Nursing and Midwifery Council v Daniels [2015] EWCA Civ 225

Judgement date 20 March 2015

The facts

The Registrant sought to appeal against the NMC’s Conduct and Competence Committee (CCC) finding that her fitness to practise was impaired and their decision to impose a caution order for three years.

The CCC’s decision was handed down on 4 February 2014 and was posted to the Registrant on 7 February 2014. Article 29(10) of the Nursing and Midwifery Order 2001 (the Order) allowed for 28 days for the Registrant to appeal. The appeal period ended on 8 March 2014.

On 7 March 2014 the Registrant contacted her former legal representatives to seek advice in relation to appealing the CCC’s decision. The appellant’s notice was filed on 11 March 2014, which included an application for an extension of time. The primary reason being a lack of funds to pay the £235 court fee arising out of the Registrant’s unemployment and the recent nature of instruction to her lawyers.

The law

The statutory time limit in the Order is absolute and provides no discretion to extend the time limit for appealing. Recent case law suggests that the only basis upon which the extension could be granted is by asking the court to read down the order to comply with Article 6 of the European Conviction on Human Rights. This approach was endorsed in Adesina and Baines v NMC, who held that the 28 day time limit can be extended where enforcing the time limit “would impair the very essence of the statutory right of appeal”. In Adesina, Maurice Kay LJ provided two examples of exceptional circumstances:

  1. where the Registrant is seriously ill or
  2. where the decision is not received and the Registrant is ignorant that the appeal time is running for the whole period.

The decisions

The High Court granted the extension of time sought on the basis that the Registrant’s inability to pay the court fee constituted good reason for the delay and amounted to an exceptional circumstance which caused no prejudice to the NMC.

The Regulator appealed that decision and was successful.

Whereas the High Court found that the Registrant was unable to raise the court fees, the Court of Appeal found that there was no material upon which the judge was entitled to make that finding. Jackson LJ pointed in particular to the fact that the Registrant had not sought advice until the last day before time for appealing expired and that no explanation was provided as to how and from whom she raised the court fees and when she first sought to raise those funds. The Court of Appeal inferred that had she contacted her legal representatives earlier, the time limit would have been met as her lawyers were able to move swiftly, having only taken four days to issue the appeal notice from the date of instruction.

The High Court’s decision appeared to soften the Appellate Court’s approach to applications for extension of time. The Court of Appeal’s decision reaffirms that an applicant’s circumstances must be truly extraordinary and emphasises that evidence, not merely an assertion, is required to demonstrate that an applicant’s circumstances are exceptional.