Mitchell v The Nursing and Midwifery Council

A statutory appeal must be brought within the period prescribed by the relevant enactment where that enactment contains a special time limit. The general power in CPR rule 3.1(2)(a) to extend time for compliance with a rule, Practice Direction or court order does not extend a statutory time limit. CPR Part 52 is subject to enactments containing special provisions for particular categories of appeal. An incorrect procedural route does not itself convert a judicial review claim into a statutory appeal. Even if an extension power existed, it would not ordinarily be exercised to permit repeated consideration of a claim which had already been found to disclose no arguable merits.

The appellant challenged the Nursing and Midwifery Council’s decision, communicated on 15 December 2006, that she should be struck off the Register of Nurses. Her solicitors issued judicial review proceedings on 16 January 2007, although the correct route was a statutory appeal under CPR Part 52. Permission for judicial review was refused by Ouseley J and, on renewal, by Stanley Burnton J on 30 January 2008: [2008] EWHC 2705 (Admin). The appellant later filed an appellant’s notice seeking an extension of time. The Council argued, relying on Mucelli v Government of Albania [2009] 1 WLR 276, that the statutory time limit could not be extended. The central issue was whether the court had power to extend the 28-day period.

1. The appeal was dismissed. Rule 29(10) of the Nursing and Midwifery Order 2001 required an appeal against a striking-off order to be brought within 28 days beginning with service of the decision.

2. Following Mucelli v Government of Albania [2009] 1 WLR 276, the court had no power to extend that statutory period. CPR rule 3.1(2)(a) applied to time limits imposed by a rule, Practice Direction or court order. The limit in rule 29(10) was none of those. CPR rule 52.1(4) also made Part 52 subject to an enactment containing special provisions for a particular category of appeal.

3. The Inner House decision in Hume [2007] CSIH 53, which had treated the equivalent provision as not depriving the court of jurisdiction to extend time, had plainly been displaced by Mucelli.

4. Even if a discretion to extend time had existed, it would not have been exercised. Two experienced judges had already considered the merits and concluded that there was no arguable basis for challenging the Council’s decision. Allowing a third hearing on the merits would have been wrong.

5. The respondent was awarded costs summarily assessed at £1,500. The appellant’s means did not determine liability or the amount, although they could be relevant if enforcement was pursued.

• High Court (Administrative Court): The present appeal was dismissed because the statutory time limit could not be extended. Costs were summarily assessed at £1,500.
• High Court (Administrative Court): Ouseley J refused permission for judicial review on the papers. Stanley Burnton J refused renewed permission on 30 January 2008 and ordered costs: [2008] EWHC 2705 (Admin).
• Conduct and Competence Committee of the Nursing and Midwifery Council: The appellant was struck off the Register of Nurses by a decision communicated on 15 December 2006.