R (Adesina and Baines) v Nursing and Midwifery Council

The Court of Appeal held that the 28 day time limit in Article 29(10) of the Nursing and Midwifery Order 2001 is not absolutely inflexible; but any discretion to permit an out-of-time appeal must be confined to very narrow and exceptional circumstances. Article 6 of the European Convention on Human Rights and section 3 of the Human Rights Act 1998 require a "reading down" so that a discretion arises only where, in the words of Lord Mance in Pomiechowski, the appellant has "personally done all he can to bring [the appeal] timeously" and only in exceptional cases where strict application of the time limit would deprive the appellant of the essence of the right of appeal.

Applying that test, the court found neither appellant met the required standard: both had actual or imputed knowledge of the disciplinary decisions and could and should have brought appeals within the 28 day period. Their appeals were therefore dismissed.

This appeal concerned whether the 28 day time limit for appeals under Article 29(10) of the Nursing and Midwifery Order 2001 admits of exception or extension so as to comply with Article 6 of the European Convention on Human Rights. The appellants had been struck out in the Administrative Court by Hickinbottom J ([2012] EWHC 2615 (Admin)) on the basis that the 28 day limit was absolute. Permission to appeal to the Court of Appeal was granted on a single ground.

The central legal issues were:

• whether an apparently non-extendable statutory time limit for an appeal (Article 29(10)) can be read down under section 3 of the Human Rights Act 1998 to secure compatibility with Article 6 ECHR;
• if so, the scope of any discretion to permit an out-of-time appeal and the test to be applied.

The Court reviewed Strasbourg authority (notably Tolstoy Miloslavsky and Perez de Rada Cavanilles) and the Supreme Court decision in Pomiechowski v Poland. Pomiechowski held that apparently absolute time limits may, in exceptional circumstances, have to yield to the Article 6 right of access to a tribunal and that courts must be able to permit an out-of-time appeal where strict application would deny that access. The Court of Appeal adopted Lord Mance's approach from Pomiechowski and held that Article 29(10) must be read down only to the minimal extent necessary to secure Article 6 compliance: a discretion arises only in exceptional circumstances and where the appellant has personally done all he or she can to bring the appeal timeously.

On the facts, both appellants failed to satisfy the threshold for exceptionality. In each case the adverse decisions had been announced to the appellant and letters were sent in accordance with the Council's usual practice; there was no evidence of blameless ignorance or of circumstances preventing the appellant from bringing an appeal within 28 days. The court therefore dismissed both appeals.

Appeal dismissed. The 28 day time limit in Article 29(10) is not absolutely inflexible but must be read down, to the minimum necessary degree, to secure Article 6 compatibility. A discretion to permit an out-of-time appeal arises only in exceptional circumstances and where the appellant has personally done all they could to bring the appeal timeously; neither appellant met that test.

Appeal from the High Court (Administrative Court, Hickinbottom J) [2012] EWHC 2615 (Admin). Permission to appeal to the Court of Appeal granted by McCombe LJ.