GYORGY RAKOCZY v GENERAL MEDICAL COUNCIL

An extension of a statutory appeal time limit is available only so far as required to secure compatibility with Article 6. The court must ask whether enforcing the limit would impair the essence of access to the appeal, or lack a legitimate aim or proportionality. That inquiry applies both to the statutory rule and its application. The appellate authorities provide a narrow, exceptional framework, not a general discretion to extend time. Clear requirements to file the appeal and a fee-remission application within 28 days, together with clear guidance, may justify refusal even where the appellant is unrepresented, the court could have alerted them earlier, the appeal is important and the respondent suffers no prejudice. The question is whether refusal is Article 6-incompatible in the individual circumstances.

The appellant sought under CPR 3.3(5) to set aside an own-motion order made by HHJ Pearce on 20 December 2021 striking out his statutory appeal. The appeal arose under section 40 of the Medical Act 1983 from a Medical Practitioners Tribunal decision suspending his registration. He had filed an appeal notice within 28 days, but had not filed the required fee-remission application until 6 June 2021, 11 days after the statutory deadline. He wished to challenge English-language testing as unlawful age discrimination, but the merits were not considered. The central issues were whether the Article 6 principles governing access to an appeal, or the narrower formulation derived from the appellate authorities, required an extension of time.

1. Disposition and procedure. The applications to set aside the strike-out order and to extend time were refused. The application was a rehearing under CPR 3.3(5). The court gave due weight to the original judge’s assessment, but considered the issues afresh because fuller materials, authorities and submissions were available.
2. Governing principles. Article 6 permits procedural limits on access to an appeal only where the limitation does not impair the very essence of that right, pursues a legitimate aim and bears a reasonable relationship of proportionality to that aim. These requirements govern both the statutory provision and its application. The approach derived from Pomiechowski v Poland [2012] UKSC 20 [2012] 1 WLR 1604 was applicable to regulatory and disciplinary appeals through Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818 [2013] 1 WLR 3156. The court treated the references to exceptional circumstances and the appellant’s personal efforts as practical guidance, not a legal litmus test. There was no general discretion to extend time in all circumstances.
3. Application. Under Schedule 2 paragraph 15 of the Civil Proceedings Fees Order 2008, the fee-remission application had to be made when the fee was otherwise payable. The appellant filed Form N161 on 21 May 2021, but did not file Form EX160 or its online equivalent by 26 May. His later request for a fee waiver in the appeal form did not provide the required substantive information and was not made by the prescribed mechanism. The requirements and available guidance were clear. The court’s delay in identifying the defect, the appellant’s unrepresented status, the importance of the intended appeal, the prospective detriment and absence of prejudice did not transfer primary responsibility from him or make the requirement excessively formalistic. The Strasbourg authorities, including Walchli v France App. No. 35787/03, Evaggelou v Greece App. No. 44078/07, Frida v Ukraine App. 24003/07 and Shuli v Greece App. No. 71891/10, were context-specific and did not require extension on these facts.
4. Conclusion and costs. Enforcing the 28-day deadline and the fee-remission requirement did not impair the essence of the statutory appeal, lacked no legitimate aim, and was proportionate. The court observed obiter that where refusal would breach Article 6, the court would be under a duty, rather than merely possess a discretion, to extend time. The appellant was ordered to pay the respondent’s costs, summarily assessed at £3,000 including VAT.

High Court (Administrative Court): HHJ Pearce made an own-motion order on 20 December 2021 striking out the appeal. On rehearing under CPR 3.3(5), Fordham J refused to set aside that order and refused an extension of time.