Adesina & Ors, R (on the application of) v The Nursing and Midwifery Council

An apparently absolute statutory time limit for an appeal must be read, so far as necessary under article 6, to permit an extension where its inflexible operation would impair the very essence of access to the statutory appeal. The power is exceptional. It arises only where the appellant has personally done all that he or she reasonably can to bring the appeal in time.

The absence of an express extension power and the importance of finality require rigorous observance of the stated period in ordinary cases. A short or marginal delay, without exceptional difficulty or blameless inability to act, does not engage the limited discretion.

Two nurses appealed against decisions of the Nursing and Midwifery Council after the 28-day period in article 29(10) of the Nursing and Midwifery Order 2001. The Administrative Court, Hickinbottom J, held that the period was absolute and struck out both appeals: [2012] EWHC 2615 (Admin).

The appeals raised whether the Supreme Court’s decision in Pomiechowski v Poland required article 29(10) to be read compatibly with article 6 so as to allow an extension in limited circumstances. Each appellant knew promptly of the adverse disciplinary decision but lodged the appeal after expiry of the period.

1. Appeals dismissed. Article 29(10) could not remain wholly inflexible. Its apparently absolute 28-day limit had to be read down, to the minimum necessary extent, to secure compatibility with article 6 of the Convention and section 3 of the Human Rights Act 1998.

2. Following Pomiechowski v Poland [2012] 1 WLR 1604, the High Court has a discretion to permit an out-of-time appeal only where the inflexible limit would otherwise impair the essence of the statutory right of appeal. The discretion arises only in exceptional circumstances and only where the appellant personally has done all that he or she can to appeal in time.

3. The distinction between extradition and professional discipline did not preserve the earlier absolute approach. Removal from the nursing and midwifery register is a serious detriment. In exceptional cases, such as serious illness immediately after notification or blameless non-receipt of a decision sent by post, an absolute limit could impair access to the statutory appeal.

4. That limited power was not a general discretion to extend time. Parliament’s omission of an express extension power, and the objectives of finality and legal certainty, required the exception to be applied with great strictness.

5. Neither appellant met the test. Both had immediate knowledge that an adverse decision had been made. Mrs Adesina’s delay was neither exceptional nor blameless. Ms Baines’s appeal was only two days late, but the delay and the time spent obtaining specialist representation and legal aid disclosed no exceptional difficulty. No remittal was warranted.

• Court of Appeal (Civil Division): dismissed the appeals and held that article 29(10) of the Nursing and Midwifery Order 2001 permits only an exceptional, article 6-compatible extension.
• Administrative Court: Hickinbottom J held the appellants time-barred and struck out their appeals, on the then-conceded basis that no extension was possible: [2012] EWHC 2615 (Admin).