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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Tapster v Nursing And Midwifery Council [2017] EWHC 2544 (Admin) (13 October 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/2544.html Cite as: [2017] EWHC 2544 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/10/2017

Mrs Justice Andrews:

Introduction

1. This matter first came before me on 8 August 2017 by way of an oral hearing of Mrs Tapster's application to set aside the order made on the papers by Mr Justice Lavender striking out her claim in CO/2324/2017, an action she had begun in the Queen's Bench Division that was transferred into the Administrative Court. This judgment should be read in conjunction with the ex tempore judgment I gave on that occasion, of which an approved transcript is available.
2. I refused to set aside Lavender J's order, which appeared to me to have been amply justified, as the claim in CO/2324/2017 either failed to reveal any arguable cause of action or amounted to a collateral attack upon a decision of this court in a statutory appeal in a professional conduct matter that was more properly the subject of an application for permission to appeal to the Court of Appeal. However, I indicated to the parties that I was willing to treat Mrs Tapster's application as encompassing an application to re-open the statutory appeal (which had been heard by Mr Justice Hayden in these proceedings, CO/2350/2016) pursuant to CPR 52.30. I dispensed with the requirement to serve a fresh application notice, reserved the matter to myself and directed that there be a further hearing on 11 October. I also reserved the costs in both sets of proceedings.
3. I took that course in order to preserve all options open to Mrs Tapster pending the provision of a transcript of the hearing before Hayden J on 2 March 2017 which would reveal whether he gave an oral judgment and, specifically, whether he gave any reasons for dismissing her appeal against the findings of professional misconduct and impairment, ("the liability issues") whilst allowing it on sanction.
4. The only document I had before me on 8 August pertaining to the statutory appeal was the Order of Hayden J, and that was silent about the fate of the appeal on the liability issues. It neither recorded that the appeal on liability had been abandoned nor that it had been dismissed, though an inference could be drawn from the fact that the appeal was allowed on sanction, that the appeal on liability had been dismissed.
5. It rapidly became apparent that, in order to make any sense of what had happened, it was necessary to obtain a transcript of the hearing. When Mrs Tapster had tried to obtain a copy of the transcript of the judgment for the purposes of her proposed appeal to the Court of Appeal, the shorthand writers had told her in an email that no judgment was given, as the order had been agreed between the parties and the shorthand writer had been released. It now transpires that the judge had given his decision on sanction in open court in the absence of the shorthand writer, and left it to counsel to agree the terms of an order reflecting that decision. Hayden J directed Mrs Tapster's then counsel, Mr Kohanzad, to draft the order, and no legitimate criticism can be levelled at counsel for doing what the judge directed him to do. I am satisfied that the Order as drafted did reflect what the judge decided (indeed, he would not have approved it otherwise). There was nothing that Mrs Tapster could have said by way of input to the Order that would have affected its terms.
6. The fact that the Order of Hayden J (which bears the date of 3 March) was not formally drawn up and sent to the parties until 4 April 2017, after the time for appealing had expired, is not the fault of the judge or of counsel. I presume it was due to a backlog of work in the Administrative Court Office, which is regrettable. Whatever caused the delay, Mrs Tapster, by then unrepresented, found herself in the unfortunate position where, through no fault on her part, she had no note or transcript of the judgment and no court order within the time limit prescribed by the rules for seeking permission to appeal. She did issue an application for permission to appeal after she had received the Order, but was still disadvantaged by the absence of the transcript, which she had been trying to obtain without success. Since her relationship with her former counsel had broken down irretrievably, he was not in a position to assist her.
7. Given the court's obligations to unrepresented litigants under CPR 3.1A, and what I knew of Mrs Tapster's straitened financial circumstances, I felt on 8 August that the only fair course was to direct that a transcript of the hearing taken from the master tape be obtained at public expense, on an expedited basis, pursuant to CPR 52.14, and to assess the situation further in the light of the clarification that document provided.
8. With both parties' assent I wrote to the Court of Appeal office following the hearing on 8 August, explaining the situation and asking them to refrain from putting the papers before a Lord or Lady Justice of Appeal until I had obtained the transcript and dealt with this further hearing. That request was granted. Mrs Tapster subsequently sought an adjournment of the 11 October hearing for 3-4 months on health grounds, which I refused for the reasons set out in an Order made by me on 9 October.

The hearing on 11 October 2017

9. Mrs Tapster suffers from clinical depression, which on occasion has led to her hospitalisation, including in September this year. Her financial circumstances are such that she has been unable to afford to pay for private legal representation. She has had to finance her own travel from the Isle of Wight every time there is a hearing. What has happened to her has had the most severe impact on her life and her livelihood, yet she does not qualify for Legal Aid. This has presented her, and the court, with enormous difficulties in getting to the heart of a complex case. Unfortunately, Mrs Tapster did not take up the suggestion I made to her on 8 August to seek support from the PSU for the hearing on 11 October.
10. Like many litigants in person, Mrs Tapster has a very strong and deep sense of grievance and because of this, she tends to express herself in immoderate terms. She accuses anyone who has had dealings with her case and who does not see things in the same way that she does, of serious impropriety. Members of the judiciary are not exempt from such accusations. Conspiracy theories and allegations of corruption abound. All this obfuscates the merits. At the hearing before me on 11 October, her behaviour in court was sadly very different from her behaviour on the previous occasion, when (as I noted in my previous judgment) she was able to put her case lucidly and engaged in constructive dialogue with the court. On this occasion, by contrast, her submissions consisted of a tirade directed towards the Respondent, the NMC, for bringing the charges against her in the first place, for calling what she described as perjured evidence, and for alleged victimisation, and a further tirade against the High Court and Hayden J for "imposing a sanction on her when she had done nothing wrong."
11. I attempted to explain to Mrs Tapster that I was trying to help, and that she may well have an arguable complaint about what happened at her appeal against the findings of misconduct, but the only matter I was concerned with at that stage was whether that argument should be considered by the Court of Appeal or whether the appeal should be re-opened in the High Court – indeed, whether my power to re-open it was engaged. Mrs Tapster said she did not care (about the forum). Having asked if she could continue without interruption, she then resumed the tirade on matters that were mostly irrelevant to anything I had to decide. My attempts to get her partner, who had accompanied her, to calm her down and explain the position to her were equally unsuccessful. When I made one final attempt to get her to focus her argument on what mattered, rather than airing her wider grievances, she refused to listen and began shouting across me. Ultimately, I had no choice but to tell her to sit down and be quiet, or I would have no option but to consider holding her in contempt of court. Shortly afterwards she decided to leave the court, and I had to continue the hearing in her absence.
12. The fact that Mrs Tapster has not presented her case in a manner calculated to gain judicial sympathy, should not distract the court from focusing on whether there are any properly arguable grounds for complaint about the way in which her statutory appeal was disposed of, and if so, whether such grounds ought to be considered by the Court of Appeal (as would be the normal case) or whether this is one of those extremely rare cases in which the powers of the High Court to re-open a final appeal should be exercised.
13. For the reasons set out in this judgment I accept the submission of Ms Stotesbury, on behalf of the NMC, that the proper way forward is for Mrs Tapster to seek to persuade the Court of Appeal that she satisfies the test for permission to be granted for a second appeal. An application for permission to appeal is already pending in the Court of Appeal and consideration of that application on the papers has only been put on hold temporarily. Mrs Tapster did not seek to persuade me that this was an inappropriate course to take. In practice, probably because she allowed her emotions to take over, she did not actively pursue the application to re-open the appeal that I had given her the opportunity to make.
14. I would hope that in the light of the difficulties in obtaining the transcript and the Order to which I have already referred, as well as Mrs Tapster's state of health, the Court of Appeal would extend the time for appealing and consider the application on its merits. I also hope that the Lord or Lady Justice of Appeal who considers the question of permission will be assisted by seeing the transcript of the hearing before Hayden J, a copy of this judgment, the transcript of my earlier judgment, and the skeleton argument prepared for the statutory appeal by Mr Kohanzad on behalf of Mrs Tapster. I told Ms Stotesbury at the hearing that I considered those documents should be supplied to the Court of Appeal. In order to avoid either party incurring further expense, this will be done administratively. Those documents, taken together, should help to explain to the Court of Appeal why I have some concerns about the course that the hearing of the statutory appeal took, although it is entirely a matter for them to decide whether those concerns are such as to justify granting permission to appeal.
15. I gave my decision about the appropriate way forward in open court before Mrs Tapster left. I said that I would give my reasons in a reserved judgment which would be handed down on Friday morning, and that neither party need attend. I explained that I was taking that course because it would mean that the written judgment would be immediately available, instead of the parties having to wait for yet another transcript of an ex tempore judgment to be obtained and approved. It should also keep the costs down. Mrs Tapster said she objected to my reserving judgment, on the basis that the CPR would require her to agree the judgment if I took that course, and she "did not agree". Mrs Tapster is mistaken about that; under the relevant practice direction, legally represented parties are expected to try and agree on the terms of the order consequential on judgment, but that is not the same thing as agreeing with the judgment. The losing party is bound to disagree with the outcome of the judgment. In any event that part of the practice direction has no application in this case, as Mrs Tapster is not legally represented. I have drafted the terms of the order myself, as well as the costs order I have made in the other related action.
16. Even though there is no obligation to serve a copy of a draft judgment on a litigant in person, I decided that both parties would be sent a copy of the draft judgment in advance so that they would have an opportunity to make typing and other minor corrections. That process was duly followed, and Mrs Tapster was sent a copy of my draft judgment by email, to give her the same fair opportunity to make corrections as was given to her legally represented opponent. She responded by sending the court a lengthy document repeating her misguided objections to the handing down of a reserved judgment on the basis that it implies that she has consented to it. As I have said, the fact my judgment was reserved does no such thing. The decision I have reached is my decision alone. I have very little doubt that Mrs Tapster will not like it, but that cannot be helped.

The fate of the statutory appeal

17. The factual background is more fully set out in the ex tempore judgment I delivered on 8 August and I do not propose to repeat it. For present purposes I need only refer to the fact that the NMC, a professional regulator, had brought charges of professional misconduct against Mrs Tapster, a nurse, relating to an email which she sent from her personal email account, which she claimed was a protected disclosure under the Public Interest Disclosure Act 1998 ("PIDA") raising legitimate concerns about the quality of the medical care being provided to patients in the children's ward at the hospital where she was then working. (It is perhaps worth noting that the Care Quality Commission has subsequently put the relevant NHS Trust into Special Measures). The NMC claimed that she disseminated confidential material relating to patients (living and dead) at least some of whom were capable of being identified, though some efforts had been made to conceal their identities. The two charges that were found proved were:

a. That Mrs Tapster sent the email and attachments containing confidential patient information to one or more of the email recipients listed in Schedule 1 (including her former husband and her current partner);

b. That she sent the email in question:

i. Containing potentially identifiable personal data of one or more patients

ii. From a non-NHS and/or unsecure email account

iii. To one or more non-NHS and/or unsecure email addresses.

18. The Panel of the Conduct and Competence Committee which heard and determined the charges was advised by its legal advisor that irrespective of whether the email was a protected disclosure, it was Mrs Tapster's motivation in sending the email that mattered when considering whether her actions amounted to professional misconduct. Unsurprisingly in the light of that advice the Panel made no finding as to whether the email was a protected disclosure, let alone whether Mrs Tapster believed it was a protected disclosure. The Panel also failed to consider whether Mrs Tapster could have acted out of mixed motives.
19. The grave reservations I expressed about the correctness of that legal advice on the last occasion have not been dispelled by Ms Stotesbury's skeleton argument for this hearing, which accepts that that advice was "too simplistic" but seeks to argue that any error made by the Panel in consequence of following that advice impacted on sanction only. I am not satisfied that any error in that advice was immaterial to the Panel's substantive decision that the conduct complained of amounted to professional misconduct. On the contrary, one only has to read the Panel's determination to see that the advice was followed specifically in the context of deciding whether the charges found proved amounted to serious departures from the Code of standards of conduct, performance and ethics for nurses and midwives. Yet Paragraph 27 of that Code, quoted verbatim by the Panel in its determination but otherwise apparently ignored, makes it clear that even confidential information may be released "if the law requires it, or if there is a wider public interest."
20. That suggests, and I put it no higher than this, that there is at least a respectable argument that a registrant who disseminates confidential information in circumstances that either amount to a protected disclosure or he or she genuinely believes to be a protected disclosure would not infringe the Code. These were among the interesting and difficult arguments raised on the appeal on liability, which it now transpires Hayden J did not determine, for reasons that will appear.
21. The transcript that I ordered has now been produced, although the first attempt by the shorthand writers produced an incomplete document. Mrs Tapster views this as sinister, but I am satisfied that the complete transcript, having been taken from the master tape in accordance with my direction, is an accurate one, and that it is the best evidence available of what happened in open court at the hearing before Hayden J. That evidence has been amplified by the Defence served in County Court proceedings brought by Mrs Tapster against Mr Kohanzad for alleged professional negligence, which gives his version of events, and by Mrs Tapster's witness statement, served pursuant to directions I gave on the last occasion, which gives hers.
22. Mrs Tapster initially dealt with her statutory appeal herself. Her written grounds were prolix and diffuse. Mr Kohanzad, who was instructed directly to argue the appeal, made a very good job of sifting those grounds for points that could properly form arguable grounds of appeal and putting them in a comprehensible skeleton argument. He defined 11 grounds of appeal. They included a complaint about the Legal Assessor's erroneous advice on protected disclosure, to which I have already referred, and its negative impact on the decision of the Panel so far as both misconduct and sanction were concerned. As one might expect, the grounds of appeal against sanction were the final grounds in that document. Mrs Tapster told me at the previous hearing on 8 August that she would have had no complaint if her barrister had advanced arguments on all the grounds on liability at the hearing of her appeal.
23. The transcript of the hearing before Hayden J reveals that Mr Kohanzad argued the first of the grounds of appeal against the finding of professional misconduct, namely, that in answering the question whether the Appellant had breached confidence, the Panel erred in its approach to deciding whether the information in the email attachment was properly anonymised. He argued that the question whether two senior NHS Trust employees might be able to identify a patient from the information provided in the email, was different from the question whether a third party recipient or someone intercepting the email would be able to do so.
24. In the course of the oral presentation, the judge asked questions of Mr Kohanzad, and then summarised the argument being put to him as follows:

"Your point in relation to ground 1 is that dealing with personal data rather than confidential information, the attempts to conceal the identity of the individuals in the information disclosed objectively evaluated rather [by] than those in a more privileged position to identify the patients would not be, in truth, a leak of confidential information and therefore, not misconduct?"

Mr Kohanzad confirmed that the judge's formulation of the argument was correct. He then took the judge through the documents, and submitted that "the wrong question was asked [by the Panel] and if the right question was asked, nobody could properly say that somehow this is a breach of confidential information, that it hasn't been sufficiently anonymised."

25. The judge made it clear that he understood the point being made. He then called on Ms Fleck, who represented the NMC at the hearing, to respond, and he put to her some of the arguments made by Mr Kohanzad. Then, in the course of her submissions, Hayden J asked this question:

"Let's jump forward. Assuming it is the publication of confidential information to which the extent goes to mitigation rather than misconduct, ultimate sanction in this case?"

Ms Fleck sought to justify the sanction of striking off that had been imposed by the Panel, and a number of exchanges followed between counsel and the judge in which he gave a clear provisional indication that he thought that this was not a case for striking off. He said:

"I wonder if that [sanction] really ought to be the focus of this. I did, from the beginning, wonder if it ought to be the focus of this case. Would it help if I gave you a few minutes to reflect on that, Mr Kohanzad? Perhaps you can take some instruction for a moment."

26. Mr Kohanzad took up that suggestion, and the hearing was adjourned for around 15 minutes whilst Mr Kohanzad spoke to Mrs Tapster. When he came back, he said this:

"I have taken instructions and we're happy to proceed and deal with the issue of sanction. We have not dealt with all the evidence, the grounds at this stage. What we would say is that if we were unsuccessful in arguing over sanction, then we would seek to address you on that."

27. Hayden J said he understood, and both counsel then proceeded to address the judge on the appeal against sanction, at the end of which the judge said this:

"I am making a 12-month suspension order. Ms Tapster, you have heard what I had to say. These are serious issues. They are capable of causing real distress to people who are already in vulnerable circumstances and no nurse should ever do that. I have given you an opportunity over 12 months to show that you can reflect on what you have done in the hope that you may be able to return to your profession and contribute, as you manifestly have been able to in the past. But it will only be if you have addressed those issues in the way that they are required to be addressed. That is down to you. This is a second chance for you today. It's up to you as to whether you take it or not."

So Mrs Tapster's appeal against the sanction was successful. But what became of the appeal on liability? On any view, the findings of professional misconduct have not been disturbed and Mrs Tapster has been told she must show "insight" into behaviour which she contends was justified and which the court tasked with hearing her statutory appeal never ruled upon.

Mrs Tapster's position following the appeal

28. I agree with Hayden J's view that the sanction imposed was disproportionate. If the findings of the Panel on misconduct and impairment remained undisturbed, I would have taken the same course as he did and substituted a suspension order. No complaint is, or could be, made about that. The NMC has rightly not sought permission to cross-appeal. But if Mrs Tapster happened to be right, and there was no misconduct, there should be no sanction at all; and if there was misconduct but the Panel's evaluation of its seriousness was flawed because it followed inappropriate legal advice, the proportionate sanction might not be one of suspension. Her essential complaint is that what happened in the course of the hearing deprived her of a full and fair hearing of her statutory right of appeal (on liability) because the grounds of challenge to findings of serious professional misconduct were never argued, let alone determined, in the High Court. Was this something that Mrs Tapster condoned? Can she properly ask the Court of Appeal to consider the merits of those grounds notwithstanding what happened before the judge? If she cannot, is there anything this court can do about the situation?
29. On the face of it (though Mrs Tapster disputes it) the course that her counsel took following the break in the hearing was taken on instructions. He says this was after giving her frank advice as to the implications, but there is a clear dispute between them about that, which cannot be resolved in these proceedings. Interestingly, his Defence does not go so far as to say he gave her clear advice that by taking the option of acceding to the judge's suggestion, she would be giving up the right to argue the remaining Grounds on liability.
30. Irrespective of what passed between counsel and client in private, the judge was entitled to take what he was told in open court at face value and assume that Mr Kohanzad was acting on his client's express instructions, and to proceed to hear the argument on sanctions from both counsel and determine that issue accordingly. The upshot of moving straight on to the question of sanction is that Mr Kohanzad never exercised his right of reply to Ms Fleck's submissions on Ground 1, and the judge heard no argument and made no express ruling on Grounds 2-10. However, as I have already observed, the Order neither recorded that those grounds had been abandoned, nor dismissed them. Nor did it treat the appeal as part-heard.
31. The transcript speaks for itself and I deliberately refrain from expressing a view about the course that the judge took. Nothing that I say at any point in this judgment should be interpreted as a criticism either of the judge or of counsel. One can well understand a judicial desire to get to the heart of an appeal (or to hear argument on what is perceived to be the appellant's strongest point), just as one can understand the dilemma facing the appellant's counsel and his client in the wake of those judicial indications. I fully appreciate the reasons why matters proceeded as they did. Nevertheless, and irrespective of those reasons, what happened at the hearing has caused me disquiet. I also understand why Mrs Tapster feels that she has not had a fair opportunity to argue why she should not have been subjected to any sanctions at all.
32. Although it would have been apparent from the sequence of events I have described that Hayden J was not disposed to accept Mr Kohanzad's arguments on Ground 1, at least so far as liability was concerned, he never expressly said why. In order to find out, one would have to draw an inference from the hypothetical assumption that he put to Ms Flack when he first raised the question of sanction with her. Even if one can deduce from his comments to both counsel in the course of argument that the judge thought the points raised under Ground 1 went to mitigation rather than liability, and that there had been a clear breach of confidence, that was not the end of the issues on liability. It did not touch on the protected disclosure issues, for example, which arose irrespective of whether the information disseminated was confidential and the email was sent in breach of confidence, or on the advice given by the Panel's legal adviser about motive, about which complaint can be justifiably made.
33. Ms Stotesbury submitted that the necessary inference to be drawn from the exchange between Mr Kohanzad and the judge after the short break to take instructions was that Ground 1 was no longer being pursued, and that is why the judge did not deal with it on its merits. It may be that the judge assumed that he need not deal with Ground 1 formally, but I do not accept Ms Stotesbury's analysis. The judge had heard full argument on Ground 1 from both counsel, and nothing Mr Kohanzad said after the break indicated that he was abandoning that Ground or treating it as purely a mitigation point. If that Ground remained a live issue, as I consider it plainly did, Ms Stotesbury did not contend that the judge gave any, let alone adequate reasons for deciding the point against Mrs Tapster. In fact, her submissions necessarily involve conceding that he did not decide the point (because, on her analysis, he was being told he did not have to).
34. A failure to give reasons may be a valid ground of appeal to a higher appellate court in and of itself. Any litigant (whether or not legally represented) is entitled to be given sufficient reasons for a judicial decision, even if they are brief. When the decision is adverse to them, and they want to challenge it, both they and the appellate court tasked with granting permission to appeal need to know why the judge decided the matter in the way he did, in order to evaluate what prospects there are of successfully challenging that decision. On any view, the answer to Ground 1 was not so obvious as to dispense with the need to give reasons for making an adverse finding about it.
35. Even though a failure to give reasons is not currently a ground being pursued by Mrs Tapster, she was not in a position to raise it until she saw the transcript, which has only recently become available. Her recollection, as recorded in my previous judgment, was that her counsel had not argued the appeal on any of the grounds except sanction; Ms Fleck's recollection, as relayed to me via Ms Stotesbury at the 8 August hearing, was that he had argued all the grounds relating to liability before the judge indicated that he was not disposed to accept them, but was provisionally sympathetic to the arguments about sanction. The transcript indicates that they were both mistaken, but that Ms Fleck and Mrs Tapster were both right in their recollection that the judge did not deliver a judgment, as such.
36. The assessment of whether someone in Mrs Tapster's position would know why it was that the judge had apparently rejected her counsel's submissions on Ground 1, or alternatively, whether this was a situation in which the need for the judge to decide that Ground was dispensed with by the appellant, is an assessment which would ordinarily be made by the next level of appellate court if such exists – in the present case, the Court of Appeal. In my judgment, the Court of Appeal is clearly the proper forum to make the assessment whether (a) the judge did decide the point (b) if he did, whether the reasons given, insofar as there were any, were adequate, (c) whether those reasons are susceptible of viable legal challenge on the merits or (d), if he did not decide the point, whether he was justified in taking that course.
37. The position as regards the court's failure to hear argument or make any express decision on Grounds 2-10 is more complex. The argument on those grounds of appeal on liability was not pursued orally in the wake of a specific judicial invitation to counsel to move directly to argument about sanction. The upshot of that was that the judge never heard oral argument (from either party) on the other substantive grounds of appeal against the finding of professional misconduct, at least some of which appear to me to be worthy of serious consideration – even if, at the end of the day, they might have been rejected by him. The points made about the impact of the PIDA and the protection it affords to whistleblowers on charges of professional misconduct levelled at those who make, or believe they are making protected disclosures, are complex. As I pointed out to Ms Stotesbury in the course of the hearing, one cannot make the assumption that the judge would have decided those points against Mrs Tapster irrespective of oral argument, just because he wanted to focus on the aspect of the Panel's determination that was most obviously flawed, namely, sanction, or considered that some of the arguments raised on liability were better characterised as points in mitigation. Whatever provisional view he may have taken on reading the skeleton arguments, he would have kept an open mind until he had heard the arguments developed.
38. On the face of it, the points raised in Mr Kohanzad's skeleton argument about protected disclosure and how an actual or perceived protected disclosure impacts on regulatory process taken against a whistleblower for an alleged breach of confidence that falls short of infringing the Data Protection Act are potentially of wider public importance, and are far from straightforward to determine. The Court of Appeal might well take the view that those are points that would be worthy of consideration on their merits, and which may have had real prospects of success; the problem is that, unlike the usual situation in which a matter falls to be considered by the Court of Appeal, no judge has yet fully considered the merits of these arguments or ruled upon them. The only way in which such consideration could take place before the matter reached the Court of Appeal would be if the appeal were re-opened, those points were argued fully, and a determination were made upon them.
39. If those additional grounds of appeal on liability were obviously doomed to fail, it might be said that no harm was done by cutting to the chase and addressing sanction, but that is not my assessment of them (though the Court of Appeal might well take a different view – again, that is their remit, and not mine). The problem facing Mrs Tapster and the Court of Appeal is that because of the way the appeal proceeded, they have no means of knowing what the judge would have decided in relation to the other grounds or why – and it is clear from what Mr Kohanzad said to the judge that those grounds of appeal were not being formally or intentionally abandoned, even if that may have been the practical effect.
40. In many ways these features take the case outside the normal run of "second appeals" because there has not been a full "first appeal" in any meaningful sense. If the Court of Appeal took the view that an appeal should be allowed on the basis of procedural unfairness, it might well decide to remit the matter to the High Court for determination of those Grounds, in which case the parties would be back where they started, after considerable further delay and expense. That would not be a desirable state of affairs from anyone's perspective. This was the main reason why I was initially attracted by the possibility of using CPR 52.30, but the complications arising from the fact that the appellant's counsel agreed to the course that was suggested by the judge are such that on reflection, I concluded I could not properly go down that route. I take the view that only the Court of Appeal can decide whether the interests of justice require that the merits of those grounds be fully considered by an appellate court (whether the High Court or the Court of Appeal itself), or whether Mrs Tapster should be shut out from arguing that she was unjustly found to have acted unprofessionally.
41. The NMC's position is that Mrs Tapster only has herself to blame for this unhappy state of affairs, because she instructed her counsel to take up the judge's invitation to proceed straight to the argument on sanction. Ms Stotesbury argued that the necessary concomitant of counsel, on instructions, taking the course of leaping straight to the issue of sanction was that his client was giving up the right to argue the other grounds of appeal on the liability issues, and that this was a risk that Mrs Tapster was prepared to take, even if she came to regret it very shortly afterwards. What Mr Kohanzad appeared to be telling the judge was that his client was prepared not to pursue those other grounds if the arguments about the sanction being disproportionate were successful. On the face of it, that would obviate the necessity for the judge to express any further view about those grounds. The judge had issued the invitation to take the course that counsel adopted, but it was entirely up to Mrs Tapster whether or not to take it up, and having done so, she cannot complain. This was the sort of difficult tactical decision that counsel and their clients have to take in court day in, day out. Judges are well used to giving indications that may concentrate the parties' minds on the key issues, and should not be criticized for doing so. If Mrs Tapster received inappropriate legal advice, which led to her giving him instructions that put her in the position of jettisoning arguments she might otherwise have won, she may have a remedy against the barrister but it does not affect the position that he was authorised to do what he did and she must live with the consequences.
42. I see the force of all those arguments. It may be that the Court of Appeal finds them persuasive; but I have a niggling sense of unease about the fairness of laying this all at the door of the lay client whose professional reputation, and livelihood, is on the line. The question that bothers me is whether an appellant in such a case as this should ever be put in the position of being forced to choose between persisting in arguing grounds on liability that the judge did not appear well disposed towards, thereby potentially risking disturbing his initially favourable indication on sanction, or cutting straight to addressing the question of sanction which on which the judge appeared sympathetic, thereby losing the opportunity of persuading the judge that there was merit in those other grounds? Is that really a decision that an individual who has been found guilty of professional misconduct should ever be asked to make, particularly if he or she believes that the Panel got it wrong, and has proper, arguable grounds to advance, which may well be right and afford complete exoneration?
43. I have reservations about the fairness of putting the appellant to such an election, even when the appellant has legal representation, and those reservations are exacerbated in this case by the fact that Mrs Tapster is vulnerable – she has well documented mental health issues. One must remember that findings of professional misconduct have ramifications beyond the immediate sanction. If a registered nurse should not have been found guilty of the charges against him or her, it is of small consolation that a disproportionate sanction has been reduced on appeal to a sanction that would be appropriate if the charges were proved. Ms Tapster has never admitted that she did anything for which she should have been punished. Her appeal was an appeal as of right, afforded to her by Parliament, not something she could be expected to abandon lightly. It may be that this is not a case for apportioning blame on anyone concerned, but rather, asking whether something has gone wrong with the process, and standing back to see what the interests of justice require.
44. It seems plain to me that questions of this difficult and sensitive nature are more appropriately dealt with by the Court of Appeal which is seized of an application for permission to appeal, than by a judge of equivalent jurisdiction. Ultimately, at the hearing, Mrs Tapster did not contend otherwise, and that was the NMC's submission.

Decision on the application to re-open the appeal

45. The power of the High Court to re-open a final determination of any appeal is rarely exercised. CPR 52.30(1) requires the following high threshold to be satisfied:

a. It is necessary to re-open the appeal in order to avoid a real injustice;

b. The circumstances are exceptional and make it appropriate to re-open the appeal; and

c. There is no effective alternative remedy.

46. When considering the question of injustice, the court has to consider justice to all the parties and not just to the party seeking to re-open the matter. Re-opening an appeal can create an injustice for the respondent, who is entitled to rely on the decision of the appellate court as final. I am dealing here with a regulator who owes wider duties to the general public and who is financed by all registrants, as well as with an appellant who feels, rightly or wrongly, that she has not had a fair hearing of her grounds of appeal. The Court of Appeal may consider that the NMC was justified in taking the view that it, too, was entitled to take what the appellant's counsel said to the judge on instructions at face value, and that Mrs Tapster should not be allowed a further bite of the cherry simply because she has had second thoughts about the wisdom of taking that approach.
47. This case does have extraordinary features and I cannot help feeling that Mrs Tapster has a genuine grievance. At least one ground of appeal on the liability aspects that might well have been successful was never properly considered, and it is a moot point as to whether there was truly any deliberate and conscious abandonment of those grounds. However, as Ms Stotesbury very properly reminded me, the fact that a wrong result may have been reached, for whatever reason, is insufficient to meet the test for re-opening an appeal. That test is even higher than the test for granting permission for a further appeal. The question whether there has been an injustice because as a result of what happened at the hearing, the arguments on liability were not pursued, is a difficult one to answer. It cannot be answered by reference to what this court would have decided on the merits after hearing full argument (which I have not, of course, heard). One simply does not know what would have happened if the judge had heard full argument on all the grounds raised by the appellant's counsel. Is the fact that the argument was not pursued and the judge never made findings about those grounds, something that can fairly be laid at the door of the appellant, just because counsel said he had instructions to proceed in that way? That is one possible view, certainly, but it is not the only one.
48. Mrs Tapster contends that Mr Kohanzad was at fault in the way he dealt with the judge's invitation. However, it is well established that a claim that one's lawyer has presented the case in an unsatisfactory manner will not suffice to justify re-opening the appeal – though it may give rise to grounds for an appeal to the Court of Appeal. In any event, on the limited material that I have seen, the criticism of Mr Kohanzad appears to me to be unjustified. He was put in a difficult position and he did the best he could to advance his client's interests in the light of the judicial indications he was given. The fact that another counsel may have taken a different course or advised his client differently does not mean that Mr Kohanzad was at fault. Indeed, Hayden J specifically complemented counsel at the end of the hearing before him, stating that the appeal had been presented in the highest traditions of the independent Bar.
49. In the normal course of events, the evaluation of the correctness of the result and the fairness of the hearing of an appeal is a matter for the final appellate court. In the present case, the Court of Appeal has not yet decided the question of permission to appeal. All the matters which might give rise to arguable grounds for criticism of the process by which the liability aspects of the appeal came to be shelved and/or dismissed without hearing proper argument and/or dismissed without giving reasons, can be aired before the Court of Appeal when seeking permission, just as much as the merits of the grounds themselves. Moreover, the Court of Appeal has wide powers when it comes to remedy and could direct a re-hearing if it concluded that was the appropriate course to take. Therefore, Ms Stotesbury submitted, there is an effective alternative remedy.
50. I agree. In the end, that factor is the critical reason for my decision that the application to re-open should be refused. The appropriate venue for consideration of any criticisms directed towards what happened at the hearing as well as its result (on liability) is the Court of Appeal. The fact that the upshot of a successful appeal to the Court of Appeal may well be the remission of the case for a rehearing of the statutory appeal, or for a rehearing on the liability issues, is no justification for taking a shortcut, however tempting that might be. CPR 52.30 should be a remedy of last resort in circumstances where, for example, there is no prospect of a further appeal. It cannot, and should not be used as an alternative to a further appeal where such an appeal is still available.
51. Mrs Tapster still faces the difficult task of satisfying the "second appeals" test; and it is a matter for the Lord or Lady Justice of Appeal dealing with the permission application to decide if that test is satisfied. Nothing I have said in this judgment is intended to trespass on that decision, though if I had had the power to grant permission, I would have granted it so that all these matters could be fully ventilated and the question whether the Panel was correct to decide that what Mrs Tapster did amounted to professional misconduct can be adjudicated on once and for all.
52. The position now is that Mrs Tapster has the information she previously lacked to enable her to go ahead with her application to the Court of Appeal for permission to appeal against the decision of Hayden J. insofar as he upheld the decision of the Panel on misconduct and impairment, and that is how this matter should proceed. Mrs Tapster would be well advised to refine her grounds of appeal, but that is a matter for her.

Who should pay the reserved costs?

53. Turning to the question of costs, Ms Stotesbury submitted that the NMC had successfully resisted the application in CO/2324/2017 to set aside the order of Lavender J, and in the usual way the successful party should be awarded its costs of and occasioned by that application. Mrs Tapster raised no reason in principle why there should be a departure from the usual order. The fact that the NMC used in-house counsel who is employed and receives a salary is no justification for refusing a costs order – indeed it reduces the costs that would otherwise be incurred in instructing independent counsel. The fact that a party liable in principle to pay costs may be impecunious, is no reason in principle to refuse to make an otherwise justified order, though it may impact on the practical ability of the successful party to enforce the costs award.
54. So far as these proceedings were concerned, Ms Stotesbury accepted that the hearing on 11 October had features of a case management hearing, and that the merits of the appeal have been left over for determination elsewhere; but she submitted that the NMC had succeeded on the discrete issue of whether the appeal should be re-opened and that a proportion of the costs of preparation for the hearing and the argument should be awarded accordingly. All remaining issues pertaining to the costs of the hearing should be reserved to the Court of Appeal.
55. Mrs Tapster had voluntarily absented herself from court when these oral submissions were made, but she had previously sent in written submissions on costs which I read and took into consideration. In principle, costs should follow the event unless there is some other good reason not to make such an order. This was a case where summary assessment was not only possible but appropriate. However, I am concerned by the points Mrs Tapster has made about the impact that any costs orders may have on her financial stability and, by necessary implication, on her ability to pursue her appeal in the Court of Appeal. What I propose to do, therefore, is to stay both the costs orders I am making until after the final disposal of Mrs Tapster's appeal in this matter to the Court of Appeal. I do not believe that this will cause the NMC any material prejudice.
56. I shall award the NMC the costs of resisting the application to set aside Lavender J's order in C0/2324/2017, reserved on the last occasion, which are summarily assessed in the total sum of £1,210. I shall also award the NMC a proportion of the costs of preparation for the hearing and of the hearing on 11 October 2017 which relate solely to the issue of re-opening the statutory appeal, which they have persuaded me would be an inappropriate course to take. Therefore, the NMC succeeded on that discrete issue. I summarily assess those costs in the total sum of £1,000. It would be premature to award any other costs, as the balance of the hearing was essentially a hearing for directions and the question of who succeeds in any further appeal will depend on what the Court of Appeal decides. Any other costs relating to the preparation for the hearing and the hearing itself are therefore reserved to the Court of Appeal.
57. Ms Stotesbury made an application that I should certify the application in CO/2324/2017 to set aside Lavender J's order as totally without merit, even though I did not do so at the time when I made my order on 8 August 2017. Mrs Tapster has pointed out that she was entitled to ask the court to set aside an order made on the papers and submitted that she should not be penalised for doing something that the CPR allows. Whilst it is true that the rules permitted her to make the application, that does not affect the fact that there was no arguable basis for challenge to the decision made by Lavender J. I therefore acceded to Ms Stotesbury's application. However I refuse to certify that the application to re-open was totally without merit. There were respectable arguments on both sides and in any event it would be most unfair to criticise a litigant in person for pursuing an application which the court has suggested to her as a means of keeping all her options open.
58. Whenever a judge certifies an application as totally without merit, he or she is obliged to consider whether it would be appropriate to make a civil restraint order. I am firmly of the view that that time has not yet arisen.