Eskander v General Medical Council, England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com

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Eskander v General Medical Council

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Factual and Procedural Background

The Appellant appealed a Tribunal determination suspending her professional registration. The Tribunal's written notification was deemed served such that the Appellant had until 23 September 2025 to commence a statutory appeal to the High Court. On that day the Appellant sent an appellant's notice by e-mail to the Administrative Court Office of the High Court but did not pay any court fee at that time. The Administrative Court Office later requested payment; the Appellant paid in person on 17 October 2025 and the appellant's notice was sealed on 21 October 2025 (with the court form recording a "Date filed" of 23 September 2025).

The Respondent applied to strike out the appeal on the ground it had not been validly commenced within 28 days because no fee had been paid on 23 September 2025. A judge at first instance struck out the appeal on 14 November 2025, holding the appeal out of time and refusing to extend time. The Appellant sought permission to appeal and to adduce fresh evidence; permission was granted and the appeal was heard before a three-judge Court, which allowed the appeal and granted permissions (reasons below).

Legal Issues Presented

Whether a statutory appeal was validly "brought" within the 28-day period where the appellant's originating document was delivered to the court before expiry but no fee (or an insufficient fee) was paid at that time.
If the appeal was out of time, whether the court may and should extend time having regard to Article 6 ECHR and related domestic authorities.

Arguments of the Parties

Appellant's Arguments

The Appellant relied on a recent Court of Appeal decision (referred to in the opinion) holding that an action is brought when the originating process is delivered to court even if an underpayment of fee occurs; the Appellant submitted that the same principle applies to statutory appeals initiated by appellant's notice delivered in time even where no fee was paid.
The Appellant sought to adduce fresh evidence (emails with and advice from Attorney Jones) showing she had acted as she reasonably could and had relied on advice that payment would be made via a link following court acknowledgement; this evidence justified either treating the appeal as brought in time or extending time under Article 6.
Alternatively, if the court declined to treat delivery alone as sufficient, the Appellant argued Article 6 required a narrow power to extend time in exceptional cases where the appellant had personally done all she reasonably could.

Respondent's Arguments

The Respondent relied on Practice Direction 52B para 4.1 and decided authority that an appellant's notice must be accompanied by the appropriate fee (or remission paperwork) when filed; accordingly, the Appellant's notice sent without fee on the last day was not a valid commencement and the appeal was out of time.
The Respondent argued the recent decision relied upon by the Appellant concerned commencement of actions under the Limitation Act and underpayment of fees, and submitted several distinguishing features: (i) that the earlier case involved an underpayment rather than non-payment; (ii) that statutory appeals under the Medical Act should be construed differently (pointing to potential lacunae in the Act's scheme); and (iii) that the Appellant used an improper means of filing (email) which the Practice Directions permit the court to refuse to accept.
The Respondent submitted that, on the facts, the Appellant had not done all she reasonably could to pay the fee on time and that Article 6 did not require extension of time in these circumstances.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Case A v Case B [2026] EWCA Civ 215	Held that, for Limitation Act purposes, an action is brought when the claim form is delivered to the court office before expiry of the limitation period even if there was an underpayment of the appropriate fee.	The Court applied the reasoning by analogy to statutory appeals initiated by appellant's notice and held that delivery of the appellant's notice before the expiry meant the appeal was brought in time despite no fee having been paid at delivery.
Rakoczy v GMC [2022] EWHC 890 (Admin)	Recognised Practice Direction requirement that an appellant's notice be accompanied by the appropriate fee or a remission application/certificate.	Noted as authority followed by the first-instance judge on the question of whether the appeal was filed in time; Court accepted Mansfield J's following of Rakoczy but distinguished it given Case A's reasoning.
Gupta v GMC [2020] EWHC 38 (Admin)	Similar recognition of the Practice Direction requirement to accompany an appellant's notice with fee or remission evidence.	Noted by the first-instance judge as part of existing authority that supported striking out; treated as part of the pre-existing position that Case A later qualified by analogy.
Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818	Explains the narrow circumstances in which courts should exercise a discretion to extend time for statutory appeals (exceptional cases where appellant has done all they can).	Used to summarise the established test for extension under Article 6; informed analysis of whether Article 6 required extension if delivery-alone did not suffice.
Barnes v St Helen's Metropolitan Borough Council [2006] EWCA Civ 1372	Earlier authorities on when an action is brought for limitation purposes (cited in Case A).	Referred to as part of the body of authority Case A followed in concluding delivery-to-court is sufficient to bring an action.
Page v Hewitts Solicitors [2012] EWCA Civ 805	Authority on commencement/bringing of actions (later disapproved in Case A insofar as inconsistent).	Noted that Case A treated aspects of Page (No 2) as wrongly decided and preferred the delivery rule.
Liddle v Atha & Co Solicitors [2018] EWHC 1751 (QB), [2018] 1 WLR 4953	Reiterated principles about commencement and consequences of delay/errors by solicitors.	Referred to in the chain of authorities that Case A reviewed and applied.
Page v Hewitts Solicitors (No 2) [2013] EWHC 2845 (Ch)	Earlier decision on commencement and fee payment.	Identified in Case A as wrongly decided on the point addressed by that judgment.
Ladd v Marshall [1954] 1 WLR 1489	Sets out the criteria for admitting fresh evidence on appeal (three conditions: diligence, influence, apparent credibility).	The Court applied the Ladd criteria to admit fresh evidence (emails and witness statement) and found the requirements satisfied.
Terluk v Berezovsky [2011] EWCA Civ 1534	Confirmed that the Ladd criteria remain central to admitting fresh evidence on appeal.	Referenced to support the approach to new evidence under CPR r 52.21.
Gopakumar v General Medical Council [2008] EWCA Civ 309	States the general rule that failures of legal advisers do not excuse parties when seeking to adduce fresh evidence on appeal.	Considered and distinguished: the Court held the surrogacy principle did not bar admission because the Appellant acted in person and had reasonable justification for not adducing the emails earlier.
FP (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13	Discusses the surrogacy principle and imputation of representatives' errors to clients.	Referred to in the discussion of the scope and basis of the surrogacy principle; Court explained why it did not apply strictly in this case.
Horvath v Secretary of State for the Home Department [2001] 1 AC 489	Background reference concerning surrogate protection; cited in discussion of surrogacy principle usage.	Cited as part of historical material on the surrogacy concept; not applied as a determinative precedent in this case.
Case M v (Poland) (Pomiechowski) [2012] UKSC 20, [2012] 1 WLR 1604	Interpreted Article 6 access-to-courts implications: statutory time limits should be read subject to a discretion in exceptional circumstances to extend time to avoid breaching Article 6.	Applied as the governing human-rights framework: the Court treated Pomiechowski as requiring a narrow power/duty to extend time in exceptional cases where refusing to do so would impair the essence of the Article 6 right.
Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442	Establishes Article 6 principles on access to appellate processes and limits on restricting access.	Formed part of the human-rights analysis on whether extension of time is required in individual cases.
Stuewe v Health and Care Professions Council [2022] EWCA Civ 1605, [2023] 4 WLR 7	Approved the analysis that an appellant must have personally done all they reasonably could to bring the appeal timeously as a guide to Article 6 assessment.	Cited to confirm the approach to Article 6 and the duty/power to extend time in exceptional circumstances.
Muscat v Health Professions Council [2009] EWCA Civ 1090	Considerations of public interest when regulating professions and admitting evidence.	Noted as a public-interest factor; the Court observed it must be read with later authority emphasising regulation efficiency.
General Medical Council v Adeogba [2016] EWCA Civ 162, [2016] 1 WLR 3867	Cautionary note on using public-interest arguments to depart from established fresh-evidence jurisprudence.	Referred to qualify reliance on Muscat and to caution against departing from established Ladd principles.
Fage v Chobani [2014] EWCA Civ 5	Quoted for the principle that a trial is not a dress rehearsal (imperative of finality).	Cited in the discussion distinguishing the exacting finality demanded at trial from the standard applicable to interlocutory applications.

Court's Reasoning and Analysis

The Court first considered the recent Court of Appeal decision (Case A) and analysed whether its reasoning extended to statutory appeals initiated by appellant's notice. The Court concluded that the central question—what it means to have "brought" proceedings within a statutory time limit—is the same in both contexts and that Case A's principle (delivery of the originating process to the court office before expiry suffices) applies equally to external statutory appeals begun by appellant's notice.

The Court rejected three attempted distinctions: (i) that Case A involved underpayment whereas this case involved non-payment (the Court held no coherent middle position exists between delivery-only and delivery-plus-full-compliance, and non-payment is not meaningfully distinguishable); (ii) that statutory appeals under the Medical Act 1983 should be treated differently because of paragraph 10 of Schedule 4 (the Court concluded the question whether an appeal is "brought" should be answered consistently with Case A and proposed practical responses to avoid any lacuna, such as court directions requiring payment or treating unremedied non-payment as withdrawal); and (iii) that the Appellant filed by e-mail in circumstances where Practice Directions arguably prohibited e-mail filing without fee (the Court held the court had discretion to refuse and here the court did not refuse, so the point did not prevent applying the delivery rule).

As to fresh evidence, the Court applied the Ladd criteria (as framed in subsequent authorities). It found the emailed material and the Appellant's account to be apparently credible, that the evidence would have had an important influence on the result (it bore on whether the Appellant had done all she reasonably could), and that reasonable diligence did not require adducing it below (the Appellant was acting in person and had reasonably relied on advice; the surrogacy principle did not bar admission). The Court therefore admitted the fresh evidence.

The Court also addressed Article 6 and the test established in Pomiechowski and Adesina: there is a narrow duty/power to extend time in exceptional circumstances where refusal would impair the essence of the right of access and where the appellant has personally done all he or she reasonably can. Although unnecessary to decide finally because the delivery rule disposed of the appeal, the Court concluded that, had it been necessary to decide the extension issue, the evidence showed the Appellant had done all she reasonably could and an extension would have been required.

Holding and Implications

APPEAL ALLOWED

Holding: The Court held that the Appellant's appellant's notice, having been delivered to the Administrative Court Office before expiry of the 28-day period, meant the statutory appeal was brought in time despite non-payment of the requisite fee at the time of delivery. The Court granted permission to amend grounds and to adduce fresh evidence and allowed the statutory appeal to proceed in the High Court. The Appellant's suspension ceased to have effect pending determination.

Implications: Direct effect—reinstatement of the Appellant's statutory appeal and permission to rely on fresh evidence; suspension stayed pending the High Court appeal. The Court applied and extended the principle from Case A to external statutory appeals initiated by appellant's notice, and suggested practical mechanisms (court directions, time-limited requirements to pay outstanding fees, treating failure to comply as withdrawal) to address potential procedural lacunae where originating documents are delivered but fees are not paid.

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Eskander v General Medical Council

Eskander v General Medical Council

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Eskander v General Medical Council

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