Lars Stuewe v Health and Care Professions Council

A statutory time limit for an appeal cannot ordinarily be extended where the statute contains no extension power. However, the court must read the provision down where, in exceptional circumstances, enforcing the limit would impair the very essence of the Article 6 right of access to the statutory appeal.

The question is not subject to an additional jurisdictional requirement that the appellant personally did all that was possible to appeal in time. That consideration may assist the exceptional-circumstances assessment, assessed reasonably. Any extension must go no further than necessary to secure Convention compliance.

A litigant who knew of the decision and had a meaningful opportunity to file a valid appeal, including by applying for permission to use an overseas address for service, will not ordinarily meet that high threshold.

The appellant, a registered paramedic, was made subject to an 18-month conditions of practice order by the Health and Care Professions Council's Conduct and Competence Committee following findings of misconduct and impairment. He sought to appeal under the Health Professions Order 2001, but did not file a valid appeal notice until more than two months after the 28-day statutory limit had expired.

The appellant lived in Gibraltar and had repeatedly attempted to file using his Gibraltar address. The Administrative Court required an address for service in the United Kingdom, or an application permitting service outside the jurisdiction. The High Court declined to extend time, holding that the exceptional-circumstances jurisdiction did not arise: [2021] EWHC 3362 (Admin).

The appeal raised whether Gibraltar was within the United Kingdom for CPR service purposes and whether the judge had adopted an unduly strict approach to the exceptional-circumstances test for a late statutory appeal.

1. The appeal was dismissed. Lady Justice Carr gave the reasons, with which Lord Justice Baker and Lord Justice Moylan agreed.
2. Article 29(10) of the Health Professions Order 2001 imposed a 28-day limit and conferred no general power to extend it. In the light of Article 6(1) and section 3 of the Human Rights Act 1998, it must nevertheless be read subject to a narrow qualification. Time may be extended only in exceptional circumstances where refusal would impair the very essence of the statutory right of appeal. The extension must be confined to the minimum necessary to secure Convention compliance. This applied the approach in Pomiechowski v Poland [2012] UKSC 20 and R (Adesina and Baines) v NMC [2013] EWCA Civ 818.
3. The statement that an appellant must personally have done all that they could to bring the appeal in time is not an additional jurisdictional condition. It identifies the type of circumstances in which the exceptional threshold may be met. Its relevance must be assessed by reference to reasonableness; the central and only jurisdictional question remains whether exceptional circumstances exist.
4. Gibraltar was not part of the United Kingdom for CPR rule 6.23. A litigant without a United Kingdom address for service could file the appeal notice with an application for permission to use an overseas address. The appellant therefore had a meaningful opportunity to file a valid appeal within time.
5. The appellant knew of the decision and the available procedural options before the deadline. Difficulties with funding, representation, post and his belief that consent was required did not make this a case of blameless ignorance or otherwise impair the essence of his appeal right. Further, even if the jurisdiction had arisen, an extension until 7 April 2021 would not plainly have been the minimum necessary extension.

• Court of Appeal (Civil Division) — dismissed the appeal and upheld the refusal to extend the statutory time limit: [2022] EWCA Civ 1605.
• High Court of Justice, King's Bench Division, Administrative Court — declined to extend time for the statutory appeal, holding that the exceptional-circumstances jurisdiction did not arise: [2021] EWHC 3362 (Admin).