Judicial review dismissed for lack of arguable case based on fundamental misconception of Directive 2005/36/EC.

[2017] IEHC 499

THE HIGH COURT

[2017 No. 29 J.R.]

BETWEEN

AHMED KHASHABA

PLAINTIFF

-AND-

MEDICAL COUNCIL

RESPONDENT

JUDGMENT of Mr. Justice Robert Eagar delivered Friday 28th July, 2017

1. This is a judgment on a motion brought by the applicant seeking leave to apply for judicial review of a decision of the respondent.

Submissions of the Applicant

2. The applicant states on affidavit the following in seeking leave to apply for judicial review:

“1. Enclosed document evidencing the Medical Council of Ireland’s refusal to recognise by automatic administration

function my Spanish European qualification and titles as an orthopaedic and trauma surgeon specialist. Apart from

automatic email reply they have not even bothered to respond to my application or complain into their perverse

procrastination and inability to comply with legitimate expectation of their public office.

2. I seek court fee remission if possible as my income/capital thresholds are low and would qualify for remission based on

U.K. thresholds.

3. I seek leave to amend my affidavit and claim should the Council bother to respond, even if the response is meaningless

or useless or tactical.

4. I seek ex parte leave for judicial review against the medical council’s omission (i.e. inaction) of their duty to even act

within the three months maximum deadline they stipulate. The first deadline passed and they returned my fee despite not

asking me for any further information as their emails state they would. So I reapplied and again no recognition or

meaningful response. Four months later therefore I am making this application one month after the second time deadline. I

seek a declaration that the medical council have acted unlawfully, contrary to legitimate expectation and ultra vires and

seek equitable remedy such as an order of mandamus (compelling them to do their job honestly and fairly) or orders of

certiorari (quashing), prohibition, damages or any other enquiries/order the court considers fit and proper to do so in the

interests of justice. My grounds for arguing my case are

(a) breach of natural justice and constitutional justice;

(b) unreasonable behaviour of public officials that offends fundamental reason and common sense i.e. abusing its

jurisdiction;

(c) breach of legitimate expectation, i.e. inaction and procrastination and plain rudeness and arrogance of individual

feeling, job security, public office acting namelessly behind their office.”

Submissions of the Respondent

3. Eoin Keehan, who previously worked as Accreditation Manager with the Respondent, swore an affidavit on the respondent’s behalf

in opposing the applicant’s application for leave to seek judicial review. He states that the applicant has no grounds upon which to

seek judicial review, that his application for specialist registration is bound to fail, and that leave to seek judicial review ought not be

granted. He further notes that this is the second application for judicial review brought against the respondent by the applicant. The

first application was dismissed by the High Court, and again on appeal in the Supreme Court.

4. He states that the respondent is charged with the registration of medical practitioners in the State. The applicant has a pending

application for specialist registration with the respondent. He states that on 17th September, 2003, the applicant’s name was first

entered on the General Division of the Register of Medical Practitioners. The applicant first applied to have his name entered in the

Specialist Division of the Register of Medical Practitioners on 26th September, 2003. This was on the basis of the applicant’s Swedish

certificate entitled “Bevis om Specialistkonpetens” which was issued by the National Board of Health and Welfare in Sweden on 6th

June, 2003. The applicant was awarded this Swedish certificate based on a certificate from Montserrat. The respondent became

aware that the applicant was awarded the certificate in Montserrat without ever having studied or worked there. Furthermore, whilst

considering the applicant’s application for specialist registration, the respondent became aware that the National Board of Health and

Welfare in Sweden had made a decision to strike the applicant from its register of medical specialists on 30th September, 2003.

5. The registration committee of the respondent refused the applicant’s application for registration in the Register of Specialists on

25th November, 2004. The applicant on 2nd December, 2004 availed of the respondent’s internal appeal procedures. Whilst this

internal appeal was pending, on 13th December, 2004, the applicant was granted leave to judicially review the decision not to register

him in the Register of Specialists. The applicant was ultimately unsuccessful in his internal appeal and his judicial review proceedings.

The decision of the High Court was heard on appeal by the Supreme Court on 23rd February, 2016. This appeal was also ultimately

unsuccessful.

6. The applicant’s current application concerns an online request to transfer to the Specialist Division of the Register. In

circumstances where the applicant did not provide any documentation to support his application to transfer to the specialist division,

on 10th August, 2016, this application was closed off. The applicant has since submitted a fresh application to transfer to the

specialist division, on 18th August, 2016, supported by a Spanish certificate of registration. The respondent has since queried the

Spanish Competent Authority the Dutch Competent Authority and the Swedish Competent Authority, whether the applicant is

currently registered with them and if so, whether he was registered on their Specialist Register. (The applicant had previously stated

in correspondence that he was also registered in the Netherlands and Sweden).

7. No reply to the respondent’s queries has been received from the Swedish or Dutch Authorities. On 3rd March, the Spanish

Competent Authority replied confirming that the applicant was professionally recognised as a specialised doctor, however, the

applicant obtained this professional recognition on the basis of the Swedish certificate of registration. The respondent notes that the

said Swedish certificate was withdrawn in September 2003, yet the applicant relies on it in his application to the Spanish authority for

specialist registration.

8. The respondent’s position may be summarised as follows:

(a) The applicant ought not be granted leave to judicially review the respondent where the application is bound to fail.

(b) The applicant ought be refused leave because the applicant has not shown good faith in the making of his ex parte

application, and that the application is an abuse of process.

Granting Leave

9. In G. v DPP [1994] 1 I.R. 374, Denham J. stated the following:

“The burden of proof on an applicant to obtain liberty to apply for judicial review under the Rules of the Superior Courts O.

84, r. 20 is light. The applicant is required to establish that he has made out a statable case, an arguable case in law

(this Court’s emphasis). The application is made ex parte to a judge of the High Court as a judicial screening process, a

preliminary hearing to determine if the applicant has such a statable case.

This preliminary process of leave to apply for judicial review is similar to the prior procedure of seeking conditional orders

of the prerogative writs. The aim is similar – to effect a screening process of litigation against public authorities and

officers. It is to prevent an abuse of the process, trivial and unstatable cases proceeding, and thus impeding public

authorities unnecessarily.”

10. Moreover, in Agrama v. Minister for Justice and Equality [2016] IECA 72, it was stated that a case is not arguable if it is “based

on a fundamental misconception.”

11. Counsel for the respondent argues that the applicant is misconceived as to his entitlement under the Directive on the recognition

of professional qualifications, as amended (2005/36/EC). The general provisions of the Directive are not intended to relate to the

recognition decisions in other member states, which is what is at issue in this application for judicial review. The applicant contends

that the Directive stipulates that the respondent ought automatically to recognise his qualifications, and register him as a specialist

medical practitioner in Ireland.

12. There is no duty on the respondent to automatically recognise the applicant’s specialist medical qualifications in respect of his

application to be registered as a specialist medical practitioner in Ireland. Insofar as the Spanish and Swedish certificates were based

on a Montserrat certificate, a country where the applicant had never practiced or studied, this does not bind the respondent to

register the applicant as a specialist medical practitioner. Counsel for the respondent cites Haim (Case C-319/92) in this regard,

where the European Court of Justice stated:

“recognition by a Member State of qualifications awarded by non-member states, even if they have been recognised as

equivalent in one or more member states, does not bind the other member states”.

13. The court finds that the applicant is not entitled to seek leave for judicial review on this basis. As was stated in Agrama v.

Minister for Justice and Equality [2016] IECA 72, the applicant’s case is not arguable as it is “based on a fundamental misconception”

– the applicant is not entitled to have his qualifications automatically recognised by the respondent in accordance with the Directive

200536/EC. The fact that the applicant is registered in Spain does not bind the respondent to register the applicant in Ireland.

Want of Good Faith

14. In C.R.A. v. Minister for Justice, Equality and Law Reform [2007] 3 I.R. 603, the court stated that the applicants had debarred

themselves from entitlement to seek leave for judicial review by reason of want of good faith.

15. This Court finds that the applicant failed to disclose the factual background of this application, including:

(a) both the High Court and the Supreme Court have ruled on his making previous applications;

(b) The fact that his Spanish registration was based on his Swedish registration that had been withdrawn.

16. These factors also weigh on the court’s decision, in ruling that the applicant is not entitled to seek leave for judicial review.