Rovenska v General Medical Council [1994] UKEAT 163_93_1103

EAT
Rovenska v General Medical Council
[1994] UKEAT 163_93_1103 · 1994-03-11
MR JUSTICE MUMMERY (PRESIDENT) This is an appeal from the Industrial Tribunal held at London (South) on 9th November 1992. For Full Reasons notified to the parties on 1st December 1992 the Tribunal unanimously decided that it had no jurisdiction to entertain the Originating Application presented by Dr Rovenska to the Tribunal on 31st March 1992. Her complaint was of unlawful racial discrimination by the Respondent, the General Medical Council ("GMC"). The Originating Application alleged that the action complained of took place on 15th January 1992. The GMC took the point in its Notice of Appearance dated 6th May 1992 that the relevance of that date was not clear, as no decision relating to Dr Rovenska had been taken by the GMC either on or shortly before that date. The GMC submitted that, as S.68(1) of the Race Relations Act 1976 provides that a Tribunal cannot consider a complaint unless the application is made within a period of 3 months, the complaint was out of time and the Tribunal had no jurisdiction to consider it, unless it exercised its discretion under S.68(6). The GMC further submitted that Dr Rovenska had not provided any reasons which could cause the Tribunal to conclude that, although the application was out of time, it should nevertheless proceed to consider her complaint on the ground that it was just and equitable to do so.In the light of those submissions, the Tribunal held a hearing on a preliminary point to determine:

(1) whether Dr Rovenska's complaint had been presented out of time; and, if so

(2) whether it considered that it was just and equitable to consider the complaint.The Industrial Tribunal found in favour of the GMC on both points. By a Notice of Appeal dated 8th January 1993, subsequently re-drafted on 12th February 1993, Dr Rovenska appealed against that decision.

The Facts

The principal facts found by the Tribunal are as follows:(1) Dr Rovenska, Czech by birth, but now a resident in the UK, obtained her primary medical qualification from J E Purkyne University of Brno, Czechoslovakia.(2) The GMC is a Body set up by the Medical Act 1983 ("the 1983 Act") with statutory responsibility under Part III for the registration of General Practitioners, including doctors who have qualified overseas and whose primary medical qualifications are accepted for this purpose. Dr Rovenska's primary medical qualification is accepted for the purposes of limited registration in the United Kingdom, but she is also required to satisfy the Registrar that she has the necessary knowledge of the English language and the necessary knowledge and skill and experience for practice as a medical practitioner with limited registration. For this purpose doctors are normally required to take and pass a test conducted by the Professional Linguistic Assessment Board, known as the PLAB test of English and Medical Knowledge. Dr Rovenska attempted the PLAB test in October 1984 and in June 1985. On each occasion she failed both in regard to her competence in English and in general medical skills.(3) In December 1985 the GMC considered the question of granting Dr Rovenska an exemption from the PLAB test. A request for exemption was made on her behalf by Dr B S Jenkins FRCP, a Senior Lecturer and Honorary Consultant Physician at St Thomas' Hospital, London. By letter dated 18th December 1985 the GMC did not accede to the request as, in the light of the results of the PLAB test, it could not be satisfied that Dr Rovenska met the statutory conditions for exemption (contained in section 22 of the 1983 Act).(4) On 24 January 1989 the GMC rejected a request made on behalf of Dr Rovenska by her solicitors for "provisional or temporary" registration as a pre-registration House Officer in connection with her exam for a post-graduate micro-biology degree. It was made clear by the GMC that Dr Rovenska would not be considered for registration without passing the PLAB test. It was open to her to apply to re-take the test.(5) On 26th November 1991 Dr Rovenska applied to the GMC to be registered on the ground, that, in particular, she had recently been awarded a Master of Science degree in medical micro-biology by the London School of Hygiene and Tropical Medicine. On 2nd December 1991 the GMC wrote to her making it clear that a precondition for limited registration for Dr Rovenska would be for her to pass the PLAB test. Application papers for that test were enclosed with the GMC's letter.(6) Dr Rovenska has no present intention of re-taking the PLAB test as, in her view, the examination would be rigged against her, so that she will have no prospect of passing it. On 18th December 1991 she consulted the Greenwich Council for Racial Equality who wrote a letter to the GMC on her behalf on that day drawing attention to the categories of exemption from the PLAB test and enclosing a reference. On 10th January 1992 the GMC replied stating that in 1985 the GMC had considered her case, but was unable to find any ground for exemption from the test which she had twice failed severely. Dr Rovenska received that letter on 15th January. She argues that that is the relevant date for the purpose of calculating the three-month time limit contained in S.68 of the Race Relations Act 1976 ("the 1976 Act").If she is correct in her contention that the act complained of was done on 15th January 1992, then her complaint was presented in time.If, however, Dr Rovenska is wrong on that point, then she submits that the Tribunal should, nevertheless, have considered her complaint on the basis that, in all the circumstances of the case, it was just and equitable to do so: S.68(6) of the 1976 Act.

The Decision of the Industrial Tribunal

The Industrial Tribunal decided that -

(1) Dr Rovenska's application was presented out of time, as the very last date on which she could complain of discrimination against the GMC was the receipt of the letter of 2nd December. Her application should have been presented within the first few days of March 1992. It was not presented until 31st March 1992.(2) It was not just and equitable to consider the complaint out of time. The Tribunal found that Dr Rovenska had a general awareness of the regulations and mechanisms of the GMC regarding registration. She had consulted solicitors on various occasions. She and her advisers were under an obligation to get on with presenting an application under the 1976 Act.In any event, the Tribunal thought that, on "an overall view of the merits", her case had very little chance of success, whether argued(a) on the basis of a specific claim that her post-graduate degree satisfied the requirements of the rules or(b) on the basis of a more general challenge to the entire system of limited registration as weighted against potential doctors from overseas, such as herself, in favour of other ethnic groups of doctors. The Tribunal was of the view that that was a very difficult argument for Dr Rovenska to put forward, since it would be met by a defence of statutory authority contained in S.41 of the 1976 Act. That provides that:
"(1) Nothing in Parts II to IV shall render unlawful any act of discrimination done - (a) in pursuance of any enactment ..."

The relevant Statutory Provisions

Before dealing with the submissions made on behalf of Dr Rovenska and the GMC it may be helpful to set out the relevant statutory provisions on which their arguments were based.

A. Race Relations Act 1976

The crucial provisions are those concerned with time-limits contained in S.68 of the 1976 Act which provides, in its material parts, as follows -
"(1) An Industrial Tribunal shall not consider a complaint under S.54 unless it is presented to the Tribunal before the end of the period of three months beginning when the act complained of was done.
...(6) A court or Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(7) For the purposes of this section -

...(b) any act extending over a period shall be treated as done at the end of that period."In this context it is also relevant to note the terms of S.54 which provides for the jurisdiction of the Tribunal.
"(1) A complaint by any person ("the complainer") that another person ("the respondent") - (a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II ... may be presented to an Industrial Tribunal"
It is also relevant to refer to three sections which it is argued are relevant to identifying the act of discrimination.

Section 1 provides -

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but - (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and

(iii) which is to the detriment of that other because he cannot comply with it."

Section 3 provides -

"(1) In this Act, unless the context otherwise requires -

"racial grounds" means any of the following grounds, namely colour, race, nationality or ethnic or national origin;"racial group" means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls.(2) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purpose of this Act."

Finally, S.12 deals with discrimination by qualifying bodies in these terms -

"(1) It is unlawful for an authority or body which can confer an authorisation or qualification which is needed for, or facilitates, engagement in a particular profession or trade to discriminate against a person - (a) in the terms on which it is prepared to confer on him that authorisation or qualification; or (b) by refusing or deliberately omitting to grant, his application for it."
"(2) In this section - (a) "authorisation or qualification" includes recognition, registration, enrolment, approval and certification."
Section 41 of the 1976 Act, which provides the defence of statutory authority, has already been quoted.

B. Medical Act 1983

The provisions principally relied on in argument concern the grant of limited registration under S.22 of the Act. That provides -
"(1) Subject to S.23(5) and 24 below, where a person satisfies the Registrar - (a) that he has been selected for employment in the United Kingdom or the Isle of Man as a medical practitioner in one or more hospitals or other institutions approved by the General Council for the purposes of this section; (b) that he holds or has held or has passed the examination for obtaining some acceptable overseas qualification or qualifications; (c) that he has the necessary knowledge of English; (d) that he is of good character; and (e) that he has the knowledge and skill, and has acquired the experience, which is necessary for practice as a medical practitioner registered under this section or is appropriate to his case, he shall, if the General Council think fit to direct, be registered under this section as a medical practitioner with limited registration.
...
"(4) In this Act an "acceptable overseas qualification" means any qualification granted outside the United Kingdom and for the time being accepted by the General Council for the purpose of this section as furnishing a sufficient guarantee of the possession of the knowledge and skill requisite for the practice of medicine under the supervision of a person who is registered as a fully registered medical practitioner."
In S.55 the expression "the necessary knowledge of English", in relation to an applicant for registration under this Act, means the knowledge which, in the interests of himself and his patients, is necessary for the practice of medicine in the United Kingdom.Pursuant to these statutory provisions the GMC has issued a Note LR2 containing advice for overseas qualified doctors and employing authorities on applications for limited registration. The note contains information about the categories of doctors who are eligible for limited registration. It is stated in paragraph 1(a) that only doctors whose overseas medical qualifications and experience are accepted by the Council and who have passed or gained exemption from the PLAB test are eligible to apply for limited registration. Paragraph 3 identifies "doctors to whom this Note applies" in the following terms.The following categories of doctors should apply for limited registration on Form LR2:(a) Doctors who have passed the PLAB test (ie, the test of professional knowledge and proficiency in English conducted by the Professional and Linguistic Assessments Board);(b) ...(c) Doctors who are exempt from the PLAB test because they qualified: (i) certain universities in Australia, Canada, Hong Kong, New Zealand, Singapore, South Africa, the USA or the West Indies, or(ii) in the Republic of Ireland after 5 years undergraduate study in that country, or(iii) at the University of Malaya on or before 31st December 1987;(d) Doctors who have been granted exemption from the PLAB test because, in addition to their primary overseas medical qualification, they also: (i) hold, or have passed the final examinations for, one of the following primary medical qualifications [the qualifications are identified], or(ii) hold, or have passed the final examinations for, a higher qualification granted in the United Kingdom, the Republic of Ireland or Australasia which is registrable with the Council; or(iii) have passed or been exempted from the primary examinations for the MRCPath or the FRCR.The terms of that advice require a person in the position of Dr Rovenska to pass the PLAB test in order to be eligible to apply for limited registration. She does not fall within the description of any of the doctors who are exempt from the PLAB test because they have qualified at certain universities overseas or in certain countries or who have gained primary medical qualifications of the kind described in paragraph 3(d).

Relevant questions on Time Limits

The following questions arose for decision on the time limits provisions of the Race Relations Act 1976:-(1) What is the act complained of?(2) Was it an act extending over a period and, if so, over what period?(3) When was the act complained of done or treated as done?(4) Was the complaint presented to the Tribunal before the end of the period of three months beginning when the act complained of was done?(5) If not, in the circumstances of the case, is it just and equitable for the Tribunal to consider the complaint out of time?

The act complained of

Most of the argument on this appeal has concentrated on the first two questions: identifying the act complained of and debating whether it should be characterised as a one-off act or a continuous act.In order to answer the first two questions it is necessary to look at the form IT1 to see what the complainant identified as the relevant act. It appears that Dr Rovenska drafted her own Originating Application. In those circumstances it is important to note the words of Lord Justice Balcombe in Sougrin v. Haringey Health Authority [1992] ICR 650 or 653 that when
"... prepared by an applicant acting without the benefit of professional advice the Industrial Tribunal should not approach the originating application in a technical manner, but should look at it to see what is the substance of the complaint."

At p.658 Lord Donaldson M.R. said

"... Industrial Tribunals are "shop floor" courts whose procedures and approaches must be attuned to the needs of litigants in person. Accordingly a tribunal should not take a narrow or legalistic view of the terms in which the complaint is couched."

Dr Rovenska stated her complaints in the following terms -

"I would like to make complaint about GMC which continuously and consciously since 1981 discriminates me because of my Czechoslovak citizenship and Czechoslovak medical qualification and training. GMC Overseas Registration Division is breaking Race Relations Act 1976, section 12(1) because it refused to register me on the grounds that I cannot speak English and my medical knowledge is not up to British standards."

At the end of the details of her complaint she says -

"I would like to be registered with GMC exempted from PLAB test be trained and treated the same way like my British colleagues and not like "second class doctor and citizen".

The rival submissions

On the questions of the act complained of and whether it extended over a period it was submitted on behalf of the GMC that Dr Rovenska's complaint was about the refusal of the exemption for which she had applied in November 1991. That was refused by the GMC in its letter of 2nd December 1991. An indication that this is her complaint is contained in Box 9 of the IT1 which gives as the date of the action she was complaining about the 15th January 1992. That is the date on which she received the GMC letter in response to the letter written on her behalf by the Greenwich Council for Racial Equality.On behalf of Dr Rovenska, Ms Williams submitted that the substance of Dr Rovenska's complaint is not so much about the specific refusal of her application for exemption as about an act which extended over a period, namely the act of operating a system of rules which apply to make exemptions available to some applicants who have acceptable overseas qualifications, provided that they attended at certain universities in specified countries, and which make exemptions unavailable to those who do not fall within those categories, because they have obtained their qualifications in other countries, such as Czechoslovakia. The importance of the disagreement is that, if the GMC is right, then, subject to certain other arguments, the period of three months ran from Dr Rovenska's receipt of the letter of 2nd December 1991 and had expired before she presented her Originating Application on 31st March 1992. If, on the other hand, Dr Rovenska is right the period within which she was obliged to present her application has not even started to run against her.A decision on this point requires an examination of the authorities which have interpreted the distinction drawn by the 1976 Act between an act which extends over a period (variously described as a "continuing act" or a "continuous state of affairs") and an act which does not extend over a period (variously described as a "one off" or "once for all" act). The cases cited by counsel included

Calder v. James Finlay Corporation Ltd [1989] ICR 157 (Note)

Barclays Bank Plc v. Kapur [1991] ICR 208

Sougrin v. Haringey Health Authority [1992] ICR 650 .As the facts of all the cases are different nothing is to be gained by considering them in detail. It is sufficient to summarise the guidance gathered from them in the following terms:-(1) An act does not extend over a period simply because the doing of the act has "continuing consequences" over a period. For example, a decision not to appoint an applicant for a particular post or not to upgrade his post (as in Sougrin ) has continuing consequences (eg as to pay). But the act which produced those consequences took place at a fixed moment of time and did not, therefore, extend over a period of time.(2) An act does extend over a period of time, however, if it takes the form of a rule, scheme, practice or policy in accordance with which decisions are taken from time to time: for example, an employer's pension scheme, as in Kapur , or a scheme providing for mortgage subsidies for employees and restricting the benefit of them in such a way that some qualify for the benefits, while others are denied them. In those cases, as long as the scheme, rule, policy or practice is in operation, it may be properly said that there is an act extending over the period of its operation and a complaint may be brought during that period or, at the latest, before the end of the expiration of three months after the rule, scheme, practice or policy has ceased to operate.The dispute in this case is as to which side of the line Dr Rovenska's complaint falls.For the GMC Mr Straker made a number of submissions prefaced with a statement, not strictly relevant for the purposes of this appeal but, nevertheless, entirely understandable, that the GMC strongly rejects any suggestion that it has been guilty of any unlawful discrimination. Mr Straker was at pains to point out the legal and factual difficulties in the way of Dr Rovenska's claim. He referred to some of the provisions in the 1976 Act and in the Medicine Act 1983 which prima facie create formidable obstacles in the way of Dr Rovenska succeeding. It is important to remember, however, that it is not appropriate, in dealing with a point on time limits, to conduct an investigation into the merits of fact or law. The time limit point is one which goes to jurisdiction, not to the substance, or lack of substance, in the complain.On that aspect of the matter Mr Straker submitted that the decision of the Industrial Tribunal was correct in law and that no question or point of law arises on the appeal to justify this Appeal Tribunal interfering with the decision. His particular points were these:-(1) In its letter of 2nd December 1991 the GMC made it clear to Dr Rovenska that, as a pre-condition for limited registration as a medical practitioner, she would have to pass the PLAB test. In other words, she was not eligible for exemption from the test and would not be granted one.(2) The insistence on passing the test and the denial of an exemption from it is the specific act which Dr Rovenska complains was discriminatory. That act did not become any more, or less, discriminatory as a result of subsequent correspondence between the GMC and Dr Rovenska's representative.(3) That act had "continuing consequences" in that if she wanted limited registration, she remained liable to sit the PLAB test. That did not, however, make the act of denying her an exemption one which extended over a period. The refusal of an exemption and the consequent insistence on the sitting and passing of the PLAB test is an act of which complaint must be made, if at all, under S.54 and S.1 or S.12 of the 1976 Act within the three month time limit. It cannot be said that there is any act of the GMC extending over a period.(4) Dr Rovenska did not present her application with three months of becoming aware of the decision in the letter of 2nd December. She was therefore out of time.(5) There was no error of law in the decision of the Tribunal in refusing to extend the time. The Tribunal was entitled to look at the strength of the case against the GMC and was correct in concluding that the matters of which Dr Rovenska complained fell within the statutory authority of the GMC and therefore provided the GMC with a complete defence under S.41(1) of the 1976 Act. The matters covered by the PLAB test are those required under the scheme which the GMC is authorised to establish and operate by the terms of S.22 of the 1983 Act. If Dr Rovenska intended to challenge the lawfulness of the whole scheme she would have to face the fact that the scheme was contemplated by Parliament in the 1983 Act.(6) Mr Straker added that, even if he was wrong on this point, and the defence of statutory authority was not available, the Tribunal's conclusion on extension of time was not vitiated by error of law, since the question of statutory authority was only one of a number of factors taken into account in refusing to extend time.(7) The various cases relied on by Dr Rovenska to show that the GMC were committing an act extending over a period did not in fact support that proposition because the cases relied upon pre-supposed or contemplated a continuing relationship between the complainant and the respondent, such as employment. No continuing relationship can be detected in this case.For all the above reasons Mr Straker submitted that the appeal should be dismissed.

Conclusions

The GMC's submissions are clear but unconvincing. After careful consideration we have reached the conclusion that the decision of the Industrial Tribunal on jurisdiction is flawed by an error of law and that this appeal should be allowed. In allowing this appeal we wish to make two preliminary observations:-(1) We make it clear that we express no view on the merits of Dr Rovenska's case. The GMC may be right in its arguments that Dr Rovenska will not succeed in establishing any discrimination. This is not, however, an application to strike out the claim or a pre-hearing assessment held to determine whether Dr Rovenska has a claim. We repeat that all we are concerned with is the Tribunal's jurisdiction to entertain a claim in a situation where it is contended by the respondent that the Originating Application has been presented out of time.(2) Although we are reversing the decision of the Industrial Tribunal we should express our understanding of the difficulties which they must have encountered in dealing with this point. Dr Rovenska appeared in person before the Tribunal. She was incapable of giving them the expert assistance on legal argument which Ms Williams provided at the hearing of the appeal.Ms Williams argued that the appeal should be allowed. We agree and propose to give our reasons by asking and answering the questions identified earlier in this decision.(1) What is the act complained of ?The substance of Dr Rovenska's complaint is that the GMC has applied a requirement or condition that applicants for limited registration under the 1983 Act must bring themselves within one of the exemptions specified in paragraphs 3 and 4 of Note LR2 in order to achieve registration without sitting and passing the PLAB test. That is alleged to constitute indirect discrimination in that the proportion of Eastern European nationals and/or the proportion of nationals from overseas non-EEC countries (save the exempted countries) who can comply with that condition or requirement is considerably smaller than the proportion of nationals from the exempted countries who can comply with it. It is therefore argued that Dr Rovenska has suffered a detriment in that she has not met the requirement or condition, has not been granted exemption and has been unable to gain limited registration as a medical practitioner.Although that is the substance of Dr Rovenska's main complaint, it should be noted that Ms Williams also formulated a complaint of direct discrimination by reference to the fact that the terms on which the GMC is prepared to register Dr Rovenska do not permit her to claim an exemption from the PLAB test. That is alleged to constitute direct discrimination under S.12 of the 1976 Act.(2) Was the act complained of one extending over a period and, if so, over what period ?The act complained of by Dr Rovenska does extend over a period, namely the period during which the GMC operates the rules, guidance or advice contained in the Note LR2 which sets out the requirements or conditions applied by the GMC to determine whether or not an applicant is granted an exemption. A decision to refuse an exemption in the case of a person such as Dr Rovenska is pre-determined by the provisions in LR2 regarding exemption. As long as the GMC acts on the contents of the Note LR2 Dr Rovenska, with her current qualifications, is bound to be refused exemption. Her complaint is not therefore of a once and for all refusal of an exemption. It is about the maintenance and operation of a scheme for exemption which extends over a period, that period being the currency of the scheme or rules.(3) When was the act complained of done or treated as done ?If the answer to (2) above is correct, then the act is not treated as done until the end of that period and time will only begin to run against Dr Rovenska from that time. Until the scheme is revoked or revised in a significant manner Dr Rovenska may therefore bring a claim which cannot be barred by time limits since those time limits have not even started to bite.(4) Was the complaint presented to the Industrial Tribunal before the end of the period of three months beginning when the act complained of was done ?The answer is 'yes' for the reasons given in (3) above.(5) If not, in the circumstances of the case, is it just and equitable to consider the complaint out of time ?If, contrary to the views expressed above, this was a complaint of a one off act, we are of the view that the Tribunal was right in holding that that act occurred when Dr Rovenska received the letter of 2nd December 1991. The Originating Application was presented until more than three months after that date. In those circumstances the question would arise as to whether it was just and equitable to consider the complaint out of time. It is not strictly necessary for us to decide that question, but we have heard argument on it and have reached the conclusion that, if it were necessary to decide it, we would find that the Tribunal had erred in law in its reliance on the defence of statutory authority to justify the conclusion that the claim by Dr Rovenska stood little chance of success. It may be that the claim does stand little chance of success, but not for the reason of the defence of statutory authority. In Hampson v. Department of Education and Science [1992] All ER 513 the House of Lords considered the defence of statutory authority contained in S.41 of the 1976 Act. It was observed by the House of Lords that the defence is an exception to the Act's general purpose in outlawing all forms of discrimination. The language of the defence should be narrowly, rather than widely, construed if it was susceptible of more than one meaning. The House of Lords concluded that, if the discriminatory act is specified in an enactment, order or instrument, but not otherwise, then it is done "in pursuance of" that enactment, order or instrument and would be protected by S.41.If, however, what was done was not necessary to comply with the statutory requirement (for example, there was a discretion in the matter) then there could be no valid reason why it should not have to be justified before an Industrial Tribunal. A distinction is drawn between, on the one hand, acts done in the necessary performance of an express obligation contained in an enactment, which would be the subject of the defence, and, on the other hand, acts done in the exercise of a power or discretion conferred by the legislation, in which case the defence of statutory authority would not be available.Thus, in this case, the defence of statutory authority might be available if a challenge was mounted to the existence of a requirement that the Registrar must be satisfied that the applicant for limited registration should have the necessary knowledge of English or knowledge and skill for practice. Those particular requirements are a matter of statutory provision in S.22(1)(c) and (e). The challenge here, however, is not to the requirements of the statute, but to the exemptions which are contained in Note LR2 produced by the GMC in exercise of a discretion or power conferred on it by the section. The scope of the exemptions is not determined by the necessary performance of an express obligation contained in S.22. They are acts done in the exercise of a power which that section confers on the GMC. In our view, therefore, the defence of statutory authority would not be available and the Tribunal erred in law in supposing that S.41 meant that Dr Rovenska had little chance of success.For those reasons, if it had been necessary to decide this matter, we would have remitted the matter to the Industrial Tribunal to decide whether or not it was just and equitable to consider the complaint in circumstances where the GMC could not rely on the defence of statutory authority.For all those reasons we shall allow the appeal. The result is that Dr Rovenska has presented her Originating Application in time and it may proceed to an investigation of the merits.