Shanker v GMC, Queen's Bench Division (Admin Court), Unreported, 13 January 2015This case considered the decision in Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818 (namely that there may
Shanker v GMC, Queen's Bench Division (Admin Court), Unreported, 13 January 2015
This case considered the decision in Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818 (namely that there may be exceptional circumstances statutory time limits for appeals can be disapplied) and confirmed that it does not apply retrospectively.
S appeared before the GMC's fitness to practise panel a number of times over a period of several years. In 2009 his fitness to practise was found to be impaired and he was erased from the register. The GMC complied with its duty to inform him of his right to appeal within 28 days. No appeal was lodged within that time period but S instead applied for judicial review of the decision. S subsequently applied to amend his judicial review claim so that the claim could be 'converted' into a statutory appeal under the Medical Act (the proper route of appeal against decisions of fitness to practise panels). While the application for judicial review was lodged within the 28-day time limit for statutory appeals, the application to amend came outside of this time-limit.
The court refused the application to amend in 2010 (R (Shanker) v GMC [2010] EWHC 3689), with Ouseley J commenting 'so little has been done, the papers are in such a mess, there is an obligation to get on with the matter that has not been complied with, and the grounds themselves do not appear to have any obvious real merit or even arguability, that it would be wrong for permission to amend to be given. I recognise in so doing that this mean that Dr Shanker's erasure will not now be considered by this court [on the basis that it is time-barred]'.
In 2014 S sought to argue that the decision in Adesina v NMC should be applied retrospectively to the 2009 proceedings and that it would be unjust and a breach of Article 6 to prevent him from now appealing against his erasure. S's argument essentially suggests that, had the 2009 case been decided after the decision in Adesina, the court would (or at least should) have granted the application to amend.
In Adesina, the Court of Appeal applied the decision in Pomiechowski v Poland [2012] UKSC 20 (to the effect that a time limit which did not appear to be extendable should be read down so as to comply with the ECHR Article 6) and held that this applies to the 28 day time limit within which to appeal against the decision of the NMC. An absolute time limit admitting no exceptions might impair the "very essence of the right" of appeal conferred by statute. However an extension of time had to be the minimum necessary to secure Convention compliance. There had to be exceptional circumstance and the Appellant needed to have done all that he could to bring the appeal timeously. In Adesina, one of the Appellants was two days out of time to lodge her appeal; nevertheless, the Court of Appeal determined that it was not exceptional.
In the present case, the court reiterated the general principle that judicial decisions do not have retrospective effect on decided cases (although the position is different where proceedings are ongoing). The decision in Adesina could therefore not have retrospective effect on S's case and the 2010 refusal must stand. In addition, the court held that, even if Adesina did apply, the case did not come close to meeting the exceptional circumstances criterion.
The case is a useful reminder to regulators and practitioners that decided cases cannot be revisited in light of subsequent authorities and reaffirms the Adesina principle that, in order to satisfy the 'exceptional circumstances' threshold for disapplying statutory time limits, applicants need to put forward detailed reasons as to why there has been a delay and why those circumstances are 'exceptional'.
This case considered the decision in Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818 (namely that there may be exceptional circumstances statutory time limits for appeals can be disapplied) and confirmed that it does not apply retrospectively.
S appeared before the GMC's fitness to practise panel a number of times over a period of several years. In 2009 his fitness to practise was found to be impaired and he was erased from the register. The GMC complied with its duty to inform him of his right to appeal within 28 days. No appeal was lodged within that time period but S instead applied for judicial review of the decision. S subsequently applied to amend his judicial review claim so that the claim could be 'converted' into a statutory appeal under the Medical Act (the proper route of appeal against decisions of fitness to practise panels). While the application for judicial review was lodged within the 28-day time limit for statutory appeals, the application to amend came outside of this time-limit.
The court refused the application to amend in 2010 (R (Shanker) v GMC [2010] EWHC 3689), with Ouseley J commenting 'so little has been done, the papers are in such a mess, there is an obligation to get on with the matter that has not been complied with, and the grounds themselves do not appear to have any obvious real merit or even arguability, that it would be wrong for permission to amend to be given. I recognise in so doing that this mean that Dr Shanker's erasure will not now be considered by this court [on the basis that it is time-barred]'.
In 2014 S sought to argue that the decision in Adesina v NMC should be applied retrospectively to the 2009 proceedings and that it would be unjust and a breach of Article 6 to prevent him from now appealing against his erasure. S's argument essentially suggests that, had the 2009 case been decided after the decision in Adesina, the court would (or at least should) have granted the application to amend.
In Adesina, the Court of Appeal applied the decision in Pomiechowski v Poland [2012] UKSC 20 (to the effect that a time limit which did not appear to be extendable should be read down so as to comply with the ECHR Article 6) and held that this applies to the 28 day time limit within which to appeal against the decision of the NMC. An absolute time limit admitting no exceptions might impair the "very essence of the right" of appeal conferred by statute. However an extension of time had to be the minimum necessary to secure Convention compliance. There had to be exceptional circumstance and the Appellant needed to have done all that he could to bring the appeal timeously. In Adesina, one of the Appellants was two days out of time to lodge her appeal; nevertheless, the Court of Appeal determined that it was not exceptional.
In the present case, the court reiterated the general principle that judicial decisions do not have retrospective effect on decided cases (although the position is different where proceedings are ongoing). The decision in Adesina could therefore not have retrospective effect on S's case and the 2010 refusal must stand. In addition, the court held that, even if Adesina did apply, the case did not come close to meeting the exceptional circumstances criterion.
The case is a useful reminder to regulators and practitioners that decided cases cannot be revisited in light of subsequent authorities and reaffirms the Adesina principle that, in order to satisfy the 'exceptional circumstances' threshold for disapplying statutory time limits, applicants need to put forward detailed reasons as to why there has been a delay and why those circumstances are 'exceptional'.