LORD ESHER, M.R.(reading the leading judgment)
The grounds of the plaintiff’s claim to an injunction are two: First, that Dr. Philipson, one member of the Medical Council who adjudicated upon his case, was disqualified from so acting, and that that rendered the judgment not only illegal, but void. Secondly, that there was no evidence upon which the council could reasonably find that the plaintiff had been guilty of “infamous conduct in a professional respect.” It is admitted that, if either of these objections can be maintained, the decision of the council was illegal and void, and in either case I presume the plaintiff would be entitled to the relief which he asks. Was, then, Dr. Philipson, who took part in the decision of the council, in a position which made his participation illegal as being against public policy? If he was, his participation certainly rendered the decision wholly void. It is said that he was incapacitated from taking part in the decision, because he was or might be biassed, and the first question we have to decide is, whether Collins, J., was right in holding that Dr. Philipson was not disqualified. That he had any pecuniary interest in the matter is not suggested; but it is said that he might have had a bias. We are bound to act upon the decision of this Court in Leeson v. General Council of Medical Education and Registration. (1) It may be that some of us (I am not one) would have preferred that that case should have been decided according to the view of Fry, L.J.; but we are bound by the decision, and all we have to do with that case is to discover rightly what it did decide, and whether the decision embraces the present case. I think that in that case the majority of the Court decided, that where a person who has taken part in the judicial proceedings, or, you might say, has sat in judgment on the case, has any pecuniary interest in the result, however small, the Court will not inquire whether he was really biassed or likely to be biassed. The Court will say at once, It is against public policy that a person who has any monetary interest, however small, in the result of judicial proceedings should take part in them as a judge. The Court will inquire no further, but will say at once that he is disqualified. But Leeson’s Case (1) also decides that there are other relations to the matter of a person who is to be one of the judges which may incapacitate him from acting as a judge, and they held that the crucial question is, as Bowen, L.J., said, whether in substance and in fact one of the judges has in truth also been an accuser. What is the meaning of that? The question is to be one of substance and fact in the particular case. What is the fact which has to be decided? If his relation is such that by no possibility he can be biassed, then it seems clear that there is no objection to his acting.
The question is not, whether in fact he was or was not biassed. The Court cannot inquire into that. There is something between these two propositions. In the administration of justice, whether by a recognized legal Court or by persons who, although not a legal public Court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration, any person who is to take part in it should not be in such a position that he might be suspected of being biassed. To use the language of Mellor, J., in Reg. v. Allan (1), “It is highly desirable that justice should be administered by persons who cannot be suspected of improper motives.” I think that if you take that phrase literally it is somewhat too large, because I know of no case in which a man cannot be suspected.
There are some people whose minds are so perverse that they will suspect without any ground whatever. The question of incapacity is to be one “of substance and fact,” and therefore it seems to me that the man’s position must be such as that in substance and fact he cannot be suspected. Not that any perversely minded person cannot suspect him, but that he must bear such a relation to the matter that he cannot reasonably be suspected of being biassed. I think that for the sake of the character of the administration of justice we ought to go as far as that, but I think we ought not to go any further. I take that to be the rule for the application of the test laid down in Leeson’s Case. (2) Could, then, Dr. Philipson be reasonably or substantially suspected of bias in this case? This depends in each case upon the relation of the impugned judge to the matter upon which he has to adjudicate.
Now, the relation of Dr. Philipson to the matter was this. He had been a subscriber to and a member of a society called the Medical Defence Union, a society formed for the defence of the honour of the medical profession, and to protect that honour against the improper conduct of any individual member of the profession. Dr. Philipson had been a vice-president of the society, and by reason of his being a vice-president he was ex officio a member of the committee to which was intrusted the authority to complain of the conduct of any medical man and to take proceedings in relation to it. He was only ex officio a member of the committee; he never in fact acted as a member of the committee. Moreover, before the plaintiff’s case came on for hearing he had resigned his membership of the society altogether, so that, if it was a good resignation, he was when the case was heard not only not a subscriber, he was not a vice-president, and he was not an ex-officio member of the committee.
He had nothing to do with the matter. It was suggested by Mr. Coleridge on behalf of the plaintiff that, although Dr. Philipson did resign his membership, his resignation was not an accomplished fact until the end of two months after he sent it. But it seems to me that, though that may be technically so, yet the substance of the thing is that he had resigned his membership. He might perhaps have repented before the end of two months, but he did not. His resignation dates from the time when he sent it, for otherwise the two months did not begin to run. Therefore he resigned when he did resign, and he resigned so as not to act, and with the determination not to act, as a member of the committee, and he never did act again. Under these circumstances, it seems to me impossible that any reasonable person should think that he was biassed, or that in substance and in fact he could be liable to be even suspected of bias. There is nothing upon which to found a suspicion. The first objection, therefore, falls to the ground. I do not go into instances which were given during the argument, and which would make the proposition absurdly large under some circumstances. I take the decision in Leeson’s Case (1), and say that it must be proved te the satisfaction of the Court which is asked to interfere that in substance the relation of the impugned judge to the matter was such as I have described. The first ground of objection therefore fails.
As to the second ground of objection, it is admitted that, if there was no evidence upon which the council might fairly and reasonably say that the plaintiff had been guilty of “infamous conduct in a professional respect,” they went beyond the jurisdiction given to them by the Act in entertaining the case and proceeding to adjudicate upon it. If there was no such evidence, they ought to have declined to interfere. Was there, then, any evidence which justified the council in finding the plaintiff guilty of “infamous conduct in a professional respect”? I adopt the definition which my brother Lopes has drawn up of at any rate one kind of conduct amounting to “infamous conduct in a professional respect,” viz.: “If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency,” then it is open to the General Medical Council to say that he has been guilty of “infamous conduct in a professional respect.” The question is, not merely whether what a medical man has done would be an infamous thing for anyone else to do, but whether it is infamous for a medical man to do. An act done by a medical man may be “infamous,” though the same act done by anyone else would not be infamous; but, on the other hand, an act which is not done “in a professional respect” does not come within this section. There may be some acts which, although they would not be infamous in any other person, yet if they are done by a medical man in relation to his profession, that is, with regard either to his patients or to his professional brethren, may be fairly considered “infamous conduct in a professional respect,” and such acts would, I think, come within s. 29. I adopt that as a good definition of at any rate one state of circumstances in which the General Medical Council would be justified in finding that a medical man had been guilty of “infamous conduct in a professional respect.” Was there, then, evidence in the present case of such conduct? It seems to me that this question must be solved thus.
Taking the evidence which was before the Medical Council as a whole, did it bring the plaintiff within the definition which I have read? Was the evidence, taken as a whole, reasonably capable of being treated by the council as bringing the plaintiff within that definition of “infamous conduct in a professional respect”? I cannot doubt that it was. It seems to me that it may be fairly said that the plaintiff has endeavoured to defame his brother practitioners, and by that defamation to induce suffering people to avoid going to them for advice, and to come to himself, in order that he may obtain the remuneration or fees which otherwise he would not obtain. If on the whole that which he has been doing could be reasonably construed as amounting to that, it comes, in my opinion, within the definition I have read, and the council were justified in saying that the plaintiff had been guilty of “infamous conduct in a professional respect.”
The second ground of objection, therefore, also fails, and in my opinion the judgment of Collins, J., was right, and the appeal must be dismissed.
LOPES, L.J. I am of the same opinion. That an accuser must not be also a judge is in accordance with public policy and natural justice, and is a principle too well-established to require any comment. A person who has a pecuniary interest in the result of an accusation cannot adjudicate on it. The inference at once arises that he is interested. But when no pecuniary interest exists or is even suggested, it is, to use the words of Bowen, L.J., in Leeson’s Case (1), “a question of substance and of fact whether one of the judges has, in truth, also been an accuser.”
Again, adopting the words of Bowen, L.J., “Has the judge whose impartiality is impugned taken any part whatever in the prosecution, either by himself or by his agents”? And Cotton, L.J., said in the same case, 43 Ch. D., at p. 381, “Then, as regards the question whether they are to be considered as complainants here” (that was a case very similar to the present, the General Medical Council being concerned in it, and also the Medical Defence Union), “we ought to look to substance, and not, because this complaint is brought by the Council in the name of the Union, to say that a person, a member of a union, who has nothing to do, and can have nothing to do, with bringing forward this complaint, is to be treated as a prosecutor or as one of the persons who is bringing forward this complaint.” These words are very applicable to the present case, and the result which I deduce from that case is, that in such cases the proper question to be asked is this: whether there is any reasonable – any real or substantial – ground for suspecting bias. Now, let me apply that to the present case. Was there any reasonable ground in substance and in fact for suspecting any bias in Dr. Phillipson? He was a subscriber to the Medical Defence Union. He had been a vice-president, and as vice-president he was ex officio a member of the committee which, on behalf of the union, instituted complaints such as the present. He never acted on that committee, and at the time when this inquiry took place he had resigned his membership of the union. It was urged that his resignation did not take effect, or was not completed, for a period of two months: But I think that, in effect, he had resigned his membership. It must also be recollected that the evidence shews that he had never heard of the plaintiff’s case before the inquiry. In these circumstances, I think the learned judge was quite right in coming to the conclusion that there was no reasonable ground in substance or in fact for suspecting any bias in Dr. Philipson. If that is so, the first objection taken by Mr. Coleridge fails.
Then I come to the question of “infamous conduct in a professional respect,” and, in my opinion, if there was any evidence on which the council could reasonably have come to the conclusion to which they did come, their decision is final. If, on the other hand, there was no evidence upon which they could reasonably arrive at that conclusion, then their decision can be reviewed by this Court. It is important to consider what is meant by “infamous conduct in a professional respect.”
The Master of the Rolls has adopted a definition which, with his assistance and that of my brother Davey, I prepared. I will read it again: “If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency,” then it is open to the General Medical Council to say that he has been guilty of “infamous conduct in a professional respect.” That is at any rate evidence of “infamous conduct” within the meaning of s. 29. I do not propound it as an exhaustive definition; but I think it is strictly and properly applicable to the present case. Assuming it to be a definition of “infamous conduct” sufficient for the purpose of the present case, was there any evidence before the Medical Council which justified them in coming to the conclusion that the plaintiff had been guilty of infamous conduct in a professional respect within that definition? It appears to me that there was abundant evidence upon which they might find as they did. A very large number of advertisements have been brought to our notice which can only lead, I think, to one conclusion, viz., that the plaintiff was doing all he could to deter the public from consulting medical men – his professional brethren – to induce the public to distrust them and their remedies, and to come to him, holding himself out as the one person who could give them that relief and that assistance which they desired. In my opinion, if that were the whole of the case it would be amply sufficient to justify the action of the council. But there is another matter, to which the Master of the Rolls has not alluded, viz., the plaintiff’s conduct with regard to the pamphlet on Vaccination. It appears to me that his conduct in that matter comes distinctly within the definition which I have given.
The facts, shortly stated, are these: In 1887 or 1888 he published a pamphlet against vaccination, which met with great disapproval, and he promised to withdraw it, and, so far as he was concerned, it appears that he did withdraw it from circulation. But it had passed from his hands into those of the Anti-Vaccination Society, and he, knowing that, advises his patients to consult that society, being perfectly aware what advice they would get, viz., to adopt a method of effacing the effects of vaccination. In fact, he was indirectly advising those who consulted him to violate the law by which the legislature has thought it desirable to enforce vaccination. On both these grounds I think there was ample evidence to justify the council in coming to the conclusion that plaintiff had been guilty of “infamous conduct in a professional respect.”
DAVEY, L.J. Nothing can be more important than to maintain intact the principle that a man shall not be a judge in his own cause, and to preserve every tribunal which has to adjudicate upon the rights or status or property of any of Her Majesty’s subjects from any suspicion of partiality. Speaking for myself, if I were at liberty to discuss the judgments of the Lords Justices in Leeson’s Case (1), I confess that my mind would go rather with the judgment of Fry, L.J. It appears to me that it states a general principle, easy of application to the circumstances of any particular case; whereas I find a difficulty in extracting from the judgments of Cotton, L.J., and Bowen, L.J., the exact principle which ought to be applied; and, moreover, they seem to me to leave too much to the inferences which have to be drawn from the circumstances of the particular case, whereas it seems to me that the rule ought to be above and beyond the circumstances of any particular case, whether the facts suggest bias or not. I think the true rule was laid down by Mellor, J., in Reg. v. Allan (1), to which my Lord has already referred. But we are bound by the judgments of the majority of this Court in Leeson’s Case (2), and I adopt them in the sense in which they have just been explained by the Master of the Rolls and Lopes, L.J. Applying, then, to the best of my power, the principle which is to be evolved from those judgments, I am of opinion that there is no ground for holding that Dr. Philipson was disqualified from taking part in the decision of the present case. I must add that, even if I were to adopt the judgment of Fry, L.J., or the words of Mellor, J., in their most extreme application, I should come to the conclusion that Dr. Philipson was not disqualified. What are the facts? Dr. Philipson was a vice-president of the Medical Union, and as such he was, according to the constitution of the society, a member of their council; but he did not reside in the place at which the meetings of the council were held, and he did not attend any of them, and it appears that he was not even aware of the prosecution of the plaintiff until after he had taken his seat as a member of the defendant council. That shews that Dr. Philipson was not party or privy to what has been called the prosecution of the plaintiff. Still he might be held to be disqualified, if a member of the council of the union were as such disqualified. But then comes a fact to which I attach much more importance than was apparently attached to it by the learned judge of the Court below, viz., Dr. Philipson’s resignation. The inquiry into the plaintiff’s conduct having been held on May 28, Dr. Philipson had, on May 3, to the best of his power, and so far as he was concerned, ceased to be a subscriber to or a member of the union. He had severed his connection with the union so far as he could; and the mere fact that by their rules two months must elapse before his resignation was complete does not seem to me to make any difference. It seems to me that it would be a straining at gnats to hold that, under these circumstances, whatever rule you adopt, Dr. Philipson was disqualified from taking part in the decision of the plaintiff’s case. On the second point, I agree with the other members of the Court that there was evidence upon which the council might reasonably and properly infer that the plaintiff was endeavouring to discredit and defame the medical profession generally, and to shake the confidence of the public in other medical men, with a view to his own pecuniary advantage. The question is not whether the plaintiff is right or wrong in his views on the subject of medicine and hygiene. He may be right, notwithstanding his differences from the majority of his professional brethren. He may be in the position of Athanasius contra mundum. But there are different modes of stating one’s opinions and views, and a man may be actuated by different motives in enforcing his views and opinions upon the world. In the present case the language in which the plaintiff has thought fit to express his views, and the circumstances under which and the surroundings with which his advertisements were issued, coupled with the notices to which our attention has been drawn, recommending his own works and his own advice, seem to me, when taken together, to be evidence from which the Medical Council might reasonably hold that his conduct was “infamous in a professional respect.” I adopt the definition of Lopes, L.J., which has been approved by the Master of the Rolls, as at any rate a standard by which those words may be applied. There is also the plaintiff’s conduct with regard to the leaflet on Vaccination after he had undertaken not to publish it. I repeat, in order that there may be no mistake about it, I do not think that Mr. Coleridge was well founded in saying that on the evidence before them the council must be taken to have condemned the plaintiff on the ground of his particular opinions on the subject of medicine or hygiene. We have not to say whether the council were right or wrong in the inference which they drew. All we have to say is, whether there was evidence on which they might, as reasonable men, have come to their conclusion. In my opinion, there was.
Appeal dismissed.