Stevenson v General Optical Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Dight |
| Judgment Date | 30 September 2015 |
| Neutral Citation | [2015] EWHC 3099 (Admin) |
| Date | 30 September 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5207/2014 |
[2015] EWHC 3099 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Dight
(Sitting as a Judge of the High Court)
CO/5207/2014
The Claimant appeared in person
Mr A Dos Santos (instructed by DWF Solicitors) appeared on behalf of the Respondent
(As approved)
The issue that I have to determine in this appeal as a preliminary matter is whether the appeal was brought within time in accordance with the relevant provisions of the Opticians Act 1989 and, if not whether having regard to the European jurisprudence on the point, there are exceptional circumstances which could enable me to exercise my discretion in favour of the appellant to extend time. The appeal on the defendant's case is one day out of time. On the claimant's case he says it is in time.
The background is this. The appellant, who appears in person, is an optometrist practising in Tenby, Wales. He was subject to proceedings before the General Optical Council's Fitness to Practise Committee in respect of various allegations, which resulted in the Committee initially making an order for conditional registration for a period of 15 months from 11 June 2012. A further period of conditional registration was imposed for a further 12 months on 4 October 2013.
This appeal arises in respect of a second review hearing which took place in 2014 and in which the decision, which is the subject matter of the appeal, was handed down on 18 September 2014. In that decision, the Committee concluded that the appellant's fitness to practise remained impaired and extended the period of conditional registration for a further 12 months on varied conditions. By this appeal the appellant challenges that decision.
The decision is appealable pursuant to Section 23 G(1) of the Opticians Act 1989, as amended by the amendment order of 2005. Sub-section 3, provides that:
"A person in respect of whom an appealable decision falling within sub-section 1 has been taken may within the period of 28 days beginning with the day on which the decision was served on him appeal against the decision to the relevant court."
The appellant accepts that a copy of the decision was handed to him on 18 September 2014. It seems to me, having regard to Section 23A(1)(a) that service took place in accordance with those provisions on 18 September by the decision being delivered personally to the appellant.
The evidence appears to show, and I will come to the facts in due course, that the hearing at which the decision was handed down concluded at 3.30 in the afternoon of 18 September 2014. A Royal Mail Track and Trace receipt shows that the appellant's notice was received by the Royal Courts of Justice post room at 8.42 in the morning of 16 October 2014.
The first point in this preliminary determination is whether, as the defendant submits, the notice of appeal was approximately 8 and 3/4 hours out of time. The claimant submits that there were still approximately 7 or so hours yet to run until the afternoon when the period calculated by reference to the number of hours involved expired.
The factual background is that the decision was personally served on 18 September. The appellant wrote to the court by a letter dated 13 October 2014, purporting to enclose his notice of appeal and paying the fee of £240.
What he subsequently says is that the the appellant's notice was in fact posted on 14 October 2014. He says in a letter of 4 December 2014 to the court manager of the Administrative Court's office as follows:
"The appellant's Notice 161 was posted on 14 October 2014 by Guaranteed Next Day Delivery, delivery code AD 795 301 489 GB.
The Royal Mail tracker traced that course, stated that the item applicable to that code could not be delivered on 15 October 2014, and no safe place option was specified by the addressee."
The claimant asserts that there was a strike in the court at that date such that the post could not be received and goes on in the letter, to say:
"I contacted the Royal Courts of Justice by telephone [and gives the telephone number] and spoke to a lady, I did not ask her name, who asked me for the postage reference number.
I gave the lady the postage reference number and she informed me that she had no such record and there had been nothing scanned from the registry. She informed me that she would transfer me, to ask at the post room. My call was transferred back to the call menu by pressing '9' as directed.
I was answered by an operator who transferred me to the post room. A gentlemen answered the call. He said he could not give me much help as he was only helping out as there was a strike on, he did not specify where, and there was a shortage of staff.
"I gave him my name and reference number of the postage as I wanted it back but I queried the Royal Court of Justice's records. He took the details of my name and reference number. I then asked him for his name and he replied that his name was David. I asked him for his surname and realised that it was (inaudible) I then asked him if his Christian name was David, and learned his name was David."
What then happened was that the appellant's notice was wrongly directed to the Court of Appeal Office, who date stamped it as having been received on the following day, 17 October 2014, and allocated a number for it, before it was redirected to the Administrative Court office on 7 November 2014, where it was allocated an Administrative Court Crown office number on that date and date-stamped "received" on 11 November 2014. The claimant served a copy of the notice on the defendant on 10 December 2014.
By the acknowledgment of service and the skeleton argument relied on in opposition to the appeal, the respondent took the point in paragraph 2 that the appellant's notice was out of time and asserted in paragraph 2(b) that the time for appealing expired on 15 October 2014.
That point was further explained in paragraphs 21 and 23 of the skeleton argument, which although stating that the date of expiry for appealing was 15 October, and that the notice was date stamped 17 October, asserted that the notice had in fact been filed on 7 November. Nevertheless, the point that time had expired on 15 October, and that the earliest evidence of receipt of it within the court building was 17 October, was made in that skeleton.
The evidence before me suggests that the notice was received in the court building on 16 October. The first question that therefore arises is when the period for bringing the appeal expired. That depends on the proper construction of section 23(G)3, and the words:
"Within the period of 28 days beginning on the day on which the decision was served on you."
The defendant contends that the proper construction of that provision is that the time began to run on the day on which the decision was served and that the day of service is to be counted as the first of the 28 day with the consequence that time expired at midnight on 15 October, whereas the claimant contends that time runs from the next day and that time therefore expired on the twenty-eighth day after the decision was handed down.
The question exercised me but it is apparent that it is dealt with by authority as appears from the note in the White Book in relation to rule 2.8 under the heading "Time," where in the notes at paragraph 2.8.1 the learned editors say:
"When a step has to be taken within a period described at the beginning with a specified date then that day is included in the period but if the period is described as running from or after the specified day then that day is not included in the hearing."
They cite in support of that proposition the decision of the Court of Appeal in Zoan v Rouamba [2000] 1 WLR 1509 which I have had the opportunity of looking at. In that case (which arose in relation to a claim relating to the Consumer Credit Act 1974) the Court of Appeal was asked to decide whether a judge had been right at first instance in calculating the expiry of a time limit.
The facts are not material to this discussion but in paragraphs 23 and 24 of the decision, Chadwick LJ, giving the judgment of the court held as follows:
"23) Where, under some legislative provision, an act is required to be done within a fixed period of time "beginning with" or "from" a specified day it is a question of construction whether the specified day itself is to be included in, or excluded from, that period. Where the period within which the act is to be done is expressed to be a number of days, months or years from or after a specified day, the courts have held, consistently since Young v Higgon (1840) 6 M&W 49, that the specified day is excluded from the period; that is to say, that the period commences on the day after the specified day. Examples of such an "exclusive" construction are found in The Goldsmith's Company v The West Metropolitan Railway Company [1904] 1 KB 1 ("the powers of the company for the compulsory purchase of lands for the purposes of this Act shall cease after the expiration of three years from the passing of this Act") and in re Lympe Investments Ltd [1972] 1 WLR 523 ("the company has for three weeks thereafter neglected to pay"). In Stewart v Chapman [1951] 2 KB 792 ("a person … shall not be convicted unless … within fourteen days of the commission of the offence a summons for the offence was served on him") Lord Goddard, Chief Justice, observed, at pages 78–9, that it was well established...
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