Eskander v General Medical Council - Medical Licensing Appeal Timeliness

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  Eskander   v General Medical Council [2026] EWCA Civ 372 (31 March 2026)

URL: https://www.bailii.org/ew/cases/EWCA/Civ/2026/372.html
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[2026] EWCA Civ 372 | | |
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| | | Neutral Citation Number: [2026] EWCA Civ 372 |
| | | Case No: AC-2025-LON-003618 |
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Mansfield
Case No: AC-2025-LON-003618

| | | Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 31 March 2026 |
B e f o r e :

LORD JUSTICE BAKER
LORD JUSTICE NUGEE
and
LORD JUSTICE COBB

Between:
| | AMY ESKANDER | Appellant |
| | - and - | **** |
| | GENERAL MEDICAL COUNCIL | Respondent |

**Ben Collins KC and Karim Pal (instructed by Seladore Legal Ltd) for the Appellant
Peter Mant KC (instructed by GMC Legal) for the Respondent

Hearing date: 12 March 2026**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

3. This judgment was handed down remotely at 10.30am on 31 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
5. .............................
7. Lord Justice Nugee:
8. Introduction
10. The question in this appeal is whether a statutory appeal by a doctor against a decision of a Medical Practitioners Tribunal ("Tribunal") was out of time, and if it was, whether time can and should be extended.
12. The Appellant, Dr Amy Eskander, wished to appeal a decision of a Tribunal suspending her registration. She had 28 days to do so from the date on which she was notified of the Tribunal's decision. That 28-day period expired on 23 September 2025. On that day she sent an appellant's notice appealing the Tribunal decision by e-mail to the Administrative Court Office ("ACO") of the High Court in London. She did not however pay the prescribed, or any, fee.
14. On 14 October 2025 the ACO told her that they would need the fee of ?294. She went in person to the Court on 17 October 2025 and paid the fee at the counter. On 21 October 2025 her appellant's notice was sealed by the Court.
16. The Respondent, the General Medical Council ("the GMC"), then applied to strike out her appeal on the basis that it had not been validly commenced within the 28 days because no fee was paid when the papers were filed on 23 September 2025.
18. That application came before Mansfield?J on the papers. By Order dated 14 November 2025 he struck out Dr Eskander's appeal on the basis that the appeal had not been brought in time and that it would not be appropriate to extend time.
20. Dr Eskander applied to this Court for permission to appeal Mansfield?J's order. She also sought permission to adduce fresh evidence. Lewison LJ adjourned both applications into Court, with the appeal to follow if permission were granted.
22. The case was initially listed for 12 March 2026 before myself and Cobb LJJ. Up until shortly before the hearing it did not seem likely that the appeal would raise any new point of principle, it being then common ground between counsel (i) that Mansfield?J was right to hold that the appeal was not brought in time because no fee had been paid when the appellant's notice was sent to the Court; (ii) that there is no express power (in statute or the CPR) to extend the 28-day period; but (iii)?that the effect of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("Article 6" and "the Convention") is that the Court has a very limited power to extend time where it is necessary to do so to avoid a breach of an appellant's Article 6 rights. The argument raised in Dr Eskander's Grounds of Appeal was that she could bring herself within the narrow circumstances in which the Court could and should extend time.
24. On 4 March 2026, however, this Court handed down judgment in Siniakovich v Hassan-Soudey [2026] EWCA Civ 215 ("Siniakovich"). The lead judgment was given by Andrews LJ, with whom Warby and Zacaroli LJJ agreed. In her judgment she held that, for the purposes of the Limitation Act 1980, an action had been brought in time when the claim form had been delivered to the Court office before the expiry of the limitation period, even though there was an underpayment of the appropriate fee.
26. In those circumstances Mr Ben Collins KC, who appeared with Mr Karim Pal for Dr Eskander, indicated that he would be applying to amend the Grounds of Appeal to add the argument that Siniakovich could not be distinguished, with the result that Dr Eskander's appeal was in fact brought on 23 September 2025, despite the non-payment of the fee, and hence in time. Since this was a point of potentially wider significance the Court arranged for the case to be listed before a three-person Court with Baker LJ presiding.
28. At the hearing Mr Collins duly applied for permission to amend the Grounds of Appeal. This was not opposed by Mr Peter Mant KC, who appeared for the GMC, and we therefore granted permission to amend.
30. The appeal was ably argued on both sides. At the conclusion of the hearing we were able to inform the parties of our decision. As well as granting Dr Eskander permission to amend the Grounds of Appeal, we granted her permission to appeal on all Grounds, and permission to adduce fresh evidence that was not before Mansfield?J. We also allowed the appeal, with reasons to follow.
32. I now give my reasons for agreeing to this course.
34. Facts
35. Dr Eskander is a Specialist Registrar in Neurology. She appeared before a Tribunal of the Medical Practitioners Tribunal Service ("the MPTS") in 2025. The allegations that led to her appearing before the Tribunal related to a criminal conviction for unlawful eviction of the occupier of a property owned by her, and alleged misconduct, including allegations of dishonesty. The alleged misconduct related to the submission of an academic assignment which was not her own work, and a failure to make various appropriate disclosures.
37. A fair number of the allegations were admitted, and on 4 March 2025 the Tribunal made a written determination of those that were disputed, including findings of dishonesty. It is not necessary to set out the detailed findings. On 2 July 2025 the Tribunal made a determination that Dr Eskander's fitness to practise was impaired by reason of her conviction and her misconduct. On 20 August 2025 the Tribunal made a determination on sanction, namely that Dr Eskander's registration should be suspended for 12 months. They also decided against an immediate order of suspension. The effect of that was that her registration would be suspended 28 days from the date on which written notification was deemed to be served, unless she lodged an appeal. If she lodged an appeal she would remain free to practise unrestricted until the outcome of any appeal was known.
39. A written copy of the Tribunal's determinations was sent to Dr Eskander by post on 21 August 2025 under cover of a letter from the MPTS. The letter told her that any appeal must be lodged at the relevant Court within 28 days of the date on which notification of the decision was deemed to have been served on her; that notification was deemed to be served on 26 August 2025; that any appeal must therefore be lodged by 23 September 2025; and that if she did not appeal, the substantive sanction would be effective from 24 September 2025. The letter told her that if she did lodge an appeal she must immediately provide the MPTS with proof of the appeal being lodged, failing which the MPTS would assume that she had not lodged an appeal and the sanction directed by the Tribunal would be made effective. It also said:
41. "Evidence that may provide proof of the appeal being lodged should include at least one of the following:
42. > > the reference number provided by the court, or
43. > > a receipt of payment to the court
44. > > a sealed claim form
45. > > letter or other correspondence from the court."
46. Dr Eskander sought help from a barrister acting on direct access, Mr Anthony Jones. As explained below the fresh evidence which she adduced for the purpose of this appeal in effect consisted of an account of her communications with Mr Jones, in which she has waived privilege. Since we have decided that such evidence should be admitted, what follows is based on that material. In the light of the submissions we have received it is helpful to set out the course of events in somewhat greater detail than would normally be necessary.
48. Dr Eskander first contacted Mr Jones on 11 September 2025. By e-mail on 15 September he agreed to assist her. By e-mail on 18 September he advised her that there were some prospects in launching an appeal against the sanction, and provided her with draft grounds of appeal. On (Saturday) 20 September she e-mailed him saying that she aimed to submit on Monday (22 September), and later the same morning that she was very anxious with the deadline fast approaching.
50. On (Monday) 22 September she sent Mr Jones detailed comments at 21.05. Her e-mail included this:
52. "I would be grateful if you could please advise on finalising the process and fees required of me now."
53. She followed that with a further e-mail on the morning of (Tuesday) 23 September at 10.18. In the latter she said, among other things:
55. "Timetable for today.
56. Please tell me in roughest terms when you believe the guts of the substantive content crafted in terms that the work of the court requested is clear, fully incorporating all thoughts including contained here.
57. I suggest that we agree now a time to meet at your chambers so you can talk me through how you have dealt with each issue and where, get each document signed (I assume you are working with Riders rather than trying to fit in small boxes) and organise the fee.
58. I assume when we are done your clerk will file the documents and come back with everything stamped, not just top sheet?
59. Would mid-day work for you?
60. I look forward to a smooth completion and meeting you in person to be led through the paperwork substantively."
61. Mr Jones replied at 10.45. His e-mail included the following:
63. "To respond quickly given the deadline at the end of the day:
64. ?
65. b) neither I nor my clerk are entitled to send the documents to the Court or the GMC. That needs to be done by you: it can be done in person at the Royal Courts of Justice in the Strand (just near my chambers if you are coming in today or by e-filing);
66. ?
67. e) meeting in person. I am very happy to see you in chambers later today. Any time from 1pm would work best for me ? I can show you all the documents and give you the pack of paper documents which will need to be taken to the Administrative Court counter for filing."
68. This would appear to be the first indication that Dr Eskander received that she would have to take responsibility for the filing herself.
69. She replied at 10.55:
71. "Many thanks for clarifying.
72. Would you please confirm that a clerk experienced in the particular court would be available to accompany me, and steward the process, and ensure that we get all the stamps on the documents. Would you please assist me with paying the fee at the counter, is it a cash payment.
73. I confirm that I will not be submitting by e-filing. I look forwards to meeting you at 1 pm today."
74. Mr Jones sent another e-mail at 12.59:
76. "I and my clerks have made enquiries with the Court and have been advised that the preferred method for filing your documents (because you are a litigant without a solicitor acting for you) will be via a simple email from you with the documents as attachments. I will draft the covering email.
77. The address is:
78. administrativecourtoffice.generaloffice@justice.gov.uk
79. You will then need to forward the email and attachments to the GMC at gmc@gmc-uk.org.
80. The MPTS has asked that you inform them that you have filed the appeal. Likely the Administrative Court will provide a reference number in an email back to you, but it would be prudent to contact the MPTS immediately after filing in any event and say that it has happened and that you will provide a reference number when it becomes available.
81. I will discuss this with you shortly."
82. Dr Eskander then met Mr Jones at his chambers. She had brought her laptop and he drafted an e-mail for her to send to the ACO, which was sent at 14.11. This read:
84. "I am a litigant in person, and have been advised by staff in the Administrative Court Office to file my documents via this email address for my statutory appeal against the decision of the Medical Practitioners Tribunal Service pursuant to section 40 of the Medical Act 1983.
85. Please find attached:
86. a) the Appellant's Notice N161 form;
87. b) the Grounds of Appeal;
88. c) the Skeleton Argument; and
89. d) in lieu of a sealed order, a copy of the decision appealed against.
90. I would be grateful for an acknowledgment of my filing, as I need to inform the Medical Practitioners Tribunal Service of this appeal as soon as possible.
91. I will also send these documents to the respondent to the appeal, the General Medical Council, by email.
92. Please let me know if there is anything further you require."
93. At 14.17 Dr Eskander e-mailed the MPTS to inform them that she had initiated an appeal, forwarding the e-mail she had sent to the ACO. She explained that she had not immediately received either a sealed claim form or reference number but would provide them when provided to her. The MPTS forwarded this e-mail to the GMC the same day.
95. Dr Eskander's evidence is that she asked Mr Jones how the Court fee would be paid if she was e-filing the appeal, and that he told her that as soon as she sent the e-mail to the ACO, she would receive an automatic reply which would include a link that she could use to make payment with a credit card. She said that she did not however receive any automatic e-mail from the ACO, but Mr Jones reassured her that she would receive one and that it did not matter if the e-mail was not sent that day as long as she paid the Court fee promptly when requested; he also confirmed that the appeal had been successfully filed. One of the matters argued before us was how reliable Dr Eskander's evidence on these points is. I consider this below.
97. On 24 September at 17.00 the MPTS e-mailed Dr Eskander a letter confirming that they had been made aware of her appeal. She forwarded it to Mr Jones at 17.21 saying:
99. "I have received the confirmation from the MPTS. I have not yet received anything from court, and therefore fee has not paid yet.
100. Please let me know if there is anything further that I should be doing for now."
101. Mr Jones replied at 17.43:
103. "That is good news from the MPTS. We will simply need to wait and see from the Court, I'm afraid."
104. On 1 October Mr Worthington, a Legal Adviser at the GMC, e-mailed Dr Eskander to acknowledge receipt of the appeal documents from the MPTS. He asked her whether she had had anything back from the Court yet. Dr Eskander forwarded this to Mr Jones, telling him that she had not heard back from the Court yet.
106. On 2 October she did receive an e-mail from the ACO. This told her that the ACO was unable to issue the claim as they required the application to be a single compliant pdf file as per ACO guidance. She forwarded this to Mr Jones and asked him to deal with it urgently. He agreed to create the relevant pdf and provide it the next day, which he did. She promptly sent it to the ACO.
108. The next she heard from the ACO was on 14 October at 12.53, as follows:
110. "Please note that the claimants' details is not readable, please correct this.
111. Also, we will need the fee of ?294."
112. She replied at 13.46 asking which claimants' details were unreadable, and asking them to advise on how to pay the fee. She also forwarded the e-mail to Mr Jones. He said the details seemed readable to him but that she could reply giving her address, phone number and e-mail. She replied:
114. "Thank you Anthony, apologies, if I am too OCD."
115. She also sent a further e-mail to the Court at 15.25 with her details and again asking:
116. "I look forwards to hearing back regarding the payment method as soon as possible."
117. That was how matters stood on 14 October, with her appeal apparently on track, albeit progressing slowly. So Dr Eskander was understandably shocked to receive an e-mail in the afternoon of 16 October 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 that the Tribunal's direction took effect; and that her registration was therefore suspended. She promptly sent it to Mr Jones asking for urgent advice. He replied:
119. "I thought you had paid the fee? Or had you just asked the court how to pay it?
120. I would email the MPTS immediately and say that (a) you either have paid or have offered to pay the fee (whatever the position is); and (b) sealing remains out of your hands and in the power of the Court. Further, as is obvious from your application, which has been served (albeit unsealed) on GMC, your intention to appeal within time was clear. As a result, you ask the MPTS and GMC to continue to stay your suspension pending service of the sealed version by the Court, and say that in the absence of their confirmation you will seek urgent injunctive relief from the Court."
121. On 17 October she went to the Court herself and was able to pay the fee.
123. On 21 October the ACO issued her appellant's notice by sealing it. As well as a seal with the date of 21 October, the notice also has a box in the top right marked "For Court use only" which gives the "Date filed" as 23 September 2025. The ACO e-mailed it to Dr Eskander, who forwarded it to the MPTS and the GMC and asked for confirmation that she was not suspended.
125. On 23 October however Mr Worthington e-mailed the ACO with an application for Dr Eskander's appeal to be struck out. The attached letter invited the Court to refer the matter to a Judge to consider striking out the appeal of its own volition. Dr Eskander was copied in to the e-mail. She forwarded it to Mr Jones. His reply (on 23 October at 10.32) said:
127. "I think the appropriate response is two-fold: a) to respond to the application for strike-out with a short witness statement from you, which attaches your emails with the court office showing that you submitted on time and were not provided with a means to make payment until you attended and did so in person; and b) make an application for (if deemed necessary) a retrospective extension of time for the appeal, combined with an order for stay of the suspension pending determination of the appeal.
128. With a very full week this week and next, I am unlikely to be able to draft those applications, I am afraid."
129. Dr Eskander drafted an Application notice (in form N244), a witness statement, and a draft order. On 24 October Mr Jones e-mailed her:
131. "I am just looking at this between things today, but wanted to say I share your frustration with what has happened. Looking quickly at your draft order and application, they seem to me to be addressing what needs to be done, and I am hopeful that the Court will see sense on this, and the appeal can simply be listed and dealt with in the usual way.
132. I will be able to turn to this again over the weekend, and will read everything in detail and be back in touch."
133. Dr Eskander issued her Application notice. The ACO invited the GMC to provide views on it. Mr Worthington did so on 30 October. Dr Eskander replied the same day with a further short statement of clarification. This said among other things:
135. "1. The appeal was filed electronically on 23 September 2025, fully in accordance with the E-filing guidance.
136. 2. Under that guidance, payment is made following acknowledgment from Administrative Court staff. I awaited that instruction after filing."
137. She copied in Mr Jones. He replied to the effect that it was very sensible of her to send this to the Court; and that it would be likely that there would be a hearing of the two applications at which point the full argument could be made. He then set out the important points as he saw them, as follows:
138. "1. The Administrative Court Office at the Royal Courts of Justice is no longer a publicly-accessible desk like it used to be, and so a litigant in person cannot simply attend to issue a claim and pay the fee on the spot.
139. 2. It is possible to make an appointment during Monday, Wednesday, or Friday 11am to 12 noon only where an officer from the Administrative Court Office will meet an applicant.
140. 3. Because the Administrative Court Office does not have a walk-in facility to issue claims, RCJ court staff recommend that litigants use electronic filing for all claims and applications.
141. 4. A litigant in person, unlike a solicitor, has no access to the ordinary CE-file electronic filing system which allows for electronic lodgement and fee payment.
142. 5. Accordingly, a litigant in person, if they need to issue a claim and they are not available in the single three hours in the week when an appointment in person could be made, is obliged to use the only other electronic means, which is sending the claim via the Administrative Court Office email address.
143. 6. When sending via the email address, there is no facility to make payment at the same time. But once the claim is emailed, the claimant has done everything within their power to effect the issue of the claim.
144. 7. You, in keeping with the direction to issue electronically, sent your claim via the email address and at all times stood ready to make the payment. When you were advised to do so, you did so in a timely fashion.
145. This is obviously very frustrating, but you have followed the procedure specifically recommended by the Court following the Court's own decision to close down access to the public counter.
146. Let's see in what format the Court wants further submissions, and address them in that way when the time comes."
147. Order of Mansfield?J
148. In fact there was no hearing. On 14 November 2025 Mansfield?J considered the documents lodged by the parties and made an Order striking out Dr Eskander's appellant's notice.
150. He first considered whether the appeal was brought in time. He held that it was not. Practice Direction 52B para 4.1 provides that an appellant's notice must be accompanied by the appropriate fee or, if appropriate, a fee remission application or certificate. This requirement has been recognised by the Court in Rakoczy v GMC [2022] EWHC 890 (Admin) ("Rakoczy"), a decision of Fordham J; and in Gupta v GMC [2020] EWHC 38 (Admin) ("Gupta"), a decision of Julian Knowles J. The appeal was therefore not filed in time. (I interpose here to say that Mansfield J was plainly right to follow Gupta and Rakoczy and to hold, as the authorities stood, that the appeal was out of time. His decision to that effect is therefore entirely understandable.)
152. He then considered whether the Court should extend time. His reasoning can be summarised as follows. The relevant test is set out in Rakoczy and cases referred to therein, particularly Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818 ("Adesina"). The Court has a discretion but it arises in exceptional circumstances, and where the Appellant has done all that he/she can to bring the appeal timeously. Dr Eskander e-mailed the appellant's notice to the Court on the afternoon of the last day for filing; she did not pay the fee, seek remission or make any enquiry as to how to pay the fee. She did not offer any explanation in her witness statement as to why the fee was not paid in time. There is ample guidance available publicly on line as to the requirement for a fee to be paid when filing an appellant's notice, and the ACO guide explains how to pay. None of these materials suggest that the appropriate course is to wait until the appellant's notice has been acknowledged before paying the fee. There was no good explanation for her failure to take any steps to make payment before the expiry of the time limit. He did not accept that she had done all that she reasonably could to bring the appeal in time. It would not be appropriate to extend time, and he dismissed the application.
154. He therefore struck out the appeal.
156. Grounds of Appeal
157. As originally issued, Dr Eskander relied on three Grounds of Appeal as follows:
159. (1) The fresh evidence that she wished to rely on should be admitted, and shows that she did all that she reasonably could to file the appeal timeously. The fresh evidence shows the advice that she received from an experienced barrister, that she was mis-advised as to how to pay, and that she followed and relied on counsel's advice. She could not reasonably have done anything other than follow that advice, and in those circumstances did pay as soon as she reasonably could.
160. (2) Alternatively, if Mr Jones's advice was correct, the hurdles for a litigant in person to overcome in paying the fee are almost insurmountable, and it is necessary to extend time to give effect to Dr Eskander's Article 6 rights.
161. (3) Logically either Ground 1 or Ground 2 must be right. If Mr Jones was right, the practical difficulties are almost insurmountable; alternatively, Ground 1 is right and Dr Eskander was given the wrong advice. In either case, she personally did all she reasonably could to bring her appeal in time and time should (indeed must) be extended.
162. As these Grounds make clear, no challenge was at this stage made to Mansfield?J's conclusion that the appeal was not in fact brought in time.
164. By Order dated 7 January 2026 Lewison LJ adjourned the application for permission to appeal, and the application to adduce fresh evidence, into Court, with the appeal to follow if permission were granted. Dr Eskander had asked for a stay of execution of Mansfield?J's Order and a restoration of her licence to practise pending appeal, but Lewison LJ declined to make such an Order. She therefore remained suspended pending the appeal.
166. As already referred to, we granted permission to Dr Eskander to amend her Grounds of Appeal in the light of the recent decision in Siniakovich. The new Ground 4 is that Mansfield?J erred in finding that the appeal was not filed in time because the appellant's notice must be accompanied by the appropriate fee.
168. Ground 4 logically comes first, and I will consider it first, as did counsel.
170. The Medical Act 1983
171. I will first set out the relevant legislation. This is found in the Medical Act 1983 (as amended). By s. 1(1) the GMC is to continue as a body corporate with the functions assigned to them by the Act; by s. 1(1A) the over-arching objective of the GMC in exercising their functions is the protection of the public. By s.?1(3) the GMC is required to have a number of statutory committees, including the Investigation Committee, the MPTS and one or more Medical Practitioners Tribunals.
173. Part V of the Act (ss.?35 to 44D), headed "Fitness to Practise and Medical Ethics", provides for investigations of allegations that a registered practitioner's fitness to practise is impaired. By s.?35C(4) the Investigation Committee decides whether such an allegation should be referred to a Tribunal, and by s.?35C(5)(b) if they so decide, it is referred to the MPTS, which by s.?35D(1)(a) must then arrange for it to be considered by a Tribunal. By s.?35D(2) where the Tribunal find that the person's fitness to practise is impaired they may impose a number of sanctions, including, by s.?35D(2)(b), directing that his registration shall be suspended for up to 12 months.
175. By s.?35E(1) where a Tribunal gives a direction for (among other things) suspension under s.?35D, the MPTS shall forthwith serve on the person concerned notification of the direction and of his/her right to appeal against it under s.?40. By s.?40(1) a number of decisions are specified as appealable decisions, including a direction for suspension. Then s.?40(4) provides:
177. "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."
178. By s.?40(5) the relevant court depends on where a person's address in the register is, and in Dr Eskander's case was the High Court.
179. Schedule 4 contains certain supplementary provisions. Paragraph 9 contains a very limited power for the Registrar or the MPTS (as the case may be) to extend time for appealing, if satisfied that a notification that was sent by post was not received within 14 days. The power is expressed as follows:
181. "the Registrar or (as the case may be) the MPTS may ? extend the time within which an appeal under section 40 of this Act ? may be brought against the decision."
182. There is no other statutory provision for extension of time for appealing.
183. Paragraph 10 of schedule 4 makes provision for when various sanctions, including a suspension, take effect. Paragraph 10(1) provides as follows:
185. "(1) A direction for erasure, for suspension or for conditional registration given by a Medical Practitioners Tribunal under section 35D of this Act or a variation by a Medical Practitioners Tribunal under section 35D(12) shall take effect?
186. > (a) where no appeal under section 40 is brought against the direction or variation within the time specified in that section, on the expiration of that time;
187. > (b) where such an appeal is so brought but is withdrawn or dismissed for want of prosecution, on the withdrawal or dismissal of the appeal;
188. > (c) where such an appeal is so brought and is not withdrawn or dismissed for want of prosecution, if and when the appeal is dismissed."
189. As set out above, Dr Eskander e-mailed her appellant's notice to the ACO on 23 September 2025, which was the last day of the 28-day period for appealing the decision of the Tribunal. The question that arises under Ground 4 is whether that meant that she had done enough to "appeal against the decision of the relevant Court" within the meaning of s.?40(4) of the Act.
191. Siniakovich
192. It is convenient next to consider Siniakovich, which it is helpful to do in some detail. Mr Siniakovich wished to bring a claim for, among other things, defamation and malicious falsehood. By s.?4A of the Limitation Act 1980, no action for libel, slander or malicious falsehood "shall be brought" after the expiration of 1 year from the date when the cause of action accrued. In Mr Siniakovich's case the relevant causes of action accrued on 28 March 2024, and the limitation period expired on 28 March 2025.
194. His claim form claimed damages, and the value of the claim was stated to be ?370,000. A claim for damages of that amount would attract an issue fee of ?10,000. But counsel had also settled Particulars of Claim which not only claimed damages but other relief, namely a final injunction to prevent republication, the issue of a retraction and apology (something the Court in fact has no power to order), and a compliance order under the Data Protection Act 2018.
196. Mr Siniakovich's solicitor paid a fee of ?10,000, and then attempted to file the claim form and Particulars of Claim (by CE-file). That was on 27 March 2025 (the day before the limitation period expired). But on 7 April 2025 a court clerk notified her that the filing had been rejected because the appropriate fee had not been paid. That was on the basis that the Particulars of Claim included a claim for an injunction, which attracted an additional fee of ?626 as Mr Siniakovich was claiming non-monetary as well as monetary relief. His solicitor promptly paid the ?626 and resubmitted the claim form and Particulars of Claim by CE-file. The claim form was sealed and issued by the Court on 8 April 2025.
198. There were then a number of procedural mis-steps which it is not necessary to set out. By the time the case was argued in this Court, it had become clear that the real issue of substance was that identified by Andrews LJ in her judgment at [37], namely:
200. "whether a failure to pay the correct fee at the time when the claim form was received in the court office means that the action has not been "brought" on that date for the purposes of the Limitation Act 1980 (and any other statute of limitations)."
201. Andrews LJ concluded that the answer to that was No.
202. There was also a secondary issue as to whether there had in fact been an underpayment of the correct fee. That turned on whether the Court office was correct to calculate the fee on the basis of the relief claimed in the Particulars of Claim (which included the non-monetary claim for an injunction), or whether the fee should have been based solely on the relief claimed in the claim form (which did not). Nothing turns on that for present purposes but Andrews LJ in fact concluded that the two documents, being filed together, should be read together, and that the Court office was therefore correct that the extra fee was payable (see at [127]-[128]).
204. On the main issue Andrews LJ's judgment contains an illuminating discussion of various previous authority, which I can pass over, and then reaches her conclusions at [95ff]. I can summarise them as follows.
206. There was in fact an underpayment of the fee. It was not deliberate, and it did not matter quite why Mr Siniakovich's solicitor only paid a fee based on the relief claimed in the claim form [95].
208. The Court office spotted the error. Since the documents were filed electronically (in accordance with Practice Direction 51O), the underpayment meant that the documents "failed Acceptance", and the Court office was entitled to reject them and require them to be re-filed and the correct fee paid. That meant that the claim form was not deemed to be issued at the time of the original payment (PD 51 para 5.4(6)) [96].
210. It was less clear when the claim form was filed for the purposes of the CPR and the Practice Direction. But that is not the question; the question is when the action is brought for the purposes of the Limitation Act 1980. The interpretation of "brought" in the statute does not turn on the interpretation of the rules of civil procedure and practice directions. The question of when an action is "brought" must be answered in the same way whether the claimant is using electronic or other means to deliver the claim form to the Court [97]-[98].
212. That must depend on what the claimant does, not their reasons for doing it. The claimant's (or his solicitor's) state of mind cannot affect this. There must be a bright line which is readily identifiable in all cases [99].
214. The question whether an action has been brought should focus on the claim form [101]. Mr Siniakovich's solicitor did deliver a claim form to the Court office on 27 March 2025, and paid the correct fee for a money claim. Why should the failure to pay a further fee for additional non-monetary remedies mean that he had not done all that was necessary and sufficient to commence an action [102]? Non-payment of the appropriate fee could justify the refusal to issue the claim form until the shortfall was paid. But payment of a court fee is [103]:
216. "a purely administrative act which does not affect the substance of the claim. It has no impact on the putative defendant save to the extent that, depending on how quickly a shortfall is corrected, it may cause some delay in the issue of the claim form (and possibly lead to a delay in its service?) so that the defendant finds out about the existence of the claim later than they might otherwise have done."
217. Andrews LJ continued at [104]:
219. "Apart from that possible delay, the failure to pay the full amount that the court must "take" under the Fees Order for carrying out its administrative function of issuing the claim form does not prejudice the defendant. The amount of the claim may be vastly in excess of the shortfall in fees, and it may otherwise be a perfectly meritorious claim. Can Parliament really be taken to have intended that a defendant should be entitled to raise a defence of time-bar to such a claim, even if the claim form received by the court within the time allowed by statute was otherwise perfectly in order, merely because the claimant or the claimant's representative failed to pay the whole of the prescribed administrative fee? I do not believe so?"
220. If a claim is issued within the limitation period, it makes no sense to say that an action has not been brought. But a claim may be issued even if it later transpires that an incorrect fee was paid. So if a claim is issued within the limitation period it has been brought in time even if the appropriate fee was not paid [106]. But there is no justification for drawing a distinction between cases in which a shortfall has not been spotted by the Court office and the claim is issued within the limitation period, and cases in which it has been discovered and the proceedings are not issued until after the matter has been put right, by which time the limitation period has expired. It is the claimant who must "bring" the action in time; either they have done enough to stop time running or they have not [108]. Moreover the time it takes the Court to consider a claim form and the fee provided before reverting to the claimant can differ considerably from case to case; therefore claimants making the same error can face vastly different outcomes simply on the basis of the Court's administrative processes, something that has the potential to cause significant injustice [109].
222. Andrews LJ then considered the position of a claimant who lodges a help with fees form, who may nevertheless have to pay a partial fee. But that cannot mean that the action is not brought until that fee is paid [110]-[113].
224. She then considered some of the earlier cases and continued (at [120]):
226. "It is one thing to miss a deadline for filing; that is generally inexcusable. That is quite different from making a mistake in the payment of the fee, which can easily occur. The fees may have been increased without the solicitors being aware of the date on which the most recent statutory instrument amending the Fees Order came into force, or they may not appreciate that a claim for "further or other relief" attracts an additional fee. There is also plenty of scope for a litigant in person to make an error of this nature. Mr Wills points out that there is guidance to assist litigants, and that litigants in person are expected to comply with the rules of practice and procedure in the same way as everyone else, but that does not mean that they necessarily understand them, and they quite often get things wrong."
227. She then expressed her conclusion at [121] as follows:
229. "All these considerations seem to me to point clearly to the position stated in [Barnes v St Helen's Metropolitan Borough Council [2006] EWCA Civ 1372, [2007] 1 WLR 879 ] and [Page v Hewitts Solicitors [2012] EWCA Civ 805 ] and reiterated by Turner J in [Liddle v Atha & Co Solicitors [2018] EWHC 1751 (QB), [2018] 1 WLR 4953 ], as being the correct one, irrespective of whether the court fee has been paid in full by the time the limitation period expires, and irrespective of the reason for any shortfall. [Page v Hewitts Solicitors (No 2) [2013] EWHC 2845 (Ch) ] was wrongly decided. An action is brought when the claim form is first delivered to the court office, even if the office legitimately refuses to issue it (or, if filed electronically, it fails Acceptance) because the whole of the appropriate fee has not been paid. The delay in issuing the claim form, even if it is attributable to that failure, is immaterial, and the risk of being time-barred by reason of the shortfall in payment does not fall on the claimant. If a fee is proffered, or paid (as it must be in order for the documents to be filed electronically) or a help with fees form is lodged, the action will be brought when the claim form is received in the court office."
230. She added that that did not give claimants or their representatives carte blanche to make deliberate underpayments, or to buy additional time by deliberately delaying payment of the shortfall once the Court office had drawn it to their attention: in such a case there are other sanctions available to the Court including, in a particularly egregious case, striking out the claim [122].
232. And at [123]:
234. "We were not addressed by counsel on the situation in which (for whatever reason) no fee is paid or proffered and there is no application for fee remission. That situation is very unlikely to occur, especially now that electronic filing has become the norm, because it is impossible to deliver documents to the court electronically without either lodging an application for fee remission or paying some fee. I would prefer to leave consideration of that scenario to a case in which it directly arises."
235. She therefore held that Mr Siniakovich brought an action for defamation and malicious falsehood on 27 March 2025, within the limitation period [124]. Warby and Zacaroli LJJ agreed with her judgment without adding any reasoning of their own.
237. Ground 4: does the reasoning of Siniakovich apply to the present appeal?
238. With that introduction, I can now consider Ground 4.
240. Siniakovich is self-evidently concerned (i) with the commencement of proceedings by claim form, rather than by appellant's notice; (ii) with the question whether an action has been brought before the expiry of the limitation period, rather than whether a person has appealed within the statutory period for appealing; and (iii) with a case where there was an underpayment of the fee before the expiry of the relevant period, rather than no payment at all. But Mr Collins submitted that none of these provided any justification for distinguishing it, and that there was no difference in principle between the circumstances in that case and in this. Just as Mr Siniakovich's action was brought in time because his claim form was sent to the Court before the limitation period expired, despite the fact that the Court office correctly refused to issue it until the full fee was paid, so too Dr Eskander's appeal should be held to be brought in time because her appellant's notice was sent to the Court before the 28-day period for appealing expired, despite the fact that the Court office correctly refused to issue it until the appropriate fee was paid. There was, he submitted, no relevant distinction.
242. Does it make a difference that Dr Eskander paid no fee at all in time?
243. Three possible grounds of distinction were argued before us. Although they were not argued in this order by Mr Mant, I will take first the fact that Mr Siniakovich's solicitor did pay a fee, but did not pay the full amount in fact due, whereas Dr Eskander paid no fee at all by the expiry of the relevant period. Whether this could make a difference was something expressly left open in Siniakovich (see paragraph 70 above).
245. Mr Mant submitted that this was indeed a relevant distinction. He said that Siniakovich was concerned with paying an incorrect amount, not with a litigant paying nothing at all. Leaving aside the case where a litigant paid a minimal amount (a penny, say) ? something that did not need to be resolved on this appeal ? there was in his submission a material distinction between paying something and paying nothing. It was ultimately a question of what Parliament intended, and Parliament cannot have intended a litigant to bring a claim or an appeal without any attempt to comply. Where a payment has been made, in general it will reflect the fact that the litigant has tried to comply with the rules; but where no payment has been made, that is in general likely to be either an abusive case or one where no attempt had been made to comply with the formalities. He pointed to Siniakovich at 120 where Andrews LJ referred to litigants and their solicitors easily making mistakes, which in context should be understood as a reference to making mistakes as to the amount of the correct fee.
247. I do not however accept these submissions. I agree with Mr Collins that it is impossible to draw a logical distinction between the case where a litigant pays something, but not enough, and the case where a litigant pays nothing. The whole basis of Andrews LJ's decision in Siniakovich is that what is in issue is the meaning of the word "brought" in the Limitation Act 1980, something which focuses on what the claimant has done, and that there must be a bright line readily identifiable in all cases without investigations into the individual litigant's (or his solicitor's) state of mind: see [97]-99.
249. Given that that is the question, what are the possible meanings that could be given to the word "brought" in the Limitation Act? One possible interpretation would be that a litigant is not to be regarded as having brought his action until he has done everything that he is required to do in order for the claim to be issued, including paying the (whole of the) requisite fee. That would be a tenable view, and something that Parliament might rationally have intended when requiring an action to be brought within the limitation period. (That was in fact the decision that Hildyard J came to in Page (No 2), which Andrews LJ held to be wrongly decided at [121]).
251. Another possible view ? and this is of course the one adopted by Andrews LJ ? is that it is not necessary for the litigant to have complied with all the necessary requirements. It is sufficient if they have delivered their claim form to the Court office; that means that they have brought their action even though they have not done everything that they should have done, and that they will need to do before the claim is issued. That is also an intention that can rationally be attributed to Parliament.
253. I accept that both of these interpretations are possible meanings of what it is to bring an action; what Siniakovich does is prefer the latter to the former. But what I find impossible to accept is that the correct interpretation of what it is to bring an action for the purposes of the Limitation Act 1980 is neither of these but a middle course in which the claimant has not only delivered his claim form to the Court office but has made some, albeit inadequate, attempt to comply with the requirements. I do not see how that can be an available meaning of the word "brought". To bring an action must to my mind either mean "deliver a claim form", or "deliver a claim form and do whatever else needs to be done before issue"; it cannot sensibly mean "deliver a claim form and make some attempt, even if inadequate, to comply with what needs to be done before issue".
255. Nor is this just a linguistic point. It would lead to questions that are impossible to answer, and would be the very antithesis of a bright-line test. In fact in Mr Siniakovich's case we know that his solicitor paid ?10,000 and failed to pay ?626. But what if she had paid the ?626 and failed to pay the ?10,000? Would that be sufficient? Is that an attempt to comply? And if so, what of payment of an amount that could never have been thought to be adequate, such as ?50 or ?1? Payment of ?1 is not readily distinguishable from payment of nothing, and it would seem absurd that it should make all the difference. And if one had to consider whether the litigant or their solicitor had made an attempt to comply, that might involve considering their reason for underpayment ? something that Andrews LJ expressly says at [121] is irrelevant.
257. Nor do I think it is an answer to say that Parliament must have intended that an action is only brought if there is an attempt to comply with the requirements. Parliament, insofar as it thought about the question at all, no doubt intended that litigants, before being allowed to proceed, should not just attempt to, but should actually, comply with any statutory requirements, including the payment of the appropriate fee. This admittedly does not answer the question whether, when Parliament provided in the Limitation Act 1980 that an action should not be brought after the expiry of the relevant limitation period, its intention was that an action should not be regarded as having been brought until the full fee was paid. As I have said, that would be a rational view to ascribe to Parliament. However what does seem truly bizarre is to ascribe to Parliament the intention that an action should be regarded as having been brought if, but only if, at least some of the fee had been paid. It is very difficult to conceive of any rational reason why Parliament should have had that intention. In Siniakovich at [104] Andrews LJ said (see paragraph 64 above):
259. "The amount of the claim may be vastly in excess of the shortfall in fees, and it may otherwise be a perfectly meritorious claim. Can Parliament really be taken to have intended that a defendant should be entitled to raise a defence of time-bar to such a claim, even if the claim form received by the court within the time allowed by statute was otherwise perfectly in order, merely because the claimant or the claimant's representative failed to pay the whole of the prescribed administrative fee?"
260. The answer she gave to that is No. But once that is accepted, it then seems quite impossible to believe that Parliament can be taken to have intended that a defendant can rely on a time-bar, even if the claim form received by the Court within the time allowed by statute was otherwise perfectly in order, merely because the claimant or the claimant's representative failed to pay any of the prescribed administrative fee. That may equally be a case where the amount of the claim is "vastly in excess of the shortfall in fees, and ? otherwise ? a perfectly meritorious claim"; and the idea that this is where Parliament intended the line to be drawn seems wholly implausible.
261. And although I accept that when Andrews LJ said at [120] that making a mistake in the payment of the fee can easily occur, she was thinking, at least primarily, of mistakes in the amount of fee payable, what she says is equally applicable to someone such as Dr Eskander who makes a mistake as to how or when to pay the fee. Dr Eskander was well aware that a fee was payable and was willing ? indeed anxious ? to pay it; what she did not understand were the practicalities of paying it, that is how and when to do so. If mistakes in the amount do not disqualify the litigant, it seems very odd that mistakes in the mechanics of payment should do so.
263. For all these reasons I do not think that there is any relevant distinction between the case where a claim form is delivered to the Court office within the limitation period accompanied by payment of an inadequate fee, and the case where a claim form is so delivered but without payment of any fee. Both are cases where the claimant has delivered the necessary document to the Court office in time, but has failed to comply with what is an important, but essentially ancillary, requirement. It is no doubt one which needs to be complied with in order for the claim to be issued, but Siniakovich establishes that it does not need to be complied with fully in order for an action to be brought. This seems to me equally the case if no fee is paid.
265. I would therefore reject this suggested ground of distinction.
267. Does it make a difference that this is a statutory appeal not an action?
268. The second suggested ground of distinction between Siniakovich and the present case is that that was a case concerning the question whether an action has been brought for the purposes of the Limitation Act 1980, whereas we are here concerned with the question whether a person has appealed under s. 40 of the Medical Act 1983.
270. Mr Mant said that there was no reason why the same analysis should apply to all statutory time-bars for bringing proceedings, and that it was necessary to construe the particular statute in question. Here, if s.?40(4) of the Medical Act 1983 were held to be satisfied by delivery of the appellant's notice in time even without payment of the requisite fee, it would mean that there would be a lacuna in the scheme set up by paragraph 10 of schedule 4 (see paragraph 51 above). Paragraph 10(1) provides that if no appeal is brought within the 28-day period, the sanction directed by the Tribunal (erasure, suspension or conditional registration) should take effect on the expiry of the 28-day period (sub-paragraph (a)); but that if an appeal is so brought, it should take effect at the time specified in sub-paragraphs (b) and (c). These provide respectively for the cases where (i) an appeal is withdrawn; (ii) an appeal is dismissed for want of prosecution; and (iii) an appeal is otherwise dismissed. Mr Mant said that this would leave a lacuna in the case where an appellant's notice is delivered within the 28-day period, but the requirements for issue, such as payment of the fee, are never complied with. On Mr Collins's interpretation, such a case would mean that an appeal had been brought, but it would not be withdrawn, dismissed for want of prosecution, or otherwise dismissed. It would simply not proceed, never being issued.
272. This I think is a rather more difficult question. I agree that there is a potential lacuna in the scheme set up by paragraph 10 of schedule 4 to the Act. It seems clear that whoever drafted paragraph 10 assumed that the various possibilities referred to in the sub-paragraphs of paragraph 10(1) would between them cover all cases where no successful appeal was brought. It cannot have been the intention that, by delivering an appellant's notice to the Court, and never paying the issue fee, a doctor could effectively prevent the sanction of a Tribunal from taking effect indefinitely.
274. However, although s.?40(4) of the Medical Act itself simply refers to a person appealing ("A person ? may, before the end of the period of 28 days ? appeal against the decision"), paragraphs 9 and 10 of schedule 4 both refer to an appeal being "brought" within the relevant period (see paragraphs 49 to 51 above). It would seem very odd if the solution to the problem identified by Mr Mant can sensibly lie in treating the question whether an appeal is "brought" for the purposes of the Medical Act 1983 as raising a different issue from the question whether an action is "brought" for the purposes of the Limitation Act 1980. In each case the purpose of the provision is the same: it is to impose a defined and limited time in which a person may initiate Court proceedings. If, as Siniakovich establishes, an action is brought by delivering a claim form to the Court, it would be very surprising if it could be said that an appeal is not brought by delivering an appellant's notice to the Court, at any rate when the appellant's notice is the process by which proceedings are initiated. Mr Collins accepted that the question might be different if there was what he called an "internal" appeal, that is when proceedings were already in existence and a party wished to appeal a ruling or order made in the proceedings; but where, as here, the appeal is an "external" appeal, that is when the appellant's notice is the first step in initiating proceedings, it is very difficult to see that there is any logical distinction between the case where the originating process is a claim form as in Siniakovich, and the case where it is an appellant's notice as in the present case. In each case the essential question is whether the litigant has done enough to start the process before the end of the relevant period.
276. Nor do I think that it would be satisfactory if the answer to the question whether a person has appealed in time can vary from one statute to another, depending on a minute examination of the provisions of each statute. There are many appeals provided for by statute against decisions of all manner of persons or bodies. In each case the statute is likely to say that a person can appeal (or bring or file an appeal) against an adverse decision within a limited period from the decision being made or notified to them. It would seem a recipe for chaos if different answers were given to the question as to what needs to be done to appeal in time, depending on the precise wording of the particular statute.
278. Moreover I think the reasoning of Andrews LJ in Siniakovich at [106]-109 applies equally to the bringing of an appeal. If an appellant's notice is in fact issued, it seems very difficult to deny that the appeal has been brought. And in the ordinary case where an appellant's notice, accompanied by the correct fee, is delivered to the Court in time, it cannot matter that it takes the Court office some time to seal and issue it. So if in the present case Dr Eskander had paid the correct fee and delivered her appellant's notice to the ACO by 23 September 2025, it would not matter that the ACO had not sealed it until the next day (after the expiry of the 28 days), or indeed until a few days or even weeks later. That shows that it is not the issue date that is the relevant date. Indeed that is presumably the purpose of the Court recording the "Date filed" on the appellant's notice. Now suppose a case where an appellant delivers their appellant's notice in time but in fact underpays the fee, and yet the Court office fails to notice this, and seals the notice thereby issuing the appeal. The logic of Andrews LJ's analysis is that in such a case the appeal has been brought; and that since it is again not the date of issue which is the relevant date, it must be the date of delivery of the appellant's notice. Hence in such a case the appeal is brought in time despite the underpayment of the fee. But if this is right, she says, there is no justification for distinguishing the case where the Court does spot the underpayment. I do not see any relevant distinction between this analysis as applied by her to the issue of a claim form, and the same analysis as applied to the issue of an appellant's notice.
280. For all these reasons I think that the question whether an appeal has been brought for the purposes of the Medical Act 1983 must be answered in the same way as the question whether an action has been brought for the purposes of the Limitation Act 1980, namely that it has been when the litigant has delivered their originating process to the Court office, even if not accompanied by payment of the full, or any, fee.
282. I recognise that this leaves open two questions. The first is whether, and if so how, any of this applies to the bringing of an internal appeal. We have heard no argument on this question, Mr Collins expressly confining his argument to an external appeal where the appellant's notice is what begins the proceedings. The question is usually not so acute in the case of an internal appeal as the Court has a general power under the CPR to extend time (see CPR r?3.1(2)(a) and r?52.15), which is exercised in accordance with well-established principles, and minor delays in complying with all the requisite formalities are often capable of being remedied in this way. But this does not apply to statutory appeals: see Practice Direction 52D paragraph 3.5, which provides that where any statute prescribes a period within which an appeal must be filed, the appeal Court may not extend that period unless the statute so provides. Nevertheless the question whether the decision in Siniakovich has any application to internal appeals is one which may have significant ramifications. In those circumstances I would prefer to leave resolution of it to a case where it did need to be answered, and had been fully argued.
284. The second is how Mr Mant's lacuna is to be filled. Again this is not something that on any view arises in the present case as Dr Eskander's appeal was either (as Mansfield?J held) out of time and struck out, or (as we have decided) in time and permitted to proceed. So it is not necessary to produce any definitive answer. But it is I think worth attempting to suggest one, as Mr Mant submitted that otherwise it would be only too easy for a doctor subject to a sanction to put off the time when the sanction took effect by cynically filing an appellant's notice but then declining to pay the fee, having no intention of pursuing it. That would scarcely be in the public interest.
286. I do not think we were given any very satisfactory answer to this by Mr Collins. He said that it was fanciful to suppose that a doctor would engage in such abusive behaviour. But Mr Mant pointed out that while the vast majority of doctors behave properly, some doctors can be dishonest or deceitful or lack integrity; and the fitness to practise rules are there, among other things, to deal with them. Some doctors are struck off and it cannot have been Parliament's intention that they could buy time in this way before the erasure took effect. Mr Collins also suggested that a doctor who cynically abused the system might be dealt with by being made the subject of a further charge of misconduct; but that itself would doubtless take some time, and in any event does not answer the question how and when, consistently with paragraph 10 of schedule 4, the original sanction takes effect. Mr Mant submitted, and I have no difficulty in accepting, that uncertainty over when a sanction takes effect is very undesirable and puts the GMC in a difficult position. And I think there is some force in the point made by Mr Mant that it is not obvious how the GMC can apply to dismiss an appeal if it has never been issued.
288. Nevertheless I cannot believe that the problem is insoluble. It may be (see below) that if not accompanied by a fee (or application for fee remission), the Court could refuse to accept the appellant's notice. That was not what happened in Dr Eskander's case, and I do not wish to be taken as deciding what the position would have been had the ACO, as it might have done, simply refused to accept her appellant's notice at all. But even if this is wrong, it must surely be open to the Court to tell the appellant that a fee is outstanding; to require payment of the outstanding fee; and to direct that unless it is paid within a certain time, the appellant will be regarded as not proceeding with their appeal. If the appellant does not then pay, I do not see why that should not be a case where the appeal can be treated as withdrawn. And if that is right, the GMC as (prospective) respondent to the (unissued) appeal could, I would have thought, ask the Court to proceed along those lines.
290. I recognise that this is something not expressly contemplated by either paragraph 10 of schedule 4 or by the CPR. But I regard it as a less unsatisfactory solution to the problem than trying to maintain a distinction between the answer to the question when an action is brought for the purposes of the Limitation Act 1980, and the answer to the question when an appeal is brought under the Medical Act 1983. For the reasons I have sought to give, I do not think any such distinction can logically be maintained.
292. I would therefore reject this suggested ground of distinction as well.
294. Does it make a difference that Dr Eskander sought to file her claim by e-mail when she should not have been able to?
295. The third suggested distinction relied on by Mr Mant was that Dr Eskander sought to file her appellant's notice by e-mail, which was not a permitted means of filing it. Practice Direction 52B paragraph 4.1, which applies to appeals to the High Court, provides:
297. "An appellant's notice ? must be filed and served in all cases. The appellant's notice must be accompanied by the appropriate fee or, if appropriate, a fee remission certificate."
298. Practice Direction 5B paragraph 2.2 then provides:
299. "In the High Court?
300. (a) a party must not e-mail an application or other document to the court where a fee is payable for that document to be filed with the court; ?"
301. Mr Mant submitted that it followed that Dr Eskander was not permitted to file her appellant's notice by e-mail to the ACO.
302. Mr Collins however referred to Practice Direction 5B paragraph 2.4, which provides:
304. "The court may refuse to accept any application or other document, including any attachment, e-mailed to the court where?
305. (a) the sender has not complied with paragraph 2.2; ?"
306. He submitted that, even if the ACO might have refused to accept Dr Eskander's application, it had not done so. Instead it sent her two e-mails asking her to correct deficiencies, one requiring her to file a compliant pdf, and the other requiring her to provide her details and payment of the fee (see paragraphs 29 and 30 above).
307. I agree with Mr Collins both that paragraph 2.4 of Practice Direction 5B confers a discretion on the Court to refuse to accept an e-mailed application where a fee was required but not paid, and that in the present case the Court did not do so. Mr Mant said that the Court could be regarded as having refused to accept the application when the appeal was struck out by Mansfield?J. I do not think, however, that that can be right. It is difficult to see how the discretion to reject the application could have survived the sealing and issuing by the ACO of Dr Eskander's appellant's notice on 21 October 2025, which on any view must have amounted to an acceptance by the ACO of her application despite non-compliance with paragraph 2.2. Nor did Mansfield?J regard himself as belatedly exercising a discretion under the Practice Direction; for entirely understandable reasons he regarded the case as one where no appeal had been brought in time in any event.
309. In those circumstances, whatever might have been the position if the Court had refused to accept Dr Eskander's appellant's notice under paragraph 2.4 of Practice Direction 5B, I accept Mr Collins's submission that this was not what happened. The Court did accept her appellant's notice, and I think it is now too late to rely on the fact that it might have rejected it.
311. I would therefore reject this third suggested ground of distinction as well.
313. Conclusion on Ground 4
314. I have now considered, and rejected, each of the three grounds on which Mr Mant sought to distinguish the present case from Siniakovich. It follows that Ground 4 of the appeal is in my judgement well-founded. Dr Eskander delivered her appellant's notice to the ACO before the expiry of the 28-day period allowed her by s.?40(4) of the Medical Act 1983; it was not rejected; and in due course it was issued. That, by analogy with Siniakovich, means that her appeal was brought in time despite the fact that she did not pay the requisite, or any, fee on delivering the appellant's notice as she should have done.
316. That was why I agreed that the appeal to this Court should be allowed, and Dr Eskander's statutory appeal allowed to proceed in the High Court.
318. The application to adduce fresh evidence
319. That makes it strictly unnecessary to consider the other points raised. But they were fully argued, and it may be helpful to deal with them.
321. The first question is whether Dr Eskander should be permitted to adduce her fresh evidence. This largely consists of the e-mails between her and Mr Jones, together with a witness statement from herself providing a narrative account of her dealings with him.
323. There was little dispute between counsel as to the relevant principles. By CPR r?52.21(2)(b) an order is required before an appeal Court will receive evidence which was not before the lower Court. That confers a discretion on this Court, which is to be exercised in accordance with the overriding objective. There is no longer a requirement, as there was in the RSC, for "special grounds" to be shown before the Court will permit new evidence to be adduced. But the criteria set out in the well-known case of Ladd v Marshall [1954] 1 WLR 1489, although no longer a rigid set of rules, remain central to the exercise of the Court's power, and indeed were said by Laws LJ in Terluk v Berezovsky [2011] EWCA Civ 1534 at [32] to:
325. "effectively occupy the whole field of relevant considerations to which the court must have regard in deciding whether in any given case the discretion should be exercised to admit the proffered evidence."
326. 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.
328. Is the fresh evidence apparently credible?
329. I will start with requirement (iii). This was expressed by Denning LJ in Ladd v Marshall at 1491 as follows:
331. "thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."
332. As this makes clear, Denning LJ here treats "presumably to be believed" and "apparently credible" as interchangeable.
333. Most of the evidence consists of the e-mails. These are accepted to be accurate. In addition reliance is placed by Mr Collins on two statements by Dr Eskander in her witness statement. First, she says (at paragraph 28) that on 23 September 2025 when she was at Mr Jones's chambers:
335. "I asked Mr Jones to confirm how the court fee would be paid if I was e-filing the appeal. He told me that as soon as I sent the email to the Administrative Court Office I would receive an automatic reply which would include a link that I could use to make payment with a credit card."
336. Mr Mant said that this was not corroborated by any documentary evidence and had not been admitted by Mr Jones, and submitted that it was not such as was presumably to be believed. But I agree with Mr Collins that it is on the face of it credible. (Nothing I say now of course should be taken as deciding anything as against Mr Jones, who is not a party to this appeal.)
338. Dr Eskander knew that a fee was payable and was evidently anxious to get this aspect of bringing her appeal right. She raised the question of payment of the fee three times with Mr Jones (see e-mails of 22 September at 21.05 ("please advise on finalising the process and fees required"), 23 September at 10.18 ("so you can talk me through ? and organise the fee"), and 23 September at 10.55 ("assist me with paying the fee at the counter")), but in neither of Mr Jones's responses (on 23 September at 10.45 and 12.59) did he say anything about the fee: see paragraphs 18 to 22 above. In those circumstances it is only to be expected that she would ask him about it when they met. And her evidence that he told her to expect a reply from the Court with a payment link is entirely consistent with the e-mail exchange on 24 September when she told him (at 17.21) that she had not received anything from the court "and therefore fee has not paid yet" (emphasis added), and he replied (at 17.43) that they would simply need to wait and see from the Court (paragraphs 26 and 27 above). I regard the word "therefore" in this exchange as very telling. It strongly suggests that the reason Dr Eskander had not paid was precisely because she was waiting for something from the Court to enable her to do so; and the only plausible explanation for that is because that is what Mr Jones, whom she was relying on to guide her through the process, had led her to expect.
340. Moreover Dr Eskander's evidence is entirely consistent with other material, namely (i) Mr Jones's e-mail of 23 October at 10.32, which referred to Dr Eskander not being "provided with a means to make payment" (see paragraph 35 above); and (ii) her statement of clarification filed on 30 October (see paragraph 37 above). That said that under the relevant guidance "payment is made following acknowledgment from Administrative Court staff". That too must reflect what she had been told by Mr Jones.
342. Quite apart from this, Dr Eskander's immediate reaction on 14 November 2025 to learning that Mansfield J had struck out her appeal was to send Mr Jones and his senior clerk an e-mail in which she said that:
344. "Anthony advised me that the court would send me a link that I could use to make payment of the court fee."
345. Mr Jones responded that evening. He said a number of things, but nowhere did he take issue with this statement, although he did expressly deny another statement that she had made to the effect that he had advised that she had very good prospects of appealing the suspension.
346. I therefore accept Mr Collins's submission that Dr Eskander's evidence on this point is apparently credible, or presumably to be believed.
348. The other statement of hers which Mr Mant sought to cast doubt on was in paragraph 29 of her witness statement where she said:
350. "The email filing the appeal was sent at 14.11. I did not receive any automatic email from the court. Mr Jones reassured me that I would receive one, and that it did not matter if the email was not sent that day as long as I paid the court fee promptly when requested."
351. This is again not documented as such, and Mr Mant pointed out that it had not featured in Dr Eskander's letter of complaint to Mr Jones.
352. Nevertheless, I think her evidence on this point is also apparently credible. It is precisely what one would expect her to ask in the circumstances, and the advice Mr Jones is said to have given is consistent with his e-mail of 24 September in which he said that they would simply have to wait.
354. Would the evidence have had an important influence on the result of the case?
355. This is requirement (ii) of Ladd v Marshall. The question however is effectively the same as that raised by Ground 1 of the appeal, and I consider it below. For the reasons there given, I conclude that the answer is Yes.
357. Was the evidence such that it could not have been obtained with reasonable diligence for the hearing below?
358. This is requirement (i) of Ladd v Marshall. The e-mails ? and her own recollections ? were obviously available to Dr Eskander at the time of the application by the GMC to strike out, and could have been deployed by her. So this is not a case where new evidence has only come to light subsequently.
360. Nevertheless, Mr Collins relies on the requirement for reasonable diligence, and the explanation of that given in Phipson on Evidence (21 st edn, 2026) at ?13-07 as follows:
362. "This part of the test is more flexible than might be thought. The test is not whether or not the evidence was in fact available, but whether a party acting with reasonable care could have anticipated the need to call the relevant evidence."
363. That is supported by reference to a number of cases, to which we were not taken. Mr Mant said that the account of them given in Phipson shows that they were cases where there was some unexpected development at trial, and that there was nothing like that here. I accept that he is right about the cases, but I do not think the principle can be confined in the way he suggests. I think Mr Collins is right that the test in the present case is whether Dr Eskander should reasonably have realised that she needed to give an account of her communications with Mr Jones for the purposes of the strike-out.
364. The next point argued was whether Dr Eskander was fixed with any failings by Mr Jones so that the question is whether he should have realised the need to give this evidence; or whether the relevant enquiry is whether she personally should have done. Mr Collins acknowledged that the general rule is that stated by Tuckey LJ in Gopakumar v General Medical Council [2008] EWCA Civ 309, (2008) 101 BMLR 121 ("Gopakumar") at [25]:
366. "For the purpose of considering whether or not to admit fresh evidence the general rule is that failure to adduce evidence by a party's legal advisers provides no excuse even in this type of case."
367. But he said that this principle was not an absolute one and had to yield to the requirements of justice in the particular case.
368. I agree that the principle does not apply here. This is not so much for the reason given by Mr Collins, but for the simpler reason that Dr Eskander, although being advised by Mr Jones, was in fact acting in person at the relevant time, as Mr Mant accepted. The principle, which has come to be known in this context as the "surrogacy principle", seems to me at its root an application of ordinary agency principles. Where a person instructs solicitors and counsel to represent them in litigation, he or she is normally stuck with the acts and omissions that they make in the conduct of his or her litigation, just as any other principal is bound by acts carried out by their agent acting within the scope of their (actual or ostensible) authority. That was the case in Gopakumar where experienced counsel and solicitors representing Dr Gopakumar before a Tribunal had taken an informed and understandable decision not to deploy before the Tribunal certain evidence which they had, for what seemed at the time to be good reasons (see at [24]). It is unsurprising that when such a decision has been taken by a party's legal representatives that he should not be able to take a different position on appeal.
370. Indeed I think the very use of the term "surrogacy principle" to describe the general rule supports the idea that it is based on ordinary agency principles. I find it a slightly surprising term to use in this context. So far as I can tell, it was first used in this sense by Sedley LJ in FP (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13 at [32] where he said:
372. "I have left aside so far the question whether in the field of refugee law the errors of representatives are to be imputed to their clients. I will call this form of imputed fault the surrogacy principle."
373. It appears that the term "surrogacy principle" had in fact already been used in refugee law in a rather different sense ? that of the relevant Convention providing surrogate or substitute protection on failure of protection by the home state ? in Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495C-H per Lord Hope, and it may be this which prompted Sedley LJ to adopt it. But whether this is so or not, a surrogate in ordinary language is a person who acts in the place of, or as a substitute for, another. That is an apt description of solicitors or counsel who are instructed to act for a party as their legal representative. But it is not an apt description of someone who gives legal advice but is not acting as a party's representative.
374. In the present case, Mr Jones, who took on Dr Eskander as a client on a direct access basis, was not conducting (and made it clear he could not conduct) Dr Eskander's litigation for her. He did provide advice, and draft documents, and would no doubt have been willing to act as counsel at any hearing; but when it came to Dr Eskander's response to the application by the GMC to strike out her appeal, he was not in the event free even to draft the relevant documents for her (see paragraph 35 above). So she drafted, and filed, them herself. I do not think the general rule or surrogacy principle applies in such circumstances.
376. So the question remains whether Dr Eskander personally should, acting with reasonable care, have anticipated the need to put before the Court the e-mails and other evidence disclosing the advice she had had from Mr Jones. I agree with Mr Collins that it would not be reasonable to expect her to do so. Although acting in person, she had throughout relied on Mr Jones's advice. He had not suggested to her that she should waive privilege in the e-mails or the advice he had given her, or disclose them to the Court, far less that his advice was, or might be, wrong and open to criticism and that she should take alternative advice as to whether he might have misled her. (I should make it clear that we have not heard from Mr Jones, and I do not wish to be taken as deciding whether he was in fact in breach of his duties to her.)
378. It is always a significant step, not to be undertaken lightly, for a litigant to waive privilege in the advice they have received. And in the present case it would not just be a case of Dr Eskander waiving privilege but in effect of turning on her own counsel and blaming him. That would be an unusual and serious step to take. I do not think that reasonable care or reasonable diligence required her to do that unless and until she had a sufficiently good reason to think that his advice was wrong ? or at the least that there was a serious risk that it was. And I do not think she had good reason to think that until she received Mansfield?J's striking out order. Mr Jones had not alerted her to there being a serious problem; on the contrary the tenor of his e-mails was that the situation was frustrating but that she had acted in accordance with the relevant guidance, and he hoped the Court would see sense.
380. Mr Mant submitted that she did know that the advice she had received was wrong as Mr Jones had told her to expect an automatic reply to her e-mail, which she did not get. But the answer to that is that her evidence, which I have accepted as apparently credible, is that she asked Mr Jones about this and he reassured her that she would receive one, and that it did not matter if the e-mail was not sent that day as long as she paid the Court fee promptly when requested (see paragraph 116 above); and the next day he advised her that there was nothing to do but wait (see paragraph 27 above).
382. Mr Mant said that she could, even without waiving privilege, have relied on what she understood the Court to have told Mr Jones. But it would have been quite difficult to do this without waiving privilege as she could not point to anything in writing from the Court; in any event, she did say in her clarificatory statement (see paragraph 35 above) that she had filed her appeal in accordance with guidance under which payment is made following acknowledgment from the ACO. That set out her understanding. She could not reasonably have been expected to say more than that unless she appreciated that that understanding was or might be wrong.
384. There is one other point that I think has some bearing on the question of whether Dr Eskander, acting with reasonable diligence or reasonable care, should have appreciated the need to deploy the evidence on the strike-out application. Ladd v Marshall itself was a case where there had been a full trial. So were many of the cases which have followed it. In such a case there is a very strong interest in finality. A party is expected to bring forward their whole case at trial and, in the memorable words of Lewison LJ in Fage v Chobani [2014] EWCA Civ 5 at [114(ii)]:
386. "The trial is not a dress rehearsal. It is the first and last night of the show."
387. I do not think that the imperative of finality is quite as strong in the case of interlocutory applications, even those that may lead to the case being struck out. We were not cited any authority on this point, but I think there is something to be said for the proposition that although the principles in Ladd v Marshall still apply, the standard of diligence required of a litigant facing an interlocutory application is not as exacting as that required at a trial.
388. It is not necessary to pursue this further as I am satisfied that in all the circumstances reasonable diligence did not require Dr Eskander to deploy the e-mails between her and Mr Jones, and the other evidence of the advice he gave her, before Mansfield J, and that requirement (i) of Ladd v Marshall is therefore satisfied in the present case.
390. Conclusion on fresh evidence
391. Two other points were touched on in argument. I can deal with them quite briefly as I do not think either of them affects the question. First, Mr Collins said that it was a factor to be taken into account that it is important from the public perspective that the correct decision is reached: it is not in the public interest that a qualified health professional, capable of giving good service to patients, should be struck off the professional register (or by analogy be suspended): see Muscat v Health Professions Council [2009] EWCA Civ 1090 at [28]-[29] per Smith LJ. But that must now be read subject to the comments of Sir Brian Leveson P in General Medical Council v Adeogba [2016] EWCA Civ 162, [2016] 1 WLR 3867 at [31] where he said that he did not read Muscat's case as identifying a different approach to fresh evidence and certainly not one which justified departure from the well-recognised jurisprudence in this field; and that appropriate consideration also needs to be given to the importance of efficient and effective regulation of the profession.
393. Second, Mr Mant for his part alluded to the lack of underlying merits in Dr Eskander's appeal. She had been found guilty of serious dishonesty. Mr Jones denied giving advice that she had very good prospects of success (see paragraph 114 above). Moreover in a response from Mr Jones's insurers to a pre-action protocol letter it was said on his behalf that although he was not instructed to advise on the merits of her appeal and did not do so, nevertheless if he had been so instructed he would have advised that her appeal did not have good prospects of success.
395. I do not think this is something that should affect our decision whether to admit the fresh evidence. Beyond being referred to what has been said by and on behalf of Mr Jones, we have not been addressed on the merits of Dr Eskander's appeal, and are in no position to form a considered view of them. A doctor who is suspended has a right to appeal provided the appeal is brought in time, and I agree with Mr Collins that unless the apparent merits are strongly on one side or the other, the Court should be cautious about allowing its necessarily imperfect perception of them to influence the decision whether to admit fresh evidence which does not go to the merits, but only to whether time should be extended.
397. I therefore consider that all three Ladd v Marshall requirements have been met, and that there is no sufficient countervailing factor to persuade us to decline to admit the fresh evidence. Those were the reasons why I agreed that Dr Eskander should have permission to rely on it.
399. Ground 1: should time be extended?
400. That brings me to the substance of Ground 1, which is whether time should be extended in the circumstances.
402. Again there was little if any dispute between counsel as to the principles. There is (outside of paragraph 9 of schedule 4 to the Medical Act 1983, which does not apply) no statutory power to extend time. Nor is there any power in the CPR. But Article 6.1 of the Convention provides that:
404. "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
405. This guarantees a right of access to the Courts. It does not guarantee a right of appeal, but a Contracting State which does provide an appeal system is required to ensure that persons within its jurisdiction enjoy before appellate Courts the fundamental guarantees in Article 6: Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442 at 59. The right of access to the Courts may be subject to limitations. But (i) the limitations must 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"; and (ii) 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": ibid.
406. The effect of this on domestic time limits for bringing an appeal was considered by the Supreme Court in Pomiechowski v District Court of Legnica, Poland [2012] UKSC 20, [2012] 1 WLR 1604 ("Pomiechowski"). The Court was there concerned with a number of cases where there had been non-compliance with the short and inflexible time limits introduced by the Extradition Act 2003. In the case of one of the appellants (Mr Halligen), he was a UK citizen and able to invoke Article 6. The majority judgment was given by Lord Mance JSC (with whom Lords Phillips, Kerr and Wilson JJSC agreed). Lord Mance held (at [39]) that the effect of s.?3(1) of the Human Rights Act 1998 was to require a conforming interpretation to be adopted as follows:
408. "the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions 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 in Tolstoy Miloslavsky. The High Court must have power in an individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously."
409. In Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818, [2013] 1 WLR 3156, this Court held that the same principles applied to appeals by nurses against decisions of the Nursing and Midwifery Council's conduct and competence committee. The relevant provisions were similar to those applicable to doctors under the Medical Act 1983, in that the nurses had a statutory right of appeal but any such appeal had to be brought within 28 days of notification of the decision, with no statutory provision for extension of time. Maurice Kay LJ (with whom Patten and Floyd LJJ agreed) held at [14] that Pomiechowski applied to such appeals. He said that there was good reason for there to be time limits with a high degree of strictness, but that without some margin of discretion circumstances might cause absolute time limits to impair the "very essence" of the right of appeal. But as in Pomiechowski such a discretion would only arise in "exceptional circumstances" and where the appellant "personally has done all he can to bring [the appeal] timeously" (at [15]).
411. These cases were the subject of detailed analysis by Fordham J in Rakoczy. At [13] he held that Mr Mant, appearing before him, as before us, for the GMC, was obviously right to accept that when Lord Mance in Pomiechowski, and Maurice Kay LJ in Adesina, referred to the appellant having personally done all he could, that needed to be qualified by "reasonably". He also decided at [21] that this question ? has the appellant done all they personally (reasonably) can to bring the appeal timeously? ? is not itself the legal test laid down by Pomiechowski, which remains whether a refusal to extend time would operate to prevent an appeal in a manner conflicting with the right of access as held in Tolstoy Miloslavsky. But it is a useful guide to what the Court could expect to be looking for; it was intended as a valuable encapsulation. Fordham J also pointed out at [21(ix)] that although the caselaw uses the language of "discretion" or "power", it would be more correct to speak of a "duty" to extend time. In a case where refusing to extend time would involve a breach of Article 6 ? which is the only situation in which it is appropriate to extend time ? the Court not only has a power to grant the necessary extension, but a duty to do so.
413. Fordham J's analysis on all these points was approved by this Court in Stuewe v Health and Care Professions Council [2022] EWCA Civ 1605, [2023] 4 WLR 7 at [50]-[54] per Carr LJ (as she then was), with whom Moylan and Baker LJJ agreed.
415. Two other points were common ground before us. First the question is how the rules have impacted on an individual litigant in a particular case. Having short and fixed time-limits may well pursue a legitimate aim and be proportionate in general, but that does not prevent an individual litigant from relying on Article 6 in the circumstances of his or her particular case: see Pomiechowski at [37] per Lord Mance:
417. "It is clear that the statutory provisions regarding the permitted periods for appeals may in individual cases impair "the very essence of the right" of appeal."
418. Second, in this context, the surrogacy principle is not strictly applied, and a litigant may succeed even if the failings are those of his legal advisers. In Pomiechowski Mr Halligen had solicitors acting for him but they let him down, issuing the appeal in time but failing to send the notice of appeal to the Crown Prosecution Service and the Home Office within the required statutory period (see at [15]). Lord Mance said at [37] that "Strict application of the surrogacy principle would be potentially unjust". That explains why he refers at [39] to the litigant having personally done all he can to bring the appeal timeously.
420. So the question is whether in the present case the fixed 28-day period for appealing deprived Dr Eskander of the very essence of her right of appeal, or was disproportionate, that being illuminated by asking whether she had personally done all she reasonably could to bring the appeal in time. Given my conclusion on Ground 4, the question does not of course in fact arise, but I will assume for the purposes of this question that the non-payment of the fee meant that her appeal was not brought in time.
422. Mr Mant said that the circumstances of the present case were not such as to require an extension. Dr Eskander was acting in person. Litigants in person are expected to comply with the rules and for that purpose to avail themselves of the guidance that is publicly available. Although the ACO has limited opening hours for payment across the counter, this guidance made it clear that a litigant in person can pay fees quite simply by telephoning the Court and paying by card. It was her responsibility to pay the requisite fees, and it was reasonable to expect her to have discovered how to do so, and to do so in time.
424. I do not think the guidance is actually quite as clear as Mr Mant suggests. Form N161 (the form for an appellant's notice) itself says nothing about payment of fees, the only reference to fees being optional boxes in section 1 to give a Fee account number, or Help with Fees reference number, in each case marked "if applicable". The Guidance Notes on completing Form N161 (N161A) say this (on page 14):
426. " Filing your completed notice and documents
427. Send or take the appellant's notice and copies of all the supporting documents to the appeal court office with the appropriate fee. The court can tell you how much this is. The court will seal the notices (stamp the notice with the court seal)."
428. That does not however tell you how to "send" the fee to the Court. It does cross-refer to leaflet EX340 ? I want to appeal. But all that this says about fees is that:
429. " You may have to pay a fee
430. You will usually have to pay a court fee when you appeal. You will find a list of court fees in the leaflet EX50 ? Civil and Family Court fees available online ?"
431. Again this does not tell you how to pay. EX50, available online, contains a selection of civil court fees. It does not itself tell you how to pay, but does contain a link to another page headed "Guidance ? Pay a civil or family court fee, get help with fees or get a refund". This says:
432. "Pay a court fee
433. You will usually need to pay your court fee upfront when you first start the process of using the service ? such as when you submit your application. The guidance for the service or the form may tell you that you need to pay the fee at another time.
434. Ways to pay
435. Depending on the service, you can pay a court fee:
436. > > online
437. > > by phone with a debit or credit card
438. > > in person by cheque, cash, debit or credit card ? you may need to book an appointment
439. > > by post with a cheque
440. > > with your HMCTS Payment by Account (PBA) number, if you are a legal professional
441. You must pay fees online when you use an online service, for example to make a court claim for money.
442. If paying with a cheque in person or by post, make it payable to 'HM Courts and Tribunals Service'. If the cheque does not clear, the court will take steps to recover the money and your case may be delayed or dismissed.
443. How you can pay for a service should be clear in the guidance or the form. If you are unsure, ask the court how you can pay, where to send postal payment or the number to pay by phone."
444. So if Dr Eskander had tried to work this out for herself and had navigated through to this page, she would have been told that there were various ways to pay, depending on the service; that how she could pay for a service should be clear in the guidance or the form (which in the case of N161 and the guidance in N161A was not the case); and that if she was unsure she should ask the Court.
446. But she had Mr Jones advising her. In his insurers' response to the pre-action protocol letter it was acknowledged that although he did not accept (and could not have accepted) instructions to lodge her application with the ACO, he did assume responsibility, because of her situation, to provide her with advice on the method to use. It was entirely natural in the circumstances for her to ask him how to pay the fee ? something which, as I have already referred to, she was anxious about and raised three times in her e-mails on 22 and 23 September ? and entirely reasonable for her to rely on his advice. Why did she reasonably need to do anything else than follow the advice of the experienced counsel who was advising her how to bring her appeal, when he and his clerks had themselves spoken to the Court? With hindsight, she could of course have asked the Court herself, but (i) she was only told at 10.45 on the morning of the final day that Mr Jones and his clerks could not file the appeal for her and that she would have to do it herself; (ii) she had a meeting with Mr Jones whose very purpose was to talk through what needed to be done; (iii) she was on her evidence advised by Mr Jones that she would be able to pay the fee via a link that the Court would send her, and reassured, when the link did not arrive immediately, that as long as she paid when asked she had done enough; and (iv) for good measure did ask the Court in her e-mail filing her appellant's notice at 14.11 to let her know if there was anything further they required.
448. In practical terms Dr Eskander, although acting in person, was in the hands of counsel, and in those circumstances I agree with Mr Collins that she had indeed personally done all that she reasonably could to bring the appeal timeously. If, contrary to my view on Ground 4, non-payment of the fee meant that her appeal was out of time, then I consider that this restriction on the right of appeal would in her individual circumstances have impaired the very essence of the right. It would therefore have been the duty of the Court to grant the necessary extension of time.
450. Conclusion
451. I would therefore have allowed the appeal on Ground 1 if I had not already allowed it on Ground 4. Ground 2 does not arise, and Ground 3 does not require separate consideration.
453. Those were the reasons that I agreed that Dr Eskander's appeal should be allowed, and that her statutory appeal should be reinstated. It was common ground between counsel that in those circumstances her suspension ceased to have effect pending determination of her statutory appeal by the High Court.
455. Lord Justice Cobb:
456. I agree.
458. Lord Justice Baker:
459. I also agree.

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