STATUTORY APPEALS: “EXCEPTIONAL CIRCUMSTANCES” AND APPEALING OUT OF TIME: WITH IMPORTANT POINTS ON THE REMISSION OF COURT FEES

In The Nursing and Midwifery Council -v- Daniels [2015] EWCA Civ 225 the Court of Appeal emphasised the need for exceptional circumstances to exist when a party is seeking an extension of time to a statutory time period for appealing. The judgment also emphasises the need for evidence to be placed before a Court on all key matters when an application to extend time is being granted. The judgment also makes observations in relation to court fee remission (observations which may now be of great importance given the change in the fee regime).

THE CASE

The Respondent was appealing a decision of the Nursing and Midwifery Council. The period for appealing is set out in a statutory instrument and is 28 days days from the date of service of the notice. The last date for appealing was the 8th March 2014. The Respondent did not contact her solicitors until the 7th March 2014 and the Notice of Appeal was lodged on the 11th March 2014.

THE APPLICATION

The application including an application to extend time on the following grounds.

“1. The appellant is not working and needed to raise funds to seek legal advice on the decision and to then instruct her legal advisers to draft the grounds.

2. The appellant instructed counsel on the 7/3/14 to draft the grounds.

3. Bearing in mind the financial circumstances of the appellant it is just and equitable to extend time.

THE DECISION AT FIRST INSTANCE

The judge at first instance granted the extension. The reasons are summarised in the Court of Appeal judgment.

  1. In reaching that decision the judge referred to the principles stated by the Court of Appeal in Adesina and Baines v Nursing and Midwifery Council[2013] EWCA Civ 818; [2013] 1 WLR 3156. She concluded that DD’s inability to find £235 to pay the court fee in time constituted a good reason for the delay. Taking into account that the period of delay was only three days and that the NMC had not suffered any particular prejudice, the judge held that there were exceptional circumstances which enabled the court to extend time.

THE LAW

  1. Article 29 (10) of the 2001 Order allows 28 days for commencing an appeal. It contains no provision for extension of time. Nor do the 2004 Rules contain any such provision.
  2. It used to be thought that the 28 day time limit was inflexible and would admit of no exceptions. However, the Supreme Court’s decision inPomiechowski v District Court of Legunica Poland [2012] UKSC 20; [2012] 1 WLR 1604 established that an absolute statutory time limit may need to be read down in order to comply with article 6 of the European Convention on Human Rights.
  3. The time limit under consideration in Pomiechowski related to the commencement of an appeal in extradition proceedings, but it was clear that the decision may have wider implications. The Court of Appeal considered the application of Pomiechowski in the context of appeals by nurses under the 2001 Order in Adesina and Baines v Nursing and Midwifery Council [2013] EWCA Civ 818; [2013] 1 WLR 3156. In those two appeals which were heard together two nurses, Ms Adesina and Ms Baines, sought to appeal out of time against decisions of the Conduct and Competence Committee of the NMC. The judge struck out both appeals and the Court of Appeal upheld that decision.
  4. Although the Court of Appeal held that there could be no extensions of time in those two cases, it rejected the proposition that the 28 day time limit was absolute and inflexible. Maurice Kay LJ (with whom Patten and Floyd LJJ agreed) held that the principle established in Pomiechowski was applicable to the time limit contained in article 29 (10) of the 2001 Order. He held that time could be extended in exceptional circumstances, namely where enforcing the 28 day limit would impair the very essence of the statutory right of appeal. He gave the following two examples of such exceptional circumstances at [14]:

“Take, for example, a case in which a person, having received a decision removing him or her from the Register, immediately succumbs to serious illness and remains in intensive care; or a case in which notice of the disciplinary decision has been sent by post but never arrives and time begins to run by reason of deemed service on the day after it was sent…. In such cases, the nurse or midwife in question might remain in blameless ignorance of the fact that time was running for the whole of the 28 day period. It seems to me that to take the absolute approach in such circumstances would be to allow the time limit to impair the very essence of the statutory right of appeal.”

  1. In neither of the cases before the Court of Appeal in Adesina were exceptional circumstances present. The facts of the second case were not unlike the facts of our case. Ms Baines had difficulty in finding a specialist solicitor to act for her and in obtaining legal aid. As a result her notice of appeal was lodged two days out of time. The Court of Appeal held that those matters did not constitute exceptional circumstances enabling the court to extend time.
  2. There have been three subsequent cases in which first instance judges have applied the principles stated in Adesina. They are:

Adegbulugbe v Nursing and Midwifery Council [2013] EWHC 3301 (Admin);

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

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

Recitation of the facts of those three cases would not advance the cause of jurisprudence. Suffice it to say that in each case the judge held (correctly in my view) that the circumstances were not exceptional. The court declined to extend time.

  1. The present case is the first occasion upon which a court, applying the principles stated in Adesina, has found that exceptional circumstances existed such as to warrant extending the time limit under article 29 (10) of the 2001 Order. We shall have to decide whether the judge was right to reach that conclusion.
  2. In the course of argument counsel have drawn our attention to a number of cases in which courts have granted or refused extensions of time in jurisdictions where the rules expressly permit time to be extended. Examples are United Arab Emirates v Abdelghafar [1995] ICR 65, where rule 37 of the Employment Tribunal Rules 1993 permitted time to be extended; Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1633, where rule 3.1 (2) (a) of the Civil Procedure Rules permitted time to be extended.
  3. In my view those authorities, although helpful as background reading, are not a guide as to how the court should deal with applications for extension of time in respect of appeals under article 29 of the 2001 Order. Neither the 2001 Order nor the 2004 Rules make any provision for extending the time limit for appeals. They therefore differ from the Employment Appeal Tribunal Rules and the Civil Procedure Rules in a critical respect. The principles which the court must apply in the present case are those stated by the Court of Appeal in Adesina.
  4. Having reviewed the legal principles, I must now reach a decision in the present appeal.

THE PRESENT CASE: THE COURT OF APPEAL OVERTURNED THE JUDGE’S DECISION BECAUSE THERE WAS NO DISCRETION AVAILABLE ON THE FACTS OF THIS CASE

Part 5. Decision

  1. The following features of the present case stand out as significant:

i) DD did not contact the lawyers who had been acting for her until the last day before time for appealing expired.

ii) Upon being contacted counsel immediately drafted grounds of appeal, without any assurance that funds would be available to pay her.

iii) Within four days of being contacted (two of which were a weekend) the solicitors filed the appellant’s notice.

iv) DD has served no evidence. She has therefore provided no explanation as to how and from whom she raised £235 to pay the court fee. Nor does she reveal when she first took steps to raise that money.

v) During February and March 2014 no-one gave any consideration to the question whether DD was entitled to remission of the court fee. On the material before us it appears that DD was so entitled.

  1. On the basis of counsel’s submissions and without the assistance of any evidence the judge made a finding that DD was unable to raise the court fee of £235 before 8th March 2014. I have read the transcript of the hearing below. There was no material before the court on which the judge was entitled to make that finding. The obvious inference from the known facts is that DD did not take any steps towards appealing until the very end of the 28 day period.
  2. The sequence of events between 7th and 11th March 2014 indicates that DD and her lawyers were able to move swiftly. If DD had contacted her lawyers during February and set out about raising funds then, she would have been able to file her appellant’s notice well within time. Indeed if DD had contacted her lawyers or spoken to the court office during February, she would have had time to apply for, and would probably have obtained, remission of the £235 court fee.
  3. It therefore follows that there is no proper basis for the judge’s findings of fact and I would allow the NMC’s appeal on that ground. In case I am wrong in that regard, however, I must also consider the case on the same factual basis as the judge. The crucial part of her judgment reads as follows:

“10… In this case, I find there was a good reason why the appeal could not have been lodged in time. It was that the Appellant could not find £235 in order to pay the court fee. That is unsurprising, given that she was living on benefits, had been dependent on family and friends to help her get through the NMC proceedings and had been dependent on family and friends to help her get through the NMC proceedings and had been unemployed for a period of three years. I note also that the time by which she was outside the relevant 28 days was short and it cannot be said that any particular prejudice was suffered by the NMC in dealing with her case by a matter of some two or three days.

11. Accordingly, because of the particular financial circumstances of the Appellant, not only in the 28 days when she was trying to find the funds for the court fee but against a background of three years’ unemployment and having to find funds to allow herself to be represented before the NMC, I am satisfied that there are exceptional circumstances.”

  1. If the 2001 Order or the 2004 Rules provided that the judge had discretion to extend time and if the judge were exercising such discretion in favour of DD for the reasons stated in paragraphs 10 and 11 of her judgment, then the Court of Appeal could not possibly interfere with that exercise of discretion. The problem in the present case is that neither the 2001 Order nor the 2004 Rules confer such a discretion.
  2. The court has no power to extend or override the 28 day time limit except in circumstances of the kind described by Maurice Kay LJ in Adesina at [14]. In other words the circumstances must be such that enforcing the 28 day time limit would impair the very essence of the statutory right of appeal. The facts stated in paragraphs 10 and 11 of the judge’s judgment do not constitute circumstances of that character. The present case is similar in its essentials to that of Ms Baines, who was one of the unsuccessful appellants in Adesina.
  3. Although that is the position under the 2001 Order and the 2004 Rules, I do not regard the outcome as satisfactory. The disciplinary proceedings against DD proceeded at a snail’s pace. Three years elapsed between DD’s misconduct and the conclusion of those proceedings. The hearing itself occupied eight days. That is a surprising amount of time to devote to investigating matters of minimal complexity. If the NMC is incapable of conducting disciplinary proceedings promptly and swiftly, it seems harsh that the 2001 Order and the 2004 Rules allow the court no discretion to extend the 28 day time limit for appealing.
  4. Ms Hilken for the NMC has explained to the court that the strict 28 day time limit exists because of the importance of finality and the need to promote confidence in the system. The interests of patients in hospitals and care homes are at stake. Many of the cases are high profile. Therefore there has to be an expeditious and effective system for dealing with allegations of misconduct.
  5. I see the force of all those comments and express regret that the NMC has not abided by them in its conduct of the disciplinary proceedings against DD. In Southall v General Medical Council [2010] EWCA Civ 407 at [65] Leveson LJ made harsh comments about dilatoriness in the conduct of disciplinary proceedings against a doctor. I make similar comments about the dilatory conduct of the disciplinary proceedings in the present case.
  6. Let me now draw the threads together. If the 2001 Order and the 2004 Rules had conferred upon the court a general discretion to extend time, I could not fault the judge’s exercise of that discretion. Unfortunately they do not. The court only has power to extend time in exceptional circumstances of the kind described by Maurice Kay LJ in Adesina. Such circumstances do not exist in the present case. Therefore the court had no power to extend time, I would allow the NMC’s appeal.

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