Harrold v NMC [2016] EWHC 2555 (Admin)

Mr Justice Jay refuses NMC’s application to strike out the appellant’s appeal on the basis that it had been abandoned/constituted an abuse of process

Background: The appellant was a registered nurse. In 2004, whilst employed at the North Bristol NHS Trust (the Trust), the appellant left a handwritten letter on the floor of the dialysis unit, addressed to patients, in which she complained about the unit manager and stated that she had been harassed. The appellant was dismissed from the Trust.

In October 2009 a hearing took place in the appellant’s absence before the Conduct and Competence Committee (CCC) of the Nursing and Midwifery Council. A striking off order was imposed in relation to the conduct referred to above. The appellant appealed to the High Court by way of an appellant’s notice lodged on 20 November 2009. No skeleton or bundles were lodged.

A relatively complicated chronology unfolded during the following years which is set out in detail in the judgment. In short, in 2010 the appellant applied to amend her grounds. The appellant then applied for the statutory appeal to be stayed having lodged a claim in the Employment Tribunal (ET). No formal order was made by the Court, however, the statutory appeal was taken out of the list. The appellant’s claim in the ET was successful. The ET found that a witness who gave evidence for the NMC in the 2009 hearing before the CCC had given incorrect evidence.

In December 2011 the appellant sought to amend her grounds of appeal to introduce racial discrimination. Nothing happened in relation to the statutory appeal in 2012 or 2013, save that the appellant made an inquiry in September 2013 to the Administrative Court Office (ACO). The was further inactivity until September 2014 when the ACO decided to list the statutory appeal for a disposal hearing.

Appeal: On 10 November 2015, directions were given by Sir Brian Keith. A further hearing took place before Jay J on 20 September 2016. At that hearing the NMC argued, inter alia, that the appellant had abandoned her appeal and that to allow the appeal to continue would constitute an abuse of process. The Court was referred to a number of authorities in which it was held that to commence and continue litigation which a party had no intention of bringing can amount to an abuse of process. However, delay alone was not sufficient. Some additional ingredient was required from which the Court could infer that there was an intention in the relevant party to no longer to prosecute a claim to a conclusion.

The NMC also argued that the appellant had adopted inconsistent positions in different tribunals. Jay J summarised that argument at [29] as follows: “For the purposes of the discrimination claims in the Employment Tribunal and the County Court — and here the focus must be on the claims against the NMC — it was necessary for the appellant to state that she had been struck off since that would found her claim for damages and moreover the longer that she was struck off the greater would be the damages. If however the appellant brought a successful appeal in the High Court then by definition she would no longer be struck off which, so the argument runs, would wholly undermine the premises or predicates of the Employment Tribunal proceedings.”

Ruling: Jay J identified the central issue being whether the appellant had in truth abandoned her statutory appeal. Jay J refused to infer that the appellant had abandoned her appeal. Jay J also rejected the NMC’s argument that the appellant had adopted inconsistent stances in different tribunals. The Judge stated at [41] “Nor do I think it is fair to draw the inference that the appellant made this calculation, namely “let’s win in the Employment Tribunal, maintain before the Employment Tribunal that my claim for damages is surely unlimited as to time, pocket those damages calculated on that basis and then come back to the High Court in due course and see how far we get with the statutory appeal”.

The appellant’s statutory appeal will be heard in due course.

The transcript of the judgment can be found on WestLaw.

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