Appellants seeking to bring late appeals in the Inner House of the Court of Session will have to show that they have ‘done all that they reasonably can to bring the appeal on time’. The test is a high one, as seen in the recent professional regulation appeal of Neilly v NMC  CSIH 32. In that case, a nurse’s difficult set of personal circumstances were not enough to overcome her late lodging of the appeal.
MN was removed from the Nursing and Midwifery Council’s register on 25 February 2019. The decision to remove MN from the register was made at a hearing on 19 February, which she had attended and of which she therefore knew the outcome. Under Article 29(10) of the Nursing and Midwifery Order 2001, MN was entitled to make an appeal against the decision to the Court of Session within 28 days from the date the decision was served on her. The relevant date for that was the date of letter informing her formally of the decision. MN lodged her appeal with the court six days after the end of the 28 day time limit. She gave the court a number of difficult personal circumstances as explanation for doing so.
The NMC opposed the appeal going ahead on the basis that it was raised outside of the time limit and was therefore not competent.
The starting point in Scots law on late lodging of statutory appeals had been made clear several decades ago in Simpson v Assessor for Selkirkshire 1948 SC 270, where Lord Jamieson said:
“Where 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.”
However, the more recent decision of the Court of Session in Hume v NMC 2007 SC 644 had taken a broader approach. In Hume, the court held that any time limit in a statutory appeal should be read in conjunction with the court’s own procedural rules which allow the court to exercise discretion. In Hume the court decided that the circumstances merited it and allowed that appeal to go ahead although out of time.
The approach taken in Hume appeared consistent with some decisions from the European Court of Human Rights which suggest that a time limit on appeals is, in general, acceptable but should not be used as a barrier to a litigant’s access to the courts. In Pomiechowski v Poland the court held that a 14 day time limit to raise an appeal was not proportionate, and read the provision down to allow an appeal to go ahead when “a litigant personally has done all [he] can to bring and notify [the appeal] timeously”.
English case law has also dealt with the issue for regulators. In particular in Adesina v Nursing and Midwifery Council, the Court of Appeal stated that the 28 day time limit was subject to the “discretion” created by Pomiechowski and allowed the late appeal to go ahead on the basis of “exceptional circumstances”. MN in the present appeal therefore sought to rely on the “exceptional circumstances” of her case.
The court in Neilly had to take into account the approaches taken by the various courts previously in determining whether or not to allow MN’s appeal in late.
The Inner House held that it was possible to reconcile the apparently conflicting authorities. Hume had established that statutory time limits are not immoveable barriers and that, in certain circumstances, the court may exercise its dispensing power. However, the court in Neilly made clear that:
“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.”
The court therefore accepted that there are situations where justice would not be done if the court refused to hear an appeal out of time, however, they set the test for overcoming a statutory time limit at a very high level. The appellant must show that they “did all they can to bring the appeal on time”.
In Neilly, the appeal had been raised six days late. MN stated she had been staying with her ill father when the documents were delivered to her address and so she had only had sight of a copy of the decision two weeks later. She also stated that her anxiety and PTSD made it difficult to process the decision. MN said that she could not afford to instruct a solicitor and that she did not speak to the charity NMC Watch, which assists nurses in lodging appeals, until very shortly before the appeal’s deadline.
The court held that, however sympathetic MN’s case may be in terms of her mental health and the relatively short period of lateness, she had not done everything she could to raise the appeal timeously. MN had known of the decision to remove her from the register as she was at the hearing when this happened. She had also been given NMC Watch’s contact details at that time. The court dismissed the appeal.
The lesson for registrants and regulators is that the Court of Session will give a significant weight to statutory time limits for bringing appeals. There may be circumstances in which the court must show leniency in order for justice to be done, but these circumstances will be rare and an appellant cannot rely on the court looking leniently on a late appeal.
For further information on statutory appeals and other professional regulatory issues, please contact Catriona Watt.