AC-LON-2023-002572 - [2025] EWHC 2324 (Admin)

The appellant applied to adjourn this appeal hearing. The respondent opposed the application and the matter was taken as a preliminary issue.

On 22 August 2025, the appellant sent an email to the court office requesting an adjournment of the appeal listed for 2 September 2025. On 28 August 2025, she paid a fee for filing an application. However, she did not file an N244 application form as is required. Instead, she attached an electronic bundle to an email. She did not serve notice of her intention to apply for an adjournment on the respondent. The bundle was only served on the respondent following direction from the court. The basis of the adjournment is that she cannot afford legal representation. In a statement included in her bundle and dated 21 August 2025, she states:

“12.

I respectfully submit that the arguments and reasons that applied at the hearing on 8 May 2025 that persuaded the court to allow me time to save enough for representation still apply equally now. The equality at arms argument is exactly the same and the case is equally important to my career and livelihood now as it was in May 2025. For these reasons, I respectfully ask the court to vacate the appeal hearing for 6 months to allow me to save enough for representation, either by regaining my DBS Certificate or by having longer to save from my reduced earnings as a cleaner. I accept that it is very regrettable that the appeal hearing is going to have to be adjourned again but I really have done everything I can to sort out my DBS situation and to earn as much as I can even by doing a job that is below what I am qualified to do and what I have done for the last 20 plus years. This notwithstanding, I am prepared to continue to work hard as a cleaner if it means earning enough money to pay a barrister to represent me. At the time of the last hearing I thought I could save up enough for my representation but this DBS issue came after that and has changed my finances completely.”

The bundle contains the following:

“13 Jun 25 A stopped working for 24 Hour [the care services company] because PC Louise Sutherland told A that she was not cleared to work according to the DBS information. 24 Hour disagreed with this and told A that she could continue to work because they had checked the updated service. However, C [the appellant] chose not to continue to work whilst there was conflicting opinions and especially when she had been told by the police that it would be unlawful for her to work until the DBS review had been completed.”

The appellant continues:

“I stopped working at the care home on 20 June 2025, so I was without any wages from 20 June 2025 until 1 August 2025.”

There is no doubt that she did stop working in the care home and in August began working for a cleaning company called Flamingo Limited [“Flamingo”]. The appellant’s care services employers checked with the DBS updating service and the employers were informed that the appellant could continue to work. However, I judge that it is not unreasonable for her to have stopped working in the care home while the DBS situation remained unresolved. However, that is not the end of the matter. The oral arguments during the adjournment application allowed for exploration of certain facets of her application that caused concern. To understand the topic, I turn to the list the appellant provided of her income and expenditure. She put it this way:

“10.

The total I have managed to save from 8 May 2025 to end August 2025 is £7,288 income less £5,368 expenditure = £1,920 which is not enough to hire a barrister for my appeal hearing.”

Therefore, she represents herself at the listed appeal hearing. I consider the questions of (a) school fees and (b) legal representation, before (c) discussing the overall merits of the adjournment application and (d) reaching a conclusion.

In May 2025, the appellant told the court, as noted by Lang J at para 22 of her judgment:

“She pays £250 a month to support her dependant grandchildren to attend school in South Africa. There are no school fees payable over the next four months between May and September, which will amount to a saving.”

However, at the hearing before me, the appellant told the court that the fees are £450 per month. Indeed, she added that “sometimes it was more than that”. Further, she said that she had paid the fees every month from May 2025. To avoid any chance of misunderstanding, the court clarified this account with her twice. She confirmed it. Therefore, her latest account is contrary to the account she had previously provided to the court. However, it is also contrary in material respects to the statement she emailed to the court on 22 August 2025. In that document she stated at para 6:

“6.

My expenditure since 8 May 2025 and projected to the appeal hearing on 2 September 2025 is:

i.

School fees for relatives in Zimbabwe amounting to £450.

ii.

A further £100 per week to these children for food = about £1,600 …” [she then itemised other expenditure]

I note that her statement records the school fees being to relatives in Zimbabwe. She told Lang J that the school was in South Africa. Even if both things are possible, beyond her assertion there is no evidence provided that she has paid these fees and for this food over the summer. She has provided evidence of payslips from HKS Consultancy Ltd (presumably her care home employers) and an account statement from a Halifax account with payments from the cleaning company (Flamingo) made to her in August 2025. There is no evidence whatsoever provided about her outgoings. The figures rely on her assertion.

Yet in her statement she maintained that there was only one lot of school fees amounting to £450. Further, she was obliged to pay a further £100 per week for food for the children in South Africa, a sum she had not previously mentioned and that features nowhere in Lang J’s judgment. As a result, I agree with the respondent’s submission that there is “conflict in what she is saying about her outgoings”. The amounts she claims to have paid over the summer to South Africa are sufficient to make a real difference in her ability to obtain legal representation for this hearing. I note that there is no evidence whatsoever that she has made these payments. She says that the fees are for a private school in South Africa.

The claimed payments amount to £2050 in the period from May to August. There is no explanation from the appellant for why she now must pay these fees over the summer when she told Lang J that they would not be incurred. In the absence of any evidential verification and rational explanation, there are very real questions about these claimed payments, her reliability and frankness.

Combined with the £1920 she says in her statement that she has saved (para 10), she would have very nearly £4000. The next question to be examined is what sums might be sufficient to fund legal representation for the appeal hearing.

The appellant relies heavily on a conversation or conversations she claims to have had with Mr Skeete of counsel. She says that he informed her that his fees for an appeal hearing are £7500. Indeed, and in fairness to the appellant, counsel confirmed that figure before Lang J. The appellant also says that counsel informed her that she may be able to instruct a more junior counsel for around £5000. At the hearing, she was asked to explain the steps she had taken to obtain legal representation for the hearing.

Her response was that she did not try to speak to any other barrister “because she was not working”. Therefore, between May and this hearing, she has made no enquiries of any junior counsel or their clerks to establish how much their fees might actually be. On her case, she stopped working in the care home on 20 June 2025. Therefore, she was working for six weeks before that cessation and made no attempt to ascertain how much counsel fees might be. What is strange is that as Lang J recorded at para 18, counsel’s fee for the substantive appeal was only “ascertained” by the appellant “two or three weeks ago”. That is, in the second half of April 2025. Mr Skeate had drafted the Grounds and skeleton argument in August 2023. It makes little sense that the appellant only discovered in the two or three weeks before the substantive appeal hearing, and after the passage of over 18 months, that she could not afford his fees to represent her at the appeal. This was a serious risk to take to proceed to the period immediately before the appeal in ignorance of what the cost of counsel’s representation would be. Collins Rice J said at para 26 that the appellant “should have identified at an earlier stage the cost of being represented at the appeal and considered whether she was able to afford Mr Skeate’s fees”. I concur.

In similar vein to the appellant’s lack of enquiry about counsel’s fees, the appellant has made no enquiries of solicitors to see if they may be able to provide an advocate for her at a figure closer to her available funds.

When asked about this, she said that she “spoke to her employer”, 24 Hour Recruitment, and asked if they could provide representation. This seems a curious thing to do, asking an employment agency if they could provide legal representation at a High Court appeal hearing. Nevertheless, the appellant produced a WhatsApp exchange between her and someone she says works for the employment agency. The critical detail lies in the timing. The message exchange takes place at 01:20 on the morning of this appeal (2 September 2025) when she asks if the agency can help her find a lawyer for the High Court hearing listed at 10:30 that same day. Having read the message exchange, it appears that she may have asked earlier about this, but she did not provide the court with this message. Her request to her employer appears to be a response to the direction of the court made on Monday 1 September 2025 that she should be prepared to explain why she seeks an adjournment and be ready to argue the appeal should her adjournment application not succeed.

Her request to her employer seems a last-minute effort doomed to failure. It is unclear how a lawyer, even if the employment agency produced one at such short notice, could have argued her appeal which was listed for 10:30. In any event, she has not spoken to any lawyer through her employers.

I judge that through the adjournment granted by Lang J, the appellant has been given a full opportunity to investigate securing legal representation in a way that would be affordable to her. She says she has had a conversation with Mr Skeete of counsel about lesser fees for junior counsel (unevidenced) and then made a futile attempt in the early hours of the morning of the listed hearing (or shortly before) to obtain a lawyer through an employment agency. Besides this, she has done nothing to explore how she might obtain legal representation for the listed appeal hearing and on what terms. She has not investigated if she could agree arrangements to make payments over time, what the initial fees would be, whether either junior counsel or a solicitor authorised to act as an HCA would represent her for the sums she has available. She has simply proceeded on the basis that she was going to be granted another adjournment at her application. That was the wrong approach.

Further, it is artificial to view the period for accumulating funds for legal representation as beginning on 8 May 2025 with a standing start. It is unclear why she has failed to save anything in the intervening 20 months between the filing of her appeal and the May 2025 scheduled appeal hearing. In her May 2025 application, she stated that she had been out of work “between January and September/October 2024” due to “fracturing both ankles”. Before me, when asked about this, she said that in fact it was one ankle that was broken not two, and thus her account is now different to that in her May 2025 N244, where she signed a statement of truth on 1 May 2025 attesting that she had broken both ankles. It is puzzling how a very experienced nurse could have presented such a factually erroneous picture to the court.

But even if one removes the period of “the past 8 months” as she termed it in the N244 application form (Section 10, para 1), there remains a further period of 12 months in which she appears to have saved nothing from the date of filing her appeal. She said in her previous N244 that she “can currently save £1000 per month after outgoings if she makes sacrifices”. Even if in the earlier period her earnings were not at the same level, there was an obvious possibility to save for her appeal if she had given it due priority. It is clear that she has not.

I concur with Lang J at para 25 of her judgment that:

“Further delay is undesirable and it would be particularly detrimental to the NMC to have to make a further application to extend the interim suspension order.”

If the case is adjourned further today, the respondent will be obliged to make another application to extend the ISO. I agree with Lang J that this would be particularly detrimental to the respondent and thus cause prejudice.

As to prejudice to the appellant, it is clear that the findings against her made by the Panel and the striking out order have severe consequences for her. However, they do not determine her adjournment application. The decision must be taken in the round and multifactorial.

I formed the strong impression that Ms Tsolo was well able to present the points she thought important to her case. She had a detailed grasp of the facts, could bring relevant documents, messages and emails to the court’s attention, and was able to speak fluently about the historic events and the applicable policies at the care home and how she claimed they had changed. She is plainly a person of some substance with a quietly strong and confident personality. She submitted a series of character references that speak of her diligence, dependability and professionalism. She also sent a certificate from her employment agency recognising her “dedication, commitment and hard work” throughout the year (2020). She is clearly intelligent and is a very experienced care professional having worked for over three decades in nursing and caring for the elderly, sick and vulnerable. I did not experience the appellant as having difficulty in communicating the points she relied on. Rather, she offered a surfeit of ideas and arguments she wished to bring to the court’s attention that required the court to refocus her on the specific topic under discussion. To be fair to the appellant, this overenthusiasm is something lawyers occasionally share.

It is here that the court, recognising her status as a litigant in person, was able to actively assist to structure her presentation, and thus promote her effective participation. It is not uncommon for nursing and medical practitioners in regulatory proceedings to conduct their appeals in person. The Administrative Court has great experience of litigants in person and in doing its utmost to ensure that the relevant issues are explored to the extent they can be in fairness to an unrepresented person. Indeed, in this case, the court was able to query the claim made by the respondent that a nurse on the Panel was in a position to make a judgment about the nature of the appellant’s oral thrush when there was no evidence about the nurse’s experience or expertise with the condition. The submission was withdrawn accordingly.

The fundamental criticism made of the Panel is that it refused the appellant’s application to adjourn the substantive hearing in July 2023. The issue is simply whether that decision was wrong. That does not require great legal sophistication or experience to argue. The Panel had to consider the adequacy of the medical evidence presented by the appellant. The appellant was well able to identify the relevant evidence and address this court about its value. The Panel then had to make an assessment of the factors in favour of and against adjourning. Once more, the appellant was perfectly able to speak to this issue during the course of the hearing before me.

As framed by her erstwhile counsel, the other issues were largely derivative from that head issue. She was able to address the court on them all.

It must be remembered that the substantive appeal is based on the refusal of the disciplinary panel to adjourn the trial below after the appellant provided it with what it found to be insufficient justification for an adjournment. This is the appeal’s central issue. After two days, Ms Tsolo did indeed attend her disciplinary hearing and participated. That hearing was not the first listing, but was a relisting after the appellant did not attend the original listing in December 2022.

The court is now faced with yet another very late application to adjourn a listed substantive court date. The prescribed N244 application notice to seek an adjournment has not been filed. The appellant knew that this is the proper procedure, having filed and signed an N244 to secure the adjournment before Lang J. The respondent was not informed by the appellant of her application or served with her supporting documentation. Indeed, the appellant did not serve the documents until the evening of appeal hearing and then only after a specific direction from the court. The adjournment application was made very late with no adequate explanation for why there has been such delay in notifying the court when, on the appellant’s case, it was clear from the end of June that she would not be able to fund legal representation. Instead of promptly making an application to adjourn the substantive hearing, the appellant waited for around two months until just over a working week before the hearing date. This repeated the pattern of timings of her adjournment request before Lang J. It builds on a failure to attend the initial substantive hearing date of the disciplinary proceedings and then her failure to attend the relisted substantive hearing until it was clear to her that her non-attendance had not succeeded in having the hearing vacated. The disciplinary panel was continuing in her absence and it resulted in her attending from Day 3.

The fact is that there has been a protracted history of applications by the appellant to adjourn the proceedings both at first instance and on appeal. This reaches back to the first scheduled disciplinary hearing in December 2022. The case had been listed for hearing for 7-20 December 2022. At 13:00 on 6 December, Ms Tsolo sent the respondent an email stating that she had a chest infection and sought an adjournment. The respondent sent an email to her on 7 December, the listed first day of the hearing, setting out the required medical evidence to justify a postponement. It said:

“to what extent your condition affects your participation in the hearing. The letter should:

• Identify the doctor (name, GMC pin, etc) and give details of their familiarity with your medical condition(s), detailing all recent consultations.

• Identify with proper particularity your medical condition and explain as to why that

condition prevents your participation.

• Provide a reasoned prognosis and give the court some confidence that what is being expressed is an independent opinion after a proper examination.

The letter will be tendered as expert evidence, the panel is not bound to accept the medical practitioner’s opinion, they make an evaluation and consider what weight to attach to it and decide whether or not to adjourn the hearing.

The onus is on you to obtain and provide the complete information to assist your application to adjourn.”

It can immediately be seen how the respondent had explained to her very clearly the nature of the medical evidence necessary in accordance with the Guidance. Ms Tsolo had emailed the respondent to say that a “GP medical certificate will follow”. It never did. Indeed, the respondent emailed her on 8 December to ask if she had “received anything back from your GP”. On the same date in a separate email, the appellant was informed that in light of her stated illness (despite the lack of any medical practitioner’s confirmation) the hearing would be adjourned until 12 December to give her a chance to attend. Again she was asked for a medical certificate. She did not provide one. Although the appellant sent a photograph of some medication, she at no point provided a medical certificate stating that she was unfit to attend the disciplinary hearing. Despite the repeated requests that she provide a medical certificate, no independent medical practitioner confirmed she was unfit to attend that hearing. After the relevant panel pushed the hearing back several days to assist her, it was eventually adjourned for other reasons. What to my mind is revealing is that here was a disciplinary hearing at which the appellant claimed to be unfit due to illness and provided no medical certificate. The hearing was adjournment to July 2023. Once more, the appellant sought an adjournment. The medical certificate she produced simply stated that she was “unwell” and did not provide a medical condition or state that she was unfit to attend the hearing (or indeed participate in it). The fresh evidence she seeks to adduce about anaemia is based on a similar pro-forma, but once more is not compliant with the Court of Appeal’s guidance on medical evidence.

Having succeeded in persuading this court to adjourn the May appeal hearing, the appellant now seeks a further six-month adjournment. There is no certainty that she will be in a position to instruct an advocate by that later point and by the logic of this application and her argument at the previous one, yet another application will be necessitated. Vitally, the Panel’s impugned decisions were taken in July 2023 and the date of the misconduct that the Panel found proved began in April 2019, that is, significantly in excess of six years ago. Important witnesses give evidence about her conduct that took place all those years ago. If the adjournment is granted until the spring of 2026, it will be seven years from the appellant’s conduct at Fulford. There is plainly prejudice to the respondent in the continuing delay to the conclusion to these proceedings. If the appeal were to succeed, witnesses will be prejudiced by the passage of so much additional time before a rehearing can be listed. Indeed, during the hearing before me, the appellant said that the case is taking so long that “the witnesses might have forgotten [what happened in 2019]”.

I have carefully considered the factors identified by Webster J in R v Secretary of State for the Home Department and Others, ex parte Tarrant and Another [1984] All ER 799, 816 relevant to the exercise of discretion where questions arise about legal representation at disciplinary proceedings. There is no dispute but that Ms Tsolo has an entitlement to be represented during her disciplinary proceedings should she arrange it. But this is very different from her being legally represented amounting to a condition precedent for the proceedings to continue.

Given the seriousness of consequence for the appellant’s future right to practise, I regard article 6 as being engaged (R (G) Governors of X School [2011] UKSC 30 (“X School”); cf. Kulkarni v Milton Keynes NHS Hospital Trust [2009] EWCA Civ 789). This is because article 6 is engaged where there are the “determination … of civil rights and obligations”. The proceedings below involved not a dispute about whether Ms Tsolo was correctly dismissed from a job, but whether she could continue to practise as a registered nurse or work in comparable regulated activities. It is this right to practise that engages article 6, for the proceedings to my mind are capable of being decisive for that private right she would otherwise enjoy.

While the appellant was properly informed of her entitlement to be legally represented at the appeal, there is no state obligation to provide such representation. This is why the appellant has sought to fund counsel privately. Further, legal representation is not a necessary condition for such appeals of disciplinary tribunal or panel decisions to proceed. This is because while Article 6 is an important right, it is not absolute. It involves the balancing of a number of competing interests and ultimately a case-by-case consideration of fairness taking a “pragmatic context-sensitive approach” (X School, para 67, per Lord Dyson).

Equality of arms, the principle that the appellant relies heavily on, is not a standard demanding perfect mirroring of legal representation. What is important is that the individual has had a fair opportunity to secure legal representation. I have no doubt that in the two years since the appellant filed her grounds of appeal that she has had ample opportunity to raise the funds to have an advocate represent her today if she had acted responsibly and had properly prioritised her legal representation. Instead, she relies on yet more indulgence from the court.

The appellant had full and timely notice of the appeal hearing date, it having been set down by the order of Lang J on 8 May 2025. Therefore, she has had very nearly four months’ notice. She was therefore granted a full and fair opportunity to secure legal representation. Although not having legal representation does create prejudice to the appellant, it is not substantial in this case on these facts. The starting-point is that before the court are the Grounds drafted by experienced counsel and counsel’s accompanying skeleton argument. I have read them carefully. Frankly, and it is a tribute to the drafting, they need only limited elaboration. The court has assessed the nature of the key issues to be determined and they do not turn on complex legal argument. Indeed, the prime issue of whether the Panel was wrong to refuse the July 2023 adjournment is straightforward. The other issues largely flow from that head issue.

The court could adapt – and did adapt - its procedure to ensure Ms Tsolo was supported in making her submissions by giving her time, summarising the issue being discussed in simple terms to her, and repeating it, summarising the opposing submissions, helping her refocus on the issue, summarising her submission back to her and asking her at every stage if there was anything else on the topic she wished to say.

In ruling on the adjournment, I must also consider the competing interests of the respondent, witnesses and the public and weigh them in the balance. I have considered the overriding objective carefully. In accordance with the overriding objective under CPR 1.1, the case must be dealt with justly for all parties to the extent the court can. A further adjournment will produce significant prejudice to the respondent and to witnesses and this outweighs the prejudice to the appellant. The public interest requires there to be finality after so long about whether the striking off order made by the Panel in July 2023 should stand.

I have no hesitation in concluding that a further adjournment is not proportionate and will needlessly incur expense with little or no guarantee that in six months’ time the court will be faced with exactly the same application to adjourn on the basis of impecuniosity. The proceedings as a whole have already taken up substantial time and resources with the repeated applications and adjournments. Fairness requires a fair opportunity to secure legal representation. She has had that. The appellant has had two years since her appeal was filed to arrange for legal representation. She has not. Further, serious questions have emerged about the accounts and figures she has provided to the court to justify the adjournment.

Overall, I approach this decision in the pragmatic context-sensitive way the Supreme Court outlined in X School. There may be other appeals where the complexity of the issues and evidence produce a greater demand for legal representation. But this is not one of them. As Lord Dyson says, the application of article 6 in such cases does not fit into “neat hermetically-sealed categories” (ibid., para 67). I judge that looking carefully at the specific facts, the appellant has failed to take the fair opportunity to obtain legal representation she has been granted. Therefore, the requirements of expedition mean that the appeal must now come on. The application for an adjournment of the substantive appeal is refused. The appeal hearing will proceed.