Nursing & Midwifery Council & Anor v Harrold

The High Court has inherent jurisdiction to make a civil restraint order covering proceedings before an Employment Tribunal. That jurisdiction derives from the court’s supervisory and protective jurisdiction over inferior courts and tribunals, including the power to prevent interference with the due course of justice. The jurisdiction survives the statutory civil restraint order regime and is not confined to judicial review. The Civil Procedure Rules do not conflict with its exercise in tribunal proceedings because those Rules do not govern tribunal procedure. The power is exceptional and must be exercised consistently with the principles and safeguards in Practice Direction C to CPR Part 3. Whether an order is appropriate depends on the facts, including the need to prevent vexation, oppression and waste of judicial resources.

The Nursing and Midwifery Council and a healthcare Trust sought a final civil restraint order against Mrs Harrold under Part 8 of the Civil Procedure Rules. An interim order had been made by Blair J. The claimants sought an order extending to proceedings before the Employment Tribunal, where Mrs Harrold had pursued numerous claims arising from her employment, dismissal and striking-off.

Mrs Harrold argued that the High Court lacked jurisdiction to restrain tribunal proceedings and, alternatively, should not exercise any such power. The court therefore determined the threshold jurisdictional issue before considering the merits of the proposed order.

1. Jurisdiction. The High Court possesses inherent jurisdiction to make a civil restraint order covering proceedings before an inferior court such as the Employment Tribunal. Its inherent jurisdiction includes preventing interference with the due course of justice in inferior courts and assisting them to administer justice fully and effectively. This was consistent with the principles identified in Law Society of England and Wales v Otobo [2011] EWHC 2264 (Ch), whose reasoning was highly persuasive and should be followed.
2. The statutory civil restraint order regime in CPR rule 3.11 and Practice Direction C to CPR Part 3 did not exhaust or replace the inherent jurisdiction. The Rules govern procedure in the civil courts and do not apply to tribunal proceedings. There was therefore no conflict between the Rules and an inherent jurisdiction exercised in relation to Employment Tribunal proceedings. The inherent jurisdiction should nevertheless be exercised consistently with the principles and practices in the Practice Direction.
3. The supervisory jurisdiction over inferior courts and tribunals was not confined to judicial review. Ebert v Venvil [2000] Ch 484 supported the availability of protective orders in the supervisory jurisdiction. The existence of statutory powers available to the Attorney General, or procedural powers available to the Employment Tribunal, did not remove the High Court’s inherent jurisdiction.
4. The existence of fact-sensitive discrimination claims did not establish a general rule against restraint. That consideration is engaged only where a claim is sufficiently arguable to merit factual consideration. Whether a civil restraint order should be made in a particular case required detailed consideration of the facts.
5. The court concluded that the High Court had jurisdiction to make the proposed order. The question whether it was appropriate to do so in the present case was reserved for factual determination.

First instance determination of the High Court’s jurisdiction to make a civil restraint order covering Employment Tribunal proceedings. The merits of the proposed final order and other issues were adjourned.