A nervous disposition
Can the Court provide an extension of time to appeal where there is no provision in the Rules to this effect?
Judgment date: 9 July 2013
This case involves two appeals which are unconnected by their facts but raise the same legal issue; namely, the time limit within which a registrant of the Nursing and Midwifery Council (NMC) must lodge an appeal to the High Court against a decision by the NMC’s Fitness to Practice Committee (the Committee).
Article 29(9) of the NMC Order 2001 covers the right to appeal. Article 29(10) states :
“Any such appeal 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 wording of Article 29 does not refer to the Court’s discretion to grantan extension of time to the Registrant, nor does it allude to their being any judicial discretion to do so on a case by case basis.
In the appea, the Judges were asked to considerwhether the 28 day time limit is “an absolute one, admitting of no exceptions, or whether it may be tempered and, if so, on what basis.” (paragraph 1 of the decision)
Both applications were rejected by Hickinbottom J in the Administrative Court, on the basis that they were time barred. The arguments advanced in the Administrative Court were in relation to when the 28 day period commences, as a matter of law, and in relation to the facts pertaining to each case.
Leave to appeal was granted by McCombe LJ on a single ground, following the judgement in Pomiechowski v Poland  1 WLR 1604, in which it was held that absolute time limits may in certain circumstances be amended by virtue of Article 6 (protection of rights to a fair trial) of the European Convention on Human Rights (ECHR) as incorporated by the Human Rights Act (HRA) 1998.
The case advanced by the appellants was that the Lord Justices were required to interpret the seemingly absolute time limit within Article 29, in a manner which would be compatible with Article 6 of the ECHR.
Referring to the decision in Pomiechowski, Lord Justice Maurice Kay noted that the starting point is Article 6.1 of the ECHR. Namely, where there is a right of appeal, it must be compliant with Article 6.1. The rights protected by Article 6 may be subject to limits, but these limitations must not “restrict or reduce the access left to the individual in such a way or to an extent that “the very essence of the right is impaired””: (paragraph 4 of the decision and Tolstoy v Miloslavsky v United Kingdom  ECHR 18139/91 paragraph 59).
The appellants argued that the approach to time limits advanced by Reddy v General Medical Council  1 WLR 1604 and other cases had to be reconsidered in light of the decision in Pomiechowski. The respondent, the NMC, argued that the decision in Pomiechowski related to extradition and therefore had no general application to regulatory and professional discipline cases. The second strand of the NMC’s argument was that if discretion is to be applied when granting extensions to the time limits for appealing, thisshould only be done in restricted circumstances.
The Judges noted the clear differences between an appeal relating to extradition the current case, explained as follows:
Notwithstanding the above, the Judges concluded that the differences were not such that they render the time limits in regulatory and professional discipline cases unaffected by the decision in Pomiechowski. In coming to this conclusion, Lord Justice Maurice Kay commented that the potential loss of registration and ultimately, loss of livelihood as a matter of great importance for a registrant. Whilst accepting that the time limits contained within the Rules was there for good reason, there would be cases where a strict application would impair “the very essence” of the right to appeal. Further, he stated that whilst discretion could be exercised, this should only be in exceptional circumstances, and where the appellant had done all that they could do to lodge their appeal within the statutory time frame.
The Judges concluded that both appeals failed as no exceptional circumstances were present in the cases before them
The decision in Pomiechowski may have some application in regulatory and professional disciplinary cases but only in those cases where the Registrant can demonstrate that every effort has been made to lodge an appeal within the statutory time limits. This case demonstrates that the High Court is unwilling to set a precedent allowing extensions to the time in which a Registrant can appeal, unless there are exceptional circumstances to justify the extension of time.
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