The Court of Appeal has delivered an important decision for doctors and other professionals appealing fitness to practise sanctions, in Eskander v General Medical Council EWCA Civ 372. The central issue was whether a doctor’s statutory appeal to the High Court had been brought in time, and, if not, whether the court could and should extend time.
How did the timing issue arise?
A Medical Practitioners Tribunal had directed that a neurologist be suspended from the medical register for 12 months. Under section 40 of the Medical Act 1983 she had 28 days from deemed service of the written decision to appeal to the High Court, with the final date falling on 23 September 2025.
On that last day, she emailed her appellant’s notice (form N161), grounds of appeal and skeleton argument to the Administrative Court Office, acting as a litigant in person with assistance from direct access counsel. No issue fee was paid at the same time. Several weeks later, on 14 October, the court confirmed that a fee of £294 was needed; the doctor attended in person on 17 October to pay, and the appeal was formally sealed on 21 October.
The GMC argued that because no fee had been paid within the 28‑day period, the appeal was never validly commenced in time and should be struck out. Mansfield J accepted that argument on the papers, holding that the appeal was out of time and that this was not an appropriate case in which to extend time, and he struck out the appeal accordingly.
The Siniakovich development
The doctor sought permission to appeal Mansfield J’s order and also asked to rely on fresh evidence about the advice she had received from counsel on filing and fee payment. Initially, it appeared that the case would turn on established authorities about late appeals in regulatory proceedings and the narrow Article 6 jurisdiction to extend time.
Matters changed when the Court of Appeal handed down its decision in Siniakovich v Hassan‑Soudey EWCA Civ 215, shortly before the Eskander hearing. In Siniakovich, the Court held that for the purposes of the Limitation Act 1980 an action is “brought” when the claim form is delivered to the court office before expiry of the limitation period, even if there has been an underpayment of the issue fee and the court declines to issue the claim until the shortfall is paid.
In light of Siniakovich, the doctor’s legal team successfully applied to amend the grounds of appeal to argue that her appeal had in fact been brought in time when her appellant’s notice was emailed to the court within the 28‑day period, notwithstanding that no fee was paid at that moment. The Court also granted permission to adduce additional evidence not before Mansfield J, including material explaining the advice given by her direct access counsel about e‑mail filing and the timing of payment.
Filing by email and the role of counsel’s advice
The doctor had been told that, as a litigant in person without a solicitor, the preferred way to file her appeal was by email rather than by attending at court. When she met counsel in chambers on the final day of the time limit, he helped her send an email attaching the N161 appellant’s notice, grounds, skeleton argument and the MPTS decision, and she immediately notified the MPTS of the appeal; they, in turn, notified the GMC.
When she asked how the fee would be dealt with, she was told she should receive an automated response from the court asking for payment. Although no such response arrived straightaway, she was reassured that, so long as she paid promptly when requested, her appeal would be treated as properly filed and that the appeal had been successfully lodged.
These exchanges became crucial when the Court of Appeal considered whether she had “brought” an appeal for the purposes of the Medical Act, and also when deciding whether it was fair to admit the fresh evidence.
Applying Siniakovich to statutory appeals
The Court of Appeal concluded that there is no material difference, for this question, between a case where a claim form has been delivered to the court office before the deadline accompanied by an inadequate fee, and a case where the originating document has been delivered on time but no fee at all has been paid at that stage.
In both situations, the claimant or appellant has done the essential act of delivering the initiating document to the court before time expires, but has fallen short on what is an important yet ancillary requirement: payment of the correct fee. That requirement must be satisfied before the proceedings are issued, but Siniakovich establishes that full compliance with the fee requirement is not a pre‑condition to an action being “brought”. The Court held that the same logic applies in the statutory appeal context.
Accordingly, for the purposes of section 40 of the Medical Act 1983, the question whether an appeal is “brought” within 28 days must be answered in the same way as the limitation question in Siniakovich: an appeal is brought when the appellant’s notice (or equivalent originating process) is delivered to the court office, even if it is not accompanied by the whole, or any, court fee.
The Court expressly left open a separate and potentially far‑reaching question: whether Siniakovich has any application to internal appeal mechanisms within regulatory schemes. That issue was not decisive in Eskander and will need to be resolved in a future case where it is directly engaged.
Safeguarding against tactical appeals
The GMC argued that this approach could encourage “tactical” appeals. They suggested that a doctor might deliberately lodge an appellant’s notice solely to prevent a suspension from taking effect, while having no real intention of pursuing the case and no intention of paying the fee.
The Court considered that risk but did not regard it as unmanageable. It emphasised that nothing in its judgment should be taken to decide what the position would be if the court office had simply refused to accept an emailed appellant’s notice at all; instead, it focused on what should happen when the court has in fact accepted and processed the notice. In such cases, the Court indicated that it is open to the court to notify the appellant of the outstanding fee, set a clear deadline for payment, and make clear that if the fee is not paid by that date, the appeal will be treated as not being pursued.
In other words, the answer lies in firm procedural case management directions, not in treating timely delivery of an appellant’s notice as legally ineffective for bringing an appeal.
Email filing and the practice directions
Another issue raised was that the doctor’s appellant’s notice had been filed by email, contrary to the standard provisions of the Civil Procedure Rules and associated practice directions. It was argued for the GMC that email filing was not a permitted method and that this defect was itself fatal.
The Court noted that the relevant practice directions generally discourage or restrict email filings where a fee is payable. However, they also confer a discretion on the court office to decline to accept such filings where a fee is due but not paid. In Eskander, the office did not exercise that discretion to reject the email entirely; instead, it engaged with the filing, requested the fee and ultimately issued and sealed the appeal. Against that background, the Court held that the email delivery was effective to bring the appeal within time, even if it did not comply perfectly with the usual filing routes.
Fresh evidence and the Ladd v Marshall test
The Court then turned to the doctor’s application to rely on additional evidence about her dealings with counsel. It considered the familiar Ladd v Marshall criteria: whether the evidence could have been obtained with reasonable diligence, whether it would probably have an important influence on the result, and whether it appeared to be credible.
On the facts, all three requirements were satisfied. The Court also clarified how the so‑called “surrogacy principle” operates in regulatory appeals. That principle – that a litigant is normally bound by the acts and omissions of their professional representatives – rests on ordinary agency concepts. It is most apt where solicitors and counsel have formal conduct of litigation. In Eskander, by contrast, the doctor remained a litigant in person, taking procedural guidance from a barrister instructed on a direct access basis.
In that setting, the Court considered it would be wrong simply to treat every procedural omission as if it were her own informed forensic choice. Her position as a litigant in person, heavily reliant on the advice given, was an important part of the fairness analysis both on fresh evidence and on timing.
Extension of time and Article 6
Although Siniakovich meant the appeal had in fact been brought in time, the Court also revisited the principles on extending time for statutory appeals in the light of Article 6 of the European Convention on Human Rights. There is no express power in the Medical Act to extend the 28‑day limit, but the Court confirmed that Article 6 may require a narrow, exceptional jurisdiction to extend time where a rigid rule would undermine the essence of the right to a fair hearing.
Drawing on existing authorities, including Adesina v Nursing and Midwifery Council EWCA Civ 818, the Court reaffirmed that the same fundamental approach applies across healthcare regulators. The test remains stringent: the court will only extend time in exceptional cases where refusing to do so would be disproportionate, and particular attention is paid to whether the appellant personally did all that they could reasonably be expected to do to bring the appeal in time.
On the facts of Eskander, the Court unanimously allowed the appeal. It held that the doctor’s statutory appeal had been brought in time when her appellant’s notice was delivered to the court by email on the final day, and that the subsequent payment of the fee and sealing of the notice did not alter that conclusion.
Why you need to know this case
Practically, Eskander gives doctors and their advisers a much clearer answer to the deceptively simple question “have we appealed in time?”, especially where filing and fee payment have not gone perfectly to plan. It supplies a powerful authority to resist strike‑out applications based purely on late fees, and it will be a key reference point in future disputes about statutory time limits, extensions and the treatment of litigants in person in the fitness to practise arena.
If you need to appeal a GMC fitness to practise decision, our GMC defence solicitors can help.