What are the time limits for lodging appeals?

The Appellant’s fitness to practise had been found to be impaired by the Health and Care Professions Council (HCPC) in January 2021 and conditions of practise had been imposed upon the Appellant for a period of 18 months.

The Appellant sought to appeal to the High Court against the HCPC’s decision. Under Article 29(10) of the Health Professions Order 2001, an individual has 28 days from the date of service of the decision to be challenged in which to appeal. This time limit expired on 5 February 2021.

The actions taken by the Appellant between January and April 2021 and the reasons for the delay is best illustrated by a chronology. The Appellant was unrepresented from January 2021 onwards and has been a resident of Gibraltar since 2015.

On 11 May 2021, the HCPC filed an application to strike out the High Court appeal for having been brought out of time. The strike out application was heard by Matthew Gullick KC, sitting as a High Court judge, on 17 November 2021. The Judge found that there was no basis on which to exercise his discretion to extend time for the filing of the appeal. The appeal was dismissed and the Appellant ordered to pay the HCPC’s costs.

The Appellant was granted permission to appeal to the Court of Appeal on 8 August 2022 on the ground that in applying the Adesina approach to the ‘unusual facts’ of this case, the High Court judge had adopted too strict an approach.  The Court of Appeal heard the matter on 29 November 2022. In the judgment of 8 December 2022, the Court unanimously dismissed the appeal and again awarded costs to the HCPC.

In dismissing the appeal, Lady Justice Carr, who gave the leading judgment, noted that the appeal ‘affords the opportunity to provide some clarification as to the correct approach to be adopted when considering whether or not there is jurisdiction to extend time for an appeal outside a statutory time limit’.

Carr J reviewed the authorities on the exercise of such discretion, including Tolstoy Miloslavsky v United Kingdom, Pomiechowski v Poland and R (Adesina and Baines) v NMC[1]. The principle to be distilled from these cases is that there is a discretion to extend time for the bringing of a statutory appeal only in exceptional circumstances [our emphasis] where to do other than extend time would impair the ‘very essence of the right of appeal’. If that discretion arises, it must only be exercised to the minimum necessary to secure compliance with the Article 6 right to a fair trial.

Carr J considered Lord Mance’s comments in Pomiechowski regarding ‘[where] a litigant personally has done all he can to bring and notify timeously’ which had been referenced in Adesina and other cases. Carr J rejected any suggestion that these comments imposed an additional condition beyond exceptional circumstances, stating that whether an Appellant had not personally done all they could to bring the appeal in time may or may not be something to be considered when considering the question of exceptional circumstances.

In concluding that the High Court judge had been right to conclude that there were no exceptional circumstances in this case and thus dismissing the appeal, Carr J noted the following:

• The Appellant waited almost two weeks before first attempting to file an appeal.
• On 26 January 2021, the Appellant had been made aware by the court of what he needed to do to file successfully.
• This was not a case of ‘blameless ignorance’ and the Appellant had had a ‘meaningful opportunity to file an appeal notice within time’.
• The HCPC’s email of 5 March 2021 post-dated the expiry of the relevant time limit and did not, and could not, create a jurisdiction to extend time.

Further, even had she felt that the discretion to extend time arose, Carr J was not certain that that there would have been any proper basis to extend time to 7 April 2021, when the appeal notice was finally filed, as this was two months after the expiry of the 28-day statutory period and a month after the HCPC’s email of 5 March 2021. There was no real explanation for the final period of delay between 5 March and 7 April 2021.

[1] Tolstoy Miloslavsky v United Kingdom [1995] ECHR 18139/91; [1996] EMLR 152

Pomiechowski v Poland [2012] UKSC 20; [2012] 1 WLR 1604

R (Adesina and Baines) v NMC [2013] EWCA Civ 818; [2013] 1 WLR 3156