British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> NEILLY AGAINST THE NURSING AND MIDWIFERY COUNCIL [2019] ScotCS CSIH_32 (29 May 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_32.html
Cite as: [2019] ScotCS CSIH_32, 2019 SLT 1078, 2019 SC 565, [2019] CSIH 32, 2019 GWD 18-278
[New search] [Printable PDF version] [Help]
Page 1 ⇓
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Drummond Young
Lord Malcolm
OPINION OF THE COURT
[2019] CSIH 32
XA31/19
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the application for leave to appeal late
by
MARGO JEAN NEILLY
Applicant
against
THE NURSING AND MIDWIFERY COUNCIL
Respondents
Act: Party
Alt: P Reid; Nursing and Midwifery Council
29 May 2019
Introduction
[1] The applicant, who was a mental health nurse working for NHS Highlands, was
struck off the respondents’ register of qualified nurses and midwives by the respondents’
Fitness to Practice Committee in terms of article 29(5)(a) of the Nursing and Midwifery
Order 2001. The striking-off order came into effect on 25 February 2019. The applicant had
attended the hearing on 19 February at which the Committee’s decision was made. She now
Page 2 ⇓
2
seeks to appeal the order to this court in terms of article 29(9) of the 2001 Order. Her
application to do so is late in terms of article 29(10), which states that:
“ Any such appeal must be brought before the end of the period of 28 days beginning
with the date on which notice of the order or decision appealed against is served on
the person concerned.”
[2] The order was served on the applicant on 26 February; that is on the day after it was
sent to her by first class post (Nursing and Midwifery Council (Fitness to Practise) Rules
Order 2004, r 34(5)). The appeal was lodged on 2 April; six days after the expiry of the
28 day time limit.
[3] The respondents object to the competency of the appeal because it is late. The
procedural judge fixed a hearing on the issue of competency. The court appointed the
hearing to take place before three judges.
Precedent
[4] In Hume v Nursing and Midwifery Council 2007 SC 644, the court held that the
statutory time limit was subject to the court’s own procedural rules. RCS 41.20(1)(a) (now
RCS 41.26(1)(a)) provided that “the appeal shall be lodged … within the period prescribed
by the enactment under which it is brought”. A failure to bring the appeal timeously could
be treated as a failure to comply with the court’s own rules and thus within the scope of the
general dispensing power in RCS 2.1(1) which states that:
“(1) The court may relieve a party from the consequences of a failure to comply with
a provision in these Rules shown to be due to mistake, oversight or other excusable
cause on such conditions, if any, as the court thinks fit.”
The Court relieved the applicant in Hume of the consequences of his lateness, because it had
been caused by his oversight, during a period of poor health which caused him to be
Page 3 ⇓
3
unaware of the charge of misconduct against him, the date of the hearing and the striking-
off order.
regret that the court in Hume had not been referred to Simpson v Assessor for Selkirkshire 1948
SC 270 in which Lord Jamieson had said (at 272):
“[W]here the Act says that appeals are to be lodged not later than a certain date, … it
means just what it says, and that, if an appeal is not lodged by that time, then it is not
a competent appeal.”
The European Court of Human Rights and England and Wales
that a security for costs order did not violate the applicant’s right of access to the court as
guaranteed by Article 6(1). The court said:
“59 … the right of access to the courts secured by Article 6(1) may be subject to
limitations in the form of regulation by the State. In this respect the State enjoys a
certain margin of appreciation. However, the Court must be satisfied; firstly (sic)
that the limitations applied do not restrict or reduce the access left to the individual
in such a way or to such an extent that the very essence of the right is impaired.
Secondly, a restriction must pursue a legitimate aim and there must be a reasonable
relationship of proportionality between the means employed and the aim sought to
be achieved.”
the European Court said that:
“45. The rules on the time limits for appeals are undoubtedly designed to ensure the
proper administration of justice and compliance with, in particular, the principle of
legal certainty. Those concerned must expect those rules to be applied. However, the
rules in question, or the application of them, should not prevent litigants from
making use of an available remedy.”
Page 4 ⇓
4
Cavanilles was considered in Goodall v Peak District National Park Authority [2008] 1 WLR
2705. This concerned an attempt to appeal an enforcement notice out of time. In refusing
the appeal, the court (Keane LJ at para 16) said that:
“The … decision in Cavanilles’s case does not render [the] statutory provision
incompatible since the court there was dealing with an extremely short time limit of
just a few days. And it has no relevance to a provision which stipulates, in effect, a
period of at least 28 days after service for the lodging of an appeal. The court in
Cavanilles’s case was making the point that a domestic law time limit must not, in
effect, remove the right of access to the courts altogether in a practical sense.”
Similarly, in Mucelli v Albania (supra), the House of Lords held that two statutory appeal
time limits within the extradition process (Extradition Act 2003, ss 26(4) and 103(9)) could
not be extended by the court.
Court applied the principle in Miloslavsky to time limits in statutory appeals. Article 6(1) of
the European Convention required that any restriction of the right must not impair “the
very essence” of that right. It must pursue a legitimate aim and involve a “reasonable
relationship of proportionality between the means employed and the aim sought to be
achieved” (Lord Mance at para 33 citing Miloslavsky at para 59). The applicable time limit in
Pomiechowski was deemed not proportionate to the relevant aim; that of achieving finality
and certainty in extradition appeals. The court read down the relevant provisions to be
consistent with Article 6 on the basis that there was:
“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. … [T]he 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 … Miloslavsky. The High Court must have power in any individual case to
Page 5 ⇓
5
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.”
(ibid at para 39)
[8] A 28 day limit will probably result in a greater prospect of compliance than one of
only three (Cavanilles), seven or 14 days (Pomiechowski). However, as was also said in
Pomiechowski (Lord Mance at para 35):
“... it is not sufficient under article 6.1 if in most or nearly all cases the right of appeal
can be or should be capable of being exercised in time. The ‘very essence’ of the right
may be impaired in individual cases and there may still be no ‘reasonable
relationship of proportionality between the means employed and the aim sought to
be achieved’”.
Regardless of the length of the time limit, if it cannot be exercised in practical terms there
will be a violation of the individual’s right of access to a court in article 6(1).
Court of Appeal held that the 28 day time limit provided by article 29(10) was subject to
what was described (Maurice Kay LJ at para 15) as the “discretion” in Pomiechowski. The
view, that the discretion only arose in “exceptional circumstances” where the appellant
“personally has done all he can to bring the appeal timeously”, was adopted (ibid at para 18),
so that:
“although the absolute approach can no longer be said to be invariable, the scope for
departure from the 28-day time limit is extremely narrow.”
This approach was applied in Nursing and Midwifery Council v Daniels [2015] Med LR 255,
where the appellant had done nothing about an order until contacting solicitors on the day
before the expiry of the 28 days. The Court of Appeal held (Jackson LJ at para 43) that
Pomiechowski and Adesina did not provide a general discretion to excuse non-compliance.
That could only occur where the very essence of the statutory right to appeal was impaired
(ibid at para 39).
Page 6 ⇓
6
Decision
[10] The decisions in Hume v Nursing and Midwifery Council 2007 SC 644, Pomiechowski v
reconcilable. Hume remains applicable, to the extent that the general dispensing power in
RCS 2.1(1) is the vehicle through which the time limit in art 29(10) may be extended.
However, in light of the imperative terms of a statutory provision, which must carry great
weight, the power to do so should be exercised not simply where there has been a mistake,
oversight or other excusable cause but, as required by article 6(1) of the Convention, only
when the applicant has personally done all he or she can to bring the appeal on time, and if
not on time, as soon as possible after that. That is the meaning of “exceptional
circumstances” in this context. The correct formulation should include “reasonably” before
“can”, rather than being stated in absolute terms.
[11] This approach is consistent with that in Scotland prior to Hume. The relaxation of a
statutory time limit had not previously been regarded as an exercise of the court’s general
dispensing power. In Simpson v Assessor for Selkirkshire 1948 SC 270, Lord Jamieson (at 274)
was “not prepared to say that the Valuation Committee might not have entertained this
appeal”, and commented (at 272) that, in Watson, Gow & Co v Assessor for Glasgow 1910 SC
807, it had been said that the relevant time limit “might in certain circumstances be relaxed
and not literally complied with”. This was derived from the opinion of Lord Dundas in
Watson, Gow & Co (at 810) that:
“… no excuse of any kind has been offered … Nor is it said … that the Assessor had
other means of information, or other knowledge, or that in fact he suffered no
prejudice. … Therefore … while it stands in the statute we must see that it is not
reduced to a dead letter”.
Page 7 ⇓
7
[12] In Simpson, Lord Sorn was of the view (at 276) that Hugh Symington & Sons v Assessor
for Coatbridge (1895) 22 R 588, Watson, Gow & Co (supra) and Ayrshire Education Authority v
Assessor for Irvine 1922 SC 435 showed that:
“the Court has not treated the terms of [the] section as strictly imperative, but has
been prepared to relax the strictness of the section in special circumstances and
where no prejudice has been suffered by the Assessor. These cases also show a
strong disfavour towards the upholding of objections to competency which are of a
technical nature.”
[13] There can therefore be circumstances in which the court will entertain a late statutory
appeal. The court will accordingly proceed to determine whether the application to do so
should be granted; that is to say whether the dispensing power should be exercised on the
basis that the applicant personally has done all that she could reasonably have done to bring
the appeal on time and, if not on time, as soon as possible after that.
[14] The applicant accepts that she was aware of the order when it was made at the
hearing on 19 February 2019, even if the full reasons were not then given. She states that she
did not receive the documentation until 4 March 2019, because she had gone to stay with her
father. He was in ill-health, having sustained a fracture at the age of 80. The applicant’s
central contention was that, as a result of the disciplinary process, she was unable to “read,
fully process or respond” to the formal written intimation of the order because of increased
anxiety levels associated with a complex PTSD. She could not instruct legal representation
because of financial constraints. She had become depressed to such a degree that she found
it extremely difficult to talk to anyone, to look for support and generally to seek help. It was
not until the end of March that, on making contact with NMC Watch, she was able to
discuss the prospects of an appeal. NMC Watch are an organisation which supports nurses
Page 8 ⇓
8
and midwives in situations such as the present. The applicant had been given their contact
details at the hearing.
[15] However sympathetic the applicant’s case may be in terms of her mental health and
the relatively short period of lateness, it does not meet the test set out above whereby it
could be said that she did all that she reasonably could have done to bring the appeal on
time. On that basis, the court will refuse to exercise the dispensing power in favour of the
applicant. It follows that the objection to the competency of the appeal will be sustained.