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England and Wales High Court (Administrative Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Thilliainayagam v General Medical Council [2025] EWHC 1253 (Admin) (16 May 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/1253.html
Cite as: [2025] EWHC 1253 (Admin), [2025] WLR(D) 289

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Neutral Citation Number: [2025] EWHC 1253 (Admin)
Case No: AC-2025-LON-001389

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

Royal Courts of Justice
Strand
London WC2A 2LL
16 May 2025

B e f o r e :

MRS JUSTICE LANG
____________________

DR ANDREW THILLIAINAYAGAM Appellant
- and -
GENERAL MEDICAL COUNCIL Respondent

____________________

Digital Transcription by Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Web: www.epiqglobal.com/en-gb/ Email: civil@epiqglobal.co.uk
(Official Shorthand Writers to the Court)

____________________

MR B JONES (instructed by DWF Law LLP) appeared on behalf of the Appellant
MR L DAVIDSON (instructed by GMC Legal) appeared on behalf of the Respondent

____________________

HTML VERSION OF JUDGMENT (APPROVED)
____________________

Crown Copyright ©

  1. MRS JUSTICE LANG: The appellant seeks an extension of time in which to lodge his appeal against the determination by a panel of the Medical Practitioner's Tribunal Service, MPTS, sent to the parties on 24 March 2025, in which the allegations against him were found proved. He was found guilty of misconduct, and it was found that his fitness to practise was impaired. The appellant also seeks to appeal against the sanction imposed upon him, namely one month's suspension.
  2. The respondent takes a neutral stance in response to the application for an extension of time.
  3. The appellant is a consultant gastroenterologist, who was treating Patient A at the London clinic for a period of eight days. The panel found that the appellant failed to give adequate care by not visiting him for three of those days, instead relying upon reports from other doctors. The panel also found that he failed to maintain adequate records.
  4. The essence of the appellant's grounds of appeal is that the panel failed to make a clear finding in relation to the appellant's explanation for his failure to personally visit Patient A, namely that, as he was treating patients with COVID at that time, he risked infecting Patient A. The respondent disputed the appellant's explanation. It is claimed by the appellant that the panel's failure to determine this issue undermined all aspects of the determination.
  5. The appellant was advised by the MPTS that his registration would be suspended 28 days from the date on which written notification of the panel's decision was deemed to be served, unless he lodged an appeal. In the event that he did lodge an appeal, he would remain free to practise unrestricted until the outcome of the appeal was known. The date of service was deemed to be 28 March 2025 and therefore any appeal had to be lodged on or before 25 April 2025. If he did not appeal by that date, the sanction of suspension would be effective from 26 April 2025. The letter advised him to file any appeal in the Administrative Court of the High Court of Justice.
  6. The appellant's solicitors filed the appellant's notice in the Kings Bench Division on 17 April 2025, but it was rejected on the basis that it had been filed in the wrong court. It was subsequently filed electronically in the Administrative Court on 28 April 2025, three days after the deadline.
  7. Facts

  8. Ms Rosette Shapiro, solicitor and partner at DWF Law was instructed by the appellant to act in his appeal. She has helpfully provided a witness statement and exhibited relevant documents giving the following account of events.
  9. The appellant confirmed his instructions to appeal on the afternoon of 16 April 2025 after taking some time to raise the necessary funds. At 1541 on 17 April 2025, Ms Goldberg, a paralegal at the firm, filed the appeal documents at the High Court using the online service CE file, which offers a dropdown menu of courts from which to select. Ms Shapiro said Ms Goldberg "erred in selecting the Kings Bench Division of the High Court rather than the Administrative Court from the drop-down menu available on e-filing". Mr Jones described this in his skeleton argument as a refusal to hear the substantive appeal "only on the grounds of having selecting the wrong Court in the relevant drop down list on CE file". This suggested or hinted that the selection of the wrong court was simply a typing error.
  10. The appeal documents were served by email on the GMC on 17 April 2025.
  11. On 23 April 2025, Ms Goldberg telephoned the King's Bench Division court office to ask for a copy of the sealed appellant's notice, but was told that that could take up to five working days. The fact that she telephoned the King's Bench Division court office indicates to me that she believed the King's Bench Division was the correct court, otherwise she would have telephoned the Administrative court office.
  12. On 24 April 2025, the court service sent an email to Ms Goldberg informing her that the appeal had been rejected because it had been filed in the wrong court. She was advised that, as it was a statutory appeal, it had to be filed in the Administrative Court. Ms Goldberg was away on leave and the email was not forwarded onto her colleague, in accordance with the request in her out-of-office message. I observe that the court service email came from a "no reply" address, so the out-of-office message was probably never received.
  13. Unfortunately, the court's email was not picked up until 28 April 2025 when Ms Goldberg returned from leave. Ms Goldberg then filed the appellant's notice at the Administrative Court on 28 April 2025, at 1406, sending it to the email address for Immediate applications. Later on the same day, 28 April 2025, she complied with a request from the Administrative Court to email it to the appellant's notice to the general office of the Administrative Court.
  14. The revised appeal documents were served on the GMC on 28 April 2025.
  15. On 29 April 2025, the MPTS emailed the appellant to inform him that, as an effective appeal had not been filed within the requisite period, the sanction had taken effect, and he was therefore suspended until 25 May 2025.
  16. Ms Shapiro contacted the MPTS and the GMC seeking to persuade them not to give effect to the suspension order, as the appeal had been filed in time, albeit in the wrong court, and had now been filed in the correct court.
  17. The position of the MPTS was that they could not delay the suspension unless the court confirmed that an effective appeal had been filed on 17 April, or that time for appealing had been extended.
  18. On 30 April 2025, the appellant's employer (an NHS Trust) sent a letter to the appellant notifying him that his employment had to be terminated with immediate effect because he had no licence to practice.
  19. There was some delay on the part of the Administrative Court office in processing the appeal. I have made some enquiries, and it appears that that was due to volume of work. The appellant's appeal was therefore not formally issued until 6 May 2025 and the appellant's notice was sealed on that date.
  20. Following a request from the solicitors for urgent consideration of the application for an extension of time, Foxton J made an order on 9 May adjourning the application for determination at an oral hearing. That is the hearing that is listed before me today, 16 May 2025.
  21. Legal framework

  22. Section 40 of the Medical Act 1983 provides a practitioner with a right of appeal to the High Court in respect of an appealable decision such as this one. The time period for appealing is "Before the end of the period of 28 days, beginning with the date on which notification of the decision was served."
  23. CPR practice direction 52(d) lists appeals under Section 40 of the Medical Act 1983 as an "Appeal to the High court".
  24. The parties have drawn my attention to some case law on the filing of a claim in the King's Bench Division rather than the Administrative Court, and other authorities which appear to raise related points. I have considered GUO v Kinder [2024] EWCA Civ 762 and Chelfat v Hutchinson [2022] 1 WLR 3613. In Sutcliffe v Secretary of State for Education [2024] EWHC 1878 (Admin) Pepperall J considered a statutory appeal process which prescribed that appeals be made to the High Court but not to any particular division or court within the high court. He said, at paragraph 12.4:
  25. "12.4 In my judgment, the highest it can be put is that there is a longstanding custom and practice of appeals against prohibition orders being issued and mitigated in this court. Absent and provision mandating issue in the Administrative Court such custom and practice, and does not however, mean that the appeal was wrongly filed in the King's Bench Division. Further, even where the court office concludes there has been an error of procedure, such error does not invalidate this step taken (here issued in what was thought to be the wrong court) unless the court so orders, CPR Rule 3.10. I would therefore suggest that in future appeals lodged by teachers in the King's Bench Division might properly be accepted and then transferred to the Administrative Court for ease, for case management and hearing.
    13. Whatever should have happened, the court must deal with the case on its facts. The original filing was rejected, and the court is dealing with an appeal issued out of time, such that it is necessary to consider Mr Sutcliffe's application to extend time. That said, my conclusions that Mr Sutcliffe had validly issued his appeal in the King's bench division on 8 June, and that such appeal was wrongly rejected by the court to plainly very important. Neither he nor his solicitors were at fault and in these exceptional circumstances, I have no doubt that strict application of the 28 day limit would impair the very essence of the statutory right of appeal, such that the court must extend time in this case. This appeal must therefore be determined upon its merits."
  26. In R (Lawrence) v LB Croydon [2024] EWHC 3061 (Admin), the applicable rules, namely PD54(d), did in fact specify that the correct office for filing the claim form was the Administrative Court office. The claimant emailed the claim form to KBInquiries@justice.gov.uk, which is the address for claims which had to be issued in the central office of the King's Bench Division. Linden J held at [73]:
  27. "The error made by the claimant was a procedural error in relation to a valid claim. It was an is readily corrected by the transfer of the claim to the ACO, although it appears that for all practical purposes, that has been done. Moreover, so far as necessary, the date of filing should be corrected, search recorded as 7 May 2024. In each case this can and should be done under CPR Rule 3.10."
  28. Prior to the Human Rights Act 1998 ("HRA 1998"), statutory time limits were regarded by the courts as immutable, in contrast to time limits contained in rules of court: see Croke v. Secretary of State for Communities and Local Government [2019] EWCA Civ 54, per Lindblom LJ at [6].
  29. However, by section 3 HRA 1998, the court must read and give effect to legislation in a way that is compatible with conventional rights. Article 6 ECHR is engaged in professional disciplinary proceedings which are capable of decisively affecting an individual's right to practice: see Le Compte, Van Leuven and De Meyeer v Belgium [1981] 4 EHRR 1.
  30. Article 6(1) confers a right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The Article 6(1) right includes a right of access to a court. Although there is no right to an appeal, in those cases where an appeal is available, Article 6(1) is engaged. The right of access is not absolute and may be subject to limitations since "by its very nature [it] calls for regulation by the state, which may vary in time and place according to the needs and resources of the community and of individuals" (Golder v United Kingdom [1975] 1 EHRR 524 at [36] to [38]).
  31. In Pomiechowski v District Court of Legnica, Poland [2012] 1 WLR 1604, the Supreme Court held in the conjoined case of Halligen v Secretary of State for the Home Department, that the provision in section 26(4) of the Extradition Act 2003, requiring notice of an appeal against an extradition order to be made within seven or 14 days, could in individual cases impair the very essence of the right of appeal, contrary to Article 6(1) ECHR.
  32. Lord Mance considered the position of a litigant who missed the deadline because of the failings of his legal representative, as follows:
  33. "36.  It has been held, in the public law context of removal from the jurisdiction of an alien, that a litigant must answer for the failings of his legal advisers, with the result that he was unable to obtain the reopening of an adjudicator's decision on the ground of such advisers' negligent failure to inform him of the hearing: R v Secretary of State for the Home Department, Ex p Al-Mehdawi [1990] 1 AC 876. Any other decision would, it was said, come "at the cost of opening such a wide door which would indeed seriously undermine the principle of finality in decision-making": per Lord Bridge of Harwich, at p 901e. In Ex p Al-Mehdawi there was however a residual discretion in the Secretary of State to refer the matter back to an adjudicator. In contrast, in an asylum context where no such residual discretion existed, the Court of Appeal in FP (Iran) v Secretary of State for the Home Department [2007] Imm AR 450 held ultra vires immigration rules deeming a party to have received notice of a hearing served on the most recent addresses notified to the relevant tribunal and requiring the tribunal to proceed in the party's absence if satisfied that such notice had been given. The solicitors acting for the asylum seekers in FP (Iran) had failed to give the tribunal new addresses to which the asylum seekers had been moved by the National Asylum Support Service. Distinguishing Ex p Al-Mehdawi, the Court of Appeal held that there was "no universal surrogacy principle" which (reformulated) rules "would have to depart from in order to operate justly": para 46. The rules were framed so as to be "productive of irremediable procedural unfairness". Both the appellants were "among those affected by this deficiency, because both have lost the opportunity to be heard through the default of their legal representatives and not through their own fault": para 48. This decision (reached in the context of aliens) turned on common law principles regarding access to justice, though reference was made by analogy to the position under the European Convention for the Protection of Human Rights and Fundamental Freedoms.
    37.  The position is a fortiori in so far as article 6.1 is directly applicable in Mr Halligen's case. It is clear that the statutory provisions regarding the permitted periods for appeals may in individual cases impair "the very essence of the right" of appeal. The previous judicial expressions of concern are eloquent about the potential and actual unfairness of the position in which prisoners find themselves in trying to meet the statutory requirements, with such aid as the prison legal services department or legal advisers can, under difficult conditions, provide. The problems of communication from prison with legal advisers in the short permitted periods of seven and 14 days are almost bound to lead to problems in individual cases. It is no satisfactory answer that a person wrongly extradited for want of an appeal as a result of failings of those assisting him might, perhaps, be able to obtain some monetary compensation at some later stage. Strict application of the surrogacy principle would be potentially unjust. I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be "a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."
  34. Lord Mance concluded as follows:
  35. "39.  In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time. In these circumstances, I consider that … the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6.1 in Tolstoy Miloslavsky. The High Court must have power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously."
  36. In R (Adesina) v The Nursing and Midwifery Council [2013] EWCA Civ 818, Maurice Kay LJ recognised the distinctions between extradition appeals and appeals in disciplinary or regulatory cases at [13], but he concluded that the principle established in Pomiechowski should apply. He held:
  37. "14.  …. There is good reason for there to be time limits with a high degree of strictness. However, one only has to consider hypothetical cases to appreciate that, without some margin for discretion, circumstances may cause absolute time limits to impair "the very essence" of the right of appeal conferred by statute. Take, for example, a case in which a person, having received a decision removing him or her from the Register, immediately succumbs to serious illness and remains in intensive care; or a case in which notice of the disciplinary decision has been sent by post but never arrives and time begins to run by reason of deemed service on the day after it was sent (Nursing and Midwifery Council (Fitness to Practice) Rules 2004, rule 34(4)). In such cases, the nurse or midwife in question might remain in blameless ignorance of the fact that time was running for the whole of the 28 day period. It seems to me that to take the absolute approach in such circumstances would be to allow the time limit to impair the very essence of the statutory right of appeal.
    15.  The real difficulty is where to draw the line. Mr Pascall, 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 (see, for example Employment Rights Act 1996, section 111(2), in relation to unfair dismissal). 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….."
  38. In Stuewe v Health and Care Professions Counsel [2023] 4 WLR 7, the Court of Appeal dismissed an appeal by an unrepresented claimant on the basis that he failed to take meaningful opportunities to file his appeal during the prescribed 28 day period, and so the essence of his right of appeal had not been impaired and it was not an exceptional case. Carr LJ (as she then was) reviewed the authorities and held:
  39. "49 Thus, there is a discretion (or duty) to extend time for the bringing of a statutory appeal but only in exceptional circumstances, namely where to deny a power to extend time would impair the very essence of the right of appeal. That is the key question. Once the discretion (or duty) arises, it must then be exercised to the minimum extent necessary to secure ECHR compliance.
    50 As set out above, Lord Mance at [39] in Pomieschowski identified the power to permit and hear an out of time appeal if statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access under article 6 as identified in Tolstoy. He went on (in the same sentence) to add that the appeal would be one "which a litigant personally has done all he can to bring and notify timeously." Maurice Kay LJ adopted this sentence in Adesina at [15], as have other courts subsequently (see for example Anixter Ltd v Secretary of State for Transport [2020] EWCA Civ 43; [2020] 1 WLR 2547 at [67]).
    ……
    52 I do not consider that Lord Mance in [39] of Pomiechowski, having referred to the relevant test by reference to Tolstoy, was then imposing an additional condition (beyond the need for the existence of "exceptional circumstances") by reference to the efforts made (or not) by an appellant to appeal in time. Rather, he was simply identifying the type of situation in which exceptional circumstances suficient to give rise to the discretion (or duty) may arise. Put simply, and without being in any way prescriptive, exceptional circumstances are unlikely to arise where an appellant has not personally done all that they could to bring the appeal in time. There is no independent jurisdictional requirement that a litigant must have done personally all that he could."
  40. In Sun v General Medical Council [2023] EWHC 1515 (Admin) Fordham J held, if he had not dismissed the appeal on the merits, he would have granted an extension of time for filing the appeal because Dr Sun had received mistaken advice from a barrister to file the appeal in the Chancery division rather than Administrative Court. He found it was a case of exceptional difficulties and there was nothing in Dr Sun's conduct that could properly be criticised. Refusal of an extension of time would impair the very essence of access to the court and would not have a proportionate relationship between the means and the legitimate aim of certainty and finality. Dr Sun had personally done all that she reasonably could to bring the appeal timeously.
  41. In McCallum v The Secretary of State for Education [2024] EWHC 87 (Admin), I granted an extension of time for an appeal where a delay of nearly a month was caused by errors on the part of the appellant's solicitors. The appellant had personally done all he could to bring the appeal in time. I received extensive submissions on the application of the surrogacy principle and held as follows:
  42. "33. At my request, the parties sent me written submissions on the surrogacy principle after the hearing. The conclusion I draw from the authorities and textbooks cited is that the Court does not ordinarily distinguish between a litigant and his legal advisers: see Hytec Information Systems v Coventry City Council [1997] 1 WLR 1666; Hashtroodi v Hancock [2004] 1 WLR 3206, at [35]; Atkas v Adepta [2011] QB 894, at [91]; R(Good Law Project) v Secretary of State for Health and Social Care [2022] 1 WLR 2339, at [61]. However, the surrogacy principle is not universally applied in cases where it would be unjust to do so: see Pomiechowski (above); FP (Iran) v Secretary of State for the Home Department [2007] Imm AR 450, R (A) v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330; Greece v O'Connor [2022] UKSC 4, [2022] 1 WLR 908; Sangra v Secretary of State for the Home Department 1997 SLT 545 (Court of Session Outer House); R (Nori) v Secretary of State for the Home Department [2011] EWHC 1604 (Admin)."

    Conclusions

  43. The Appellant's application in this case was for an extension of time for filing the appeal, from 25 to 28 April 2025, on the basis that this was an exceptional case which justified the grant of an extension of time.
  44. However, at the hearing, the Appellant submitted, in the alternative, that the Appellant's Notice had been validly filed in the High Court on 17 April 2025 when it was filed in the Kings Bench Division. Court staff should have accepted it and then transferred it to the Administrative Court. Alternatively, the Appellant submitted that filing the Appellant's Notice in the Kings Bench Division was a procedural error which should be rectified under CPR 3.10.
  45. The solicitors filed the appeal on 17 April 2025, which was well before the deadline of 25 April 2025. They filed it electronically in the King's Bench Division, despite the advice from the MPTS to file it in the Administrative Court. It was suggested this may have been a typing error, that is to say, selecting the wrong court from the drop-down menu in CE file. However, as Ms Goldberg initially telephoned the Kings Bench Division court office, it is perhaps more likely that she did not appreciate that the appeal ought to be filed in the Administrative Court.
  46. The statutory requirement in section 40(4A) Medical Act 1983 is to file the appeal in the "relevant court" which in England is the High Court. The Kings Bench Division is a division of the High Court. The Administrative Court is a specialist court which is part of the King's Bench Division, but operates separately with its own court office and court listings. Statutory appeals under section 40 Medical Act 1983 are allocated for determination in the Administrative Court, I assume by the direction of the President of the Kings Bench Division and/or the Lord Chief Justice. Therefore I do not accept that the appeal was properly filed in the Kings Bench Division. The appeal could only be validly filed in the Administrative Court.
  47. Nor do I consider that the appeal could and should have been accepted by Kings Bench Division staff and then transferred to the Administrative Court. I have been advised by the Administrative Court lawyer that the practice of the court, and the instructions given to staff, are to the effect that a claim or appeal that has been wrongly filed in the Kings Bench Division should be rejected with advice to re-file in the Administrative Court. There is no facility for staff to transfer cases filed on CE file between different courts. I am aware that Court staff routinely exercise powers to reject claims or appeals where practice requirements, such as payment of fees or filing of required documents, have not been complied with.
  48. Finally, as the appeal has already been rejected by the Kings Bench Division and was subsequently filed in the Administrative Court, I do not consider it is appropriate to invoke the power to remedy a procedural error under CPR 3.10. The Appellant's appeal is now in the correct court. What he needs is an extension of time.
  49. The issue to be determined is whether he should be granted an extension of time to pursue the appeal, and that question is governed by the considerable body of case law that I have already summarised.
  50. In section 40 of the Medical Act 1983, Parliament made provision for a 28 day period in which to lodge an appeal to the high court without any provision for a discretionary extension of time. The time limit does not itself impair the very essence of the right of access to the court. However, the absence of any discretionary power to extend time in exceptional cases may give rise to a breach of the right of access to the court under Article 6 ECHR.
  51. Once the solicitors became aware that the appeal had been rejected on 28 April 2025, they immediately refiled the appeal in the Administrative Court. The delay of three days between 25 and 28 April was relatively minor, but it had major consequences. The order of suspension became operative on 26 April 2025. The appellant immediately lost his job. The late filing of the appeal was entirely the fault of the appellant's solicitors. The appellant has personally done all he can to bring the appeal in time.
  52. For these reasons, I consider this to be an exceptional case, and I grant an extension of time. Applying the principles in Pomiechowski, Adesina and Stuewe to this case, I consider that application of the surrogacy principle would have the effect of unjustly impairing the appellant's right of access to the court in breach of article 6 ECHR.
  53. In determining whether an appeal has been filed in time, the relevant date is the date upon which the appellant filed the appeal, not the date upon which the court sealed and issued it in this case. The appeal was not issued until 6 May 2025 because of the volume of work in the Administrative Court office. But this delay should not be held against the appellant. His appeal was filed on 28 April 2025. Accordingly, I grant the extension to that date.

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