In this case, a wasted costs order was made against a firm of solicitors which had been negligent to such a degree in pursuing an appeal that it amounted to an abuse of process. The solicitors had failed to submit the appeal notice in time and pursued the appeal despite advice from the Nursing and Midwifery Council ("NMC") that the court had no jurisdiction to extend time in the circumstances of the case. The case is a reminder to practitioners and appellants that the courts will continue to take a dim view of significant, avoidable procedural failures and that such failures may have unwelcome consequences where unnecessary costs are incurred.
Nurse A was struck off the register by the NMC's Conduct and Competence Committee. She instructed solicitors to appeal the decision. The solicitor who issued her appeal was aware that it was out of time and sought an extension. There were no exceptional circumstances that would have justified the extension. The NMC wrote to the solicitors on several occasions pointing out that there was no jurisdiction to extend time, quoting the leading case of R (Adesina and Baines) v Nursing and Midwifery Council  EWCA Civ 818. Adesina provides that the court's discretion to extend time only arises in exceptional circumstances where an appellant has personally done all they can do to bring an appeal timeously. Giving judgment, Mrs Justice Andrews stated that it 'would have been blindingly obvious to any competent legal adviser who read the authority in question' that there were no exceptional circumstances. The NMC offered not to seek its legal costs if the solicitors agreed to withdraw the appeal but they proceeded to take the matter to the High Court where, inevitably, the court refused to extend the time limits.
The Court proceeded to consider its jurisdiction to make a wasted costs order in accordance with Ridehalgh v Horsfield  Ch 205. Andrews J concluded that the negligence in this case was of such gravity that it went beyond the mere presentation of a hopeless case (which in and of itself cannot lead to a wasted costs order). Given the fact that the NMC had pointed to a number of authorities that established that, absent exceptional circumstances, there would be no jurisdiction to extend time for the appeal, the court concluded that the solicitors' decision to pursue the case amounted to a breach of the legal representative's duty to the court, had caused the NMC to incur unnecessary costs and was therefore an abuse of the court's process.
In opposing the application for a wasted costs order, the solicitors sought to rely on the fact that they had instructed counsel (who advised that there were grounds upon which the court could extend the time limit). The Court was stinging in its criticism of counsel, saying for example that 'any reasonably competent barrister in counsel's position… would have advised his instructing solicitors and his lay client that the Court could not hear the merits of the appeal because of it was out of time'. Notwithstanding this, the judge concluded that while counsel had been negligent, the unnecessary costs incurred were solely due to the solicitors' actions and that the solicitors had not acted on instructions when pursuing the appeal and had failed to share important correspondence with Nurse A. Finally, the judge issued a warning that 'solicitors cannot hide behind the fact that they have instructed counsel, because that does not free them from their own responsibility in terms of proceeding properly with cases'.