El-Huseini v General Medical Council
| Jurisdiction | England & Wales |
| Judge | HHJ David Cooke |
| Judgment Date | 23 September 2016 |
| Neutral Citation | [2016] EWHC 2326 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3306/2016 |
| Date | 23 September 2016 |
[2016] EWHC 2326 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
Bull Street, Birmingham B4 6DS
HHJ David Cooke
Case No: CO/3306/2016
The Appellant appeared in person
Terence Rigby (instructed by General Medical! Council) for the Respondent
Hearing date: 5 September 2016
Introduction
Dr El-Huseini seeks to appeal against the decision of the Medical Practitioners Tribunal given by letter dated 25 May 2016 that his fitness to practise is impaired by reason of misconduct and his adverse physical and mental health, and that in consequence he should be suspended from the Medical Register for a period of 12 months. A hearing was held on 5 September 2016 solely to determine whether the court had any power to consider the appeal in view of the respondent's contention that it was out of time, including consideration of whether the court had any power, and if so should exercise it, to extend the time provided by statute. This judgment deals with those issues alone, and does not address the merit of the appeal, were it to proceed.
Dr El-Huseini attended the hearing in person, assisted by his wife. He submitted a skeleton argument prepared on his behalf by a Mr Shabaan, who is described as his personal assistant. I had previously refused an application for Mr Shabaan to participate in the hearing as Dr El-Huseini's McKenzie friend by way of Skype or for the hearing to be adjourned until Mr. Shabaan was able to attend, Dr El-Huseini having informed the court that Mr Shabaan would be out of the country and so unable to attend until at least the end of the year. I also refused applications made by Dr El-Huseini before and at the hearing for him to be allowed to make his own recording of it, and he assured me that he was not doing so. He wished to have a recording so that he could consider afterwards whether he had said anything during it which he ought to correct, but that would not have assisted the conduct of the hearing, and if he wished to review what had been said afterwards, there was no good reason why he should not do so from an official transcript.
The appeal lies under section 40 (4) of the Medical Act 1983, which provides:
"A person in respect of whom an appealable decision… has been made, may before the end of 28 days beginning with the date on which notification of the decision was served under section 35E (1) above… appeal against the decision to the relevant court"
The relevant court is the High Court. Section 35E (1) and paragraph 8 of Schedule 4 of the Act provide that the decision may be served by post, and will be deemed served when the letter containing it would be delivered in the ordinary course of post. The decision letter was sent by post on 25 May 2016, with a covering letter stating that it would be deemed served two days later on Friday 27 May 2016, and that accordingly the last day of the 28 day period would be Friday 23 June 2016. That has not been disputed.
Paragraph 9 of schedule 4 of the 1983 Act gives a discretion to the Tribunal to extend time for appealing if it is satisfied that the appellant did not receive the notice of decision within 14 days of it being sent by post. That does not arise in this case, since Dr El-Huseini has not contended that he did not receive the decision within that period. There is no other provision in the statute for the time to be extended, either by the Tribunal or the court.
The appeal is a statutory appeal, and is governed by the provisions of CPR 52 and Practice Directions 52B and 52D, save to the extent the statute provides otherwise. Paragraph 4.1 of PD 52B provides that "An appellant's notice (Form N161…) must be filed and served in all cases. The appellant's notice must be accompanied by the appropriate fee or, if appropriate, a fee remission application or certificate." Payment of a fee is required by the current Civil Proceedings Fees Order, and so is a statutory requirement.
On 22 June 2016, Dr El-Huseini sent to the court, by recorded delivery, his Form N161 appellant's notice, accompanied by various documents and a completed application for fee exemption (Form EX 160). Those documents were delivered to the court on 23 June 2016, the last day of the 28 day period allowed. The fee exemption request was processed by a court officer, Mr Farley, who entered the relevant details from the form into a computer program provided for the purpose, which informed him that the application should be rejected. He notified Dr El-Huseini by telephone and sent a letter the same day returning the appellant's notice and fee exemption application form (but not the remainder of the papers filed, which amounted to a large box and would have been expensive to post). The letter stated that the fee exemption application had been rejected, though it did not refer specifically to the reason. The letter continued "if you wish to continue with your appeal you must pay the court fee of £240 as soon as possible. The court has retained the rest of your papers awaiting your response. If we receive no confirmation from you within three weeks of your intention to proceed or that you wish for the papers to return then we will destroy the papers."
On 27 June 2016, Dr El-Huseini sent a cheque for the required fee, £240, by recorded delivery to the court, returning the appellant's notice. This arrived on 28 June 2016, and his appellant's notice was sealed and dated that day. If 28 June is the effective date of the appeal, then it is on the face of it out of time unless the court has power to extend that time and exercises it in the circumstances of this case.
As Mr Rigby, on behalf of the GMC, submits, there are many cases holding that since the 28 day time limit is provided for in primary legislation the court has no general power to extend it as a matter of discretion, in contrast to the time limits provided, for instance, within the Civil Procedure Rules generally in relation to appeals from the decision of one court to another. He refers me however to the decision of the Court of Appeal in R (Adesina) v Nursing and Midwifery Council [2013] EWCA Civ 818 in which it was held that the time limit (in that case in relation to a similarly worded provision in legislation dealing with appeals by nurses), formerly thought to be absolute, might in certain circumstances be extended by virtue of court's duty under the Human Rights Act to interpret statutes where possible in order to avoid a breach of the ECHR. The court however emphasised that the power to extend for these reasons was very limited and would rise only in exceptional circumstances. Maurice Kay LJ, with whom the other Lords Justices agreed, said:
"15 … [counsel], 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 … 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."
Documents received on 23 June
The first question is whether the appeal was submitted in time by virtue of the fact that the appellant's notice did arrive at the Court office on 23 June, which would have been within the time limit. In Nagiub v General Medical Council [2013] EHHC 1766 (Admin), to which Mr Shabaan had referred me on behalf of Dr El-Huseini, a doctor seeking to appeal had lodged an appellant's notice but had by mistake sent less than the required amount for the fee. Edwards-Stuart J held, relying on previous decisions of the High Court in R (El-Huseinion) v GMC [2012] EWHC 1741 and Gilthorpe v General Medical Council [2012] EWHC 672 that an appeal is only valid if it complies with the statutory requirements, and that since it is a statutory requirement that a fee be paid an appeal application which is not accompanied by the correct fee or a fee exemption application is not a valid appeal. The result in that case was that although the balance of the fee was paid within two days, the appeal was nevertheless out of time.
Is it sufficient that in this case an application for fee exemption was lodged with the appeal notice, even if on the basis of that application Dr El-Huseini had not shown he was entitled to such an exemption? The issue is relevant because Dr El-Huseini submits that although his application for exemption was rejected on the basis that the document he had provided as evidence of receipt of a qualifying benefit was not dated within the past 3 months, he has in fact at all times been in receipt of the relevant benefit and is able to provide (and has subsequently provided) more recent evidence to show this. Accordingly, he says, he has at all times been entitled to an exemption, and was so entitled on 23 June.
Dr El-Huseini has provided, at my request after the hearing, a copy of the form he submitted on 22 June. In that form he has ticked a box to say that he is in receipt of Income-related Employment and Support Allowance (ESA). The notes on the form in that section say "You must provide correctly dated documentary evidence to show you receive one of these benefits" and refer to a guidance booklet EX160A which sets out the requirement that such evidence must be dated in the past 3...
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