The court was asked as to the effect of a statutory provision stating that an appeal to the High Court from the Nursing and Midwifery Council ‘must be brought before the end’ of a specified period of 28 days. There was no express provision permitting the court to extend time. The issue was whether the 28-day time limit was an absolute one, admitting of no exceptions, or whether it might be tempered and, if so, on what basis.
Held: Maurice Kay LJ said that the argument was: ‘it is submitted, Pomiechowski’s case now requires us to ‘read down’ [the statutory provision] so as to interpret it in a manner compatible with article 6 of the Convention, thereby leaving some wriggle-room, notwithstanding the apparently absolute nature of the time limit.’
. . And:
‘The context, exclusion from a profession, is still one of great importance to an appellant. There is good reason for there to be time limits with a high degree of strictness. However, one only has to consider hypothetical cases to appreciate that, without some margin for discretion, circumstances may cause absolute time limits to impair ‘the very essence’ of the right of appeal conferred by statute. Take, for example, a case in which a person, having received a decision removing him or her from the register, immediately succumbs to serious illness and remains in intensive care; or a case in which notice of the disciplinary decision has been sent by post but never arrives and time begins to run by reason of deemed service on the day after it was sent . . In such cases, the nurse or midwife in question might remain in blameless ignorance of the fact that time was running for the whole of the 28-day period. It seems to me that to take the absolute approach in such circumstances would be to allow the time limit to impair the very essence of the statutory right of appeal.’
He continued: ‘The real difficulty is where to draw the line. Mr Pascall, on behalf of the claimants, does not contend for a general discretion to extend time. Parliament is used to providing such discretions, often circumscribed by conditions . . The omission to do so on this occasion was no doubt deliberate. If article 6 and section 3 of the 1998 Act require [the statutory provision] to be read down, it must be to the minimum extent necessary to secure compliance with Convention. In my judgment, this requires adoption of the same approach as that of Lord Mance JSC in Pomiechowski’s case [2012] 1 WLR 1604, para 39. A discretion must only arise ‘in exceptional circumstances’ and where the appellant ‘personally has done all he can to bring [the appeal] timeously’. I do not believe that the discretion would arise save in a very small number of cases. Courts are experienced in exercising discretion on a basis of exceptionality.’
Maurice Kay LJ
[2013] EWCA Civ 818
Bailii
European Convention on Human Rights 6
England and Wales
Citing:
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Cited by:
Distinguished – In re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .
Lists of cited by and citing cases may be incomplete.
Health Professions, Human Rights
Updated: 15 November 2021; Ref: scu.512189