News

31/03/2026

Eskander v GMC: Siniakovich Extended to Statutory Appeals and Non-Payment of Fees; Article 6 Would Have Extended Time Regardless

News, Professional discipline & regulatory

Judgment has been handed down by the Court of Appeal in Eskander v GMC [2026] EWCA Civ 372. The Court allowed the Appellant’s appeal. The appeal concerned two issues: first, whether Dr Eskander’s statutory appeal against a decision of the Medical Practitioners’ Tribunal Service (“MPTS”) was filed outside the prescribed time limit; and second, if so, whether an extension of time ought to be granted. Nugee LJ (with whom Cobb and Baker LJJ agreed) upheld the appeal finding: (i) that the appeal was lodged in time; and (ii) even if it were not, they would have granted permission to extend time in order to comply with the Appellant’s Article 6 rights.

The appeal clarifies and expands the scope of the recent Court of Appeal judgment in Siniakovich v Hassan-Soudey [2026] EWCA Civ 215. It also considered the correct interpretation of the first Ladd v Marshall [1954] 1 WLR 1489 principle in circumstances where an appellant was already in possession of the evidence at the time of the first instance decision.

The factual background

By way of a decision by the MPTS dated 20 August 2025, the Appellant was suspended from practice for a period of 12 months. This followed a prior determination that her fitness to practice was impaired due to misconduct. The detailed background of the MPTS proceedings was not relevant to the appeal. The Appellant then sought to appeal this decision. By way of the statutory regime (set out below) she had 28 days from 20 August 2025 to do so (i.e. by 23 September 2025).

Prior to appealing, the Appellant instructed a direct access barrister (“B”) to assist her with the appeal. The full background of what then occurred are set out in paragraphs 16-37 of Nugee LJ’s judgment. In short, the Appellant sought advice on how to file her appeal and how to pay the requisite court fee from B. B advised that the Appellant would receive a payment link after filing her appeal by email. The appeal was filed on the last day on which it could be filed. When no payment link arrived, B advised that the Appellant should wait – one would arrive.

A number of weeks passed, during which the Appellant did not receive any such link. She was advised by B to “wait and see from the Court” after raising the fact she had not yet received anything from the Court or paid a fee.

On 16 October 2025, the Appellant received communication from the MPTS to the effect that the GMC had not received a sealed appellant’s notice and had been advised by the ACO that no fee had been paid; as such, there was no valid, in-time appeal, with the result being that the Tribunal’s direction took effect and her registration was suspended. The Appellant was understandably distressed by this and attended the Court in person and was able to pay the fee at the counter – her appeal was then sealed and issued.

The GMC then applied to strike out the Appellant’s appeal. The Appellant, in response, made an application to extend time for the presentation of her appeal, she attached a witness statement explaining the course of events. She did not, at that stage, waive privilege in respect of any of the advice she had received. Prior to filing her application, the Appellant had forwarded it to B, who replied “Looking quickly at your draft order and application, they seem to me to be addressing what needs to be done”. B did not advise that the previous advice he had given regarding the payment of the fee was incorrect.

Mansfield J considered both applications on the papers. He refused the Appellant’s application for an extension of time and struck out her appeal.

The statutory framework

By virtue of Section 40(1) of the Medical Act 1983 (“the Act”) the Appellant had a statutory right of appeal against her suspension. Section 40(4) of the Act provides that a doctor must appeal within 28 days from notification of the decision:

“A person in respect of whom an appealable decision falling within subsection (1) has been taken may, before the end of 28 days beginning with the date upon which notification of the decision was served under section 35E(1) above, or section 41(10) below, appeal against the decision to the relevant court.”

Section 40(5) of the Act prescribes that the venue for the Appellant’s appeal (based upon her address in the register) was the High Court. The only provision within the Act for time for the presentation of an appeal to be extended is, under Paragraph 9 of Schedule 4, in circumstances where the notification sent by post was not received within 14 days. Paragraph 10 of Schedule 4 sets out the time when a suspension takes effect. If no appeal is brought, suspension takes effect from the expiration of the time period in which an appeal may be presented. If an appeal is brought, the suspension takes effect on dismissal of the appeal.

Did the Appellant appeal out of time?

The appeal was initially brought on three grounds focussing on whether an extension of time should be granted. However, the week before the hearing a differently constituted panel of the Court of Appeal handed down its decision in Siniakovich v Hassan-Soudey [2026] EWCA Civ 215 (“Siniakovich”). In Siniakovich the Court held that a claim was brought, for the purpose of the Limitation Act 1980, when a claim form is first delivered to the court office, whether or not the fee for bringing said claim had been paid in full or not. Importantly, Siniakovich was a case regarding (i) the Limitation Act 1980; and (ii) the position when there had been a part payment of the court fee; the Court had expressly held that their decision did not encompass a situation where there had been a non-payment of the fee. Nugee LJ provides a detailed summary of Siniakovich at paragraphs 53-71 of his judgment.

The Appellant succeeded in arguing that:

• There was no principled distinction between a part payment and non-payment of the court fee when considering whether an action has been “brought” (paragraphs 74-84). There must be a bright line readily identified in all cases without investigation into the litigant’s state of mind (paragraph 76).
• There was no principled distinction between an action being “brought” for the purposes of the Limitation Act 1980 and an “appeal” against a decision of the MPTS for the purpose of Section 40(4) of the Act (paragraphs 85-97). In fact, the Court held the same principle must be consistent across all different statutes which prescribe a period for the presentation of an action or an appeal – to hold otherwise “would seem a recipe for chaos” (paragraph 89).

Accordingly, the Appellant succeeded in arguing that the order of the High Court striking out her appeal on the basis that it was presented out of time was wrong: her appeal had been instituted within the statutory time frame for doing so. However, the Court nonetheless went on to consider the Appellant’s remaining grounds of appeal.

The admissibility of new evidence

In support of the Appellant’s ground of appeal seeking an extension of time for the presentation of her appeal she sought permission to rely on fresh evidence that had not been before Mansfield J, namely the advice she had received from B.

This was considered by Nugee LJ at paragraphs 105-134. In summary:

• CPR r.52.21(2)(b) provides the Court a broad discretion to allow before it evidence which was not before the lower Court. This discretion is to be exercised in accordance with the overriding objective (paragraph 107).
• Nonetheless, the criteria set out in the well-known case of Ladd v Marshall [1954] 1 WLR 1489 remain central to the exercise of the Court’s power (paragraph 107).
• “The Ladd v Marshall criteria are that three conditions have to be met: (i) that the evidence could not have been obtained with reasonable diligence for the trial; (ii) that it would have had an important, even if not decisive, influence on the result of the case; and (iii) that it must be apparently credible.” (paragraph 108).
• The evidence of the Appellant was apparently credible. Most of it was contained within email correspondence, the remainder was commensurate with the contemporaneous evidence (paragraphs 109-117).
• The evidence would have an important influence on the result of the case (paragraph 118).
• That, in respect of the first Ladd v Marshall principle, the test to be applied in the instant matter was “whether [the Appellant] should reasonably have realised that she needed to give an account of her communications with [B] for the purposes of the strike-out”. This followed a citation of Phipson on Evidence (21^st edn, 2026) at §13-07 which suggests the test is “where a party acting with reasonable care could have anticipated the need to call the relevant evidence” (paragraph 120).
• The so-called “surrogacy principle” did not apply in the instant appeal in determining the application to adduce fresh evidence as the Appellant had instructed B on a direct access basis. She retained responsibility to draft and file documents relevant to her application for an extension of time herself; B was not acting as her agent (paragraph 121-124).
• It was reasonable for the Appellant to rely on the views of B in drafting her application and thus not waive privilege and deploy the evidence of the legal advice she had received (paragraph 125-130).
• The standard of diligence required of a litigant facing an interlocutory application is not as exacting as that required at trial (paragraph 129).

Accordingly, the Appellant was given permission to rely on fresh evidence not before Mansfield J, namely the advice she had received in respect of the filing of her appeal.

The extension of time

Having admitted the additional evidence, the Court considered whether Mansfield J had erred in not granting an extension of time for the presentation of the Appellant’s appeal.

There was little dispute between the parties as to the principles to be applied in determining this question. In short, there is no statutory power (save for the limited power set out above) to extend time for the presentation of the appeal. However, Article 6 of the European Convention of Human Rights (“the Convention”) requires the statute to be read such as to grant the Court a discretion in exceptional circumstances for filing and service of an appeal where the statutory provisions would otherwise operate to prevent an appeal in manner conflicting with an appellant’s Article 6 rights. This would arise if an appellant had personally done all they  reasonably could do to bring the appeal timeously (see Pomiechowiski v District Court of Legnica, Poland [2012] UKSC 20, [2012] 1 WLR 1604; Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818, [2013] 1 WLR 3156; and Rakoczy v GMC [2022] EWHC 890 (Admin)) (paragraphs 135-140).

The Court accepted that the guidance to litigants on how to pay the court fee was not clear. Further, it was noted that B had accepted responsibility to advise the Appellant on how to pay the fee. In those circumstances, it was reasonable for the Appellant to rely on that advice and she had done all that she reasonably could to bring the appeal timeously. Thus, had the Appellant not already succeeded in arguing her appeal was instituted in time, the Court would nonetheless have given permission to extend time (paragraphs 141-148).

Ben Collins KC and Karim Pal acted for the successful Appellant instructed by Daniel Hudson and Owen Rees of Seladore Legal.

You can read the full judgment here.