England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Hand Q.C.)
1CL00168

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 March 2012

Lord Justice Moore-Bick :

1. In this case the appellant, Mr. Reddy, seeks to appeal against the order made by His Honour Judge Hand Q.C. in the Central London County Court on 9^th December 2011 dismissing his appeal against the refusal by the General Medical Council ("GMC") of his application for entry on the Specialist Medical Register as a General Surgeon. Judge Hand held that the court had no jurisdiction to entertain Mr. Reddy's appeal because it had not been brought within the prescribed time.
2. In order to understand the issues which arise for decision in this case it is necessary to describe the course of events leading up to the dismissal by Judge Hand of Mr. Reddy's appeal.
3. In April 2006 Mr. Reddy applied to the GMC for a certificate of eligibility for specialist registration. In June 2008 that application was rejected. He asked for the decision to be reviewed and in November 2009 the decision was upheld. In January 2010 Mr. Reddy exercised his right to appeal to what was then an Appeals Panel constituted under the General and Specialist Medical Practice (Education, Training and Qualifications) Order 2003 ("the 2003 Order"), which contained the regulations then in force. However, on 26^th March 2010 the 2003 Order was revoked and replaced by the General and Specialist Medical Practice (Education, Training and Qualifications) Order 2010 ("the 2010 Order"), the provisions of which governed the appeal procedure as from that date.
4. Paragraph 10 of Schedule 2 to the 2010 Order provides that a person in Mr. Reddy's position who at the time when that Order came into effect had lodged an appeal against a decision of the Appeals Panel was to be treated as a person in respect of whom an appealable registration decision had been made for the purposes of Schedule 3A to the Medical Act 1983 ("the 1983 Act"). As a result the provisions of Schedule 3A applied to the proceedings as from that date.
5. Schedule 3A of the 1983 Act provides for appeals against registration decisions to be made to a Registrations Appeal Panel and includes the following provision:

"Appeals from a Registration Appeals Panel

5(1) Where—

(a) a Registration Appeals Panel determines an appeal under paragraph 4 above; and

(b) the Panel's determination is any determination other than a determination under paragraph 4(8)(b) above to allow the appeal and quash the decision appealed against,

the person concerned may, before the end of the period of 28 days beginning with the date on which notice of the determination was given to him under paragraph 4(9), appeal against the determination to the relevant court."

In England and Wales the relevant court for these purposes is a county court.

6. On 2^nd December 2010 the GMC wrote to Mr. Reddy informing him that his appeal had been unsuccessful. Mr. Reddy received that letter on 3^rd December and at that point the time for appealing started to run.
7. Mr. Reddy took time to consider the implications of the GMC's decision and eventually on 21^st December 2010 he consulted solicitors. On 22^nd December his solicitors filed at the Central London County Court an application notice in form N244 seeking an extension of time for filing grounds of appeal. One reason given for making the application was that it would give Mr. Reddy time to obtain and consider legal advice on the merits of an appeal. A notice of appeal in Form N161 with lengthy supporting grounds was later filed on 31^st January 2011.
8. On 15^th March 2011 His Honour Judge Bailey granted Mr. Reddy an extension of time to 18^th March 2011 for filing his detailed grounds of appeal. However, at some point thereafter the GMC took the point that the court had no power to extend time for commencing an appeal and that, because Mr. Reddy had not filed a notice of appeal within the 28 days prescribed by paragraph 5(1) of Schedule 3A to the 1983 Act, the appeal was invalid and the court had no jurisdiction to entertain it. As a result, on 21^st June 2011 with the agreement of the parties Judge Bailey made an order that the question whether the appeal had been lodged in time be tried as a preliminary issue.
9. Pursuant to that order the matter came before Judge Hand on 22^nd July 2011. He held that the court had no power to extend the time prescribed by paragraph 5(1) for filing a notice of appeal and that the court had no jurisdiction to entertain an appeal lodged out of time. He therefore dismissed the appeal. He also noted in the order that any appeal against his decision would constitute a second appeal and directed that it should therefore be made to the Court of Appeal. Permission for a second appeal can, of course, be obtained only from the Court of Appeal itself.
10. In his notice of appeal to this court Mr. Reddy challenged the judge's decision on a number of grounds, one of which was that the appeal was properly to be regarded as a first appeal. If that was correct, it lay to the High Court under article 3 of the Access to Justice Act 1999 (Destination of Appeals) Order 2000 ("the Destination of Appeals Order"). Mr. Reddy also contended that the judge was wrong to hold that the county court had no jurisdiction to entertain his appeal.
11. When Mr. Reddy's notice of appeal was received in the Civil Appeals Office it was referred to the Vice-President for him to consider whether it raised a question of this court's jurisdiction. The Vice-President directed that there be a hearing to determine that question before the application for permission to appeal was considered. Accordingly, the matter came before us and we heard full argument on both of the issues determined by the judge below.
12. These proceedings logically give rise to five questions, although only three were the subject of serious debate. They are:

(i) is the present appeal a first or second appeal?

(ii) did Mr. Reddy file a notice of appeal within the time prescribed by paragraph 5 of Schedule 3A to the 1983 Act?

(iii) if not, did the court have power to extend time for appealing?

(iv) if it did, should it have exercised its power in favour of Mr. Reddy?

(v) in the absence of an extension of time did the county court have jurisdiction to entertain the appeal?

Of those, only questions (i), (iii) and (v) were canvassed in argument. Mr. Veen did not seek to argue that the application notice filed on 22^nd December 2010 was sufficient to constitute a notice of appeal or that it was otherwise effective to commence appeal proceedings, but since the question lies at the heart of the case I shall express my views on it briefly in due course.

First or second appeal?

13. The question whether Mr. Reddy's appeal was out of time, and thus whether the court had jurisdiction to entertain it, necessarily arose for the first time after the matter had reached the county court. It was determined by the judge as a preliminary issue and as a result of his decision he did not consider the issues raised by the grounds of appeal. Those two factors led Mr. Veen to submit that the issue of jurisdiction was collateral to the substantive appeal and that an appeal against the judge's order was therefore a first, rather than a second, appeal. Accordingly, the less demanding test for obtaining permission to appeal applied in this case. In support of his submissions he relied on the case of Chantrey Vellacott v Convergence Group Plc [2005] EWCA Civ 290.
14. In one sense, of course, the issue of jurisdiction is collateral to the substantive appeal, but I do not think that that renders this a first appeal, despite the fact that it arose for the first time after the proceedings had reached the county court. Although courts are generally reluctant to allow a new point to be raised on appeal, permission is sometimes given for that to be done and, when it is, the new point simply forms part of the argument on the appeal as a whole. That remains the case, even if in the interests of practical case management the court decides to hear and decide the new point first. The introduction of an issue that is determined for the first time on appeal is not sufficient to render any further appeal a first appeal, even in relation to that issue. If it were, one would be faced with the possibility that an appeal might have to be regarded as a first appeal in relation to some issues and a second appeal in relation to others. That cannot have been contemplated by the legislation, which (with certain exceptions) prescribes different destinations for first and second appeals from the county courts.
15. The provisions relating to appeals from the county courts are contained in Articles 3-5 of the Destination of Appeals Order. Article 3(1) establishes the basic rule that an appeal from a decision of a county court lies to the High Court. (None of the exceptions in paragraph (2) or article 4 applies in the present case.) It follows that, if this is a first appeal, it ought to have been made to the High Court and this court has no jurisdiction to hear it.
16. Article 5 of the Destination of Appeals Order, which contains an exception to the basic rule in the case of second appeals, provides as follows:

"Where—

(a) an appeal is made to a county court or the High Court (other than from the decision of an officer of the court authorised to assess costs by the Lord Chancellor); and

(b) on hearing the appeal the court makes a decision,

an appeal shall lie from that decision to the Court of Appeal and not to any other court."

17. As Mr. Veen accepted, the county court has no original jurisdiction in this matter; it simply has a statutory jurisdiction to hear appeals under the Medical Act 1983. It follows that any decision allowing or dismissing an appeal is made by the court in an appellate capacity. Once the judge decided that the court had no jurisdiction to entertain Mr. Reddy's appeal he had no choice but to dismiss it, as he did. The appeal, therefore is, and can only be, against the order dismissing the appeal. In my view the matter falls squarely within article 5 of the Destination of Appeals Order. An appeal was made to the county court, there was a hearing of one issue which was capable of determining the outcome of the appeal and the court made a decision on the appeal. It follows that an appeal against the judge's decision lies to this court and is subject to the provisions of CPR 52.13 which imposes a more onerous test for granting permission to appeal.
18. I do not think that the decision in Chantrey Vellacott v Convergence Group is inconsistent with that conclusion. The case concerned an application by the defendants for permission to amend their statement of case in various ways. The application had originally come before a master, who considered some of the proposed amendments, all of which he disallowed, but shortage of time prevented him from dealing with the remainder. The defendants appealed against the master's order and before the judge they also renewed their application for permission to make the amendments that the master had been unable to consider. In the event the judge dismissed the appeal against the master's order and allowed some, but not all, of the other amendments. On appeal to this court the question arose whether the proceedings should be treated as a first or second appeal for the purposes of CPR 52.13. The court held that test for permission to appeal in relation to the totality of the proposed amendments was that prescribed for a first appeal. It considered that it would be an odd result if different tests applied to different amendments depending on whether they had been considered by the master at the initial hearing.
19. The situation that arose in Chantrey Vellacott v Convergence Group was very unusual and is likely to arise only in a small number of cases. In my view the decision was essentially pragmatic and the case is not authority for the proposition that, whenever a new point is raised in the court below, any appeal is to be treated as a first appeal, nor even for the proposition that an appeal on that point alone is to be treated as a first appeal.

Notice of Appeal

20. The document filed in the Central London County Court on 22^nd December 2010 was in Form N244 and headed "Application Notice". In response to the question "What order are you asking the court to make and why?" in section 3 the solicitors acting for Mr. Reddy set out the circumstances which led them to ask for an extension of time in which to file grounds of appeal. In support of that application they stated that Mr. Reddy was appealing against the decision of the Registration Appeals Panel of the GMC, that he was asking the court to set aside its decision, that he was seeking an extension of time to enable them to draft detailed grounds of appeal and that he would need to consider their advice on the merits of an appeal before he decided whether to pursue one.
21. Part 4 of the CPR provides that the forms set out in a practice direction are to be used in the cases to which they apply. Some degree of variation is permitted, but rule 4(3) expressly provides that a form must not be varied so as to leave out any information which it gives to the recipient. Practice Direction 4 contains a table of forms whose use is required by the Rules. Form N161 is prescribed as the form of Appellant's Notice to be used when complying with the requirement of paragraph 5.1 of Practice Direction 52.5.1 that an appellant's notice be filed at the appeal court, that being the means by which an appeal is brought.
22. Form N161 requires the appellant, among other things, to identify the order against which he wishes to appeal and to set out the grounds on which he says that the judge below was wrong. Form N244 is the form prescribed for use when making an application to the court under Part 23. It was the appropriate form to use for an ordinary application for an extension of time (though not in connection with an appeal), but it was not the appropriate form to use for the purposes of commencing an appeal. However, the court has wide powers to correct procedural errors and if the document filed on 22^nd December 2010 contained all the necessary information and could fairly be construed as informing the court and the GMC that by filing it at the court Mr. Reddy intended to commence appeal proceedings, I do not think that the use of the wrong form would be fatal. However, in my view the document cannot fairly be construed in that way. Although in the opening paragraphs of the information given in box 3 there is a statement that Mr. Reddy is appealing and seeking an order overturning the decision of the Registration Appeals Panel, it is made clear in later passages that what he is actually seeking from the court is an extension of time to enable grounds of appeal to be drafted and to enable him to take advice on the merits of an appeal. The document does not identify with any precision the decision which Mr. Reddy wishes to challenge, nor does it set out any of the grounds on which he might seek to do so. In my view these are both significant omissions. Moreover, I do not think that this document when read fairly as a whole would be understood by a reasonable person in the position of the GMC as a notice of appeal. For these reasons the judge was right in my view to hold that the document did not constitute a notice of appeal and that Mr. Reddy did not commence an appeal by filing it at the court. As I have said, Mr. Veen did not seek to argue to the contrary.

Extension of time

23. The judge held that the court had no power to extend time, applying the statements of principle to be found in Mucelli v Government of Albania [2009] UKHL 2, [2009] 1 WLR 276, Mitchell v The Nursing and Midwifery Council [2009] EWHC 1045 and Harrison v GMC [2011] EWHC 1741. The first question for decision in Mucelli was whether the requirement in section 26(4) of the Extradition Act 2003 that notice of appeal be "given" before the end of the permitted period of 7 days meant that a notice of appeal not only had to be filed but also had to be served on the respondent within that period. However, their Lordships also had to consider a second point, namely, whether the court had power to extend the time allowed for giving notice of appeal. They held that in the absence of some statutory power it did not. That decision was subsequently applied by the High Court in Mitchell v The Nursing and Midwifery Council [2009] EWHC 1045 and Harrison v GMC [2011] EWHC 1741 and by this court in Massan v Secretary of State for the Home Department [2011] EWCA Civ 686.
24. Mr. Veen sought to distinguish Mucelli on the grounds that the decision reflected the particular importance to be attached to the speedy resolution of extradition appeals, but I do not think that what was said in that case about the court's power to extend time owed anything to considerations of that kind. A majority of their Lordships were clearly of the view that the court has no power to extend a statutory time limit unless the legislation provides one and it was that principle which was applied in the later cases. Although the court has wide powers under CPR 3.1(2)(a) to extend time limits set by a rule, practice direction or court order, its powers do not extend to time limits imposed by statute. Mr. Veen submitted that by providing for an appeal to be made to a county court Parliament must have intended that the court should be able to exercise the full width of its powers in relation to appeals, including the power to extend time for filing notice of appeal. The submission is no doubt right to the extent that the court may exercise any of the powers that it ordinarily has at its disposal once proceedings have been started, but the submission that it can therefore extend time for appealing in this case overlooks two important matters: first, that, as I have already pointed out, the court's powers are limited to extending time for compliance with any rule, practice direction or court order and do not extend to statutory time limits; second, that unless and until an effective notice of appeal is filed there are no proceedings in respect of which the court can exercise such powers as it has.
25. Mr. Veen's next submission was based on the difference between the wording of paragraph 5 of Schedule 3A to the 1983 Act and that of its predecessor, article 22(1) of the 2003 Order, which provided as follows:

"An appeal from any decision of an Appeal Panel shall lie to the relevant court but must be brought within 28 days beginning with the date on which the appellant was notified of the decision."

26. Mr. Veen contrasted the use of the word "must" in article 22(1) of the 2003 Order with the use of the word "may" in paragraph 5 of Schedule 3A to the 1983 Act. He argued that the change of language and the use of the permissive word "may" reflected an intention to allow a prospective appellant longer than the usual 21 days in which to bring an appeal without restricting the court's power to extend time in the ordinary way. In other words, the effect of paragraph 5 was simply to vary the provisions of CPR 52.4(2)(b) by substituting 28 days for the 21 days it prescribes.
27. In my view there is nothing in that point. It does not meet the objections identified in paragraph 24 above and in any event the change in wording is explained by the difference in the constructions employed by the two draftsmen. It does not support the conclusion that there was an intention to alter the substantive provision. The meaning of paragraph 5 is clear. The word "may" is to be read with the word "appeal", thereby denoting that the aggrieved person has a right to appeal. The intervening words ("before the end of the period of 28 days . . . etc.") are intended to set a limit on the time within which that right may be exercised. Applying ordinary principles of construction it is simply not possible to interpret the words in the manner suggested by Mr. Veen.
28. Mr. Veen's final point was that paragraph 5 should, if necessary, be interpreted in a manner compatible with the European Convention on Human Rights ("the Convention"), as required by section 3(1) of the Human Rights Act 1998. He identified as particularly relevant the rights contained in Articles 6 and 8 of the Convention and Article 1 of the First Protocol. I have to say that I did not find it easy to follow this part of Mr. Veen's submissions, which seemed to elide two rather different arguments: the first, that the imposition of a limited time for bringing an appeal that was incapable of being extended was incompatible with Article 6.1; the second, that in this case there had been an infringement of Mr. Reddy's rights under Articles 6.1 and 8 and Article 1 of the First Protocol. However, I am satisfied that there is no substance in either of these arguments.
29. The procedure laid down in the 1983 Act and the 2010 Order gives the applicant a full opportunity to challenge any adverse decision by the relevant professional body, including by way of an appeal to the Registration Appeals Panel, as well as the right to appeal to the court if he is dissatisfied with the decision of the Panel. I can see no grounds for concluding that a fixed period of 28 days in which to bring an appeal to the county court is unreasonably short or for any other reason incompatible with any of the Convention rights. The material before the court does not support the suggestion that a notice of appeal could not have been filed within the time allowed if reasonable efforts had been made to do so. Nor is there any other evidence capable of supporting the conclusion that Mr. Reddy's Convention rights have been infringed.
30. For all these reasons I am satisfied that the judge was right to hold that the court had no power to extend time in favour of Mr. Reddy. The judge was of the view that even if the court had power to extend time it would be inappropriate to do so in this case, but since that played no part in his decision it is unnecessary for me to comment on it.

Jurisdiction

31. When considering the question of jurisdiction it is important to distinguish between the court's power to determine its own jurisdiction and its power, or jurisdiction, to entertain the proceedings before it. In the present case Judge Hand undoubtedly had the power to decide whether the court had jurisdiction to entertain an appeal by Mr. Reddy against the decision of the Registration Appeals Panel notwithstanding his failure to file a notice of appeal within the prescribed time. The judge did not expressly deal with the issue in those terms because he appears to have regarded it as axiomatic that if the appeal had not been brought in time it could not succeed. In my view he was right about that. In Massan v Secretary of State for the Home Department I expressed the view that the court does not have jurisdiction to entertain an appeal brought after the prescribed time has expired, since to do so would involve either ignoring the statutory requirement or extending time, neither of which the court is entitled to do. I remain of that view and it follows that the county court did not have jurisdiction to entertain Mr. Reddy's appeal.
32. This court's jurisdiction to hear an appeal against Judge Hand's order is derived from section 77 of the County Courts Act 1984. However, although the court has jurisdiction to hear an appeal against Judge Hand's order, such an appeal would be bound to fail for the reasons I have given. I would therefore refuse permission to appeal.

Lady Justice Black:

33. I agree.

Lord Justice Mummery.

34. I also agree.