Acting to stop harm: the FCA and Appointed Representatives
Judgment date: 16 July 2012
This case examines time limits in legal proceedings: on this occasion the time limit for bringing an appeal in the High Court against a decision of the Nursing and Midwifery Council (‘NMC’).
Janet Baines, (‘the Appellant’), was the subject of a hearing before the NMC’s Conduct and Competence Committee on 14 February 2012, at which it was ordered that her name be struck from the Register of Nurses and Midwives. The NMC sent notice of that decision to her by letter dated 17 February 2012. It was not in dispute in the case that the letter was sent by the NMC by first class post on Friday 17 February 2012, and received by the Appellant on Monday 20 February 2012. Ms Baines sought to appeal the findings of the NMC, and lodged an Appellant’s notice with the High Court on Monday 19 March 2012.
The NMC applied to have the appeal struck out, contending a preliminary point that the appeal was lodged out of time. The Court therefore examined the relevant legislation, in particular the Nursing and Midwifery Order 2001 (“the Order”) and the Nursing and Midwifery Council (Fitness to Practise) Rules 2001 (“the 2004 Rules”) when determining the matter.
Article 29(10) of the Order states that an appeal “must be brought before the end of the period of 28 days beginning with the date in which notice of the order or decision appealed against served upon the person concerned”. The principal issue to be determined in the appeal was from when that period of 28 days begins to run, i.e. when is service deemed to have been effected? Under the 2004 Rules, rule 13(1) provides that, “as soon as practicable after the conclusion of the hearing, the relevant committee shall give notice of its decision to the nurse who is the subject of the charge”. Rule 34(4) states “where any notice is sent under these rules, it shall be treated as having been served on the day after it was sent by delivery service or, where the notice has been left at an address, on the day it was left at that address.”
The Appellant sought to argue that the 28 day period should be deemed to comprise 28 business days, meaning that the appeal was lodged in time. In making that argument, the Appellant drew comparison with the service provisions under the Civil Procedure Rules (‘CPR’), and case law based upon such provisions. This argument was dismissed by the High Court, as the wording of the 2004 Rules on service and those of the CPR differ significantly. It was decided in this matter that the 2004 rule which states that the NMC’s decision “shall be treated as having been served on the day after it was sent by delivery service” is quite clearly a deeming provision; if the relevant notice is properly sent by post, then, under the rule, it is deemed to be served the day after it was sent.
Hickinbottom J indicated in his judgement that rule 34(4) of the 2004 rules which deals with service is “clear, beyond any sensible doubt”. Where a notice is sent by delivery service, which includes putting it into the post, then it is deemed served the following day. On the usual meaning of the words used, that is the next calendar day. He opined that had something else been intended, for example the next working or business day, then that would have been made clear to rebut the usual and ordinary meaning of the words used. As Rule 34(4) is a deeming provision, the day upon which the notice is actually received is irrelevant.
He went onto state that the 2004 rules impose a time limit for appeals that is incapable of extension. He opined that the time limit of 28 days is relatively generous, which provides some flexibility and fairness.
It was therefore deemed that the notice of decision was served on the Appellant the day after it was posted (i.e. it was deemed served on Saturday 18 February 2012). The time for lodging an appeal expired 28 days later, on Saturday 17 March 2012. The Appellant’s Notice of Appeal was lodged on Monday 19 March and it was consequently out of time. The appeal was therefore unsuccessful.
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