THE QUEEN ON THE APPLICATION OF JENKINSON v NURSING AND MIDWIFERY COUNCIL [2009] EWHC 1111 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
[2009] EWHC 1111 (Admin)Case No CO/10030/2006Venue Royal Courts of Justice, Strand, London WC2A 2LL
Between
THE QUEEN ON THE APPLICATION OF JENKINSONClaimantNURSING AND MIDWIFERY COUNCILDefendant
Before
Mr Justice CranstonMr D Edwards (instructed by HSR Law Doncaster) appeared on behalf of the ClaimantMrs M McDonald (instructed by Nursing and Midwifery Council) appeared on behalf of the DefendantDate 9 March 2009
[1]MR JUSTICE CRANSTON Introduction .In this judicial review, the claimant challenges a decision in August 1998 of the Professional Conduct Committee of the Nursing and Midwifery Council ("the Council"). That decision found that the claimant was guilty of misconduct and that her name should be removed from the register of qualifying nurses. Subsequently, the Court of Appeal set aside the conviction which was the basis of the finding of misconduct. The claimant now seeks to have any reference to her removed from the register. The implication of her present entry, ie that she has been removed from the register, is that she has been guilty of misconduct. She has no intention of resuming practice as a nurse. I am invited by the Council, an invitation supported by the claimant, to give guidance on the issue of whether the Council's Professional Conduct Committee ("the Committee") can review findings of professional misconduct where, for example, there has been a mistake as to their factual basis. The Facts[2].At this point let me briefly recapitulate the background to this case. The claimant, as I have said, had been struck off the register in 1998. In 1996 she had been convicted under section 18 of the HYPERLINK "https://www.iclr.co.uk/legislation/view/ukpga/Vict/24-25/100/contents/data.xml" \t "_blank" of having caused grievous bodily harm with intent. The jury convicted her by majority and she was sentenced to five years imprisonment. The facts were, in brief, that a patient had been admitted to the intensive care unit because of breathing difficulties. The claimant had been the responsible nurse administering a ventilator. The patient had subsequently died. Initially, she was charged with murder, subsequently reduced to the charge I have indicated.[3].The matter was considered by the Criminal Cases Review Commission who referred the matter to the Court of Appeal. The Court of Appeal, Criminal Division, presided over by Lord Justice Tuckey, heard the matter in November 2005. Counsel for the claimant, Mr Watson QC, explained to that court the background to the incident and the nature of the investigation. Apparently witness statements were taken from over 800 people in the course of what was obviously a large police inquiry. The trial had taken over 20 days before the Crown Court at Nottingham. She was acquitted of one of the attempted section 18 counts and was further acquitted of another section 18 count. She was, as I have said, convicted of one section 18 Count.[4].The expert evidence of a doctor, on use of the ventilator, was instrumental in the claimant's conviction. Subsequently, a Professor Aitkenhead prepared a report where he concluded that the basis of the doctor's evidence bearing on the claimant's guilt were "fundamentally flawed." When the doctor himself had been contacted, he conceded that his view at trial should have been different. Having considered the contents of Professor Aitkenhead's report, he felt that there was a proper basis on which the claimant's case could be referred to the Court of Appeal. The evidence in brief related to the switch on the ventilator. For completeness I should explain that Mr Joyce QC, who appeared for the Crown before the Court of Appeal, indicated that there was also a report by a Dr Bell. Dr Bell agreed with Professor Aitkenhead and was highly critical of the approach adopted by the trial expert. So it was clear that there was no basis for the conviction of this claimant. Subsequently, the Home Office agreed in principle to make a compensation payment, the amount yet to be decided.[5].The matter then came before the Professional Conduct Committee of the Council. The claimant, not unnaturally, was determined to have her name cleared, although she had no intention of returning to nursing. The Professional Conduct Committee considered the matter on 30th May 2006. Before that meeting the Council's lawyer, Miss Page, submitted that the Council had an overriding objective to ensure fairness in its proceedings and contended that there was inherent power to safeguard a person from oppression or prejudice. In her submission, the Council should agree to setting aside the earlier decision. This would not be to restore the claimant to the Council's register but would have the effect of clearing her name. Miss Page referred to the McFarlane and Akewushola decisions, to which I return. She distinguished the Akewushola decision.[6].However, the committee's legal assessor, Mr Irvine, argued that the committee did not have the inherent power contended for by Miss Page. He said that the Akewushola decision was clear and the inherent power of a statutory tribunal, like the Professional Conduct Committee, was more circumscribed than the inherent power of the High Court. He submitted that there was a benefit of the matter being dealt with by the High Court because it might be that further directions would be necessary, possibly with a view to public protection. The committee would not have such power.[7].The upshot was that the committee concluded that it had no power to assist the claimant. It acceded to the submissions of its legal assessor and come to a conclusion that the proper course was to make an application to the High Court. Subsequently, this judicial review application was made. Despite the considerable delay involved, it was said that an extension of time could well be justified by the exceptional circumstances. It had not been until 17th November 2005 that the claimant's conviction had been set aside, and until 30th May it had been understood that the Council had the power to review the decision of 1998. Once the transcript of the committee's decision of 30th May was available, the claim was brought within the necessary three months.[8].8.1.In summary, the claimant says simply that the finding of misconduct was announced in public, it is still available for the public to see, and that she is anxious that that finding of misconduct be expunged from the record. The judicial review is, in effect, supported by the trade union, Unison, in the sense that they suggest that in an extremely limited number of cases like this it would be helpful for the Council to have a power to take action without the intervention of the court. There is a fundamental gap in the Council's ability to function fully and fairly. The Royal College of Nursing takes a similar view in relation to what ought to be the inherent power of the Council, where, as in the claimant's case, the decision sought is favourable to her. In such cases the Council ought to have such a power although not in cases, unless the nurse consents, where the decision is prejudicial. The Statutory Framework[9].The hearing of the the Professional Conduct Committee of the Council in this case was under the Nurses, Midwives and Health Visitors Act of 1997, a consolidating measure. Under that Act, section 7 (3) conferred a power on the Council to make rules. Thus the Council promulgated the Nurses, Midwives and Health Visitors Professional Conduct Rules 1993, 1993 SI No 893. Rule 16 (1) (b) of those rules provided that a certificate of conviction would be conclusive evidence for the purposes of the rules, unless the person was able to prove that she was not the person referred to in the certificate. Rule 16 went on to provide that after the committee had determined that a conviction had been proved it could make a finding of misconduct. Proof of conviction alone, however, did not constitute misconduct. That was a matter for the Committee to determine in accordance with the rules.[10].Rule 18 set out the procedure, subsequent to a finding of facts by the committee. Rule 18 (1) stated:
"18 - (1) Where in a case of alleged misconduct the Conduct Committee has found the facts or any of them alleged in any charge to have been proved to its satisfaction the following procedure shall be observed - (a) if the respondent appears, the chairman shall ask her whether on the basis of the facts which have been proved she admits the charge of misconduct; if she does admit misconduct the Conduct Committee shall nevertheless proceed to make a determination under paragraph (2); if she does not admit misconduct, the respondent either directly or through her representative may adduce both evidence and argument as to why the facts do not constitute misconduct; the solicitor may reply to the respondent or her representative and with the leave of the Conduct Committee may adduce further evidence and the respondent shall have a right of reply to any matters raised by the solicitor but may not adduce further evidence; (b) if the respondent does not appear and has not admitted in writing the charge of misconduct, the Conduct Committee may call upon the solicitor to present any further information or evidence in respect of that charge."
Rule 18 (2) continued that the committee would consider and determine whether, in relation to the facts found proven, the person was guilty of misconduct. Rule 18 (6) established that the committee could then determine, whether by reason of misconduct, the Council should be directed to remove the respondent from the register. This was the procedure which applied when the claimant was found to fall within the misconduct provisions in 1998.[11].Under the Nurses, Midwives and Health Visitors Act of 1997, section 2 (1), the principal functions of the Council are to establish and improve the standards of training and professional conduct for nurses, midwives and health visitors. The current rules are contained in HYPERLINK "https://www.iclr.co.uk/legislation/view/uksi/2002/253/contents/data.xml" \t "_blank", SI 2002 No 253. Under that Order, the Nursing and Midwifery Council is established. Its principle functions are to said to be: ... to establish from time to time standards of education, training, conduct and performance for nurses and midwives and to ensure the maintenance of those standards... The main objective of the Council in exercising its functions shall be to safeguard the health and well being of persons using or needing the services of nurses or midwives." Section 3 (5) provides that:
"In exercising its functions, the Council shall - "(a) have proper regard to the interests of [not only nurses and midwives and prospective nurses and midwives]."
[12].Article 10 of the Order provides for the renewal of registration and for readmission, although it is important to note that under article 10 (2) (b) it is necessary for persons who would seek to be re-registered or readmitted to satisfy the requirements for continuing professional development. Article 12 of the Order deals with the lapse of registration, but that is applicable where the person is removed from the register on their own application or after the expiry of a specified period.[13].Part 5 of the Order sets out the provisions regarding fitness to practice. The council is mandated to establish and keep under review effective arrangements to protect the public from persons whose fitness to practise is impaired. Part 5 then goes on to deal with allegations that such fitness to practice has been impaired. Article 27 establishes the competences of the Professional Conduct Committee of the Council. Article 29 (7) provides as follows:
"(7) The Committee may specify in an order made under paragraph (5) a period within which an application to vary, replace or revoke the order may not be made, which - "(a) in the case of a striking off order, except where new evidence relevant to the order becomes available, shall be expressed in terms of article 33 (2); (b) in the case of a suspension order shall not exceed 10 months; and (c) in the case of a conditions of practice order shall not exceed two years."
Article 30 deals with reviews of orders by the committee. Article 30 (7) provides that where new evidence relevant to a striking off becomes available the committee which made the order may review it. However, the article continues before exercising its powers under 30 (7) a committee should give the person the opportunity to appear before it and argue the case. Article 33 of the Order deals with the restoration of persons who have been struck off. In particular Article 33 (5) provides that a committee shall not grant an application for restoration unless it is satisfied as to certain prerequisites. They include certain requirements as to training and provisional development.[14].For the sake of completeness, it is necessary to mention the Nursing and Midwifery Order of 2001, Transitional Provisions Order 2004, SI 2004 No 1762. This enables the committee to deal with matters which had been dealt with under the previous provisions. Article 8 (1) of that Order provides for an applicant to be restored to the register. The authorities[15].Let me turn to the relevant case law. Before me a number of authorities were cited in support of the proposition that the council's committees are able to review findings of professional misconduct in limited situations where the factual basis of a previous finding is unsound. First, there are a number of cases involving the exercise by bodies of statutory powers. These contain the obvious proposition that when Parliament confers express powers on statutory bodies those bodies also have further powers which are incidental or ancillary to the main power: for example, Attorney General v Great Eastern Railway [1885] AC 473. Then a number of homelessness cases were advanced. These involved decisions by local housing authorities where the courts had held that there was an implied power to review a decision to refuse housing where it was subsequently demonstrated that the factual basis of that original finding was unsound. The leading case in this regard is the Court of Appeal decision in R v Westminster City Council ex parte Ellioua [1999] 31 HLR at 440.[16].The first of the two leading authorities which deal specifically with the tribunals is the R v Kensington and Chelsea Rent Tribunal ex parte McFarlane [1974] 1 WLR 1486. That involved an application by the landlords who had served a 28 day notice to quit on the tenant. The tenant referred the matter to the rent tribunal. The tribunal had posted letters to the parties so they could inspect the flat but the applicant did not receive his letter. The tribunal tried to inspect the flat but could not enter. Neither party appeared at the subsequent hearing. The tribunal decided that the reference was frivolous and vexatious. The applicant then wrote explaining that he had not received the notification, but the tribunal replied that having made its decision it had no power to reconsider the case. The matter came to the Divisional Court presided over by the Lord Chief Justice. The Divisional Court granted the application. In the course of his judgment, the Lord Chief

Justice said:

"It seems to me that quite independently of the frivolous and vexatious point, with which I have already dealt, that it was open to the applicant if he had wished to go to the tribunal, indeed as he did by correspondence, to ask the tribunal to accept this explanation of his absence, and give him a further opportunity of being heard. It was the tribunal's duty on receipt of that application from the applicant to consider whether they would allow the case to be re-opened, and I would stress that tribunals must be very firm in the view which they take about this kind of case. There must be no question of absent parties taking no action over a period of months, and then coming back to the tribunal with some story of having been ill or being in South America when the hearing occurred. Tribunals must be satisfied before they reopen a case that there is a good argument on the merits for giving the absent party a chance to be heard, that he has got a real and reasonable excuse, that he had to be given a further chance and that, in considering whether he ought to be given a further chance, due regard must be had to the other party to the proceedings and to any third parties who may have acted upon the tribunal's decision on the assumption that it was right and to be sustained. All these matters must be taken into account, but if the tribunal, having considered them all, is of opinion that it would be proper to reopen the matter, it has power in my judgment to reopen it."
[17].The other decision on tribunals is Akewushola v Secretary of State for the Home Department [2000] 1 WLR at 295. That was an immigration case where the appellant was refused leave to enter and had appealed to an adjudicator. The adjudicator had dismissed the application and the appellant now appealed to the Immigration Appeal Tribunal. Before the date fixed for the appeal hearing, her legal representatives sought an adjournment. Through a mistake the application was not brought to the tribunal's attention. The tribunal dismissed the appeal in her absence. When the error came to light, a tribunal chair rescinded the decision and ordered a rehearing, but the chair of the second tribunal held that the decision by the chair of the original tribunal, purporting to rescind the decision, was a nullity.[18].A strong Court of Appeal dismissed the appellant's appeal. In the course of his judgment, Sedley LJ, with whom Laws LJ and Peter Gibson LJJ agreed, referred to rule 38 of the Immigration Appeals (Procedure) Rules 1984. That provided that any irregularity resulting from a failure to comply with the rules, before an appellant authority had reached its decision, would not, by itself, render the proceedings void. Sedley LJ held that the limit in point of time of that power to cure regularities was thus the point at which a decision was reached. Subsequent to that point, the power available to the tribunal to correct an error was very limited. "For my part I do not think that, slips apart, a statutory tribunal - in contrast to a superior court - ordinarily possesses any inherent power to rescind or review its own decisions. Except where the High Court's jurisdiction is unequivocally excluded by private legislation, it is there that the power of correction resides." The effect of these and other decisions admirably encapsulated in the current, the ninth, edition of Wade and Forsyth Administrative Law , 2007 (footnotes excluded):
"Even where such [statutory] powers are not conferred, it is possible that statutory tribunals would have power, as has the High Court, to correct accidental mistakes; to set aside judgments obtained by fraud; and to review a decision where facts subsequently discovered have revealed a miscarriage of justice. In the absence of such special circumstances the tribunal's decision is irrevocable as soon as it has been communicated to the parties... (p230)" "
Once a tribunal has announced its decision it has, as a general rule, no power to reconsider it or to reopen the case, unless of course its decision is quashed by the High Court. This applies equally where one of the parties later discovers fresh evidence which might well alter the decision, and in such a case the court has no power to assist by quashing. But there is an exceptional power to reopen the case where the tribunal's decision is given in ignorance that something has gone wrong, e.g. that a notice sent to one of the parties has miscarried. But this power must be exercised sparingly and only where the part prejudiced by the mistake has a reasonable excuse. (at page 938)" Issue one: The Inherent Power To Correct "Mistakes"[19].Mrs McDonald, on behalf of the Council, and supported by Mr Edwards, for the claimant, contended that it was sensible and consistent with legal principle for the Council to have a power, albeit limited, to take action in cases like the claimant's. There was no provision in the rules for the correction of errors or accidental slips and no provision for the Council to rescind or review a decision. In Mrs McDonald's submission, when it becomes apparent that a decision of a relevant committee is clearly based on a mistake, or contains some accidental slip, then the committee itself has the jurisdiction to correct that without the need for the parties to seek the intervention of the court. That would not be to usurp the appellant function of the court, but would be a pragmatic solution in the absence of any power contained in the rules. It would obviate the expense of approaching this court, an expense underlined by the fact that the Council is funded by the subscriptions of its members. To change the rules to incorporate a power for the Council that in such cases would involve considerable time and effort because of the consultation provisions set out in the rule-making powers in the legislation. It would be more efficient for the court to recognise that power.[20].In addition to the situation which has arisen in this case, Mrs McDonald suggested that similar considerations ought to apply to an order made in the absence of a nurse or midwife where it subsequently transpired that the requirements in relation to service of a notice of hearing had not been complied with. She said that the principle was directed to ensuring that the Council would have sufficient flexibility to manage its own proceedings without constant recourse to the High Court. It would be a mechanism for correcting mistakes which were essentially procedural in nature. The suggested ambit of the power was a narrow one. It would be to revisit a decision which could no longer be sustained because it was based on a wholly erroneous assumption or was based on a procedural irregularity.[21].Mr Edwards supplemented Mrs McDonald's submissions by underlining the limited nature of the inherent power which the court would have. Drawing on local authority housing case law, he contended that it would be a limited power to review a decision adverse to an applicant, not a power to review a decision in his or her favour: see, eg R v Westminster City Council ex parte Elliova (1998) 31 HLR 440.[22].Both counsel distinguished the Akewushola decision. A number of the points were advanced. It was said that the decision concerned a very different statutory scheme. It was a statutory scheme where a particular rule, rule 38, conferred a limited power of rectification in relation to irregularities. In that case, because Parliament had conferred circumscribed power, it was not surprising that that the Court of Appeal could not find an implied power on the part of the Immigration Appeal Tribunal to go further. The decision was readily understandable, as well, on the facts. For example, in the absence of confirmation that the application to adjourn had been granted, it was incumbent on the applicant's legal representatives to attend the hearing, which they failed to do. Thus it could properly be said that there were no grounds, procedural or otherwise, for asserting that there had been any sort of mutual mistake.[23].In relation to the obiter dictum of Sedley LJ, quoted earlier, it was contended by counsel that this overlooked decisions, notably the decision of the Lord Chief Justice in McFarlane . In Mr Edward's strong contention, the observations of Sedley LJ could not be regarded as a point of principle. In any event, both counsel submitted that the use of the word "ordinarily", in the passage quoted, indicated that even Sedley LJ conceded that in some cases there would be an inherent power on the part of a tribunal to take remedial action. Mr Edwards underlined that that meant that it would not be a matter of opening the flood-gates.[24].24.1.In my view, it is clear on the facts of this case that the decision in 1998 was founded on a mistake, namely that the claimant was guilty of a criminal offence. Once that conviction had been quashed, the finding in respect of the misconduct and the sanction fell away. There is no room, as it were, for speculation or uncertainty as to what the outcome would have been had the Court of Appeal's decision been available after the Council's proceedings had been initiated, but before the hearing.[25].Unlike Akewushola , there are no statutory powers for curing irregularities in this case, as there were in Rule 38. The principle established by Sedley LJ recognises that ordinarily tribunals do not possess an inherent power. The word "ordinarily" indicates that in some circumstances that power exists. The first passage quoted from Wade and Forsyth clearly identifies that where, for example, there is an accidental mistake, or a judgment based on a fraud or a miscarriage of justice, it is possible for a tribunal to take remedial action.[26].In my judgment, it would be unwise to provide guidelines. The history of the common law is a history of new and unexpected instances. It would be incautious of me to lay down general guidance. It would also be unwise of me to ignore the obiter dictum of Sedley LJ, supported by a strong Court of Appeal. In my view, however, it is clear from what Sedley LJ said, and from the passage in Wade and Forsyth which he approved (from an earlier edition) the power of the Council is not important in cases of slips, accidental mistakes or miscarriages of justice. In these cases, the council can act in a corrective fashion.[27].In this case, there was a clear miscarriage of justice. That miscarriage of justice was the conviction on the basis of unsound expert evidence before Nottingham Crown Court. On the back of that, the council made its decision about misconduct. Neither the jury at Nottingham Crown Court, nor the Council by their decision, need shoulder any blame for what occurred. But clearly there was a miscarriage of justice because of the misleading expert evidence placed before the jury in 1998. That being the case, this case clearly falls within the passage set out in Wade and Forsyth and approved by Sedley LJ. Issue 2: The Court's Power to Quash[28].Let me deal with the further issue of the claimant's application to the court to quash the 1998 decision. I have no doubt that the court has that power. To bring justice to this claimant as quickly as possible, I propose to exercise that power. The arguments which Mr Edwards has adduced about delay are compelling. More importantly the fact is that once the conviction was quashed by the Court of Appeal, section 2(3) of the Criminal Appeal Act of 1968 makes clear that it no longer had effect. The section provides that the quashing operates as a direction to the trial court to enter an acquittal. That section mirrors the long standing principle of the common law laid down by Lord Chief Justice Reading in the R v Barron [1914] 10 CrAppR 81 , that where a conviction is quashed the appellant "is in the same position for all purposes as if he had been actually acquitted". So, too, in this case. Not only is the conviction substituted by an acquittal but any further decisions which are consequential or parasitic on that conviction should also have no effect. In my view, this court should give effect to that result and in its powers should quash the 1998 decision of the Council. Alternatively, the quashing could be placed on the basis now well established in the decision of E v Home Secretary [2004] QB 1045, that an error of fact is an independent ground for judicial review. In this case, the committee in 1998 clearly made its decision premised on an error of fact, namely that the claimant was guilty of a criminal offence. The decision of the Court of Appeal, Criminal Division, has exposed that error of fact. Thus the 1998 Council decision is judicially reviewable.[29].The upshot is that I quash the 1998 decision.[30].MRS MCDONALD: My Lord, I am sure this is my fault, I thought when I outlined the legislative framework to you this morning enabling the statute for the Nursing and Midwifery Order is in fact section 60 of the HYPERLINK "https://www.iclr.co.uk/legislation/view/ukpga/1999/8/contents/data.xml" \t "_blank".[31].MR JUSTICE CRANSTON: Okay.[32].MRS MCDONALD: And the only other factual error, and again it is perfectly clear how that has been reached by reference to transcript, but Miss Page who presented the case before the committee in May 2006, is in fact counsel, not solicitor. In fact, it is her pupil who sits behind me this afternoon.[33].MR JUSTICE CRANSTON: Sorry, she is?[34].MRS MCDONALD: She is counsel.[35].MR JUSTICE CRANSTON: She is counsel.[36].MR EDWARDS: My Lord, that leaves the consequential matters. Is your Lordship content in the light of the indication if we prepare a draft order between us?[37].MR JUSTICE CRANSTON: Can you discuss it with the associate because I think you have agreed costs, as well, have you not?[38].MR EDWARDS: My Lord, I am afraid not.[39].MR JUSTICE CRANSTON: You have not?[40].MR EDWARDS: The reference in my skeleton argument was slightly premature.[41].MR JUSTICE CRANSTON: I thought you had.[42].MR EDWARDS: My Lord, I thought we had too at the time of the skeleton, but the position is rather different. My Lord, the position, as I understand it, is this: the council has agreed to pay the claimant's costs up until the 20th November 2008. As I understand the position, the relevance of that date is that on that day, or perhaps the day before, a letter was written by the council indicating that they were unlikely to contest the claim but would nevertheless be seeking guidance from the court as to imply powers. My Lord, I make an application that the council should pay the claimant's costs up until today. The reason being is that it has proved necessary to come to this court, to obtain the relief that the claimant was seeking in the light of the approach taken by the Professional Conduct Committee of the council. So far as the claim being sought was for judicial review and a quashing order that represents a discretionary matter which would necessitate an appearance at court and for submissions to be made. On that basis, my Lord, I apply for the order that the respondent pay the claimant's costs in full subject to --[43].MR JUSTICE CRANSTON: They agreed to pay up to what day, sorry?[44].MR EDWARDS: 20th November 2008. So, the issue, as I understand it on the principle, is the costs between 20th November and today's date.[45].MRS MCDONALD: Indeed. My Lord, I will place before you the letter which I wrote to the claimant's solicitor on that date.[46].MR JUSTICE CRANSTON: Yes, just tell me what it says or if the associate could hand it up. What do I have to look at here?[47].MRS MCDONALD: My Lord, this is an open offer in which the council undertakes effectively to do all in its power within the remit of these proceedings to ensure that the order made by the Professional Conduct Committee on 30th May 2006, and the indeed the one made specifically on 21st August 1998, is quashed. It is, as I say, an open offer; and I hope the rational and the principle behind it is apparent to the court. It was clearly made with the express intention of avoiding incurring unnecessary costs on behalf of the council, for all the reasons that I addressed you on at the outset of the hearing today.[48].MR JUSTICE CRANSTON: Yes. Sorry, you are going to have me help me on this. You came to court anyhow because you wanted guidance and in fact I have given you some guidance.[49].MRS MCDONALD: There were, in my submissions, sufficient safeguards for the claimant's position for her not to attend or need to be represented (inaudible) and I will take you through the letter. Secondly, even if that is the case, the court still has to consider whether or not it is appropriate that the council should pay costs once the council had conceded unequivocally, by means of an open offer, that the claimant was entitled to have the order that its Professional Conduct Committee had made quashed. Now, I think it is important, my Lord, that you look at the detail of the letter. It certainly was the intention of the council to provide more than adequate safeguard of the claimant's position; and the real issue is that it is certainly not suggested on behalf of the council that she should not have appeared today; it is her application and she is perfectly able and free to and one understands why she may wish to do that. The issue for the court now is whether or not she should appear at the expense of the council, given that whilst the decision of today, not opposed, has been to quash the decision made by the Professional Conduct Committee, it was nevertheless a decision which was perfectly properly made, at the time, on the basis of the information available to it.[50].MR JUSTICE CRANSTON: One aspect you are saying is you would have come along in any event and you would have put her case, why did she have to come?[51].MRS MCDONALD: Yes, indeed, that was certainly the stance taken. I will take your Lordship through the detail of the letter because I think it is important.[52].MR JUSTICE CRANSTON: Yes, which particular passages.[53].MRS MCDONALD: Well, I set out the position in relation to the council in the second paragraph which really is how the matter is to be conducted in the future. Your Lordship may recall that there was an agreed consent order setting out directions for the disposal of this matter. If I take you to the third paragraph:
"The council has agreed to pay your client's reasonable costs to date and remains supportive of your client's position in seeking to set aside the PCC decision of August 21st 1998; however as matters currently stand, the NMC would be reluctant to accept liability for any further costs incurred by your client in the course of these proceedings."
[54].Then I go on to put forward practical proposals in terms of protecting the claimant's position:
"... we are happy to keep you fully informed of the progress of the case and to provide you with copies of the documentations so that you are able to advise your client appropriately should it appear at any stage that an issue has arisen which would justify her taking a more active role in the proceedings. "
In addition if the court were to conclude that the advice given by the legal assessor was correct and the PCC did not have the power to set aside the original finding of misconduct, the NMC will be willing to consent to the Court making an order quashing the decision of the PCC on August 21st 1998 so as to obviate the need for your client to be represented at the final hearing. "On that basis, [I say] while of course it remains open to your client to take an active part in the proceedings, the NMC would resist [as it does before you, my Lord] any suggestion that it should be liable for any further cost she might incur in doing so."[55].You will see that it is expressed as an open offer not a part 36 offer. So I say that the claimant could have been perfectly secure, not only that her application for the decision of August 21st 1998 would be quashed, even if she took no further active part in these proceedings at all, but that what was anticipated was that she would be kept regularly informed of the progress of these proceedings and copied into any correspondence.[56].MR JUSTICE CRANSTON: Well, I have that, yes.[57].MR EDWARDS: So she would be able to consider whether or not an issue had arisen. I say no issue had arisen and in those circumstances and again taking into account that this is not a case where it can properly be said that the respondent has been in anyway obstructive in the claimant obtaining the relief which the court has now granted.[58].MR JUSTICE CRANSTON: Yes, I have the point.[59].MRS MCDONALD: Well, my Lord, the final matter that I refer you to is the note in the White Book which deals with the case of Baxendale v Walker and that is the note of part 44.3.8.1, it is page 1128 of the 2008 edition.[60].MR JUSTICE CRANSTON: 44.3.8.1.[61].MRS MCDONALD: Yes, page 1128, where the editors note following the decision report in Baxendale v Walker that the special consideration is applied --[62].MR JUSTICE CRANSTON: Sorry, where is this?[63].MRS MCDONALD: Costs against a regulatory body is the heading.[64].MR JUSTICE CRANSTON: Yes.[65].MRS MCDONALD: "A regulator brings proceeding..." and, of course, in this instance we have been the respondent. Nevertheless, I say that the principle still applies in the public interest in the exercise of public function, which it is required to perform in those circumstance, that the principles applicable to an award of costs differ from those in relation to private civil litigation.[66].MR JUSTICE CRANSTON: Yes.[67].MRS MCDONALD: I take your Lordship to that. The council has accepted that it will pay the claimant's costs up until November of last year, notwithstanding that I have already indicated the fact that this was a decision already reached, but, in my submission, it would be wholly inappropriate for the court to exercise discretion and order that the council, given the public function that it fulfils --[68].MR JUSTICE CRANSTON: Well, let us hear from Mr Edwards.[69].MR EDWARDS: I can respond briefly to the points that were raised by Mrs McDonald. My Lord, notwithstanding the guidance in the White Book, your Lordship was taken to the normal rule that costs follow the event, that must be the starting point in my submission. So far as whether it is appropriate for the council to pay costs having regard to that guidance, your Lordship is invited by the editors of the White Book to consider the financial prejudice to the particular complaint against the need to encourage public bodies to exercise their functions. In my submission, the claimant in this case would certainly suffer financial prejudice if she were not able to recover her costs particularly in having regard to the circumstances as she finds herself in. So far as the offer of 20th November is concerned, the concession made at the top of the second page of that letter --[70].MR JUSTICE CRANSTON: Well, I have that.[71].MRS MCDONALD: -- is consent to judgment, it seems --[72].MR JUSTICE CRANSTON: In my view, this is a case where the council has to pay the costs. Especially there is that paragraph at the top of page 2. In effect, I have found that the advice of your legal assessor was inaccurate. But I do take the point that this is a regulatory body and acts in the public interest.[73].MRS MCDONALD: My Lord, that is right and I think the only submission I make, and I do make it in the face of the very clear indication of what is given at the moment is this: if one applies the principles encapsulated in part 36 and this, of course, is an open offer so if anything it is clearer than part 36, then the issue for the court is whether or not the claimant, on the facts of this case, has achieved a better or different result from that which is proposed under the auspices of this letter. So whilst the normal rules are that costs follow the event, they do not follow the event of course in the face of a part 36 or an open offer because the claimant still has to show that in incurring the expenses of coming before the court, she has actually achieved something different or better from that put in the letter of offer, in this instance, of 20th November last year; and that, in my submission, is an important principle which the court should be slow to depart from.[74].MR JUSTICE CRANSTON: Yes, well, notwithstanding that I am going to order you to pay the costs.[75].MRS MCDONALD: Well, if your Lordship is against me on that, I am going to ask you to undertake a summary assessment of the costs.[76].MR JUSTICE CRANSTON: Yes, on that basis, I am going to assess costs here.[77].MRS MCDONALD: I am grateful.[78].MR JUSTICE CRANSTON: Yes, what do we have?[79].MR EDWARDS: Yes, the court should have a statement of costs for summary assessment.[80].MR JUSTICE CRANSTON: No. I have got one from you.[81].MRS MCDONALD: Yes.[82].MR JUSTICE CRANSTON: Is that right?[83].MR EDWARDS: Yes.[84].MRS MCDONALD: Well, there would not be one from us, as we were not seeking our costs in any event.[85].MR JUSTICE CRANSTON: Of course. But it is often useful to see yours by way of comparison, because yours are always very modest.[86].MRS MCDONALD: Ours are very modest. If it assists the court, I can indicate, my Lord, that I, at 2 o'clock, was accepting a judgment in another case, where we had succeeded on a statutory appeal and our costs for conduct and appearance at that appeal were just over £3,000.[87].MR EDWARDS: My Lord, so far as the statement that your Lordship has, there is a modification (inaudible) an adjustment that needs to be made. There are two elements, first of all, so far as counsel's fees are concerned, my fees, your Lordship will see £11,207 on page two in the second box down reduced to £7,184.51, and the total is then reduced on the same page, fifth box from the £20,328 to £16,215.76, given a total, with the adjustment for VAT of £16,616.56.[88].MR JUSTICE CRANSTON: What do you say about that?[89].MRS MCDONALD: Well, my Lord, I say, first of all, that the final sum is totally disproportionate but if I go through it item by item and, I am afraid to say, that the main issue is that I am going to take is in relation to my learned friend's fees. As far as the solicitor's fees are concerned, just over £2,500 I do not think that I would have much to argue about in relation to those. As far as my learned friend is concerned, I am afraid it is a different matter. Part of the difficulty that the court has, first of all, in assessing the fee for advice, conference and documents now set at £7,184.51 is the dearth of information as to precisely what that covered. But in terms of my learned friend's ongoing involvement in this matter, I also, of course, take issue with his brief fee for today. I say that the sum of £6,000 is clearly excessive particularly given the very clear indication by the council in November last year that there was not going to be any opposition to the central relief that he was claiming on behalf of the claimant. So, I say it is one thing for the claimant to say, "well, I am entitled to appear at my own application," but where the claimant knows that in fact her claim for relief is not going to be opposed by the defendant, to suggest that counsel's appearance and fees should be £6,000 is, in my submission, wholly disproportionate. I say that produced a total figure in excess of £13,000 as far as my learned friend is concerned. I do not, of course, take any issue with the disbursement claimed, of course, they are very minor.[90].MR JUSTICE CRANSTON: Well, let us hear then.[91].MRS MCDONALD: The difficulty that I have as far as the £7,000 is concerned is understanding precisely where that comes from, but certainly so far as his fee for today is concerned I take issue on that.[92].MR JUSTICE CRANSTON: Yes. Defend your fee.[93].MR EDWARDS: As far I can assist, my Lord, I can indicate what the costs were made up of. So far as the £7,000 odd figure that provides for initial advice, drafting of letters before claim, the drafting of proceedings and the appearance and the skeleton argument before Mr Justice Stanley Burton on the renewed permission hearing. So far as the costs of today.[94].MR JUSTICE CRANSTON: That was a renewed application.[95].MR EDWARDS: That was a renewed application. So far as the costs of today are concerned, they provide for appearance today.[96].MR JUSTICE CRANSTON: What had happened there? It had been refused, had it?[97].MR EDWARDS: It has had a rather more convoluted history than your Lordship has seen from the papers. There was initially opposition to the claim from the council that led to permission being refused on paper by Mr Justice Jackson that was then renewed before Mr Stanley Burton with no appearance from counsel and that led to the permission being granted.[98].MR JUSTICE CRANSTON: So the Council original opposed?[99].MRS MCDONALD: If I can assist the court with that. The basis on which they opposed was on the narrow basis that the decision reached was regularly and properly reached by the committee. However, in any event, the costs of that opposition, if one likes, is encompassed in the costs up to and over twenty and quite clearly that concession was made, and readily made, on behalf of the council at that stage.[100].MR JUSTICE CRANSTON: Well, how much were the costs up to November. Do we know approximately?[101].MR EDWARDS: My Lord, if you just bear with me for a moment. Until November the costs in total including VAT are £8,019.35.[102].MR JUSTICE CRANSTON: That was including your fees.[103].MR EDWARDS: That was including my fees, yes, downwardly adjusted in accordance with the corrections I made a moment ago.[104].Can I just, my Lord, in case it is matter that is troubling your Lordship, respond to the point that was made by Mrs McDonald about the council's initial reaction to this claim. It was slightly more involved than has been indicated in the sense that there was an opposition to bringing the claim out of time against the original decision and at that stage the council were advancing a case that the proper and only remedy available was an application to be restored to the register in the event that the claimant wished to start practising again.[105].MRS MCDONALD: I certainly accept that and I am grateful to my learned friend for reminding me that that was the situation. Nevertheless, the observation I make is that costs of £8,000 in November are now put at twice that, notwithstanding the offer made by the council at that stage. In other words, the court is asked to consider whether given the chequered history of this matter, including my learned friend's appearance to renew the application orally, all of which brought the costs to about £8,000 is one thing but whether or not subsequent to that, the conduct of this matter on behalf of the claimant since then can properly be said to, in fact, double those costs, that must be wrong in my submission.[106].MR JUSTICE CRANSTON: Yes, the doubling. Just not looking at your fee or anything the doubling is considerable. I can well understand how you got to the fee, but just looking at it the numbers are troubling.[107].MR EDWARDS: My Lord, the only explanation that I can perhaps offer is that after the position that the council adopted was disclosed on 20th November, it was asking, as its principle ground of relief, for a declaration as to the existence of implied new issues so far as the claimant is concerned. Therefore, the costs were incurred in formulating the initial claim and preparing for a renewed application for leave were not issues that addressed the point that it is now being advanced.[108].MRS MCDONALD: The claimant could properly have said, "well, if that is what you want to do with the court, you go ahead and do it and we will simply preserve our position, and come along and make sure we get the order quashed."[109].MR JUSTICE CRANSTON: I am troubled by the doubling. These things are very inexact justice. But it seems to me that if you reached a total of £14,000 that would be reasonable.[110].MR EDWARDS: Thank you, my Lord.[111].MR JUSTICE CRANSTON: Right, thank you very much.

Cited in 5 later judgments