Procedural Decision Hearing - Expenses Application - Lindsay McNicholas

Definitions

Any reference in this decision to:

• ‘GTC Scotland’ means the General Teaching Council for Scotland;
• the ‘Panel’ means the Fitness to Teach Panel considering the case; and
• the ‘Rules’ (and any related expression) means the GTC Scotland Fitness to Teach Rules 2017 or refers to a provision (or provisions) within them. 

Background

The Procedural Hearing was arranged to consider the following:

An application for expenses pursuant to Rule 1.10 of the Fitness to Teach Rules 2017.

Evidence

In accordance with Rule 1.7.17, the Panel admitted all of the documents and statements listed below as evidence for the purposes of the hearing:

Application

• Application for expenses, dated 3 August 2023, and supporting documents:
• Schedule of Productions
• GTC Scotland Procedural Decision Annex, dated 12 October 2021
• Court of Session Interlocutor, dated 8 April 2022
• GTC Scotland Answers to the Petition 16
• Professional Fees of Hari Menon Parklane Plowden Chambers, Newcastle Upon Tyne redacted to remove items not relevant
• Covering email dated 19.5.22 confirming provision of professional fees of Jonathan Moreland Swinburne Maddison Solicitors, Durham redacted to remove reference to a matter not relevant
• Professional fees of Jonathan Moreland Swinburne Maddison solicitors Durham attached to email as above
• Account of Expenses claimed
• Further submissions by the Teacher in response to the Presenting Officer’s response to the Teacher’s Application for Expenses
• Expenses Application Teacher’s Supplementary Bundle
• Notice of Procedural Hearing, dated 10 August 2021 58
• Email from the Teacher to Regulatory Investigation Officer, dated 15 December 2023

Presenting Officer’s Papers

• Amended Response by the Presenting Officer to the Teacher’s Application for an order of expenses under Rule 1.10 of the Fitness to Teach Rules 2017
• Response by the Presenting Officer to the Teacher’s Application for an order of expenses under Rule 1.10 of the Fitness to Teach Rules 2017
• Documents to accompany the Presenting Officer’s Response to the Teacher’s Application for an order of expenses under Rule 1.10 of the Fitness to Teach Rules including:
• Index of accompanying documents to accompany the Presenting Officer Response
• Presenting Officer’s Response to the Teacher’s Case Cancellation Application
• Inventory of documents to accompany the Presenting Officer’s Response
• Emails Between Servicing Officer, Presenting Officer and Teacher’s Representative of 20 and 21 May relating to the admissibility issues to be raised at the procedural hearing
• Presenting Officer’s Case Cancellation Application (2023)
• Inventory of Documents to accompany the Presenting Officer’s Case Cancellation Application

Servicing Officer’s Papers

• Notice of Procedural Hearing, dated 6 November 2024 with cover email and delivery receipt
• Teacher’s response to Notice of Procedural Hearing, dated 20 November 2024
• Email from Teacher re. response to Notice of Procedural Hearing, dated 20 November 2024 537

Proceedings

1. Preliminary Matters

The Convenor made it known to parties that the Presenting Officer had provided the Panel with the caselaw report for Baxendale-Walker [2007] EWCA Civ 233, and inquired of the Teacher as to her position on this being received as a late authority. However, the Teacher indicated the Presenting Officer had already provided her with the report some while ago, therefore she had no objection to its reference, nor any need for an adjournment to consider it.

The Teacher made it known that she would intend to refer to the caselaw report for Gorlov v Institute of Chartered Accountants in England & Wales [2001] EWHC Admin 220, and to a news article on the case of Cunliffe & Goldman v GMC (published on medscape.co.uk). However, the Presenting Officer indicated she was already aware of those cases, therefore she had no objection to their reference, nor any need for an adjournment to consider them.

The Teacher was accompanied by her husband, although he played no active role in proceedings, and there was no objection to his attendance at the Teacher’s side. 

There were no declarations of interest.

2. Morning Session

Teacher’s principal oral submissions

Using speaking notes, the Teacher gave her principal oral submissions first, consisting of what she described as being six sections

In her introduction, the Teacher  set out the background to the case. This had begun with her making public interest disclosures to her employer at that time, which had entailed concerns for the treatment of children in its care, including safety concerns. In response to her disclosure, she claimed her employer had made her subject to unfavourable treatment, whereupon she resigned from one position, and was dismissed from another. She also claimed her employer’s referral of her to GTC Scotland had been retaliatory, and made reference to the Employment Tribunal’s decision of 10 December 2019 (pp.339-383 of the bundle),  in which the view was expressed that that referral was not done in good faith (p.383). She said she acknowledged GTC Scotland is legally bound to investigate, yet claimed it had not done so fairly in her case. In particular, the decision taken at the Procedural Hearing on 12 October 2021 to exclude additional documents had deprived her of her defence. However, upon judicial review the Court of Session had held the October Procedural Hearing to be a nullity.

In section 1 the Teacher  asserted that GTC Scotland is the responsible party, relying on the Court of Session’s interlocutor, the Public Services Reform (GTC Scotland) Order 2011, and the roles of the Servicing Officer and Legal Assessor as described by the GTC Scotland Decision Making and Writing Practice Statement, while also claiming the Lord Ordinary, Lord Turnbull, had said the Panel sitting at the October Preliminary Hearing was not properly directed by those responsible.

In section 2 the Teacher  asserted that the October Procedural Hearing amounted to unreasonable and non-compliant conduct.

In section 3 the Teacher  asserted that the October Procedural Hearing resulted in increased expenses for her, referring to lengthy exchanges between her solicitor and GTC Scotland after that hearing, and after the judicial review.

In section 4 she made reference to the caselaw, including to Baxendale-Walker, which she sought to distinguish, yet upon which she also placed reliance for the dicta of the judge, Sir Igor, on types of situations which might give rise to an award of expenses in a case in front of a professional regulator. This included reference to Gorlov, to which she herself also made reference, for example to that court’s concern for the type of situation where “mistake was piled upon mistake”, which she submitted was analogous with her situation. She also referred to Cunliffe & Goldman. She claimed the overall cost to her of this situation over five years had been in the order of £80,000.

In conclusion the Teacher summed up her previous submissions, and claimed GTC Scotland’s handling of her case breached her right to a fair hearing in terms of Art.6 of the ECHR, and was also an affront to principles of natural justice.

The Convenor asked the Teacher if she would be willing to make her speaking notes available to the Panel and Presenting Officer. She agreed to exhibit those notes, although not for copies to be made, nor for retention. They were exhibited on that basis.

The proceedings then adjourned for approximately half an hour to provide time for the Presenting Officer to read the Teacher’s speaking notes.

Presenting Officer’s principal oral submissions

The Presenting Officer gave her principal oral submissions next. At the outset she made the point that the Teacher’s own oral submissions had included new material, which she did not intend to address given the Teacher’s application for expenses was focused only on the October Procedural Hearing.

The Presenting Officer then spoke to, and adopted, her written submissions. The Presenting Officer’s written submissions stated that the Teacher’s application was opposed on the basis that (i) it is misconceived, and, in any event, (ii) it does not establish unreasonable and non-compliant conduct on the part of GTC Scotland; and further (iii) does not demonstrate that increased expenses were incurred by the Teacher (per the requirement of Rule 1.10). In respect of the caselaw, she made the point that those cases bear on the type of situation where proceedings have progressed to final adjudication, which was not the Teacher’s situation in this case, where the allegations against her were ultimately withdrawn upon the Presenting Officer’s application for case cancellation. She also made the point that, were the Panel to award expenses in the Teacher’s favour, that would be a significant decision, whereupon the Scottish Government might need to intervene. 

Teacher’s right to reply

The Teacher made the following points:

• The Teacher  claimed she had never made out that the decision-maker, i.e. the Panel sitting at the October PH, had fallen into error, whereas her allegation of error was against the Servicing Officer and Legal Advisor;
• The Teacher  was aware GTC Scotland could not reduce an earlier decision, which was why it had been necessary for her to proceed by means of judicial review;
• Expenses incurred by non-compliance are usually awarded against the regulator, while she was aware of no caselaw precedent for expenses being awarded against individual panel members; and
• The Teacher  argued that her case did progress all the way to its cancellation.

Other procedural issues

The Presenting Officer made an oral application for adjournment in terms of 1.7.11 of the Rules on the basis that it now appeared to her that the Teacher had reformulated her application for expenses in terms of the Servicing Officer’s role such that she, the Presenting Officer, would wish further time to consider that, and to comment upon it.

The Convenor indicated that the Panel would wish to take legal advice on this. It was also made known to parties that the Legal Assessor had already prepared written provisional legal advice on the case at large, which the Panel had not yet read, although would now do so. Accordingly, that written provisional legal advice was also provided to parties.

3. Afternoon Session

The Legal Assessor indicated to parties that he had given legal advice to the Panel in respect of the application that the Presenting Officer had made for adjournment before lunch. However, since then it had also been made known to the Panel and Legal Assessor that the Presenting Officer would instead make another application for adjournment to another day altogether, and that the basis that she would wish to take instructions on the Teacher’s submissions on the Serving Officer’s role.

Accordingly, he would forego repetition of his legal advice at this stage in respect of the pre-lunch application, given it had, in effect, been rendered redundant by the Presenting Officer’s variation of her application.

The Presenting Officer confirmed her position, saying she might need to have regard to the contract of employment of the Servicing Officer who had served the October Procedural Hearing, and to listen to the audio recording of that hearing.

The Teacher opposed the Presenting Officer’s application for adjournment, including on the following bases:

• The Teacher  had travelled from England to Scotland for the hearing on 17 February 2025, and stayed overnight in accommodation;
• The Teacher  did not have adequate IT equipment or broadband capacity to take part in a virtual hearing;
• It was not necessary to have regard to the contract of employment of the Servicing Officer who had served the October PH, as that role was already described by the GTC Scotland Decision Making and Writing Practice Statement; and
• Adjournment would be disproportionate.

The Legal Assessor gave public legal advice, reprising his earlier  previously  undeclared advice, and also to the effect that in his view, during her principal oral submissions, the Teacher had already introduced the issue of the Servicing Officer’s role, which indeed the GTC Scotland Decision Making and Writing Practice Statement seemed to describe in any event. Therefore, taking account of both parties’ submissions on adjournment, it appeared, on balance, that it would be open to the Panel to refuse the Presenting Officer’s application for adjournment.

The Panel turned to address the application in terms of the GTC Scotland Postponements, Adjournments and Proceedings in Absence Practice Statement, and invited parties to comment on that.

The Panel retired into brief private session to consider the application for adjournment in accordance with the Postponements, Adjournments and Proceedings in Absence Practice Statement

The Panel determined that the reasons given for the adjournment application were not persuasive or satisfactory, and it was not in the interests of the Teacher to agree to the application for adjournment particularly as the case had been ongoing for some time and an adjournment would require the Teacher attending in person again. The Panel considered the application for an adjournment did not meet the general objective to deal with cases fairly and justly and in ways which are proportionate, informal and flexible, encourage participation, and avoid delay and it was not in the public interest to agree to the application for adjournment.

Upon reconvening the Convenor indicated to parties that the Presenting Officer’s application for adjournment was refused. The Legal Assessor indicated that no further legal advice had been given during private session. 

The Convenor invited the Teacher to make comment on the written legal advice on the case at large. The Teacher commented that, in general,  GTC Scotland is responsible.

The Convenor invited the Presenting Officer to make comment on the same legal advice. The Presenting Officer commented to the effect that she does not accept that a GTC Scotland Panel is a committee as envisaged by the 2011 Order, while GTC Scotland as a whole operates on the basis of division between governance and adjudication. She also addressed the potential questions suggested by the legal advice. She confirmed that, following the October Procedural Hearing, no further Procedural Hearing was ever convened to consider the same issues.

The Convenor indicated to parties that the Panel would now wish again to retire into private session in order to consider its decision on the Teacher’s application for expenses. However, before doing so, it was necessary to ascertain parties’ respective resources as mandated by Rule 1.10.4 of the 2017 Rules. The Presenting Officer indicated that GTC Scotland would be in a position to meet any expenses award. The Teacher  shared information regarding her and her husband’s income with the Panel. She confirmed she did not seek the expenses in respect of the hearing on 17 February 2025.

Status of GTC Scotland Panel sitting at Procedural Hearing on 12 October 2021

The Panel appreciated the difficulty inherent in a situation where it, being the decision-maker tasked with adjudicating upon the Teacher’s expenses application, might award expenses against GTC Scotland attributable to legal error arising out of the decision-making undertaken by another earlier Panel constituted under the same statutory framework and rules for the October Procedural Hearing. Nonetheless, ultimately it concluded that that earlier Panel was nonetheless a manifestation of GTC Scotland, and created by GTC Scotland under that statutory framework, and in terms of rules that GTC Scotland itself had also devised under the same framework. Whether or not it was a committee was not relevant.

Accordingly, being a manifestation of GTC Scotland, the earlier Panel fulfilled the definition of “Party” made out by Rule 1.2.1 (interpretation), particularly given the preambulatory caveat made out by Rule 1.2.1 at its outset, and notwithstanding that Rule 1.2.1 also defines “Panel”. The Panel adjudicating on the Teacher’s application for expenses also noted that the 2017 Rules were of GTC Scotland’s own devising.

Entitlement to expenses

The Panel recognised that a teacher’s success in obtaining an overall favourable outcome in GTC Scotland proceedings does not automatically entitle him or her to expenses, given the public nature of professional regulatory proceedings. However, it also took into account the fact that Rule 1.10 does make provision for awarding expenses where a party’s conduct has been unreasonable.

Given the GTC Scotland (Legal Assessor) Rules 2017 mandate communication to parties of any legal advice given by the Legal Assessor, and given the Court of Session had held that GTC Scotland had failed in that requirement in terms of the decision it issued on the basis of the October Procedural Hearing, that decision was unlawful.

Moreover it was unreasonable by dint of the fact that the Legal Assessor’s legal advice was inherently essential to the Panel’s decision-making and decision (whether or not the Panel had followed it), thus failure to disclose that advice was tantamount to failure to disclose reasons, or, at least, the complete reasoning for the decision. That rendered the decision and the conduct leading up to it unreasonable. The Panel took the view that no other similar decision-maker subject to a similar framework and requirements could reasonably be expected to act in the same way as had occurred on 12 October 2021.

Accordingly, the Panel was satisfied that the Teacher had engaged Rule 1.10.1 to the extent that  GTC Scotland’s conduct, including that of the earlier Panel, was unreasonable. However, it was not satisfied that Rule 1.11 was engaged at all in respect of non-compliance, given that rule clearly and unambiguously refers only to non-compliance with directions issued under the 2017 Rules, and not to non-compliance with the Rules themselves, nor to non-compliance with any other legal or regulatory requirements under the overall GTC Scotland framework.

Increased expenses

The Panel considered that when the Teacher incurred the expenses of instructing legal advice and representation for the October Procedural Hearing, all as made out in the account of expenses produced by her looking forwards from that point, she was entitled to a process which would conform to law, notwithstanding whether the Panel sitting at that hearing decided for or her against her.

She did not receive such a process, as the Court of Session had affirmed. Accordingly, those expenses were a waste of money for her. To put it another way, she did not receive a decision that was fit for purpose, therefore she did not receive what she had paid for, and should be entitled to recompense by means of an award of expenses.

Accordingly, the Panel was satisfied that the Teacher had engaged Rule 1.10.1 to the extent that that  GTC Scotland’s conduct had also resulted in increased expenses.

The Panel was not, however, satisfied that it had been shown that it was necessary or proportionate for the Teacher to employ a barrister to appear at the October Procedural Hearing, therefore deducted the entry dated 12 October 2021 in respect of her counsel’s fee. Nonetheless, it was satisfied that prior consultation with the barrister was proportionate in the overall circumstances. 

While during the private session when it came to the foregoing decision the Panel had the benefit of the Servicing Officer and Legal Assessor in attendance, and while the Legal Assessor engaged with the Panel in discussion in respect of his written provisional legal advice, no additional legal advice was given. 

Decision

The Panel decided to grant the Teacher’s application for expenses in part, and subject to limitation, all as accords with the terms of Rule 1.10 of the GTC Scotland Fitness to Teach Rules 2017.

The award hereby made is in the sum of £4,080. This represents the expenses incurred by the Teacher in instructing legal advice and representation as made out in the account of expenses produced by her (p.29 of the bundle) under deduction of the entry dated 12 October 2021 in respect of her counsel’s fee. In terms of Rule 1.10.5 the Panel directs that GTC Scotland pay the Teacher the entire sum of £4,080 by 18 July 2025.