England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Birmingham Civil Justice Centre Bull Street, Birmingham B4 6DS
		23/09/2016

HHJ David Cooke:

Introduction

1. Dr El-Huseini seeks to appeal against the decision of the Medical Practitioners Tribunal given by letter dated 25 May 2016 that his fitness to practise is impaired by reason of misconduct and his adverse physical and mental health, and that in consequence he should be suspended from the Medical Register for a period of 12 months. A hearing was held on 5 September 2016 solely to determine whether the court had any power to consider the appeal in view of the respondent's contention that it was out of time, including consideration of whether the court had any power, and if so should exercise it, to extend the time provided by statute. This judgment deals with those issues alone, and does not address the merit of the appeal, were it to proceed.
2. Dr El-Huseini attended the hearing in person, assisted by his wife. He submitted a skeleton argument prepared on his behalf by a Mr Shabaan, who is described as his personal assistant. I had previously refused an application for Mr Shabaan to participate in the hearing as Dr El-Huseini's McKenzie friend by way of Skype or for the hearing to be adjourned until Mr. Shabaan was able to attend, Dr El-Huseini having informed the court that Mr Shabaan would be out of the country and so unable to attend until at least the end of the year. I also refused applications made by Dr El-Huseini before and at the hearing for him to be allowed to make his own recording of it, and he assured me that he was not doing so. He wished to have a recording so that he could consider afterwards whether he had said anything during it which he ought to correct, but that would not have assisted the conduct of the hearing, and if he wished to review what had been said afterwards, there was no good reason why he should not do so from an official transcript.
3. The appeal lies under section 40 (4) of the Medical Act 1983, which provides:

"A person in respect of whom an appealable decision… has been made, may before the end of 28 days beginning with the date on which notification of the decision was served under section 35E (1) above… appeal against the decision to the relevant court"

The relevant court is the High Court. Section 35E (1) and paragraph 8 of Schedule 4 of the Act provide that the decision may be served by post, and will be deemed served when the letter containing it would be delivered in the ordinary course of post. The decision letter was sent by post on 25 May 2016, with a covering letter stating that it would be deemed served two days later on Friday 27 May 2016, and that accordingly the last day of the 28 day period would be Friday 23 June 2016. That has not been disputed.

4. Paragraph 9 of schedule 4 of the 1983 Act gives a discretion to the Tribunal to extend time for appealing if it is satisfied that the appellant did not receive the notice of decision within 14 days of it being sent by post. That does not arise in this case, since Dr El-Huseini has not contended that he did not receive the decision within that period. There is no other provision in the statute for the time to be extended, either by the Tribunal or the court.
5. The appeal is a statutory appeal, and is governed by the provisions of CPR 52 and Practice Directions 52B and 52D, save to the extent the statute provides otherwise. Paragraph 4.1 of PD 52B provides that "An appellant's notice (Form N161…) must be filed and served in all cases. The appellant's notice must be accompanied by the appropriate fee or, if appropriate, a fee remission application or certificate." Payment of a fee is required by the current Civil Proceedings Fees Order, and so is a statutory requirement.
6. On 22 June 2016, Dr El-Huseini sent to the court, by recorded delivery, his Form N161 appellant's notice, accompanied by various documents and a completed application for fee exemption (Form EX 160). Those documents were delivered to the court on 23 June 2016, the last day of the 28 day period allowed. The fee exemption request was processed by a court officer, Mr Farley, who entered the relevant details from the form into a computer program provided for the purpose, which informed him that the application should be rejected. He notified Dr El-Huseini by telephone and sent a letter the same day returning the appellant's notice and fee exemption application form (but not the remainder of the papers filed, which amounted to a large box and would have been expensive to post). The letter stated that the fee exemption application had been rejected, though it did not refer specifically to the reason. The letter continued "if you wish to continue with your appeal you must pay the court fee of £240 as soon as possible. The court has retained the rest of your papers awaiting your response. If we receive no confirmation from you within three weeks of your intention to proceed or that you wish for the papers to return then we will destroy the papers."
7. On 27 June 2016, Dr El-Huseini sent a cheque for the required fee, £240, by recorded delivery to the court, returning the appellant's notice. This arrived on 28 June 2016, and his appellant's notice was sealed and dated that day. If 28 June is the effective date of the appeal, then it is on the face of it out of time unless the court has power to extend that time and exercises it in the circumstances of this case.
8. As Mr Rigby, on behalf of the GMC, submits, there are many cases holding that since the 28 day time limit is provided for in primary legislation the court has no general power to extend it as a matter of discretion, in contrast to the time limits provided, for instance, within the Civil Procedure Rules generally in relation to appeals from the decision of one court to another. He refers me however to the decision of the Court of Appeal in R (Adesina) v Nursing and Midwifery Council [2013] EWCA Civ 818 in which it was held that the time limit (in that case in relation to a similarly worded provision in legislation dealing with appeals by nurses), formerly thought to be absolute, might in certain circumstances be extended by virtue of court's duty under the Human Rights Act to interpret statutes where possible in order to avoid a breach of the ECHR. The court however emphasised that the power to extend for these reasons was very limited and would rise only in exceptional circumstances. Maurice Kay LJ, with whom the other Lords Justices agreed, said:

"15 … [counsel], on behalf of the appellants, does not contend for a general discretion to extend time. Parliament is used to providing such discretions, often circumscribed by conditions … The omission to do so on this occasion was no doubt deliberate. If Article 6 and section 3 of the Human Rights Act require Article 29(10) of the Order to be read down, it must be to the minimum extent necessary to secure ECHR compliance. In my judgment, this requires adoption of the same approach as that of Lord Mance in Pomiechowski. A discretion must only arise "in exceptional circumstances" and where the appellant "personally has done all he can to bring [the appeal] timeously" (paragraph 39). I do not believe that the discretion would arise save in a very small number of cases."

Documents received on 23 June

9. The first question is whether the appeal was submitted in time by virtue of the fact that the appellant's notice did arrive at the Court office on 23 June, which would have been within the time limit. In Nagiub v General Medical Council [2013] EHHC 1766 (Admin), to which Mr Shabaan had referred me on behalf of Dr El-Huseini, a doctor seeking to appeal had lodged an appellant's notice but had by mistake sent less than the required amount for the fee. Edwards-Stuart J held, relying on previous decisions of the High Court in R (El-Huseinion) v GMC [2012] EWHC 1741 and Gilthorpe v General Medical Council [2012] EWHC 672 that an appeal is only valid if it complies with the statutory requirements, and that since it is a statutory requirement that a fee be paid an appeal application which is not accompanied by the correct fee or a fee exemption application is not a valid appeal. The result in that case was that although the balance of the fee was paid within two days, the appeal was nevertheless out of time.
10. Is it sufficient that in this case an application for fee exemption was lodged with the appeal notice, even if on the basis of that application Dr El-Huseini had not shown he was entitled to such an exemption? The issue is relevant because Dr El-Huseini submits that although his application for exemption was rejected on the basis that the document he had provided as evidence of receipt of a qualifying benefit was not dated within the past 3 months, he has in fact at all times been in receipt of the relevant benefit and is able to provide (and has subsequently provided) more recent evidence to show this. Accordingly, he says, he has at all times been entitled to an exemption, and was so entitled on 23 June.
11. Dr El-Huseini has provided, at my request after the hearing, a copy of the form he submitted on 22 June. In that form he has ticked a box to say that he is in receipt of Income-related Employment and Support Allowance (ESA). The notes on the form in that section say "You must provide correctly dated documentary evidence to show you receive one of these benefits" and refer to a guidance booklet EX160A which sets out the requirement that such evidence must be dated in the past 3 months. The evidence provided of receipt of benefit, which was also attached to a second similar application made on 11 July seeking reimbursement of the fee he has paid, is in the form of a statement showing the amount of ESA received, which is dated 9 March 2016 and so was over 3 months old on 22 June.
12. Dr El-Huseini also submits that he has been granted exemption from fees in relation to separate applications made to the Employment Tribunal and so ought to have been given exemption in the present case. The applications to the Employment Tribunal would of course have been made on separate forms, and may or may not have contained the same information as was provided in the application to the court made on 22 June.
13. In my judgement, the answer must be that merely sending the form is not sufficient. I have no doubt that if a properly completed fee exemption application form is filed, with the supporting evidence required, and on the basis of the information contained in or sent with it the appellant is entitled to exemption, his appeal would not be held to be out of time simply because that application is not immediately processed by the court staff, with the result that by the time it has been considered and the fee exemption is accepted the time limit has expired. But if the fee exemption application is rejected because the form either does not contain sufficient information or because on the basis of the information provided the fee exemption is not available, or the supporting evidence required by the form is not sent with it, in my judgement it cannot be the case that the appellant has in effect an indefinably long further time in which he may respond to requests for additional information, make a further application or provide changed information, in order to establish his entitlement.
14. No doubt in other contexts, in which the court has a wider discretion to extend time, the fact that an extension is required because of errors in the fee exemption application, which are ultimately corrected and show that the applicant was all along in a position to satisfy the requirements for the exemption he claimed, would be a relevant factor in the exercise of the discretion. But in the present context of a time limit prescribed by statute without such a discretion, the question must be whether within that time limit the appellant has either paid the required fee or established his entitlement to fee exemption. Merely submitting an exemption application form, on the basis of which he has not shown that he is entitled to such an exemption, cannot be regarded as an alternative to payment of the fee.
15. This is not affected by the fact that Dr El-Huseini could have obtained the exemption at the relevant date if he had obtained and provided the required evidence. The letter he has since sent as such evidence is dated 21 July 2016, but no doubt if he had requested it earlier it could have been provided with his application on 22 June. Entitlement to exemption depends on his having actually made a correctly completed and evidenced application form, and not simply on the basis that his circumstances are such that he could do so.

Art 6 ECHR

16. On the face of it, therefore, in the present case Dr El-Huseini's appeal is out of time. The skeleton argument submitted on his behalf by Mr Shabaan makes reference to Article 6 of the European Convention on Human Rights, protecting his right to a fair trial, and also submits that pursuant to the Equality Act 2010 he is entitled to a reasonable adjustment by virtue of his disability, which he says would require that an extension of time be given. Dr El-Huseini describes his difficulty as Conductive Aphasia following a stroke suffered in 2008, and produced a number of assessments by psychologists describing his difficulty in finding and expressing the correct words. His case is that this means that he requires increased time to absorb complex information and respond to it. It was also said in the skeleton argument that he suffered from post-traumatic stress disorder and medical malpractice stress syndrome. A report prepared by Dr Telfer in November 2014 records that he presented as acutely traumatised by his suspension and exhibited some features of post-traumatic stress disorder. Medical malpractice stress syndrome was described as being a term used to describe stress suffered by medical practitioners accused of malpractice, and being strikingly similar to post-traumatic stress disorder.
17. It was submitted that Dr El-Huseini had done all he could to bring the appeal in time, and that the fact that it was delivered to court on the last day was because firstly he had been waiting for the transcripts of the proceedings before the Tribunal, which did not arrive until 17 June 2016, and secondly he had not been able to obtain legal advice in connection with his appeal.
18. None of these matters however was the effective cause of the appeal being out of time. His grounds of appeal, which contained all the matters he wished to refer to in relation to the merits of his appeal, were prepared and available in time for them to be delivered to court within the 28 day period. I would not have accepted in any event that delay in receiving the transcripts was a good reason for failure to deliver grounds in time; the grounds when prepared make very little reference to any of the content of the transcripts, and to the extent that such reference was necessary Dr El-Huseini could have filed grounds based on the material in his possession and applied to supplement them later by reference to the transcripts if appropriate. Non-availability of legal advice is not in itself a good reason for requiring an extension of time; in any event in this case on the basis of the chronology provided by him Dr El-Huseini did not seek legal advice until 16 June, and his request for it was declined on 20 June. That did not prevent him posting his grounds of appeal two days later. To the extent that Dr El-Huseini had difficulties in considering the written material and preparing written submissions, he has been assisted throughout by Mr Shabaan and there is no suggestion that Mr Shabaan was unable to deal with matters during the 28 day period.
19. The reason the appeal was out of time was that the information provided by Dr El-Huseini himself with the fee exemption form did not establish his entitlement to that exemption. Since he did not obtain and send the correctly dated evidence of benefit required, even though he would have been able to do so, it necessarily follows that he has not done everything that he could to bring the appeal in time. He has not suggested, and I would not accept, that he was caused to make that mistake or prevented from obtaining or submitting the correct evidence by reason of his disability. Whatever his difficulties, Dr El-Huseini has shown himself quite capable of assembling and providing information in support of his case and there is no reason to think that he was unable by reason of his disability to do so in the case of the information required to support his fee exemption application.
20. It also follows in my judgment that there can be no suggestion of any denial of his right to a fair trial by failing to extend time to give him an opportunity to correct the mistake. If it were to be argued (it has not been so far) that he made the mistake because he was preparing the fee exemption application in a rush at the end of the 28 day period, that can only have been because he did not start out on the task of identifying what information was required and assembling it early enough.

Equality Act 2010

21. As to the question whether there might be any separate requirement or power to extend time in order to afford a reasonable adjustment for disability as required by the Equality Act 2010, Mr Rigby's initial response to a question I put him at the hearing, not having had the opportunity to consider it, was that there might be a duty to make such an adjustment, but it would make no difference in this case since the failure to file a sufficient fee exemption application was not caused by disability. Since then, I received a short written submission from the legal adviser to the GMC to the effect that since the GMC had no power itself to extend or regulate the time for commencement of an appeal (save no doubt in the context of the specific provision referred to above, which is not relevant to this case) it could not be said to be exercising any relevant function in the performance of which a reasonable adjustment might be required. I offered Dr El-Huseini (or Mr Shabaan on his behalf) the opportunity to make a written submission in response to this and he sent an email, which I assume was intended to be such a submission, referring to the public sector equality duty imposed by s 149 of the Equality Act.
22. In my judgment, the Equality Act does not create any separate mechanism by which the statutory time limit may be extended. Even if it is assumed that the General Medical Council in conducting the proceedings before the MPT is either a "service provider" or, more likely, a person performing a "public function other than the provision of a service", such that it is subject to a duty to make reasonable adjustments by section 29 (7) of that Act, it can be no part of that service or function to extend the relevant time limit, since that is not a matter within the GMC's control at all. Nor is the conduct of the appeal to the court part of any service or function provided by the GMC. Further, the extent of the duty to make reasonable adjustments is set out in section 20 of the Act. The nearest relevant aspect would be that set out in section 20 (3), which is as follows:

"(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."

But the time limit is set out in primary legislation and cannot in my view be said to be a "provision criterion or practice" of the GMC. Even if it were, it could not be suggested that it would be a reasonable step for the GMC to take to extend this period when it had no power to do so, still less that the effect of the duty was impliedly to grant to the GMC a power which was not set out in the statute itself.

23. Nor has the court any function to perform in the setting or variation of the time limit for appeal, save to the extent that it exercises the exceptional jurisdiction identified in Adesina. No doubt in dealing with the appeal proceedings before it the court is exercising a public function, but as with the GMC the statutory time limit is not a "provision criterion or practice" of the court so there can be no reasonable requirement imposed by the Equality Act, let alone any power implied, for the court to make any amendment to it for a disabled person. To the extent that the court is considering the exercise of the Adesina jurisdiction no separate consideration of any reasonable adjustment can arise because (a) that would be the performance of a judicial function, which is excluded by schedule 3 of the Equality Act and (b) disability would in any event be a relevant matter for the court to consider in determining whether there would be a breach of article 6 (taken together with Art 14) so that no "adjustment" is required to enable it to be taken into account.
24. The public sector equality duty does not assist Dr El-Huseini. Even if it is assumed to apply to either the Tribunal or the court in exercising any function relating to the appeal, the general obligations it creates, such as having due regard to the need to advance equality of opportunity, cannot impose an obligation to do something beyond their powers, or create a power they would not otherwise have,
25. I accordingly reject the argument that the court should exercise any power it has to extend the time limit such that the appeal, when validly constituted on 28 June by payment of the fee, was in time.

Other submissions

26. A number of submissions were made to the effect that either the GMC or the court must be taken to have extended time or waived any failure to comply with the time limit. In the case of the GMC, it was said that the appeal bundle had been received by the GMC on 6 July without taking any immediate objection on time grounds, and that a letter had been written on 18 July acknowledging receipt of the appeal documents and stating that "we are now dealing with the matter in accordance with our usual process". That process no doubt included consideration of what response to make to the appeal, part of which would include a consideration of the time point. That letter cannot sensibly be construed as any waiver or abandonment in advance of the ability to take a time point.
27. In relation to the court, Dr El-Huseini states that he had a number of telephone calls with court staff, including one on 27 June in which he was asked to make payment by cheque. He also points out that the letter of 23 June, which he would not have received until after the expiry of the 28 day period, required him to make payment of the fee if he was to continue with his appeal and stated that the papers would be destroyed if he did not respond within three weeks. This he says amounted to an extension of time for three weeks in order to make payment and that if he did so he would be allowed to continue with his appeal. But it was no part of the function of the court staff to consider the question of the time limit or whether the court had jurisdiction to extend it, still less to exercise that jurisdiction themselves, and the fact that they performed the administrative function of collecting the fee in order that the papers could be issued and proceed to determination by the court does not in any way prejudge or tie the hands of the court in making that determination. It would not have been appropriate for staff to decline to issue the appeal notice even if they were aware that it appeared to be out of time, so the fact that the form was eventually issued carries no implication that it was determined to have been in time.
28. Mr Shabaan has submitted that this case is different from Naguib in that in that case when court staff received the appeal notice with insufficient fee they returned all the papers to the appellant, where as in this case only the appeal notice and fee exemption form were returned, and the supporting papers were retained. I am quite unable to see how that makes any relevant difference. It was no part of the legal principle stated in that case that the court had physically returned any, let alone which, papers, but only that the appeal had not been accepted as validly issued. Retention for practical purposes of some of the supporting papers in this case has not made any difference to the errors in the fee exemption application or had any effect on Dr El-Huseini's ability to pay the fee or correct those errors before the expiry of the time limit.
29. Mr. Shabaan made a considerable number of submissions based on provisions of the CPR relating to extension of time, but all of those are irrelevant in this case, where no such power exists.
30. It was submitted that in his appeal notice Dr El-Huseini had ticked a box applying for an extension of time to file the appeal notice itself. By way of explanation of that application in section 10 of the appeal notice he made reference to his health difficulties, the absence of legal assistance and the volume of documentation in the case, and said that he was requesting an extension of time up to 23^rd August to file the appeal notice. No doubt when he made this request, Dr El-Huseini was operating on the assumption that the court had a discretionary power to extend time, but it does not and the fact that an extension of time was requested within the 28 day time limit does not confer on the court any additional power to extend. Further, it is self-evident that none of the matters he referred to was in fact such as to require any extension of time to file the appeal notice itself, since Dr El-Huseini was able to and did complete that and return it to the court by 23 June. Nor do they show that he was unable, by reason of his disability, to make an effective application for fee exemption by that date, if he was entitled to it.

Conclusion

31. Dr El-Huseini's appeal is out of time and cannot be heard by the court.

Postscript

32. On the day before this judgment was handed down, having received it in draft, Mr. Shabaan submitted an 11 page document setting out what he says are Dr El-Huseini's "resistance grounds and request for permission to appeal" against my decision. I could not myself give permission for a second appeal, see CPR 52.13. Any such application must be made to the Court of Appeal, within 21 days. None of the matters set out in that document has caused me to change the conclusions I have reached.
33. Dr El Huseini denies that he received any telephone call on 23 June, as referred to in para 6 above. It is not a matter on which there was any evidence, so if that reference is a misunderstanding on my part I apologise. It makes no difference to the outcome; my reasons do not rely on any such phone call having been made, and although Dr El Huseini now says that if he had received one he would have paid the fee in time, as was pointed out in Nagiub, there is no duty on court staff to point out errors in applications so the absence of an immediate phone call would not assist him.
34. Dr El-Huseini has, by letter dated 15 September 2016, made a request for a transcript of the hearing before me, accompanied by an application that it be provided at public expense. Mr. Shabaan has sent a number of emails to the court, the most recent I have seen being dated 15 September, requesting such a transcript and an "auditory recording" of the hearing. Dr El-Huseini also sent an email with the same date attaching various documents and referring , inter alia, to a request for a copy of the recording of the hearing.
35. The stated reason for both was so as to avoid any disadvantage to Dr El-Huseini by reason of his disability of cognitive aphasia. He attached a further copy of what he refers to as "Dr Declan report [stating] the importance of the auditory aid". This however was a letter dated 11 June 2012 written to Dr El-Huseini's employer and signed by "Declan McNicholl Clinical Neuropsychologist and HPC Registered Clinical Psychologist" in which Mr. McNicholl recorded Dr El-Huseini's condition as described to him at that time and addressed "the specific support that might be needed for him to attend an investigatory meeting". In that respect the letter set out a number of things that would assist Dr El-Huseini during such a meeting, including access to legal representation, and concluded "It would also be useful for him to have a verbatim account of the meeting, perhaps both in writing and an auditory recording for him to peruse at his own pace following the meeting".
36. This no doubt was in the context of a proposed meeting at which the employer's concerns as to Dr El-Huseini's condition and practice would be put to him and discussed. It could be expected to be part of a process, so that Dr El-Huseini might need to follow up on what was said at it either at future meetings or perhaps in writing. In that context it makes sense that he should have an extended opportunity to assess what had been put to him in order to respond to it, or to consider what he had said in order to correct or add to it so that his employer would have his fullest representations before reaching any decision.
37. The same considerations do not apply to the hearing before me. That is now concluded and there is no reason to review what was said at it in order to make any further representations to me. Insofar as Dr El-Huseini is considering an application for permission to appeal further, any second appeal would normally focus on the reasons given in this judgment, for which no transcript or recording is required. By CPR 52.5A, public funding for a transcript of the hearing itself could only be authorised if "it is necessary in the interests of justice for such a transcript to be obtained". This might be the case if the grounds of appeal relied on some matter occurring in the course of the hearing and not apparent from the terms of the judgment itself.
38. Dr El-Huseini has not however put forward any such proposed grounds for seeking permission to appeal against my decision. The proposed grounds set out in the document from Mr. Shabaan refer at length to considerations arising from his disability which he says affected the hearing, but as far as I can see only by way of objection to the decisions taken and the conclusions I reached, all of which are recorded in the judgment. If he seeks to challenge those decisions, he is able to do so by reference to the written judgment.
39. I should say that although Dr El-Huseini's email of 15 September contained the statement "Judge Cooke need to reconsider his decision before we deal with it as discrimination against my disability; race; faith or all of them; will apply within 6 months of his report officially done" that appears to be more in the nature of a threat than a complaint about any specific matter occurring at the hearing.
40. For these reasons, I refuse to direct that a transcript be provided at public expense. Dr El-Huseini is of course entitled to a transcript at his own expense if he wishes. For the same reasons I refuse to make the order, which would be exceptional, that a copy of the audio recording be made available to him.
41. Finally, in case the question arises in future whether it is appropriate to allow Mr. Shabaan to speak for or conduct proceedings on behalf of Dr El-Huseini, I record that since the hearing, Mr. Shabaan has sent a very considerable number of emails to the court making further submissions and attaching additional documents. These were in addition to a substantial number of such emails sent before the hearing, and in addition to some which were in response to requests I made for copies of documents referred to but not before me at the hearing. Many of them (I count 13 up to the date of preparing this judgment) were sent or copied by him directly to my judicial email address. In those messages Mr. Shabaan demanded a direct acknowledgment and response from me, and at one point said that if he did not receive it he would conclude that the court was racially discriminating against Dr El-Huseini.
42. Some but not all of Mr. Shabaan's emails were copied to the General Medical Council. He made a complaint that I had entered into communication with the other side without informing Dr El-Huseini that I had done so. In that respect, Mr. Shabaan seems to have overlooked the fact that he was able to send material to my judicial email address only because I had copied the communication he complained of (a request to counsel for a copy of the report of Nagiub, cited but not provided by Mr. Shabaan) to him on behalf of Dr El-Huseini.
43. Mr. Shabaan responded to the General Medical Council's submission as to the effect of the Equality Act by accusing its legal adviser of "gross negligence, misconduct, violation and lack of due compliance with regard to European Convention on Human Rights (ECHR), which is supposed to be incorporated into British Law", about which he said he would be complaining to the Strasbourg court directly.
44. Taken together, these matters in my view amount to unreasonable conduct of the litigation by Mr. Shabaan on behalf of Dr El-Huseini.