The Nursing and Midwifery Council v Daniels

A statutory 28-day limit for appealing against a professional disciplinary order is not subject to a general power of extension where neither the governing Order nor its Rules confers one. The court may extend time only in exceptional circumstances where enforcement of the limit would impair the very essence of the statutory right of appeal.

Ordinary financial difficulty, short delay and absence of prejudice do not meet that standard. An appellant who waits until the end of the prescribed period before seeking legal assistance cannot establish exceptional circumstances merely by asserting an inability to pay the court fee, particularly where fee remission may have been available.

The Nursing and Midwifery Council appealed from an order of Nicola Davies J extending a nurse’s time for appealing against a three-year caution imposed by its Conduct and Competence Committee. The nurse filed her appellant’s notice three days after the 28-day period prescribed by article 29(10) of the Nursing and Midwifery Order 2001.

The judge found that the nurse had been unable to raise the £235 court fee in time. She treated that financial difficulty, the short delay and the absence of particular prejudice as exceptional circumstances. The central issue was whether those circumstances empowered the High Court to override the statutory time limit.

1. Appeal allowed unanimously. The judge had no evidential basis for finding that the nurse was unable to raise the court fee before the deadline. The nurse had provided no evidence explaining when she began trying to obtain the money, how she ultimately obtained it, or why she did not act earlier. The proper inference was that she took no steps towards an appeal until the end of the 28-day period.

2. Article 29(10) of the Nursing and Midwifery Order 2001 and the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 confer no general discretion to extend time. Under Adesina and Baines v Nursing and Midwifery Council [2013] EWCA Civ 818, time may be extended only in exceptional circumstances where enforcing the limit would impair the very essence of the statutory right of appeal.

3. Even on the facts found below, that demanding standard was not met. Inability to pay £235, three years of unemployment, a delay of only three days and absence of particular prejudice might have justified relief under a general discretionary regime. They did not amount to circumstances which impaired the essence of the right of appeal. The case was materially similar to the unsuccessful appeal by Ms Baines in Adesina.

4. Authorities concerning procedural regimes that expressly permit extensions of time were not a guide to article 29(10). The absence of any corresponding power in the governing Order and Rules was a critical distinction.

5. The court expressed concern about the three years taken to conduct the disciplinary proceedings and the eight-day hearing of comparatively straightforward allegations. Professional disciplinary bodies must act efficiently and expeditiously, having regard to the legitimate interests of the professional, complainants and the public. That concern could not create a power to extend the statutory deadline.

The order extending time was set aside and the Nursing and Midwifery Council’s appeal was allowed.

1. Court of Appeal (Civil Division): Allowed the Nursing and Midwifery Council’s appeal unanimously and held that the High Court lacked power to extend the statutory appeal period on the circumstances found.

2. High Court, Administrative Court: Nicola Davies J extended the nurse’s time for appealing to 11 March 2014, finding exceptional circumstances based on her financial position, the short delay and the absence of particular prejudice.

3. Conduct and Competence Committee: Found most disciplinary charges proved, held that the nurse’s fitness to practise was impaired and imposed a three-year caution under article 29(5) of the Nursing and Midwifery Order 2001.