In this case, the High Court refused an application to extend the time for an appeal, restating the correct legal analysis.
Dr Gyorgy Rakoczy
The case before Justice Fordham relates to a decision of a Medical Practitioners Tribunal (“MPT”) on 27 April 2021, that Dr Rakoczy’s found his fitness to practise impaired. The MPT decided that it was appropriate to replace a previous conditions order with a 12-month suspension. That suspension was to take place from 2 June 2021. It would be reviewed when the 12 months had expired, though Dr Rakoczy could ask for an early review. The suspension would not take effect if Dr Rakoczy exercised his right of appeal to the High Court. It is noted in the judgement that Dr Rakoczy wanted to appeal.
The final day for the filing of an appeal was Wednesday 26 May 2021. It was common ground that an appeal is not properly commenced unless the Appellant’s Notice (a “Form N161”) was accompanied by the requisite fee (£240) or – at that time when the fee was required to be paid – an application for fee remission made by filing the application (a “Form EX160”).
Dr Rakoczy filed a Form N161 by email on 21 May 2021 however no Form EX160 was filed by the him at any time prior to the deadline on 26 May 2021. His first step to supply the EX160 was when he used the online portal on 6 June 2021.
An important facet of this case is that “There is a domestic statutory underpinning for the requirement that an application for remission of a fee must be made at the time when the fee is otherwise payable (here, 26 May 2021) with the consequence that, if that application is duly made, the date for payment of the fee is then disapplied.”
Matters to be determined
A previous appeal by Dr Rakoczy was not upheld and Fordham J commented:
“In substance, what I have to decide is whether to exercise this Court’s power (which it is common ground that I have) to extend time for the appeal, in circumstances where (as is also common ground) the appeal was not properly filed, in the legally compliant manner, within the statutorily-prescribed 28 day time limit. The function of extending time is one which arises exclusively in the context of securing compatibility with Article 6 of the ECHR as scheduled to the Human Rights Act 1998, as applicable to this context.”
In his determination, Fordham J made relied on, what he referred to as the “the Dual Principles” ( and  below) derived from Tolstoy Milaslavsky v United Kingdom:
“The Court reiterates that the right of access to the courts secured by Article 6(1) may be subject to limitations in the form of regulation by the State. In this respect the State enjoys a certain margin of appreciation. However, the Court must be satisfied,  firstly, that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.  Secondly, a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.”
Fordham J refused to exercise the Court’s power to extend time for the appeal. In doing so, he set out the correct legal analysis at paragraph 21(i) to (ix) of his judgement. In particular, he noted that:
- The legal test, set down in Pomiechowski v Poland  UKSC 20, is “the High … should apply the statutory provisions so as to extend time for an appeal in “exceptional circumstances”, meaning circumstances in which refusing to extend time would “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.
- What Adesina v Nursing and Midwifery Council  EWCA Civ 818 decided is that the approach in Pomiechowski is applicable to the disciplinary and regulatory statutory context.
- The authoritative, practical guidance derived from Adesina (and Pomiechowski) includes the references to “exceptional circumstances”, to the discretion arising only in a “very small number of cases”, and to the appellant having “personally … done all [they] can to bring the appeal timeously”. These stand as a practical description of a solid expectation which the appellate courts have, and which reliably guides the High Court, in relation to the approach to the statutory power to extend time read compatibly with Article 6.
- However, if the High Court were satisfied in the application of the Dual Principles that – absent an extension of time – the statutory time limit would “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”… the grant of an extension of time would be a faithful application of the decisive reasoning of the appellate courts in those cases, not a departure from it. And, ultimately, that would be so, whether or not the facts and circumstances would fit within the description of the appellant having “personally … done all [they] can to bring the appeal timeously”.