Lars Stuewe v Health and Care Professions Council  EWCA Civ 1605
“Time and tides [a statutory time limit without provision for extension] wait for no man”
Geoffrey Chaucer may not have been contemplating time limits under the Health and Professions Order 2001 when he wrote his Clerk’s Tale, but as ever his words prove relevant even to modern professional discipline lawyers.
As in the above order, almost all of the statutory regulators’ founding legislation includes a right of appeal to the High Court against fitness to practise decisions, but with a strict 28-day time limit, with no specific provision for discretionary extension.
Since R (Adesina) v NMC  EWCA Civ 818, following Pomiechowski v Poland  UKSC 20, it has been well established that such time limits can be extended, but only in exceptional circumstances, in order to read the legislation compatibly with Article 6(1) of the ECHR.
The Court of Appeal has now clarified the approach the court should adopt to the question of what constitutes exceptional circumstances.
Mr Stuewe wished to appeal against a conditions of practice order imposed by the Conduct and Competence Committee of the HCPC. The statutory time limit expired on 5 February 2021. Mr Stuewe had twice attempted to file an appeal, and notified the HCPC of his intention to do so, well within that time limit, but his appeal was returned because he had only provided an address in Gibraltar. He also asked the HCPC to agree to a consent order for him to appeal out of the jurisdiction. He could not travel to the UK due to the COVID pandemic.
On 5 March 2021 the HCPC indicated it was open to Mr Stuewe to make an application to file out of the jurisdiction, and that although the HCPC would not agree to a consent order they would not oppose the application. The HCPC would also not seek to make any point about the appeal being made out of time. Mr Stuewe filed an appeal with the necessary application on 7 April 2021. The HCPC then sought to strike out the appeal, despite their indication on 5 March 2021, based on updated legal advice and the fact that the indication had been on the basis that the appeal would have been filed as soon as practicable after that application.
The High Court stated that he had considerable sympathy for the Appellant, but found the circumstances were not exceptional within the meaning of the authorities. The Appellant, though he may not have understood it, should have filed an appeal within the time limit, accompanied by an application to file out of the jurisdiction.
The Court of Appeal reviewed the authorities and pointed out that care needed to be taken with the additional qualification, originating in Pomiechowski and adopted in Adesina, that a litigant would need to do all that they personally could to bring the appeal timeously. That appeared to have been treated as an independent requirement in Gupta v GMC  EWHC 38. To do so was wrong. Lord Mance in Pomiechowski was merely identifying the type of situation in which exceptional circumstances arose. There is no independent jurisdictional requirement that a litigant must have personally done all that he could.
The only test is therefore whether exceptional circumstances exist. Any gloss is unhelpful.
In a telling aside, the court summarised the difficulty of showing exceptional circumstances on the facts:
“There are several examples of the approach laid down in Adesina being deployed on the facts of individual cases: Pinto v Nursing and Midwifery Council  EWHC 403 (Admin) (some ill health and stress and attending court office with insufficient funds to pay the court fee); Nursing and Midwifery Council v Daniels  EWCA Civ 225 (three day delay arising out of an inability to find funds to pay the court fee); Darfoor v General Dental Council  EWHC 2715 (Admin) (one working day late in filing, having attended on the final day of the time limit without correct documentation); Gupta (almost a week’s delay in circumstances where a litigant in person attempted to file notice of appeal on the final day of the appeal period by email when filing was required by post or in person). In none of these cases was it was held [sic] that the high threshold triggering the jurisdiction had been met. However, ultimately, each case will turn on its own facts and the assistance to be drawn from the outcomes on the facts of other cases may be limited.”
This strict approach was borne out in Mr Stuewe’s case. The Court of Appeal considered the High Court was right to conclude that exceptional circumstances did not exist.
“Unlike a litigant who is in a coma throughout the relevant period, or a litigant who never receives the decision to be impugned within that period, the Appellant had a meaningful opportunity to file an appeal notice within time.”
The Court of Appeal also found that there was insufficient explanation for the delay between 5 March 2021 (the HCPC’s indication) and 7 April 2021, and given the Adesina discretion must only be exercised to the minimum extent necessary to ensure compliance with Article 6(1), would not have resulted in an extension until a valid appeal was filed.
On the law, this case is helpful to Appellants, clarifying that the only test is exceptional circumstances, and there is no freestanding additional requirement as to their personal conduct. But on the practical application of that test, even without any additional ‘gloss’, it appears satisfying it is extremely difficult.
No doubt future Appellants will seek to draw an analogy with the examples given of a litigant who is in a coma, or does not receive the relevant decision. To return to Chaucer: “Death is the end of every worldly pain.” Again perhaps a prescient reference to the High Court’s approach to time limits.