Lars Stuewe v Health and Care Professions Council

The Court of Appeal dismissed an appeal against a Deputy High Court Judge's refusal to extend the 28 day statutory time limit in Article 29(10) of the Health Professions Order 2001 for an appeal under Articles 29 and 38 HPO. The court reaffirmed the post-Pomiechowski/Adesina approach that where a statute prescribes a short appeal period the domestic court must, in exceptional circumstances and to the minimum extent necessary, have the power (or duty under section 3 of the Human Rights Act 1998) to allow an out-of-time appeal so as to protect the "very essence" of the right of access to a court under Article 6 ECHR.

The court held that the threshold for such exceptional circumstances is high. On the facts it concluded there was no impairment of the essence of the Appellant's right: the Appellant had notice of the decision, had opportunities (including clear advice from the Administrative Court Office) to file whilst resident abroad by applying to be served outside the jurisdiction or by providing a UK address, and the HCPC's later emails could not create jurisdiction where none existed. The Judge's conclusion that the circumstances were not exceptional was therefore correct.

Background and relief sought

The appellant, a registered paramedic, appealed a Conduct and Competence Committee (CCC) decision finding impairment by reason of misconduct and imposing an 18 month conditions of practice order. He sought to bring an out-of-time appeal under Articles 29 and 38 of the Health Professions Order 2001 and permission to be served in Gibraltar, having filed an appeal notice after the 28 day statutory time limit. The HCPC applied to strike out the appeal notice.

Procedural history

• The CCC decision was notified on 7 January 2021 and emailed on 8 January 2021. Time to appeal expired on 5 February 2021.
• The Appellant attempted multiple filings but repeatedly used a Gibraltar address and was advised by the Administrative Court Office that a UK address for service or an application for service out of the jurisdiction was required.
• A notice of appeal was filed on 7 April 2021 with applications for an extension of time and for service in Gibraltar. The HCPC applied to strike out. The Deputy High Court Judge refused to extend time ([2021] EWHC 3362 (Admin)). The Appellant appealed to the Court of Appeal.

Issues before the Court

1. Whether Gibraltar should be treated as part of the United Kingdom for the purpose of CPR Part 6.23 such that an address in Gibraltar satisfied the rule.
2. Whether the Deputy High Court Judge erred in applying the Adesina/Pomiechowski approach and in concluding that the circumstances were not "exceptional" so as to permit an extension of the statutory 28 day appeal period under Article 29(10) HPO.

Court’s reasoning and disposition

The court held Gibraltar is not part of the United Kingdom for the purposes of CPR Part 6.23; the judgment relied on definitions in the Civil Procedure rules, the Civil Practice Direction and domestic statutes such as the British Nationality Act 1981 and the Interpretation Act 1978. The court restated the correct approach: post-Tolstoy and Pomiechowski, Adesina requires a narrow jurisdiction to permit an out-of-time statutory appeal only in exceptional circumstances where denial would impair the very essence of the right of access under Article 6, and any reading-down must be limited to the minimum necessary to secure Convention compliance.

Applying that test to the facts, the court concluded exceptional circumstances did not exist. The Appellant had been informed both of the right to appeal and of the requirement for a UK address for service or a court application to permit service out of the jurisdiction; he had time and opportunities to act before the 28 day period expired, and subsequent correspondence from the HCPC could not create a jurisdiction where none existed before expiry. A lengthy post-deadline filing (to 7 April) was not justified by the facts. The appeal was dismissed.

Context: the court emphasised the rarity of the remedy and the high threshold for finding exceptional circumstances; each case turns on its facts and any extension must be narrowly tailored.

Appeal dismissed. The Court of Appeal upheld the Deputy High Court Judge’s conclusion that there were no exceptional circumstances, within the post-Pomiechowski/Adesina test, that would justify reading down Article 29(10) HPO to permit an out-of-time appeal. Gibraltar is not part of the United Kingdom for CPR 6.23 purposes, the Appellant had notice and opportunity to apply for service out of the jurisdiction or to provide a UK address, and post-deadline correspondence could not create jurisdiction that did not exist. Any extension must be the minimum necessary and the high threshold was not met here.

Appeal from the Administrative Court (Deputy High Court Judge Mathew Gullick KC) where an application to strike out the out-of-time appeal was granted and an extension of time refused: [2021] EWHC 3362 (Admin). Appeal to the Court of Appeal dismissed: [2022] EWCA Civ 1605.