England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE EMPLOYMENT APPEALS TRIBUNAL

		The Royal Courts of Justice The Strand London Thursday 4 October 2001

Thursday 4 October 2001

1. LORD JUSTICE PETER GIBSON: There are two applications by Mr Simmons before me. One is for permission to appeal from the order of the President of the EAT, Lindsay J, on 27 November 2000, dismissing Mr Simmons' appeal. That appeal was from the refusal by the EAT Registrar to extend time for Mr Simmons' notice of appeal. Mr Simmons wanted to appeal from the decision, promulgated as long ago as 6 October 1998, of an employment tribunal sitting in Sheffield. Thereby the Tribunal dismissed Mr Simmons' complaint of victimisation under section 4 of the Sex Discrimination Act 1975. The other application is for the disclosure of a tape and for the production of certain documents. That is an application ancillary to the first application. If the first application fails, the second would inevitably fall with it, as there would be no appeal to which the application would be relevant.
2. Mr Simmons unfortunately suffers from ill-health. According to a certificate from his doctor, he has suffered from anxiety and depression over a period of several years. He has put in a skeleton argument and added to that a bundle of documents additional to the bundle prepared for the court, which includes a tape recording, as I shall recount later. When sending the additional bundle, he requested that his application be dealt with on paper. He has been told that he need not attend; hence his absence today.
3. I should also mention that by a fax dated 1 October 2001 he wrote to the court asking for information as to whether there are mechanisms to obtain funding for the various stages of litigation to proceed, or to obtain representation. I am afraid that Mr Simmons has left it far too late to try to obtain legal aid or legal representation. In any event, Mr Simmons has not asked for an adjournment.
4. I summarise the unusual facts of this case. Mr Simmons was an employee of the Post Office from 1977 until 1998. On 22 January 1996 his wife went for an interview with the Post Office for the job of post-mistress at a sub-Post Office in Sheffield. She was interviewed by two Post Office employees, a Mr McElhone and another. She did not get the job. That went to another person whom Mr and Mrs Simmons thought not as well qualified for the job as Mrs Simmons.
5. Mr and Mrs Simmons were upset by the decision. As the Tribunal was to find, they pursued the matter relentlessly ever since, and Mr Simmons became obsessed by the matter. He wrote to MPs and ombudsmen and began to make very serious allegations against Mr McElhone, whom he accused of accepting bribes. A Post Office investigator, Mr Hoole, investigated the matter, interviewing Mr McElhone and Mr Simmons. Mr Simmons appeared to withdraw his complaint. However, later he decided to pursue what the Tribunal was to find was a vendetta against Mr McElhone. He took a photograph of Mr McElhone in the Post Office's security zone and used the photo to produce an offensive Christmas card which he published in Mr McElhone's place of work. He sent an indictment, of what he alleged Mr McElhone had done, to Mr McElhone's employers and apparently to a TV programme.
6. Mr McElhone complained of this harassment. The Post Office felt that Mr Simmons might have committed a criminal offence in relation to the taking of the photo. On 14 January 1998 Mr Hoole interviewed Mr Simmons again and a tape of that interview was made. The Tribunal describes the interview as being heavy-handed but not exceptional, bearing in mind that what appeared to be a criminal matter was being investigated. Having heard the tape, the interview, which Mr Simmons terminated (as was his right), seems to me to have been unexceptionable.
7. Mrs Simmons commenced proceedings against the Post Office on 29 December 1997, but that complaint was dismissed by the Tribunal. Mr Simmons commenced his Sex Discrimination Act proceedings on 11 March 1998. He claimed that the reason for his interview on 14 January 1998 was the application which his wife had made. On 7 and 8 September 1998 the Tribunal heard his complaint.
8. At the hearing the Post Office was represented by Mr Groom of counsel. The Tribunal in its decision accepted that the Post Office must have known of Mrs Simmons' complaint by early January, but the Tribunal found nothing to suggest that Mr Hoole knew of that complaint. The Tribunal was critical of Mr Simmons' evidence and preferred the evidence of the Post Office's witnesses to that of Mr Simmons. It concluded that Mr Simmons had not shown that the interview on 14 January 1998 had anything whatever to do with Mr Simmons' complaint, but that the reason for the interview was the correspondence resulting from Mr McElhone's complaint about harassment. Mr Simmons' complaint was therefore dismissed.
9. Mr Simmons asked for a review of the tribunal decision. That was refused by the chairman. For Mr Simmons to appeal from the Tribunal's decision of 6 October 1998 he had until 21 November 1998 to file his notice of appeal, but he did not do so until 15 May 2000, 539 days late. In the meantime he was involved with other proceedings again the Post Office before a differently constituted tribunal. On 8 July 1999 the hearing was adjourned after Mr Groom, again appearing for the Post Office, in the course of Mr Simmons giving evidence told the Tribunal that he was put in a professional difficulty and could not continue to act as counsel representing the Post Office. Mr Simmons has taken Mr Groom's withdrawal as an acknowledgement by Mr Groom of some misconduct by him at the earlier hearing, but there is no criticism of Mr Groom in the Tribunal's decision and, as Lindsay J pointed out, Mr Groom's withdrawal was consistent with him having been the object of serious allegations by Mr Simmons.
10. Still Mr Simmons did not seek an extension of time for a notice of appeal until 4 May 2000. The reasons given by Mr Simmons for that application were that Mr Groom had removed what Mr Simmons called "two evidential documents" from the Tribunal bundle and he submitted a "procedurally impossible blank form". It is hard to see what possible bearing Mr Groom's alleged misconduct, which was not substantiated, had on the Tribunal's decision of 6 October 1998, based as it was on the impression the witnesses made on the Tribunal when they were giving evidence. The EAT Registrar on 30 June 2000 refused to extend time, holding that no exceptional reason had been shown why an appeal should not have been presented within the 42-day limit.
11. Mr Simmons appealed and the appeal came before Lindsay J. Mr Simmons did not attend his own appeal, nor was he represented. The judge nevertheless gave a full and careful judgment by which he dismissed the appeal. He said that where an applicant discovers fresh evidence of forged documents or improper dealing with relevant documents in earlier proceedings after the 42-day time limit had expired, this could very well furnish an exceptional reason for an extension of time. However, the judge said, the applicant would have to have credible evidence that such irregularities had occurred and that they had had a significant effect on the result of the case and that the applicant had moved with reasonable speed once the new material came to his notice. But the judge said that Mr Simmons had not presented evidence of serious irregularities on the part of Mr Groom and that Mr Simmons' accusations remained unsubstantiated. The judge said that he had no reason to think that the Tribunal's decision would have been different if the documents about which Mr Simmons makes his accusations against Mr Groom had been available to the Tribunal. Furthermore, the judge said, Mr Simmons provided no satisfactory reasons for the delay extending from the hearing in July 1999 until May 2000. The judge acknowledged that Mr Simmons may have suffered from a depressive illness, but the judge pointed out that Mr Simmons was quite capable of addressing what the judge called "great tracts of writing" to the Post Office regarding his complaints. The judge said that there was no reason to suppose that Mr Simmons could not have composed a notice of appeal long before he did. The judge therefore dismissed the appeal.
12. Mr Simmons by his appellant's notice raises, in essence, two points: (1) that the course of justice in the original hearing was perverted; (2) that to bar a litigant in person on the ground of delay was unjust. In his skeleton argument he makes a variety of accusations against the Post Office, his former trade union and the two barristers who have appeared for the Post Office. To give a flavour of the accusations made by Mr Simmons, I will read a short passage from his skeleton argument:

"The Post Office have manipulated their monopoly position in order to wilfully delay and or interfere with mail in order to deny an access to the courts in time constrained tribunal/EAT cases and can therefore exercise discretion as to which cases they would and would not like to be heard using deviant or unlawful means. There is a reluctance by [South Yorkshire] Police to prosecute this criminal offence. They are beyond the law.

They have in this case, invented procedures, forged, secreted and falsified documents on a whim to tribunals and DSS and perverted the course of justice by applying a siege mentality having TOTAL control over the appellants income from employment, state benefit, union contributions (hardship fund) and access to advice of any kind as well as the appellants mental state being exacerbated by prolonging of the litigation".

13. Mr Simmons has also produced a bundle of documents in addition to the ordinary bundle for the court and a tape of the interview of 14 January 1998. I have read all the documents put before me, as well as listening to the tape.
14. I am afraid that the material put before me by Mr Simmons does not begin to show that Lindsay J erred in any way in dismissing Mr Simmons' appeal, for the reasons which the judge gave. That material simply does not go anywhere near to proving the truth of the serious allegations which he has seen fit to make. I have been shown nothing to indicate to any objective observer that there was any misconduct at the Tribunal hearing in September 1998, or that the decision of the tribunal can in any other way be impugned. His accusations remain simply accusations which are unsubstantiated. Mr Simmons admits to knowing of the 42-day time limit. Tribunals and courts are well accustomed these days to having litigants in person litigating their cases and, when requested, they are accustomed to offer assistance on procedural matters. But Mr Simmons does not appear to have sought such assistance, nor does he appear to have sought to avail himself of other sources of assistance to which the impecunious could turn, such as the Citizens Advice Bureau.
15. The procedural rules apply as much to litigants in person as they do to represented litigants. The importance of strict compliance with time limits has repeatedly been stressed - see United Arab Emirates v Abdelghafar [1995] ICR 65 and Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111. In the present case the explanation for the grotesque delay is not satisfactory. No good excuse has been shown and there are no circumstances justifying what would be the exceptional course of granting an extension of time. There is no prospect of Mr Simmons succeeding on this appeal. There is no other compelling reason why the appeal should be heard. The application for permission to appeal must be refused and with it falls the application for the production of a tape and documents.
ORDER: Application refused