YOUNG YAU YAU CECILIA v. THE DENTAL COUNCIL OF HONG KONG

HCAL 1276/2019

[2022] HKCFI 833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1276 OF 2019

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J U D G M E N T

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Introduction

1.  Before the court are 2 applications by the applicant (“Dr Young”) against the Dental Council of Hong Kong (“Council”) for leave:

(a)     to apply for judicial review of the disciplinary inquiry decisions made by the Council on 19 April 2007 and 8 July 2008 (“2007 Decision” and “2008 Decision” respectively and “Subject Decisions” collectively), by which Dr Young was found guilty of unprofessional conduct (“Leave Application”); and

(b)     to amend the Form 86 dated 10 May 2019 (“Amendment Application”).

2.  As the Leave Application is out of time, Dr Young requires a retrospective extension of time before she can proceed further with the Leave Application.

3.  Further, although the Amendment Application will not arise if the Leave Application fails, in considering whether to extend time and, if so, whether to grant leave for judicial review, the merits of the intended judicial proceedings may be a factor that the court should take into account. Hence, if and when I assess merits, what I shall have regard to is the draft amended Form 86, not the original version.

Relevant Facts

Disciplinary actions against Dr Young

4.  Dr Young was a dentist in general practice.  The Subject Decisions arose out of the orthodontic treatments that she administered to 2 of her patients, who I shall call “Madam Wong” and “Madam Mak” respectively and “Patients” collectively.  Madam Wong was treated by Dr Young from August 2004 to June 2005.  Madam Mak was treated by Dr Young from June 2004 to June 2005.

5.  Dissatisfied with Dr Young’s treatments, the Patients sought second opinions from, firstly, Dr Albert Lee, another dentist in general practice, in June 2005.  They then consulted Dr Leung Ting On David (“Dr Leung”), a specialist in orthodontics, on respectively 2 July 2005 and 18 June 2005.

6.  In August 2005, both Patients complained to the Council, leading to 2 separate disciplinary inquiries against Dr Young (“Inquiries” collectively).

7.  In the case of Madam Wong:

(a)     The inquiry (“2007 Inquiry”) was held on 27 and 28 February 2007, during which the Council heard the evidence of Madam Wong, Dr Winston Tong, an orthodontic expert (“Dr Tong”), and Dr Young herself.  Dr Leung was not a witness in this inquiry.

(b)     On 19 April 2007, the Council handed down the 2007 Decision, concluding that Dr Young was guilty of unprofessional conduct in that she (i) failed to properly diagnose Madam Wong’s dental conditions; (ii) devised an improper and ineffective treatment plan for Madam Wong; and (iii) failed to refer Madam Wong to another dental practitioner/specialist when her treatment had not been proceeding well.

(c)     It was ordered that a warning letter should be sent to Dr Young and that she should, within 12 months, complete 15 hours of continuing education in orthodontics, not by self-study.

8.  In the case of Madam Mak:

(a)     The inquiry (“2008 Inquiry”) was held on 4 March, 10 April, 26 May and 4 September 2008, during which the Council heard the evidence of, among others, an orthodontic expert, Dr Lisa So (“Dr So”), and Dr Leung.

(b)     Dr Young was represented by counsel and solicitors at this inquiry.

(c)     On 4 September 2008, the Council handed down the 2008 Decision, concluding that Dr Young was guilty of unprofessional conduct in that she (i) devised an improper and ineffective treatment plan for Madam Mak; and (ii) failed to refer Madam Mak to another dental practitioner/ specialist when her treatment had not been proceeding well.  

(d)     Dr Young’s name was ordered to be removed from the General Register of Dentists for 1 month, which sentence was to be suspended for 12 months.

Previous challenges of the Subject Decisions

9.  Dr Young had previously challenged the Subject Decisions.  

10.  In respect of the 2007 Decision:

(a)     Dr Young appealed to the Court of Appeal pursuant to s 23 of the Dentists Registration Ordinance (Cap 156) (“DRO”), contending that the Council had erred (i) in finding that the computer orthodontic file adduced by her was not a contemporaneous record and (ii) in applying the wrong test in deciding that she was guilty of unprofessional conduct.

(b)     On 8 July 2008, the Court of Appeal unanimously dismissed Dr Young’s appeal.

(c)     On 21 May 2009, the Court of Appeal refused to grant Dr Young leave to appeal to the Court of Final Appeal.

(d)     On 23 November 2009, Dr Young renewed her leave application before the Appeal Committee of the Court of Final Appeal.  However, she later withdrew the application.

(e)     Dr Young then sought leave to apply for judicial review of the 2007 Decision in HCAL 85/2009, contending that it was procedurally improper for the legal adviser of the Council (i) to retire with the panel members during their deliberation and (ii) to assist in the drafting of the 2007 Decision.  

(f)     Dr Young was represented by counsel and solicitors in this leave application.  

(g)     On 30 December 2009, Mr Justice Reyes refused leave on the basis that there was undue delay in bringing the application.

(h)     Dr Young, still legally represented, appealed against the decision of Reyes J.

(i)     On 28 January 2011, the appeal was dismissed by consent.

11.  As for the 2008 Decision:

(a)     On 14 November 2008, Dr Young appealed to the Court of Appeal pursuant to s 23 of the DRO.

(b)     On 3 June 2009, the appeal was struck out for being made outside the 1-month period allowed by s 23(3A) of the DRO.

(c)     Dr Young was represented by counsel and solicitors in this appeal. 

(d)     Dr Young, still legally represented, then sought leave to apply for judicial review of the 2008 Decision in HCAL 86/2009, contending that the decision was flawed because the Council had been assisted by its legal adviser in preparing the 2008 Decision.

(e)     On 2 March 2010, applying the Court of Appeal’s decision in Chan Hei Ling v Medical Council [2009] 4 HKLRD 174, Reyes J granted leave.

(f)     The Council appealed against Reyes J’s decision.  By the time the matter was heard by the Court of Appeal on 9 December 2010, the Court of Final Appeal had overturned Chan Hei Ling.  Accordingly, the Court of Appeal unanimously allowed the Council’s appeal.  

(g)     Dr Young was represented by senior counsel during this appeal.

Basis for mounting another challenge after a decade

12.  As noted above, Dr Leung treated the Patients and gave evidence at the 2008 Inquiry. 

13.  According to Dr Young, Dr Leung was tainted with apparent bias against her because of the following matters:

(a)     In 1995, Dr Young ran for election of the Legislative Council seat of the Medical Functional Constituency (“Election”).

(b)     A few days before the Election, the Hong Kong Dental Association (“HKDA”) issued a press release (“Press Release”) which contained the following words:

“The Council of the [HKDA] has learned from the news media that one of the members, Dr [Young], has put herself up for the [Election] and the Council wishes her the best of luck in her most noble attempt to serve the Medical & Dental profession in Hong Kong. She has been an ordinary member of the HKDA since her graduation in June 1994.

The [HKDA] is, however, not aware of Dr Young’s election platform. Furthermore, she has no past record in which we can judge her performance and will no doubt, receive the necessary from Dr Young in due course…” (emphasis added)

(c) The Press Release, especially the underlined words, became a matter of discontent. Dr Young, taking the view that the Press Release was defamatory, lodged a complaint against Dr William Wong (“Dr Wong”), the then President of the HKDA. The complaint was dismissed by the Preliminary Investigatory Committee.

(d) In around 2000, Dr Young withdrew from the HKDA.

(e) On 16 October 2005, which was some 10 years after the Election, Dr Young sent to the HKDA an email addressed to Dr Wong. In the email, Dr Young asked Dr Wong to apologise to her in all newspapers in circulation in Hong Kong for causing the Press Release to be issued shortly before the Election.

(f) On 30 December 2005, Dr Young herself placed 2 newspaper advertisements in Ming Pao and Metro Post regarding her candidacy in the Election. She then lodged a claim against the HKDA in the Small Claims Tribunal to recover the costs of placing the advertisements.

(g) In 2007, Mr Sigmund Leung, the then Vice President of the HKDA, verbally apologised to Dr Young.

(h) In the same year, Dr Young and the HKDA settled the Small Claims Tribunal proceedings.

(i) The HKDA then published in its newsletter the following notice, entitled “Termination of the case between Dr. Cecilia Young and HKDA at Small Claims Tribunal”:

“Regarding [Dr [Young]’s candidacy in the [Election] ten years ago, members of the present HKDA Council came to understand that the Council of 1995-1997 had neither the authority nor the intention to ask Dr. Young to give any submission in order to stand for the [Election].  It was so unfortunate that the [Press Release] created misunderstanding, which raised some unhappiness and frustration to Dr. Young.  We deeply regret that such a misunderstanding has occurred.  The long-standing case is now resolved and finally settled.”

(j) Dr Leung was the honourary secretary of the HKDA from 2003 to 2005. Dr Young contends that, as such, he “must have been aware of and involved in the continuing lawsuit concerning [Dr Young] and the “defamatory [Press Release]”.

14.  As to why Dr Young waited until now to raise Dr Leung’s apparent bias or conflict of interest, she claims that it was not until around November 2018 that she suddenly came across a digital article by Ming Pao dated 25 December 2005 (“Article”) and found out that Dr Leung may have been the secretary of the HKDA in around 2005.  She subsequently verified this matter on 24 March 2019 by emailing the librarian at the University of Hong Kong under a pseudonym to ask for scanned copies of the HKDA’s newsletters in November and December 2003 and September 2005.

Grounds of judicial review

15.  On 19 May 2019 – more than a decade after the Subject Decisions were handed down – Dr Young filed a 2-page Form 86, once again seeking leave to apply for judicial review of the Subject Decisions.

16.  The original Form 86 appears to have been homemade without the assistance of lawyers and is handwritten.  Under the heading “Grounds on which relief is sought”, Dr Young stated the following (sic):

“The public interest is a fair trial, [Dr Leung] had the conflict of interest, it is the prosecution side give the evidence to prove the defendant Dr Young wrong, [Dr Leung] did not give them to the [Council]. The expert witnesses should be responsible to the hearing, not the prosecution side.”

17.  After filing the Form 86, Dr Young obtained legal representation.  On 9 October 2019, she made the Amendment Application, seeking to replace the original Form 86 with a new one spanning 28 pages and signed off by her solicitors.

18.  Unfortunately, the draft amended Form 86 still does not clearly identify the number or nature of the proposed grounds of judicial review.  Doing the best I can, it appears that Dr Young is making 3 complaints:

(a)     Apparent bias of Dr Leung (“Ground 1”):

(i)     As the honourary secretary of the HKDA from 2003 to 2005, Dr Leung must have been aware of, and involved in, the continuing lawsuit between Dr Young and the HKDA over the Press Release.  

(ii)     Dr Leung’s knowledge of, and involvement in, the legal proceedings between Dr Young and the HKDA as the latter’s honourary secretary created a conflict of interest, which he should have disclosed to the inquiry committee.

(iii)     His failure to do so gave rise to a perception of apparent bias.  An objective observer would perceive a real risk of the Council’s inquiry committee being influenced by Dr Leung’s apparent bias against Dr Young.  As a result of Dr Leung’s bias, the evidence considered by the Council “would not be direct, conclusive or compelling”.

See paragraphs 23 to 46 of the draft amended Form 86.

(b)     Expert evidence being tainted with procedural impropriety (“Ground 2”):

(i)     Both Dr Tong and Dr So relied on Dr Leung’s evidence in preparing their respective expert reports.

(ii)     Given that Dr Leung’s evidence was tainted with apparent bias, the expert evidence is “unlawful on the grounds of procedural impropriety”.

See paragraphs 47 to 64 of the draft amended Form 86.

(c)     Non-disclosure of Dr Lee and Dr Leung’s clinical notes and records (“Ground 3”):

(i)     Despite Dr Young’s repeated requests, the Council did not provide her with Dr Lee and Dr Leung’s clinical notes and records that were later made available to, and relied on by, the expert witnesses (namely, Dr Tong and Dr So).

(ii)     Dr Leung intentionally withheld his clinical notes due to his apparent bias against Dr Young.  

(iii)     This was a breach of Dr Young’s right to be given sufficient information and to be properly informed in preparing her defence.

See paragraphs 72 to 79 of the draft amended Form 86.

19.  While on Dr Young’s proposed grounds of judicial review, I should mention for the record that:

(a)     Out of abundance of caution and with a view to ensuring that the court and counsel were on the same page, I indicated to Mr Tim Wong, counsel for Dr Young, that it was my understanding gained from considering the draft amended Form 86 and the written submission lodged by Mr Wong before the hearing[1] that Dr Young is not suggesting that Dr Leung was actually biased against her.

(b)     To my surprise, Mr Wong responded that Dr Young was also relying on actual bias.

(c)     Despite such statement, Mr Wong did not in the oral submission that followed deal with Dr Young’s case on Dr Leung’s alleged actual bias.

(d)     In short, Dr Young has not placed before the court any material to raise a case of actual bias. And this is the end of the matter.

Grounds of opposition

20.  The Council, represented by Mr Andrew Tong of the Department of Justice, opposes both applications on the following bases:

(a)     The Leave Application is seriously out of time and Dr Young has not demonstrated any exceptional circumstances justifying the grant of any time extension.

(b)     Dr Young is barred by cause of action estoppel from commencing the present proceedings.

(c)     Alternatively, the present proceedings are abusive of the court’s process in the Henderson v Henderson sense.

(d)     In any case, none of Dr Young’s purported grounds of judicial review is reasonably arguable.

No good reason for extension of time

21.  I am of the firm view that Dr Young should not be allowed to vex the Council or the court with a second bite of the cherry.

Inordinate delay

22.  Order 53 rule 4(1) of the Rules of the High Court (Cap 4A) requires an application for leave to apply for judicial review to be made within 3 months from the date when the ground(s) for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

23.  Further, s 21K(6) of the High Court Ordinance (Cap 4) provides as follows:

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant –

(a) Leave for making of the application; or

(b) Any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

24.  As the Court of Appeal said in AW v Director of Immigration [2016] 2 HKC 393 at [27]:

(a)     While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of Order 53 rule 4(1) and s 21K(6) are not intended to be applied in a technical manner.  As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled.

(b)     However, unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(c)     What may constitute a good reason for extending time would, in most cases, be a “multi-faceted question” the answer to which would depend on the circumstances of the particular case.  The following factors, which are not exhaustive, are likely to be of significance:

(i)     Length of the delay: Obviously the longer the delay, the more cogent the reason has to be extending time.

(ii)     Explanation for the delay: The presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii)     Merits of the substantive application: Although merits of the challenge of the administrative decision is a significant matter to be taken into account, it is by no means the sole or determinative criterion.  Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.  An applicant who sleeps on his rights may be barred from pursuing them in judicial review even though he may have a meritorious case.

(iv)     Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v)     Questions of general public importance: This involves asking whether the substantive application raises questions of general public importance, and whether those questions are likely to be resolved by the courts in any event.

25.  Dr Young commenced the present proceedings on 10 May 2019, which was more than 12 years after the 2007 Decision was handed down, and more than 10 years after the 2008 Decision was handed down.

26.  It is an understatement to describe such delay as inordinate, particularly in light of the requirement of promptitude for judicial review proceedings.  It is phenomenal!

27.  Indeed, one would have thought that by May 2019, the Subject Decisions had long become spent.  The sentences passed thereunder would have been served/enforced after the dismissal of Dr Young’s many appeals and applications for leave for judicial review. I fail to see any point or purpose in re-opening either of the Subject Decisions after a decade.  Dr Young and those acting for her have not identified any.

No believable excuse for the delay

28.  I refer to [14] above.

29.  Dr Young’s account raises more questions than it answers. 

(a)     Dr Young is completely silent about the circumstances in which she fortuitously stumbled upon the Article (published on 25 December 2005) in November 2018.  For example, was she just randomly surfing the internet or was she searching for some other specific information, during which the Article or a link thereto popped up?

(b)     The Article itself clearly stated Dr Leung’s full Chinese name and that he was the incumbent honourary secretary of the HKDA. Why was it still necessary for Dr Young to obtain the November and December 2003 and September 2005 newsletters of the HKDA?  What was the significance of these months?

(c)     If Dr Young did come across the Article in November 2018 and think that she should also obtain copies of the said HKDA newsletters, why did she wait 4 months until 24 March 2019 to contact the Hong Kong University librarian?

30.  In the circumstances, Dr Young has not established any exceptional circumstances to justify an extension of time to apply for leave for judicial review of the Subject Decisions again on the ground of delay alone, regardless of the strength of the proposed application for judicial review.

31.  This should be sufficient to dismiss both of the applications before the court.

32.  In any event, on the facts of this case, the lack of merits of the intended judicial review and the absence of public or general importance of such proceedings, which can be dealt with briefly, fortify the decision to refuse time.

No merits

Immediate elimination of Ground 3

33.  It should by now become apparent that Ground 3 can be eliminated right away. 

34.  The alleged bias of Dr Leung cannot in any event justify the delay in pursuing Ground 3, which focuses on the alleged non-disclosure of certain materials during the Inquiries and is not premised on Dr Leung’s alleged “apparent bias” or “conflict of interest”. 

35.  It is Dr Young’s own case that she had repeatedly asked the Council for the disclosure of the materials in question during the Inquiries.  See paragraphs 74 and 75 of the draft amended Form 86.  In particular, at the 2008 Inquiry, at which Dr Young was legally represented, the Council had expressly rejected Dr Young’s requests, ruling that the lack of the materials sought would not prevent a fair cross-examination.  In short, Dr Young clearly knew about this alleged procedural impropriety and there can be no excuse for not raising it in either HCAL 85/2009 or HCAL 86/2009 (at which Dr Young was also legally represented).

36.  For these reasons, Dr Young’s failure to raise Ground 3 in the previous proceedings is unarguably inexcusable.

No arguable case of bias

37.  Turning to Grounds 1 and 2, which are underpinned by Dr Leung’s alleged apparent bias against Dr Young.  Such alleged bias arises from Dr Young’s assumption that Dr Leung, as the honourary secretary of the HKDA during 2003-2005, had dealt with her claim against the HKDA.

38.  Such conjecture is misconceived on the facts.  Dr Young’s claim against the HKDA was for the recovery of the costs the advertisements placed by Dr Young with Ming Pao and Metro. Dr Young placed such advertisements on 30 December 2005.  That being the case, Dr Young could not have initiated the proceedings against HKDA in the Small Claims Tribunal in or before 2005.  Dr Leung’s position on the council of the HKDA from 2003 to 2005, or when Dr Young allegedly obtained such information, is therefore irrelevant.

Apparent bias of Dr Leung, if any, irrelevant in any case

39.  First of all, Dr Leung did not appear to be involved in the 2007 Inquiry at all.

40.  Second, Dr Leung was involved in the 2008 Inquiry but only as a witness as to fact.

41.  In challenging the Subject Decisions, the pertinent question is whether the Council, not Dr Leung, was biased.  There is no evidence, and it is not suggested, that Dr Leung held any office on, or had any influence over, the Council at the times of the Inquiries or the Subject Decisions.  I see no basis for suggesting that the Council may be perceived as biased because one of the factual witnesses who gave evidence lacked (or might be perceived to lack) impartiality.

Cause of action estoppel

42.  In R (Coke-Wallis) v Institute of Chartered Accountants [2011] 2 AC 146 at [34], Lord Clarke, adopting the definition in Spencer Bower & Handley: Res Judicata, held that cause of action estoppel contains the following constituent elements:

“(i) the decision, whether domestic or foreign, was judicial in the relevant sense; (ii) it was in fact pronounced; (iii) the tribunal had jurisdiction over the parties and the subject matter; (iv) the decision was – (a) final; (b) on the merits; (v) it determined a question raised in the later litigation; and (vi) the parties are the same or their privies, or the earlier decision was in rem.”

43.  These elements were adopted by the Hong Kong Court of Appeal in Total Lubricants HK Ltd v De Chanterac (No 2) [2013] 2 HKLRD 838.  In that case, the court added at [13]-[17] that:

(a)     A bar created by cause of action estoppel is absolute with no exception for special circumstances.  Where this kind of estoppel applies, its effect is to bar re-litigation of the entire cause of action including reformulation of that cause of action.

(b)     In all cases where the cause of action is really the same and has been determined on the merits, and not on some ground which has ceased to operate when the second action or claim is brought, the plea of res judicata should succeed.  The doctrine applies to all matters which existed at the time of the giving of the judgment and which the party had an opportunity of bringing before the court.

44.  I agree with Mr Tong that the intended judicial review will be barred by cause of action estoppel. Dr Young had applied, unsuccessfully, for leave to apply for judicial review of the Subject Decisions.  Her previous applications were dismissed on merits, not on some ground that has ceased to operate.  She is now seeking to bring the same claim against the Council, albeit on different grounds.  The elements set out in R Coke-Wallis) v Institute of Chartered Accountants are satisfied.

Henderson v Henderson abuse

45.  Alternatively, the present proceedings will in any event be barred by the application of the Henderson v Henderson principle under which the court may, in a case that does not fall within the rules of res judicata, still exercise its discretion under its inherent jurisdiction to prevent litigation that amounts to an abuse of process and to stop a party from raising an issue which was or could have been determined in earlier proceedings.

46.  Whether an action was an abuse of process as offending against the public interest in the finality of litigation should be judged broadly on the merits, taking into account all the public and private interests involved and all the facts of the case. 

47.  And it is wrong to take a dogmatic approach and hold that because a matter could have been raised in earlier proceedings, it should have been, so as to render the raising of it in later proceedings necessarily abusive: see Total Lubricants, supra at [29]-[31].

48.  The grounds of review now put forward by Dr Young, especially Ground 3, could and should have been raised in HCAL 85/2009 and/or HCAL 86/2009.  In those proceedings, Dr Young appeared by counsel and solicitors.  She thus had every opportunity to present whatever arguments she (with the benefit of advice from her lawyers) deemed suitable.  Yet she raised no such grounds in those proceedings.

No questions of general public importance

49.  No questions of general public importance are raised by Dr Young’s new challenge.  Rather, Dr Young is seeking to conduct a retrial of the matters raised in the inquiries.  For example, embedded in Ground 1 are various arguments aimed at challenging the correctness of the analysis or findings made by the Council in the Subject Decisions. For example, it is said that due to Dr Leung’s “apparent bias”, he did not conduct an orthopantomogram with the patients when they sought his second opinion, and that he failed to take into account other relevant matters (such as a referral letter written by Dr Young, and another letter written by Dr Young to the employer of the Patients), and that consequently the evidence considered by the Tribunal was not “direct, conclusive or compelling”.  These are all case-specific questions which affect only Dr Young and no one else.

Respective prejudice to the parties

50.  This is probably a neutral factor in the present case. 

51.  As stated in [27] above, the sentences respectively passed under the Subject Decisions would have already been served or enforced and cannot be undone. 

52.  Insofar as Dr Young is concerned, there is no evidence as to whether she is still practising.  Even assuming that she is, any dent on her professional reputation as a result of the Subject Decisions would have been long forgotten.

53.  As for the Council, although its primary statutory function is to regulate the practice, and standard, of dentistry in Hong Kong, it would probably, for the same practical reason, have no initiative to re-investigate the Patients’ complaints against Dr Young, even if the Subject Decisions were set aside.  As I have repeatedly noted in [27] and [51] above, the sentences passed under the Subject Decisions would have already been served or enforced and cannot be undone.  For this reason, the Council would probably see no point to re-open the Inquiries.

Disposition

54.  For the aforesaid reasons, I dismiss both the Leave Application and the Amendment Application.

55.  I also make a cost order nisi that Dr Young shall pay the costs of the Council, to be taxed on an indemnity basis, if not agreed.  This order nisi will be made absolute unless either side takes out an application to vary it within the next 14 days.

56.  Without pre-empting the parties, I have already ruled that the Leave Application is an abuse of process.  It is not only inexcusably late for a decade, it is more important that it is unsupported by the facts and evidence adduced by Dr Young.  She has lost on every point by a very wide margin.  She has not got any single matter right.  In the circumstances, I consider it appropriate to make Dr Young pay indemnity costs.