England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE PTA 1998/7831/3

Royal Courts of Justice

Strand

London WC2

Tuesday, 25 May 1999

B e f o r e:

LADY JUSTICE BUTLER-SLOSS

LORD JUSTICE PILL

SIR CHRISTOPHER STAUGHTON

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SUHAIL AZIZ

Appellant/Applicant

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BETHNAL GREEN CITY CHALLENGE COMPANY LIMITED

Respondent

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR M PANESAR (Instructed by Commission for Racial Equality, London, SW1E 5EH) appeared on behalf of the Applicant

MISS J BROWN (Instructed by Messrs Bindman & Partners, London, WC1X 8QF) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

LADY JUSTICE BUTLER-SLOSS: This is an application for permission to appeal heard inter partes by direction of Ward LJ. The applicant applied to the Employment Tribunal on 15 September 1995 alleging racial discrimination in respect of four unsuccessful applications for employment with the respondent company, the Bethnal Green City Challenge Company. The applications made by the applicant were between 1992 and 1995.

Before the Employment Tribunal there was a hearing over 10 days in October 1997 and March 1998. Throughout the applicant was represented by counsel and his application was dismissed. The Employment Tribunal sent their extended reasons on 24 March 1998. The applicant's case had been supported by the Commission for Racial Equality, the CRE, which received the Employment Tribunal's reasons on 26 March, as can be seen by the date stamp of the CRE on the copy which the court has been provided with. There is a 42 day period for appeal to the Employment Appeal Tribunal by virtue of the 1993 Rules, rule 3(2) which specifies:

"The period within which an appeal to the Appeal Tribunal may be instituted is 42 days from the date on which extended written reasons for the decision or order of the employment tribunal were sent to the appellant".

The 42 day period in this case expired on 5 May. The notice of appeal was received by the office of the Employment Appeal Tribunal on 8 May. There was an application to the Registrar of the Employment Appeal Tribunal to extend the time for setting down the notice of appeal. On 2 July 1998 the Registrar refused to extend time. There was an appeal with an oral hearing to the President of the Employment Appeal Tribunal, Morison J, who dismissed the appeal having heard the argument of counsel on 3 December 1998.

The short facts relevant to the application to this court is that the respondent company was a City Challenge Company established in 1992 for a period of five years to promote regeneration of the Bethnal Green area. In 1992 the applicant was short-listed for the application for a chief executive. Although short-listed, he was not selected. In 1993 he again applied. On that occasion he was not in the final selection nor was he appointed. In 1994 there was an application for the job of education and training programme executive. He again applied for that, but was not appointed. He was short-listed. In 1995 the post of chief executive again became vacant. On this occasion he was not in the short list and the deputy chief executive was appointed.

The applicant sought to appeal the decision of the Employment Appeal Tribunal, both in relation to a finding that he had not been racially discriminated against and also that he should pay part of the costs assessed at £250 occasioned by a postponement of the hearing in October 1997. The reason for the delay beyond the permitted 42 days was based upon the insertion in manuscript of the date of the reasons. Looking at the photocopy which we have it is right to say that on the final page of the decision, signed by the chairman and the secretary of the Tribunals, the date of the decision is clearly March 1998 and the first figure is clearly a 2. It is unclear, and, if I may say so, manifestly unclear what the second figure is. I would find difficulty in thinking it was either 4 or 7; I had difficulty in seeing what the figure was at all. However, it appears that the CRE were quite certain, rather surprisingly, that this date was 27th and did not refer back to the first page of the decision which shows the date stamp, Commission of Racial Equality, Registry, 26 March 1998, which is entirely clear. So the confusion, as undoubtedly there is, in the manuscript insertion of the date was easily resolved by the CRE had they looked at the first page. But, according to the information supplied in correspondence between the CRE and the Employment Appeal Tribunal, there was no confusion in the minds of those who looked at it and presumably in the mind of counsel. Consequently they went on the assumption that it was 27 March and they put it into their diaries, so Mr Panesar, who has appeared for the applicant before us today, has told us and they worked to that date. The CRE has pointed out the mistake was not the fault of the applicant and they do not really consider it was the fault of the CRE. The application for an extension of time was opposed by the respondents, who were kept informed of this mistake. The extension required, in order for the notice of appeal to be set down, is three days.

The President, after the oral hearing and no doubt having had the benefit, as we undoubtedly have had today, of admirable and very well expressed arguments from Mr Panesar on behalf of the applicant, took the view that this was a difficult case. He was concerned by some matters. He says at page 52 in the final paragraph of his decision:

"I have found this an extremely difficult case to reach an adjudication on. I have had regard to the guidelines set out in the Abdelgefar(sic) decision, to which my attention was drawn by both parties. The Employment Appeal Tribunal takes what might be described as a very hard line as to the need for appeals to be presented in time and it was I think because of that, that in the Abdelgefar(sic) case it was said that it would be likely to be only in a rare and exceptional case that time should be extended. I have to say that whilst I am fully satisfied that I have been provided with an honest and full explanation for the delay in this case, I cannot say that it excuses the delay so that I ought to extend time. I weigh the various factors, I am troubled by the decision itself and the part in particular in relation to demeanour, to which I have referred but on balance I am not able to say that the merits of the notice of appeal can be ascertained sufficiently clearly to enable me to give much weight, if any, to that fact. It is therefore with somewhat heavy heart that I must dismiss this appeal."

It is not entirely surprising, in the light of the way that Morison J expressed himself in the final paragraph of that decision, that Mr Panesar on behalf of the applicant should seek to appeal to this court. He raises three questions: Is there a difference of approach between the Court of Appeal and the Employment Appeal Tribunal on leave to appeal? If there is, is there a justified decision for that difference of approach? If the difference of approach is without justification then the decision of Mummery J in the Abdelghafar case must be wrong in law and consequently Morison J has followed a decision which has led him to give too restrictive an interpretation in the exercise of his discretion whether to allow an extension of time. The third matter is that therefore this court should say that this appeal should be allowed and the Employment Appeal Tribunal should reconsider whether or not leave should be given to set down the notice of appeal out of time.

That takes us immediately to the decision of the United Arab Emirates v Abdelghafar [1995] ICR 65, a decision of Mummery J as the President of the Employment Appeal Tribunal. In that case the judge had to look at an extension of time. He set out the basis upon which the exercise of discretion should be applied in these applications to extend time and he set out guidelines in which he relied upon two recent decisions of the Court of Appeal outside the area of employment law. He said at page 70:

"In the light of the guidance contained in these authorities it is possible to state, with reasonable precision, the principles which govern the exercise of the appeal tribunal's discretion to extend time and to identify those factors regarded as relevant."

I summarise his four points: first the grant or refusal of an extension of time is a matter of judicial discretion and that should be exercised in a principled manner in accordance with reason and justice. He then referred to the judgment of Sir Thomas Bingham MR in Costellow v Somerset County Council [1993] 1 WLR 256 in which he set out:

"The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met ... The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate."

Then Mummery J pointed out in the third of his general guidelines that the approach is modified according to whether it is an interlocutory matter which ought not to prevent a hearing on the merits or whether it is an appeal where there should be a more stringent approach. He said that an extension may be refused in relation to an appeal even though the default in observing the time limit has not caused prejudice to the party successful in the original proceedings. Then he said as point 4:

"An extension of time is an indulgence requested from the court by a party in default. He is not entitled to an extension. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay."

Perhaps I might just interpose there that it appears to me at least that Morison J found that the explanation given by the CRE was full and honest but it was not an acceptable one.

Returning to the United Arab Emirates ' case, Mummery J at page 71 set out the application of the principles by the Appeal Tribunal. I extract from that under paragraph 1:

"The limit will, therefore, only be relaxed in rare and exceptional cases where the appeal tribunal is satisfied that there is a reason which justifies departure from the time limit laid down in the Rules."

Then he dealt with the fact that if there is a full and honest explanation and a good excuse the extension of time may be granted. He then set out the various excuses that may be given. He said under 3:

"If an explanation for the delay is offered, other factors may come into play in the exercise of the discretion."

He did not give an exhaustive list. He said:

"The tribunal will look at the length of the delay which has occurred, though it may refuse to grant an extension even where the delay is very short. Extensions have been refused, even where the notice of appeal was served only one day out of time."

That was a decision of Popplewell J in Duke v Prospect Training Services Ltd [1889] IRLR 198. Interestingly, that case was not appealed. Mummery J in United Arab Emirates then said, and it is something to be remembered by those who regularly deal with the Employment Appeal Tribunal.

"Parties who have decided to appeal are also strongly advised not to leave service of the notice of appeal until the last few days of the 42-day period. If they do, they run the risk of delay in the delivery of post or of the misdirection of mail [or getting the date wrong]. That risk can be avoided by service of the notice of appeal well within the period. The merits of the appeal may be relevant, but are usually of little weight. It is not appropriate on an application for leave to extend time for the appeal tribunal to be asked to investigate in detail the strength of the appeal ... Lack of prejudice or of injustice to the successful party in the original proceedings is also a factor of little or no significance."

Mr Panesar has said to us that there is no justification for the difference of approach between the Court of Appeal and the Employment Appeal Tribunal in hearing applications out of time. He referred us to the decision of Griffiths LJ, sitting as a single judge, in CM Van Stillevoldt BV v El Carriers Incorporated where he adopted the judgment and reasons of the Registrar, Mr Registrar Adams, who said:

"In my judgment, all the relevant factors must be taken into account in deciding how to exercise the discretion to extend time. Those factors include the length of the delay, the reasons for the delay, whether there is an arguable case on the appeal, and the degree of prejudice to the defendant if time is extended."

Mr Panesar has put forward a spirited argument that it is quite wrong for the Employment Appeal Tribunal to have more restrictive rules. I recognise the force of the argument he has put forward. In my view that is not the correct approach to the Employment Appeal Tribunal. The first matter is that the Court of Appeal, although it certainly discourages the rehash of facts which have been found in the court below, does have the jurisdiction to deal with facts if it can be shown the court went plainly wrong on the facts that have been found. There is not that jurisdiction in the Employment Appeal Tribunal. The Employment Tribunal is the court of fact; it is the final court of the facts. It is for the Employment Appeal Tribunal to hear appeals based on law. That is a very marked distinction between the two courts. Secondly, the Employment Appeal Tribunal has the power to regulate its own procedure under Section 30(3) of the Employment Tribunals Act 1996. It is a statutory body set up under a framework of employment legislation. It has its own good reasons for requiring the parties to deal with proposed appeals expeditiously. I do not see that it is necessary for them to follow exactly the way in which the Court of Appeal deals with prospective appeals. Our procedure is, in any event, different because everything nowadays requires permission and we are living in a changing world where the rules of the Court of Appeal may well change in the future and where we may become even more strict and may in future become closer to the strict approach of the Employment Appeal Tribunal. I do not know; it is impossible to say at this stage. But the Employment Appeal Tribunal is providing, and Mummery J has set out in his judgment in the United Arab Emirates ' case and indeed in the practice direction that set out the guidance based upon that case, a perfectly acceptable formula. It is right that on appeals on law people must get their cases in in time. In this particular case I agree with Morison J that this is an honest explanation of mistake but it is not an acceptable one. Merits may be relevant and there will be cases where it would be right to extend time because the merits of the case require it. That is well within the general propositions expressed by Mummery J that the merits of the appeal may be relevant. Morison J did look at the merits and I have myself looked at the notice of appeal which does not disclose on the face of it, I have to say, any clear propositions of law in which it is suggested that the Employment Tribunal erred. There are a number of criticisms of their approach to the evidence and I would, for my part, find it very difficult to say that those can be translated into points of law. I do not myself think therefore that there are strong merits in this case, but in any event I see no fault in the way in which this case was dealt with. Three days may not be a long time. One day was not a long time in the case of Popplewell J. But in each case it seems entirely clear that the refusal to extend for three days or one day was entirely within the exercise of discretion of the President of the Employment Appeal Tribunal.

I would refuse permission to appeal.

LORD JUSTICE PILL: I agree. The President of the Employment Appeal Tribunal was entitled to hold that the explanation for the delay, though honest and full, did not excuse that delay, for reasons given by my Lady. He was entitled in all the circumstances to refuse an extension of time and I too would refuse the application to this court.

SIR CHRISTOPHER STAUGHTON: In the case of CM Van Stillevoldt BV v El Carriers Inc it is recorded that I regarded a delay of three days as not a serious matter, and described it as a peccadillo. That, however, was in the entirely different context of the time allowed for appointing an arbitrator.

I would agree with what Mummery J said in the United Arab Emirates ' case at page 71 that the time limit ought only to be "relaxed in rare and exceptional cases where the appeal tribunal is satisfied that there is a reason which justifies departure from the time limit laid down in the Rules".

That seems to me a very proper rule for the Employment Appeal Tribunal to adopt.

As my Lady has explained, the excuse put forward in this case and accepted as honest is that the date in the last page of the Industrial Tribunal's decision was equivocal. There is the figure 2 in the place for a date followed by a symbol which, as she has said, does not look like a 4 or a 7. It consists of two diagonal lines of the same length crossing each other more or less at the mid-point of each. No sensible person would, in my judgment, act on that in a matter of any importance. So it was necessary to make further inquiries. If the Commission had done so they would have seen from their own date stamp that the decision must have been sent to the parties on 26 March or earlier. I, accordingly, agree that there was no sufficient ground for an extension here.

I would only add this in relation to the merits. Mummery J said at page 72 of the United Arab Emirates ' case, in a passage which my Lady has read, that the merits are usually of little weight and they should not be investigated in detail. I agree with that. But I would however say that if it is plain that the appeal has no prospect of success that must be a matter which should be taken into account. There can be no point in giving an extension of time for an appeal which is bound to fail. I have had great difficulty in seeing any point of law in this proposed appeal and the jurisdiction of the Employment Appeal Tribunal is confined to hearing appeals on points of law. So that too would, in my judgment, very probably have been a proper ground for refusing the application for leave to appeal to the Employment Appeal Tribunal.

I would dismiss this present application.

Order: Application for permission to appeal refused with costs, but those costs not to include the hearing before Ward LJ of 25 March.