Two nurses whose erasure from the register was quashed by the High Court were awarded 80% of their costs in the proceedings, under a judgment delivered on 6 September 2017.
Ms Justice Ní Raifeartaigh said the starting point was that costs should follow the outcome: the nurses had succeeded in having the board’s 25 March 2015 decision imposing erasure quashed. She declined to award the remaining 20% because the nurses had not succeeded on their quorum and estoppel arguments, or on an issue about whether they had received a board procedures document before the sanction hearing.
The costs judgment concerned two statutory appeals brought under section 39(3) of the Nurses Act 1985. The nurses did not challenge the Fitness to Practise Committee’s findings of misconduct. They challenged the sanction of erasure and whether the board had the statutory quorum when it imposed that sanction.
In a January 2017 judgment on the substantive issues, the court quashed the erasure sanction and directed the board to reconsider the sanction. The nurses succeeded on the statutory interpretation question of whether the board had a quorum, but were found estopped from relying on that point because no objection had been raised at the board hearing. They also raised issues about delay, mitigation and, in Ms Carroll’s case, how the board dealt with a dishonesty aspect of the allegations. The court did not find in her favour on the dishonesty issue, though it accepted the board and its legal advisers had caused some confusion in correspondence.
The court heard six days of evidence by affidavit. It found the proceedings had not been unnecessarily prolonged overall, and neither side had acted unreasonably. The exception was the dispute over whether the procedures document had been sent before the board hearing. The judge considered that issue had unnecessarily prolonged the case because the nurses were on notice that the procedures existed and it was likely the document had been enclosed with a letter.
The board argued that costs should not ordinarily be awarded against a statutory regulator carrying out public-interest functions, and alternatively sought an apportionment because the nurses had lost on some arguments. The judge rejected the proposition that there was an established rule shielding the board from costs in successful court appeals. She applied the usual costs principles, while accounting for the issues on which the nurses had not succeeded.
The costs decision did not determine the sanction the board should impose on reconsideration. The judgment directed that the nurses receive 80% of their costs of the court proceedings.