Nursing and Midwifery Council, R (on the application of) v Dublas

MR JUSTICE OUSELEY: It seems to me that the appropriate order in these circumstances -- but I will hear Miss Bruce on it -- the most appropriate order is to make the order and to give the respondent liberty to apply to discharge it on -- I think your draft order says three days written notice, I do not mind, I am happy with three days written notice -- apply to discharge that order when she has had the opportunity to decide whether that is what she wants to do.

MISS BRUCE: My Lord, I am very grateful for the indication. The matter that I raised with my learned friend outside of court whether more than three days could be granted. The problem that of course both myself and instructing solicitors have at the moment is that we quite simply do not know where Miss Dublas is --

MR JUSTICE OUSELEY: No, I think you misunderstand. It is not three days from today to give written notice. You can take as long as you like. When you have decided and you are getting a court date, it has to be three days -- he has to have notice three days before that court date.

MISS BRUCE: I am grateful, my Lord.

MR JUSTICE OUSELEY: It is not you have to decide in three days.

MISS BRUCE: I am grateful.

MR JUSTICE OUSELEY: So you have got no -- there is no time limit on when you apply, if you decide to apply, so you can take a month to take instructions. So I will make an order that the interim order be extended to 4pm on 8 September 2011, the respondent has permission, on giving three days written notice to the applicant, to apply to the court to vary or discharge this order. It then says no order for costs, I just wonder --

MISS BRUCE: There will be an application for costs.

MR JUSTICE OUSELEY: Yes. I just wonder Mr Hafejee whether -- that might have been all right, but I just wonder whether the problem has not arisen because of this late service.

MR HAFEJEE: My Lord, I do concede that on this occasion there appears to have been an oversight on the part of the admin staff.

MR JUSTICE OUSELEY: I think it might reinforce the point if I say on this occasion --

MR HAFEJEE: However, my Lord, what I would do is I would oppose the application for costs for this reason. The order is necessary on the merits. They have the safeguard, as your Lordship has indicated, to apply to have the order varied or discharged, we have complied with the minimum notice requirements within the CPR, and we are funded by a subscription of nurses money. Even though your Lordship may feel you need to emphasise the omission on this occasion -- your Lordship may take the view that the omission on this occasion may need to be emphasised with an order for costs, it will only bite upon and hurt our work and our ability to do our work.

MR JUSTICE OUSELEY: I understand, but that is the same with everybody is it not?

MR HAFEJEE: Well, my Lord, the order is necessary and it has been made in our favour --

MR JUSTICE OUSELEY: The order is necessary and it has been made in your favour because they have not had the chance to say why it should not have been made. If Miss Bruce turned up instructed to oppose the order and failed then she would pay the costs. It is really -- this problem has arisen -- it may have been unnecessary for Miss Bruce to attend, because I had indicated that I was going to make this sort of order absent something else, she did not need to attend to achieve this order, but a solicitor does not know, unless they attend, what is going on, do they?

MR HAFEJEE: The issue for the NMC, my Lord, would be that we did endeavour to discuss with the solicitors yesterday, I was on the phone for some time airing these issues, and assurances were given that, if it was possible, we would accede to an adjournment, if the court would allow it, and secondly that, in any event, the order we would ask for would allow the respondent scope to return to court.

MR JUSTICE OUSELEY: All right. Miss Bruce, when did you understand -- did your solicitors or you understand that the applicant was, after this morning, seeking an order of the sort that I am going to make, namely imposing the interim suspension but giving you liberty to apply to discharge the order?

MISS BRUCE: The first I was aware of that was when I spoke to my learned friend upon arriving at court this afternoon. My instructions from Mr Alamo, who instructs me, is that he and Mr Hafejee had signed the consent order, and that is the order, my Lord, that deals with the adjournment matter, which I understand was not satisfactory. Having signed that order, it was his expectation that the matter would come out of the list. He received a telephone call today saying that it had not and that someone could attend on behalf of the respondent before 4 o clock. That is the knowledge that he had. I have had two conversations with him this afternoon about this matter, bearing in mind I only received instructions at 2.30, and that is why he has asked me to attend here this afternoon, my Lord.

What I would say, and I think this has already been echoed, is that it is accepted that ordinarily this would be a very straightforward matter, but unfortunately the problems that have been faced by the court today have arisen because of the problems with timetabling that lie at the door of the NMC. It is not possible for my learned friend to say at this stage that the suspension order is necessary, because the late timetabling has meant that we have not been able to have that hearing.

MR JUSTICE OUSELEY: Yes, I think I have got that point. Very well.

Anything else you want to say Mr Hafejee?

MR HAFEJEE: No, my Lord.

MR JUSTICE OUSELEY: No. Thank you.

There will be an order for costs. The applicant will pay the costs of today to the respondent.