Adesina & Ors, R (on the application of) v The Nursing and Midwifery Council, England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com

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Advocates

Mr Matthew Pascall (instructed by Lester Morrill inc. Davies Gore Lomax Solicitors) for the Appellants
Mr Timothy Otty QC (instructed by The Nursing & Midwifery Council) for the Respondent

Judges

LORD JUSTICE PATTEN
LORD JUSTICE MAURICE KAY
LORD JUSTICE FLOYD

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Adesina & Ors, R (on the application of) v. The Nursing and Midwifery Council

Smart Summary

Factual and Procedural Background

These two appeals arise from separate cases involving nurses or midwives appealing disciplinary decisions made by the Nursing and Midwifery Council (the Council). The appeals concern the statutory time limit within which such appeals must be brought to the High Court, as set out in Article 29(9) and (10) of the Nursing and Midwifery Order 2001 (the Order). The key procedural history includes the Administrative Court's decision that both appellants were time-barred from appealing, based on prior authority which treated the 28-day time limit as absolute and non-extendable. Permission to appeal to the Court of Appeal was granted on the basis of a subsequent Supreme Court decision in Pomiechowski v Poland, which raised the question of whether absolute time limits must yield to the requirements of Article 6 of the European Convention on Human Rights (ECHR).

Legal Issues Presented

Whether the 28-day time limit to appeal disciplinary decisions of the Nursing and Midwifery Council to the High Court, as prescribed by Article 29(10) of the Nursing and Midwifery Order 2001, is absolute and non-extendable.
If the time limit is not absolute, under what circumstances and to what extent can the Court exercise discretion to extend the time limit in a manner compatible with Article 6 of the ECHR.

Arguments of the Parties

Appellants' Arguments

The absolute approach to the 28-day time limit, as established by previous authorities such as Mitchell v Nursing and Midwifery Council and Reddy v General Medical Council, should be revisited in light of the Supreme Court decision in Pomiechowski v Poland.
Article 6 of the ECHR requires that the statutory time limit be interpreted compatibly with the right of access to a court, allowing for some discretion to extend the time limit in exceptional circumstances.
The Court should adopt the approach of Lord Mance in Pomiechowski, allowing discretion to extend the time limit only in exceptional cases where the appellant has done all they can to bring the appeal in time.

Respondent's Arguments (The Council)

Pomiechowski, being a case concerning extradition law, does not have general application to disciplinary appeals under the Nursing and Midwifery Order.
The absolute approach to the 28-day time limit should remain intact in this context.
If any discretion exists, it must be confined to very narrow and exceptional circumstances.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mitchell v Nursing and Midwifery Council [2009] EWHC 1045 (Admin)	Established the absolute nature of the 28-day time limit for appeals under the Nursing and Midwifery Order.	Used as authority for the absolute approach to time limits prior to reconsideration in light of human rights.
Reddy v General Medical Council [2012] EWCA Civ 310	Confirmed the absolute approach to statutory time limits in disciplinary appeals.	Applied as binding precedent before the impact of Pomiechowski was considered.
Pomiechowski v Poland [2012] 1 WLR 1604	Held that absolute time limits may need to be interpreted compatibly with Article 6 ECHR, allowing discretion in exceptional cases.	Overturned the strict absolute approach in extradition appeals and was applied by analogy to disciplinary appeals.
Tolstoy Miloslavsky v United Kingdom [1995] ECHR 18139/91	Established that procedural restrictions must not impair the very essence of the right of access to a court and must be proportionate.	Formed the foundational Strasbourg principle underpinning the human rights analysis.
Perez de Rada Cavanilles v Spain (2000) 29 EHRR 109	Emphasised that time limits must not prevent litigants from accessing available remedies and must be applied proportionately.	Supported the principle that strict application of procedural time limits can violate Article 6 rights.
Mucelli v Government of Albania [2009] 1 WLR 276	Applied an absolute approach to statutory time limits in extradition appeals without reference to Strasbourg jurisprudence.	Preceded Pomiechowski and was effectively overruled or qualified by it.
Massan v Secretary of State for the Home Department [2011] EWCA Civ 686	Applied the absolute approach to time limits in appeals under regulatory statutes.	Part of the line of authority challenged by the appellants in light of Pomiechowski.
United Arab Emirates v Abdelghafar [1995] ICR 65	Illustrated strict judicial approach to discretion in extending statutory time limits.	Referenced to demonstrate the narrow and exceptional nature of any discretion to extend time.
Jurkowska v HLMAD Ltd [2008] EWCA Civ 231	Confirmed strictness in exercising discretion to extend time limits in appeal contexts.	Used to support the court’s view on the limited scope of discretion.

Court's Reasoning and Analysis

The Court began by acknowledging the established absolute approach to the 28-day time limit for appeals under the Nursing and Midwifery Order, as supported by prior domestic authorities. However, the Supreme Court decision in Pomiechowski v Poland introduced a human rights dimension, requiring that statutory time limits be interpreted compatibly with Article 6 of the ECHR, which guarantees the right to a fair hearing within a reasonable time. The Court analyzed Strasbourg jurisprudence, particularly the principles from Tolstoy Miloslavsky and Perez de Rada Cavanilles, which establish that procedural time limits must not impair the essence of the right of access to courts and must be proportionate to their legitimate aim.

The Court noted contextual differences between extradition appeals (the subject of Pomiechowski) and disciplinary appeals in nursing and midwifery, such as the gravity of consequences and length of time limits. Despite these differences, the Court concluded that the absolute approach cannot be maintained in all cases because it risks impairing the essence of the statutory right of appeal in exceptional circumstances (e.g., serious illness preventing timely appeal or failure of notice by post).

Drawing on Lord Mance’s reasoning in Pomiechowski, the Court held that a limited discretion to extend time must exist in exceptional cases where the appellant has done all they can to bring the appeal promptly. This discretion is to be exercised narrowly and only to the minimum extent necessary to secure compatibility with Article 6.

Applying these principles to the facts, the Court found that neither appellant’s circumstances met the threshold for exceptional discretion. Both had timely knowledge of the decisions, and their delays were not excusable or exceptional. Therefore, the time limits were properly enforced, and the appeals were rightly struck out.

Holding and Implications

The Court DISMISSED both appeals.

The holding clarifies that while the 28-day time limit for appeals against Nursing and Midwifery Council disciplinary decisions is not absolutely inflexible, the scope for extending this limit is extremely narrow and limited to exceptional cases where the appellant has acted diligently. The decision does not establish a broad discretion but aligns the statutory time limit with the requirements of Article 6 ECHR through a reading down approach under the Human Rights Act 1998. The direct effect is that the appellants in these cases remain time-barred, and no new precedent for general extension of time limits in such appeals is set beyond the exceptional circumstances described.