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Professional Disciplinary Hearings

New Discretion to Allow Out of Time Appeals to be Lodged in the High Court from Decisions of the NMC, the GMC and Other Regulatory Bodies

Posted on 24th July 2013

Paragraph 3.5 of the Practice Direction supplementing Part 52 (Appeals) of the Civil Procedure Rules provides that “Where any statute prescribes a period within which an appeal must be filed then, unless the statute otherwise provides, the appeal court may not extend that period.

That statement reflected the law as it stood before the Court of Appeal’s recent decision in The Queen (on the application of Adesina and Others) v. The Nursing and Midwifery Council [2013] EWCA Civ 818. A limited discretion now exists to enable the High Court to hear an appeal brought outside the relevant statutory time limit in appeals from the Nursing and Midwifery Council and the General Medical Council. Arguably, the same discretion now exists in the case of appeals from the other regulatory bodies listed in paragraph 19 of the Practice Direction. These are appeals from most medical regulatory bodies as well as the Architects Registration Board. The reasoning in Adesina might well also give comfort to any appellant caught by any other statutory time limit.

The Decision in Mucelli

In Mucelli v. Government of Albania [2009] 1 WLR 276 the House of Lords considered whether or not there existed a discretion to extend time to enable someone appealing against an extradition decision to appeal after the expiry of the relevant time limit. The House of Lords concluded that no such discretion existed as the relevant statute provided none.

Time Limits in Nursing and Other Regulatory Appeals – The Old Law

Bean J had to consider an application to allow a nursing appeal to be heard out of time in Mitchell v. The Nursing and Midwifery Council [2009] EWHC 1045 (Admin). The appellant in that case relied on a Scottish decision, Hume [2007] CSIH 53, in which the Inner House found that there was a discretion that enabled nursing appeals to be heard out of time notwithstanding the strict 28 day time limit laid down in article 29 (10) of the Nursing and Midwifery Order 2001. It is interesting to see the Scottish approach to the issue in the judgment of Lord Macfadyen:

The context in which Article 29(10) must be construed is a professional disciplinary regime under which the individual may lose the right to exercise his profession. In that context, we do not consider that it would be right to infer that the legislators intended that the right of appeal to this court should be lost irretrievably if the appeal is presented after the expiry of the twenty eight day period mentioned in Article 29(10), even by as little as one day, and irrespective of the merits of the circumstances in which the appeal came to be presented late. We are reinforced in that view by the fact that the right of appeal is to a court which has, in its own Rules, a general power to relieve a litigant of the consequences of failure to comply with procedural requirements. For these reasons we do not consider that Article 29(10) should be construed as demanding strict compliance with the timetable and as excluding the possibility of recourse to the court's power to grant relief. The result, in our opinion, is that although the Order sets a timetable for appeal, it does not deprive this court of its ordinary jurisdiction to determine in the circumstances of the particular case the consequences of failure to adhere to that timetable.

Notwithstanding the sensible approach of the Inner House, Bean J felt bound by the decision in Mucelli and concluded that the strict 28-day time limit could not be extended.

The time limit issue then came before the Court of Appeal in the case of an appeal from a decision of the General Medical Council in Reddy v. GMC [2012] EWCA Civ 310. In Reddy the appellant sought to limit the scope of the decision in Mucelli. He was not successful:

24.     Mr. Veen sought to distinguish Mucelli on the grounds that the decision reflected the particular importance to be attached to the speedy resolution of extradition appeals, but I do not think that what was said in that case about the court's power to extend time owed anything to considerations of that kind. A majority of their Lordships were clearly of the view that the court has no power to extend a statutory time limit unless the legislation provides one and it was that principle which was applied in the later cases. Although the court has wide powers under CPR 3.1(2)(a) to extend time limits set by a rule, practice direction or court order, its powers do not extend to time limits imposed by statute. Mr. Veen submitted that by providing for an appeal to be made to a county court Parliament must have intended that the court should be able to exercise the full width of its powers in relation to appeals, including the power to extend time for filing notice of appeal. The submission is no doubt right to the extent that the court may exercise any of the powers that it ordinarily has at its disposal once proceedings have been started, but the submission that it can therefore extend time for appealing in this case overlooks two important matters: first, that, as I have already pointed out, the court's powers are limited to extending time for compliance with any rule, practice direction or court order and do not extend to statutory time limits; second, that unless and until an effective notice of appeal is filed there are no proceedings in respect of which the court can exercise such powers as it has. (Per Moore-Bick LJ).

Article 6 of the ECHR

In none of the cases discussed above, in particular in Mucelli, did any of the appellants seek to argue the effect of article 6.1 of the European Convention on Human Rights. In Pomiechowski v. Poland [2012] 1 WLR 1604 the Supreme Court returned to the strict, if not draconian, time limits in appeals in extradition cases (7 or 14 days). On this occasion they heard extensive argument as to the effect of article 6 upon the approach to be adopted when a court is confronted with the short time limits applicable in extradition cases.

In Adesina Maurice Kay LJ provided a very helpful and concise summary of the Strasbourg jurisprudence relevant to article 6 and restrictions on the right to appeal:

Although, on its face, Article 6.1 appears to be concerned with the trial stage rather than with appeals, and although it does not refer to time limits on limitation periods, it was established from an early stage that (1) where a right of appeal is provided, it must be compliant with Article 6 and (2) the rights enshrined in Article 6 may be subject to limitations but such limitations must not restrict or reduce the access left to the individual in such a way or to such an extent that “the very essence of the right is impaired”: Tolstoy Miloslavsky v United Kingdom [1995] ECHR 18139/91, paragraph 59. Moreover, a restriction (of which a time limit is an example) must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: ibid. Tolstoy Miloslavsky was concerned not with time limits but with the inhibiting effect of an order for security for costs. However, its reasoning soon came to be applied in cases concerning time limits.

5. In Perez de Rada Cavanilles v Spain (2000) 29 EHRR 109 the time limit in question was extremely short (three days). The Court, having expounded the principles established in Tolstoy Miloslavsky, stated (at paragraph 45):

“The rules on the time limits for appeals are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty. Those concerned must expect those rules to be applied. However, the rules in question, or the application of them, should not prevent litigants from making sue of an available remedy.”

The three day time limit had been exceeded by two days. The Court considered that “the particularly strict application of a procedural rule by the domestic courts deprived the applicant of the right of access to a court.” (Paragraph 49)

6. Although that conclusion was expressed to relate to “the application of a procedural rule”, it is apparent from the earlier reasoning in paragraph 45 that the principle applies to both “the rules in question or the application of them”.

The Decision in Pomiechowski

Having given considerable thought to the principles set out above, in Pomiechowski, the Supreme Court determined that a discretion to extend the statutory time limit in extradition cases does exist.

Three passages from the judgment of Lord Mance JSC contain the essence of the decision and the principles underlying it:

35. Finality and certainty are important legal values. But, although the [extradition] cases to date may not be large in absolute numerical terms, they indicate that neither finality nor certainty has been achieved to date. Even on the more relaxed view of the statutory conditions which I consider appropriate, the statute will be capable of generating considerable unfairness in individual cases, unless some further relief is available. More importantly, it is not sufficient under art 6(1) if in most or nearly all cases the right of appeal can be or should be capable of being exercised in time. The “very essence” of the right may be impaired in individual cases and there may still be no “reasonable relationship of proportionality between the means employed and the aim sought to be achieved.” (My emphasis)

The passage highlighted in bold was important in the context of Adesina. The NMC submitted to the Court of Appeal that the Appellants had failed to show that, in practice, the 28 day time limit caused any actual unfairness and was too short. It is clear from Lord Mance’s judgment that if the time limit works against only a small number of appellants the effect is the same and the time limit has the effect of extinguishing the “very essence” of the right to appeal that they would otherwise enjoy.

In paragraph 37 Lord Mance JSC said:

“I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be ‘a reasonable relationship of proportionality between the means employed and the aim sought to be achieved’.”

In paragraph 39 he concluded that a discretion does exist. He then, in effect, defined the terms upon which a court would exercise the discretion:

“In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time. In these circumstances, I consider that … the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time …, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under Article 6.1 in Tolstoy Miloslavsky. The High Court must have the power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring … timeously.”

Pomiechowski Applied in Adesina

The issue in the two appeals in Adesina was short: either a discretion existed to enable a court to hear an appeal from a decision of the NMC after the expiry of the 28 day time limit or it did not. The Respondent’s primary case was that no such discretion existed. Its secondary case was that, if it existed, the discretion was narrow. The Appellants conceded that the discretion could not be general but maintained that it existed nonetheless.

Maurice Kay LJ asked himself if the contextual differences between extradition and NMC/GMC appeals were such that the decisions in Reddy and Mitchell should stand unaffected by Pomiechowski? He answered the question in paragraph 14 of his judgment in these terms:

“Are these differences sufficient to leave the Mitchell/Reddy line of authority untouched by Pomiechowski? In my judgment, they are not. The context, exclusion from a profession, is still one of great importance to an appellant. There is good reason for there to be time limits with a high degree of strictness. However, one only has to consider hypothetical cases to appreciate that, without some margin for discretion, circumstances may cause absolute time limits to impair “the very essence” of the right of appeal conferred by statute. Take, for example, a case in which a person, having received a decision removing him or her from the Register, immediately succumbs to serious illness and remains in intensive care; or a case in which notice of the disciplinary decision has been sent by post but never arrives and time begins to run by reason of deemed service on the day after it was sent (Nursing and Midwifery Council (Fitness to Practice) Rules 2004, rule 34(4)). In such cases, the nurse or midwife in question might remain in blameless ignorance of the fact that time was running for the whole of the 28 day period. It seems to me that to take the absolute approach in such circumstances would be to allow the time limit to impair the very essence of the statutory right of appeal.

How Does A Court Decide Whether Or Not To Allow A Late Appeal?

The answer lies in paragraph 15 of the judgment:

A discretion must only arise “in exceptional circumstances” and where the appellant “personally has done all he can to bring [the appeal] timeously” (paragraph 39). I do not believe that the discretion would arise save in a very small number of cases. Courts are experienced in exercising discretion on a basis of exceptionality. See, for example, the strictness with which the discretion is approached in relation to the 42 day time limit and the discretion to extend in connection with appeals from Employment Tribunals to the Employment Appeal Tribunal: United Arab Emirates v Abdelghafar [1995] ICR 65; Jurkowska v HLMAD Ltd [2008] EWCA Civ 231.

The guidelines in Abdelghafar are as follows. In any application to the High Court asking it to exercise its discretion to allow an appellant to lodge and appeal after the expiry of the relevant statutory time limit, the following matters will have to be addressed in a witness statement in support of the application by the Appellant:

(1) … Although more sympathy may be shown to a party who is unrepresented, as many are, there is no excuse, even in the case of an unrepresented party, for ignorance of the time limit or of the importance of compliance… The limits will, therefore, only be relaxed in rare and exceptional cases where the tribunal is satisfied that there is a reason which justifies departure from the time limits laid down in the Rules.

(2) The tribunal's discretion will not be exercised, unless the appellant provides the tribunal with a full and honest explanation of the reason for non-compliance. If the explanation satisfies the tribunal that there is a good excuse for the default, an extension of time may be granted. Experience has shown that most of the explanations offered do not in fact excuse the delay which has occurred. For example, the following explanations have been rejected by the Appeal Tribunal as excuses for delay: ignorance of the time limit; oversight of the passing of the limit, for example, by a solicitor under pressure of work; prior notification to the Employment Appeal Tribunal or the Industrial Tribunal or to the successful party of the intention to appeal; the existence of pending applications for review of the decision or for remedies; delay in the processing of an application for legal aid or of an application for advice or support from elsewhere, such as the Equal Opportunities Commission or the Commission for Racial Equality. It is always possible, in cases where there may be unavoidable delay, for an extension to be agreed between the parties or granted by order of the Appeal Tribunal before the period has expired. Alternatively, a notice of appeal may be served in order to comply with the Rules, with a covering letter saying that it may be necessary to apply to amend it later.

(3) If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion... The Appeal Tribunal will be astute to detect any evidence of procedural abuse, questionable tactics or intentional default. The Tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. Extensions have been refused, even where the notice of appeal was served only one day out of time. Parties who have decided to appeal are also strongly advised not to leave service of the notice of appeal until the last few days of the 42-day [28 days in most medical appeals] period. If they do, they run the risk of delay in the delivery of post or of the misdirection of mail. That risk can be avoided by service of the notice of appeal well within the period. The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the Tribunal to be asked to investigate in detail the strength of the appeal. Otherwise there is a danger that an application for leave will be turned into a mini-hearing of the substantive appeal. Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance. If there is irreparable concrete prejudice, that will strengthen the opposition to the application for extension; but even if there is no prejudice, the application may still be refused.

Thus, the questions which must be addressed by the Appeal Tribunal, the parties and their representatives on an application for an extension are: (a) What is the explanation for the default? (b) Does it provide a good excuse for the default? (c) Are there circumstances which justify the Tribunal taking the exceptional step of granting an extension of time?

Conclusion

The decision in Adesina is to be welcomed. Unfortunately, the Court of Appeal declined to grant relief to the two appellants but others may now find themselves in a position where they will be able to appeal after the expiry of the relevant time limit. However, the decision cannot be taken as a licence to leave things to the last minute. Practitioners will note that in Abdelghafar the EAT pointed out that permission to appeal out of time had been refused in cases where the delay had been caused by a pending legal aid application or where the appellant had to wait to obtain specialist advice.

Matthew Pascall, a barrister at Guildford Chambers, represented the appellants in Adesina and was instructed by Lester Morrill incorporating Davies Gore Lomax solicitors, Leeds.