Judgment date:  9 July 2013

Court of Appeal holds that absolutist approach to statutory time limits in regulatory appeals can longer be said to be invariable, in light of ECHR jurisprudence.

Background

This case involves two appeals which are unconnected by their facts but raise the same legal issue; namely, the time limit within which a registrant of the Nursing and Midwifery Council (NMC) must lodge an appeal to the High Court against a decision by the NMC’s Fitness to Practice Committee (the Committee).

Article 29(9) of the NMC Order 2001 covers the right to appeal. Article 29(10) states:

“Any such appeal must be brought before the end of the period of 28 days beginning with the date on which notice of the order or decision appealed against is served on the person concerned.”

The wording of Article 29 clearly does not refer to any discretion by the Court to grant an extension of time to the Registrant.

In the present appeal, the Court of Appeal was asked to consider whether the 28 day time limit is “an absolute one, admitting of no exceptions, or whether it may be tempered and, if so, on what basis.”[1]

Both applications had been rejected by Hickinbottom J in the High Court, but the cases had been argued on a different basis. The arguments advanced in the lower Court were in relation to when the 28 day period commenced, as a matter of law.  It had been conceded in that case by both appellants that the 28 day time limit was absolute (based on the decision in Mitchell v Nursing and Midwifery Council [2009] EWHC 1045 andReddy v General Medical Council [2012] EWCA Civ 310)

Permission to appeal was granted by McCombe LJ on a single ground, following the judgement in Pomiechowski v Poland [2012] 1 WLR 1604, in which it was held that absolute time limits may in certain circumstances ‘yield’ to the requirements of Article 6 (protection of rights to a fair trial) of the European Convention on Human Rights (ECHR) as incorporated by the Human Rights Act (HRA) 1998.

In the present case the appellants accepted that, absent the ECHR point, the Court would be bound by the absolute approach in Reddy. However, the case advanced was that the Court was required to interpret the seemingly absolute time limit within Article 29, in a manner which would be compatible with Article 6 of the ECHR. The appellants argued that the approach to time limits advanced by Reddy v General Medical Council [2012] 1 WLR 1604 and other similar cases had to be reconsidered in light of the decision in Pomiechowski.

The respondent, the NMC, argued that the decision in Pomiechowski related to the time limits under the Extradition Act 2003 and therefore had no general application to regulatory and professional discipline cases. Its secondary case was that if discretion is now to be applied when granting extensions to the time limits for appealing, this should only be done in restricted circumstances.

Decision

Referring to the decision in Pomiechowski, Lord Justice Maurice Kay noted that the starting point is Article 6.1 of the ECHR, namely, where there is a right of appeal, it must be compliant with Article 6.1. The rights protected by Article 6 may be subject to limits, but these limitations must not “restrict or reduce the access left to the individual in such a way or to an extent that “the very essence of the right is impaired: Tolstoy v Miloslavsky v United Kingdom [1995] ECHR 18139/91 paragraph 59).’’

The Court noted the clear differences between an appeal relating to extradition and the current case, explained as follows:

  1. Extradition involves a potential loss of liberty and involuntary transportation to a different jurisdiction whereas the consequences of removal from the NMC Register are not as grave;
  2. The 28 day time limit in NMC cases is significantly longer than the 14 day time limit in under the Extradition Act;
  3. In extradition cases the appellant would often be in custody, making communications with advisers and information more difficult;
  4. There was widespread recognition of the difficulties caused by the short time limits in extradition, unlike the present appeals.

Notwithstanding the above, the Court concluded that these differences were not such that they render the time limits in regulatory and professional discipline cases unaffected by the decision in Pomiechowski. In coming to this conclusion, the Court commented that the potential loss of registration and ultimately loss of livelihood as matters of great importance for a registrant. Whilst accepting that the time limits contained within the Rules was there for good reason, there would be cases where a strict application would impair “the very essence” of the right to appeal. Further, it was stated that whilst discretion could be exercised, this should only be in exceptional circumstances, and where the appellant had done all that they could do to lodge their appeal within the statutory time frame. 

The Court concluded that both appeals failed as no such exceptional circumstances were present in the cases before them.  

The decision in Pomiechowski may have some application in regulatory and professional disciplinary cases but only in those cases where the Registrant can demonstrate that every effort has been made to lodge an appeal within the statutory time limits. This case demonstrates that the High Court is unwilling to set a precedent allowing extensions to the time in which a Registrant can appeal, unless there are exceptional circumstances to justify such an extension.