Acting to stop harm: the FCA and Appointed Representatives
High Court gives guidance as to the limits of the discretion to allow outcome time appeals under Article 29 of the Nursing and Midwifery Order 2001 following R (Adesina and ors) v Nursing and Midwifery Council  EWCA (Civ) 818
Judgement date: 12 August 2014
The applicant nurse (N) applied to extend time to appeal against the sanction of a three year Caution Order imposed by the Nursing and Midwifery Council (NMC’s) Conduct and Competence Committee (the Panel) on 8 February 2014 following findings that N had failed to comply with the conditions of supervised practice on three occasions and failed to comply with a specific instructions on various dates in February 2011.
Prior to the Panel determining the case against N, N had been unemployed for three years and was living on benefits. N had only limited representation at the hearing and relied variously on financial assistance from friends and family and assistance from her solicitors who worked at a reduced rate and occasionally on a pro bono basis. N’s solicitors were not specialists in regulatory proceedings and had previously acted for N during her employment proceedings. Despite the support N received from friends, family and her solicitors, the representation that N could afford was limited and, on one occasion, she had to cross-examine NMC witnesses personally.
At the conclusion of the case N was told by her solicitors that, should she wish to raise an appeal she would need to put them in funds something which, having already availed herself of the assistance of friends and family during the substantive proceedings, presented difficulty to N. N’s first difficulty was that she did not have the funds to pay the Court fee (£235) and therefore could not lodge her appeal.
On 11 March 2014, 3 days after the 28 day time period within which under Article 29 of the NMC Order 2001 appeals must be brought, N had located sufficient funds to pay the Court fee. The fee was paid and grounds were lodged.
The Court noted that the right to appeal provided by Article 29 (9) and (10) of the NMC Order 2001 states that ‘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 a person concerned’.
The Court further noted that the effect of R (Adesina and ors) v the Nursing and Midwifery Council  EWCA (Civ) 818 was, in line with Pomiechowski v Poland  1 WLR 1604, to give rise to a discretion within which the Court could extend the time in which an appeal could be brought.
Given the clear wording of the Nursing and Midwifery Council Order 2001 this discretion can only arise in exceptional circumstances and where the appellant had done all that they can to bring the appeal within the relevant time periods.
With regard to the immediate case, the Court held that the financial circumstances of the Appellant, set against a background of three years unemployment and having to find funds to allow herself to be represented before the NMC were exceptional circumstances and that there was a good reason, namely lack of funds, why N had not lodge her grounds of appeal on time. It was also noted that the time by which N was outside the relevant 28 day period was short and that the NMC could not be said to have suffered any particular prejudice.
An interesting case perhaps indicating a softening of the Court’s approach to applications to extend time to appeal.
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