R (on the application of Adesina and others) v Nursing and Midwifery Council

[2013] EWCA Civ 818

The issue in two otherwise unconnected cases was whether the apparently absolute time limit for appeals against decisions of the Nursing and Midwifery Council (NMC) could be extended by the court.

The relevant rules stated that such appeals ‘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 rules contained no provision for the time limit to be extended.

The two registrants had appealed to the High Court on the grounds of arguments relating to when the time period in question had begun to run. The appeals were rejected on the basis that no extensions were possible.

Permission to appeal to the High Court was granted on the basis of the Supreme Court decision in the case of Pomiechowski v Poland [2012] 1 WLR 1604 in which it was held that there may be circumstances in which apparently absolute time limits must be extended in order to comply with Article 6 of the European Convention on Human Rights/Human Rights Act.

The Pomiechowski decision

This related to the time limits in extradition cases. Lord Mance gave the leading judgment and stated:

‘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…. [the high court] must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring… timeously.’

Application to decisions of the NMC

The appellants submitted that the Pomiechowski decision required the statutory time limits regarding appeals to be interpreted in line with Article 6, meaning that an apparently non-extendable time limit can, in fact, be adjusted.

The NMC submitted that Pomiechowski was a case relating to extradition law, and that there were significant differences between extradition appeals and disciplinary/regulatory appeals such that the decision in Pomiechowski had no relevance in relation to the NMC rules.

It was held that the differences between extradition cases and regulatory cases did not mean that Pomiechowski had no effect. Giving the lead judgment, Lord Justice Maurice Kay stated that ‘to take the absolute approach [the time limits can never be extended] would be to allow the time limit to impair the very essence of the statutory right of appeal’.

However, he went on to note that in the discretion to extend an appeal time limit must arise, in the words of Lord Mance in Pomiechowski, only in ‘exceptional circumstances’.

In the two cases which were the subject of this appeal, there were no exceptional circumstances, and so the appeals were dismissed.

Comment

It is now the case that the High Court has the discretion to extend appeal periods in very exceptional cases where the appeal is from the NMC, and arguably from other healthcare regulators.