Tapster v Nursing And Midwifery Council

The power to re-open a final appeal under Civil Procedure Rules 1998, rule 52.30, is a remedy of last resort. It is available only where re-opening is necessary to avoid real injustice, the circumstances are exceptional, and there is no effective alternative remedy. The availability of a further appeal ordinarily prevents the High Court from re-opening its final determination. Questions concerning the adequacy of reasons, procedural fairness, abandonment of grounds, and the appropriate remedy should normally be considered by the next appellate court. A litigant’s possible substantive success, or dissatisfaction with counsel’s conduct, does not itself satisfy the stringent re-opening test.

The appellant, a nurse, had appealed to the High Court against findings of professional misconduct and impairment made by the Nursing and Midwifery Council. Hayden J allowed the appeal on sanction by substituting a 12-month suspension, but the hearing did not determine all the liability grounds. The appellant sought to re-open that statutory appeal under rule 52.30, arguing that she had been deprived of a full and fair hearing and that the liability issues had not been decided or adequately reasoned. An application for permission to bring a further appeal was pending in the Court of Appeal. The central issue was whether the High Court should re-open its final appeal or leave the procedural and substantive questions to the Court of Appeal.

1. The application to re-open the statutory appeal was refused. Rule 52.30 imposes a high threshold: re-opening must be necessary to avoid a real injustice, the circumstances must be exceptional and make re-opening appropriate, and there must be no effective alternative remedy. Justice must be assessed having regard to all parties, including a regulator entitled to rely on finality.

2. The Court of Appeal was the proper forum. It could consider whether the liability grounds had been abandoned, whether Hayden J had decided the first ground, whether adequate reasons had been given, whether the hearing was procedurally unfair, and what remedy should follow. Its powers included remitting the matter for rehearing. The possibility of such a further appeal meant that the alternative remedy was effective.

3. A failure to give sufficient reasons for an adverse judicial decision may itself provide a ground of appeal. Litigants are entitled to reasons sufficient to understand why the decision was made and to enable an appellate court to assess the prospects of challenge. The adequacy of the reasons in this case was for the Court of Appeal to determine.

4. The unresolved liability arguments concerning protected disclosure, confidentiality, professional misconduct and the effect of the legal assessor’s advice were potentially arguable and of wider importance. That did not justify bypassing the ordinary appellate route. The court expressed no final view on their merits.

5. The respondent was awarded £1,210 for resisting the application to set aside Lavender J’s order and £1,000 for the issue of re-opening. Those costs orders were stayed until final disposal of the appeal. Other costs were reserved to the Court of Appeal. The application to set aside Lavender J’s order was certified as totally without merit, but the application to re-open was not.

• High Court (Administrative Court): Hayden J allowed the statutory appeal on sanction and substituted a 12-month suspension order, but the judgment did not determine all liability grounds.
• High Court (Administrative Court): The present court refused to re-open the statutory appeal under rule 52.30 and directed that the appellant pursue permission for a further appeal in the Court of Appeal.
• Court of Appeal: An application for permission to appeal was pending; consideration had been temporarily deferred pending the present proceedings.