Kalakata Pratap Kumar Reddy v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lady Justice Black,Lord Justice Mummery |
| Judgment Date | 14 March 2012 |
| Neutral Citation | [2012] EWCA Civ 310 |
| Docket Number | Case No: B2/2011/3365 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 March 2012 |
[2012] EWCA Civ 310
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Hand Q.C.)
1.L00168
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Moore-Bick and
Lady Justice Black
Case No: B2/2011/3365
Mr. Andrew Veen (directly instructed) for the appellant
Mr. Edward Morgan (instructed by The General Medical Council) for the respondent
Hearing date : 22 nd February 2012
In this case the appellant, Mr. Reddy, seeks to appeal against the order made by His Honour Judge Hand Q.C. in the Central London County Court on 9 th December 2011 dismissing his appeal against the refusal by the General Medical Council ("GMC") of his application for entry on the Specialist Medical Register as a General Surgeon. Judge Hand held that the court had no jurisdiction to entertain Mr. Reddy's appeal because it had not been brought within the prescribed time.
In order to understand the issues which arise for decision in this case it is necessary to describe the course of events leading up to the dismissal by Judge Hand of Mr. Reddy's appeal.
In April 2006 Mr. Reddy applied to the GMC for a certificate of eligibility for specialist registration. In June 2008 that application was rejected. He asked for the decision to be reviewed and in November 2009 the decision was upheld. In January 2010 Mr. Reddy exercised his right to appeal to what was then an Appeals Panel constituted under the General and Specialist Medical Practice (Education, Training and Qualifications) Order 2003 ("the 2003 Order"), which contained the regulations then in force. However, on 26 th March 2010 the 2003 Order was revoked and replaced by the General and Specialist Medical Practice (Education, Training and Qualifications) Order 2010 ("the 2010 Order"), the provisions of which governed the appeal procedure as from that date.
Paragraph 10 of Schedule 2 to the 2010 Order provides that a person in Mr. Reddy's position who at the time when that Order came into effect had lodged an appeal against a decision of the Appeals Panel was to be treated as a person in respect of whom an appealable registration decision had been made for the purposes of Schedule 3A to the Medical Act 1983 ("the 1983 Act"). As a result the provisions of Schedule 3A applied to the proceedings as from that date.
Schedule 3A of the 1983 Act provides for appeals against registration decisions to be made to a Registrations Appeal Panel and includes the following provision:
" Appeals from a Registration Appeals Panel
5.1) Where—
(a) a Registration Appeals Panel determines an appeal under paragraph 4 above; and
(b) the Panel's determination is any determination other than a determination under paragraph 4(8)(b) above to allow the appeal and quash the decision appealed against,
the person concerned may, before the end of the period of 28 days beginning with the date on which notice of the determination was given to him under paragraph 4(9), appeal against the determination to the relevant court."E+W+S+N.I.
In England and Wales the relevant court for these purposes is a county court.
On 2 nd December 2010 the GMC wrote to Mr. Reddy informing him that his appeal had been unsuccessful. Mr. Reddy received that letter on 3 rd December and at that point the time for appealing started to run.
Mr. Reddy took time to consider the implications of the GMC's decision and eventually on 21 st December 2010 he consulted solicitors. On 22 nd December his solicitors filed at the Central London County Court an application notice in form N244 seeking an extension of time for filing grounds of appeal. One reason given for making the application was that it would give Mr. Reddy time to obtain and consider legal advice on the merits of an appeal. A notice of appeal in Form N161 with lengthy supporting grounds was later filed on 31 st January 2011.
On 15 th March 2011 His Honour Judge Bailey granted Mr. Reddy an extension of time to 18 th March 2011 for filing his detailed grounds of appeal. However, at some point thereafter the GMC took the point that the court had no power to extend time for commencing an appeal and that, because Mr. Reddy had not filed a notice of appeal within the 28 days prescribed by paragraph 5(1) of Schedule 3A to the 1983 Act, the appeal was invalid and the court had no jurisdiction to entertain it. As a result, on 21 st June 2011 with the agreement of the parties Judge Bailey made an order that the question whether the appeal had been lodged in time be tried as a preliminary issue.
Pursuant to that order the matter came before Judge Hand on 22 nd July 2011. He held that the court had no power to extend the time prescribed by paragraph 5(1) for filing a notice of appeal and that the court had no jurisdiction to entertain an appeal lodged out of time. He therefore dismissed the appeal. He also noted in the order that any appeal against his decision would constitute a second appeal and directed that it should therefore be made to the Court of Appeal. Permission for a second appeal can, of course, be obtained only from the Court of Appeal itself.
In his notice of appeal to this court Mr. Reddy challenged the judge's decision on a number of grounds, one of which was that the appeal was properly to be regarded as a first appeal. If that was correct, it lay to the High Court under article 3 of the Access to Justice Act 1999 (Destination of Appeals) Order 2000 ("the Destination of Appeals Order"). Mr. Reddy also contended that the judge was wrong to hold that the county court had no jurisdiction to entertain his appeal.
When Mr. Reddy's notice of appeal was received in the Civil Appeals Office it was referred to the Vice-President for him to consider whether it raised a question of this court's jurisdiction. The Vice-President directed that there be a hearing to determine that question before the application for permission to appeal was considered. Accordingly, the matter came before us and we heard full argument on both of the issues determined by the judge below.
These proceedings logically give rise to five questions, although only three were the subject of serious debate. They are:
(i) is the present appeal a first or second appeal?
(ii) did Mr. Reddy file a notice of appeal within the time prescribed by paragraph 5 of Schedule 3A to the 1983 Act?
(iii) if not, did the court have power to extend time for appealing?
(iv) if it did, should it have exercised its power in favour of Mr. Reddy?
(v) in the absence of an extension of time did the county court have jurisdiction to entertain the appeal?
Of those, only questions (i), (iii) and (v) were canvassed in argument. Mr. Veen did not seek to argue that the application notice filed on 22 nd December 2010 was sufficient to constitute a notice of appeal or that it was otherwise effective to commence appeal proceedings, but since the question lies at the heart of the case I shall express my views on it briefly in due course.
First or second appeal?
The question whether Mr. Reddy's appeal was out of time, and thus whether the court had jurisdiction to entertain it, necessarily arose for the first time after the matter had reached the county court. It was determined by the judge as a preliminary issue and as a result of his decision he did not consider the issues raised by the grounds of appeal. Those two factors led Mr. Veen to submit that the issue of jurisdiction was collateral to the substantive appeal and that an appeal against the judge's order was therefore a first, rather than a second, appeal. Accordingly, the less demanding test for obtaining permission to appeal applied in this case. In support of his submissions he relied on the case of Chantrey Vellacott v Convergence Group Plc [2005] EWCA Civ 290.
In one sense, of course, the issue of jurisdiction is collateral to the substantive appeal, but I do not think that that renders this a first appeal, despite the fact that it arose for the first time after the proceedings had reached the county court. Although courts are generally reluctant to allow a new point to be raised on appeal, permission is sometimes given for that to be done and, when it is, the new point simply forms part of the argument on the appeal as a whole. That remains the case, even if in the interests of practical case management the court decides to hear and decide the new point first. The introduction of an issue that is determined for the first time on appeal is not sufficient to render any further appeal a first appeal, even in relation to that issue. If it were, one would be faced with the possibility that an appeal might have to be regarded as a first appeal in relation to some issues and a second appeal in relation to others. That cannot have been contemplated by the legislation, which (with certain exceptions) prescribes different destinations for first and second appeals from the county courts.
The provisions relating to appeals from the county courts are contained in Articles 3–5 of the Destination of Appeals Order. Article 3(1) establishes the basic rule that an appeal from a decision of a county court lies to...
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