Nursing & Midwifery Council and Another v Harrold
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hamblen |
| Judgment Date | 31 July 2015 |
| Neutral Citation | [2015] EWHC 2254 (QB) |
| Docket Number | Case No: TLQ/15/0131 |
| Court | Queen's Bench Division |
| Date | 31 July 2015 |
[2015] EWHC 2254 (QB)
Mr Justice Hamblen
Case No: TLQ/15/0131
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Adam Solomon (instructed by FieldFisher and DAC Beachcroft) for the Claimants
Claire Darwin (instructed by Slater & Gordon) for the Defendant
Hearing dates: 23 July 2015
Introduction
The Claimants ("NMC" and "the Trust") bring these proceedings under Part 8 for a Civil Restraint Order ("CRO") against the Defendant, Mrs Harrold.
An interim CRO was made by Blair J on 23 January 2015. The Claimants now seek a final CRO on the trial of their Part 8 claims.
Mrs Harrold contends that the High Court has no power to make the CRO sought and, if it does, it should not do so.
This threshold issue involves detailed arguments of law. It was apparent that these would be likely to take up most of the one day set aside for the trial and it was accordingly resolved to deal with that issue and to adjourn all other matters, should they arise. These include the Claimants' objections to the Defendant's participation in the proceedings brought by the Trust and to the late service of evidence.
Background
The Trust is responsible for delivering Healthcare in Bristol and South Gloucestershire. Mrs Harrold was employed by the Trust as a nurse between 9 September 2001 and 20 December 2005, when her employment was terminated on the grounds that she refused to return to work and had declined all proposals of alternative employment made to her.
The NMC is the public body responsible for the regulation of nurses in England. Mrs Harrold was struck off by the NMC on 22 October 2009 on the grounds that her conduct was found to be "fundamentally incompatible with being on the register".
Mrs Harrold has brought a series of claims against the Trust and the NMC relating to these decisions, the timing of the decision by the Trust to refer Mrs Harrold to the NMC, the information provided to the NMC when it did so and to alleged victimisation. Most of these claims have been brought before the Employment Tribunal ("ET"), although there have also been claims made in the County Court. Save for two recent claims, which have been stayed pending the outcome of the Part 8 claim, all of Mrs Harrold's claims against the NMC have been dismissed and all bar one of her claims against the Trust have likewise been dismissed.
The Claimants contend that Mrs Harrold has made many hopeless claims and hopeless applications within those claims, a number of which involve seeking to raise under a different guise claims which have already been dismissed. They contend that absent intervention from the court she will continue to pursue this litigation, vexing and harassing publicly funded bodies, and their lawyers. They submit that the High Court's general jurisdiction to make a CRO is clearly engaged but the CRO which they seek is not limited to proceedings in the High Court and the County Court, but also extends to proceedings before the ET. It is this aspect of the CRO which raises jurisdictional issues since Mrs Harrold contends that the High Court has no power so to order.
The CRO regime
Since 1 October 2004 (by virtue of the insertion of Rule 3.11 into Part 3 of the CPR) the civil courts have had power to make CROs under the CPR. CPR Rule 3.11 provides:
"Rule 3.11 Power of the court to make civil restraint orders
3.11
A practice direction may set out—
(a) the circumstances in which the court has the power to make a civil restraint order against a party to proceedings;
(b) the procedure where a party applies for a civil restraint order against another party; and
(c) the consequences of the court making a civil restraint order."
The principles applicable, and practice to be employed, are set out in Practice Direction C to CPR Part 3 ("the PD"). There are three levels of CRO:—
(i) a limited CRO restrains the party against whom the order is made from making any further applications in the proceedings in which the order is made without first obtaining the permission of the judge identified in the CRO (para 2.2(1) of the PD). It is a pre-condition for making a limited CRO that the party in question should have made two or more applications which are "totally without merit" (para 2.1 of the PD );
(ii) an extended CRO restrains the party in question from issuing claims or making applications in the High Court or any County Court (if the order has been made by a judge of the High Court) where those claims or applications concern any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of the judge identified in the CRO (para 3.2(1) of the PD). The pre-condition for the making of an extended CRO is that the party in question has "persistently issued claims or made applications which are totally without merit" (para 3.1 of the PD);
(iii) a general CRO restrains the party in question from issuing any claim or making any application in the High Court or any County Court (if the order has been made by a judge of the High Court) without first obtaining the permission of the judge identified in the CRO (para 4.2(1) of the PD). The pre-condition for the making of a general CRO is that the party restrained should have persisted in issuing claims, or making applications, which were "totally without merit" in circumstances where an extended CRO would not be sufficient or appropriate (para 4.1 of the PD ).
The CRO regime puts on a statutory basis the powers of the High Court, under its inherent jurisdiction, to prevent abuse of its process. The High Court's powers under its inherent jurisdiction was identified, and explained, by the Court of Appeal in Bhamjee v Forsdick [2004] 1 WLR 88. Thus the limited CRO is the statutory reflection of what was known as a Grepe v Loam order ( Grepe v Loam (1887) 37 Ch D 168). The extended CRO is the statutory reflection of the extended Grepe v Loam order which the Court of Appeal identified in Ebert v Venvil [2000] Ch 484. The general CRO reflects what was set out in Attorney General v Ebert [2002] 2 All ER 789 at [35].
It is clearly desirable that the High Court should have the power to make CROs. They prevent vexation and oppression. They also prevent the unmeritorious waste of court resources. The importance, as a matter of justice, of ensuring that court resources are used appropriately also applies to tribunal proceedings — see Harris v Academies Enterprise Trust (EAT) [2015] ICR 627 at [33] per Langstaff J.
It is to be noted that under the CPR the High Court can only make a CRO in relation to the issue of claims or applications in the High Court and the County Court. This is a reflection of the fact that the CPR only governs procedure in the Civil Division of the Court of Appeal, the High Court and the County Court — see section 1(1) of the Civil Procedure Act 1997. As the Claimants accept, tribunals are outside the scope of the CPR since "court" in CPR 3.11 does not include a tribunal — see section 9(1) and Law Society of England and Wales v Otobo [2011] EWHC 2264 (Ch) at [17].
The ET is, however, generally regarded as being an inferior court. Thus such tribunals have been treated as an "inferior court" for the purposes of s. 42 of the Senior Courts Act 1983 and for the purposes of making committal orders under RSC Order 52– see Otobo at [33].
The jurisdictional issue
This was an issue considered with care by Proudman J in the Otobo case and, whilst that decision is not binding upon me, I consider its reasoning and conclusion to be highly persuasive. I recognise, however, that Mr Otobo was not represented in that case and that many of the arguments raised by Mrs Harrold before me were not considered.
Proudman J identified four principles of particular relevance, which she derived from Sir Jack Jacob's article in [1970] Current Legal Problems 23: "The Inherent Jurisdiction of the Court", namely:
(1) "As a matter of principle the general jurisdiction of the High Court is unlimited save insofar as it has been taken away by statute".
(2) "The inherent jurisdiction derives historically from coercion, that is to say punishment for contempt of court and of its process, and regulation, that is to say regulating the practice of the court and preventing abuse of its process".
(3) "Under its inherent jurisdiction the High Court has the power, not to review the decisions of inferior courts, but (1) to prevent interference with the due course of justice in those courts and (2) to assist them so that they may administer justice fully and effectively".
(4) "The powers of the court under the inherent jurisdiction are complementary to its powers under the Rules and are not replaced by them".
Proudman J noted that pursuant to its inherent jurisdiction the High Court had or had had jurisdiction to punish contempts in an inferior court – R v Parke [1903] 2 KB 432—and to restrain a party from continuing foreign proceedings over which it had no direct jurisdiction so as to protect the other party in proceedings, including proceedings in the ET – Turner v Grovit [1999] IRLR 638 (CA). She considered that it was consistent with these examples of the High Court's inherent jurisdiction and the four principles she had identified for the High Court to have the power to make a CRO relating to proceedings in an inferior court, such as the ET, in circumstances where that court had no jurisdiction to do so of its own.
Mrs Harrold's counsel, Ms Darwin,...
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