Court of Appeal gives guidance on 'exceptional circumstances' to disapply statutory time limits in disciplinary appeals
The Court of Appeal has allowed an appeal by the Nursing and Midwifery Council ('NMC') against an order of the High Court extending time for a nurse to appeal against a decision of the NMC's Conduct and Competence Committee. The Court of Appeal held that the High Court had wrongly concluded that an inability to pay a court fee amounted to exceptional circumstances in the present case and that the threshold for finding exceptional circumstances is a high one.
The registrant, DD, was a nurse employed by the Royal Free Hampstead NHS Trust. Following an incident in October 2010 (in which she allegedly administered morphine to a patient without another nurse present, in inadequate lighting and in circumstances where she required the patient to undress without the curtains fully closed) the Trust imposed conditions on DD's practise. She could only undertake essential care duties under the supervision of a nurse who was band 6 or above and duties as directed by the ward senior sister and matron. DD worked several shifts in breach of these instructions. An NMC Conduct and Competence Committee considered the various charges in December 2013 and February 2014. DD had legal representation throughout. The panel found all but one charge proved, found that DD's fitness to practise was impaired and made a caution order for three years commencing 8 March 2014 (the date on which DD's time for appeal expired). DD was duly sent a copy of the decision with information on how to appeal. On 7 March 2014, DD spoke to her counsel and instructed her to begin drafting an appeal notice, which was filed by her solicitor on 11 March 2014, seeking an extension of time on the grounds that she was without employment and needed to raise funds to seek legal advice.
At the High Court hearing, Mrs Justice Nicola Davies granted the application for extension of time. She referred to Adesina and Baines v Nursing and Midwifery Council  EWCA Civ 818, a case on which we previously blogged which confirmed that the principle that apparently inflexible statutory time limits that admit of no exceptional circumstances may need to be read down to comply with Article 6 of the ECHR where enforcing the limit would 'impair the very essence of the statutory right of appeal'.
Davies J considered DD's inability to pay the court fee of £235 within time to be a good reason for a three day delay, which had not prejudiced the NMC. The NMC appealed to the Court of the Appeal on the basis that there were no exceptional circumstances warranting an override of the statutory limit.
In the Court of Appeal, Lord Justice Jackson found that there was no proper basis for Davies J's finding that DD was unable to raise the court fee of £235 before 8 March 2014, noting that there was no material before the court on which Davies J was entitled to make that finding. Jackson LJ recited significant features of DD's case including that DD did not contact her lawyers until the last day before time for appealing expired, that her counsel acted without assurance of funds being paid, that within four days of instructing her lawyers, her appellant's notice was filed, that DD served no evidence and provided no explanation as to how she raised the £235 and what steps she took and that no consideration had been given to whether DD was entitled to remission of the court fee (Jackson LJ considered she was so entitled). Jackson LJ opined that 'The obvious inference from the known facts is that DD did not take any steps towards appealing until the very end of the 28 day period.' (35)
Even if the Court had not allowed the NMC's appeal on that basis, Jackson LJ went on to consider that in Adesina, Maurice Kay LJ had set a high bar for the 'exceptional circumstances' test, and had given the examples of a person falling seriously ill or a notice of a decision getting lost in the post, causing them to be in 'blameless ignorance of the fact that time was running' (14). Jackson LJ noted that the facts of the second case in Adesina, concerning Ms Baines' difficulty in finding a specialist solicitor and securing legal aid, were not unlike DD's circumstances. Jackson LJ found no evidence of exceptional circumstances which impaired the essence of DD's statutory right of appeal.
The case reaffirms how exceptional 'exceptional circumstances' must be before a statutory time limit can be read down. While the decision at first instance may have appeared marginally to lower the bar, the Court of Appeal has reaffirmed that the court can go no further than is absolutely necessary to protect the statutory right of appeal. Appellants and their lawyers will be well advised to file appeals within the statutory time limit if they wish to minimise the risk of appeals being struck out.