Mitchell v Nursing Midwifery Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STANLEY BURNTON |
| Judgment Date | 30 January 2008 |
| Neutral Citation | [2008] EWHC 2705 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/366/2007 |
| Date | 30 January 2008 |
[2008] EWHC 2705 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Str and
London WC2A 2LL
Mr Justice Stanley Burnton
CO/366/2007
Mr S Ahmed (instructed by Joves Solicitors) appeared on behalf of the Claimant
Miss C Strickland (instructed by the NMC) appeared on behalf of the Defendant
(As approved)
This is a renewed application by Evelyn Mitchell for judicial review of a decision of the Nursing Midwifery Council. She was a registered nurse. She was the subject of a hearing before the Conduct and Competence Committee in November 2006. The proceedings against her were not completed at that time and it was decided to adjourn until mid-December, that is to say 13th and 14th December 2006. The claimant did not attend the hearing on 13th December 2006. The Committee considered the position. It obtained legal advice from its legal advisor, as to which no complaint is made, and decided that although the jurisdiction to continue in the absence of a respondent was one to be exercised with extreme caution, it was appropriate to continue to hear the case, and in the end an adverse finding and adverse decision were made against the claimant.
The basis of this judicial review is that it was wrong for the Committee to proceed in the absence of the claimant on 13th and 14th December 2006. She says that there was a good reason for her absence, namely that there had been extreme adverse publicity given to the proceedings in November, to the extent that she felt, at a minimum apprehensive, and indeed fearful, of a future hearing and therefore decided not to proceed, but wished the Committee to adjourn sufficiently for the publicity to die down so that she could attend without any apprehension.
The first difficulty with her case is that the contemporaneous evidence is inconsistent with this application. The contemporary evidence includes a file note of 17th November 2006, which is exhibited through the confirmatory witness statement of Gareth John Llewellyn, who is a paralegal in the employment of the defendant. The file notice to this is in these terms:
“Telephone call from the registrant, Evelyn Mitchell. The registrant has dispensed with her legal representation and has indicated that, although she is content for the CCC to reconvene its hearing on 13th and 14th December 2006, she will not be in attendance, nor will she be represented in her absence. Miss Mitchell feels that the CCC Panel may well be prejudiced by the press coverage of her hearing and she feels that she has already been, in her words, 'tried and convicted'. Miss Mitchell declined to leave a contact telephone number and makes it clear that she will not attend any future hearings. She then terminated the call.”
There is no direct evidence that Miss Mitchell ever communicated with the Committee to indicate that what she wanted was not a continuation of the hearing on 13th and 14th December 2006 but a presumably relatively short adjournment until the publicity had died down.
The attendance note to which I have referred is one of the documents referred to in the acknowledgment of service and the summary grounds which were served in October of last year and there has been more than adequate opportunity for the specific evidence now before the court to be addressed by Miss Mitchell. She has not taken the opportunity to do so. Her evidence remains in very general terms. The evidence of Mr Llewellyn does not stand alone, because it is entirely consistent with the decision of the Committee itself.
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.
My Lord, I do have an application for costs on behalf of the defendant. The costs claimed are those of preparing the acknowledgment of service and, exceptionally, the cost of attendance today. The reason for that application is that it was made quite clear by Ouseley J in refusing the application for permission in August of...
To continue reading
Request your trial
-
Mitchell v The Nursing and Midwifery Council
...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; h......