Implications for Irish professionals, representative associations and insurers
An interesting and noteworthy decision affecting professionals who are subject to hearings before their professional regulator, which may have implications in Ireland, was reached by the High Court in London recently. The case concerned time limits imposed on professionals appealing the decisions of their professional regulator to the High Court. While the decision is clearly not binding in an Irish context it is a strong indication of the approach the Irish courts may adopt in the future, preventing a professional from seeking to have a case heard by the High Court in circumstances where the applicable time limits have expired.
It would appear from the decision that the courts are generally unwilling to depart from statutorily provided time limits save for instances where strict adherence would result in a manifest injustice.
What is equally interesting is the application of the provisions of the Equality Act wherein the court held the impediment must have a direct impact on the appellant's actual ability to file an appeal application and this may well also be followed by the courts in this jurisdiction in relation to Irish equality provisions.
Professionals, their representative associations and insurers should ensure that statutory time limits are factored in when considering strategy in such cases and these limits should be strictly adhered to.
The High Court in London held that the time limits imposed by the Medical Act 1983 ("The Act") for appeals to the High Court should be strictly imposed and found that the Equality Act 2010 does not apply to cases of this nature.
The case involved Dr Fakhry Salah Fakhry El-Huseini who was the subject of a fitness to practise hearing before the Medical Practitioners Tribunal ("MPT") of the General Medical Council ("GMC") in the UK. Dr El-Huseini's fitness to practice was held to be impaired by the MPT and an order of the Tribunal was made to remove him from the register. This was communicated to Dr El-Huseini and he was informed of his right to appeal within 28 days from the effective date of service of the notice. Dr El-Huseini failed to file an appeal with the High Court within the required timeframe.
It is not intended to deal with the first ground for appeal as it is of no real consequence. In respect of the second ground, it was held by the High Court in London that the Court must have the power to determine the application of time limits in any given case where a refusal to so consider it would conflict with the right of access to an appeal process. It held however that such considerations would be very narrow and may include circumstances such as health difficulties, difficulties obtaining a transcript of the hearing or difficulties with access to legal advice. These examples however must be the actual cause of the applicant's inability to file the appeal. The applicant must however do everything possible to bring the appeal in time.
The final ground focused on the Equality Act 2010 and specifically that the time limits imposed do not take consideration of disability being a factor in permitting a reasonable adjustment of the appeal limits. It was held by the court that the Act does not permit either the GMC or the Court to alter the time limits. Therefore, the Court held that it would be unreasonable to force the GMC to carry out an action where it had no statutory or common law basis to do so.