A new frontier in the boundary between professional and private life – solicitors’ undertakings
Court lays down marker for regulatory authorities who rely on High Court as part of enforcement regime and outlines best practice for notice of interim order extensions.
The Court was called upon to consider two applications brought by the Nursing and Midwifery Council (NMC) for extensions of two interim orders of suspension. Whilst the facts of the two cases are very different, in both cases the NMC submitted that there was a real urgency in the application as the existing order was about to expire. In both cases, the Respondent was not in attendance before the Court.
The Court took the opportunity to ‘lay down the marker for all of the regulatory authorities who rely upon the High Court as part of their enforcement regime’.
The interim order in relation to Mr Kidd was first imposed on 14 September 2012. It was reviewed and extended by the NMC Practice Committee on 9 September 2013 and 29 November 2013. The present application to extend was lodged with the Administrative Court Office on Tuesday 4 March 2014. It related to an order that was due to expire on 11 March 2014. The hearing was scheduled for 7 March 2013. Mr Kidd was served with a hard copy of the application by means of recorded delivery and first class post on 5 March 2014 (the deemed service date was therefore not until 7 March 2014). Electronic service was deemed served on 6 March 2014.
On 5 March the NMC sent Mr Kidd and his Union representative a draft consent order which invited Mr Kidd to agree to the order being extended without the need for a hearing, essentially seeking ‘complete capitulation’. Mr Kidd declined to consent. Because the order was due to expire imminently and due to the lack of any agreement, the Administrative Court Office felt compelled to list the matter urgently.
Green J, highlighted that the Administrative Court Office had informed him that the service of such applications by regulators for extensions near to the expiry date of the order in question is by no means uncommon.
He commented that;
‘the Respondent was given insufficient time to prepare any sort of case to put before the court. Invariably respondents are litigants in person who have no legal representatives to advise them or act on their behalf during hearings…experience tells one that their ability to digest a well prepared application and to respond is hindered not only by a lack of legal guidance but by the pressure of time. There is a serious and elementary issue of fairness which arises. An interim order strips a person of the right to practise a profession prior to a final hearing on fitness to practise. It is a significant incursion into that person’s civil liberties. At the very least when the regulators seek court orders to extend interim orders the respondent must be given adequate time to prepare’.
He went on to say that;
‘Good practice might entail giving litigants in person longer notice than the bare minimum. Having had the opportunity to discuss this matter with both the Administrative Court Office and with colleagues, in circumstances such as these, good practice suggest that a respondent should ordinarily receive a minimum of 7 calendar days’ notice of an application to extend.’
It was further commented that, ‘These cases are not intrinsically urgent. They are artificially made so by the delay on the part of the regulator in bringing them to court such that by the time the application is made the order in issue is very close to expiry’. That approach was also said to impose pressure on the courts whose lists are always crowded.
The Court also commented on the practise of the NMC in tendering a consent order to the respondent just days before a scheduled hearing, which risks using the imminent of the hearing as a means of pressurising the respondent into agreeing to a consent order in potentially onerous terms. ‘I am not suggesting that the proffering of draft consent orders is necessarily inappropriate; but it has the potential to be unfair if tendered at the 11th hour to a litigant in person shortly before an oral hearing.’
In the case of Mr Kidd it was held that, whilst Mr Kidd had not been given a fair chance to advance his case to the Court, the order should be extended for 6 months (however Mr Kidd was given liberty to apply on three clear days’ notice to the Applicant to vacate or vary this order should he feels he wishes to say something about it).
The order in the linked case was also extended by a period of 4 months only, with liberty to apply to the NMC to seek to set aside and/or vary it.
The observations of the learned Judge in this case encourage regulators not only to allow a registrant sufficient time to consider their application but to make their applications to the Court in such good time that matters have not progressed to the point at which they are ‘urgent’ when they require listing. Serving draft consent orders on registrants in the days prior to a hearing, where the delay has been due to the regulator, may well be viewed as undue pressure and unfair.
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