The decision of the Court of Appeal in Adesina & Baines v Nursing and Midwifery Council [2013] EWCA Civ 818 represented a clear shift in the previously immovable time limits of regulatory appeals. We summarised the outcome in an earlier update: Case Update the Queen on the application of Adesina and Ors and the Nursing and Midwifery Council 2013 EWCA Civ 818.

In Adesina the Court, in line with the decision in Pomiechowski v Poland[2012] WLR 1604, held that Article 6 of the European Convention on Human Rights and Section 3 of the Human Rights Act required Article 29(10) of the Nursing and Midwifery Order to be ‘read down’ [15] to give a discretion that allowed out of time appeals to be considered. However in holding this the Court was clear that this reading down was to be to the ‘minimum extent necessary to secure ECHR compliance’ [15] that the discretion would arise only in ‘exceptional circumstances’ [15] and ‘where the appellant has personally done all he can to bring the appeal timeously’ [15].

Since the decision in Adesina four cases have come before the High Court testing the limits of this discretion and in doing so providing practitioners with useful guidance on what is likely to constitute exceptional circumstances.

Gyurkovits v General Dental Council [2013] EWHC 4507 (Admin)

Judgement date: 02 October 2013

Background

The appellant dentist (D) was sent a letter by first class recorded delivery confirming the Professional Conduct Committee (PCC) of the General Dental Council’s (GDC) decision to erase his name from the Register on 20 February 2013. The letter stated that it would be deemed served on 22 February 2013.

D maintained that he did not receive this letter and such indications as were before the Court were that this was the case. Nonetheless the Court held, in line with statute, that actual receipt of the letter was irrelevant and that sending by recorded delivery was the step which started the 28 day appeal period.

On 03 March 2013 D contacted the GDC and informed them he would like to register an appeal. Inevitably he was informed on 04 March that the appeal was to be made to the High Court and that the papers would need to be lodged there. He was also informed that any appeal would need to be made before 22 March 2013.

It was apparent to the GDC that D had not received the decision letter and a further copy was sent out. This too was seemingly not received and at some point between 6 and 12 March 2013 D collected both letters from the post office.

D’s Appellant’s Notice was sent by recorded delivery and delivered to the High Court on 22 March 2013, one day out of time.

D made two submissions as to why the appeal should be allowed despite being out of time.

  1. He believed the 28 day appeal period began running from the date when he received the decision letter.
  2. He suffers with depression and had been unwell.

Decision

The Court addressed its mind to whether either of the above constituted exceptional circumstances within the meaning of Adesina. In respect of both submissions the Court held that they did not and the appeal was dismissed as out of time.

In respect of D’s submissions that his depression had caused or contributed to the delay raised the Court gave guidance as to when medical issues could found exceptional circumstances in the following terms, ‘It would have to be very strong medical evidence to show that he was not capable – or essentially capable – of dealing with things at all during the relevant period [17].

Parkin v Nursing and Midwifery Council [2014] EWHC 519 Admin

Judgement date: 30 January 2014

Background

The appellant nurse (N) appealed the decision of the Conduct and Competence Committee (CCC) of the Nursing and Midwifery Council (NMC) dated 06 September 2013. The CCC found that N’s fitness to practise was impaired and ordered his name be erased from the Register.

On 10 October 2014 the N’s solicitors lodged the Notice of Appeal, one day out of time.

Papers were filed late due to an error on the part of the Solicitors who were mistakenly of the view that the deadline was 10 October 2014. The reality was that the deadline was 09 October 2014. There was no doubt that N had retained solicitors in good time and was entitled to expect that they would ensure any time limits were met.

It was submitted on behalf of N that the effect of Adesina was to allow the court to grant an extension to hear an out of time appeal where a litigant personally has done all he can to bring an appeal timeously.

Conversely the NMC argued that Adesina’s effect was to introduce a very narrow margin of flexibility and that mere ignorance of the time limit or professional oversight on the part of a solicitor could not properly constitute exceptional circumstances.

Decision

The Court took account of the comments of Mummery J in UAE V Abdelghafar[1995] ICR 65 that the merits of the case may be relevant and heard submissions from Counsel for N on these.

Ultimately the Court held that the underlying merits of the appeal were weak and held that nothing had persuaded it that there were ‘exceptional circumstances’ [33]. The necessary implication of this finding is that the NMC’s original submission that mere ignorance of the time limit or oversight was not exceptional was accepted.

Pinto v Nursing and Midwifery Council [2014] EWHC 403 Admin

Judgement date: 04 February 2014

Background

The appellant nurse (N) appealed the decision of the Conduct and Competence Committee (CCC) of the Nursing and Midwifery Council (NMC) dated 11 July 2013. The CCC found that N’s fitness to practise was impaired and imposed conditions on her practice.

On 12 August 2013 the appellant lodged her Notice of Appeal, four days out of time.

N gave two reasons as to why the appeal was out of time

  1. N stated that she was suffering with, what she characterised as, “severe psychological stress” as a result of the proceedings and that this had impacted on pre-existing health issues. She was supported in this submission by a letter from her General Practitioner which indicated that N suffered with hypertension, poorly controlled diabetes and stress and that these conditions had been exacerbated by the proceedings.
  2. N had attempted to lodge her notice of appeal on 09 August 2013, one day out of time, but had been unable to do so having not brought sufficient money to pay the Court Fee.

Decision

The Court held that whilst N clearly suffered with chronic ill health she was not so disabled by illness or stress as to prevent her from representing herself before the NMC proceedings and that as she was well enough to prepare and attempt to lodge the Notice of Appeal on 09 August 2013 that there was no indication she was unable to do so earlier. The devastation N no doubt felt at the CCC’s judgment was held to be common to all registrants faced with an adverse decision and as such not capable of amounting to ‘exceptional circumstances’ [20].

The Court further held that N’s failure to bring enough money to pay the fee on 09 August 2013 did not amount to ‘exceptional circumstances’ and opined that N was able to make enquiries in advance of attending court of the amount of fee that was required [17].

N was unrepresented and despite that fact not being raised in her submissions the Court addressed the position with unrepresented registrants and stated obiter that lack of legal representation would not have been accepted as a reason amounting to exceptional circumstances [22].

Ultimately, the appeal was dismissed as out of time.

Adegbulugbe v Nursing and Midwifery Council [2014] EWHC 405 (Admin)

Judgement date:10 February 2014

Background

The above case was in actuality an application for wasted costs and is of note due to the fact that the wasted costs arose from a failure of Solicitors and Counsel to address their mind to Adesina, something which ultimately lead to them making submissions which were ‘not properly arguable’ [29].

The background to this case is quite simply that the deadline for the appeal was 13 December 2012. Counsel settled grounds on 30 November 2012 and for reasons never fully ventilated the Solicitors failed to lodged the papers with the Court until 14 December 2012.

Adesina was not pleaded before the court despite the fault of the Solicitors meaning that the appeal papers were not lodged timeously. Rather Counsel sought to rely on Alexander v Immigration Appeal Tribunal UKHL [1982] 2 All ER 766, something which the Court held was ‘hopeless’ [29] as Alexander is a‘case on the Immigration Rules and not the NMC (Fitness to Practise) Rules, and it lays down no principle of general application’.

Decision

Much was rightly made of the degree of negligence of both Solicitors and Counsel in this case with a wasted costs order being made against the Solicitors and Counsel being potentially referred to the Bar Standards Board.

In respect of Adesina it was stated obiter that, ‘Any reasonably competent barrister… would have advised his instructing solicitors and his lay client that the Court could not hear the merits of the appeal because it was out of time, and the circumstances did not engage the limited discretion to grant an extension’ [29]. This statement leads irresistibly to the conclusion that simple negligence on the part of a Registrant’s representative is not sufficient to amount to the exceptional circumstances envisaged by Adesina.

Conclusion

Whilst Adesina has served to grant a very limited discretion, it remains clear that the courts are reluctant to exercise this. Ordinary incidences of ill health, bad luck, poor planning and bad practice are unlikely to pass the high bar set by Adesina; it will take something truly extraordinary before an out of time appeal is to be allowed.