AC-2024-MAN-000469 - [2025] EWHC 2049 (Admin)

In cases of this nature a lengthy judgment is not required, but the reasons will need to contain a few sentences dealing with the salient issues: Southall v General Medical Council [2010] EWCA Civ 407 at [55]-[56], Yassin v General Medical Council [2015] EWHC 2955 (Admin) at [30] and Khan at [58].

In Hindle v Nursing and Midwifery Council [2025] EWHC 373 (Admin), Alan Bates (sitting as a Deputy Judge of the High Court), considered the circumstances in which a fitness to practise tribunal is required to set out its assessment of the general credibility and reliability of each witness’s evidence; and the extent of the forensic analysis and reasoning required for making such assessments: [1]. Both counsel relied on aspects of the judgment in Hindle, such that it is appropriate to set out the Deputy Judge’s reasoning in a little detail.

The Deputy Judge summarised the key aspects of the evidence and the Panel’s task as follows:

“7.

The Disputed Conduct Allegations that the Panel had to determine turned very substantially on factual accounts given by the Complainant Nurses which were contradicted by the Appellant and, in relation to some allegations, by the Paramedic. The differences between the Key Witnesses’ respective factual accounts were unlikely to be explicable by mere differences in individuals’ honest recollections or perceptions of events. Both the Appellant and the Paramedic asserted in their evidence that the Complainant Nurses had “fabricated” their versions of events as part of a concerted campaign to undermine the Appellant and drive her out from her job as their manager

8.

Against this background, a vital element of the Panel’s task in these proceedings was to decide which witnesses’ accounts could be relied on in relation to the various disputed allegations. In my judgment, this required the Panel to take into account, as a relevant consideration, the extent to which each of the Key Witnesses was generally credible and reliable, and whether there were factors present which should cause her or his evidence to be viewed with caution or circumspection. The Panel had also to explain, in respect of the disputed allegations it found proved, why it had preferred the account given by one or more of the Complainant Nurses to the contrary account given by the Appellant and, where relevant, by the Paramedic. It was not sufficient for the Panel merely to set out the witnesses’ respective accounts, and to then say, “We prefer the evidence of [name of witness(es)] and therefore find this charge proved”. The Applicant was entitled to know why her evidence on the relevant matter had not been relied upon by the Panel, and such reasons as were given in that regard had to be rational and based on weighing up all legally relevant considerations. Such considerations ought to have included the Panel’s assessment of the relevant witnesses’ general credibility and reliability, taking all relevant factors into account.

9.

Of course, witnesses’ factual accounts may be honest but mistaken; and a witness may, for a variety of reasons, tell some lies, whilst being truthful about other matters. The fact that a witness has been found to have given an incorrect account, or even to have deliberately lied, in relation to one matter does not mean that everything the witness says is untrue or to be disregarded.

10.

But it does not follow that forming an assessment of the general credibility and reliability of witnesses’ evidence is unimportant or irrelevant. On the contrary, such an assessment will often be an important input to the tribunal properly evaluating whether a burden of proof has been satisfied in respect of matters on which there is a conflict between the accounts of different witnesses. If one part of a witness’s evidence appears to be untrue, then this may properly be taken into account when the tribunal is considering whether, and to what degree, it can place reliance on another part of her evidence. This is common sense. It will often be appropriate for the tribunal also to consider why the witness’s evidence was false or incorrect on a certain matter, as this may be relevant to the extent to which the witness’s evidence generally, or in relation to certain other matters, being viewed with caution. For example, the tribunal may discern that the witness has a tendency to rush to draw negative inferences or conclusions about a particular person or group of persons, or that she appears to have been motivated by an objective or desire to achieve a particular self-serving result.

11…the Panel’s approach of considering the evidence relating to each charge against the Applicant on an individual charge-by-charge basis, effectively in silos, has led it into error. It has, for example, failed to consider whether the fact that the Complainant Nurses’ factual accounts in relation to one allegation was found (by reason of those accounts having been contradicted by CCTV evidence) to be incorrect should affect the degree of confidence it should place on those witnesses’ assertions in support of other allegations. It has also failed to properly evaluate the contextual evidence relating to the Complainant Nurses’ behaviour prior to, and during their employer’s investigation of, their joint complaint submission, which was relevant to a proper assessment of the degree to which the Panel could have confidence in the truthfulness and reliability of their evidence.

12.

The crux of the Appellant’s case was that the Complainant Nurses had created a catalogue of fabricated and exaggerated allegations against her, to rid themselves of a manager with whose decisions they disagreed and whose job they thought should have gone to one of them. The Panel’s failure to properly grapple with assessing the credibility and reliability of the Key Witnesses had the consequence that it failed to deal adequately with the Appellant’s case.”

The Deputy Judge returned to this theme later in the judgment:

“51.

In respect of each such conduct allegation, it was incumbent upon the Panel to provide informative rational reasons for its finding that the NMC had discharged its burden of proof in relation to all the facts necessary for supporting that allegation.

52.

That is, of course, so in every case that comes before a professional discipline or FtP tribunal. But the nature and extent of the reasoning required – including precisely what issues need to be grappled with as part of the reasoning in order to justify a finding a fact – will vary depending on the nature of the factual dispute and the relevant evidence. Where an allegation is based on factual accounts asserted by certain witnesses which are directly contradicted by the person facing the allegation or by other witnesses, the tribunal will need to carry out a careful and thorough forensic analysis for deciding whether the burden of proof is satisfied. Such an analysis should seek to draw upon all available relevant indicators as to whether each witness’s account is reliable. Those indicators will often include the tribunal’s overall impression of the witnesses it has seen giving oral evidence…

53.

In such a case, it is not sufficient for the tribunal to simply consider each charge individually (i.e. in isolation from the other charges and allegations on which the witnesses have given testimony), briefly summarise the witnesses’ competing narratives relevant to that charge, and then say, “We prefer the evidence of [name of witness(es)] and therefore find this charge proved”. But that is the approach that the Panel has taken again and again in its Reasons. On my first reading of the Reasons, I repeatedly wrote “Why?” in the margin, signifying my inability to understand why the Panel had chosen to prefer the evidence of one or more of the Complainant Nurses over the contrary evidence of the Appellant and, where relevant, the Paramedic.”

At [54]-[55], the Deputy Judge cited cases in which the concept of witness credibility, and the way that a tribunal should go about assessing it, has been considered, including Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 and Gestmin SGPS S v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm). He observed that in some cases, of which the present case was one, there may be very few contemporaneous documents before the tribunal which are relevant to the matters on which witnesses have given differing factual accounts. He continued:

“55…In such cases, the tribunal is likely to need to take particular care to make its own assessment of each witness’s oral evidence, so as to form a view as to that witness’s general credibility and reliability: see Natwest Markets plc v Bilta (UK) Ltd [2021] EWCA 680, at [50]-[51].

56.

This does not mean falling back onto discredited notions that the truthfulness of a witness’s evidence can be ascertained from observing her ‘demeanour’ whilst giving evidence, such as whether she is looking downwards when giving her answers, or whether she appears ‘shifty’: R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin), at [39]-[42], per Warby J. Rather, it means listening very carefully to the content of what the witness says in her oral evidence, and: (a) considering the extent to which it is consistent with relevant factual accounts the witness has given in her witness statement and other documents; and (b) assessing other indicators relevant to whether the tribunal can have confidence in the witness’s testimony”.

On the facts of Hindle, the Deputy Judge held as follows:

“58.

In the present case, a feature of the Panel’s Reasons is that the Panel set about considering, and making findings on, the individual charges without first setting out a broad assessment of each of the witnesses from whom they had heard, and whether that witness’s evidence was generally credible and reliable. In my judgment, however, such an assessment was vital in a case such as this one, if the Panel’s findings were to be fair…

59.

The Panel’s approach of considering each charge individually in a silo, fand its failure to assess the overall credibility and reliability of each of the Complainant Nurses, led the Panel to ignore an important relevant consideration when assessing whether the burden of proof had been met in respect of each charge. The fact that those witnesses appeared to have given incorrect accounts in relation to certain of the charges that the Panel had found ‘not proved’ was simply ignored when the Panel was considering whether it could rely on those witnesses’ evidence as satisfying the NMC’s burden of proof in respect of other allegations. In the circumstances of this case, it was not rationally open to the Panel to simply ignore that matter by taking the rigidly siloed approach that it did.”