Robert MacCallum v Secretary of State for Education

A statutory time limit for appealing a professional disciplinary decision may be compatible with Article 6 ECHR where it pursues finality and certainty and is proportionate. However, the court must be able to extend time in exceptional circumstances where strict compliance would impair the very essence of the right of appeal. The discretion is limited to the minimum extent necessary for Convention compliance. A litigant’s failure personally to do everything possible to appeal in time is not an independent jurisdictional requirement, although it may be relevant to whether exceptional circumstances exist. The ordinary rule that a litigant answers for the failings of legal advisers does not apply universally where doing so would deny effective access to an appeal.

The appellant sought an extension of time to appeal against a prohibition order imposed under the Education Act 2002 and the Teachers’ Disciplinary (England) Regulations 2012. The appeal had to be brought within 28 days of service. His solicitors attempted to file the appeal shortly before the deadline, but used incorrect procedures and submitted defective documents. A valid appeal and extension application were filed nearly one month late.

The appellant maintained that he had done everything required of him and that the delay was entirely attributable to his solicitors. The central issue was whether the court had power to extend the statutory time limit and, if so, whether the circumstances justified doing so consistently with Article 6 ECHR.

1. Power to extend time. Paragraph 5 of Schedule 11A to the Education Act 2002 and regulation 17 of the Teachers’ Disciplinary (England) Regulations 2012 imposed a 28-day appeal period without expressly providing for an extension. Applying section 3 of the Human Rights Act 1998, the court read the provisions as subject to a power, or duty, to extend time in exceptional circumstances where refusal would impair the very essence of the right of appeal under Article 6 ECHR.
2. The 28-day period itself pursued the legitimate aims of finality and certainty and was proportionate. The absence of any power to extend time in exceptional cases could, however, produce an unjustified denial of access to the court.
3. The governing question was whether exceptional circumstances existed. The appellant’s having personally done all he could to appeal in time was not an independent jurisdictional requirement. It was an illustration of the type of circumstance in which the jurisdiction might arise, and any assessment of the appellant’s conduct had to be reasonable.
4. The ordinary surrogacy principle generally attributed a solicitor’s procedural default to the litigant. It was not universal. Applying Pomiechowski, Adesina and Stuewe, strict application of that principle would breach Article 6 on these facts. The appellant knew the deadline, co-operated with his solicitors and regularly checked progress. The delay resulted entirely from his solicitors’ errors, and damages for loss of a chance would not adequately compensate him for losing the opportunity to pursue his profession.
5. The application was granted. Time for filing the appeal was extended to 16 January 2023.

Not stated in the judgment.