Nursing and Midwifery Council v Kidd and De'filippis [2014] EWHC 847 (Admin)

In this case the Administrative Court, in its own words, 'put down a marker' for regulators in respect of the timing of applications to extend interim orders.

In the context of two cases where applications to extend interim suspension orders had been made just a week before those orders were due to expire, the court found that it was good practice to give respondents a minimum of seven calendar days' notice of such applications.

Factual background

The court heard two applications lodged by the Nursing and Midwifery Council (NMC) to extend interim suspension orders.

In the case of K, the suspension order had been due to expire on 11 March 2014. The NMC's application was lodged a week beforehand on 4 March 2014. In view of the apparent urgency, the court listed the application for 7 March 2014 but, pursuant to CPR 6.14, the application was only deemed to have been served on K on 7 March 2014 (ie, the day of the hearing).

Additionally, on 5 March 2014, the NMC sent K and his union representative a draft consent order seeking his agreement to extend the interim order without a hearing. K responded via his union representative to say that he did not agree to the order and was unhappy about the length of time it was taking to deal with matters.

The NMC's application in relation to D was lodged on 3 March 2014. It related to a suspension order which had been due to expire on 10 March 2014. As in the case of K, the NMC sent D a consent order on 5 March 2014. However, D did not respond.

The court heard both applications on 7 March 2014. It noted that applications by regulators to extend orders close to their expiry date were not uncommon. However, there were a number of serious problems with this.

The first was that respondents were being given insufficient time to prepare their case, which was compounded by the fact that they were invariably litigants in person. This raised a serious and elemental issue of fairness and, in cases such as these, the court would wish to look closely at how applications were made. It would be 'rare indeed' that short notice should ever be given and good practice suggested that a respondent should ordinarily receive at least seven calendar days' notice of an application to extend.

The second problem was that such cases were not intrinsically urgent. Rather they were artificially made so by regulators applying to extend orders so close to expiry.

Third, the practice of tendering a consent order just days before the hearing risked using the imminence of the hearing as a means of pressurising the respondent into agreeing to a consent order in onerous terms. One factor that risked pressurising a respondent into consenting is the alternative to consenting, namely the 'potentially very intimidating prospect' of having to attend the High Court in person at short notice.

Finally, the modus operandi adopted by the NMC in these cases imposed pressure on the court, whose lists are always crowded. Making room for urgent applications meant that other matters might have to be deferred and/or judges diverted from other duties.

Notwithstanding the court's disapproval of the NMC's conduct in making these two applications, the court decided on the facts to grant both extensions sought.