These two otherwise unconnected cases were considered by the Court of Appeal on Tuesday 9 July 2013, as they both raised an issue concerning the time limit within which a registrant can bring a
These two otherwise unconnected cases were considered by the Court of Appeal on Tuesday 9 July 2013, as they both raised an issue concerning the time limit within which a registrant can bring a statutory appeal to the High Court.
Both appeals had initially failed in 2012, after the High Court determined that they were time barred, in line with the relevant authorities (including Reddy v General Medical Council [2012]). However, permission to appeal to the Court of Appeal was granted following the Supreme Court's decision in Pomiechowski v Poland [2012] 1 WLR 1604, which held that an apparently absolute time limit may, in some circumstances have to yield where Article 6 of the European Convention of Human Rights, which provides for the right to a fair trial is engaged.
The appellants submitted that according to Pomiechowski, the 28 day time-limit imposed by Article 29(10) of the Nursing and Midwifery Order 2001 must be interpreted in a manner compatible with Article 6 in order to allow for leniency in certain circumstances. The NMC, on the other hand, submitted that Pomiechowski, a case on the Extradition Act, had no bearing on these two cases, and that in any event, any permitted discretion would be within narrow confines.
Lord Justice Maurice Kay, giving the leading judgment in a unanimous Court of Appeal, drew a distinction between extradition and disciplinary appeals, stating that the former carried the graver prospect of loss of liberty. He also considered that the time limit in question in Pomiechowski was only 14 days and therefore significantly shorter than in these cases. He further noted that the appellant in extradition cases would have to cope with the shorter time limits from custody where communication with advisers would be more difficult, and that there was also a more widespread recognition of the problems created by the short time limits for extradition cases in comparison with disciplinary appeals.
Lord Justice Maurice Kay stated that there would be some circumstances where to take the absolute approach would risk compromising the very essence of the statutory right of appeal. He considered that, in line with the approach in Pomiechowski, the High Court would have the power to hear an out of time statutory appeal in "exceptional circumstances" and where the appellant "personally has done all he can do to bring (the appeal) timeously".
However, he described the scope for departure from the 28 day time limit as "extremely narrow" and determined that it did not extend to either applicant here. Their appeals therefore failed.
Read the case here.
Both appeals had initially failed in 2012, after the High Court determined that they were time barred, in line with the relevant authorities (including Reddy v General Medical Council [2012]). However, permission to appeal to the Court of Appeal was granted following the Supreme Court's decision in Pomiechowski v Poland [2012] 1 WLR 1604, which held that an apparently absolute time limit may, in some circumstances have to yield where Article 6 of the European Convention of Human Rights, which provides for the right to a fair trial is engaged.
The appellants submitted that according to Pomiechowski, the 28 day time-limit imposed by Article 29(10) of the Nursing and Midwifery Order 2001 must be interpreted in a manner compatible with Article 6 in order to allow for leniency in certain circumstances. The NMC, on the other hand, submitted that Pomiechowski, a case on the Extradition Act, had no bearing on these two cases, and that in any event, any permitted discretion would be within narrow confines.
Lord Justice Maurice Kay, giving the leading judgment in a unanimous Court of Appeal, drew a distinction between extradition and disciplinary appeals, stating that the former carried the graver prospect of loss of liberty. He also considered that the time limit in question in Pomiechowski was only 14 days and therefore significantly shorter than in these cases. He further noted that the appellant in extradition cases would have to cope with the shorter time limits from custody where communication with advisers would be more difficult, and that there was also a more widespread recognition of the problems created by the short time limits for extradition cases in comparison with disciplinary appeals.
Lord Justice Maurice Kay stated that there would be some circumstances where to take the absolute approach would risk compromising the very essence of the statutory right of appeal. He considered that, in line with the approach in Pomiechowski, the High Court would have the power to hear an out of time statutory appeal in "exceptional circumstances" and where the appellant "personally has done all he can do to bring (the appeal) timeously".
However, he described the scope for departure from the 28 day time limit as "extremely narrow" and determined that it did not extend to either applicant here. Their appeals therefore failed.
Read the case here.