Victoria Adesina v Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Patten,Lord Justice Floyd |
| Judgment Date | 09 July 2013 |
| Neutral Citation | [2013] EWCA Civ 818 |
| Docket Number | Case No: C1/2012/2086 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 July 2013 |
[2013] EWCA Civ 818
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Patten
and
Lord Justice Floyd
Case No: C1/2012/2086
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT (HICKINBOTTOM J)
REF: CO2588/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Matthew Pascall (instructed by Lester Morrill inc. Davies Gore Lomax Solicitors) for the Appellants
Mr Timothy Otty QC (instructed by The Nursing & Midwifery Council) for the Respondent
These two appeals in otherwise unconnected cases raise the same legal issue concerning the time limit within which a nurse or midwife must bring an appeal against a disciplinary decision of the Nursing and Midwifery Council (the Council) to the High Court. The right to appeal is provided by Article 29(9) of the Nursing and Midwifery Order 2001 (the Order). Article 29(10) then states:
"Any such appeal must be brought before the end of the period of 28 days beginning with the date on which notice of the order or decision appealed against is served on the person concerned."
There is no express provision permitting the Court to extend time on a discretionary or any other basis. The issue on this appeal is whether the 28 day time limit is an absolute one, admitting of no exceptions, or whether it may be tempered and, if so, on what basis.
In the Administrative Court, Hickinbottom J held that both appellants were time-barred: [2012] EWHC 2615 (Admin). However, the case below was conducted on a different basis. It was conceded that the 28 day time limit is absolute. The concession was based on Mitchell v Nursing and Midwifery Council [2009] EWHC 1045 (Admin) and the decision of this Court on a cognate statutory provision in Reddy v General Medical Council [2012] EWCA Civ 310. In the light of these authorities, the disputes before Hickinbottom J were as to when the 28 day periods began to run, as a matter of law and case-sensitive fact. The appellants submissions on those issues were rejected and the judge concluded (at paragraph 26) that "no extension of time is possible. In those circumstances, I have no option but to strike out the appeals".
Permission to appeal to this Court was granted by McCombe LJ on a single ground. After judgment in the Administrative Court, the Supreme Court decided Pomiechowski v Poland [2012] 1 WLR 1604 in which it held that apparently absolute time limits may, in some circumstances, have to yield to the requirements of Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) following its incorporation by the Human Rights Act 1998. The case for the appellants is put with considerable candour. It is that, absent the ECHR point, this Court would be bound to accept the absolute approach of Reddy. However, it is submitted, Pomiechowski now requires us to "read down" Article 29(10) of the Order so as to interpret it in a manner compatible with Article 6 of the ECHR, thereby leaving some wriggle-room, notwithstanding the apparently absolute nature of the time limit.
The Strasbourg authorities
Pomiechowski was informed by a line of Strasbourg jurisprudence. The starting point is Article 6.1 of the ECHR:
"In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
Although, on its face, Article 6.1 appears to be concerned with the trial stage rather than with appeals, and although it does not refer to time limits on limitation periods, it was established from an early stage that (1) where a right of appeal is provided, it must be compliant with Article 6 and (2) the rights enshrined in Article 6 may be subject to limitations but such limitations must not restrict or reduce the access left to the individual in such a way or to such an extent that "the very essence of the right is impaired": Tolstoy Miloslavsky v United Kingdom [1995] ECHR 18139/91, paragraph 59. Moreover, a restriction (of which a time limit is an example) must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: ibid. Tolstoy Miloslavsky was concerned not with time limits but with the inhibiting effect of an order for security for costs. However, its reasoning soon came to be applied in cases concerning time limits.
In Perez de Rada Cavanilles v Spain (2000) 29 EHRR 109 the time limit in question was extremely short (three days). The Court, having expounded the principles established in Tolstoy Miloslavsky, stated (at paragraph 45):
"The rules on the time limits for appeals are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty. Those concerned must expect those rules to be applied. However, the rules in question, or the application of them, should not prevent litigants from making sue of an available remedy."
The three day time limit had been exceeded by two days. The Court considered that
"the particularly strict application of a procedural rule by the domestic courts deprived the applicant of the right of access to a court." (Paragraph 49)
Although that conclusion was expressed to relate to "the application of a procedural rule", it is apparent from the earlier reasoning in paragraph 45 that the principle applies to both "the rules in question or the application of them".
Pomiechowski
Prior to Pomiechowski, the leading domestic authority on time limits was another extradition case, Mucelli v Government of Albania [2009] 1 WLR 276, in which the House of Lords, without reference to Strasbourg jurisprudence, applied the absolute approach to a statutory time limit – "must be filed and served before the expiry of 14 days" — in relation to which there was no express power to extend time. Mucelli spawned Mitchell v Nursing and Midwifery Council and Reddy v General Medical Council ( supra). In Reddy, counsel had attempted to rely on Article 6 but, unsurprisingly in the light of Mucelli, he was given short shrift (see paragraphs 28 and 29).
Before and after Mucelli, the absolute approach to the time limits in the Extradition Act 2003 attracted judicial criticism: see Review of the United Kingdom's Extradition Arrangements by Sir Scott Baker, 30 September 2011. This, then, was the background against which the Supreme Court came to reconsider the absolute approach in Pomiechowski.
The leading judgment is that of Lord Mance, with whose reasoning all the other members of the Court agreed. He said (at paragraph 37):
"I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be 'a reasonable relationship of proportionality between the...
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