Kehinde Bimpe Adegbulugbe v Nursing and Midwifery Council (Defendant/Applicant) A & C Solicitors (A Firm)and Another

On 30 October 2013 I gave judgment dismissing a statutory appeal by Ms Adegbulugbe against a decision by the Nursing and Midwifery Council's Conduct and Competence Committee to strike her from the Council's register following findings of misconduct. The appeal had been brought out of time, in that the appellant's notice was filed with the Court on 14 December 2012 when the 28 days prescribed by the Rules for doing so had expired on the previous day. The full background is set out in my earlier judgment [2013] EWHC 3301 (Admin). It is clear from the appellant's notice itself that the person who issued it was aware that it was out of time, because an extension was sought, on grounds set out in part C. There were no exceptional circumstances that would have justified my extending time, and accordingly I had no jurisdiction to entertain the appeal.

After I had delivered judgment, Miss Stephenson on behalf of the NMC made an application for a wasted costs order against Ms Adegbulugbe's legal representatives, (referred to hereafter as "the Solicitors" and "Counsel"). The NMC had written on several occasions to the Solicitors pointing out that there was no jurisdiction to extend time, most recently by letter dated 23 September 2013 which quoted the salient passage from the judgment of Maurice Kay LJ in the leading case of R(Adesina and Baines) v Nursing and Midwifery Council [2013] EWCA Civ 818. That quotation was repeated in Miss Stephenson's skeleton argument, which was served on the Solicitors two weeks before the date fixed for hearing of the appeal.

The NMC's letter of 23 September 2013 said that it was evident that Miss Adegbulugbe's case did not fall within the very narrow exceptions outlined in Adesina. The fact that this observation was justified would have been blindingly obvious to any competent legal adviser who read the authority in question, or even just the extract from it in the NMC's letter. The NMC made the generous offer not to seek its legal costs if the Solicitors agreed to withdraw the appeal and notified them that they had done so by 30 September. The offer was rejected in circumstances to which I shall return. The appeal was pursued, costs were incurred by the NMC, and when the appeal was heard the inevitable happened. It is important to note that the NMC is only seeking an order for the costs that it has incurred since that offer was rejected.

After hearing argument on the matter after giving judgment dismissing the appeal, I was satisfied that the evidence before me was sufficient to cross the threshold in CPR 48 PD53.6, namely that if it was unanswered, it would be likely to lead to a wasted costs order being made, and that the wasted costs proceedings were justified, notwithstanding that they would lead to further costs being incurred. I gave directions for the service of further evidence and submissions, and that there should be a further hearing at which the Solicitors and Counsel would be afforded the opportunity to put forward reasons why a wasted costs order should not be made against them. I also adjourned over to the further hearing the NMC's application for costs against Ms Adegbulugbe, as the losing party to the appeal.

The Solicitors put in a response in the form of written "submissions" under cover of a letter dated 22 November 2013. Counsel produced a skeleton argument dated 29 January 2014. Neither of them produced any witness statement or evidence in formal form.

Their lay client, Miss Adegbulugbe, sent an email to the court on 3 December 2013 in which she has chosen to waive privilege over certain communications between herself and the Solicitors. Given that she is representing herself, I am prepared to treat that email as her evidence. No application was made to cross-examine her on its contents. Ms Adegbulugbe said she should not have to pay any of the costs. She complained about the fact that the Solicitors charged her £2,300, which she paid them in instalments. She stated that if she had been advised that her appeal would not be heard because it was out of time, she would have withdrawn the appeal and kept her money to take care of her children. There was evidence before me on the last occasion that Miss Adegbulugbe was in straitened financial circumstances. Indeed that is why she was unable to afford to pay a lawyer to represent her at the final hearing before the Conduct and Competence Committee of the NMC at which the sanction complained of was imposed on her, though she had been represented at earlier stages of the disciplinary process.

The matter came back before me for hearing this morning. Counsel appeared in person, as did Miss Adegbulugbe. The Solicitors chose not to appear or to be represented. That of course is a matter entirely for them. They have had a fair opportunity to show cause why I should not make an order against them and they have put in their submissions.

The jurisdiction to disallow costs or to order a legal representative to meet wasted costs arises under s.51(6) of the Senior Courts Act 1981. Wasted costs are defined in s.51(7) as costs incurred:

"(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or

(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay."

Limb (a) is relevant to the question of who should pay the NMC's costs. Limb (b) is of relevance to the question of whether I should disallow costs as between Miss Adegbulugbe and her own legal advisers.

The wasted costs jurisdiction has been considered by the Court of Appeal on a number of occasions. The leading case is still Ridehalgh v Horsfield [1994] Ch 205 in which the now familiar three-stage test was laid down:

(i) has the legal representative of whom complaint was made acted improperly, unreasonably or negligently?

(ii) if so, did the conduct cause the applicant to incur unnecessary costs?

(iii) if so, is it in all the circumstances just to order the legal representative to compensate the applicant for the whole or part of the relevant costs?

In this particular case the NMC submits that the costs were incurred unnecessarily in consequence of negligence. "Negligence" is to be given its normal meaning in this context, namely failure to act with the competence reasonably to be expected of ordinary members of the profession. However, negligence in that sense simply gets the matter past the threshold for consideration of whether to make a wasted costs order. In Persaud v Persaud [2003] EWCA Civ 394, the Court of Appeal made it clear that in order for the wasted costs jurisdiction to be exercised the negligence must be of such gravity as to amount to a breach of the legal representative's duty to the court. The court in that case drew a distinction between presenting a hopeless case (which in and of itself cannot lead to a wasted costs order) and lending assistance to proceedings which amount to an abuse of process. Peter Gibson LJ said:

"27. There must be something akin to an abuse of process if the conduct of the legal representative is to make him liable to a wasted costs order."

As I found in my earlier judgment, Miss Adegbulugbe was able to obtain legal representation and give instructions to appeal well before the deadline for doing so expired on 13 December 2012. The Solicitors had conduct of the matter by 29 November 2012 at the latest, because they had been in touch with the NMC on that date and had been reminded by them of the 28-day time limit. Counsel had settled the grounds of appeal on 30 November. Having placed the matter in the Solicitors' hands, Miss Adegbulugbe was entitled to expect them to issue the proceedings on time. They did not do so. There is no explanation for their delay, save for the bald statement:

" The appellant's solicitor took the view that it was justified to lodge the appeal at the stated time."

That does not sit easily with the fact that the person who lodged it was obviously aware that he had missed the deadline. That was why an extension was sought. The failure to issue on time was plainly negligent. That negligence, however, is just part of the background. The more pertinent criticism to be levelled at the Solicitors in the context of this application relates to their conduct of this appeal after they had received letters from the NMC pointing out that there was no jurisdiction to entertain it.

At the time when the appellant's notice was lodged, the fact that the time limit for appealing could not be extended had been established in numerous authorities, including Mitchell v Nursing and Midwifery Council [2009] EWHC 1045 (Admin), Reddy v General Medical Council [2012] EWCA Civ 310 and Adesina v Nursing and Midwifery Council [2012] EWHC 2615 (Admin). None of these authorities was difficult to find. A simple internet...