Lars Stuewe v The Health and Care Professions Council
| Jurisdiction | England & Wales |
| Judge | Mr Mathew Gullick |
| Judgment Date | 17 November 2021 |
| Neutral Citation | [2021] EWHC 3362 (Admin) |
| Docket Number | CO/1288/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3362 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Mathew Gullick QC
(Sitting as a Deputy Judge of the High Court)
CO/1288/2021
THE APPELLANT appeared in person.
Mr G. Micklewright (of Blake Morgan LLP) appeared on behalf of the Defendant.
THE DEPUTY JUDGE:
Introduction
This is a statutory appeal by Mr Lars Stuewe (“the Appellant”) against a decision of the Conduct & Competence Committee (“the Committee”) of the Health and Care Professions Council (“HCPC”). The appeal is brought under Article 38 of the Health Professions Order 2001 (“the 2001 Order”).
The issue before me today is whether an extension of time should be granted for this appeal, which was on any view filed outside the statutory time limit. Formally, at least, the issue arises in response to an application by the HCPC to strike out the notice of appeal; but the issue would in any event have had to be determined even in the absence of such an application. Nothing turns, for present purposes, on the precise route by which the issue has come before the court.
Directions were given for the determination of this issue by Griffiths J in July of this year. I heard argument today from Mr Micklewright for the HCPC and from the Appellant in person. I am very grateful to them both for their submissions and in particular to the Appellant who, as he pointed out, is not professionally trained in the law, for the clear, measured and courteous way in which he put his case to me.
Background and Statutory Provisions
The Appellant, who presently resides in Gibraltar, is a paramedic. The HCPC is the relevant regulating body. The Committee's decision was to impose conditions on the Appellant's registration following a finding of impairment of his fitness to practice on the ground of misconduct. It is unnecessary to set out the detail of the underlying allegations or the hearing which occupied a considerable amount of time over a number of months, lasting in total 33 days. Seven allegations against the Appellant were found to have been proved on the facts by the Committee and seven allegations were found not proved. Of the seven allegations that were proved, three were considered to amount to misconduct. That led to the sanction that I have just described being imposed.
The Committee's proceedings concluded on 7 January 2021 and the Appellant was notified of the decision at a hearing at which he was present. The decision was then sent to him by email on 8 January 2021. It subsequently underwent minor revisions and the Appellant told me that he had received a final version on 12 January. It is unnecessary to decide for the purposes of the present application whether the relevant date of service of the decision for the purposes of the time limit for appealing is 7 January, 8 January or indeed 12 January because on any view this appeal was filed well out of time and nothing turns on the potential difference in the starting date.
The statutory appeal process against decisions of the Committee is set out in the 2001 Order, in particular Articles 29 and 38. Article 29(10) provides that:
“Any such appeal must be brought before the end of the period of 28 days beginning with the date on which the notice of the order or decision appealed against is served on the person concerned.”
Article 38 provides, relevantly:
“(1) An appeal from —
(a) any order or decision of the Health Committee or the Conduct and Competence Committee other than an interim order made under Article 31, shall lie to the appropriate court
…
(4) In this Article ‘the appropriate court’ means —
(a) in the case of a person whose registered address is (or, if he were registered, would be) in Scotland, the Court of Session;
(b) in the case of a person whose registered address is (or, if he were registered, would be) in Northern Ireland, the High Court of Justice in Northern Ireland; and
(c) in any other case, the High Court of Justice in England and Wales.”
On its face, the 2001 Order contains no reference to the possibility of extending time for an appeal against a decision of the Committee. The last date for filing an appeal in this case was, Mr Micklewright calculates, 5 February 2021, although if time did not start to run until 12 January, then it would be a few days after that. As I have indicated, the precise date does not matter for present purposes because the appeal was not in fact filed at court until 7 April 2021, on any view some two months outside the time limit. I should point out that the Appellant told me that he had sent the appeal to the court in mid-March 2021 and it had been delayed in the post, but on any view the appeal was still filed out of time. Indeed, this point is not disputed by the Appellant because section 10 of the appellant's notice contained an application for an extension of time for filing the appeal with evidence in support set out in section 11 of the appellant's notice.
This appeal is substantially out of time and there is, on the face of the legislation, no power to extend time. However, it has been established by the Court of Appeal that there is indeed power to extend time in these circumstances notwithstanding the absence of an express statutory provision to that effect. In Adesina & Ors v Nursing & Midwifery Council [2013] EWCA Civ 818, the Court of Appeal considered the time limit in Article 29(10) of the Nursing and Midwifery Order 2001 relating to appeals from decisions of the Nursing and Midwifery Council, which is in materially similar terms. Applying the decision of the UK Supreme Court in Pomiechowski v District Court of Legunica, Poland [2012] UKSC 20, an extradition appeal, the Court of Appeal held at paras.12 to 15 of the judgment of Maurice Kay LJ, with which Patten and Floyd LJJ agreed, that the discretion to extend time under the Nursing and Midwifery Order 2001 did arise in exceptional circumstances in order to ensure compliance with Article 6 of the European Convention on Human Rights. The learned Lord Justice noted in his judgment that such cases would be rare and would be where the appellant “personally has done all he can to bring [the appeal] timeously”. At para.18 the learned Lord Justice stated that the scope for departure from the application of the strict time limit was “extremely narrow”.
I was also referred by Mr Micklewright to Nursing and Midwifery Council v Daniels [2015] EWCA Civ 255 in which the earlier judgment in the case of Adesina was applied. In that case the appeal had been filed only a few days out of time in circumstances where the appellant had difficulties paying the court fee, but the Court of Appeal allowed the appeal by the Nursing and Midwifery Council against the judge's decision to extend time. At paras.38 and 39 of his judgment, with which Black J and the President of the Queen's Bench Division agreed, Jackson LJ said this:
“38. If the 2001 Order or the 2004 Rules provided that the judge had discretion to extend time and if the judge were exercising such discretion in favour of [the respondent] for the reasons stated in paragraphs 10 and 11 of her judgment, then the Court of Appeal could not possibly interfere with that exercise of discretion. The problem in the present case is that neither the 2001 Order nor the 2004 Rules confer such a discretion.
39. The court has no power to extend or override the 28 day time limit except in circumstances of the kind described by Maurice Kay LJ in Adesina at [14]. In other words the circumstances must be such that enforcing the 28 day time limit would impair the very essence of the statutory right of appeal. The facts stated in paragraphs 10 and 11 of the judge's judgment do not constitute circumstances of that character. The present case is similar in its essentials to that of Ms Baines, who was one of the unsuccessful appellants in Adesina.”
These authorities establish that in circumstances where the approach set out in them applies, the question is not, as the Appellant submitted in argument, whether it is fair to allow the appeal to proceed, or whether not to allow it to proceed would be morally wrong. Nor are the jurisdictional provisions to be described as a technicality. In cases to which they apply the provisions are clear and subject to a very limited exception of the nature set out in the Court of Appeal's judgments in Adesina and Daniels.
I turn then to the circumstances of the present case. As I have said, the appellant's notice was filed in this court on 7 April 2021 although, as I have indicated, the Appellant says he posted it from Gibraltar several weeks previously and it was substantially delayed in the post. This was, as I have indicated, on any view substantially outside the 28 day time limit specified in Article 29(10) of the 2001 Order. In his appellant's notice the Appellant explained that...
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