Adesina & Ors, R (on the application of) v The Nursing and Midwifery Council

These two appeals in otherwise unconnected cases raise the same legal issue concerning the time limit within which a nurse or midwife must bring an appeal against a disciplinary decision of the Nursing and Midwifery Council (the Council) to the High Court. The right to appeal is provided by Article 29(9) of the Nursing and Midwifery Order 2001 (the Order). Article 29(10) then 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.”

There is no express provision permitting the Court to extend time on a discretionary or any other basis. The issue on this appeal is whether 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.

In the Administrative Court, Hickinbottom J held that both appellants were time-barred: [2012] EWHC 2615 (Admin). However, the case below was conducted on a different basis. It was conceded that the 28 day time limit is absolute. The concession was based on Mitchell v Nursing and Midwifery Council [2009] EWHC 1045 (Admin) and the decision of this Court on a cognate statutory provision in Reddy v General Medical Council [2012] EWCA Civ 310. In the light of these authorities, the disputes before Hickinbottom J were as to when the 28 day periods began to run, as a matter of law and case-sensitive fact. The appellants submissions on those issues were rejected and the judge concluded (at paragraph 26) that “no extension of time is possible. In those circumstances, I have no option but to strike out the appeals”.

Permission to appeal to this Court was granted by McCombe LJ on a single ground. After judgment in the Administrative Court, the Supreme Court decided Pomiechowski v Poland [2012] 1 WLR 1604 in which it held that apparently absolute time limits may, in some circumstances, have to yield to the requirements of Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) following its incorporation by the Human Rights Act 1998. The case for the appellants is put with considerable candour. It is that, absent the ECHR point, this Court would be bound to accept the absolute approach of Reddy. However, it is submitted, Pomiechowski now requires us to “read down” Article 29(10) of the Order so as to interpret it in a manner compatible with Article 6 of the ECHR, thereby leaving some wriggle-room, notwithstanding the apparently absolute nature of the time limit.

Pomiechowski was informed by a line of Strasbourg jurisprudence. The starting point is Article 6.1 of the ECHR:

“In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Although, on its face, Article 6.1 appears to be concerned with the trial stage rather than with appeals, and although it does not refer to time limits on limitation periods, it was established from an early stage that (1) where a right of appeal is provided, it must be compliant with Article 6 and (2) the rights enshrined in Article 6 may be subject to limitations but such limitations must not restrict or reduce the access left to the individual in such a way or to such an extent that “the very essence of the right is impaired”: Tolstoy Miloslavsky v United Kingdom [1995] ECHR 18139/91, paragraph 59. Moreover, a restriction (of which a time limit is an example) must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: ibid. Tolstoy Miloslavsky was concerned not with time limits but with the inhibiting effect of an order for security for costs. However, its reasoning soon came to be applied in cases concerning time limits.

In Perez de Rada Cavanilles v Spain (2000) 29 EHRR 109 the time limit in question was extremely short (three days). The Court, having expounded the principles established in Tolstoy Miloslavsky, stated (at paragraph 45):

“The rules on the time limits for appeals are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty. Those concerned must expect those rules to be applied. However, the rules in question, or the application of them, should not prevent litigants from making sue of an available remedy.”

The three day time limit had been exceeded by two days. The Court considered that

“the particularly strict application of a procedural rule by the domestic courts deprived the applicant of the right of access to a court.” (Paragraph 49)

Although that conclusion was expressed to relate to “the application of a procedural rule”, it is apparent from the earlier reasoning in paragraph 45 that the principle applies to both “the rules in question or the application of them”.

Prior to Pomiechowski, the leading domestic authority on time limits was another extradition case, Mucelli v Government of Albania [2009] 1 WLR 276, in which the House of Lords, without reference to Strasbourg jurisprudence, applied the absolute approach to a statutory time limit – “must be filed and served before the expiry of 14 days” – in relation to which there was no express power to extend time. Mucelli spawned Mitchell v Nursing and Midwifery Council and Reddy v General Medical Council (supra). In Reddy, counsel had attempted to rely on Article 6 but, unsurprisingly in the light of Mucelli, he was given short shrift (see paragraphs 28 and 29).

Before and after Mucelli, the absolute approach to the time limits in the Extradition Act 2003 attracted judicial criticism: see Review of the United Kingdom’s Extradition Arrangements by Sir Scott Baker, 30 September 2011. This, then, was the background against which the Supreme Court came to reconsider the absolute approach in Pomiechowski.

The leading judgment is that of Lord Mance, with whose reasoning all the other members of the Court agreed. He said (at paragraph 37):

“I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be ‘a reasonable relationship of proportionality between the means employed and the aim sought to be achieved’.”

And (at paragraph 39):

“In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time. In these circumstances, I consider that … the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time …, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under Article 6.1 in Tolstoy Miloslavsky. The High Court must have the power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring … timeously.”

The judgment of Baroness Hale (paragraphs 42-54) contains an analysis of the methodology whereby this conclusion was reached. She would have preferred to depart from Mucelli on the basis that it had been decided on “a mistaken factual assumption” about the intention of Parliament. However, it seems that Lord Mance and the other three members of the Court construed the time limits by resort to “reading down” in accordance with section 3 of the Human Rights Act so as to achieve Article 6 compatibility.

The case for the appellants is that the absolute approach exemplified by Mitchell, Reddy and other cases such as Massan v Secretary of State for the Home Department [2011] EWCA Civ 686 must now be revisited in the light of Pomiechowski and that Article 6 requires that an ostensibly non-extendable time limit can be mollified by reference to the approach of Lord Mance. The primary case for the Council is that Pomiechowski, as a case on the Extradition Act, has no general application in the present context in which the absolute approach still stands. Its secondary case is that, if there is now room for discretion, it is within very narrow confines.

There are obvious contextual differences between extradition appeals and appeals in disciplinary or regulatory cases such as this. First, extradition carries with it the prospect of loss of liberty and involuntary removal to a different country. The consequences of removal from a nursing and midwifery Register, an admittedly serious detriment, are not as grave. Secondly, the time limits in the Extradition Act (14 days in Pomiechowski) are significantly shorter than the 28 days here. Thirdly, the putative appellant in an extradition case would often have to cope with the shorter time limits in the more difficult position of custody, where communications with advisers and access to information and facilities are more difficult. Fourthly, there was widespread recognition of the problems created by the short time limits in extradition (see paragraph 7, above) but there is no such evidence in relation to appeals such as these.

Are these differences sufficient to leave the Mitchell/Reddy line of authority untouched by Pomiechowski? In my judgment, they are not. The context, exclusion from a profession, is still one of great importance to an appellant. There is good reason for there to be time limits with a high degree of strictness. However, one only has to consider hypothetical cases to appreciate that, without some margin for discretion, circumstances may cause absolute time limits to impair “the very essence” of the right of appeal conferred by statute. 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 (Nursing and Midwifery Council (Fitness to Practice) Rules 2004, rule 34(4)). 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.

The real difficulty is where to draw the line. Mr Pascall, on behalf of the appellants, does not contend for a general discretion to extend time. Parliament is used to providing such discretions, often circumscribed by conditions (see, for example Employment Rights Act 1996, section 111(2), in relation to unfair dismissal). The omission to do so on this occasion was no doubt deliberate. If Article 6 and section 3 of the Human Rights Act require Article 29(10) of the Order to be read down, it must be to the minimum extent necessary to secure ECHR compliance. In my judgment, this requires adoption of the same approach as that of Lord Mance in Pomiechowski. A discretion must only arise “in exceptional circumstances” and where the appellant “personally has done all he can to bring [the appeal] timeously” (paragraph 39). I do not believe that the discretion would arise save in a very small number of cases. Courts are experienced in exercising discretion on a basis of exceptionality. See, for example, the strictness with which the discretion is approached in relation to the 42 day time limit and the discretion to extend in connection with appeals from Employment Tribunals to the Employment Appeal Tribunal: United Arab Emirates v Abdelghafar [1995] ICR 65; Jurkowska v HLMAD Ltd [2008] EWCA Civ 231.

Mr Pascall may have won the legal battle but he does not come within a country mile of winning the forensic war. On the now undisputed facts, these two appellants simply left it too late. In accordance with the usual practice of the Council, the adverse decisions were announced in the presence of each appellant. They had immediate knowledge of the result. In Mrs Adesina’s case, time began to run on the day after the day on which her decision letter was posted by first-class post, 30 January 2012. Time therefore began to run on 31 January. Although her factual case was that the letter had not been posted until 9 February and she produced an envelope bearing such a date stamp, the judge found that that envelope had contained a different letter on a different matter. She had not instructed solicitors at the time but she sought the advice of a barrister to whom, on request, a copy of the decision was sent on 2 February. Her notice of appeal was not lodged until 9 March. It is utterly impossible to see her case as exceptional or her delay as blameless.

The case of Ms Baines is more of a paradigm case. She was present when the adverse decision was announced on 14 February 2012. The decision letter was posted by first-class post on 17 February, a Friday. Time therefore began to run on 18 February. She actually received the letter on 20 February. Her notice of appeal was lodged on 19 March, two days out of time. Although that may be described as marginal, it is unexceptional and there was no good reason why it could not have been lodged in time. There is no evidence of any exceptional difficulties encountered by her or her advisers. We were simply told by Mr Pascall that it had taken some time for her to find a specialist solicitor and to obtain legal aid. In these circumstances, I am not disposed to remit her case to the Administrative Court for further consideration as Mr Pascall requests. She gains no assistance from the Pomiechowski approach. The strict time limit defeats her.

It follows from what I have said that, although the absolute approach can no longer be said to be invariable, the scope for departure from the 28 day time limit is extremely narrow. It does not extend to the cases of either of these appellants. Accordingly, I would dismiss their appeals.

I agree.

I also agree.