Delay and Procedural Irregularity: When an Appellate Judgment Will Not Be Set Aside Absent “Unsafe” Conclusions

Introduction

Patel v General Optical Council [2026] EWCA Civ 1206 is a Court of Appeal (Civil Division) decision on an application for permission to bring a second appeal from the Administrative Court. The appellant, a registered optometrist, had been found by the General Optical Council’s Fitness to Practise Committee (the “FPC”) to have committed serious misconduct involving dishonesty and to have an impaired fitness to practise, resulting in a 9-month suspension (stayed pending appeal).

The High Court dismissed the statutory appeal under s. 23G(3) Opticians Act 1989, but the post-judgment process was beset by delay and confusion: a draft judgment appeared on Westlaw before the parties received it; consequential matters were not resolved; and no final order disposing of the High Court appeal had been drawn, leaving the suspension still not in effect.

The sole ground advanced in the Court of Appeal was that the High Court decision was “not reliable” because of the overall handling of the appeal—framed as procedural irregularity rendering the decision unjust (rather than substantive error).

Summary of the Judgment

The Court of Appeal (Phillips LJ, Falk LJ concurring) refused permission to appeal.

  • The Court treated the application as one alleging injustice by procedural irregularity within CPR 52.21(3)(b), not that the decision was wrong under CPR 52.21(3)(a).
  • It held that delay and administrative irregularities, even if constituting a breach of the “reasonable time” requirement, do not justify setting aside a judgment absent a fair basis to think the conclusions are unsafe due to that delay.
  • The Court rejected an attempt at the oral hearing to pivot into substantive criticism of the High Court reasoning without pleaded grounds and without the respondent present to meet such points.

Analysis

Precedents Cited

1) Open justice / appearance of justice

The appellant relied on R v Sussex Justice, ex p McCarthy [1924] 1 KB 256, especially the proposition that justice “should manifestly and undoubtedly be seen to be done”.

The Court accepted that the case featured “unusual and unsatisfactory” procedural aspects (including the High Court hearing being conducted remotely while the judge was recovering from injury), but held that appearance-based concerns could not, on the facts, displace the reality that there had been “full and careful” consideration and prompt oral reasons. The only concrete defect was delay, and that delay did not of itself make the decision unsafe.

2) Reasonable time under common law and Article 6

The appellant invoked Porter v Magill [2002] 2 AC 357 at [106] (Lord Hope), for the proposition that parties have a right—at common law and under Article 6(1) ECHR—to determination within a reasonable time, and that breach does not require proof of prejudice.

The Court accepted the “undoubted right”, and accepted that it had been breached by the prolonged failure to finalise the judgment and (still) the absence of a final order. However, it drew a sharp line between:

  • establishing a breach of the reasonable-time guarantee; and
  • obtaining the remedy of setting aside a judgment and ordering a re-hearing.

3) Delay as a ground to set aside: “unsafe conclusions”

The core remedial test was taken from Bank St Petersburg PJSC v Arkhangelsky [2020] EWCA Civ 408; [2020] 4 WLR 55 at [78–80]: whether the delay is enough to require a retrial depends on whether the judge’s conclusions are unsafe as a result of the delay.

That in turn was anchored in Cobham v Frett [2001] 1 WLR 1775 (Lord Scott), requiring “a fair case” for believing the judgment contains errors “probably, or even possibly, attributable to the delay”, such that it would be unfair to let it stand.

Applying those authorities, the Court held the threshold was not met. The High Court judge had given oral reasons within 16 days of the hearing; there was no suggestion those reasons differed materially from the eventual written judgment; and the appellant was not advancing any pleaded, identifiable errors (let alone ones attributable to the delay). Accordingly, the judgment was not shown to be unsafe.

Legal Reasoning

1) Characterisation of the appeal: wrongness vs procedural injustice

The Court drew an important procedural boundary: where an applicant frames the challenge as procedural injustice under CPR 52.21(3)(b), the Court will not permit a late shift into substantive “wrongness” arguments under CPR 52.21(3)(a) without proper grounds and fair notice—especially where the respondent has not attended because attendance was not required.

2) “Sitting conditions” and fairness

The High Court hearing occurred while the judge was physically impaired and conducting the hearing from bed. The Court acknowledged this was “unusual and certainly less than ideal”, but treated the decisive question as whether any injustice resulted. On the transcript, the judge remained engaged, managed the materials, took breaks as needed, and there was no evidence any document or submission was missed.

3) Delay: breach does not dictate the remedy

The Court’s central doctrinal move was remedial: even where delay breaches the “reasonable time” requirement, setting aside a judgment is not automatic. The remedy must be proportionate. A re-hearing that would only generate further delay “for no arguable benefit” is not justified unless delay has infected reliability—i.e., made conclusions unsafe.

4) The Court’s obiter guidance on judicial administration

Although not necessary to the refusal of permission, Phillips LJ gave detailed guidance:

  • Fitness to sit / minimum professional conditions: save in exceptional circumstances (urgency or necessity for a particular judge), hearings should not proceed unless the judge has essential tools: document access, proper workspace, and the ability to take notes without impediment.
  • Draft judgments and hand-down: a judge who circulates a draft must oversee finalisation and formal hand-down.
  • Reading out a “draft” judgment orally: this practice “should be discouraged” as it is apt to cause confusion and delay.
  • Court communications: repeated unanswered emails chasing finalisation were “unacceptable”; arrangements should exist (through a clerk if needed) to ensure submissions are received and orders made.
  • Reportability: despite arising on permission to appeal, the judgment was expressly directed to be reportable and citable.

Impact

  • Delay challenges narrowed: The decision reinforces that delay, even if serious, will not usually overturn a judgment unless an appellant can articulate a plausible route by which delay rendered the conclusions unsafe (consistent with Bank St Petersburg PJSC v Arkhangelsky and Cobham v Frett).
  • Discipline and regulatory appeals: Parties in professional regulation cases (often subject to stayed sanctions pending appeal) may cite this decision where delay is used tactically to seek a wholesale re-hearing without pinpointing error.
  • Procedural discipline in second appeals: The Court signalled that it will police the boundary between procedural irregularity grounds and merits grounds, and protect absent respondents from late ambush arguments.
  • Administrative Court practice: The postscript is likely to be relied upon in future as persuasive guidance on listing decisions, remote hearing conditions, judgment finalisation, and avoidance of informal practices that create uncertainty (such as orally reading out “draft” judgments).

Complex Concepts Simplified

Procedural irregularity (CPR 52.21(3)(b))
A problem with the way the case was handled (process, fairness, opportunity to be heard) that makes the decision unjust. It is different from arguing the judge simply reached the wrong conclusion.
“Justice must be seen to be done”
A fairness principle from R v Sussex Justice, ex p McCarthy: courts must not only be fair, but appear fair to a reasonable observer. However, appearance-based concerns still require a link to unfairness or unreliability to justify setting aside a decision.
Reasonable time (Article 6(1) ECHR)
The right for civil rights and obligations to be determined within a reasonable time. A breach can exist without proof of specific prejudice, but that does not dictate that the only remedy is a re-hearing.
“Unsafe” judgment due to delay
A judgment is “unsafe” if the delay plausibly caused mistakes—e.g., the judge misremembered evidence, lost the thread of key issues, or produced reasoning that may have been different had it been delivered promptly. Without a credible case of such effects, delay alone will not overturn the result.

Conclusion

Patel v General Optical Council [2026] EWCA Civ 1206 confirms that even serious administrative mishandling and delay—though capable of breaching the “reasonable time” guarantee—will not justify setting aside a judgment unless the appellant can show a fair basis for believing the decision is unsafe because of those defects. The decision also provides notable guidance on the minimum conditions for judicial hearings and on the need for disciplined judgment finalisation and order-drawing, underscoring that procedural professionalism matters both for fairness and for public confidence.