonable

refusal to agree facts. But similar practices have grown up in the context of documentary evidence, not least because of the

extraordinary growth in the number of documents which may potentially be considered of at least some tangential relevance in certain

types of litigation. To require each document to be formally proved would undoubtedly run contrary to the requirement that

proceedings are conducted in a manner which is expeditious and cost effective. Courts can and should take significant measures to

prevent unreasonable refusal to agree facts.

6.11 One method which has frequently been adopted has come to be referred to as the Bula/Fyffes model (by reference to the cases

of Bula Ltd. v. Tara Mines Ltd. [1997] IEHC 202 and Fyffes PLC v. DCC PLC [2005] IEHC 477). The reason why this model has been

adopted has a particular relevance to the issue which has arisen in this case. Parties may be required, as part of our procedural law,

to make disclosure of relevant documentation prior to trial. But the disclosure of the existence of such documentation does not, of

itself, prove the documents in evidence for the purposes of a trial, whether conducted on oral evidence or by affidavit. Still less does

the disclosure of such documents provide evidence of the truth of the contents of the documents concerned. However, in many

cases it would be highly wasteful of time and resources to require formal proof of documents whose provenance could not be

doubted.

6.12 It was in that context that the Bula/Fyffes model evolved, whereby parties commonly agree that discovered documents can be

placed before the judge without formal proof and, frequently, also agree that the documents concerned can be taken to represent

prima facie evidence of the truth of the contents of the documents in question. In that simplest form, the party admitting the

documents retains the right to question the interpretation placed on them, but questions of proof no longer remain in the case.

6.13 It is particularly important to emphasise that there are a number of issues about which there needs to be clarity before the

Bula/Fyffes model is adopted. For example, in multi-party litigation it is important that there be clarity about the party or parties

against whom evidence contained in discovered documents can be deployed. A party may be very happy, for understandable reasons,

to stand over its own documentation, but might be far from happy, for entirely legitimate reasons, to allow documents emanating from

a co-defendant with whom it did not have a common interest to be admitted as evidence against it. This is not a mere technicality. If

documents of one co-defendant were to be admitted as evidence, without proof, against another co-defendant, then that second

co-defendant might be deprived of the opportunity of cross-examining what would otherwise be vital witnesses to the events which

might come to be described in the documentation concerned. If a party is happy to make such a concession, then that is the end of

the matter. But, there may well be circumstances where it would not be at all reasonable to expect such a concession to be

forthcoming.

6.14 The purpose for making all of these general observations is to emphasise the need for there to be considerable clarity achieved

as to the basis on which any agreement to depart from the rules of evidence has been made. Again, any lack of clarity in this regard

is only likely to lead to confusion and potential injustice. It is, quite frankly, inappropriate for either party to place documents before a

judge without either the documents being proved in the normal way or a clear agreement being reached as to the basis on which the

documents are being presented. It may, at one end of the spectrum, be the case that the documents are merely being presented on

the basis that they will be properly proved in evidence but will have to be disregarded entirely if not so proved. If the agreement

between the parties goes beyond that, then there should be absolute clarity as to the precise basis on which the documents are

being presented to the judge.

6.15 Indeed, the starting point for clarity in any case in which documents are presented to the judge is that the judge is informed as

to the basis on which the documents are being made available.

6.16 But there clearly is a connection between the two issues which I have discussed, which comes into particular focus in the

circumstances of a case, such as this, which was heard on affidavit evidence with documentary exhibits. A document which is

exhibited is, prima facie, evidence. In such a case it is not merely a question of discovered documents being handed to the judge on

some basis which, for the reasons which I have identified, ought to be made absolutely clear. Rather, the document concerned is

itself a piece of evidence exhibited in an affidavit which may properly be considered by the judge unless there is some legitimate basis

for suggesting that the document is not admissible or is admissible only for limited purposes.

6.17 That being said it is particularly important to emphasise that the mere fact that a document is exhibited in an affidavit does not,

in and of itself, turn that document into admissible evidence. As already noted, discovered documents are not evidence of anything

unless properly placed before the court and proved in the ordinary way. In those circumstances it was incorrect for RAS to seek to

have the documents discovered by RCSI placed in evidence before the Court simply by their being exhibited in an affidavit of Dr.

Salman. The fact that this shortcut was attempted by RAS is one of the reasons for the difficulties which have emerged in this case.

The affidavit in question did not turn those documents into evidence properly before the Court. If the proper course of action had

been adopted and if the question of an agreement to admit the documents had been fully pursued, then one of two consequences

would have flown. Either agreement would have been reached (including agreement on the basis on which the documents were to be

admitted whether on the Bula/Fyffes basis or otherwise) or it would not have proved possible to reach agreement. In the latter case

it would have been necessary for RAS to use one of the procedures available to have the contents of the documents properly

established but it could have done so in the knowledge that a court which came to the view that RCSI had acted unreasonably in

failing to provide agreement not only could, but should, have penalised RCSI significantly in costs for what would, in those

circumstances, have been found to be its unreasonable actions.

6.18 It was the very fact that neither of those courses of action were adopted that led in the first place to the lack of clarity about

the status of the documents both before the High Court and the Court of Appeal. In making that point it is important to emphasise

that an application for a substantive order of judicial review is not an interlocutory matter within the meaning of O. 40 of the Rules of

the Superior Courts. The fact that hearsay evidence may, therefore, be admissible in certain circumstances in interlocutory matters

does not mean that the rule against hearsay does not have equal application in a substantive hearing (such as an application for

judicial review) which is determined on affidavit just as much as the same rules apply in a matter heard on oral evidence. The fact

that documents were exhibited in an affidavit sworn by Dr. Salman did not, in and of itself and without agreement, necessarily render

those documents receivable before the Court (in the absence of Dr. Salman being able to prove the documents) and, more

importantly, did not render those documents admissible as to their content.

6.19 But the matter did not end there. The problem was compounded by the fact that RCSI did not raise the status of the documents

when they were placed before the High Court judge. If RCSI wished to contend that any documents which were exhibited in the

affidavits placed before the Court in this case either were not admissible at all or only admissible for limited purposes, then it was

incumbent on RCSI to make an objection at an appropriate stage, and in any event not later than the conclusion of the arguments

before the trial court, seeking to have the documents treated as either inadmissible or being only admissible for whatever limited

purpose might be suggested.

6.20 While it remains the case, therefore, that discovered documents do not form part of the evidence in any case and should not be

given to the judge without a clear indication as to the basis on which the judge is being invited to consider the documentation

concerned, the fact remains that, in this case, the contested documentation was placed before the Court as exhibits to an affidavit

filed on behalf of Dr. Salman in circumstances where no real objection was taken to that course of events at the trial in the High

Court.

6.21 It is also of some relevance in this context to note the difference between a document which may be receivable in evidence and

one which is admissible. These matters are fully described by Edwards J. in his judgment in Leopardstown Club Limited v. Templeville

Developments Limited [2010] IEHC 152 at paras. 5.27 and 5.28. In order to be receivable a document must be proved as to its

authenticity. However, the mere fact that a document is proven to be authentic does not mean that, for example, its contents may

be admissible evidence as to their truth for that may offend the rule against hearsay. But that distinction does not provide a shortcut

to establishing the authenticity of a document. While it may very well be that a public authority ought, at a minimum, be prepared,

unless there were exceptional reasons suggesting an alternative course of action, to admit the authenticity of documents which the

public authority concerned had discovered (on pain of significant costs implications if unreasonably refusing), the fact that such

documents might then be receivable would not, without more, make the contents of such a document admissible evidence as to its

truth.

6.22 Whatever about objecting to the receivability of its own documents, it would undoubtedly have been open to RCSI to object to

their admissibility as to the truth of their contents, but no such objection was taken. In Mapp v. Gilhooley [1991] 2 I.R. 253, a case

which concerned a challenge on appeal to the admissibility of unsworn oral evidence given at trial by the infant plaintiff, McCarthy J.

stated at page 265:-

“There are many instances in which a party in a trial will not be permitted to resile from an attitude taken during the trial;

he will not be permitted on appeal to go back on a concession made at the trial, whether that concession be expressly or

impliedly made. He will not be permitted, ordinarily, on appeal to take a point not taken at the trial. These are procedural

principles founded upon considerations of justice, not to allow a party to blow hot and cold.”

6.23 In those circumstances I am satisfied that, even to the extent that it would have been open to RCSI to object, on the grounds

of hearsay or otherwise, to the documents which were placed before the trial judge being admissible in evidence to prove the truth of

their contents, it was too late to seek to make that point when the matter was before the Court of Appeal. On that basis, I am

satisfied that the Court of Appeal was entitled to have regard to the documents concerned in coming to its conclusions.

6.24 However, there is a second leg to this issue. As noted earlier, it is said by RCSI that it was inappropriate for the Court of Appeal

to overturn the factual decision of the High Court on the question of the guidelines relied on, in particular because, it is said, to do so

was to reject the sworn testimony placed before the Court on behalf of RCSI without there having been any cross-examination of the

witness concerned. That leads to a second general question concerning the proper means by which factual disputes should be

resolved. I, therefore, turn to that issue.

7. The Resolution of Factual Disputes

7.1 In cases heard on oral evidence the situation is, at least in most cases, relatively straightforward. Subject to questions of

admissibility, the court is entitled to consider all of the evidence tendered and to reach conclusions of fact based on that evidence.

In so doing, the court may have to consider, not least where there is conflicting evidence, which evidence to prefer, either on the

basis of the credibility of witnesses or their reliability.

7.2 Where a party wishes to assert that evidence tendered by an opponent lacks either credibility or reliability, then it is incumbent

on that party to cross-examine the witness concerned and put to that witness the basis on which it is said that the witness’s

evidence should not be accepted at face value. It is an unfair procedure to suggest in argument that a witness’s evidence should not

be regarded as credible on a particular basis without giving that witness the opportunity to deal with the criticism of the evidence

concerned. A party which presents evidence which goes unchallenged is entitled to assume that the evidence concerned is not

contested. However, there may, of course, be legitimate debate about whether the evidence, even if accepted so far as it goes, is

sufficient or appropriate to establish the facts necessary to resolve the case in favour of the party tendering the evidence in

question.

7.3 The application of that general approach to cases which are either heard on affidavit or where, despite oral evidence being

tendered, documentary evidence is presented by agreement without formal proof, may be more problematic. It is part of the role of a

judge (when decider of fact) or a jury to assess the evidence and determine the facts having regard both to the onus and standard

of proof required in the case in question. Where an assessment of oral evidence is required, then the decider of fact will have seen

the witnesses giving evidence and can bring their own common sense to bear on assessing where the truth lies, having regard to the

evidence given, the manner in which it is tendered, the extent to which there may be reasons put forward as to why the evidence

should not be regarded as credible or reliable and, importantly, the manner in which the witness deals with any suggestion that their

evidence should not be accepted.

7.4 However, where reliance is placed on evidence to be found either in affidavits, in documents exhibited in affidavits, or in

documents which are presented by agreement to the court, then a more difficult situation arises where it is suggested that there is a

conflict of evidence whose resolution is necessary to the proper determination of the proceedings. Just as it is inappropriate to argue

in a trial conducted on oral evidence that the evidence of a witness should not be accepted, either on grounds of lack of credibility or

unreliability, without having given that witness a fair opportunity to answer any issues arising in that context, so also is it

impermissible to ask a decider of fact (such as the trial judge in this case) to determine contested questions of fact on the basis of

affidavit evidence or documentation alone.

7.5 As an aside, it is important, in the context of the current discussion, to emphasise that the extent of the problem may depend on

what exactly it is that the judge has to decide. In some cases, the very fact of the existence of a document is itself material

evidence. The fact that a particular letter was written making a specific allegation may itself, in certain types of cases, be important

irrespective of the truth or otherwise of the allegation itself. The fact that a party was put on notice of a certain state of affairs may

again itself be of some importance in, for example, questions concerning the calculation of damages. Even if there may be a dispute

about aspects of the underlying events, it may be that the fact that a particular document existed or was sent to a relevant party is

itself important and if there is no challenge to the fact that the document existed or was, in fact, sent and received, then the court

is clearly entitled to make a finding that, for example, a certain allegation was made or a certain state of affairs communicated to

another party. What consequences such a finding of fact might have on the proceedings generally is, of course, another matter.

7.6 But it is frankly not appropriate for parties to enter into controversy as to the facts contained either in affidavit evidence or in

documents which are admitted before the court without successful challenge, without exploring the necessity for at least some oral

evidence. If it is suggested that there are facts which are material to the final determination of the proceeding and in respect of

which there is potentially conflicting evidence to be found in such affidavits or documentation, then it is incumbent on the party who

bears the onus of proof in establishing the contested facts in its favour to use appropriate procedural measures to ensure that the

potentially conflicting evidence is challenged. Where, for example, two individuals have given conflicting affidavit evidence and where

it is considered that a resolution of the dispute between those witnesses is necessary to the proper disposition of the case, then

there has to be cross-examination and the onus in that regard rests on the party on whom the onus of proof lay to establish the

contested fact.

7.7 A similar principle applies where it is suggested that there is documentary evidence, properly before the court, which might cast

doubt on the reliability of sworn testimony. It is not permissible to invite a court to reject sworn testimony either on the basis that

there is sworn testimony to the contrary or that the testimony might be said to be either lacking in credibility or unreliable (on the

basis of, for example, a documentary record) without giving the witness concerned an opportunity, under cross-examination, to

explain, if that be possible, any matters which might go to credibility or reliability.

7.8 One further matter of general application should be noted at this stage. It has, in my experience, become increasingly common for

affidavits to go well beyond setting out the facts. In some limited cases there may be merit in permitting parties to set out the basis

of their claim for relief in an affidavit, not least in circumstances where there may be no other documentation in which the case

sought to be made is set out in writing. For example, in the context of an application for an interlocutory injunction, the only

documentation necessarily before the court would be the notice of motion, the pleadings to date, and any affidavits filed together

with exhibits. Some leeway in such a situation may make sense so that parties might be permitted to go beyond including material in

affidavits which can properly be described as evidence.

7.9 However, there is a strong case to be made that, in many cases, the current style of drafting affidavits has gone far beyond

what is appropriate even allowing for some leeway of the type which I have described. The place to make argument is either in

written submissions filed in the court or in oral argument before the judge. It is not the function of affidavits to be argumentative

about the issues in the case including issues of fact. It is one thing to swear a replying affidavit which gives a different account of

events and points to what is said to be objective evidence which might suggest that the account being given should be regarded as

credible and reliable in distinction to an account given by an opponent. It is another thing altogether to include in affidavits the sort

of argumentative material which more properly forms the basis of submissions, whether written or oral.

7.10 The comments which I have just made concerning evidence, or uncontested evidence, contained in affidavits or in documents

exhibited in affidavits, need to be seen against that background. Those comments apply to evidence properly so-called and not to

argumentative material which could not reasonably be regarded as forming part of the evidence in a case. It is important that parties

should realise first that it is inappropriate to use affidavits as a form of quasi legal or factual argument with a detailed analysis of the

facts and arguments as to why the facts proposed on the side concerned should be accepted. Such material has no place in an

affidavit, which should be confined to evidence. Second, it is important that parties realise that the inclusion of argumentative

material in an affidavit does not give it any greater status than it would have had if it had been included, where it should have been,

in submissions written or oral.

7.11 Against the backdrop of those general principles it is next necessary to consider the precise manner in which they apply in the

circumstances of this case.

8. Application to the Facts of this Case

8.1 As noted earlier the principal averment made on behalf of RCSI was contained in the second affidavit of Professor Tierney where,

having described a letter written to Dr. Salman requesting further information, Professor Tierney states as follows: -

“Thereafter, there was no amendment to the accreditation guidelines as Mr. Salman alleges and, even if there was which

is not accepted, contrary to Mr. Salman’s assertions there was a prior warning to the applicant with an opportunity for

representations to be made”.

It seems to me that this averment is sufficiently clear in its terms to represent sworn testimony on the part of Professor Tierney that,

in his view, the application which is in question in these proceedings was dealt with under the original guidelines, while indicating a

fall-back position that even if that were to be found not to be so it was to be said that Dr. Salman had been put on notice of the

requirements which led to the refusal of the application.

8.2 While it is true, as RAS argue, that Professor Tierney does not say in express terms that the application was dealt with under the

original rather than the revised guidelines, it is difficult to see how his averment can be interpreted in any other way. To assert that

there was no change in the guidelines seems to necessarily imply that it is being said that the application was dealt with on the basis

of the guidelines as they existed at the time of the application.

8.3 While appreciating that there are aspects of the internal documentation of RCSI which might be deployed to question the

accuracy of the averments of Professor Tierney, it seems to me that it was not open to RAS to argue that their application was dealt

with on the basis of the amended guidelines without seeking to challenge the accuracy of Professor Tierney’s affidavit, whether by

serving a notice to cross-examine or otherwise.

8.4 The fact that Dr. Salman sought, in his affidavit, to place a particular interpretation on the internal RCSI documentation does not

amount to evidence for all of the reasons addressed earlier in this judgment. It is simply an argument which could just as easily, and it

might be said more properly, have been made in submissions. The only sworn testimony as to the guidelines relied on is that of

Professor Tierney. A court is not, of course, obliged to accept Professor Tierney’s evidence, but it was not open to RAS to question it

without giving Professor Tierney an opportunity to answer any suggestions which might be made as to the lack of accuracy of his

testimony.

8.5 On that basis it does not seem to me that it was open to the Court of Appeal to reject Professor Tierney’s evidence and to form

its own interpretation of the internal RCSI documentation so as to reach a contrary conclusion on the facts. To that extent it seems

to me that the case made on this appeal by RCSI is well founded. The Court of Appeal was in error in rejecting the sworn affidavit

testimony of Professor Tierney in circumstances where the basis on which his evidence might be contested was never put to him.

8.6 However, that is not necessarily an end of the matter. As noted earlier, a debate ensued in the course of the oral hearing as to

whether, on the basis that the original guidelines were applied, RCSI were entitled to reject the application. Indeed, there seems to

me to be much merit in the argument put forward by counsel on behalf of RCSI that this issue, contrary to the approach of the Court

of Appeal, more logically came first. If RCSI were not entitled to reject the application on the basis of the earlier guidelines, then their

decision would necessarily have to have been overturned unless it could be established that they were entitled to rely on the new

guidelines. Given that RCSI did not assert that the new guidelines were, in fact, relied on then it is hard to see how RAS’s complaint

would not have to have been upheld if it could be established that rejection was not open to RCSI on the basis of the original

guidelines. It is therefore, finally, necessary to turn to that question.

9. Could the Application have been Rejected on the Original Guidelines

9.1 On page seven of the original guidelines, seven criteria are set out for the approval of CPD events. Of particular relevance to this

case are No. 2 which suggests that those providing a CPD event “should list all of the Sponsors that are involved with the meeting”

and No. 7 which suggests that there should be included a full list of speakers/facilitators including details of the posts which such

persons hold, where they are based and what speaking experience they may have had in relation to the topic to be discussed.

9.2 It is clear, therefore, that the existing criteria envisaged an assessment by RCSI of the standing and status of all persons directly

involved in the provision of the CPD. There would be no point in requiring the details referred to unless RCSI were to be entitled to

evaluate the persons concerned for the purposes of determining whether accreditation would be granted.

9.2 It is true that the criteria in their original form did not include reference to any specific status which either sponsors or speakers

should hold. But it seems to me that this gave greater, rather than less, scope to RCSI to conduct a general evaluation of those who

are to be involved in the provision of the CPD for which accreditation was sought. The persons involved did not have to meet, under

the original criteria, any specific standard or status, but they were required to subject themselves to an assessment as to whether, in

all the circumstances of the case, accreditation was to be granted. Clearly those criteria did not impose any obligation on RCSI to

accept any particular status or level of expertise, although of course, it would have to be necessarily implied that the broad discretion

conferred would be exercised reasonably.

9.3 On that analysis, it does not seem to me that RCSI were precluded, under the original criteria, from carrying out an assessment of

whether the personnel involved in a proposed CPD programme warranted accreditation. In those circumstances it clearly was open to

the RCSI to decline accreditation if not satisfied with the personnel.

9.4 In that context, it must be recalled that, when specific information concerning personnel was sought from Dr. Salman, no question

was raised as to the reasonableness or otherwise of the matters which RCSI sought. What ensued was a purported compliance with

the request of RCSI which turned out to be inaccurate. If a case were to be made that RCSI were acting unreasonably in the exercise

of their discretion (by requiring a consultant who was on the relevant specialist register), then the time to have made that case was

when the relevant information was sought.

9.5 In all those circumstances, it seems to me that it was open to RCSI to decline the accreditation sought on the basis of the

original criteria.

10. Conclusions

10.1 It should first be said it is not appropriate for a party to seek to put in evidence documents which it has obtained on discovery

simply by exhibiting those documents in an affidavit sworn by a person who is not in a position to prove the authenticity of the

documents concerned. The proper course of action to adopt is to seek to deploy any one of the many procedures available to ensure

that the documents concerned are received in evidence and can, subject to their admissibility as evidence in respect of any particular

issue of fact, be taken into account in deciding the issues which arise in the case.

10.2 However, that being said, no objection to the receivability or admissibility of the documents discovered by RCSI was raised

before the trial judge. In those circumstances, and for the reasons addressed in more detail earlier, I am satisfied that it was too late

for RCSI to contest the reliance by the Court of Appeal on the documents concerned when no objection had been taken in the High

Court.

10.3 In the light of the difficulties which have emerged in this case, I have taken the opportunity to re-emphasise the vital

importance of there being absolute clarity as to the status of any documents which are handed into the trial judge. The difficulties

which have emerged in this case would not have arisen had both parties followed appropriate practices in ensuring that the status of

the documents concerned were absolutely clear before the trial judge was invited to reach a determination.

10.4 However, in addition, I am also satisfied that it is inappropriate for either a trial court or an appeal court to reject sworn affidavit

evidence by reference either to other sworn affidavit evidence or to documentary materials without giving the deponent concerned an

opportunity to answer any reasons why the sworn evidence should not be regarded as credible or reliable. The onus is on a party who

wishes to urge on a court that sworn affidavit evidence should not be accepted, in respect of any point of fact material to the

court’s final determination, to ask the court to take appropriate measures such as granting leave to cross-examine, so that questions

concerning the credibility or reliability of the evidence concerned can be put to the witness and the court reach a sustainable

conclusion as to the accuracy or otherwise of the evidence concerned.

10.5 In those circumstances I am satisfied that the Court of Appeal was in error in, in substance, rejecting the evidence put forward

on behalf of RCSI concerning the guidelines actually relied on, without cross-examination having taken place.

10.6 However, importantly, and in addition, for the reasons set out earlier in this judgment, I am satisfied that it was open to RCSI to

reject the application of RAS for CPD accreditation on the basis of the original guidelines. On that basis I am not satisfied that the

question of which guidelines were actually relied on was as central to the case as the Court of Appeal appeared to consider. In those

circumstances I am satisfied that the trial judge had evidence which permitted him to reach a sustainable conclusion to the effect

that the RCSI was entitled to and did reject the application by applying the original guidelines and that there is, therefore, no

legitimate basis for quashing the decision to so reject.

10.7 In those circumstances I would allow the appeal and make an order dismissing the application for judicial review.