Mitchell v The Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BEAN |
| Judgment Date | 06 May 2009 |
| Neutral Citation | [2009] EWHC 1045 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 May 2009 |
| Docket Number | CO/9269/2008 |
[2009] EWHC 1045 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Bean
CO/9269/2008
The Appellant appeared in person
Miss Clare Strickland (instructed by Nursing and Midwifery Council) appeared on behalf of the Respondent
: 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.
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.
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.
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.
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.”
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.
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...
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