Court affirms test for extending statutory appeal time limit
The Court of Session can exercise its dispensing power to permit an appeal to be brought outwith the time allowed in a particular statutory provision, but should do so only when the applicant has personally done all they reasonably can to bring the appeal on time, and if not on time, as soon as possible after that, the Inner House has ruled.
Lord President Carloway, Lord Drummond Young and Lord Malcolm gave the decision in sustaining an objection to the competency of an application by Margo Neilly for leave to appeal late against a decision to strike her off the register as a mental health nurse.
The decision, by the Nursing & Midwifery Council, was given on 19 February 2019 in Ms Neilly's presence, and served on her on 26 February, having been sent the previous day by first class post. Under the Nursing and Midwifery Order 2001, article 29(10), she had 28 days from that date in which to bring an appeal. She sought to do so six days late, on 2 April.
Ms Neilly said she had received the letter on 4 March, having gone to stay with her elderly father who had sustained a fracture; the disciplinary process had resulted in increased anxiety levels associated with complex PTSD and left her unable to fully process or respond; she could not instruct a lawyer due to financial constraints; she had become depressed and unable to talk to anyone or seek help; and it was only on making contact with support organisation NMC Watch that she was able to discuss the prospects of an appeal.
Lord Carloway, delivering the opinion of the court, said the case of Hume (2007) had decided that the statutory time limit was subject to the court's own procedural rules, which allowed the court to relieve a party from the consequences of failure to comply with the rules on showing "mistake, oversight or other excusable cause". The UK Supreme Court had since held that to comply with the European Convention on Human Rights, the court must have discretion to extend a time limit where a statutory provision "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", and the Court of Appeal in England had stated the view that this discretion arose only in exceptional circumstances.
The Lord President continued: "However, in light of the imperative terms of a statutory provision, which must carry great weight, the power to [extend the time limit] 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."
He concluded: "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."