Mitchell v The Nursing and Midwifery Council [2009] EWHC 1045 (Admin)

[2009] EWHC 1045 (Admin)Case No CO/9269/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 6 May 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BEAN
Between
EVELYN MITCHELLAppellantv
Between
THE NURSING AND MIDWIFERY COUNCILRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
The Appellant appeared in person for in personMiss Clare Strickland (instructed by Nursing and Midwifery Council) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE BEAN: The appellant's notice, filed in this court on 30 September 2008, seeks to challenge a decision of the Conduct and Competence Committee of the Nursing and Midwifery Council, contained in a letter dated 15 December 2006, that Ms Mitchell, the appellant, should be struck off the Register of Nurses.[2]The respondents to the appeal, the Council, take a preliminary point, that by reason of the recent decision of the House of Lords in Mucelli v Government of Albania [2009] 1 WLR 276, the appeal is out of time, and I have no power under the Civil Procedure Rules to extend time.[3]I should set out the history. The Nursing and Midwifery Order 2001 (SI 2002 No. 253) made pursuant to sections 60 and 62 of the Health Act 1999 requires by rule 29(10) that any appeal against a striking off order must be brought before the end of the period of 28 days beginning with the date on which notice of the order or decision appealed against is served on the person concerned. Proceedings were launched in this court on 16 January 2007. Since the date on which it appears the decision letter was served, or was deemed to have been served, on Ms Mitchell was 19 December 2006, that claim form, had it been in proper form, would have been in time, or possibly one day late. It is not necessary to decide that on the present application.[4]The claim form was an application for permission to apply for judicial review. It was the wrong procedure to use since the way in which to challenge a striking off order in this court is by way of statutory appeal under CPR rule 52, rather than an application for judicial review under CPR rule 54. However, this might be thought a highly technical point.[5]When the application for permission was considered by Ouseley J on the papers, after referring to his unfavourable view of the merits of the case, he said this:
"She [the claimant] has therefore failed to show any basis upon which the NMC decision to proceed could arguably be flawed. There was a right of appeal against the decision to the High Court within 28 days. The claimant may have regarded this application as the appeal. If she did and there is no permission requirement, there may be a question of whether this application should be treated as that appeal and the procedural error rectified. But that is a matter of discretion. The complete absence of any merit discernible in her case should militate against the exercise of any discretion in her favour."
[6]Notwithstanding that expression of view on the merits by Ouseley J, the claimant renewed her permission application, which was therefore heard in open court by Stanley Burnton J (as he then was) on 30 January 2008 ([2008] EWHC 2705 (Admin)). Ms Mitchell was represented by counsel. Stanley Burnton J did not mention the point about whether the correct procedure had been used; he simply considered the application for permission for judicial review on its merits. Like Ouseley J, he did not consider that it had merit. He said:
"In my judgment, it is unarguable that the Committee did not apply the law correctly. There is no clear evidence of any misapprehension as to the facts. In my judgment this is a case in which permission was rightly refused. The case is not arguable."
He proceeded to make an order for costs against Ms Mitchell summarily assessed in the sum of £925.[7]There one would have thought the matter would have rested, but on 30 September 2008, Ms Mitchell filed the appellant's notice, which is the subject of the present appeal to me. In section 8 of the notice, she (or the person who has advised her) writes:
"I wish to apply for an extension of time under CPR 52.6 on the basis that I have been poorly represented by my former solicitors who although instructed by me at the end of 2006 to appeal the NMC decision, instead brought an application for judicial review in January 2007. Permission for such an application for judicial review was refused by order dated 30 January 2008. It was only in August 2008 that I was sent a copy of the application actually made after I had made a complaint to my former solicitors. I was under the impression that the correct process was being followed to appeal the NMC decision. I did not realise that my solicitors were making the wrong type of application."
[8]I accept that Ms Mitchell did not realise, and indeed her former solicitors did not realise, that the procedure they were using in issuing the judicial review claim form in January 2007 was not the correct one, but as the history I have outlined so far illustrates, it did nevertheless lead to two experienced judges of this court giving a view on the merits of the case.[9]The speeches of their Lordships in the Mucelli case were delivered on 21 January 2009, after the appellant's notice in this case was lodged. When it was lodged, Ms Mitchell (or those advising her) were able to refer to a decision of the Inner House of the Court of Session in the case of Hume [2007] CSIH 53, in which the Inner House (the Lord President, Lord Macfadyen and Sir David Edward) held that Article 29(10) of the Nursing and Midwifery Order 2001 did not deprive the court of jurisdiction to extend time if it saw fit, notwithstanding that the statutory time limit had not been complied with.[10]That decision, however, has plainly been overruled by Mucelli. In his speech at paragraph 74, Lord Neuberger of Abbotsbury refers to the "clear and unqualified statutory time limit" which applied in that case, which was of course concerned with extradition rather than professional disciplinary proceedings, and held that there was no basis upon which it could be extended. He referred to the provisions of the English and Welsh Civil Procedure Rules allowing the court to extend time for the taking of any step. He noted, however, that CPR rule 3.1(2)(a) permitted the court to extend the time for compliance "with any rule, Practice Direction or court order". The hurdle which is placed in Ms Mitchell's path by Article 29(10) of the Nursing and Midwifery Order is neither a rule of court, a Practice Direction, nor a court order, and so rule 3.1(2)(a) does not assist.[11]At paragraph 78, Lord Neuberger turns to CPR rule 52 and says this:
"78. It is true that the Practice Direction to CPR Pt 52, and the prescribed form of the notice of appeal both suggest that the court's powers to extend time under the CPR apply to the appeal process. As a general proposition this is of course, true, but it does not follow that the draftsman of those documents considered, let alone was stating, that the court must have such power in relation to every type of appeal. In any event, CPR r 52.1(4) makes it clear that the provisions of CPR Pt 52 are "subject to any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal", and the practice direction is brought into effect through CPR r 52.2."
[12]On this basis the House held that the courts below did not have any power to extend the time for a statutory appeal even by a very short time, even though in one of the cases before their Lordships the appeal had been lodged with the court in time but not served on the respondent until the following day. It is to be noted that these were extradition cases where the consequences for the unsuccessful appellant were potentially very serious. Be that as it may, it is quite clear to me that, in the light of Mucelli, I have no power to extend time, and the appeal must therefore be dismissed.[13]I should add, however, that even if I had a discretion to grant an extension of time, I would not have done so in this case. This is primarily because the merits of Ms Mitchell's appeal or application have already been considered twice: once by Ouseley J; once by Stanley Burnton J; and in each case this court held that there was no arguable basis of challenge to the Council's decision on the merits. It would be quite wrong, even if I had a discretion, to exercise it so as to allow the case to be ventilated on the merits for the third time.[14]Accordingly, this appeal must be dismissed.[15]MISS STRICKLAND: My Lord, there is an application for costs. It is for a relatively low sum generally, although I appreciate not to the appellant. It is for the sum of £1,500. A schedule has been served on Ms Mitchell, which was current up to Friday. So she has had notice of the sums involved.

MR JUSTICE BEAN: Yes, could I see it please?

[17]MISS STRICKLAND: Yes, my Lord. (Passed)[18]MR JUSTICE BEAN: Yes. Ms Mitchell, is there anything you would like to say about costs or the amount of costs?[19]APPELLANT: My Lord, I am unable to pay that sum. Since I have been struck off, financial difficulties, it is quite difficult. So I am unable to pay that large sum.[20]MR JUSTICE BEAN: Yes, thank you. As Stanley Burnton J said on the last occasion, it is not the practice of this court to determine liability for costs or its amount by reference to the means of the defendant. That is a matter to be taken into account if and when the order is enforced. It is quite plain that, the appeal having been dismissed in the circumstances which I outlined in my judgment, the Council is entitled to an order for costs.[21]The hourly rate claimed is entirely reasonable -- indeed modest -- and the amount of work involved does not seem to me to be in any way excessive. Accordingly, I summarily assess the costs at £1,500, and order that the appellant pay that amount to the respondent.[22]The question of Ms Mitchell's means may, as Stanley Burnton J said, fall to be taken into account if the Council seeks to enforce the order, but I make the order in those terms. Thank you both, very much.

Cited in 6 later judgments