Victoria Adesina v Nursing and Midwifery Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 16 July 2012 |
| Neutral Citation | [2012] EWHC 2615 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 July 2012 |
| Docket Number | Case No: CO/2588/2012 |
[2012] EWHC 2615 (Admin)
IN THE HIGH COURT OF JUSTICE
]QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN LEEDS
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
The Honourable Mr Justice Hickinbottom
Case No: CO/2588/2012
Mr Pascall appeared on behalf of the Appellants
Mr Garsed appeared on behalf of the Respondent
Introduction
These applications require the court again to consider the interpretation of provisions relating to time limits in legal proceedings, on this occasion the time for bringing an appeal in the High Court against a decision of the Defendant Council ("the Council").
By Article 29(9) of the Nursing and Midwifery Order 2001 (SI 2001 No 253), where a relevant committee of the Council makes an order striking off or otherwise disciplining a nurse or midwife, that person may appeal to the High Court. Article 29(10) provides:
"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."
It is well settled that that time limit cannot be extended ( Mitchell v Nursing & Midwifery Council [2009] EWHC 1045 (Admin), recently confirmed in Reddy v General Medical Council [2012] EWCA Civ 310). These applications concern from when that period of 28 days begins to run.
In relation to the procedure of the Council and its committees, the relevant procedural rules are the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 ( SI 2004 No 1761) ("the 2004 Rules"). Rule 13(1) provides that, as soon as practicable after the conclusion of the hearing, the relevant committee shall give notice of its decision to the nurse the subject of the charge. By Rule 34(4):
"Where any notice is sent under these rules, it shall be treated as having been served on the day after it was sent by delivery service or, where the notice has been left at an address, on the day it was left at that address."
Because of the reference to "a postal service or other delivery service", it is clear from Article 34(1) that "delivery service" includes a postal service and "sent by delivery service" includes putting into the post.
The First Appellant, Janet Baines, was the subject of a hearing before the Council's Conduct and Competence Committee on 14 February 2012 when, on the basis of various findings of the Committee, she was ordered to be struck off the Register of Nurses and Midwives. She received notice of that decision by letter dated 17 February 2012. It is not in dispute that that letter was posted by the Council by first class post on that day, Friday 17 February, and received by her in the course of the post on Monday 20 February 2012. She wished to appeal, and lodged an Appellant's Notice with the High Court on Monday 19 March 2012.
The Second Appellant, Victoria Adesina, was the subject of a hearing before the same committee on 27 January 2012, when her application for restoration and rescission of a Conditions of Practice Order made against her on 25 October 2010 was refused. That decision had the effect of removing her from the Register.
There is a factual dispute as to when notice of that decision was served upon her. It is the Council's case, as set out in the affidavit of Russell Smith of the Council's Fitness to Practice Directorate dated 19 April and his statement dated 24 May 2012, that a notice dated 30 January 2012 was put by Mr Smith into the first class post, and not by recorded delivery, correctly addressed to the Second Appellant, that day, 30 January. However, Mrs Adesina says (in her statement dated 16 May 2012) that she received the decision letter on 10 February, by recorded delivery, in an envelope postmarked the previous day. She has exhibited that envelope; but, unfortunately, the contents were stolen from her on 17 February, and she asked for them to be re-sent, which the Council did by post on 22 February. The Second Appellant's Notice of Appeal was lodged on 9 March 2012.
The Council now applies to have both appeals struck out, contending as a preliminary point that each appeal was lodged out of time. As I have indicated, that would be fatal to the appeal, because time for lodging an Appellant's Notice in this court cannot be extended.
The First Appellant Case
With regard to the First Appellant's application, that turns on a question of law, of some importance and general application.
The Council submit that, the decision notice having been posted on Friday 17 February, it was, by virtue of Rule 34(4), deemed served the following day, Saturday 18 February. The time for lodging an appeal expired 28 days later, i.e. Saturday 17 March. As the appeal was lodged on Monday 19 March, it was out of time. The Appellant contends that the reference in Rule 34(4) to "the day after it was sent by delivery service" is a reference to the next working or business day, so the notice was deemed served on Monday 20 February, and the time for appealing expired on the 19 March 2012. The appeal was lodged that day, and hence was in time.
Mr Pascall, for the Appellant, relied upon two authorities. First he relied upon Rust-Andrews v First-tier Tribunal (Social Entitlement Chamber) [2011] EWCA Civ 1548, where Carnwath LJ (as he then was) said, at [42]:
"It seems to me that as a matter of fairness and principle, one would expect an appeal time limit to run from the date when the appellant knows or can be taken to know of the decision he wishes to appeal and the reasons for it. It therefore requires clear wording to provide that an appeal time limit runs from a time earlier than when the appellant received or can be taken to have received the decision in question and the reasons for it…".
In that case the court was concerned with CPR Part 52 Rules 17.3 to 17.4A, which appear to give time limits for an appeal based upon three different sets of criteria including, by Rule 17.4A(1), by reference to when the decision being appealed was "given". Carnwath LJ considered that "given" in that context is insufficiently clear to mean that the appeal time limit runs from a time earlier than when the appellant received or could be taken to have received the decision in question: he thought that a decision could not be "given"...
To continue reading
Request your trial
-
Victoria Adesina v Nursing and Midwifery Council
...may be tempered and, if so, on what basis. 2 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 w......
-
Kehinde Bimpe Adegbulugbe v Nursing and Midwifery Council (Defendant/Applicant) A & C Solicitors (A Firm)and Another
...dated 23 September 2013 which quoted the salient passage from the judgment of Maurice Kay LJ in the leading case of R(Adesina and Baines) v Nursing and Midwifery Council [2013] EWCA Civ 818. That quotation was repeated in Miss Stephenson's skeleton argument, which was served on the Solicito......
-
Leeks v Health and Care Professions Council
...before. 21 As counsel for the Respondent points out there is plain authority in the case of Baines v Nursing and Midwifery Council [2012] EWHC 2615 (Admin) concerning a similar statutory scheme to the one that the appellant is subject to, the statutory deadline of 28 days cannot simply be e......
-
R (Adesina) v Nursing and Midwifery Council R (Baines ) v Same
...the appeals of Victoria Adesina and Janet Baines against a decision of Mr Justice Hickinbottom in the Administrative CourtUNK ([2012] EWHC 2615 (Admin)) to strike out their appeals, made under article 29(10) of the Nursing and Midwifery Order 2001 (SI 2002 No 253), against decision made by ......