A procedural irregularity in civil proceedings occurs where there has been a failure to comply with the procedural rules, regulations or processes governing the proceedings, potentially undermining the fairness or the validity of the resulting decision. A prospective appellant may rely on procedural irregularity as a ground of appeal when challenging a first-instance decision.
The Court of Appeal’s recent decision in Patel v General Optical Council [2026] EWCA Civ 1206 provides a useful illustration of the approach appellate courts take when considering whether an alleged procedural irregularity has caused sufficient injustice to justify interfering with the decision below.
Background and High Court appeal
Mr Patel appealed the General Optical Council’s Fitness to Practise Committee decision which had found him guilty of serious misconduct, consisting of dishonesty, resulting in a nine-month suspension from practice. The appeal was heard on 20 November 2024 by Richard Clayton KC. The circumstances of the hearing were peculiar. The judge was recovering from surgery for a ruptured Achilles tendon and conducted the hearing remotely. He explained to the parties that he was ‘sitting prone in bed, which makes it pretty difficult… to navigate some of the PDF bundles’, and later acknowledged that he was ‘handicapped by an ability to write anything down’. These comments formed the basis of Patel’s application seeking permission to appeal, arguing that the judge was not in a fit state to hear the appeal. This argument was rejected by the judge, who clarified that he had only been taking paracetamol, had medical clearance to work and had reviewed all relevant material.
Despite these difficulties, he insisted that he had been able to engage sufficiently with the submissions.
Although an oral judgment was given on 6 December 2024, the written judgment was not finalised until 17 March 2026, creating a 16-month delay. In the interim, email correspondence querying the written judgment’s delay was exchanged between the relevant parties and the court, but the judge claimed to have had no sight of such correspondence and no final order disposing of the appeal was ever drawn, which created uncertainty for both parties. Subsequently, the High Court dismissed all nine grounds of appeal advanced by Patel. The grounds consisted of allegations of inadequate reasoning, misapplication of the dishonesty test in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 and procedural unfairness. The judge concluded that none of the grounds possessed ‘real prospects of success’.
Court of Appeal decision
The second appeal arose as a result of the subjective irregularity of the initial appeal. Patel’s sole ground was that the High Court’s handling of the appeal was so procedurally irregular that the judgment should be rendered unreliable. The Court of Appeal confined itself to assessing whether the procedural defects, rather than the substantive elements of the High Court’s decision, rendered the judgment reasonably unreliable.
The court accepted that the circumstances of the hearing were ‘unusual and certainly less than ideal’, and noted that the judge struggled with interpreting documents, note-taking and fatigue. However, the court also noted that the transcript demonstrated that the judge remained engaged with the materials and the submissions made to the court. The court also noted that a draft judgment was produced shortly following the hearing and that the lack of substantive criticism of the judgment implied that, although the hearing conditions were far from ideal, they had not caused injustice.
However, the court was critical of the substantial delay in delivering the written judgment. As Phillips LJ put it, ‘the production of the final judgment in this case was fraught with issues and deprived the parties of their right to a prompt decision’. This constituted a breach of Patel’s Article 6(1) right to determination within a reasonable time. The delay alone does not, Phillips LJ went on to explain, justify setting aside a judgment. Citing Bank St Petersburg PJSC v Arkhangelsky [2020] EWCA Civ 408, in which the Court of Appeal reiterated that an appellant must show the judgment is unsafe because of the delay, Phillips LJ found that Patel was unable to provide an error attributable to the passage of 16 months and, although the delay was unacceptable, it did not undermine the reliability of the judgment. Furthermore, although Phillips LJ recognised that the handling of the matter was disorderly, he explained that ‘at the end of the day, there was a full and careful consideration of Mr Patel’s appeal…The surrounding irregularities… have ultimately resulted in one objectionable aspect only, which is delay’.
Finally, Phillips LJ emphasised that judges should not sit unless they have the essential tools to do so properly. He asserted that ‘a judge should only undertake a hearing… when they have the essential tools to undertake the task properly and professionally’. He suggested that a remote hearing from bed should be a final resort, draft judgments must be finalised promptly, and courts must respond to parties’ correspondence. As a result, this instance was labelled a rare public admonishment of judicial practice and court administration.
Commentary
The decision provides a useful reminder that not every procedural irregularity will make a judgment unsafe. The key question is whether the irregularity caused material prejudice or affected the reliability of the decision. Although the hearing in Patel took place in unusual circumstances, the transcript showed that the judge remained engaged with the issues and had considered the parties’ submissions. There was no sufficient basis to conclude that the conditions of the hearing had caused an injustice.
However, the position was different in relation to the delay in delivering the judgment. The 16-month delay was unacceptable and breached Patel’s rights under Article 6(1) to a decision within a reasonable time. The breach did not, however, automatically make the judgment unsafe and Patel still had to show that the delay caused an identifiable error or affected the outcome, which he was unable to do so.
From a practical perspective, appellants alleging procedural unfairness must link the irregularity to actual prejudice; it is not enough to identify poor court administration or an unusual hearing. The appeal must explain in detail what went wrong, how it affected the decision and why the judgment is no longer safe.
Phillips LJ’s comment in the postscript also sends a clear message to judges and court administrators: hearings should only take place where the judge has the necessary facilities to conduct them properly, judgments should be finalised without undue delay, and correspondence from the parties should be dealt with promptly. As Phillips LJ made clear, procedural fairness is not simply about reaching the correct result; it also requires a process that allows the parties to have confidence in how that result was reached.
Masood Ahmed is an associate professor of law at the University of Leicester, co-author of Arbitration of Commercial Disputes: English and International Law and Practice (Oxford University Press, 2025) and a member of the Law Society’s Dispute Resolution Committee. Raman Landa is an LLB student at the University of Leicester and a member of the university’s Pro Bono Society Legal Support Students project
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