Statutory Appeals Validity When Court Fees Unpaid

An individual wishes to exercise their right to appeal against the decision of a tribunal. They must do so within a statutory time limit. In addition, they must also pay a fee. What happens, then, when the appeal is lodged within the statutory time limit, but no fee is paid? Was the claim still validly “brought”? This was the question for the Court of Appeal in Eskander v General Medical Council [2026] EWCA Civ 372 (31 March 2026).

The facts

The claimant, Dr Eskander, sought to appeal against a tribunal decision which suspended her medical registration. Under the terms of the relevant legislation (section 40 of the Medical Act 1983) she had a right to appeal against this decision, so long as the claim was brought within 28 days. The statutory time period therefore ran to the 23 September 2025.

In mid-September, Dr Eskander sought advice from a barrister in relation to her case. He advised her as to the possibility of appealing, and set about assisting her with lodging that appeal. The appeal was successfully lodged on 23 September itself. All formalities were complied with, bar one: the required fee was not paid at that point. In mid-October the court service contacted her to inform her that the fee had not been paid; the following day, the claimant went to the court herself to pay the fee. Was her application, therefore, validly brought on 23 September, within the statutory time period, when it was submitted without the required fee? Or was it only validly brought in mid-October, once the fee was paid, and therefore outside the required time period?

The Court’s Decision

The claimant relied on the Court of Appeal’s very recent decision in Siniakovich v Hassan-Soudey [2026] EWCA Civ 21 (3 March 2026)

In that case, the claimant wished to bring a case in defamation, and was required to bring his case within one year of the date of the action complained of (section 4 of the Limitation Act 1980). His solicitor paid a fee during the relevant period, but it was the wrong fee; he had underpaid by more than £600. The Court of Appeal ruled that despite this mistake, the claim had been brought on time. The underpayment was a mistake “which can easily occur” (Siniakovich, [121]) and did not affect the validity of the action which was otherwise validly “brought”. The Court left open the question as to whether the same approach would apply in a case where no fee, rather than a lower fee, was submitted with the claim: Siniakovich, [123].

The defendant sought to distinguish Siniakovich on three bases. The first was that the judgment concerned the rules relating to the lodging of an action, rather than pursuing a statutory appeal: [85]. This distinction was rejected; the reasoning of Siniakovich was general in nature and could be carried across different statutory regimes and legal purposes: [86]-[97]. The second was that the claimant in this case sought to file her appeal by email when she ought not have been able to do so: [98]. It was too late to raise, at this stage in litigation, this kind of objection; the court office had already accepted the appeal application as having been validly lodged: [101]-[102].

The most interesting ground for distinguishing Siniakovich was the third ground: as noted above, the judges in that case were concerned with a fee which had been paid in part. In other words, it was argued, a lenient approach should be limited to cases where the procedural requirement had been carried out imperfectly, rather than cases where it had not been carried out at all. This distinction was also rejected: [76]-[84].

The Court ruled 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” [76]. Either the relevant statute defines an action validly “brought” as one which comes with a fee, or one which is still valid despite being lodged without one. There is no space for a middle ground approach, in which the statute requires some procedural performance as a minimum. Given the decision in Siniakovich, it was not open to the Court to adopt the former approach; it must, therefore, adopt the latter: [79]. Further, there were pragmatic considerations: adopting the defendant’s approach would “lead to questions that are impossible to answer”, essentially, how much part-payment would be substantial enough to satisfy the court that the appeal was “brought”? [80].

Taken together, the Court found that the reasoning in Siniakovich, which applied to the validity of causes of action brought with part-payment of a fee, should apply to the present case, which involved a statutory appeal lodged without payment of any fees. Dr Eskander was therefore allowed to proceed with her appeal against the tribunal: [150].

The alternative argument: time extension and Article 6 ECHR

Having found for the claimant, the Court nevertheless went on to consider an alternative argument: if the claim had not been validly brought within the 28 day period, ought the Court have exercised its duty to extend time to allow it? There is no express statutory power on the court to extend time in this way: see [136]. However, in a series of decisions appellate courts have ruled that where the application of strict time limits would impair the very essence of an individual’s access to a court, section 3 of the HRA may compel a reading of an otherwise absolute time limit which allows for exceptions: Pomiechowski. The Court of Appeal ruled that this doctrine applied to appeals under the Medical Act 1983 in the case of Adesina: see [138].

As such, the Court considered whether to bar the claimant access to an appeal in her specific circumstances would breach her Convention rights. The Court concluded that it would. The reason for her non-payment was not her own negligence, or any mistake on her own part. She had been advised by a barrister that her application to appeal would be valid, and that she had been told this despite specifically raising the issue of fees with him: [147]. It was on the basis of this ‘mistaken’ advice that she did not pay the required fee at the time. The Court ruled that “she had indeed personally done all that she reasonably could to bring the appeal timeously” [148].

The Court concluded, then, that “if… 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.” ([148]).

Comment

Much has been said about the recent tendency of judges to insist on procedural rigour in public law cases, but, contrary to that general trend, the judges in this case adopted a claimant-friendly approach to the rules relating to lodging appeals against tribunals (the determination of which constitutes a significant part of the Administrative Court’s docket). Of course, the Court relied so heavily on Siniakovich that it is easy to wonder whether the outcome would necessarily have been so claimant-friendly if that decision had not been handed down some three weeks prior (or if the defendants had been so brave as to doubt its correctness).

Further, at first blush, the additional aspect of the Court’s decision relating to Article 6 ECHR may appear surprising. Courts have been extremely reluctant to extend time under the Adesina principles. In the case of Rakoczy v General Medical Council [2022] EWHC 890 (Admin), another case involving the invocation of Adesina, Fordham J remarked that [2] that there had been, at that point, no final cases (not overturned on appeal), “in which an extension of time had been granted in the 9 years since Adesina, where extensions of time were also refused.” The Court of Appeal had even suggested in one case that the Adesina extension duty might only be triggered in cases involving something like “a litigant who is in a coma during the relevant period” (Stuewe v Health and Care Professions Council [2022] EWCA Civ 1605 at [65]). But the claimant was assisted in this case by the fact that she had acted in “blameless ignorance” (to adopt the language of the courts in Stuewe (at [65]) and Adesina (at [14])). Her – reasonable – reliance on her barrister’s advice had resolved her of any personal blame. In these circumstances, the court’s sympathy for the claimant’s situation led to a rare finding that the Adesina duty would be breached if the applicable time limits were not extended.

Lewis Graham

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