Stevenson v General Optical Council

A statutory period expressed as 28 days “beginning with” the day of service includes that day. An appeal received after the resulting deadline is out of time.

Where a professional regulatory appeal engages Article 6 rights, the statutory time limit may be read down only to the minimum extent necessary to preserve the essence of the right of appeal. An extension is available only in exceptional circumstances, supported by evidence, where the appellant has personally done all that could reasonably be done to appeal promptly. A litigant in person’s wish to perfect the appeal, or the failure of a late postal delivery, does not ordinarily satisfy that demanding test.

The appellant, an optometrist, challenged a Fitness to Practise Committee decision extending his conditional registration. The decision was personally served on 18 September 2014. The respondent contended that the statutory 28-day period expired at midnight on 15 October 2014. The appellant’s notice reached the court building on 16 October, although he maintained that it had been posted earlier and that events at the court prevented timely receipt.

The preliminary issues were whether the appeal was in time under section 23G(3) of the Opticians Act 1989 and, if not, whether the court had a discretion to extend time consistently with Article 6 of the Convention.

1. Time limit. Section 23G(3) of the Opticians Act 1989 required an appeal to be brought within 28 days “beginning with” the day on which the decision was served. Applying Zoan v Rouamba [2000] 1 WLR 1509, the day of service was included. Service occurred on 18 September 2014, so the period expired at midnight on 15 October 2014. The notice was therefore late.
2. Extension of time. The court accepted the approach in R (on the application of Adesina) v Nursing and Midwifery Council [2013] EWCA Civ 818 and Nursing and Midwifery Council v Daniels [2015] EWCA Civ 225. Although the statutory regime did not expressly provide for an extension, it had to be read down only so far as required by Article 6. A discretion arose only in exceptional circumstances, where enforcing the limit would impair the very essence of the statutory right of appeal and the appellant had personally done all he could to appeal timeously. Evidence supporting the claimed exceptional circumstances was required.
3. The appellant’s status as a litigant in person, his desire to prepare the notice properly, and his reliance on a postal service did not meet that standard. Posting the notice at a late stage created a risk for which no margin of error had been allowed. The asserted court strike or staffing difficulties were unsupported by sufficient evidence.
4. The appeal was dismissed as out of time. The appellant was ordered to pay the respondent’s costs, subject to detailed assessment if not agreed. The High Court could not grant permission for a further appeal; any application had to be made to the Court of Appeal.

• General Optical Council Fitness to Practise Committee: on 18 September 2014, extended the appellant’s conditional registration for 12 months on varied conditions.
• High Court (Administrative Court): dismissed the statutory appeal as out of time under Opticians Act 1989, s 23G(3), and ordered the appellant to pay the respondent’s costs.