The failure by a promptly and properly instructed solicitor to file a statutory appeal in time amounted to exceptional circumstances such as to entitle the appellant to proceed with the appeal.

Mark Harper KC (instructed by Matthew O’Brien – Escalate Disputes) was successful in obtaining permission for a statutory appeal to be brought out of time – one of only a few cases where this has been achieved. In Robert Maccallum v Secretary of State for Education [2024] EWHC 87, Mrs Justice Lang DBE found that whilst his previous solicitors had not done all they reasonably could to bring the appeal in time, Mr. Maccallum, by promptly instructing experienced solicitors and not delaying in providing them with instructions, had done all he reasonably could such that there were exceptional circumstances as to why the appeal was brought out of time.

In reaching its decision the Court considered whether it was fair and consistent with Article 6 and Pomiechowski v District Court of Legnica, Poland [2012] UKSC 20; [2012] 1 W.L.R. 1604 to hold Mr. Macallum responsible for the failures of his solicitors and found that it was not. This was a finding that was contrary to that reached (albeit without the Court having its attention drawn to the application of the surrogacy principle) in Watt and Kelly v Secretary of State for Education (unreported 24 August 2023).

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